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State v. Wooten

Court of Appeals of Louisiana, Second Circuit

February 13, 2018

STATE OF LOUISIANA Appellee
v.
CALVIN RASHAD WOOTEN Appellant

         Appealed from the Thirty-Seventh Judicial District Court for the Parish of Caldwell, Louisiana Trial Court No. 91142 Honorable Don C. Burns, Judge.

          LOUISIANA APPELLATE PROJECT By: Edward K. Bauman, Counsel for Appellant.

          BRIAN E. FRAZIER District Attorney, CHARLES L. COOK Assistant District Attorney, Counsel for Appellee.

          Before WILLIAMS, GARRETT, and BLEICH (Ad Hoc), JJ.

          WILLIAMS, J.

         The defendant, Calvin Rashad Wooten, was charged by bill of information with armed robbery, in violation of La. R.S. 14:64. Following a jury trial, the defendant was found guilty of the responsive verdict of attempted armed robbery. He was sentenced to serve 15 years in prison at hard labor without the benefit of parole, probation or suspension of sentence. For the following reasons, we affirm.

         FACTS

         On September 14, 2014, at approximately 2:30 p.m., a young black male entered the home of Tommie Cockerham, an elderly woman, and demanded money. The intruder was wearing a knit cap and his face was covered with a red bandana, exposing only his eyes. During the defendant's trial, Ms. Cockerham testified that she was sitting in her recliner, quilting, when her front door "was jerked open by a young black man, " who was brandishing a shotgun and wearing dark clothes, a hat and a bandana. Ms. Cockerham stated:

*** He came straight to me, hollering, I want your money. And he got to me and he put the gun right on my forehead, and he kept screaming that at me and I told him I didn't have but four dollars [$4.00], and he was welcome to it. But he didn't accept it. And so he said, what else you got in here? And I said, I don't have anything else. And he said, where's your car keys? And I pointed to my door. I have, just had a nail, had 'em hanging on it. And I pointed to 'em, and he backed over there and got my car keys. Put 'em in his pocket and then he stood by my chair and he put that gun on my chest. And he started to uh, look toward my dining room and my kitchen area and uh, I watched him until I saw him turn his head long enough that he was you know, that I could - I had already seen my phone was right there by me. He hadn't seen it. And I started to dial nine-one-one [9-1-1] and when he heard, heard it, well he came back and that's when he grabbed my right hand and uh, that had the phone in it, and he pulled me out of my recliner chair. It was in recline position. He pulled me up out of it, and I heard the bones in my arm and that's the last of that I remember.

         Ms. Cockerham testified that she lost consciousness after being pulled out of her recliner. She stated that when she awoke, she noticed that her arm was "broke[n] so bad that it was just hanging." She also stated that, after a struggle, she managed to get up and she eventually reached the telephone to call for help.[1]

         When describing the intruder, Ms. Cockerham stated, "All I could see was the barrel of that gun and, and his eyes." During Ms. Cockerham's testimony, the prosecutor held up a red bandana and asked Ms. Cockerham if she recognized it. She replied, "He had a red bandana on his head, on his mouth." The prosecutor asked, "Does this look similar to the bandana wor[n] by the person that broke in[to] your home, and did those horrific acts that you previously described to the jury?" Ms. Cockerham replied, "Yes, sir." However, Ms. Cockerham did not identify the defendant as the intruder during her direct examination.

