FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 525-547,
SECTION "I" Honorable Karen K. Herman, Judge
A. Cannizzaro, Jr. District Attorney Parish of Orleans Scott
G. Vincent Assistant District Attorney COUNSEL FOR
APPELLEE/STATE OF LOUISIANA
Katherine M. Franks Louisiana Appellate Project COUNSEL FOR
DEFENDANT/APPELLANT, ELTON WILLIAMS
Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet
F. Love, Judge
appeal arises from the conviction and sentencing of the
defendant for two counts of armed robbery, one count of
second degree murder, and one count of second degree battery.
The defendant received one hundred years for each count of
armed robbery, life for second degree murder, and ten years
for second degree battery. The defendant appeals contending
the trial court erroneously admitted evidence of gunshot
residue and by denying a challenge for cause regarding a
juror, which resulted in the defendant utilizing his last
our review, we find that the trial court did not abuse its
discretion by admitting the gunshot residue evidence
following a hearing or by denying the challenge for cause,
finding that the potential juror with a residence outside of
Orleans Parish was qualified to serve. We affirm the judgment
and the defendant's sentences for second degree murder
and second degree battery. However, having found a patent
error in the sentencing for the two counts of armed robbery,
we vacate those sentences and remand for resentencing.
BACKGROUND AND PROCEDURAL HISTORY
Mejia, Nelson Mejia, and the decedent were repairing an automobile
when Elton Williams approached asking for a cigarette. Mr.
Williams then allegedly brandished a gun and demanded their
money. A struggle ensued, and the decedent was shot and
killed. David and Nelson detained Mr. Williams until police
Williams was charged with two counts of armed robbery, one
count of second degree murder, and one count of second degree
battery. Mr. Williams pled not guilty. Counsel for Mr.
Williams filed motions to suppress evidence, statements, and
identifications, as well as a motion for preliminary hearing
and for omnibus discovery. Counsel for Mr. Williams then
filed a motion for exculpatory material, a motion to inspect
and photograph evidence, and a motion and order for issuance
of a subpoena duces tecum. The trial court denied
the motions to suppress evidence, statements, and
identifications, and the search warrant packet was introduced
into evidence. That same date, the trial court ruled that the
subpoena duces tecum could be served as modified by
for Mr. Williams filed a supplemental motion to exclude DNA
test results as well as a motion in limine to exclude gunshot
residue testimony, or alternatively, for discovery and a
Daubert hearing on the admissibility of preliminary
gunshot residue analysis testimony. The State filed an
opposition, wherein it cited articles supporting the
reliability of gunshot residue testing. The trial court
granted Mr. Williams' motion for a Daubert
hearing. Counsel for Mr. Williams also filed a motion for
written jury charges, a motion for a bill of particulars and
supplemental discovery, a motion for discovery mandated by
Brady v. Maryland, a motion to declare La. C.Cr.P.
art. 782(A) unconstitutional, a motion for a jury instruction
requiring a unanimous verdict, a motion for special jury
charges, and motions in limine to bar the State from improper
closing and rebuttal arguments.
matter proceeded to trial at which time counsel for Mr.
Williams filed additional motions, and twelve jurors were
impaneled. A Daubert hearing was held outside the
jurors' presence regarding preliminary gunshot residue
field testing. At the hearing, Mr. Williams called Veronica
Manuel from the New Orleans Crime Lab to testify. The trial
court ruled that the evidence concerning the gunshot residue
test was admissible, over defense counsel's objection.
The trial proceeded, and a twelve-person jury found Mr.
Williams guilty as charged on all four counts.
for Mr. Williams filed a motion for downward departure of the
statutorily mandated sentence of life without parole and a
motion for post-verdict judgment of acquittal, or in the
alternative, motion for a new trial, which the trial court
denied, and the State filed a multiple bill. Counsel for Mr.
Williams filed a motion to quash the multiple bill. Mr.
Williams was sentenced to thirty years at hard labor on each
of the armed robbery counts without benefit of probation,
parole, or suspension of sentence; life imprisonment as to
the second degree murder count, without benefit of probation,
parole, or suspension of sentence; and five years as to the
second degree battery count.
multiple bill hearing, held the same day, Officer Kevin Bell,
an expert in the field of fingerprint examination and
comparisons, was called by the State and testified regarding
Mr. Williams' fingerprint and arrest card from his prior
conviction and testified that the fingerprints from those
records and Mr. Williams' certified conviction packet
were one in the same. The trial court denied Mr.
