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State v. Cespedes

Court of Appeals of Louisiana, First Circuit

December 29, 2017

STATE OF LOUISIANA
v.
CARLOS CESPEDES

         On Appeal from the Sixteenth Judicial District Court In and for the Parish of St. Mary State of Louisiana No. 2014-194412, The Honorable Keith Comeaux, Judge Presiding.

          M. Bofill Duhe District Attorney, Walter J. Senette, Jr. Assistant District Attorney Franklin, LA, Attorneys for Appellee State of Louisiana.

          Cynthia K. Meyer Louisiana Appellate Project New Orleans, LA, Attorney for Defendant/Appellant Carlos Cespedes.

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.

          HOLDRIDGE, J.

         The defendant, Carlos Cespedes, was charged by bill of information with two counts of attempted second degree murder, violations of Louisiana Revised Statutes 14:30.1 and 14:27 (counts one and two);[1] unauthorized entry of an inhabited dwelling, a violation of Louisiana Revised Statutes 14:62.3 (count three); theft of a motor vehicle valued at $1, 500 or more, a violation of Louisiana Revised Statutes 14:67.26C(1) (prior to revision by 2017 La. Acts No. 281, § 1) (count four); and violation of a protective order, a violation of Louisiana Revised Statutes 14:79A(1)(a) (count five). The defendant entered a plea of not guilty to all counts. After a preliminary hearing, the district court found no probable cause for count five. Following a jury trial, the defendant was found guilty as charged on counts one, three, and four, and guilty of the responsive offense of attempted manslaughter, a violation of Louisiana Revised Statutes 14:31 and 14:27, on count two. The district court sentenced the defendant to thirty years at hard labor without the benefit of parole, probation, or suspension of sentence on count one; ten years at hard labor on count two; five years at hard labor on count three; and eight years at hard labor on count four. The court ordered that the sentences run concurrently. The defendant filed a motion to reconsider sentences, which the district court denied. The defendant now appeals, alleging three assignments of error. For the following reasons, we affirm the defendant's convictions and sentences.

         FACTS

         On November 14, 2014, around 8:30 p.m., Morgan City Police Department Officer Jobe Gagliano responded to a report of shots being fired outside an apartment on Seventh Street in Morgan City. Upon arrival, Officer Gagliano spoke with the victims, Josefina Segura and Subraj Singh, who were terrified. Segura advised that the offender was her ex-boyfriend, the defendant. Singh advised that after the incident, the defendant fled the scene in Singh's vehicle, without his consent, which he had left running in the driveway.

         Morgan City Police Department Detective Travis Trigg also responded to the scene and learned that the defendant entered Segura's residence without authorization from Segura while she was not home. When Segura and Singh, who was her boss, arrived home, they found the defendant in the kitchen. The defendant pointed a gun at Segura and then at Singh. He fired a shot in Singh's direction, and Segura and Singh ran out of the apartment. The defendant ran behind them and fired a second shot at Singh. He then followed Segura, cornered her, and fired a third shot before fleeing in Singh's vehicle. Detectives took photographs of the apartment and a pair of shoes found in the kitchen of the apartment, which Segura identified as belonging to the defendant. Detectives also collected a handwritten note from the kitchen table, which was written in Spanish and signed by the defendant. The note was subsequently translated:

Josefma, forgive me for entering the house the way I did. But the truth is I would have died of cold out there in the streets. I know you don't want to see me, but please don't accuse me for this. You're the only thing I had and I don't have a place to go. I'm waiting for you to understand and accept what my situation is. Without money, no house, without a place to go. The police, they don't leave me alone. They don't give me peace. And I don't have money to pay. I don't know what to do now. In my life I had everything in you, and I lost it. And I lost everything in the blink of an eye. I'm asking you to understand my situation. You, more than anyone, understand. I wanting that you don't take charges against me, or put charges against me. Thank you and forgive me. For everything. Heart.

         Segura advised that she did not grant the defendant access to the apartment and that, other than her landlord, she was the only person with a key to the apartment at the time. Detectives located a broken window in the bathroom, which they believed was the defendant's point of entrance. According to Segura, prior to that night, she did not have any broken windows and the door was not damaged. They also observed marks of forced entry on the front door. Marks consistent with a bullet ricocheting were found on a neighbor's vehicle in the carport area of the neighbor's house. Also found in that area were bullet fragments consistent with a .22 caliber weapon.

         Singh testified that he owns a gas station in Morgan City where Segura is employed. On the date of the incident, he drove Segura home from work because she did not have transportation. He explained that he left his vehicle running and walked Segura to her door in order to make sure the apartment was safe. When Segura walked into her kitchen, she said, "Carlos, what you doing here?" Singh testified that he then saw the defendant point a gun, which he described as a silver revolver, at her. When the defendant saw Singh, he shot at him. Singh immediately ran downstairs, ran across the street, and called the police. He heard another shot being fired as he ran downstairs and a third once he was across the street. Singh explained that the defendant left the scene in his vehicle, which he described as a 2009 Honda Accord valued at approximately $14, 000. The following morning, the defendant called the gas station and cursed at Singh and told him that he was "not finished yet."

         Segura also testified at trial and explained that the defendant was her ex-boyfriend. Prior to the date of the incident, she had not been home for four days. She had been staying in a hotel near the gas station because she was afraid to go home after ending the relationship with the defendant approximately six months prior. She explained that she had always lived at the apartment alone and that only she and her landlord had a key. Upon arriving home, she opened her door with her key and began to walk inside. When she walked inside of the kitchen and turned on the light, she saw the defendant who was pointing a silver revolver at her. The defendant fired his gun at Singh, and she and Singh ran downstairs. She heard a second shot as she ran. Remembering that her neighbors had a surveillance system, she attempted to stay in front of the cameras so "at least somebody [was] going to know who killed [her]." Segura explained that the defendant ran after Singh, but returned to her and fired his gun at her twice as she covered her face with her purse. She then threw her purse on the gun and jumped on the defendant's back. The defendant then ran away from her and left in Singh's vehicle. After the incident, the defendant called the gas station and told her that he was going to "finish what he start[ed]." She provided officers with a list of all of the telephone numbers from which the defendant had called her.

         Amico Aloisio testified that he lived next to Segura's apartment, and they shared a driveway. On the night of the incident, he heard a vehicle pull up. Shortly thereafter, he heard gunshots. He watched video from his surveillance cameras and noticed that someone who appeared to be Segura and a man were underneath the carport and appeared to be having an argument. He heard another gunshot and then saw the man get inside of a vehicle and back out of the driveway. A video of the surveillance was played for the jury.

         Detectives obtained the defendant's cellular telephone number and records in order to locate him. The records corroborated Singh's statement that after the incident, the defendant called him at his place of business. The defendant was ultimately located in New Orleans and taken into custody.

         MOTION FOR MISTRIAL

         In his first assignment of error, the defendant argues that the district court erred in denying his request for a mistrial. Specifically, he complains that Detective Trigg's testimony that law enforcement obtained the defendant's cellular telephone number "from Ms. Segura or from prior police records" was prejudicial when coupled with the fact that references were made during trial to harassing telephone calls made by the defendant.

         During the questioning of Detective Trigg, the following colloquy occurred between the witness and the prosecutor:

Q: After you conducted the collection of evidence and taking photographs at the scene, what did ...

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