         On cross-examination, Ms. Cockerham testified that she had lived at her residence for at least 17 years and that the defendant and his brother had lived down the street from her since they were "young boys." She stated that she had never had a problem with either of the Wooten brothers. Counsel for the defendant then questioned whether Ms. Cockerham had identified the defendant as the intruder to law enforcement. In response, Ms. Cockerham testified that she believed the defendant was the intruder. The colloquy was as follows:

Q. Is it true that, that you were unable to identify Calvin Wooten or his brother as the individual that attacked you?
A. I could tell his, by his eyes. He has eyes like his daddy and his grandma.
Q. So, so you're saying now that you know it was Calvin Wooten.
A. I don't, I did not know but it, when I thought of that, those eyes, well that was, that was all I needed.
Q. Do you recall talking to [Detective] Tony Childress after the incident?
A. I remember him being there, yes.
Q. Do you recall the conversation that you had?
A. I don't.
Q. Do you recall telling Detective Childress that you didn't think it was the Wooten Boys?
A. I don't remember, remember telling him that.
Q. Is it possible that you did tell him that?
A. Not that I know of. I did tell my sister I hoped to God it wasn't Calvin's boy.[2]
Q. Do you recall at any time telling Detective Childress that the - your attacker was too short to be one of the [Wooten] boys?
A. I might [have] said that but it's because he was bent over with a gun on me.
Q. And up until today, you, you've never positively identified Calvin Wooten as the suspect, have you?
A. I know it was him.
Q. You know it was him? How do you know it was him?
A. His eyes.

         Defense counsel further questioned Ms. Cockerham with regard to whether she identified the defendant as the intruder to Det. Childress when he visited her home the second time. The following exchange took place:

Q. Do you remember talking to [Det.] Childress then?
A. Yes, I do.
Q. Okay, and at that point, during the conversation, you didn't identify Calvin Wooten, did you?
A. I told you what I told you.
Q. Okay, but you never identified him as a suspect.
A. I never identified him but I knew that's who it was.
Q. But you never told Detective Childress that's who you thought it was.
A. Yes, I did.

         Thereafter, Ms. Cockerham admitted that she did not identify the defendant as the intruder from a photographic lineup presented by Det. Childress. She explained that the photographs were "too grainy" to "tell a whole lot about 'em." Defense counsel presented Ms. Cockerham with closeup photographs of the eyes of the persons depicted in the photographic lineup and asked her if she recalled looking at the pictures. She responded that she did not view photographs of only eyes; she saw pictures of "full faces" of the individuals.

         Further, Ms. Cockerham testified that she could not conclusively identify the jeans and shirt that had been shown to her by the police officers as the clothing worn by the intruder. She stated that she only knew that the clothing was dark, like the clothing the intruder had worn. She also stated that the police officers had shown her a red bandana that "looked like" the same red bandana worn by the intruder.

         Robert Pearson, a Deputy State Fire Marshall, was working as the Assistant Chief of Police for the Town of Columbia on the day of the incident. Deputy Pearson testified as follows: he received a call from dispatch about a possible home invasion or armed robbery by a black male; he proceeded to Ms. Cockerham's house; upon arrival, he met up with Deputy Keith Wilkins, Deputy John Cummings and his K-9, who were canvassing the area looking for suspects matching the description of the intruder; while canvassing the area, he and Deputy Wilkins approached the Wooten home, which was located approximately 200-300 yards from Ms. Cockerham's home; as he approached the home, he saw the defendant, Calvin Rashad Wooten, looking out of a window; shortly thereafter, the defendant and his brother, Denzel Wooten, [3] exited the house and met the deputies on the front porch; he and Deputy Wilkins decided to detain the Wooten brothers because they matched the description of the intruder: "young, black male, " and he wanted to detain them until the detective in charge, Tony Childress, arrived to question them; he decided that "safety" required him to secure the Wooten brothers with handcuffs and have them wait in the patrol car; he advised the brothers of their Miranda rights, placed them in handcuffs, patted them down and placed them in the backseat of the patrol car to wait for Det. Childress; approximately three days later, he assisted the Caldwell Parish Sheriff's Office with the execution of a search warrant at the Wooten residence and surrounding property; while searching the property, he found a garbage bag sitting behind a tree next to a pond; the garbage bag "looked out of place"; and he opened the bag to find various items, including a pair of black Levi's jeans, a red bandana, a knit cap and a Crown Royal bag containing .410 shotgun shells.