Williams' motion to quash the multiple bill, noting his
Williams was adjudicated a second offender, and the trial
court vacated his prior sentence, resentencing Mr. Williams
to one hundred years at hard labor as to each of the armed
robbery counts without benefit of probation, parole, or
suspension of sentence, to run concurrently with each other;
life imprisonment as to the second degree murder count,
without probation, parole, or suspension of sentence; and ten
years as to the second degree battery count, all to run
concurrently. That same date, the trial court noted Mr.
Williams' objection and granted his motion for appeal and
motion for designation of record.
Williams contends that the trial court erred by admitting
evidence of gunshot residue and by denying his challenge for
cause regarding a juror who admitted to residing outside of
Orleans Police Officer Alden Moton and his partner, Officer
Cody Littleton, received a call on March 23, 2015, to respond
to a homicide by shooting in the 7600 block of Alabama
Street. Upon arriving on the scene in a marked police
vehicle, the officers observed the decedent lying face down
and unresponsive on the sidewalk. Officer Moton then located
Mr. Williams in the back yard of a nearby house, where David
and Nelson were detaining him. Officer Moton handcuffed Mr.
Williams and called for EMS. One of the subjects detaining
Mr. Williams directed Officer Moton to a gun located in the
back of a pickup truck parked in a nearby driveway. Mr.
Williams was initially put in the back of the police car, but
after he vomited, he was put in an ambulance and taken to the
Wayne Delarge testified that he was the lead investigator
assigned to this homicide. When he arrived at the scene, the
decedent had been pronounced dead, and his body was still on
scene; Mr. Williams was being transported to the hospital.
Mr. Williams received medical treatment and was tested at the
hospital for gunshot residue by Veronica Manuel, a Crime Lab
Technician, at Detective Delarge's
direction. Detective Delarge later learned that the
gunshot residue test conducted by Ms. Manuel yielded a
"presumptive positive" result.
Delarge testified that the gun recovered from the bed of the
truck parked in the driveway was later discovered to be the
weapon used to shoot the decedent. David Mejia, one of the
robbery victims, went to the hospital to have his ear
reconstructed, as Mr. Williams had bitten part of it off.
Nelson Mejia, the other robbery victim and also David's
son, was relocated to police headquarters for an interview.
Detective Delarge spoke to Officers Moton and Littleton and
canvassed the scene.
firearm collected from the scene, which was loaded at the
time it was retrieved, was subsequently sent to be tested for
DNA evidence by the Louisiana State Police Crime Lab.
Officers were unable to locate a spent casing at the scene,
and the only ballistics evidence collected was a spent bullet
retrieved from the decedent. Detective Delarge requested
testing on both the firearm and the spent bullet. He and the
officers searched the front yard but did not find a wallet.
March 23, 2015, Detective Delarge obtained an arrest warrant
for Mr. Williams, as well as a search warrant for a buccal
swab. He also obtained buccal swabs from David and Nelson,
which were submitted for analysis. Three days after the
incident, Detective Delarge interviewed David and Nelson, at
which time Detective Delarge and Detective Leslie Guzman
showed them confirmation photographs of Mr. Williams, which
were signed and dated by David and Nelson.
testified that on March 23, 2015, his father, David, and the
decedent were working of the air conditioning on Nelson's
vehicle when they were approached by Mr. Williams, who asked
for a cigarette. After obtaining a cigarette from Nelson, Mr.
Williams left, returned a few minutes later bearing a
firearm, put the weapon to David's back,  and pointed it at
the others. Believing that Mr. Williams intended to rob or
kill them, the three men gave Mr. Williams their wallets and
he gave Mr. Williams his money, Nelson attempted to take the
gun away from Mr. Williams at which time Mr. Williams fired
the weapon. Nelson and David then struggled with Mr. Williams
for approximately twenty minutes until they were ultimately
able to subdue Mr. Williams and take possession of the gun.
Nelson and his father took Mr. Williams to the rear of the
house where David detained him, while Nelson took the gun to
David's truck and called 911.
Nelson was putting Mr. Williams's gun in the back of his
father's truck, Mr. Williams and David were struggling,
at which time Mr. Williams bit off David's ear and spit
it out. After the police arrived, Nelson found the decedent
lying on the ground, and he told David that he was dead.
Nelson spoke to the responding officers. Nelson relocated to
the police station for an interview with officers. He was
shown a photograph of Mr. Williams, which he signed.
Nelson's father, testified had known the decedent for
five years. On the date in question, he, Nelson, and the
decedent were standing outside his house preparing to work on
the air conditioning of their car. David observed Mr.
