FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 510-197,
SECTION "J" Honorable Darryl A. Derbigny, Judge
A. Cannizzaro, Jr. DISTRICT ATTORNEY Kyle Daly ASSISTANT
DISTRICT ATTORNEY Parish of Orleans 619 South White Street
New Orleans, LA 70119 COUNSEL FOR DEFENDANT/APPELLEE.
Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR
composed of Judge Rosemary Ledet, Judge Sandra Cabrina
Jenkins, Judge Regina Bartholomew-Woods.
Shavez Wiley ("Defendant"), appeals his conviction,
following a jury trial, of one count of second degree murder
and one count of attempted second degree murder. For the
reasons that follow, we affirm.
AND FACTUAL BACKGROUND
January 17, 2012, a grand jury returned an indictment
charging Defendant with one count of second degree murder and
two counts of attempted second degree murder, violations of
La. R.S. 14:30.1 and 14:27/14.30.1, respectively. On January
23, 2012, Defendant appeared for arraignment and entered
pleas of not guilty on all charges. On January 31, 2012,
Defendant filed motions to suppress statements, evidence, and
identifications. At a hearing held on June 27, 2012, the
district court denied the motion to suppress identifications
and took the motion to suppress statements under advisement.
On July 24, 2012, the district court granted Defendant's
motion to suppress statements and the State sought a writ,
which this Court ultimately denied.
August 6, 2013, and October 9, 2013, Defendant filed motions
to exclude evidence and on May 29, 2014, filed a motion for
an in-camera inspection of the grand jury transcripts. At the
hearing on May 30, 2014, the district court denied both of
the motions to exclude evidence and granted the motion for
inspection of the grand jury transcripts. On September 18,
2015, the district court held a Prieur hearing and
ordered evidence of all prior bad acts inadmissible, except
for threats of physical harm Defendant allegedly made to law
enforcement officers during the course of the case.
trial commenced on October 13, 2015. At the conclusion of the
four-day trial, the jury found Defendant guilty on the one
count of second degree murder and on one count of attempted
second degree murder, but not guilty on the second count of
attempted second degree murder. On December 4, 2015,
Defendant filed a motion for a new trial, which the trial
court denied. On the same day, the court sentenced Defendant
to life imprisonment at hard labor on the count of second
degree murder, and forty-nine years' imprisonment at hard
labor on the count of attempted second degree murder. This
timely appeal now follows.
facts of the case are as follows. Calva Williams, one of the
attempted second degree murder victims and an eyewitness to
the shooting, testified at trial that she dated decedent,
Jasper Branch, for two months prior to his murder. They lived
together and sold small amounts of marijuana from their
residence. Ms. Williams also knew Defendant, as they had
briefly dated at least a year before the murder.
Williams stated that Defendant was acquainted with her
landlord, who also resided in the home, and began visiting
regularly for several weeks. Ms. Williams subsequently
learned that Defendant and decedent were also acquainted. Ms.
Williams testified she made plans to move out of the
residence. She learned that her best friend's sister,
Crystal Thomas, who she did not know, had an extra bedroom
into which she and decedent could move.
to Ms. Williams, the night before she was supposed to move in
with Ms. Thomas, Defendant told her and decedent that his
friend was leaving town and needed to sell some things,
including two handguns and a quarter-pound of marijuana. Ms.
Williams stated that they made plans to purchase the
marijuana and one of the handguns the next day.
to Ms. Williams, on the day of the murder, she picked up
decedent from work and drove to Ms. Thomas' house to see
the accommodations before they moved in. After she took
decedent back to work, she returned to where she and decedent
had been living, packed their belongings, and moved them to
Ms. Thomas' residence. As Ms. Williams and Ms. Thomas
were running errands, Ms. Williams received a phone call from
a woman who was also moving out of Ms. Williams' former
residence, asking for a ride.
Ms. Williams and Ms. Thomas arrived at Ms. Williams'
former residence to pick the woman up, Defendant was present
and asked Ms. Williams for a ride to his cousin's house.
Ms. Williams took the woman to her destination, and then
picked up decedent from work again, intending to make the
purchase they arranged the previous night. The four of them
(Ms. Williams, Ms. Thomas, Defendant, and decedent) drove to
the home of Defendant's cousin and went inside. Defendant
and his cousin had a discussion in a separate room while Ms.
Williams, Ms. Thomas, and decedent waited in the living room.
When Defendant emerged, he stated that they needed to
relocate to an apartment complex on Tara Lane to "meet
they arrived at the complex, Ms. Williams and Ms. Thomas
indicated that they preferred to wait inside the car while
Defendant and decedent completed the purchase, but Defendant
demanded that the women exit the vehicle and accompany them.
