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State v. Parvez

Court of Appeals of Louisiana, Fourth Circuit

June 20, 2018


          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 523-492, SECTION "B" Honorable Tracey Flemings-Davillier, Judge

          Leon Cannizzaro District Attorney ORLEANS PARISH Donna Andrieu Assistant District Attorney Chief of Appeals William Dieters Assistant District Attorney Michael Danon Assistant District Attorney COUNSEL FOR APPELLEE, STATE OF LOUISIANA


          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins

          Terri F. Love, Judge

         This appeal arises from defendant's manslaughter conviction. The defendant appeals as to the insufficiency of the State's evidence to refute his self-defense argument. The defendant also contends the trial court abused its judicial discretion by denying his motion to visit the crime scene and violating his right to present a defense by limiting the number of crime scene photos presented to the jury.

         We find the evidence sufficiently supported the defendant's conviction. The trial court did not abuse its discretion by denying the motion to visit the crime scene and did not violate the defendant's right to present a defense, as cumulative evidence was presented. Accordingly, the defendant's conviction is affirmed. However, having discerned an error in the defendant's sentence, we remand the matter for resentencing in accordance with La. C.Cr.P. art. 893.3(E)(1)(a) and La. C.Cr.P. art. 893.3(E)(2).


         On November 13, 2014, Bradley Parvez heard someone outside his door that he believed to be the mailman. Mr. Parvez continued to hear noises as if someone was walking from the back door to the front door using the alley alongside the house. Mr. Parvez went to the front door and observed Timothy Rainwater allegedly attempting to steal a bicycle. Mr. Parvez shot and killed Mr. Rainwater.


         The State indicted Mr. Parvez for the second degree murder of Mr. Rainwater. Mr. Parvez pled not guilty. The State filed a Motion to Invoke Firearm Sentencing Provision pursuant to La. C.Cr.P. art. 893.3. Following a four-day jury trial, the jury rendered a verdict of guilty of the crime of manslaughter. Counsel for Mr. Parvez filed a Motion for New Trial, which the trial court denied. Mr. Parvez was sentenced to twenty-five years at hard labor, without benefit of parole, probation or suspension of sentence for twenty years of the sentence. Mr. Parvez's Motion for Out-of-Time appeal was granted.

         Mr. Parvez contends there was insufficient evidence to support his conviction, that the trial court abused its discretion by denying his request for the jury to visit the crime scene, and prevented him from presenting a defense by limiting the number of crime scene photographs presented to the jury.


         New Orleans Police Department ("NOPD") 911 operator Sehara Webb identified the incident recall printout of the 911 call related to this case and the audio recording of that 911 call. The 911 recording was played for the jury.

         The 911 call begins with Mr. Parvez stating he shot Mr. Rainwater, who was trying to steal his bicycle. Mr. Parvez then says he had to shoot Mr. Rainwater because he grabbed for Mr. Parvez's gun. Next, Mr. Parvez gives the 911 operator his address and says that the victim is a black male and is deceased. Mr. Parvez proceeds to recite a clothing description of Mr. Rainwater and once again states Mr. Rainwater grabbed for Mr. Parvez's gun. Mr. Parvez identifies himself by name, gives his address, and says he shot Mr. Rainwater three times. Mr. Parvez tells the operator to send help quickly so Mr. Rainwater can be saved.

         Christopher Ronning, who lived across the street from Mr. Parvez's residence, heard four gunshots at about 10:00 a.m. on November 13, 2014. Mr. Ronning looked out his front door and viewed Mr. Parvez standing in his front doorway. Mr. Ronning did not witness the actual shooting, but noticed that Mr. Parvez's glass storm door was shattered, and that a body was on the ground in Mr. Parvez's front yard. Mr. Ronning could see Mr. Parvez was agitated, and heard him voice a racial epithet toward Mr. Rainwater.

         Lieutenant Nicholas Gernon testified that Detective Wayne DeLarge was the lead detective on the case and was one of the first officers to arrive on the scene. However, as Mr. Parvez had already been taken into custody, Detective DeLarge relocated to police headquarters with Mr. Parvez.

         When Lieutenant Gernon arrived on the scene, he observed the glass storm door at Mr. Parvez's 1932 Fern Street residence was shattered and Mr. Rainwater's body lying on the ground in the front yard. Lieutenant Gernon walked the scene and found six spent bullet cartridges, a pair of work gloves, a pair of pliers on the front steps, and a chain securing a bicycle to the iron railing on the front steps. Lieutenant Gernon noted that an attempt had been made to cut a link in the chain.

         Reviewing the evidence found at the scene, Lieutenant Gernon opined that the glass storm door was shattered by a bullet fired from inside of the residence. Lieutenant Gernon stated that the work gloves and pair of pliers found on the steps next to Mr. Parvez's bicycle suggested that Mr. Rainwater was shot as he was attempting to steal Mr. Parvez's bicycle. In addition, Lieutenant Gernon recalled that the position of the shell casings indicated Mr. Parvez was walking toward Mr. Rainwater, in a pursuing manner, as he fired.[1] Mr. Rainwater's wounds - one in the back, another in the back of the head and a third to his right hand - supported Lieutenant Gernon's conclusion that Mr. Rainwater was fleeing when he was shot. NOPD officers canvassed the neighborhood, but did not locate anyone who witnessed the shooting.

         While investigating Mr. Parvez, Lieutenant Gernon discovered that Mr. Parvez received NOPD training in 2005, and worked for the Sheriffs Office until 2006, when he resigned to take a job with the Tulane University Police Department.

         Lieutenant Gernon's testimony refuted Mr. Parvez's allegation that Mr. Rainwater's attempt to enter Mr. Parvez's house and grab the gun, caused the shooting by jamming Mr. Parvez's hand between the exterior storm door and door frame, causing the gun to fire during the ensuing scuffle. Lieutenant Gernon said the absence of Mr. Rainwater's DNA on the handle of the storm door contradicted Mr. Parvez's claim that Mr. Rainwater tried to open the storm door to enter the residence. Moreover, Lieutenant Gernon noted that the position of the shell casings supported the State's theory that Mr. Parvez fired as he was approaching Mr. Rainwater, not standing still, as claimed. Lieutenant Gernon said that if Mr. Parvez had been stationary while firing, the shell casings would have pooled in one spot rather than fanning out across the front yard.

         Orleans Parish Coroner's Office forensic pathologist Dr. Cynthia Gardner conducted the autopsy on Mr. Rainwater. As a result of Dr. Gardner's findings, the Orleans Parish Coroner classified Mr. Rainwater's death a homicide from multiple gunshot wounds. Dr. Gardner narrated her autopsy findings on a body diagram, identifying a gunshot wound to Mr. Rainwater's back between his shoulder blades, one to the little finger of his right hand, which she described as a close ...

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