FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 520-023,
SECTION "A" Honorable Laurie A. White, Judge.
A. Cannizzaro, Jr. DISTRICT ATTORNEY Donna Andrieu William
Dieters ASSISTANT DISTRICT ATTORNEYS Parish of Orleans
COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Vincent Boshea ATTORNEY AT LAW COUNSEL FOR
composed of Judge Daniel L. Dysart, Judge Regina
Bartholomew-Woods, Judge Dale N. Atkins.
Charles Carter, appeals the January 29, 2016 judgment of the
district court finding him guilty of three counts of armed
robbery with a firearm, attempted second degree murder, and
second degree murder. For the reasons that follow, we affirm
Defendant's convictions, but remand for resentencing in
accordance with this opinion.
September 30, 2012, New Orleans Police Department
("NOPD") Officer Tanya Watson responded to a report
of a vehicle stolen in the 6300 block of Chef Menteur Highway
in New Orleans. Officer Watson met with the victim, Mr. Ryan
Cope, who reported his Ford pickup truck missing and executed
a theft affidavit to that effect. Officer Watson obtained the
truck's vehicle identification number and license plate
and model numbers.
Debrah Normand entered the information gathered by Officer
Watson into the National Crime Information Center database,
and Mr. Cope's truck was recovered on the evening of
October 2, 2012, in the 7400 block of Dartmoor Street in New
Orleans East. During her investigation, Detective Normand
learned that Mr. Cope's truck had been used during a
series of crimes - an armed robbery and simple burglary of a
vehicle, both occurring in the 200 block of Bellaire Street.
Fingerprints obtained from the SUV burglarized on Bellaire
Street led to the development of Byron Johnson as a suspect
in the theft of Mr. Cope's truck. Witnesses to the
vehicle burglary on Bellaire Street observed Johnson and two
other individuals fleeing the scene in the truck, which was
ultimately identified by its license plate number as the
truck stolen from Mr. Cope.
night of October 2, 2012, Derek McArthur drove his 2004 F-250
truck to New Orleans from Florida, checked into a hotel, and
secured his truck in the hotel's parking lot. When Mr.
McArthur awoke the following morning, he discovered his truck
missing. The police recovered Mr. McArthur's truck on
October 4, 2012. Fingerprints lifted from the truck, which
were analyzed by an NOPD fingerprint expert, Officer George
Jackson, matched Defendant and Devante Billy.
Becnel testified that on the night of October 2, 2012, at
about 8:00 p.m., he drove into the driveway of his home in
the 200 block of Bellaire Street. As Mr. Becnel prepared to
exit his vehicle, he noticed an African American youth,
between sixteen and twenty-one years of age, hiding behind a
trash can. The youth stood up and, while brandishing a gun,
charged Mr. Becnel's vehicle, and Mr. Becnel backed out
of his driveway. The suspect fled on foot down the street.
Mr. Becnel pursued the suspect and observed an armed robbery
of his neighbor, Ms. Mary Cowan, in progress on Bellaire
Street. The suspect that Mr. Becnel was following yelled and
motioned to the two suspects robbing Ms. Cowan, and all of
the suspects fled in a white truck parked in the 100 block of
Bellaire Street. As the three suspects fled, Ms. Cowan told
Mr. Becnel that she and her daughter had just been robbed at
gunpoint. Mr. Becnel continued to pursue the fleeing
suspects. During the chase, the suspects' truck was
involved in a hit and run collision on Metairie Road. After
that collision, the truck proceeded on Metairie Road in the
direction of City Park Avenue, where it hit another vehicle
and then entered the westbound lane of the I-10 at Metairie
Road. Mr. Becnel lost sight of the truck and returned to
alert his wife, Toni Ann Becnel, to the incidents. In the
days following the incidents, Mr. Becnel viewed a
photographic lineup from which he identified Byron Johnson as
the youth who pointed a gun at him. Mr. Becnel testified that
the suspect was not involved in the armed robbery of Ms.
