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State v. Allen

Court of Appeals of Louisiana, Fifth Circuit

May 16, 2018

STATE OF LOUISIANA
v.
DEXTER ALLEN

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-4483, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux, Darren A. Allemand

          COUNSEL FOR DEFENDANT/APPELLANT, DEXTER ALLEN Prentice L. White

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore

          MARION F. EDWARDS, JUDGE PRO TEMPORE JUDGE

         Defendant, Dexter Allen, appeals his convictions and sentences for two counts of second degree murder and 21 counts of simple burglary. For the reasons that follow, defendant's convictions are affirmed, and his life sentences for his second degree murder convictions, without benefit of parole, probation, or suspension of sentence, are affirmed. We remand this matter to the district court for the imposition of determinate sentences for defendant's simple burglary convictions.

         PROCEDURAL HISTORY

         On July 30, 2015, a Jefferson Parish Grand Jury indicted defendant, Dexter Allen, on two counts of second degree murder (counts one and two), violations of La. R.S. 14:30.1, and 21 counts of simple burglary (counts five through 23), in violation of La. R.S. 14:62.[1] Defendant pled not guilty at his arraignment on September 11, 2015. On October 11, 2016, the matter proceeded to a jury trial, at the conclusion of which on October 17, 2016, defendant was found guilty as charged on all counts. On November 16, 2016, defendant filed a Motion For Funds To Conduct Mitigation Investigation, for the purpose of hiring a juvenile mitigation specialist ahead of defendant's constitutionally mandated sentencing hearing under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). After a hearing on December 5, 2016, the trial court denied defendant's request for funding. Defendant thereafter requested a continuance of his sentencing, which the trial court granted on March 6, 2017. On March 26, 2017, defendant filed a second motion for funds to hire an expert to "develop evidence in mitigation" in advance of his Miller hearing. On April 5, 2017, the trial court denied defendant's second request for funds, and he filed a writ to this Court seeking supervisory review of that ruling, which was denied. State v. Allen, 17-199 (La.App. 5 Cir. 4/18/17) (unpublished writ), writ denied, 17-0640 (La. 6/29/17), 222 So.3d 48. On April 20, 2017, defendant filed a motion for new trial, which was denied on that same date. Also on that date, defendant's Miller hearing was held, and the trial court continued sentencing.

         On April 21, 2017, the trial court sentenced defendant to life in prison without benefit of parole, probation, or suspension of sentence for counts one and two, and two years on each count, five through 23, with each two-year sentence to run concurrently. Defendant's motion for reconsideration of sentence was denied following a hearing on August 22, 2017. This appeal follows.

         FACTS

         On April 22, 2015, officers from the Jefferson Parish Sheriff's Office were dispatched to 3717 Clifford Drive in Metairie in response to a 9-1-1 call made by Elizabeth Branley Pence reporting that she had found her husband, David Pence, and her son, Nicholas Pence, shot dead in their home. Sergeant David Roddy was the first officer on the scene; he entered the home through the open glass storm door on the side of the house. He described that it was "foggy" inside the house and immediately noticed the smell of gunpowder. He found two deceased victims with apparent gunshot wounds, David Pence seated in a chair and Nicholas Pence on the ground. After he and other officers cleared the house-making sure the suspect was no longer present-he returned to the living room and spoke with Ms. Pence, who was covered in blood as a result of performing C.P.R. on her son. Officers from Jefferson Parish Sheriff's Office Crime Scene spent several hours recovering physical evidence from the scene, notably, four 12-gauge shotgun shells as well as lead-like projectiles; a gun was not recovered.

         While on the scene that night, officers canvassed the neighborhood to speak with people to see if anyone heard or saw anything. As a result, they became aware of several car burglaries in the area. Additionally, officers discovered that one of the vehicles at the Pence home, a black Mustang, had also been burglarized. Deputy Christie Babineaux was one such officer canvassing the neighborhood that evening, and while driving on Ridgeway Drive, a neighboring street, she observed an Audi with its trunk open. She spoke with the owner of the vehicle, Shawn Suggs, who indicated that nothing appeared to be missing, but noticed a visible palm print on the driver's side window. Captain Chad Pitfield, who was initially at the crime scene at the Pence home, went to the scene on Ridgeway and was able to successfully lift the print from the Audi. Officers also were able to recover surveillance video from homes in the neighborhood. Detective William Roniger, the lead detective in the homicide case, was informed of the series of vehicle burglaries in the neighborhood surrounding the Pence home and thought the murders and the burglaries were related.