Williams standing on the corner near a stop sign before Mr.
Williams approached them and asked for a
cigarette. Nelson gave Mr. Williams a cigarette; and
Mr. Williams left, returning a short time later. When Mr.
Williams returned, he was armed with a gun, which he pointed
at the three of them and demanded money. David gave Mr.
Williams his wallet. Mr. Williams inspected the wallet, took
a few steps back; and returned, demanding more money. As Mr.
Williams was demanding more money from Nelson and the
decedent, David began to move toward the rear of the vehicle,
at which time he heard a gunshot.
struggle ensued between Nelson and Mr. Williams, during which
Nelson wrestled the gun away from Mr. Williams. Nelson then
pointed the gun at Mr. Williams and demanded the money back,
David detained Mr. Williams, and Nelson left to place the gun
in the back of David's truck and call 911. David
continued to detain Mr. Williams alone in the back yard.
While Nelson was gone, Mr. Williams continued to struggle;
and during the struggle, he bit off David's ear. When
Nelson returned, he helped David detain Mr. Williams until
the police arrived. After the police arrived, David went to
the hospital. A few days later, he spoke with Detectives
Delarge and Guzman at the police station at which time he was
shown a photograph of Mr. Williams, which he signed.
Erin O'Sullivan, of the Orleans Parish Coroner's
Office, was admitted as an expert in the field of forensic
pathology and testified regarding an autopsy she performed on
the decedent. Dr. O'Sullivan testified that the decedent
sustained a gunshot entrance wound on his chest and a bruise
on his left lower leg. The bullet was recovered during the
autopsy, and there was no exit wound. Dr. O'Sullivan
testified that after being shot, the decedent likely survived
for only a matter of minutes.
McElrath, the section head of the firearms unit of the Crime
Lab for the NOPD, was admitted as an expert in the field of
ballistics and firearms examinations. Mr. McElrath testified
regarding State's Exhibits 68 and 80, the magazine on the
firearm and the bullet that was recovered from the decedent,
opining that the projectile recovered was fired from the
firearm in evidence.
Austin, a forensic DNA analyst supervisor at the Louisiana
State Police Crime Lab in Baton Rouge, was admitted as an
expert in the field of forensic DNA analysis. Ms. Austin
testified regarding the DNA testing procedures performed,
noting that the agency, namely the NOPD, decides what type of
analysis is performed on the evidence submitted to the Crime
Lab. Ms. Austin drafted a scientific analysis report for the
DNA testing that was requested on the Smith and Wesson pistol
and magazine, in addition to eleven cartridges, one Chase
Visa debit card, one Visa gift card, right- and left-hand
fingernail clippings from the decedent, and a reference
sample from the decedent. The magazine portion of the firearm
was swabbed for DNA testing. Ms. Austin was able to exclude
the decedent, David, and Nelson's DNA from the magazine
via buccal swab samples, but from the DNA profile that she
obtained, she was unable to exclude Mr. Williams from the DNA
sample that was collected from the magazine. Ms. Austin
the probability of finding the same deduced DNA profile, if
the DNA had come from an unrelated, random individual, other
than Elton Williams, was approximately one in 5.56 sextillion
for the Caucasian population; 4.52 quintillion for the black
population and 25.8 sextillion for the southwest hispanic
review for errors patent reveals two.
record in this appeal contains the front, but not the back of
the indictment. La. C.Cr.P. art. 382(A) provides in part that
a prosecution of an offense punishable by death or life
imprisonment, as in this case, shall be instituted by grand
jury indictment. See La. R.S. 14:30.1 (B)
("Whoever commits the crime of second degree murder
shall be punished by life imprisonment at hard labor without
benefit of parole, probation, or suspension of
sentence.") Furthermore, the indictment must have been
indorsed "a true bill, " signed by the grand jury
foreperson, and returned to the district court in open court.
La. C.Cr.P. art. 383.
the copy of the indictment included in the record does not
contain the reverse side, which should display the proper
endorsement and signature, the trial court minutes and the
list of the grand jury return of indictments in the record
indicate the indictment was returned as a "true bill,
" in open court and properly signed by the foreperson of
the Grand Jury. Thus, we find that this patent error is
harmless. See State v. Chambers, 16-0712, p. 6
(La.App. 4 Cir. 2/15/17), 212 So.3d 643, 647-48.