Becnel testified that after hearing the commotion on Bellaire
Street, she examined her SUV and found one of its doors ajar
and the contents of the vehicle tossed about. The glove box
had been rifled through and its contents strewn everywhere.
Mrs. Becnel's credit card was missing. She denied knowing
Byron Johnson or the Defendant.
Kristie Harper investigated the burglary of Mrs. Becnel's
SUV. When she arrived on the scene, Mr. Becnel described what
happened. A crime technician dusted the interior and exterior
of the SUV and lifted thirteen prints, six of which were
identified as matching Byron Johnson. In investigating the
burglary of the SUV, Detective Harper learned of the armed
robbery that occurred on the same night in the same area.
Further, she learned that the armed robbery suspects and the
suspect in the SUV burglary fled the scene together in the
white Ford truck stolen from Mr. Cope. Detective Harper was
present when police located Mr. Cope's stolen truck
parked in the 7400 block of Dartmoor Street. She knew that a
check bearing Ms. Cowan's name was found in the vehicle.
Byron Johnson was not a suspect in the armed robbery of Ms.
Cowan because Mr. Becnel's testimony placed him at the
Becnel home burglarizing Mrs. Becnel's SUV at the time
Ms. Cowan was robbed.
Latent Prints Examiner Officer George Jackson examined the
fingerprints lifted from Mrs. Becnel's SUV. He ran the
fingerprints in the Automated Fingerprint Identification
System (AFIS), which indicated a match to Byron Johnson.
night of October 2, 2012, Ms. Mary Cowan recalled dining with
friends and family members. When she returned to her home in
the 200 block of Bellaire Street, she exited the front
passenger seat of her sister's car and noticed someone to
her right running down the sidewalk away from her. Right
after that, she observed two males running toward her. One of
the men was armed and demanded all of her belongings. Ms.
Cowan testified that the person she initially noticed running
down the street was different from the two men who robbed
her, but that the three men left the area together in the
same truck. Her neighbor, Mr. Becnel, pursued the suspects in
his vehicle. The suspects took Ms. Cowan's purse when
they fled. Ms. Cowan described one of her assailants as a
slightly built, teen-aged, light-skinned black male,
approximately five feet, nine inches tall with his hair in
twists. In the ensuing days, Ms. Cowan viewed three
six-person photographic lineups, but did not identify anyone
from those lineups. In March 2013, Ms. Cowan met with
Detective Kristen Krzemieniecki, who showed her a fourth
photo lineup, from which Ms. Cowan identified the Defendant
as the unarmed robber, who pulled her purse from her on the
night of October 2, 2012. Ms. Cowan's purse and wallet
were eventually returned to her, but their contents,
including her credit card, were missing.
Krzemieniecki learned other officers believed the truck owned
by Mr. Cope was used in both the Bellaire Street burglary of
Mrs. Becnel's SUV and the armed robbery of Ms. Cowan on
the night of October 2, 2012. Detective Krzemieniecki
identified a surveillance video recorded at 7400 Dartmoor
Street on October 4, 2012, in which the stolen trucks owned
by Mr. Cope and Mr. McArthur are depicted.
evening of October 2, 2012, Officer Walter Edmond was in the
general area of Louisiana Avenue and Camp Street when he
heard gunfire. Officer Edmond canvassed the area, and as he
neared the intersection of Delachaise and Camp Streets, he
heard screaming. Officer Edmond found Sanford Kaynor shot in
the chest, lying in the driveway of his Camp Street
residence. Mr. Kaynor told Officer Edmond that black males
shot him and stole his vehicle. Officer Edmond relayed that
information to Sergeant Jonathan Bulling. Sgt. Bulling
assisted in processing the scene and collecting evidence.
Krzemieniecki was the lead detective in the investigation of
the attempted second degree murder and armed robbery of Mr.
