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State v. Alexander

Court of Appeals of Louisiana, Third Circuit

September 26, 2018

STATE OF LOUISIANA
v.
KEVIN JAMES ALEXANDER -AKA- KEVIN J. ALEXANDER -AKA- JAMES K. ALEXANDER -AKA- KEVIN ALEXANDER, JR.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 145966 HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

          Annette Fuller Roach Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Kevin James Alexander

          Honorable Keith A. Stutes Lafayette Parish District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Michele S. Billeaud Attorney at Law COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.

          D. KENT SAVOIE JUDGE.

         Defendant, Kevin James Alexander a/k/a Kevin J. Alexander a/k/a James K. Alexander a/k/a Kevin Alexander, Jr., was found guilty, after a trial by jury, of one count of aggravated flight from an officer, a violation of La.R.S. 14:108.1(C), and one count of aggravated criminal damage to property, a violation of La.R.S. 14:55. Defendant now appeals his convictions. For the following reasons, we affirm Defendant's convictions.

         FACTS AND PROCEDURAL HISTORY

         On April 22, 2014, the Defendant fired several shots into a home occupied by thirteen people, which included his four children. He later led police on a highspeed chase originating in Lafayette and ending in Calcasieu Parish.

         Defendant was charged by bill of information filed on June 12, 2014, with thirteen counts of attempted first degree murder, violations of La.R.S. 14:27 and La.R.S. 14:30, and one count of aggravated flight from an officer, a violation of La.R.S. 14:108.1(C). The State amended the bill of information on April 19, 2017, to add the charge of aggravated criminal damage to property, a violation of La.R.S. 14:55.

         On May 9, 2017, the State severed all thirteen counts of attempted first degree murder and proceeded to trial by jury on the charges of aggravated flight from an officer and aggravated criminal damage to property. The jury found Defendant guilty of both counts on May 12, 2017. On July 19, 2017, all thirteen counts of attempted first degree murder were dismissed by the State.

         Sentencing was held on August 28, 2017. At that time, Defendant was ordered to serve twelve years at hard labor for aggravated criminal damage to property. His sentence for aggravated flight from an officer is unclear. The trial court ordered the sentences to be served concurrently.

         A motion for appeal was filed on September 5, 2017, and subsequently granted by the trial court. On September 6, 2017, Defendant filed a pro se motion for appeal, and that motion was also granted. Defendant is now before this court asserting two assignments of error: 1) the evidence is insufficient to prove beyond a reasonable doubt all of the elements of the charged offenses; and 2) the trial court erred in denying the motion for mistrial made on behalf of the Defendant following the State's opening statement. For the following reasons, Defendant's convictions are affirmed.

         LAW AND DISCUSSION

         I. Errors Patent

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find two errors patent present.

         First, Defendant received an indeterminate sentence for aggravated flight from an officer, a violation of La.R.S. 14:108.1. Louisiana Revised Statutes 14:108.1 provides that a defendant shall be imprisoned at hard labor for not more than two years and may be fined not more than two thousand dollars. Defendant's second conviction was for aggravated criminal damage to property, a violation of La.R.S. 14:55. That statute provides that a defendant shall be fined not more than ten thousand dollars, imprisoned with or without hard labor for not less than one nor more than fifteen years, or both.

         When imposing Defendant's sentences, the judge stated:

THE COURT: Twelve years at hard labor for aggravated flight from an officer, and you shall be imprisoned at hard labor for not more than two years and may be fined not more than $2, 000. With that, he will do a maximum of two years under 1455[sic]. For aggravated criminal damage to property he shall be fined not more than $10, 000 and imprisoned with or without hard labor for not less than one nor more than fifteen years or both for that crime.
. . . .
THE COURT: And it shall be twelve years at hard labor, both of which shall run concurrent.

         It appears that the court imposed a twelve-year hard labor sentence for aggravated criminal damage to property after stating the penalty range for that offense as provided in La.R.S. 14:55. However, Defendant's sentence for aggravated flight from an officer is unclear. Louisiana Code of Criminal

         Procedure Article 879 requires the imposition of a determinate sentence. Accordingly, the sentence for aggravated flight from an officer is vacated, and the case is remanded for resentencing on that conviction.

         Next, the record before this court does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the provisions of Article 930.8 at resentencing. II. Assignment of Error Number One

         In his first assignment of error, Defendant contends the evidence admitted at trial was insufficient to prove beyond a reasonable doubt all of the elements of the charged offenses. Defendant argues that the State failed to prove his identity as the shooter who committed aggravated criminal damage to property and the elements of aggravated flight from an officer.

