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State v. Harrison

Court of Appeals of Louisiana, Fourth Circuit

March 21, 2018

STATE OF LOUISIANA
v.
KENDALL HARRISON

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 512-156, SECTION "J" Honorable Darryl A. Derbigny, Judge

          LEON A. CANNIZZARO, JR. DISTRICT ATTORNEY, ORLEANS PARISH DONNA R. ANDRIEU CHIEF OF APPEALS, ASSISTANT DISTRICT ATTORNEY MITHUN B. KAMATH ASSISTANT DISTRICT ATTORNEY COUNSEL FOR THE STATE/APPELLEE

          Mary Constance Hanes LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Tiffany G Chase.

          JAMES F. MCKAY III CHIEF JUDGE

         STATEMENT OF CASE

         On June 14, 2012, Kendall Harrison (defendant) was indicted for the second degree murder of Harry Ainsworth (the victim), in violation of La. R.S. 14:30.1 (count 1), a crime which came be known as the "Good Samaritan" case, and the armed robbery of Ms. Anita Hedgepeth, a violation of La. R.S. 14:64.3 (count 2).

         Following a seven-day jury trial, which commenced on December 2, 2014, and concluded on December 8, 2014, the defendant was convicted of both charges. On March 4, 2015, the trial court sentenced the defendant to life imprisonment with the possibility of parole after forty-five years on count 1 and to forty-five years on count two, sentences to run concurrently.

         STATEMENT OF FACT

         NOPD 911 operator Ms. Shondrell Isadore testified that every 911 call for police assistance is recorded, assigned an item number and generates an incident recall report. The item number assigned the 911 call in this case was A-034256-12. Ms. Isadore identified State's Exhibit 2 as the recording of the 911 call, made by Jeremy Ballard on January 25, 2012, at approximately 7:11 a.m., reporting a shooting at Eliza and Vallette Streets. The State played the 911 recording made by Mr. Ballard in which he reported he was in his car following the shooter, who he described as a black male wearing a brown leather jacket, tan pants and black boxer shorts.

         Dr. Samantha Huber, chief forensic pathologist for the City of New Orleans, autopsied the victim's body on January 25, 2012, and documented her findings in a written report. Dr. Huber concluded the victim suffered a penetrating bullet wound to the left chest wall. The bullet passed through the victim's spleen, stomach, liver, lungs and heart. Dr. Huber removed the bullet from the victim's body during the autopsy and turned it over to the ballistics lab.

         Ms. Anita Hedgepeth testified she was living in the 500 block of Vallette Street in Algiers Point in 2012. On the morning of January 25, 2012, at about 7:00 a.m., as she walked from her apartment to her car, she noticed a young man walking toward her. She also noticed the victim, who she did not know but recognized from the neighborhood, standing with his two children at the bus stop on the corner of Vallette and Eliza Streets. As Ms. Hedgepeth sat in the driver's seat of her car, there was a tap on the driver's side window. She rolled down her window slightly, and a man standing next to her vehicle asked her the time. As she turned to answer him, the man pointed a gun at her head and demanded her car. Ms. Hedgepeth pushed the gun aside and refused to exit her vehicle. The assailant once again aimed the gun at her and repeated his demand. Ms. Hedgepeth exited the car holding her purse, which the assailant grabbed and a struggle ensued. The next thing she remembered was the car door slamming, and the defendant seated in the driver's seat. She screamed and at that moment, the victim jumped onto the hood of her car, smashed the windshield with his feet/fists and yelled to the defendant to get out of Ms. Hedgepeth's car. She heard three shots. The victim told her to run and then said, "He shot me." The victim jumped from the car, ran across the street and collapsed in Ms. Hedgepeth's front yard. By the time she made her way to the victim, his two young sons were kneeling down next to him, crying. Meanwhile, the defendant fled the area on foot. Neighbors called 911, and the police and EMS arrived. The victim's partner/wife arrived on the scene and collapsed at the sight. The police questioned Ms. Hedgepeth about the shooting. She recalled that the defendant wore khaki pants, a fleece hoodie, a cap and had dark skin. At police headquarters, Ms. Hedgepeth gave a recorded statement, approved a sketch of the shooter and gave her purse to the police. Ms. Hedgepeth viewed a photo lineup compiled by Detective Tanisha Sykes but was unable to make an identification. The day after the shooting, officers obtained the blouse Ms. Hedgepeth was wearing at the time of the shooting. Ms. Hedgepeth identified her vehicle as a 2005 Saturn Ion and said that the only other person to drive her car was her nephew, and then only in her company. She had not had her car serviced or cleaned in the month preceding the shooting.