Kaynor. The Defendant was developed as a suspect through DNA
evidence collected from a black and white bandana discovered
on the scene and from fingerprints recovered from Mr.
Kaynor's stolen vehicle.
Kaynor recounted that on the evening of October 2, 2012, she,
her husband, and eight-year-old daughter were home at their
Camp Street residence. Mrs. Kaynor retired about 9:00 p.m.,
leaving her husband and daughter watching television
downstairs. She awoke to two policemen telling her that her
husband had been shot in the driveway. She ran outside and
found him lying on the ground in terrible pain. To comfort
him she told him everything was going to be okay. He
responded: "No, it's never going to be all right. I
can't feel my legs." When she attempted to find her
driver's license, she realized someone had been in her
house because her purse, wallet, house and car keys, and
cellphone were missing from their usual place in the kitchen.
At the same time, she noticed that her husband's computer
and her daughter's iPad were gone. She noticed the
kitchen door had been unlocked as a result of her husband
having gone outside to his car.
Kaynor accompanied her husband to the hospital where doctors
told her he likely would not live through the night because
of the gunshot wounds. In the days following the shooting,
her husband was in and out of a coma and underwent several
surgeries. Mrs. Kaynor kept a diary of things her husband
told her while he was hospitalized. He told her three black
males, who were fifteen or sixteen years old, approached him
and two of the robbers were armed with handguns. One of the
three perpetrators wore a mask and the other two waited for
the third to arrive. Eight days after being shot, Mr. Kaynor
suffered a massive brain hemorrhage, leaving him paralyzed,
unable to speak and brain damaged.
October 4, 2012, the police searched Byron Johnson's 8841
Gervais Street residence and recovered Defendant's
fingerprints in relation to the theft of Derek McArthur's
truck, Ms. Cowan's debit card, and the cell phone stolen
from the Kaynor residence.
Krzemieniecki was recalled by the State to testify about her
investigation of the armed robbery, attempted murder and
aggravated burglary of Mr. Kaynor. Her investigation began
with reviewing the initial report of the incident and
speaking with Mrs. Kaynor. Detective Krzemieniecki learned
that Mrs. Kaynor's purse, cell phone, wallet, vehicle
keys, laptop, iPad and camera were stolen from the Kaynor
residence the night Mr. Kaynor was shot.
October 4, 2012, Detective Krzemieniecki discovered that the
armed robberies of Mr. Kaynor and Ms. Cowan were related when
she was notified the police were executing a search warrant
at Byron Johnson's residence in New Orleans East.
Detective Krzemieniecki participated in the search, during
which officers located an identification and credit cards
belonging to Ms. Cowan and a digital camera and a laptop
computer taken from the Kaynor residence.
October 5, 2012, Detective Krzemieniecki returned to canvas
the area around Byron Johnson's residence. Within a few
blocks, Detective Krzemieniecki found insurance paperwork on
the Cadillac and Mercedes-Benz vehicles belonging to Mr.
Kaynor. Around this same time, Mr. Kaynor's stolen
Cadillac was located pursuant to a call reporting an
abandoned vehicle at an apartment complex at 8019 Trapier
Street. Processing of the vehicle yielded Defendant's
fingerprints. Supported by a Combined DNA Index System
("CODIS") hit on the black and white bandana
recovered from the Kaynor crime scene, Detective
Krzemieniecki obtained search warrants for DNA samples from
Defendant and Byron Johnson. Testing identified the presence
of DNA from both Defendant and Byron Johnson on the bandana.