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Captville, 448 So.2d 676, 678 (La.1984). That standard dictates that to affirm the conviction the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that the State proved all elements of the crime beyond a reasonable doubt. State v. Johnson, 03-1228, p. 4 (La.4/14/04), 870 So.2d 995, 998; Captville, 448 So.2d at 678. Further, when the conviction is based on circumstantial evidence, La. R.S. 15:438 sets forth the rule that "assuming every fact to be proved that the evidence tends to prove, in order to convict, [the circumstantial evidence] must exclude every reasonable hypothesis of innocence." However, La. R.S. 15:438 does not establish a stricter standard of review than the more general rational juror's reasonable doubt formula; rather it serves as a helpful evidentiary guide for jurors when evaluating circumstantial evidence. State v. Toups, 01-1875, p. 3 (La.10/15/02), 833 So.2d 910, 912; State v. Chism, 436 So.2d 464, 470 (La.1983). When evaluating circumstantial evidence, the trier of fact must consider
the circumstantial evidence in light of the direct evidence, and vice versa, [and] the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence. Chism, 436 So.2d at 469.
Finally, constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Mussall, 523 So.2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law. Johnson at pp. 4-5, 870 So.2d at 998; Toups at p. 3, 833 So.2d at 912.

State v. Major, 03-3522, pp. 5-7 (La. 12/1/04), 888 So.2d 798, 801-02 (alterations in original).

         Corporal Britney Ardoin testified that, as the result of two 911 calls placed on April 22, 2014, she was dispatched to the 100 block of Newport Street. The calls were received from a cell phone that was pinging off a cell tower in that general area. The male caller identified himself as Kevin Alexander. The man was crying and said he was tired and somebody was going to die. Corporal Ardoin testified that Defendant also said, "'What if I kill some kids, then y'all are gonna [sic] hear me, and I will show you how dangerous I can be.' 'Y'all will be too late, because y'all are always late.' 'Shots fired, multiple people down.'" As a result of the calls, police canvased the area.

         Approximately an hour after the 911 calls, Corporal Ardoin was dispatched to 515 Orchid Drive in relation to shots being fired. That call also concerned Kevin Alexander. The cell tower used to make the previous two 911 calls was less than one mile from the Orchid Drive residence.

         Once at the residence, Corporal Ardoin saw bullet holes on the exterior of the home near two bedrooms. Corporal Ardoin believed six rounds were found in the master bedroom, where Robert and Margaret Bob had been sleeping. Four bullets entered a second bedroom. Four people had been sleeping therein, including three of Defendant's children.

         The shooter was not present when police arrived, and police found nothing on the ground outside the home that indicated who the perpetrator was. Additionally, there was no video surveillance. As a result of information provided by the victims, police later went to an address in the 2200 block of Moss Street.

         Corporal Ardoin was questioned about the bedroom shown in State's Exhibit 4, which depicted what looked like a blanket of some sort on the window of the second bedroom. When asked whether it looked "like it's kind of taped or tied down, maybe," Corporal Ardoin responded, "Yes." She then indicated that there may have been a sheet over the window. Corporal Ardoin indicated the master bedroom also had a sheet over the window.

         Corporal Ardoin testified that there were periodically random shootings in the neighborhood.

         Sergeant Thaddeus Sices was also dispatched to 515 Orchid Drive. Upon his arrival, he was met by Corporal Ardoin. Sergeant Sices found thirteen .45 caliber spent shell casings approximately three to six feet away from the residence outside the two bedrooms. Four spent .45 caliber rounds were found inside the residence.

         Sergeant Sices was shown Defense Exhibits 2 and 3, which were photographs taken inside the master bedroom depicting various items on the floor and the bed and the window coverings. He took the photographs before anything inside the room was moved. Things were subsequently moved so police could look for spent rounds. He did not attempt to look out the window of the master bedroom.

         Sergeant Sices testified that the yard at the residence was "a little dark." He did not know the proximity of the closest street light and did not see a porch light.

         Sergeant Sices indicated that police got calls regarding gunfire in the neighborhood, which involved "shooting in the air or something like that."

         Officer Asher Reaux was also dispatched to respond to the Newport Street area regarding suspicious circumstances. His testimony regarding the statements made by a caller stating he was Kevin Alexander confirmed the testimony of Corporal Ardoin. Officer Reaux indicated those calls came from phone number (713) 876-3732.

