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State v. Williams

Court of Appeals of Louisiana, Fourth Circuit

December 20, 2017



          Leon 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

          Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet

          Terri F. Love, Judge

          This 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 peremptory challenge.

         Following 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.


         David Mejia, Nelson Mejia, and the decedent[1] 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 arrived.

         Mr. 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 the court.

         Counsel 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.[2] 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.

         The 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.

         Counsel 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.[3] 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[4] 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.

         At the 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 objection.

         Mr. 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.

         Mr. 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 Parish.


         Officer Alden Moton

         New 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 hospital.

         Detective Wayne Delarge

         Detective 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.[5] Detective Delarge later learned that the gunshot residue test conducted by Ms. Manuel yielded a "presumptive positive" result.

         Detective 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.

         The 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.

         On 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.

         Nelson Mejia

         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, [6] 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 money.

         After 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.

         While 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.

         David Mejia

          David, 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.[7] 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.

         A 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.

         Dr. Erin O'Sullivan

          Dr. 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.

         Sean McElrath

         Sean 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.

         Rhalie Austin

         Rhalie 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 stated that:

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 population.[8]


         A review for errors patent reveals two.


         The 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.

         Although 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.

         Mandatory Additional Imprisonment

         The 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).

         This 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).


         Mr. 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 (1993).

         After 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.[9] 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.

         The 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.

         Ms. 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."

          At the 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 ...

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