         Det. Tony Childress testified as follows: he went to Ms. Cockerham's home as soon as he was notified of the home intrusion; when he arrived at the home, he observed that Ms. Cockerham was badly injured, with possibly two broken arms and various cuts and bruises; he stayed with Ms. Cockerham for approximately 15-20 minutes until an ambulance transported her to the hospital; Ms. Cockerham described the incident to him; she informed him that she had lost consciousness and did not know when the intruder had exited her house; Ms. Cockerham told him that the keys to her house and car were missing; the keys were never recovered; while investigating the scene, he observed fresh footprints next to Ms. Cockerham's front door, in the carport near her car and in the dirt road in front of her house; one of the footprints found in the road matched the footprints found by the front door and carport; the footprint did not match the shoes worn by the defendant or his brother on the day of the home intrusion; a second footprint was found in the dirt road but it did not match the footprints found on Ms. Cockerham's property; the second footprint matched the shoes the defendant was wearing that day; it was possible to use the dirt road to get from the Wooten house to Ms. Cockerham's house; it was also possible to get from the Wooten house to the Cockerham house through the wooded area between the homes; it would be difficult to locate footprints in a wooded area; when he arrived at the Wooten house, the Wooten brothers were already in the backseat of the police car; Denzel Wooten told him that his father had just dropped him off at the home when the officers arrived; Denzel told him that when he arrived home, he put his headphones on and jogged down the road, as was his habit; he did not see any footprints from Denzel's shoes in the dirt road; he noticed that the Wooten brothers were not wearing "dark clothing" as described by Ms. Cockerham; when the father of the brothers arrived, he talked to him about the guns in his house; Mr. Wooten told him that he owned a .410 shotgun, but it had been missing for "a couple of days" before the home intrusion;[4] he approached the Wooten brothers while they sat in the back of the patrol car and asked them who took the .410 shotgun from the house; both brothers denied taking the shotgun; he closed the door to the patrol car and continued talking to Mr. Wooten; at the time, he was unaware that one of the police officers had placed a cellphone inside the police vehicle with an activated recorder; and he later listened to the recording and heard a conversation that had taken place between the defendant and his brother.

         At this point during Det. Childress' testimony, defense counsel objected to the detective's identification of the voices on the recording, citing lack of foundation and hearsay. Defense counsel then stated, "[T]he tape can be played and the jury can determine what it says on its own . . . I object to this testifying to what he thinks is on the tape when the jury can listen to it themselves." The trial court did not address the "hearsay" objection. Rather, the court directed the state to "lay a foundation." Thereafter, Det. Childress testified that he was able to differentiate the brothers' voices because he had spoken to them prior to listening to the recording.

         Defense counsel entered another objection, arguing that the identification of a person's voice required an expert and Det. Childress was not a voice recognition expert. The trial court overruled the objection, finding that it is "fairly common" for a lay individual to recognize a person's voice. In response, defense counsel argued that Det. Childress did not speak with the Wooten brothers long enough to be able to differentiate their voices. The trial court maintained its ruling.

         Det. Childress' testimony continued as follows: on the recording, he heard Denzel say something akin to "you shouldn't of went [sic] down there and done that man"; he did not hear a response from the defendant; the Wooten brothers voluntarily went to the police station for questioning; he questioned them about the statement Denzel made on the recording; Denzel stated that he assumed the defendant had committed the crime based on what he heard about the incident; several days after the incident, he and several other deputies returned with a warrant to search the Wooten home; during a search of the area near a pond, he and the deputies found a garbage bag; the items found in the garbage bag were as follows: trash, mail addressed to the Wooten home, an undamaged pair of dark Levi's jeans, a Crown Royal bag located in the back pocket of the jeans, three .410 shells located inside the Crown Royal bag, a red bandana with a knot tied in it and "folded in a way someone would wear it over their face, " a cap and a blue long-sleeved pullover shirt;[5] the pond where the garbage bag was found is located near an "older" road that was no longer used by members of the public; the few houses in the area of the Wooten home were not close together; after the deputies found the garbage bag, he met with Ms. Cockerham and asked her if she could identify any of the clothing found in the garbage bag; the only item Ms. Cockerham recognized was the red bandana; it appeared as if "she was scared all over when I showed it to her . . .. She said that's it. That's what he was wearing"; he presented Ms. Cockerham with a photographic lineup that consisted of only the eyes of multiple young black men, one of which was the defendant; Ms. Cockerham was unable to identify any of the eyes as being those of the defendant; he obtained a search warrant for the defendant's DNA and a sample was sent to the crime lab to be compared with DNA found on the red bandana; the first crime lab report indicated that no DNA was found on the bandana; and he discussed the matter with several other deputies and decided to ask the crime lab to swab the area of the bandana where the knot had been tied.

