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State v. Lewis

Court of Appeals of Louisiana, Second Circuit

November 15, 2017

STATE OF LOUISIANA Appellee
v.
LATILO OMAR LEWIS Appellant

         Appealed from the Sixth Judicial District Court for the Parish of Tensas, Louisiana Trial Court No. 93, 178 Honorable Michael E. Lancaster, Judge

          LOUISIANA APPELLATE PROJECT Carey J. Ellis, III for Appellant

          LATILO OMAR LEWIS Pro Se

          JAMES E. PAXTON District Attorney for Appellee

          LINDA L. WATSON MOLLY F. McEACHARN JOHN D. CRIGLER, JR. Assistant District Attorneys

          Before BROWN, GARRETT, and STONE, JJ.

          BROWN, C.J.

         Defendant, Latilo Omar Lewis, was convicted of first degree rape, attempted second degree murder, second degree kidnapping, and simple robbery. He was sentenced to life imprisonment at hard labor without benefits for rape, 50 years at hard labor for attempted murder, 40 years at hard labor for kidnapping, and seven years at hard labor for robbery. Defendant has appealed his convictions and sentences. For the following reasons, we affirm all of defendant's convictions and his sentences for first degree rape, attempted second degree murder, and simple robbery. However, defendant's sentence for second degree kidnapping is vacated and remanded to the trial court for resentencing. This case is also remanded to the trial court for correction of the court minutes and compliance with the sex offender notification requirements.

         FACTS

         Defendant's four-day trial began on October 10, 2016. Tensas Parish Sheriff Ricky Jones testified that around 2:22 p.m. on November 6, 2015, N.H. frantically ran into the sheriff's office barefoot, wearing a pink nightgown and black jogging pants. According to Sheriff Jones and Deputy Betty Spillman Brown, N.H. was hysterical; she was crying and could barely talk. The officers observed noticeable bruises on N.H.'s face, neck and arms and saw that she had bloodshot eyes. N.H. reported that a man who said that his name was Marcus Brown had forced himself into her home that morning, tied her up and sexually assaulted her all day. When he went into another room, she was able to get loose, get her gun, and shoot him when he returned to the room. Three minutes later, at 2:25 p.m., defendant, Latilo Lewis, called 911 from N.H.'s home and advised that he had been shot.

         When officers arrived at N.H.'s house, which was about three blocks from the sheriff's office, they found defendant sitting in a chair in the living room. Defendant had a perforating bullet wound to his upper right abdomen. Paramedic Johnny Ogden determined that defendant's injury was critical, and defendant was airlifted to the University of Mississippi Medical Center in Jackson, Mississippi.

         Sheriff Jones testified that the officers went past defendant into N.H.'s bedroom, where they observed her disheveled bed and drawers pulled out. The sheriff took photographs of the scene, as did Investigator Mark Guy and Deputy Bob Stroud. Sheriff Jones testified that they found one live round and one spent round on the victim's bed, as well as a projectile on the floor. He stated that, despite an extensive search for N.H.'s gun, a .380 automatic, officers were unable to locate the weapon. Deputy Evelyn Guy took photographs of N.H.'s injuries at the sheriff's office. Sheriff Jones identified the photos taken during the investigation during his trial testimony.

         Sheriff Jones testified that, during the course of the investigation, N.H. told officers that there was $500-$600 missing from her purse. Deputy Stroud contacted authorities at the University Medical Center in Jackson, who found $567 in defendant's possession.

         St. Joseph Police Chief Karl Jones also responded to the 911 call made from N.H.'s house and was there when paramedics arrived. Chief Jones saw the very distraught victim when he went to the sheriff's office/jail. According to Chief Jones, N.H. was crying uncontrollably and appeared to be in shock. He also noticed bruising at her neck and wrists. Chief Jones testified that the victim's brother called him on November 7 and asked whether officers had found any money on defendant because N.H. was missing $500-$600, which she had collected for a church function. Chief Jones stated that he and his department participated in the search for the victim's gun, which went on for several days.

         N.H. testified that around 7:30 a.m. on November 6, 2015, she opened her front door to check the weather so she would know what to wear that day. When she saw that there was a man crouched down on her porch "like a lion getting ready to pounce on his prey, " she tried to close the door, but he forced or "barged" his way into her house. The man grabbed N.H., threw her on the floor and told her to put her hands behind her back. N.H. refused and fought back, but the man choked her and she lost consciousness. When N.H. woke up, her hands were tied behind her back. The man pushed N.H. into her bedroom and repeatedly raped her as she begged for him to stop. Over the course of about seven hours, the man continued to rape N.H. as she was tied to the head of her bed with a belt. N.H. stated that at one point, the man took money (around $500-$600) from her purse which she had been saving for her church anniversary. N.H. detailed several conversations she had with the man, including the fact that the man told her his name was Marcus Brown.

