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State v. McBride

Court of Appeals of Louisiana, Fourth Circuit

March 21, 2018

STATE OF LOUISIANA
v.
JANERO L. MCBRIDE

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 526-096, SECTION "SECTION D" Honorable Paul A Bonin, Judge

          Leon Cannizzaro, Jr. District Attorney Kyle C. Daly Assistant District Attorney DISTRICT ATTORNEY'S OFFICE PARISH OF ORLEANS COUNSEL FOR APPELLEE/ STATE OF LOUISIANA

          Katherine M. Franks LOUISIANA APPELLATE PROJECT COUNSEL FOR APPELLANT/JANERO L. MCBRIDE

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Pro Tempore

          Dennis R. Bagneris, Pro Tempore Judge.

         Defendant, Janero L. McBride, appeals his convictions and sentences on three counts of criminal activity. For reasons that follow, we affirm the convictions and sentences.

         PROCEDURAL HISTORY

         On August 27, 2015, a grand jury returned an indictment charging both Janero McBride and Jacob Love with the second degree murder of Toby Roche, in violation of R.S. 14:30.1; two counts of attempted second degree murder of Dejon Miguel and Malik Miguel, in violation of R.S. 14:27; and one count of obstruction of justice (in connection with the murder of Toby Roche) when the punishment is death or life imprisonment at hard labor, in violation of R.S. 14:130.1(B)(1).

         On February 16, 2017, Jacob Love entered into a plea agreement with the State on all charges. As for Janero McBride, the obstruction of justice charge was severed and ultimately dismissed, while the remaining charges were tried to a jury that returned a guilty verdict on all charges. McBride was sentenced to life imprisonment on count one and thirty years each on counts two and three, all sentences to run concurrently at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant timely appeals his convictions and sentences to this Court.

         STATEMENT OF FACTS

         During the course of defendant's two-day trial, the jury heard testimony from several New Orleans Police Department officers and detectives who investigated the shooting incident or who were otherwise involved with the incident; they heard testimony from the sister of the deceased shooting victim; testimony from a forensic pathologist; and testimony from Jacob Love.

         Sergeant Walter Powers, Commander of the Communications Unit of the New Orleans Police Department (NOPD), testified that NOPD received a 9-1-1 call reporting a homicide on May 13, 2015 at 2:29 p.m. from Melba's Café on Elysian Fields Avenue. The caller described the shooter as a black male wearing a black T-shirt and black face mask and driving a burgundy car. The dispatch report further indicated that a possible suspect was hiding under a house on Spain Street. Another call received at 2:55 p.m. reported that a victim named Dejon Miguel had been admitted to University Hospital. Neither a name nor a physical description of the perpetrator was provided in either call.

         NOPD Detective Johnny Magee testified that he was driving to the police station down North Robertson when he heard gunshots coming from Melba's on the opposite side of the street. When he looked in the direction of the gunshots, he observed a male with a black towel or shirt covering his face who was shooting at another car. Detective Magee pulled into a parking lot and called for assistance on his radio. He observed one of the vehicles exit Melba's parking lot and drive down Marais Street. Detective Magee pursued a white Hyundai, but he was unable to maintain its location. When asked about surveillance video that recorded the incident, Detective Magee indicated that the video showed a man exit a white vehicle and shoot at a red vehicle. As the shooter walked back to his car, the video showed Magee's police unit passing the scene. Detective Magee admitted that he could not identify the initial shooter, that he was unaware of the number of occupants in the vehicle, and that he did not know the vehicle's license plate number, although he believed the car had a Florida plate.

         NOPD Homicide Detective Ryan Vaught testified that the incident involved several crime scenes, and he assisted in processing the scene at Melba's. Detective Vaught observed that many vehicles in the parking lot sustained damage during the shooting, and the ground was littered with spent cartridge casings that were collected as evidence. At least one casing was fired from a forty-caliber Smith and Wesson. Detective Vaught explained that he was able to obtain the surveillance footage from Melba's that recorded the incident. He did not conduct any witness interviews at the scene, however.

         NOPD Homicide Detective Tindell Murdock, Jr., testified that he was initially assigned to process the crime scene at Melba's with Detective Vaught by helping to locate all of the physical evidence at the scene. Subsequently he was reassigned to the scene in the 2300 block of Marais Street, where possible suspects may have discarded evidence from a vehicle as they fled. At the Marais Street crime scene, Det. Murdock collected two forty-caliber Glock semi-automatic weapons, shattered magazine pieces, and several live rounds that appeared to have been ejected from the broken magazines.