         Detective Tanisha Sykes, the lead detective in this case, recounted that on January 25, 2012, her supervisor notified her of a homicide in the 500 block of Vallette Street in Algiers. Detective Sykes arrived on the shooting scene about 8:25 a.m., at which time the victim was already dead. Detective Sykes identified crime scene photos taken by crime lab personnel, depicting cigarette butts, a cigarette package, shell casings on the ground and the interior of Ms. Hedgepeth's vehicle, and the victim's hat. The evidence obtained from the scene was deposited in Central Evidence and Property Room, and Ms. Hedgepeth's vehicle was impounded at police headquarters for processing. The victim's two young sons, and Ms. Hedgepeth, independently of one another, directed the drawing of sketches of the shooter. One of the victim's son's composite of the defendant was released to the media by the police. Later on the morning of the shooting, the victim's sons underwent forensic interviews at the Children's Advocacy Center. While processing Ms. Hedgepeth's vehicle, crime lab personnel recovered two 9mm Luger spent casings from the interior of the car and swabbed interior and exterior areas for the presence of DNA.

         The day after the shooting, FBI, DEA and ATF agents assisted in the investigation by distributing sketches of the suspect and interviewing witnesses.

         During the investigation, the defendant was developed as a suspect via an unrelated charge in Jefferson Parish. Detective Sykes obtained a buccal swab from him and sent it to the Louisiana State Police Crime Lab for analysis. Eventually, the lab notified the NOPD that a male DNA profile was developed from the swab taken of the steering wheel of Ms. Hedgepeth's vehicle. From that information, Detective Sykes obtained an arrest warrant for the defendant for the murder of Harry Ainsworth and the armed robbery of Ms. Hedgepeth, followed by search warrants for the defendant's residences on South Indigo Street and Heritage Lane. At the South Indigo Street residence, officers seized several pairs of khaki pants, a black sweatshirt with a gray hood, and a fitted cap, all of which matched the description of clothing provided by witnesses as being worn by the shooter.

         The defendant was arrested on February 28, 2012, and transported to police headquarters where Detective Sykes and Detective Darrell Doucette took the defendant's recorded statement. After the statement, Detective Sykes collected the white rosary and red and black plaid boxer underwear the defendant was wearing because witnesses described the shooter as wearing those items. Detective Sykes also obtained the defendant's cell phone, which contained a picture of him wearing a black coat, khaki pants, black tennis shoes and a white rosary.

         Mr. Brian Young, a middle school administrator, testified he was defendant's mentor and a friend of the family for about nine years before this incident. Mr. Young told the jury that he and the defendant's aunt, Ms. Rose Mitchell, lived in the Woodmere area of Jefferson Parish in 2012 and worked together to transport the defendant to school at the John McDonough High School campus in Orleans Parish. The witness said he was working at Martin Behrman Charter School in Algiers in January 2012. Mr. Young recalled that the defendant spent the night of January 23, 2012, at his Heritage Lane residence in order for him to transport the defendant to school the next morning. However, the following morning, Tuesday, January 24, 2012, instead of driving the defendant to school, Mr. Young drove the defendant to the defendant's aunt, Rosemary Harrison's, residence in Woodmere Subdivision. Mr.Young recalled that on January 25, 2012, the school where he was employed was on "lockdown" because it was near the scene of this incident. Mr. Young said he had a telephone conversation with the defendant on the day of the shooting, but that he did not see the defendant again until the next week.

