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State v. Sandifer

Court of Appeals of Louisiana, Fourth Circuit

June 27, 2018

STATE OF LOUISIANA
v.
DEMOND D. SANDIFER, SAM NEWMAN, TYRON HARDEN

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 515-895, SECTION "B" Honorable Tracey Flemings-Davillier, Judge

          Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY, ORLEANS PARISH Kyle Daly ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH COUNSEL FOR APPELLEE/STATE OF LOUISIANA.

          Sherry Watters LOUISIANA APPELLATE PROJECT Katherine M. Franks LOUISIANA APPELLATE PROJECT Mary C. Hanes LOUISIANA APPELLATE PROJECT COUNSEL FOR APPELLANTS/DEFENDANTS.

          (Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Paula A. Brown).

          Rosemary Ledet Judge.

         In this criminal appeal, three defendants-Demond "Lil D" Sandifer ("Sandifer"), Sam "Lil" Newman ("Newman"), and Tyron "T-Man" Harden ("Harden") (collectively, the "Defendants")-appeal their respective convictions and sentences for murder, attempted murder, conspiracy to commit racketeering, conspiracy to commit illegal use of weapons, first degree robbery, and illegal carrying of weapons. With respect to the convictions, we affirm; with respect to the sentences, we affirm in part, correct in part, vacate in part, and remand.

         STATEMENT OF THE CASE

         Around 2008, a criminal street gang called the "110'ers" formed in the New Orleans Lower Garden District.[1] The 110'ers consisted mostly of males in their late teens and early twenties, and its territory centered around the River Garden Apartments. The 110'ers was comprised of three sub-gangs: the St. Thomas Youngins ("STY"), the St. Mary Mafia ("SMM"), and the Skull Squad Mafia ("SSM"). In 2011, SSM began associating with another gang, the Young Mafia Fellaz ("YMF") to murder rival gang members.

         On May 8, 2013, fifteen individuals were indicted in connection with the activities of the 110'ers. Among those indicted were the Defendants, [2] who were jointly charged with conspiracy to commit racketeering (Count 1); conspiracy to commit illegal use of weapons (Count 2); and the second degree murders of Shawanna Pierce and Brianna Allen (Counts 27 and 28).[3] With the exception of Count 1, all charges in the indictment were alleged, under La. R.S. 15:1403(B), to have been committed with the intent to promote, further, or assist in the affairs of a criminal gang. See La. R.S. 15:1403(B).

         Before trial, Harden moved to sever the charges related to the murders of Ms. Pierce and Brianna (Counts 27 and 28) from all other charges and to exclude the hearsay statements of Sandifer and Newman. Each of the motions was denied.

         On January 14, 2015, the State proceeded to trial against the Defendants on Counts 1, 2, 19, 21, 27, 28, 37, and 38. During the 11-day trial, the State presented the testimony of 49 witnesses and introduced 192 exhibits. At the conclusion of trial, the jury rendered the following verdicts:

• Count 1 (conspiracy to commit racketeering): as to Sandifer and Newman, guilty as charged; as to Harden, not guilty;
• Count 2 (conspiracy to commit illegal use of weapons): as to each of the Defendants, guilty as charged;
• Counts 27 and 28 (second degree murder): as to each of the Defendants, guilty as charged;[4] as to Sandifer and Newman only the jury further found that these murders were committed "in furtherance of criminal gang activities."

         On November 17, 2015, the Defendants were sentenced as follows:

• Count 1 (conspiracy to commit racketeering): Sandifer and Newman were each sentenced to 50 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence;
• Count 2 (conspiracy to commit illegal use of weapons): Sandifer, Newman, and Harden were each sentenced to 10 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence;
• Counts 27 and 28 (the second degree murders of Ms. Pierce and Brianna): Sandifer, Newman, Harden were each sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; and, as to Sandifer and Newman, an additional 25 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in light of the jury's finding that the murders had been committed in furtherance of gang activity.[5]

         This appeal followed.[6]

         DISCUSSION[7]

         Together, the Defendants assign 17 errors. The assignments overlap considerably, and each of the Defendants has adopted the assignments of the others. For ease of discussion, we organize the assignments into the five issues- (1) cognizability; (2) sufficiency; (3) severance; (4) admissibility; and (5) sentencing-and address the assignment by issue rather than number.