         At one point, the man told her that he was hungry and went into the kitchen, leaving N.H. tied to the bed. N.H. was able to loosen herself and get her gun out of a filing cabinet she used as a nightstand located next to the bed. When the man came back into the bedroom, N.H. was standing on the bed with the gun pointed at him. N.H. told the man to leave, but he came closer, so she shot him. Although he was shot, the man lunged at N.H. and wrestled the gun out of her hand. N.H. testified that the man put the gun to her head and said, "Now bitch, you'll know what it feels like to be shot." The man pulled the trigger, but the gun jammed. Another struggle ensued, and the man tied N.H. to the bed again. She was eventually able to convince the man to untie her so she could get him medical attention. N.H. left the house and drove straight to the sheriff's office. N.H. identified defendant as the man who repeatedly raped and tried to kill her.

         Investigator Michael Huff with the Hinds County Sheriff's Department in Jackson, Mississippi, assisted in the investigation of this case by obtaining search warrants and collecting evidence from defendant while he was in the hospital in Mississippi. On November 6, 2015, Huff obtained a search warrant for defendant's clothing and a DNA sample. Thereafter, once he received information that defendant allegedly took money from N.H. during the incident, on November 25, 2015, Huff obtained a second search warrant for all property possessed by defendant at the time of his admission to the hospital. As a result, $557 was recovered from defendant.

         In a recorded interview, defendant told officers that he was in a relationship with N.H., which no one else knew about. On the day of the incident, defendant said that he was spending time with the victim, they had consensual sex one time, and then N.H. started acting weird and shot him. Defendant stated that the money found in his belongings was money he got from selling weed. Defendant denied raping N.H. or putting the gun to her head. Defendant's statement that he was in a relationship with N.H. was not corroborated.

         After the incident, N.H. was taken to Riverland Medical Center for a sexual assault examination. Dr. Rome Sherrod, who collected evidence for the rape kit, testified that N.H. had bruising on her neck and wrists consistent with being restrained, as well as swelling and abrasions to her vagina, which were consistent with forced or violent sexual activity. Dr. Jessica Esparza, an expert in forensic DNA analysis, testified that she conducted DNA testing of the items in the rape kit and the DNA profile obtained from the sperm from the vaginal swab, cervical swab, and vaginal washings. Dr. Esparza testified that the DNA profile found on the items in the rape kit was consistent with the DNA profile obtained from defendant's reference sample. According to Dr. Esparza, the probability of finding the same DNA profile in a randomly selected person other than defendant was one in 6.11 quadrillion, which is more than the earth's population.

         After all of the testimony and evidence was presented, on the final day of the four-day trial, defendant managed to escape from his jailers as they were escorting him to the courthouse from the jail, which is directly behind the courthouse. Outside the presence of the jury, the trial judge noted that defendant was still on the loose, and it had come to the judge's attention that some of the jurors, who had been looking out the windows in the jury room, observed defendant as he was running. Defense counsel moved for a mistrial, arguing that defendant was prejudiced when the jurors saw him in police custody being escorted by two guards and possibly witnessed his escape, and that proceeding with the trial in defendant's absence was in violation of his right to be present. The trial court denied the motion for mistrial, noting that the jurors saw defendant in custody of law enforcement officers in the courtroom all week and the court took "great pains" to ensure that defendant was in neat, clean, civilian clothing, and that the only restraints he had on, which were on his legs, allowed him to walk with little difficulty. Also, the trial court found that because defendant had voluntarily absented himself, the trial could proceed without his presence. Defense counsel requested that the jurors be gauged to determine if they could still be fair and impartial, but the court stated that it only intended to tell the jury that Lewis had chosen not to be present for the remainder of the proceedings and "leave it at that." The trial court did so, and the trial resumed.

         The jury ultimately found defendant guilty as charged of first degree rape, guilty of the responsive verdict of attempted second degree murder, guilty as charged of second degree kidnapping, and guilty of the responsive verdict of simple robbery. Although his attorney was present, defendant was not present at trial for the closing arguments, jury instructions, or the reading of the jury's verdict.

         The defense filed a motion for post-verdict judgment of acquittal, arguing that the evidence was insufficient, and a motion for new trial, based on the denial of certain objections to testimony during trial. At a hearing on October 26, 2016, the trial court denied the post-trial motions.

         Defendant waived sentencing delays. After reviewing the pre-sentence investigation report, the trial court sentenced defendant as follows: life imprisonment at hard labor without benefits for first degree rape; 50 years at hard labor without benefits for attempted second degree murder; 40 years at hard labor, with at least two years without benefits for second degree kidnapping; and seven years at hard labor for simple robbery. The trial court ordered the sentences to be served concurrently.

         Defendant filed a motion to reconsider sentence, arguing that his sentences were excessive since he received the maximum sentence for each offense. The trial court denied the motion at a hearing on December 1, 2016. This appeal followed.

         DISCUSSION

         Sufficiency of the Evidence

         Although not specifically designated as an assigned error, in the closing section of his pro se brief, defendant contends that the evidence was insufficient to support his convictions. According to defendant, the state's case against him was based on circumstantial evidence and rested solely on the victim's account of the events. Defendant claims that the facts of this case are "shady" and that it is hard to imagine how he was able to take the gun from N.H. and attempt to shoot her after she shot him, or that he would have had time, in the span of three minutes, to hide the gun and take N.H.'s money from her purse.

         The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Sullivan, 51, 180 (La.App. 2 Cir. 02/15/17), 216 So.3d 175. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 05-0477 (La. 02/22/06), 922 So.2d 517; State v. Dotie, 43, 819 (La.App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of ...


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