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State v. Carter

Court of Appeals of Louisiana, Fourth Circuit

October 10, 2018


          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 520-023, SECTION "A" Honorable Laurie A. White, Judge.



          Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins.

          Regina Bartholomew-Woods Judge.

         Appellant, 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.


         On 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.

         Detective 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.

         On the 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.

         Christopher 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. Cowan.

         Mrs. 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.

         Detective 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.

         Certified 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.

         On the 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.

         Detective 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.

         On the 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.

         Detective 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.

         Grace 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.

         Mrs. 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.

         On 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.

         Detective 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.

         On 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.

         On 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.

         On 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 Defendant.

         Louisiana 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.

         NOPD 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.

         On 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.

         Multiple 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.

         Tasia 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.

         Mr. 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.

         Detective 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.

         Following 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.

         Ms. 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.

         Ms. 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. May.

         On 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 "Tae."

         Ms. 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.

         She 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.

         NOPD 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.

         In 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.

         Officer 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.

         Jim 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.


         Errors Patent

         A review for errors patent on the face of the record reveals none.

         Assignment of Error No. 3

         We 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 ...

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