         Cognizability[8]

         The Defendants contend that conspiracy to commit racketeering and illegal use of weapons during a crime of violence are non-cognizable double inchoate crimes. The Defendants also contend that, because those crimes are non-cognizable, the jury instructions were erroneous, confusing, and resulted in a" vague verdict."[9] The State contends that neither issue has been preserved for appellate review.

         As to the jury instructions, the State's argument has merit. The Defendants failed to object to the jury instructions on any basis; thus, they failed to preserve for appellate review any issue relating to the jury instructions.[10] See La. C.Cr.P. art. 841(A) (providing that "[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence"); see also State v. Lincoln, 17-0170, pp. 37-38 (La.App. 4 Cir. 11/3/17), 231 So.3d 161, 182 (observing that "[t]his Court has also found that the failure to object to jury instructions precludes a defendant from raising the issue on appeal" and collecting cases).

         As to cognizability, however, we note that "[t]he conviction of a non-crime is an error patent which can be recognized by [an] appellate court on its own." State v. Marsh, 17-0584, p. 4, n. 5 (La.App. 4 Cir. 11/8/17), 231 So.3d 736, 739; see also State v. Mayeux, 498 So.2d 701, 702-04 (La. 1986) (recognizing, as an error patent, that attempted aggravated battery is not a crime in Louisiana). Accordingly, we will address the Defendants' argument as to the cognizability of conspiracy to commit racketeering.[11]

         The Louisiana Racketeering Act, La. R.S. 15:1351, et seq. (the "LRA"), provides, in pertinent part, as follows:

A. It is unlawful for any person who has knowingly received any proceeds derived, directly or indirectly, from a pattern of racketeering activity to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest, or equity in immovable property or in the establishment or operation of any enterprise.
B. It is unlawful for any person, through a pattern of racketeering activity, knowingly to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or immovable property.
C. It is unlawful for any person employed by, or associated with, any enterprise knowingly to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.
D. It is unlawful for any person to conspire or attempt to violate any of the provisions of Subsections A, B, or C of this Section.

La. R.S. 15:1353. Under La. RS. 15:1353(D), a conspiracy to violate Sections (A), (B), or (C) is a cognizable, statutorily defined crime. Accord State v. Richards, 426 So.2d 1314, 1316 (La. 1982) (observing that "[a] criminal conspiracy to commit a crime is an inchoate crime separate and distinct from the completed criminal act") (citing State v. Brown, 398 So.2d 1381 (La. 1981)).

         Nonetheless, the Defendants argue that, because the definition of racketeering activity set forth in La. R.S. 15:1352(A) includes inchoate crimes, conspiracy to violate La. R.S. 15:1353(C) is a double-inchoate crime and is, thus, non-cognizable. This court recently rejected that argument in State v. Davenport, 16-0223, p. 30 (La.App. 4 Cir. 10/18/17) ___ So.3d ___, ___, 2017 WL 4700652, *16 noting that "conspiracy to commit racketeering under La. R.S. 15:1353(D) is a valid crime, even though an underlying inchoate crime may be a part of the racketeering activity on which the crime is based." The related assignments of error are without merit.

         Sufficiency

         The Defendants contend that the State failed to offer sufficient evidence to support their convictions for the second degree murders of Ms. Pierce and Brianna, conspiracy to commit illegal use of weapons, and conspiracy to commit racketeering.[12] In State v. Brown, 12-0626, pp. 6-8 (La.App. 4 Cir. 4/10/13), 115 So.3d 564, 570-71, we set forth the standard of review for claims of insufficiency as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir. 1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La. 1988). The reviewing court must consider the record as a whole. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. at 1310. "[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Smith, 600 So.2d 1319, 1324 (La. 1992).
When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La. 1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from the Jackson reasonable doubt standard; rather, it is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La. 1987).

         Applying this standard, we discuss each of the convictions for which the Defendants contend there is insufficient evidence.