October 6, 2012, police recovered Mr. Kaynor's stolen
Cadillac. Sergeant Troy Dickerson of the NOPD Forensic
Investigative Unit processed the vehicle for fingerprints and
DNA evidence by swabbing the vehicle. Sgt. Dickerson lifted
finger and palm prints, which were examined by Officer Joseph
Pollard and compared with Defendant's prints. Officer
Pollard's examination of the palm print lifted from the
driver's side interior door handle indicated a match to
State Police Crime Lab Forensic DNA Analyst Rhalie Austin
examined the DNA sample lifted from the black and white
bandana recovered from the Kaynor residence. Ms. Austin
compared the DNA sample from the bandana to Defendant's
DNA and the DNA belonging to Byron Johnson. She concluded
that neither Defendant nor Byron Johnson could be excluded as
contributors of the DNA found on the bandana. Ms. Austin
further testified that the odds of finding the same DNA
profile of a random individual other than Defendant or Byron
Johnson on that bandana were one in 1.77 million.
firearms identification expert Meredith Acosta tested two
spent shell casings related to the Kaynor investigation. Ms.
Acosta's analysis determined the shell casings were .9
millimeter caliber and were fired by the same weapon.
October 19, 2012, Detective Bronson Gettridge responded to a
report of a shooting in the 7800 block of Burke Avenue in New
Orleans East. When he arrived on the scene, Detective
Gettridge observed a small car parked in the middle of the
street. The driver's side window was shattered and both
front doors were open. A non-responsive male victim,
identified as Valon May, was in the front seat of the car
with an apparent gunshot wound to the right side of the head.
pieces of evidence were recovered from the scene. Three or
four bullet casings, which were found inside the vehicle,
were submitted for ballistics testing. Crime technicians
located an open wallet and baseball hat on the floor of the
driver's side of the vehicle. The hat was submitted to
the State Police Crime Lab for DNA testing, which revealed
the presence of Devante Billy's DNA. The NOPD crime lab
lifted five or six fingerprints from the victim's car
which matched those of Defendant.
Williams testified that she and Mr. May were friends and that
on the day he died, he gave her a ride to a friend's
house. As Mr. May drove, he received a call from
"Yanny," asking him to meet her on Burke Avenue.
Ms. Williams told him she feared for his safety and asked him
not to meet Yanny. Detective Darryl Doucette was assigned to
investigate the victim's murder, and Ms. Williams met
with Detective Doucette the day after the victim was killed.
She told Detective Doucette that Yanny called Mr. May while
she was with him.
May's cellphone records indicated he did, in fact,
receive phone calls approximately thirty minutes prior to the
shooting from two individuals, Aalilyah Cobb and Marvielle
"Yanny" Smith. However, both denied having any
knowledge of the shooting, and denied making any phone calls.
Detective Doucette reviewed Ms. Smith's social media
postings, and learned that Devante "Tae Banga"
Billy and Defendant, Charles "Chuck" Carter, were
two of her associates. Upon uncovering the foregoing
information, Detective Doucette once again interviewed Ms.
Smith and Ms. Cobb, both of whom implicated "Tae"
and "Chuck" in the murder and armed robbery of Mr.
May. Ms. Smith identified Defendant from a confirmation photo
presented by Detective Doucette. Ms. Cobb told Detective
Doucette that she saw Devante Billy fleeing the scene armed
with a gun, and Defendant running from the victim's car
carrying a GPS device. Detective Doucette verified the
information supplied by Ms. Cobb through the recordings of
Defendant's jailhouse calls, which implicated Devante
Billy as the person who shot Mr. May and Defendant as the man
who robbed him at gunpoint. During a third interview with
Detective Doucette, Ms. Cobb and Ms. Smith viewed six-person
lineups from which each identified Devante "Tae
Banga" Billy as the shooter. Further, Ms. Cobb and Ms.
Smith indicated that at the time of the shooting, Defendant
was wearing an Oakland Raiders vest, black jeans and black
and white Adidas tennis shoes.
Doucette obtained an arrest warrant for Defendant and a
warrant to search his residence. The search produced clothing
as described by Ms. Cobb and Ms. Smith, a non-operational GPS
device, consistent with the type stolen from the victim's
vehicle, and one bullet which matched the type of ammunition
used to shoot Mr. May.