         Nyron Harrison, the defendant's cousin, lived in Harvey in January 2012. Mr. Harrison's grandmother, uncle, aunt and sister lived on Vallette Street at that time. On January 25, 2012, Mr. Harrison was doing repair work at his father's property in the 800 block of Vallette Street, when the defendant stopped and visited with him before 8:00 a.m. Mr. Harrison remembered there were police cars in the neighborhood at that time because of an "incident" which occurred "down the street." While Mr. Harrison and the defendant were visiting, the defendant's Aunt Rosemary Harrison arrived to drive the defendant to school. At some point after the shooting, Mr. Harrison received a visit from Detective Sykes, who took a recorded statement from him.

         During cross-examination, Mr. Harrison said he was threatened by Detective Sykes with being charged as an accessory if he did not testify about the defendant's involvement in the shooting.

         Ms. Rosemary Harrison, the defendant's great aunt, testified that in January 2012, she, along with the defendant, her daughter and daughter's children, were living on South Indigo Street in Algiers. Ms. Harrison said she would bring her grandchildren to school in the morning between 7:20 and 7:45 a.m. On the morning of January 25, 2012, as she was driving her grandchildren to school, Ms. Harrison received a call from the defendant, asking for a ride. After dropping the grandchildren at school, she drove to the 800 block of Vallette Street and picked up the defendant about 7:50 a.m.

         Mr. Daniel Dooley, a forensic interviewer at the Child Advocacy Center in New Orleans conducted a recorded interview of D.C., the victim's older son, on the morning of the shooting.

         D.C. testified that the victim of the shooting was his father. D.C., thirteen years old at the time of trial, said he was aged ten and his brother was nine, when their father was murdered. In January 2012, the victim's sons lived with their parents in Algiers Point. On January 25, 2012, the victim's sons and the victim walked to the glass-blowing shop on the corner near their home to await the arrival of the bus to transport D.C. to school. D.C. remembered as they stood at the bus stop, they heard a woman scream because she was being robbed. D.C. witnessed his father run to the woman's aid, jumping on her car, beating on the windshield and yelling to the assailant to leave. D.C. heard a gunshot and watched the victim run from the car to a house across the street and duck down. The shooter ran from the area and the two boys ran to the victim. A neighbor took the two boys into his house where they waited. Shortly thereafter, the two boys' mother and uncle arrived at the neighbor's house and the boys learned their father was killed in the shooting. D.C. remembered the shooter as a black male, wearing a black jacket. The two boys were transported to the Children's Advocacy Center where both were interviewed. D.C. said he listened to a recording of his interview before trial, but that he did not remember saying some of the things heard on the tape.

         Ms. Robin Mayer testified she lived in Algiers Point for twelve years at the time of this shooting. On January 25, 2012, she lived on Slidell Street, and her mother resided in the 500 block of Vallette Street in Algiers Point. Her daily routine was to bring her young child to her mother's house on Vallette Street and then return to her home five blocks away to dress for work.

         On the day of the shooting, Ms. Mayer deposited her child at her mother's house at 7:05 a.m. As Ms. Mayer was leaving, she saw what she thought was a couple arguing across the street from her mother's house. Seconds afterwards, Ms. Mayer heard Ms. Hedgepeth screaming and then saw Ms. Hedgepeth struggling with the suspect, who was standing next to Ms. Hedgepeth's car. Ms. Mayer ran toward the commotion. The suspect reached in and out of Ms. Hedgepeth's vehicle while Ms. Hedgepeth was seated in the car. Then Ms. Mayer saw the victim run from the corner of Eliza and Vallette Streets to help Ms. Hedgepeth. By that time, Ms. Hedgepeth had exited the vehicle, and the suspect had entered. The victim jumped on the hood of Ms. Hedgepeth's car, hitting and kicking the windshield. A shot was fired. The victim jumped from the hood of the car, alerting Ms. Mayer and Ms. Hedgepeth that the suspect was armed and had shot him. The victim ran across the street and collapsed on the lawn of a nearby house. Ms. Mayer ran under some steps and watched the suspect, who was wearing a gray hoodie, run toward the river. Ms. Mayer went to the unconscious victim's aid. She attempted to staunch the bleeding from the victim's torso by applying pressure to the wound. Just then, the victim's young sons ran to the victim and attempted to speak to him. EMS personnel arrived but despite their efforts could not revive the victim.