         Second Degree Murder

         On the morning of May 29, 2012, Stanton "Nan Nan" Guillory (a YMF member) took a silver Nissan Maxima from his girlfriend, Alexandria "Marissa" Perkins, and picked up Raheem Jackson and Harden (also YMF members) and Brian Marigny (a friend of Jackson). Guillory was armed with a two-tone, silver and black Smith & Wesson semi-automatic handgun that he had borrowed from Charles "Buddy" Lewis (a 110'er); Harden was armed with a Ruger handgun. While they were riding around the city, Guillory and Harden agreed on a plan to shoot at rival gang members. They called Sandifer and Newman, who agreed to join them. Jackson and Marigny were dropped off because they were unarmed. Sandifer and Newman were included because both were known to be armed; in particular, Newman was known to have access to an assault rifle.

         The four-Guillory, Harden, Sandifer, and Newman-then drove to the intersection of Simon Bolivar Avenue and Martin Luther King Boulevard, where they spotted a crowd, including rival gang members Lionel "Lonnie B" Allen, Burnell "Baldy" Allen, Emanuel "Duke" Casame, and Delwin "Pooh" McClauren. Guillory, who was driving, circled the block several times before parking the Maxima on a side street. Sandifer, Newman, and Harden exited the Maxima; Guillory remained in the vehicle. Sandifer and Newman were armed with handguns; Harden was armed with an assault rifle. Their exit from the Maxima was captured on surveillance video.

         The three-Sandifer, Newman, and Harden-approached the crowd and opened fire. Sandifer and Newman focused their gunfire at several men standing on the median, striking two rival gang members; Harden fired over a dozen shots in the direction of a residence where a child's birthday party was being held, striking and killing Brianna, the daughter of Burnell Allen and the five-year-old niece of Lionel Allen. Ms. Pierce, who was driving her car nearby, was also struck in the head and killed by another one of Harden's bullets. When they had finished, the Defendants returned to the Nissan Maxima. Their reentry into the Maxima was also captured on surveillance video.[13]

         To support a conviction for second degree murder, the State is required to prove that the defendant committed homicide with the specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1. In support of their contention that the evidence is insufficient to support their convictions for the second degree murders of Ms. Pierce and Brianna, the Defendants advance two arguments. First, they argue that, because the State offered only circumstantial evidence of identification, the State failed to carry its burden of negating any reasonable probability of misidentification. Second, they argue that the State did not prove beyond a reasonable doubt that they had the specific intent to kill or inflict great bodily harm. We address each argument in turn.

         Identity

         When, as in this case, a defendant's identity as the perpetrator is at issue-as opposed to whether the crime was committed-the State bears the burden of negating any reasonable probability of misidentification. State v. Hughes, 05-0992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051 (citing State v. Weary, 03-3067 (La. 4/24/06), 931 So.2d 297; State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649).

         As an initial matter, we note that the State offered direct evidence of identity.[14] Casame, one of the rival gang members shot at by the Defendants, identified Newman in open court as one of the three perpetrators. Eyewitness testimony that identifies a defendant as a perpetrator is direct evidence. State v. Laymon, 97-1520, p. 30 (La.App. 4 Cir. 3/15/00), 756 So.2d 1160, 1181. Such testimony was alone sufficient to negate any reasonable probability of misidentification as to Newman. See State v. Mussall, 523 So.2d 1305, 1311 (La. 1988) (observing that "eye witness testimony alone is usually sufficient in the mill run of cases").

         Additionally, each of the Defendants confessed to various family members, friends, or acquaintances his involvement in the murders.[15] A confession is also direct evidence. State v. Allen, 41, 548, p. 5 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, 1251 (observing that "[a] defendant's confession is direct evidence, for it is an acknowledgment of guilt for which no inference need be drawn") (citing La. R.S. 15:449; State v. McNeal, 34, 593 (La.App. 2 Cir. 4/4/01), 785 So.2d 957; State v. Jones, 451 So.2d 35 (La.App. 2d Cir. 1984)). Such testimony was alone sufficient to negate any reasonable probability of misidentification as to each of the Defendants. Allen, 41, 548 at p. 5, 942 So.2d at 1251 (observing that "once proof independent of the confession confirms the fact of death by violent means, the confession alone can supply the proof linking the accused to the crime").