Defendant's arrest, he gave a statement to Detective
Doucette in which he admitted to having been present when Mr.
May was shot. He explained that just prior to the shooting,
he was talking to Mr. May about a marijuana purchase. He also
stated that a female, unknown to him, was seated in the front
passenger seat of the victim's car. As Mr. May spoke to
Defendant, an individual named "Don Tavis" shot and
robbed the victim. Detective Doucette testified that he was
not able to locate anyone by the name of "Don
Tavis," nor was there any evidence of anyone by that
name linked to this case.
Smith testified that she was a friend of Mr. May and
witnessed the shooting. Initially, she did not tell the
police everything she knew because she feared retaliation
from Devante "Tae Banga" Billy. She knew Defendant
was one of "Tae's" friends.
Smith stated that she had known Mr. May for about two months
prior to the murder. He would often drive her to wherever she
wanted to go. On the night of the shooting, she met her
friend, Ms. Cobb, in Algiers. They rode the bus to New
Orleans East and met "Tae" and his friend,
"Chuck" sometime between 6:00 and 7:00 p.m. and
went to the baseball park. From there, she, Ms. Cobb,
"Tae," "Chuck," "Ki Ki" and
"Trey" walked to "Chuck's" house. Ms.
Smith noticed that "Chuck" was carrying a gun in
his pants. At some point in the evening, Ms. Smith called Mr.
May, who was with Ms. Williams at the time, and asked him to
drive her and Ms. Cobb to a party. When Mr. May arrived at
"Chuck's" residence, he was alone. At the same
time he arrived, Ms. Smith received a call from her boyfriend
"Joker," who was incarcerated. She handed her phone
to Ms. Cobb to talk to "Joker" because she did not
want "Joker" to know she was with "Tae."
Ms. Smith got into the front passenger seat of Mr. May's
car, Ms. Cobb stood near the rear of the car, and
"Chuck" walked to the driver's side door,
pointed a gun at Mr. May and demanded money. Mr. May gave
Defendant his wallet. As that happened, "Tae" got
into the front seat and removed the GPS device from the car.
He then walked to the back of the car and sat in the back
seat. "Tae" asked Mr. May about money again, and
Mr. May responded he had none. Defendant handed
"Tae" the gun and told him to shoot Mr. May.
"Tae" shot him in the back of the head while Ms.
Cobb was standing at the rear of the victim's car
speaking to "Joker" on a cell phone. Defendant
grabbed Mr. May's cellphone. "Tae" handed the
GPS device to Defendant, and they fled on foot.
"Tae" brought the gun to a friend's house, and
Defendant threw the GPS device over a fence. Because Ms.
Smith and Ms. Cobb had witnessed the murder, "Tae"
and Defendant refused to allow them to go home. The four
proceeded to a party, and "Tae" told Ms. Smith that
if the police spoke to her tell them Defendant had shot Mr.
cross-examination, Ms. Smith admitted having a romantic
relationship with "Tae" after the murder, but she
explained she continued to see him because she feared he
would kill her if he could not maintain some control over
her. To further intimidate her, "Tae" told her that
his brother killed a girl who was supposed to testify against
Cobb testified that she knew Mr. May for about one year prior
to his death. She witnessed his murder on Burke Avenue. She
stated that she saw two suspects, one with a gun and the
other carrying a GPS device, fleeing the scene after the
shooting. Ms. Cobb spoke to the police a number of times, and
at first, she did not tell the police about the murder. She
denied being at the scene and denied knowing who committed
the crime, but stated she did so out of fear for her safety.
