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State v. Brown

Court of Appeals of Louisiana, Second Circuit

September 26, 2018


          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 328, 487 Honorable John D. Mosely, Jr., Judge.

          LOUISIANA APPELLATE PROJECT By: Edward K. Bauman Counsel for Appellant.


          JAMES E. STEWART, SR. District Attorney, Counsel for Appellee.

          TOMMY J. JOHNSON BRITNEY A. GREEN Assistant District Attorneys.

          Before BROWN, WILLIAMS, and McCALLUM, JJ.

          BROWN, C.J.

         Defendant, Kelvin Demarcus Brown, II, was charged by grand jury indictment with second degree murder, in violation of La. R.S. 14:30.1. After a bench trial, Defendant was found guilty as charged and sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence. On appeal, Defendant challenges the sufficiency of the evidence and argues that the trial court erred in allowing certain La. C.E. art. 404(B) evidence and impermissible hearsay to be admitted at trial. Defendant has also filed a pro se brief raising additional assignments of error. For the following reasons, Defendant's conviction and sentence are affirmed.


         In the early hours of December 6, 2014, Officer Kevin Duck of the Shreveport Police Department was dispatched to a residence at 2903 Oak Forest Lane, Shreveport, Louisiana. Upon arriving at the scene, Officer Duck made contact with the victim, Alicia West, who had received multiple knife wounds to her body and throat. While they were waiting for an ambulance, Ms. West advised Officer Duck that she had been attacked by Defendant. Ms. West died shortly after her arrival at the hospital.

         On January 22, 2015, Defendant was charged by grand jury indictment with the first degree murder of Alicia West. An amended indictment was filed on March 31, 2015, reducing the charge to second degree murder. At arraignment, Defendant pled not guilty and elected to have a jury trial. On March 15, 2017, however, Defendant waived his right to a jury trial and opted for a trial by judge.

         Defendant's bench trial commenced on October 30, 2017. Exa Bloomer, the victim's mother, testified that she was asleep at her daughter's house because Ms. Bloomer was babysitting her grandson on December 6, 2014. Around 4:00 a.m. that morning, Ms. Bloomer woke up to the sound of water running outside. Ms. Bloomer called Ms. West, who was at work, and told her that someone had turned the water on outside. Ms. West advised her mother not to go outside and said that she would call the police first. Ms. Bloomer got up and waited until she saw Ms. West's vehicle pull into the driveway. Ms. Bloomer testified that she suddenly heard Ms. West screaming. Ms. Bloomer went outside into the carport and saw Defendant on top of her daughter's back. Ms. Bloomer stated that the carport light was on, and she recognized Defendant because he and Ms. West had previously dated. Defendant jumped up when he saw Ms. Bloomer and looked directly at her. Defendant then fled into a wooded area near the home. Ms. West stood up but was bleeding profusely, and she fell back toward her vehicle. The police arrived shortly thereafter. Ms. Bloomer's grandson appeared at the carport door and began screaming at the sight of his mother's bleeding body. Ms. Bloomer took her grandson back into the house as instructed by officers and tried to console him. After the incident, Ms. Bloomer was interviewed by the police. She identified Defendant in open court as the man who attacked Ms.West.

         On cross-examination, Ms. Bloomer admitted that she was unable to pick Defendant out of a photographic lineup during her interview with the police. Ms. Bloomer is completely blind in her right eye, but she said that she was standing approximately four feet from Defendant when he attacked her daughter and could clearly see that the assailant was Defendant.

         Monique Bradley testified that she lives in Coushatta, Louisiana, and has known Defendant since 2007 when they were both at Northwestern State University. On December 6, 2014, Defendant came to the home she shared with an aunt early in the morning and asked if he could stay there for a few hours before he went to visit his child. Ms. Bradley got her aunt's permission for Defendant to stay, and Defendant took a nap in Ms. Bradley's room before leaving at about 9:00 a.m. Before leaving, Defendant told Ms. Bradley that if anyone came looking for him, she was to tell them that he had been with her. At the time, Ms. Bradley did not know what Defendant was referring to. She noted that it was not unusual for Defendant to arrive unannounced at her home, but it was not typical for him to come to her home that early in the morning. Defendant returned to Ms. Bradley's home later that afternoon when several other people were present. Ms. Bradley testified that Defendant had conversations with people and played with her niece. According to Ms. Bradley, Defendant did not appear to be worried and told her that he would return the following day to eat. Ms. Bradley got a text from a friend who is a police officer in Natchitoches later that evening notifying her that Defendant had been arrested for murder. Ms. Bradley contacted the police after she realized that defendant had been to her house that day. Defendant had left a green army-type bag at Ms. Bradley's home, which the police collected as possible evidence. Ms. Bradley testified that she thought the bag only contained a pair of boxers and a muscle shirt.