         The State also offered overwhelming circumstantial evidence of identity, which alone was sufficient to negate any reasonable probability of misidentification.[16] The State offered evidence that the Defendants were members of cooperating gangs and that their targets were members of mutual rival gangs. The State offered evidence that, only hours before the murders, the Defendants were in possession of weapons consistent with those used to perpetrate the murders.[17] The State offered evidence that placed the Defendants at the scene of the murders at the time they were committed.[18] Finally, the State offered evidence that, at the time of the murders, the Defendants' physical appearances were consistent both with eyewitness descriptions of and surveillance video depicting the perpetrators.[19] Together, this evidence was more than sufficient to negate any reasonable probability of misidentification as to each of the Defendants.

         Specific Intent

         The Defendants further contend that the State failed to offer sufficient evidence of their specific intent to kill or inflict great bodily harm on Ms. Pierce and Brianna. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Butler, 322 So.2d 189, 192-93 (La. 1975); see also State v. Neal, 00-0674, p. 10 (La. 6/29/01), 796 So.2d 649, 657 (observing that "clearly an offender who uses a high powered assault rifle and shoots indiscriminately . . . at a group of people specifically intends to kill the victims"); State v. Tyler, 342 So.2d 574, 582 (La. 1977) (observing that "there is authority in law for the proposition that shooting into a crowd indiscriminately with intent to kill someone is an assault with intent to kill each of them") (citing State v. Thomas, 127 La. 576, 53 So. 868 (1911); Ragar v. State, 180 Ark. 1131, 24 S.W.2d 334 (1930); Scott v. State, 49 Ark. 156, 4 S.W. 750 (1887); 40 C.J.S. Homicide § 82 (1955)). As a matter of law, that intent may be transferred to an unintended victim, "when a person shoots at an intended victim with the specific intent to kill or inflict great bodily harm and accidentally kills or inflicts great bodily harm upon another person, if the killing or inflicting of great bodily harm would have been unlawful against the intended victim." State v. Weathersby, 13-0258, pp. 11-12 (La.App. 4 Cir. 4/16/14), 140 So.3d 260, 268.[20]

         In this case, the evidence presented at trial established that, on May 29, 2012, the Defendants planned to murder whatever rival gang members they could find. Pursuant to the plan, they armed themselves and traveled to a location where they believed rival gang members would be present. On arrival, they observed a crowd, some of whom were rival gang members. Each of the Defendants fired at the crowd. This evidence was sufficient to permit a rational juror to infer that each of the Defendants shared the specific intent to kill or inflict great bodily harm on any and all persons present in the crowd, including Brianna. It was also sufficient, as a matter of law, to establish that such intent was transferred to Ms. Pierce (who was not present in the crowd).

         Conspiracy to Commit Illegal Use of Weapons

         Illegal use of weapons is "the intentional or criminally negligent discharging of any firearm . . . where it is foreseeable that it may result in death or great bodily harm to a human being." La. R.S. 14:94(A). Conspiracy is "the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination." La. R.S. 14:26(A). Proof of a conspiracy may be by direct or circumstantial evidence. State v. Johnson, 438 So.2d 1091, 1099 (La. 1983). If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense. La. R.S. 14:26(B). The Defendants contend that the State failed to offer sufficient evidence to establish an agreement among the Defendants to commit the crime of illegal use of weapons. We disagree.

         The evidence established that, on May 29, 2012, Guillory and Harden agreed on a plan to shoot at members of a rival gang later that day. Guillory and Harden (who were armed) then contacted Sandifer and Newman (whom they knew to be armed), invited them to participate, and picked them up. The four then drove to another part of town where they expected to find rival gang members. On arrival, while Guillory (the driver) stayed with the vehicle, the Defendants exited the vehicle and opened fired in an attempt to murder as many rival gang members as they could find. The Defendants then returned to the vehicle; and the four departed the scene together. This evidence was sufficient to establish an agreement among the Defendants to commit the crime of illegal use of weapons.

         Conspiracy to Commit ...


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