During another interview with Detective Doucette in her
mother's presence, she told the detective she indeed
witnessed the events as described above.
recalled that, on October 19, 2012, she and Ms. Smith met
"Tae" and "Chuck" for the first time that
evening. They all went to a baseball game and then to
"Chuck's" house in New Orleans East. She and
Ms. Smith intended to go to a party, but when it got late,
Ms. Smith called Mr. May asking for a ride home. The victim
met them on Burke Street, but before he arrived, Ms. Smith
received a call from her boyfriend, "Joker." She
took the call because Ms. Smith did not want
"Joker" to know she was out with other boys. Mr.
May drove up while she was speaking with "Joker,"
and Ms. Smith handed the phone to her. Ms. Smith approached
the front passenger door, while "Chuck" approached
the driver's side of the car. Someone got into the back
seat, but she did not see who it was. She heard gunshots as
she was speaking to "Joker," and saw
"Chuck" and "Tae" running from the car.
"Tae" had a gun in his hand and "Chuck"
was carrying the victim's cellphone and a GPS device.
Crime Technician Shelita Hayes Benjamin photographed and
processed the shooting scene for evidence. She retrieved an
orange and black Mets cap, a black wallet containing a
license and bank cards, and various business cards. She also
recovered six latent fingerprints from the exterior of the
driver's side door of the vehicle, four spent cartridge
casings from the driver's seat and a receipt.
October 2012, Sergeant Marc Boudreau was a firearms examiner
with the NOPD Crime Lab. He determined that the four bullet
casings retrieved at the shooting scene were fired by the
same weapon, a .38 caliber semi-automatic handgun.
Pollard testified he examined the fingerprints lifted in this
case and confirmed that the print lifted from the
driver's door matched that of Defendant.
Huey testified that he worked at the Orleans Parish
Sheriff's Department and was the custodian of records of
inmate telephone calls. He stated that the phone calls of the
inmates are recorded on an internet-based system and stored
on a secured database. Mr. Huey testified that when an inmate
makes a call, the inmate must use a pin/folder number that
was issued to the inmate at the time of booking. One of Mr.
Huey's duties is to provide law enforcement agencies with
copies of an inmate's jailhouse telephone calls. Mr. Huey
explained that when an inmate makes a call from the Orleans
Parish Prison, the inmate is issued a warning that the call
will be monitored and recorded. Mr. Huey also noted that a
call detail sheet, which lists the specifics of an inmate
call, such as the name of the caller, time, duration, number
called, etc., accompanied the recording of jailhouse calls.
Pursuant to the State's request, Huey supplied a disc
containing two calls Defendant made while incarcerated in
September and November 2015. The State played the recordings
for the jury. In the first call, Defendant spoke to an
unidentified male and learned that "Wink,"
apparently Byron Johnson, accepted a forty-five-year plea
deal. Defendant told the unidentified male he was going to
try to get a plea deal for "all" of the crimes. In
the second call, Defendant is heard telling a female that he
wants to take twenty years for "everything," but
that the District Attorney would not agree to it.
review for errors patent on the face of the record reveals
of Error No. 3
first address Appellant's third assignment of error,
which challenges the sufficiency of the evidence against him.
We do this because "[w]hen issues are raised on appeal
as to the sufficiency of the evidence and as to one or more
trial errors, we [the reviewing court] first determine the
sufficiency of the evidence." State v. George,
2015-1189, p. 9 (La.App. 4 Cir. 11/9/16), 204 So.3d 704, 711
(quoting State v. Marcantel, 2000-1629, p. 8 (La.
4/3/02), 815 So.2d 50, 55). Such review is governed by the
standard enunciated in Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781 (1979). In State v.
White, 2014-0397, p. 16 (La.App. 4 Cir. 7/29/15), 174
So.3d 177, 188, this Court recently reiterated the applicable
standard of review for sufficiency of evidence claims:
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, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); State v. Green,588 So.2d 757,
758 (La.App. 4th 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, 1311 (La.1988). The reviewing court must consider the
record as a whole since that is what a rational trier of fact
would do. 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 factfinder's discretion will be impinged
upon only to the extent necessary to guarantee the
fundamental protection of due ...