         NOPD Homicide Detective Rayell Johnson was the lead detective on the case. He testified that, in addition to the crime scenes at Melba's and at Marais Street, there was a third crime scene at the corner of Crozat and Iberville Streets where the deceased body of Toby Roche was discovered in the passenger seat of a red Honda Accord. Detective Johnson observed multiple bullet holes all over the vehicle. Detective Johnson also testified that Dejon Miguel, another shooting victim, had been relocated to a nearby hospital where he was treated for gunshot wounds to his back and both of his hands.

         At the time that the red vehicle was discovered, the doors were open, spent cartridge casings had collected on the front windshield, both the windshield and passenger side door were riddled with bullet holes, and the rear windshield had been shot out. There was blood on the steering wheel and throughout the interior, and a loaded handgun was found on the floorboard behind the passenger seat.

         Detective Johnson testified that ballistic testing revealed that the bullet casings recovered from Melba's parking lot were fired from the guns found at the Marais Street scene, and the casings recovered from the deceased's vehicle were fired from the gun found on the floorboard of the same vehicle. NOPD Crime Lab ballistics expert, Sean McElrath, testified that twenty casings at Melba's were fired from one of the forty-caliber Glock semiautomatic handguns recovered from the Marais crime scene and eight were fired from the other. Additionally, eight casings recovered from the search of the victims' car at NOPD headquarters were fired from a nine millimeter Smith and Wesson found in the victims' vehicle.

         Once Detective Johnson finished processing the crime scene at Crozat and Iberville Streets, he went to the homicide office to interview a suspect, Jacob Love. Following the interview, he obtained an arrest warrant for both Love and defendant. Detective Johnson testified that approximately one month later, federal marshals located and arrested defendant in Austin, Texas and returned him to New Orleans. Detective Johnson took DNA samples from Jacob Love and from defendant, but neither the suspects' nor the victims' "identities" were discovered on any of the weapons recovered.

         Detective Johnson interviewed Dejon Miguel at the hospital, but "he said he didn't see anything, didn't know anything, [and] wasn't cooperative." Upon viewing the surveillance video footage that Detective Vaught had recovered from Melba's, Detective Johnson agreed that the footage showed three individuals, identified as the victims, entering their vehicle in Melba's parking lot when a white car, belonging to the perpetrators, pulled into the lot. The footage showed the passenger in the white car firing a gun multiple times. It appeared to Detective Johnson that the driver of the white car fired at the victims' vehicle first, the victims returned fire, and then the passenger door of the white car opened and the passenger shot at the rear of the victims' vehicle.

         Detective Johnson also pointed out that Officer Magee's police vehicle appears at the top of the surveillance video frame just as the shooting began. According to Detective Johnson's narration of the surveillance footage, the police unit then pulled into a lot and turned around in time to chase the perpetrators as they fled in their vehicle. The footage also shows the victims' vehicle fleeing the scene.

         On cross-examination, Detective Johnson admitted that all of the information contained in the warrant for defendant's arrest was supplied by Jacob Love. He stated that none of the bullet casings or the weapons discovered at any of the crime scenes contained defendant's DNA or fingerprints. Although the crime lab was able to recover DNA from the guns involved, the DNA recovered from the Victims' gun belonged to Troy Scott, who he did not believe was in the victims' vehicle during the shooting. The DNA recovered from the perpetrator's gun belonged to Cornell Gilbert, but Jacob Love had not implicated Cornell Gilbert in his statement. Detective Johnson was not able to locate Troy Scott or Cornell Gilbert during his investigation of this matter.

         Jacob Love, the former codefendant in the instant case, testified that in May of 2015 he was living in the Marigny district near Spain and Urquhart Streets and had been working as a waiter at Mandina's for nearly two years. Love stated that he had known defendant since they were kids; they grew up together in the Seventh Ward. On May 13, 2015, Love asked defendant to drive him to his workplace. After defendant picked up Love from his residence, they drove to Melba's to conduct a narcotics transaction. While they were waiting to make the transaction, Love observed three individuals whom he recognized as residents of the Fourth Ward, including Dejon Miguel, walking across the street. Love testified that there had been a continuing feud between the Fourth and Seventh Ward residents, and he and the defendant and several others had engaged in a verbal altercation with these individuals at a concert three days before the shooting. Love stated that when the three ...


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