         Surveillance video from John Hennessey's home at 3625 Clifford Drive depicts a black male approaching his wife's Porsche Cayenne parked in the driveway, lifting the vehicle's door handle, and then walking away. Later on in the video, a set of feet, that came from the direction of where the subject walked, returned to the view of the camera. At a later point, the video depicts something falling to the ground where the feet were. Later, a purse belonging to one of the victims of the car burglaries was found in that location. The feet come back into camera view later from the direction of the Pence home.

         Detective Roniger spoke with Christopher Meyer and Alex Underwood, friends of Nicholas Pence, who were at the Pence house earlier the evening of April 22, 2015. Mr. Meyer and Mr. Underwood were at the Pence home with Nicholas, hanging out in the garage with three other friends after their flag football game; they indicated they left around 11:40 p.m. Mr. Underwood testified that as he was leaving the Pence home, he noticed a white Toyota Highlander coming down the street with no headlights on that "pulled off to the opposite side of the street for a brief moment, " then stopped and started traveling back down the street, but then changed directions. Further depicted in the surveillance video was a white Toyota Highlander with no headlights on, driving toward the Pence home around the time of the murders. Other surveillance video from Kathryn Fitzpatrick's home at 4000 Ridgeway Drive depicts the same white Toyota Highlander traveling southbound on Ridgeway Drive toward West Esplanade Avenue, which is near the on-ramp to I-10 East at Bonnabel Boulevard. Detective Roniger testified regarding the likely path of travel from the Pence home to the I-10 East ramp at Bonnabel as the Automated License Plate Recognition System (A.L.P.R.) captured a Toyota Highlander, bearing the license plate YCB-052, getting on I-10 East at 11:56 p.m. After getting this information, he investigated the vehicle and discovered that it had been reported stolen in a carjacking by the owner, Shalacia Leflore, earlier on April 22, 2015. Detective Roniger also discovered that the fingerprints that were taken from the Audi on Ridgeway Avenue belonged to a person named Haraquon DeGruy.

         Based on this information, he contacted Detective Pat DiGiovanni to employ the U.S. Marshals Task Force to locate Haraquon DeGruy as well as the Toyota Highlander. Detective DiGiovanni eventually located Ms. DeGruy at an apartment complex in New Orleans East, as well as the Toyota Highlander, which was found parked nearby. Detective DiGiovanni decided to surveil the Highlander as they did not know the number of the apartment in which Ms. DeGruy was located. Ultimately, during the day on April 24, 2015, officers who were monitoring the Highlander observed it on the move. Officers followed the vehicle, which was traveling at an extremely low rate of speed, which indicated to the officers that the person in the Highlander knew he was being followed.

         The officers decide to "trap" the Highlander, that is, position their vehicles in front and behind the subject vehicle to prevent it from moving. Officers in the vehicle behind the Highlander activated its lights and sirens, and officers, who were wearing the U.S. Marshal tactical vest, exited the vehicles, announced their presence as police, and approached the Highlander with guns drawn. As they approached the Highlander, the vehicle turned right to escape the trap, nearly striking Detective Harley Smith, who jumped out of its path in order not to be hit. A high-speed chase of the Highlander ensued, which ended up on the I-10 Highrise Bridge, after the Highlander struck another vehicle. The driver of the Highlander, who was later identified as defendant, Dexter Allen, exited the vehicle and began to flee on foot. After an extensive foot chase, officers ultimately found defendant hiding in the Industrial Canal, and he was taken into custody. The passenger of the vehicle, Haraquon DeGruy, was also apprehended.

         Defendant, as he was involved in a car crash, was transported to a nearby hospital to be cleared before being transported to prison. Detective David Deroche, the lead investigator of the vehicle burglaries, arrived at the hospital and noticed defendant staring at his badge, which he was wearing on his belt next to his gun. Detective Deroche described that when he first arrived at the hospital, defendant seemed "not concerned, playful, smiling a lot, " but when defendant spotted his badge, his demeanor changed to "more serious." Since Detective Deroche did not want to alert defendant he was suspected in the homicides and wanted him to be relaxed, he informed him that he was a "burglary detective from Jefferson Parish…investigating some door pulls" and that defendant had "some more serious things to worry about concerning that car [defendant was] driving." After Detective Deroche said that, he described that defendant looked away and smiled and returned to his previous demeanor.