State invoked La. R.S. 14:64.3(A) in the bill of information,
which provides that when a firearm is used in the commission
of an armed robbery the "offender shall be imprisoned at
hard labor for an additional period of five years without
benefit of parole, probation, or suspension of
sentence." At the sentencing hearing, the trial court
sentenced Mr. Williams to thirty years at hard labor without
the benefit of probation, parole, and suspension of sentence
for both convictions for armed robbery with a firearm. The
trial court, however, did not specify whether Mr.
Williams' sentences included the mandatory additional
five years imprisonment required by La. R.S. 14:64.3(A).
Court has held that a sentence is indeterminate when it fails
to impose the additional five-year enhancement as required by
La. R.S. 14:64.3(A). See State v. Brown, 16-0965,
pp. 7-8 (La.App. 4 Cir. 5/3/17), 219 So.3d 518, 525-26;
State v. Amos, 15-0954, pp. 5-6 (La.App. 4 Cir.
4/6/16), 192 So.3d 822, 826-27; see also State
v. Burton, 09-0826, p. 3 (La.App. 4 Cir. 7/14/10), 43
So.3d 1073, 1076 (finding the failure to impose the mandatory
additional five years imprisonment pursuant to La. R.S.
14:64.3(A) resulted in an illegally lenient sentence).
Therefore, we vacate Mr. Williams' sentences for the two
armed robbery convictions and remand this matter for
resentencing for the imposition of additional imprisonment,
as mandated by La. R.S. 14:64.3(A).
Williams' contends that the burden of proof at the
Daubert hearing was erroneously placed on the
defense to establish that evidence regarding the preliminary
gunshot residue test was not sufficiently reliable and that
the trial court erred in admitting evidence when the State
failed to meet its burden of proving that it met the standard
set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
the jury was empaneled, the trial court held a
Daubert hearing regarding the admissibility of
gunshot residue testing evidence. Mr. Williams called
Veronica Manuel of the New Orleans Crime Lab, who testified
that she conducted the preliminary gunshot residue test on
Mr. Williams while he was in the hospital. With respect to
qualifications, Ms. Manuel testified that she did not have a
specialized degree in metallurgy or metals, chemistry, or
physics; she did not have any certifications related to
gunshot residue or collecting gunshot residue, nor was she a
member of the scientific working group on gunshot residue.
Ms.Manuel described her training with respect to gunshot
residue as "hands-on" and "basic"
training as part of her police academy training.
brand of test used was Sirchie, which manufactures a
preliminary gunshot residue testing kit used in the field to
swipe a person's hands. The test uses a
"doppler" for each hand, which Ms. Manuel described
as having "a small metal plate on it and it is capped
off, it has a clear cap over it to protect the metal and it
is about this small and there is [sic] two of them, one for
the right hand, one for the left hand (indicating)." The
cap is removed, the doppler is dabbed over the palms and
backs of the person's hands, and the cap is placed back
over the doppler, which is placed in an envelope.
Manuel testified that when conducting a preliminary gunshot
residue test in the field, the test will show presumptive
results. When a presumptive result is positive, "blue
specks or a blue substance" will develop. Ms. Manuel
testified that in this case, she knew that the presumptive
result was positive because the blue specks were visible.
However, a presumptive positive result does not indicate
whether any of the three elements commonly present in gunshot
residue (i.e., lead, barium, and antimony) are present or the
amount of each element present. When asked whether, as part
of her training, a presumptive positive result meant that the
individual had actually fired a gun, Ms. Manuel testified,
"I wouldn't know that." When asked whether she
was trained with respect to the transfer of gunshot residue,
Ms. Manuel responded in the negative. Although the dopplers
are usually subjected to further testing after being put into
evidence, Ms. Manuel testified that she was not involved in
the testing of the dopplers and had no knowledge of the
testing results of any further testing; "[a]ll we do is
collect it, bring it to central evidence and property, and
then we are done with it."
conclusion of Ms. Manuel's testimony, counsel for Mr.
Williams emphasized that the only gunshot residue evidence in
this case was the preliminary gunshot residue test and the
presumptive positive results, as the samples submitted to the
crime lab were not further tested, which the State conceded.
Counsel for Mr. Williams requested the trial court exclude
the presumptive positive results of the preliminary gunshot
residue test. In support of that request, counsel for Mr.
Williams argued that this evidence did not meet the
Daubert standard because the State did not present
evidence of the reliability of the testing. Specifically,
counsel for Mr. Williams pointed out that (1) "there is
not even a witness who understands the scientific theory or
technique that [the State] put on, no field tests, no
validation studies"; (2) that there was no indication
that such testing had been subjected to peer review or
publication; (3) that there was no information regarding the