The group entered the apartment complex through the front
courtyard, and Defendant asked Ms. Williams if he could use
her cell phone to make a call. Ms. Williams overheard
defendant speak into the phone, "Oh hello. You ready? We
downstairs." After the call, Defendant brandished a
handgun from his waistband and said to decedent,
"Where's at partner?" then immediately began
shooting. Ms. Williams heard decedent yell, "Baby. Gun.
Run." so she ran toward the back of the apartment
complex. Defendant shot Ms. Thomas and decedent and then
chased after Ms. Williams while continuing to fire the
weapon. Ms. Williams ran down an alley and attempted to climb
over a fence. When she realized she could not escape that
way, she zigzagged back to the front of the apartment complex
and attempted to conceal herself within the crowd of people
also running from the gunfire. She was ultimately not
the shooting stopped, Ms. Williams ran back to the courtyard
and heard Ms. Thomas yell, "He dead, he dead." Ms.
Williams observed decedent lying in the courtyard entryway.
She ran over to him, dropped her purse and keys, and knelt
beside him. Ms. Williams attempted to keep him awake,
although he could not speak or hold her gaze. Neighbors gave
her towels to apply pressure to the wounds and a nurse also
attempted to render aid. The police arrived shortly
thereafter and transported Ms. Williams to a mobile police
station for questioning.
Williams identified Defendant by name as the shooter and
subsequently selected his photo out of a photographic lineup.
Because Ms. Williams began receiving threats, the police
placed her and Ms. Thomas in witness protection where they
resided together in a hotel room.
cross-examination, Ms. Williams admitted that she moved to
Florida sometime after the shooting, and had initially
refused to testify against Defendant at trial. The district
attorney ultimately had her arrested and brought to the
Orleans Parish Jail until she agreed to testify. She further
admitted that she used to work as a stripper and a
prostitute, and her former relationship with Defendant
centered on her efforts to pursue a rapping career. She also
admitted that while speaking to Defendant's former
counsel, she asked, "what do they really need to pin
[the murder] on [Defendant]?" She also stated that
Defendant and decedent were friends and they had not been
arguing prior to the shooting.
re-direct, Ms. Williams stated that Defendant and decedent
met in jail. She also explained that she was not trying to
falsely "pin" the murder on Defendant; she just
wanted to see him brought to justice. Ms. Williams further
testified that the reason she did not want to return to New
Orleans was because she was afraid that Defendant's
family members were "looking for her."
Thomas, the surviving shooting victim, related the same
series of events. She explained that she was pregnant at the
time, and was allowing Ms. Williams and decedent to move into
an empty bedroom in her house. She described the errands she
ran with Ms. Williams that day, taking Ms. Williams'
friend to her new house, picking up Defendant and decedent,
and driving to Defendant's cousin's house, and then
to the apartments at Tara Lane. She stated that she had been
aware that Ms. Williams, Defendant, and decedent had planned
to engage in a transaction, but she did not know the details.
Although Ms. Thomas had never met Defendant before that day,
she was able to identify him at trial.
Thomas testified that when they arrived at the apartment
complex, she wanted to wait in the car because she was not
included in the planned transaction, but Defendant became
angry and ordered her and Ms. Williams out of the vehicle.
They walked into the courtyard of the apartment complex and
Defendant used Ms. Williams' cell phone to make a call.
After the call, Defendant pulled a gun from his waistband,
asked, "Where's at partner?" and began
Thomas stated that Defendant was four or five feet from her
when he started shooting. She heard decedent tell them to
run, so she and Ms. Williams ran toward the rear of the
complex while Defendant was shooting at decedent in the
courtyard. As Ms. Thomas was running, her leg began to hurt
and she became weak, so she lay down in the alleyway,
pretending to be dead. Through the corner of her eye, she saw
Defendant stand over her to see if she was moving, as he
continued to chase and shoot at Ms. Williams. While Ms.
Thomas lay in the alleyway, she began to feel "her
insides burning" and realized she had been shot. She
waited until she believed it was safe to stand up and then
ran for help. Because decedent fell in the entryway to the
courtyard, Ms. Thomas had to step over his body and she
observed that he was still alive, gasping for breath. She
stated that the residents of the apartment complex rendered
aid until the paramedics arrived and transported her to
Thomas testified that while she was in the hospital, the
police took her statement and showed her a photographic
lineup. She recalled that she had been in shock and in pain
and was slurring her words while speaking to the police. Ms.
Thomas stated that she chose Defendant's picture out of
the lineup, but because he had been wearing a hat during the
shooting and not in the picture, she could not be absolutely
certain. In her statement to police, she described the
shooter as wearing a blue-striped polo shirt, red and white
tennis shoes, and a baseball cap.
cross-examination, Ms. Thomas was adamant that Defendant was
the shooter and denied having any difficulty remembering the
incident. She stated that she remembered the shooter had five
gold teeth, two on the top and three on the bottom. Ms.