         Ebony Morgan testified that she met Defendant when they were both employed at the Horseshoe Casino in 2013. Ms. Morgan and Defendant became friends while working together, but she had not been in contact with Brown for a month or two prior to December 6, 2014. Ms. Morgan testified that on that morning, she had called Defendant around 2:00 a.m. while she was headed home because she wanted to be on the phone with someone until she was safely in her home. Defendant called her back at 5:00 a.m., but she did not answer. Around 7:00 a.m., Ms. Morgan called Defendant a second time, and he sounded sleepy. Ms. Morgan testified that she did not see Defendant on December 6, 2014. Ms. Morgan testified that she did not know the victim but one her coworkers did. Ms. Morgan learned of Alicia. West's death that morning when Ms. Morgan got to work.

         Corporal John Madjerick, a crime scene investigator with the Shreveport Police Department, testified that he was dispatched to Ms. West's home to collect evidence. Upon his arrival at the scene, Cpl. Madjerick made contact with Detective Joseph Brown to obtain a brief summary of the events and to do a walk-through of the scene. Ms. West had already been transported to the hospital prior to Cpl. Madjerick's arrival. Cpl. Madjerick took photographs of the scene, which he identified in open court. Ms. West's vehicle was at the scene, and the photographs depict her blood on the driveway. Ms. West's wig and a pool of her blood were located toward the rear of her vehicle, indicating the spot where she collapsed before being transported to the hospital. While photographing the home's exterior, Cpl. Madjerick observed an outside spigot and noted wet ground beneath it, indicating that it had recently been used. A black skullcap found in the grass near the corner of the home was collected and sent to the North Louisiana Crime Lab for testing.

         Droplets of blood found near the skullcap traveled toward the partial chain link fence on the side of the home. Cpl. Madjerick testified that the blood found at the scene continued from the grassy area near the partial chain link fence and ended at the driveway where Ms. West collapsed and the blood pooled. A portion of a window screen had been cut, and Cpl. Madjerick recovered a latent fingerprint from the window. The print was later determined to be of non-comparison value. No other fingerprints were recovered from the scene.

         Cpl. Madjerick also took photographs of Ms. West after she died, which he also identified in open court. The photos show the numerous wounds suffered by the victim during the attack and several of her tattoos, including a tattoo of Brown's full name, "Kelvin D. Brown, II," above her pubis.

         Monnie Michalik, an expert in forensic DNA analysis, performed a DNA analysis on the following items recovered from the scene: the black skullcap, a bloodstain card from the victim, reference swabs taken from Defendant, and a swab taken from the surface of a knife blade. Ms. Michalik completed one report in April 2015, but wrote a second report in June 2015 when additional evidence was analyzed. She stated that a partial Y-chromosome profile was found on suspected blood swabbed from the black skullcap, indicating that the cap had been worn by a man of Defendant's paternal lineage at some point. Due to the incomplete nature of the partial profile, Ms. Michalik was unable to definitively match it to Defendant; however, the partial profile was consistent with Defendant's DNA profile.

         Victor Cooks testified that he knew Defendant through Alicia West and through serving in the National Guard with Defendant during their annual training in June of 2014. Cooks met Ms. West in February of 2014 when they both worked at the El Dorado Casino. Cooks and Ms. West began dating in November 2014, and, while they were dating, Defendant would frequently visit Ms. West's home unannounced late at night or early in the morning. Defendant would bang on the doors and windows, scream outside, and demand that Ms. West answer the door. Cooks testified that Ms. West appeared frightened during these incidents. Ms. West told Cooks that she did not understand why Defendant kept coming to her home, and that she obtained a restraining order against Defendant. Each incident lasted between 30 minutes and an hour. Defendant contacted Cooks via Facebook Messenger in November 2014 and informed him that Defendant was no longer interested in dating Ms. West but he still wanted to be in her life. In the messages, Defendant referred to pending charges of stalking and cyberstalking Ms. West had filed against him. Defendant accused Ms. West of making up the allegations and told Cooks to tell Ms. West to drop the charges. Defendant further messaged, "[Alicia West] is the main reason I spent five days in prison." Defendant also inquired whether Ms. West blamed him for setting a house fire.