         At this point in the proceedings, the state introduced into evidence the recording of the Wooten brothers' conversation as they sat in the back of the police car. The state sought to play parts of the recording for the jury. In response, defense counsel objected to the jury hearing only parts of the recording. Defense counsel argued that the entire recording should be played in the presence of the jury. The trial court agreed and ordered the state to play the entire recording. However, due to technical difficulties, the trial court ordered that only excerpts be played for the jury, through ear phones, in which the jury would have to listen to the recording one at a time. Thereafter, the recording was admitted into evidence without objection.

         On cross-examination, Det. Childress testified as follows: when he first spoke with Ms. Cockerham, she described the intruder as a black male, approximately 5'9" tall; she stated that she did not believe the intruder could have been one of the Wooten brothers because of the intruder's height; when he spoke to Ms. Cockerham, he did not know the Wooten brothers; Ms. Cockerham was the one who first brought up the Wooten name; Ms. Cockerham told him that she was only able to see the intruder's eyes because his face was covered with a bandana and a cap was pulled down to his eyebrows; Ms. Cockerham identified the intruder's gun as a shotgun; Ms. Cockerham stated that she did not know enough about guns to tell him "anything about it"; the Wooten brothers voluntarily went to the sheriff's office for questioning and were transported in separate police cars; after the Wooten brothers were transported away from the scene, one of the deputies told him that a recording had been made of a conversation between the brothers as they sat in the back of a patrol car; he listened to the recording and concluded that the defendant was the intruder; he advised the Wooten brothers of their Miranda rights after they arrived at the sheriff's office; the brothers signed the "rights forms" but refused to provide a statement; Denzel discussed the comments he made on the recording; and he placed the defendant under arrest.

         When asked to clarify why he arrested the defendant, Det. Childress testified that the defendant fit the victim's description, i.e. "black male, " he had listened to the comment Denzel made to the defendant as they sat inside the police car, and he noticed that the defendant did not deny or defend Denzel's comment. Defense counsel then asked the detective if he heard the defendant respond to Denzel's comment by stating, "I didn't do sh*t." Det. Childress agreed that he heard the defendant make a similar statement on the recording. However, the detective maintained that the defendant's statement was not "an immediate response" to his brother's accusation.

         Defense counsel also questioned Det. Childress with regard to Ms. Cockerham's testimony that the photographic lineup he showed her was of complete faces, rather than just the participants' eyes. The detective testified that he only showed Ms. Cockerham photographs of eyes and that she was "mistaken" in her recollection of the lineup. He also stated that during his second interview with Ms. Cockerham, she was able to recall some additional details about her assailant: he was wearing a dark-colored blue or gray knit cap, a faded red bandana across his nose with his eyes exposed, and a long-sleeved button-up shirt with blue jeans. She also recalled that the assailant touched her forehead and chest with the shotgun. Det. Childress further testified that Ms. Cockherham did not tell him that the assailant was wielding a .410 shotgun.