Thomas admitted that she pled guilty in 2010 to unauthorized
use of a motor vehicle and was sentenced to two years of
probation. Her probation was subsequently extended for
another two years after she failed a drug test and had not
made payments toward restitution. She also stated that she
only became aware of the proposed drug deal when the group
was driving to the Tara Lane Apartments; she was unaware that
Defendant had a gun.
cross-examination, Ms. Thomas testified that Ms. Williams
informed her that Defendant was the father of her child,
which she later learned was not true. She also denied telling
the police that they were shot near the car, explaining that
if an officer wrote that in his report, he must have
misunderstood. She also denied telling the police that
decedent was planning to buy a small amount of marijuana, as
she was unaware of the nature of the transaction that the
others had planned. She stated that, although she never saw
Defendant remove anything from decedent's pockets, she
believed robbery was the motive for the shooting. Ms. Thomas
also admitted that she did not tell the police that the
shooter had tattoos on his face because she had not noticed,
as she had only just met Defendant a short time before the
re-direct, Ms. Thomas stated that, while she did not mention
Defendant's tattoos to the police, she also did not say
the shooter had no tattoos, and she did tell the grand jury
that the shooter had facial tattoos. She also denied that she
and Ms. Williams had planned to have decedent murdered, as
she had only met him the day of the shooting.
Lebanks Ross, another eyewitness to the shooting, testified
that she was a resident of the apartment complex on Tara Lane
on the date of the murder. She stated that she was sitting in
a chair outside her apartment door watching her children ride
their bikes in the courtyard when two men and two women
entered. She noticed that one of the women was pregnant and
the other had a very short haircut she described as a
"fade." Once the strangers began arguing, Ms. Ross
told her children to go inside the apartment while she
remained outside. She stated that one of the men made a call
on a cell phone and asked, "are you ready?" then
put the cell phone in his right, rear pocket. She observed
him pull out a gun and shout, "Give it up, " then
start shooting toward the front gate of the courtyard. When
she saw the gun, Ms. Ross immediately entered her apartment,
shut the door, and watched the incident unfold through the
Ross testified that the perpetrator shot the other man and
then ran across the courtyard toward the back of the
apartment complex, still firing the gun. Because the two
women who were with them had run toward the back of the
apartment complex, Ms. Ross believed the shooter was chasing
and shooting at them. As the shooter was crossing the
courtyard in pursuit of the two women, he looked in Ms.
Ross's window and they locked eyes. She testified that
she saw him very clearly and she identified Defendant in the
courtroom as the shooter, stating that there was no doubt in
the shooting stopped, Ms. Ross left her apartment and went
upstairs to the second floor of the apartments to observe
from the balcony. As she ascended the staircase, she was able
to see Defendant jump over the fence behind the apartment
building. Ms. Ross testified that her neighbor called 911 and
threw a towel down into the courtyard to press onto
decedent's wounds, as he was bleeding profusely from his
Ross testified that she did not recall talking to the police
the night of the shooting, but a detective came to her
apartment the next day to ask questions. Several weeks later,
the detective returned and showed her a photographic lineup.
She identified the shooter and circled Defendant's
picture. The back of the photograph contained Ms. Ross's
signature and was dated November 1, 2011 at 11:55 am.
cross-examination, Ms. Ross stated that she did not know how
many apartments were occupied at the time of the shooting.
She knew her neighbors but stated that she had not discussed
the shooting with any of them at any time. She also stated
that Defendant's facial tattoos stood out to her during
the shooting, in the photographic lineup, and in the
courtroom during trial.
Smith, an "NOPD complaint operator, " testified
that, according to the incident report sheet, her division
received several 911 calls starting at 7:49 pm on September
29, 2011. The callers reported the shooting of a pregnant
woman, and described the shooter as a black male with a
"low haircut, " two gold teeth, a "504"
and a fleur de lis tattoo under his eyes, and wearing a blue
and white striped Polo shirt, blue jeans, and red and white
"drawers." On cross-examination, Ms. Smith stated
that the description of the shooter contained in the report
appeared to have been provided by a police officer at the
scene, and that one of the 911 callers described the shooter
as someone's "boyfriend." She also testified
that the report log did not indicate that any 911 callers
were named Clarissa.
Jeffrey Rouse, the Orleans Parish Coroner, testified that he
was not employed in Orleans Parish at the time of the murder,
but he authenticated the former coroner's report and
explained its contents. The report indicated that
decedent's cause of death was gunshot wounds.
Specifically, he sustained gunshots to his thumb, ring
finger, and collarbone and three bullets entered his buttocks
area, causing injury to his femoral artery, iliac artery, and
his large and small intestines.
cross-examination, Dr. Rouse stated that the report showed a
lack of soot or stippling surrounding the wounds, indicating
the shooter was more than two feet away from decedent. The
report also revealed that no gunshot residue test had been
performed on decedent, and his blood contained no toxic
substances. He also agreed that the report described bullets
one and three as "mushroomed, " and described
bullet two as "full metal, yellow-jacket, "