         Cooks testified that he saw Ms. West on December 6, 2014, at approximately 2:00 or 3:00 a.m. while she was working at the Margaritaville Casino. Ms. West told him that she was going out with friends for a drink after work. Cooks saw Ms. West again shortly before she left work, and she appeared frantic because her home alarm was going off. Cooks was contacted by the police later that morning and was told of Ms. West's death.

         Officer Duck testified that he was dispatched to Ms. West's home on December 6, 2014, at 4:32 a.m. in response to a call from a lady wanting her water spigots fingerprinted. When he initially received the call, there was no information that there had been an assault. Upon arriving at the scene, Officer Duck saw Ms. West's son first, then her mother. Officer Duck saw Ms. West coming from around the home's east side, stumbling toward him and clutching her neck. Officer Duck testified that when the victim fell to the ground, he could see her spinal cord through the wound in the front of her neck. Officer Duck asked Ms. West who attacked her, and she told him twice that it was Kelvin Brown. He also asked her what weapon her attacker used, and her response was "a knife."

         Footage from Officer Duck's police vehicle camera was admitted into evidence and played at trial. In the video, Ms. West can be heard telling Officer Duck that she was attacked by Defendant with a knife. Officer Duck can also be heard telling the ambulance to hurry and instructing the victim's mother and son to go back inside to preserve the crime scene. Officer Duck begins to pray with Ms. West prior to the arrival of emergency services. Ms. West's mother can also be heard relaying what had occurred to Officer Duck. When asked whether she saw Defendant, Ms. West's mother stated, "I saw a person running." She further stated that she didn't "really, really see him." Officer Duck testified at trial that he believed what Ms. West's mother meant was that she could not see Defendant clearly as he ran away toward the woods, as she had previously told him that she was able to see it was Defendant when she saw him under the carport.

         Raquel Davis Alvarez, a friend of the victim's, testified that Ms. West introduced her to Defendant when all three worked at Sam's Town Casino about ten months to a year before Ms. West's death. Ms. Alvarez stated that Ms. West was not happy in her relationship with Defendant, and that Ms. West was trying to obtain a restraining order against him. Ms. West would occasionally stay at Ms. Alvarez's home because Ms. West did not feel safe at her own home. Ms. Alvarez testified that Defendant and Ms. West argued at work in front of her. Ms. Alvarez also loaned Ms. West a handgun for protection. According to Ms. Alvarez, Ms. West had no idea what Defendant might do, and she was scared for her own safety and that of her son.

         Kimia Giles testified that she had previously been harassed by Defendant in February 2014 when both were serving in the National Guard. At the time, Ms. Giles was a private, and Defendant was the second lieutenant in charge of her unit. Ms. Giles stated that Defendant made frequent lewd and unwanted advances, even in the presence of others, texted her, and called her "sweetie." On one occasion, Defendant had blisters on his feet and asked Ms. Giles to nurse him back to health. Ms. Giles advised him to seek aid from a medic, but Defendant insisted that he wanted her assistance. Defendant also made insinuations that Ms. Giles owed him something as if he expected her to actually tend to his injuries. Ms. Giles informed another guardsman, who reported the incident on her behalf, and Ms. Giles filed a sexual harassment complaint. Ms. Giles did not see Defendant again after she filed the complaint.

         Corporal Betsy Huey Pickett of the Shreveport Police Department testified that she was dispatched to Ms. West's home at 11:08 a.m. on November 2, 2014, in response to a stalking complaint. Ms. West informed Cpl. Pickett that she went outside and saw her water spigot running although she had not turned it on. Cpl. Pickett observed that the ground beneath the spigot was very muddy as if the tap had been on for quite some time. Cpl. Pickett advised Ms. West to obtain a restraining order against her stalker, to stay with family or friends, or to have someone stay with her so she would not be alone. Ms. West appeared very distressed and complained that the stalking was an ongoing problem.