         Det. Childress further testified under cross-examination as follows: during Ms. Cockerham's third interview, he showed her the clothing that was found in the garbage bag on the Wooten property; he did not obtain fingerprints from the garbage bag or from the items that were recovered in the bag, including the shotgun shells; "someone, " possibly the defendant's father or another neighbor, reported that they had seen an unidentified black male in the area on the day of the intrusion; he did not verify the information regarding an unidentified black man; and he did not consider any suspect other than the defendant because he "had no reason to look anywhere else."

         Denzel Wooten testified as follows: he did not recall telling the defendant, "I can't believe you went down there and did that stuff"; he did not recall telling Det. Childress that he "assumed" the defendant had committed the offense; and he did not have any knowledge of the trash bag found on his father's property.

         The defendant's father, Calvin Wooten, testified as follows: on the day of the incident, at approximately 2:00 p.m., he picked Denzel up from Columbia, dropped him off at their home and left again; subsequently, Det. Childress called him and told him to come home; when he arrived at his home, Det. Childress informed him that a black male had broken into Ms. Cockerham's house armed with a shotgun and may have broken both of her arms; the detective also told him that his sons were being detained because they were the only black males in the area; when he arrived, he found his sons sitting in the backseat of the police car; he walked Det. Childress through the house and showed him the guns that he kept there; he told Det. Childress that all of his guns were accounted for, except for a .410 shotgun that had been missing for approximately two or three months; he informed Det. Childress that he and another neighbor had seen an unidentified black male in the area approximately one week prior to the incident; on the night of the home intrusion, Det. Childress and Det. Sedric Meredith returned to his house and he consented to a search of his property; the officers searched his house and the surrounding property, including the pond area, for approximately 1½ hours; the following morning, the officers returned to his property, without his permission, and searched the wooded area between his house and Ms. Cockerham's house; a few days later, the officers returned with a search warrant and searched the property again; he noticed divers searching the pond located on his property; he does not have trash pickup at his house, so he burns his trash in his backyard; the garbage bag containing the items found on his property were not located in the same place where he usually burns his trash; and he did not know how the garbage bag with the clothing came to be on his property.

         Sedric Meredith, the chief of police for the Town of Columbia, [6]testified as follows: he accompanied Det. Childress to the Wooten house late in the evening on the date of the incident; Calvin Wooten granted them permission to search the house; neither he nor Det. Childress searched the area near the pond that night; and the search lasted for approximately 45 minutes.

         Det. Childress was recalled as a witness for the state. After being reminded of his previous testimony that he had searched the Wooten property only one time, [7] Det. Childress testified that he did not recall searching the property any time except for the time he executed the search warrant.

         Katie Traweek, a forensic DNA analyst for the North Louisiana Crime Lab, testified as follows: she performed DNA tests on the red bandana and shirt that were found in the garbage bag on the Wooten property; she performed the tests by cutting small pieces from the bandana and the shirt; there was insufficient DNA on the cuttings to provide a valid DNA profile; subsequently, at the request of Det. Childress, she performed an "alternative" DNA collection procedure on the clothing; during this round of testing, she untied the knot on the bandana and swabbed the areas of the knot to obtain DNA samples; she was able to create a DNA profile; the DNA profile obtained from the knot on the bandana was consistent with the reference sample obtained from the defendant; only .2% of the earth's population may have DNA consistent with the DNA profile obtained from the bandana swab; the DNA profile obtained from the shirt was a mixture of at least two people; and the mixed sample prevented her from determining whether she could include or exclude the defendant as a donor.

         On cross-examination, Traweek testified as follows: it was possible (but not probable) that DNA from other items found in the garbage bag with the bandana could have been transferred to the bandana; the above cited statistics regarding the likelihood of a DNA match to someone other than the defendant applied only to nonrelated individuals; the statistics from related persons were "slightly" different; she could not identify the exact probability without a reference sample from the defendant's relatives; the DNA profile obtained from the bandana could not have come from a relative of the defendant because the relative's DNA profile would be different from the defendant's DNA profile; there could have been DNA from other persons on the areas of clothing that she did not test; she could not specifically exclude any particular person as a DNA contributor without obtaining ...


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