         The Toyota Highlander was later processed by the Jefferson Parish Crime Lab. Items that were stolen from the burglarized vehicles were located in the Toyota Highlander. Latent fingerprints were also taken from the exterior of the Highlander, which matched both defendant and Ms. DeGruy. Detective Thomas Gai, who participated in the processing of the Highlander, explained that relative to the homicide investigation, he was looking for several items he knew were taken from inside of the Pence home, in addition to items that would be pertinent to the burglary investigation. Importantly, a CVS card belonging to David Pence was found inside of the Highlander, which through Ms. Pence, the detectives knew was taken from her purse inside the home at the time of the murders. A search warrant was obtained for defendant's home at 2227 Arts Street in New Orleans. Deputy Gabriel Faucetta assisted in the search of defendant's home. He testified that the home was a "raised shotgun, " and as he was looking underneath the home, he located a shotgun on top of one of the floor rafters. Deputy Ryan Singleton, a crime scene technician, retrieved the 12-gauge Mossberg shotgun from underneath the house. He explained that he found one spent shotgun shell and three live rounds still inside the gun. Detective Gai explained that the spent shotgun shell was significant as he knew from ballistics inside the Pence home that there were five shells that were fired at the time of the murders, but only four were recovered from the home. From inside of the home, other items consistent with those that were stolen in the burglaries were recovered, as well as items belonging to the victim of the carjacked Toyota Highlander.

         Deputy Singleton also explained he swabbed the shotgun for DNA; analysis showed that the DNA profile from the swab of the shotgun's stock, trigger guard, and grip was a mixture of a major and minor contributor and that defendant's DNA was consistent with the DNA for the major contributor. Ballistics analysis further showed that all the spent shotgun shells recovered from the Pence home, as well as the one that was recovered from inside the shotgun, were fired by the 12-gauge Mossberg shotgun that was recovered from defendant's home.

         Detective Gai and Detective Roniger obtained an arrest warrant for defendant for the murders of David and Nicholas Pence and interviewed defendant while he was in custody at Orleans Parish Prison. Detective Gai described that during the beginning of the interview defendant "didn't seem too very worried, " but later his demeanor changed, and "he appeared to be more worried and scared regarding specifically questions of the homicide at 3717 Clifford." In his statements, defendant indicated he committed the vehicle burglaries; however, he denied involvement in the murders.

         LAW AND ANALYSIS

         In his first assignment of error, defendant contends that the trial court violated his Eighth Amendment right against excessive punishment when it failed to authorize the appropriate funding for defense counsel to secure experts who would research and compile all relevant mitigating factors on Allen's behalf in preparation of the Miller hearing.

         As noted above, defendant previously sought supervisory review from this Court after the trial court denied defendant's second request for funds to hire an expert in advance of his Miller hearing. In finding no error in the trial court's denial for expert funding at that time, we reasoned:

Defendant was seventeen years old at the time of the offenses. Thus, he is clearly entitled a hearing pursuant to Miller v. Alabama, supra, and La. C.Cr.P. art. 878.1 to determine whether the mandatory life sentence for his second degree murder convictions should be imposed with or without parole eligibility. La. C.Cr.P. art. 878.1(B) sets forth factors to be considered at the sentencing hearing and provides as follows:
At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.
In this case, defense counsel is requesting funding, citing to various constitutional articles and State v. Touchet, 93-2839 (La. 9/6/94), 642 So.2d 1213, to conduct a proper Miller hearing and to allow him to employ a mitigation investigator, a fact investigator, a psychologist, an expert in trauma, and a prison adjustment expert.
In State v. Touchet, supra at 1221-1222, the Louisiana Supreme Court discussed expert funding as follows:
At the hearing on expert funding, whether ex parte or contradictory, the defendant must first show a need for the funding. The defendant must show with a reasonable degree of specificity what type of expert is needed and for what purpose. In other words, the indigent defendant requesting governmental funding for the securing of expert assistance must show that it is more likely than not that the expert assistance will be required to answer a serious issue or question raised by the prosecution's or defense's theory of the case. If the defendant meets this burden, then the court is to order that the funds be provided by the state. If the defendant fails to meet this burden, and the proceedings were held ex parte, ...

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