         NOPD expert firearm examiner, Ms. Meredith Acosta, examined four unknown caliber copper jacket fragments (specimens 1, 2, 3 and 5), three fired 9mm caliber cartridge cases, two fired casings (specimen 4) and one fired casing (specimen 6) and a bullet retrieved during the victim's autopsy (specimen 7). Ms. Acosta opined the casings retrieved from the shooting scene were fired from a 9mm semi-automatic weapon and confirmed that she did not examine a weapon related to this case.

         Corporal Kay Harrell testified she was employed by the Orleans Parish Sheriff's Office as the supervisor of the records division of the NOPD Intake and Processing center. Corporal Harrell's duties involved updating all inmate files, keeping track of probation, parole and release of inmates. Through her computer, Corporal Harrell was able to access information related to the locations of inmates. On July 30, 2014, the Orleans Parish District Attorney's Office asked her to determine the defendant's and Joshua McReynolds' location histories.

         The booking date on the defendant's location records was February 28, 2012. Further, the defendant's record indicates he was housed in Templeman 5, A-1, Cell-1of Orleans Parish Prison from May 27, 2012 to June 20, 2012.

         Joshua McReynolds' location history reflected he was booked on June 15, 2011, and housed in the same cell with the defendant from June 6, 2012, to June 12, 2012.

         Joshua McReynolds testified that he pled guilty to armed robbery on June 25, 2012. He was incarcerated in the Orleans Parish Prison, serving a twenty-year sentence at the time of the trial in this case. During a portion of his time in jail, Mr. McReynolds was in the same cell as the defendant, who related to Mr. McReynolds that he had shot a man while carjacking a woman. The defendant referred to the killing as the "good Samaritan murder." Mr. McReynolds recounted that the defendant questioned him about his knowledge of forensic evidence, specifically DNA. The defendant explained that he had wiped down the car but may have dropped a cigarette butt at the shooting scene. When Mr. McReynolds questioned the defendant about what it felt like to kill a man, the defendant replied it was just like shooting a bird with a BB gun.

         Jim Huey testified that he worked at the Orleans Parish Sheriff's Department and was the custodian of records of inmate telephone calls. He stated that the phone calls of the inmates are recorded on an internet-based system and stored on a secured database. Mr. Huey testified that when an inmate makes a call, the inmate must use a pin/folder number that was issued to the inmate at booking. One of Mr. Huey's duties is to provide law enforcement agencies copies of an inmate's jailhouse telephone calls. Mr. Huey explained that as an inmate makes a call from the Orleans Parish Prison, the inmate is issued a warning that the call will be monitored and recorded. Mr. Huey also noted that a call detail sheet, which lists the specifics of an inmate call, i.e., name of caller, time, duration, number called, etc., accompanied the recording of jailhouse calls. Pursuant to the State's request, Huey supplied a disc containing a recording of four calls the defendant placed in the first week of March 2012 while incarcerated at Orleans Parish Prison.[1]

