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State v. Wiley

Court of Appeals of Louisiana, Fourth Circuit

November 15, 2017

STATE OF LOUISIANA
v.
SHAVEZ WILEY

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 510-197, SECTION "J" Honorable Darryl A. Derbigny, Judge

          Leon 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.

          Holli Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR PLAINTIFF /APPELLANT.

          Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods.

          REGINA BARTHOLOMEW-WOODS JUDGE.

         Defendant/Appellant, 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.

         PROCEDURAL AND FACTUAL BACKGROUND

         On 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.[1]

         On both 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.

         A jury 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.

         The 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.

         Ms. 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.

         According 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.

         According 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.

         When 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 [his] homeboy."

         When 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 injured.

         When 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.

         Ms. 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.

         On 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.

         On 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."

         Crystal 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.

         Ms. 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 shooting.

         Ms. 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 University Hospital.

         Ms. 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.

         On 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.

         On 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 shooting.

         On 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.

         Clarissa 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 window.

         Ms. 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 her mind.

         After 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 stomach.

         Ms. 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.

         On 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.

         Rachel 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.

         Dr. 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.

         On 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, " ...


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