         Lieutenant Shannon Mack with the Bossier Parish Sheriff's Office, an expert in historical cell phone data analysis, testified that she analyzed the cell phone records provided by AT&T Wireless.[1] Lt. Mack testified that cell phone number (318) 470-xxxx belonged to Ms. West and (318) 519-xxxx belonged to Defendant. Utilizing the records provided by AT&T and CellHawk software, Lt. Mack was able to determine that Defendant's cell phone was within 5, 000 meters of the crime scene at 3:54 a.m. on the morning of December 6, 2014. For comparison, Lt. Mack stated that the cell phone records showed that Ms. West's cell phone was also within 5, 000 meters of the crime scene at the time of the attack.

         Officer Lee Scott, now retired from the Shreveport Police Department, testified that he met Ms. West when she filed a complaint against Defendant on November 4, 2014. At that time, Ofc. Scott was a supervisor with the Vice Unit. Ms. West reported that Defendant, without her consent, had placed Ms. West's cell phone number and photographs of her on, which is an escort web service used for prostitution. Defendant had also posted the same photographs on his Facebook page. According to Ofc. Scott, the photographs were intimate and provocative in nature, and Ms. West was very concerned. Ms. West related to Ofc. Scott that she was receiving phone calls from men seeking sexual favors. Ofc. Scott verified that the photographs on Defendant's Facebook page were the same as those on Ofc. Scott then called Defendant, verbally advised him of his Miranda rights, and asked him about the photographs. Defendant denied all the accusations. Ofc. Scott had Ms. West call Defendant to advise him that she did not want to be contacted by him anymore. Ofc. Scott was present when Ms. West called Defendant, and as soon as Ms. West got off the phone with Defendant, he called her despite being asked not to. Ofc. Scott sought a warrant for Defendant's arrest.

         Detective Joseph Brown, now retired from the Shreveport Police Department, was the lead investigator in Ms. West's death. Early in the morning of December 6, 2014, Brown was notified by dispatch of a stabbing at 2903 Oak Forest. Brown arrived at the home, made contact with the initial responding officers and was advised of Ms. West's dying declaration naming Defendant as her attacker. He also did a quick walk-through of the scene. Brown determined that the attack occurred a few minutes prior to 4:25 a.m. Brown obtained an arrest warrant for Defendant, who turned himself in the following afternoon. Defendant was advised of his Miranda rights, which he waived. During his interview, Defendant stated that at 2:40 a.m. on the morning of the attack, he received a call from Ebony Morgan. Thereafter, between 3:00 and 3:30 a.m., he met Ms. Morgan at the Save-A-Lot on Lakeshore Drive, and they had sex in the parking lot. At approximately 4:10 a.m., Defendant left Ms. Morgan and traveled to Natchitoches, Louisiana. Brown obtained Defendant's cell phone records pursuant to a search warrant and determined that the story that Defendant had given regarding his location at certain times the morning of the attack conflicted with his cell phone records. Defendant's cell phone records revealed that, between 4:00 and 5:17 a.m., Defendant's phone was inactive (which means that the phone's physical location could not be determined for that period). The cell phone records revealed that at 5:17 a.m., when Defendant made a call to Ms. Morgan, he was still in Shreveport, not in Natchitoches as he had previously stated.

         Detective Shonda Holmes testified that she works with the Shreveport Police Department's Domestic Violence Unit. Det. Holmes came in contact with Ms. West in November and December of 2014 when Ms. West accused Defendant of stalking and cyberstalking. Det. Holmes interviewed Ms. West on November 6, 2014. Ms. West related that Defendant was coming to her home unannounced, sending her text messages, stalking her, and showing up at her workplace. Det. Holmes obtained copies of the text messages and a voicemail Defendant left Ms. West. Det. Holmes noted that only one of the texts was from Ms. West, and it was a request by Ms. West to Defendant asking him to leave her alone. The messages from Defendant communicated that he was waiting outside Ms. West's home on several occasions, with questions as to whether a man was with her and whether she was okay.

         Defendant was arrested by Lee Scott and interviewed by Det. Holmes on November 6, 2014. Portions of Det. Holmes' interview with Defendant were played at trial. In the recording, Defendant was advised of his Miranda rights. Defendant stated that he understood his rights and wished to make a statement. Brown told Det. Holmes that he and Ms. West had been dating since October of the previous year but had broken up. Defendant stated that Ms. West was communicating with him through a third party and denied attempting to contact her. Defendant admitted, however, that he texted her despite the break-up because it has worked in the past, i.e., they would get back together. Defendant was texting Ms. West that he was outside her house despite not being invited to her home on a given day. According to Defendant, he was "always invited." He also went to her ...

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