         Jeremy Ballard testified that on the morning of January 25, 2012, he arrived at his glass studio in Algiers Point at approximately 6:50 a.m. His shop was located on the corner of Vallette and Eliza Streets. At approximately 7:00 a.m. that day, Mr. Ballard heard what he thought were four gunshots. He walked out of his shop to investigate and saw two children running in the street. Mr. Ballard recognized the children from the neighborhood because he had seen them with their father on previous mornings waiting on the corner for their school bus. Ballard ran toward the children as the suspect ran across Vallette Street toward Eliza Street. When the suspect tripped on the sidewalk, Mr. Ballard noticed the suspect was wearing red plaid boxer shorts. Mr. Ballard followed the suspect in his car. However, Mr. Ballard lost sight of the man momentarily and drove around the area until he saw the suspect again on Sequin Street. The suspect met a man on Opelousas Street, and the two walked to Teche Street. Thereafter, the pair walked back to Vallette Street, and Mr. Ballard lost sight of them; however, as Mr. Ballard was following the men, he called 911, reported the situation and provided a description of the suspect's clothing - tan pants and dark brown leather jacket. Mr. Ballard then drove back to his shop. When the police arrived at his shop, Mr. Ballard accompanied them in the patrol car, retracing the suspect's flight route. Mr. Ballard said he viewed the suspect from a vantage point of no more than twenty feet; however, Mr. Ballard was unable to make an identification from the photo lineup the police presented him.

         Troy Dickerson, the NOPD expert crime scene and fingerprint analyst, testified he was called to the shooting scene. By the time he arrived, crime scene technicians had already begun photographing and processing the area. Mr. Dickerson photographed and processed Ms. Hedgepeth's vehicle. He swabbed the vehicle's driver side door handle, steering wheel, radio knob, gear shift, AC switch and driver's side arm rest for DNA. Mr. Dickerson also processed the vehicle for latent fingerprints and hair and fibers. The swabs and samples taken during the process were sealed, identified and placed in Central Evidence and Property for further processing/testing.

         Sergeant Jeff Rodrigue of the Homicide Division of the Jefferson Parish Sheriff's Office testified that in January and February 2012, he was assigned to the New Orleans FBI Violent Crimes Task Force. Sergeant Rodrigue assisted Detective Tanisha Sykes in obtaining a buccal swab from the defendant.

         Acadiana Crime Lab forensic DNA analyst Jeremy Dubois tested the swab samples obtained by Troy Dickerson from the Hedgepeth vehicle. Mr. Dubois also performed DNA testing on the blouse Ms. Hedgepeth wore the day of the shooting. He issued a report of his test results on February 8, 2012. Mr. Dubois explained that he obtained reference DNA samples from Ms. Hedgepeth and the defendant for comparison with profiles obtained from swab samples. Testing on the steering wheel swab revealed the presence of DNA for both Ms. Hedgepeth and the defendant. Mr. Dubois opined that based on statistical analysis, the probability the male DNA found on the steering wheel being deposited by anyone other than the defendant was one in 73.7 million within the African American population.

         The defense offered the testimony of the defendant's father, Mr. Michael Willis, who informed the jury that the defendant had been missing a tooth since junior high school.[2] He also denied that the defendant was a killer.

         Detective Sykes was called by the defense and confirmed she was the lead detective in this case. The detective admitted failing to have the witnesses who viewed a photographic lineup sign the back of the photos if no identification was made; however, she reiterated she noted in her report the procedure employed in displaying the photo lineups and whether an identification was made by the witness.

         ERRORS PATENT

         In accordance with La. C.Cr.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Our review of the record reveals one with regard to the defendant's sentence for armed robbery. In the indictment, the State invoked the firearm sentence provision of La. R.S. 14:64.3, which provides that when a firearm is used in the commission of an armed robbery or attempted armed robbery, the "offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence." See State v. Bartley, 2017-0273 (La.App. 4 Cir. 10/11/17), ___ So.3d ___, 2017 WL 4534407. The trial court sentenced the defendant to forty-five years at hard labor without benefit of probation, parole, or suspension of sentence for the count of armed robbery with a firearm. However, the trial judge did not specify whether the sentence imposed included the enhanced term of imprisonment under La. R.S. 14:64.3. A sentence is indeterminate when the trial court fails to impose a consecutive five-year enhancement as mandated by La. R.S. 14:64.3. See State v. Burton, 2009-0826, p. 3 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, 1076.

         Therefore, we vacate the defendant's sentence for armed robbery with a firearm and remand the matter for resentencing or clarification as to whether the sentence includes any additional punishment as prescribed by La. R.S. 14:64.3. See State v. ...


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