         Police later responded to a call from 515 Orchid Drive. The caller stated that Kevin Alexander was in the backyard shooting at the house. Upon his arrival, Officer Reaux observed bullet holes to the residence. He was informed that the shooter was in a black truck registered to one of the victims. Police were then given the name of the street on which the suspected shooter's mother lived.

         Officer Reaux subsequently asked dispatch to patch him through to the cell phone number from which the first two 911 calls were made. Defendant answered the call, and Officer Reaux asked Defendant to meet him at the police department. Defendant initially agreed but called back to report that he would not show up. During those calls, Defendant was upset and angry and mentioned a situation with his kids. Officer Reaux subsequently went to the Moss Street address. Officer Reaux saw a black truck that was registered to one of the victims in the driveway of the Moss Street address. Officer Reaux parked a street over and subsequently saw the truck leave the residence.

         Officers Reaux and Eaton pursued the truck in patrol units, which were marked with the word "Police", with their emergency lights and sirens activated. As Officer Eaton was pursuing Defendant, he informed dispatch that: "he was driving in excess of 100 as he was headed towards Pont de Mouton. And he advised that, I think he ran the red light at Moss and Ponte de Mouton as they turned left on Pont de Mouton to go towards the Thruway." Officer Eaton followed Defendant to Pont de Mouton, at which time Officer Reaux caught up with them. Defendant drove over 100 miles per hour on Moss Street, and the posted speed limit was believed to be 40 miles per hour. From Pont de Mouton, Defendant turned onto the Thruway, driving toward Interstate 10. At that time, Officer Eaton's vehicle overheated. Defendant subsequently turned onto Interstate 10 and headed west, with only Officer Reaux pursuing him. Dispatch subsequently contacted Officer Reaux and informed him that Defendant called and stated, "if we don't stop chasing him, he's going to kill somebody with his truck, he's going to run somebody off the road, he's going to kill himself." Defendant also stated that his children were with him, and "he was going to wreck the truck and kill them" if police did not stop chasing him.

         Officer Reaux further testified that during the chase, Defendant would "stop really hard trying to get me to rear-end him," and he would take off again. The Defendant was also running cars off the road. Officer Reaux stated that Defendant "was swerving from lane to lane going off the road on both sides and the cars were, you know, going off in the median to avoid him as he was coming up behind them." Defendant was driving over 100 miles per hour at that time. Officer Reaux testified that when Defendant stated he was going to kill someone, "that's when he started going towards other drivers and, you know, they were pulling off the road to get away from him." The chase finally ended in Iowa in Calcasieu Parish after State Police laid out spike strips that blew Defendant's tires.

         The truck was searched after Defendant was arrested, and police found an empty .45 caliber pistol magazine on the floorboard of the driver's side. However, the clip was not mentioned in Officer Reaux's report.

         On cross-examination, Officer Reaux indicated there were no red lights between Moss Street and Interstate 49. However, there was one at Interstate 49. There were also no red lights between I-49 and Calcasieu Parish. There were no stop signs on the route either. Officer Reaux's report stated Defendant was swerving toward other vehicles but did not state other vehicles ran off the road due to Defendant's actions. He testified that he thought he wrote Defendant "swerved violently towards other vehicles." He further testified, "They went off to the side of the road, pulled off into the median some of them, just went off the roadway on both sides to get out of the way."

         Officer Reaux indicated that the cell phone used by Defendant was registered to Latonya Johnson.

         Winnie Kurowski, an employee of the Acadiana Criminalistics Laboratory, was accepted as an expert in forensic DNA analysis as a forensic chemist. Kurowski tested a swab taken from the bottom of the magazine found inside the truck. A partial DNA profile was found on the swab, and Kurowski concluded, in the absence of identical twins, that Defendant was the source of the partial profile. She was at least 99.9 percent certain that this DNA profile would not be seen in a sample of 300 million selected unrelated individuals. She was also 99.9 percent certain Defendant could not be excluded as a possible source of the partial profile.

         Margaret Bob testified that Defendant had previously lived with her family for a year and dated her daughter Teesha. However, he was not living with them at the time of the offenses. Teesha had four children with Defendant.

         On April 22, 2014, Margaret was awakened by gunfire and bullets entering her bedroom. Her son Kenneth came into her room to ask if she and her husband were okay, and he peeped through the window and looked outside. Margaret did not see who fired the shots. Margaret indicated that the room in which her daughter Teesha and her children were sleeping was Kenneth's room. Margaret stated Defendant had passed in front of her ...


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