APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 13-1904, DIVISION
"J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr. Terry M. Boudreaux Anne M. Wallis Rachel L.
Africk Seth W. Shute
COUNSEL FOR DEFENDANT/APPELLANT, ERNEST L. PAYNE, JR. Bruce
composed of Judges Jude G. Gravois, Marc E. Johnson, and John
J. Molaison, Jr.
E. JOHNSON JUDGE
appeals his convictions and sentences for two counts of
manslaughter from the 24th Judicial District
Court, Division "J". For the following reasons,
Defendant's convictions and sentences are affirmed.
AND PROCEDURAL HISTORY
April 11, 2013, a Jefferson Parish Grand Jury indicted
Defendant, Ernest L. Payne, Jr., and co-defendant, Jordan T.
Hicks,  with two counts of second degree murder,
violations of La. R.S. 14:30.1. Defendant pleaded not guilty to
the charged offenses at his arraignment on May 29, 2013.
Following numerous continuances, trial commenced before a
12-person jury as to both Defendant and co-defendant Hicks on
May 16, 2017.
the witnesses who testified at trial, Deputy Christopher
Lewis of the Jefferson Parish Sheriff's Office stated
that, on August 12, 2012, he was patrolling the area
surrounding LaPalco Boulevard and Betty Street in Marrero, as
a block party was occurring that evening. At some point that
evening, he became aware of a shooting in the area that
occurred near the intersection of Julie Street and Second
Zion Avenue. As he approached the intersection, Deputy Lewis
observed a car riddled with bullet holes with two subjects
inside. Deputy Lewis found two black males in the vehicle,
both suffering from apparent gunshot wounds. The male in the
passenger's seat appeared to be deceased, but the male in
the driver's seat was still semi-conscious. He observed
that the driver was armed with an "AK-47,
"and the passenger was armed with a Glock
pistol, with his finger still on the trigger. Deputy Lewis
removed the firearms from the vehicle and secured the scene.
He then called for back-up to assist him and also called EMS.
The passenger of the vehicle, later identified as Delanta
McCall,  was declared dead on the scene; however,
the driver of the vehicle, later identified as Martin Harry,
transported to the hospital but was later declared
deceased. Deputy Lewis was advised by a witness that
a white pick-up truck had sped away from the scene moments
before he had arrived.
Carter testified that she was living at 1634 Julie Street on
August 12, 2012. On that evening, she was sitting outside on
the front porch, with three of her friends, Conekia Phillips,
Kevineka Clay, and Carrie Cosgrove, and their children, when
the shooting occurred. Prior to the shooting, Ms. Carter had
walked to her vehicle parked on the street to retrieve a
diaper. As she was walking back to her porch, a man who had
arrived in a white truck  approached her on foot and attempted to
speak with her, but she did not pay much attention to him.
She also witnessed two vehicles pull up near the stop sign on
the corner by her home. Ms. Carter heard the people in the
two vehicles exchange words with the others on the porch. She
recounted that as she was walking back to the porch, she
heard gunshots. Ms. Carter testified that the man who
approached her was the driver of the white truck.
month after the shooting, Sergeant Travis Eserman, a
detective with the Jefferson Parish Sheriff's Office,
spoke with Ms. Carter about identifying the man who
approached her. She was shown a photographic lineup but was
unable to identify any one person with certainty. She did,
however, narrow the field to either one of two subjects, one
of which was Defendant.
Williams, a cousin of the victims, testified that he was with
them on the day of the shooting, August 12, 2012. He
explained he was in the backseat of the victims' car,
Jacobee Goff-a friend of the victims-was in the car in front
of them, and that they were just driving around. He testified
that at the stop sign located at the intersection of Second
Zion and Julie, Mr. Goff had rolled down his window, and
"asked for Lil Kevin" to a group of women sitting
on a porch. Mr. Williams described that after that, he heard
gunshots. He stated that Mr. Harry tried to drive away but
Mr. Goff's car was blocking them. Mr. Williams testified
that he saw someone approaching the driver's side of the
car and shooting at the car on an angle from the driver's
side. He testified that he also saw Defendant standing next
to his white truck, with others shooting from the back of the
truck. Mr. Williams indicated that he was ducking in the
backseat to avoid gunfire, but then exited the vehicle and
ran toward his aunt's house on the next street. Later,
when he spoke with detectives, Mr. Williams identified
co-defendant Hicks in a photographic lineup as someone he
recognized at the scene, "[r]unning around
the…driver's side of the vehicle." He also
identified Defendant as someone he saw on the scene near the
conclusion of the trial, on May 19, 2017, Defendant was found
guilty of the responsive verdicts of manslaughter on each of
the two counts. On June 6, 2017, the State filed a
habitual offender bill of information on count one, alleging
Defendant to be a second felony offender.
7, 2017, Defendant filed a motion for new trial and motion
for post-verdict judgment of acquittal, which were denied
that day in open court. After delays were waived, the trial
court sentenced Defendant to 40 years imprisonment with the
Department of Corrections on each count to run concurrently with
hearing on the habitual offender bill of information was held
on August 21, 2017. After finding Defendant to be a second
felony offender, the trial court vacated its previously
imposed sentence on count one and resentenced Defendant,
pursuant to La. R.S. 15:529.1, to 70 years with the
Department of Corrections without the benefit of probation or
suspension of sentence, to run concurrently with his sentence
on count two.
August 23, 2017, Defendant filed a motion to reconsider
sentence and a motion for appeal. The trial court denied the
motion to reconsider sentence and granted Defendant's
motion for appeal on August 28, 2017. The instant appeal
appeal, Defendant alleges the trial court erred by admitting
the statement of an unidentified out-of-court deponent into
evidence over the objections of defense counsel.
sole assignment of error, Defendant argues that the 9-1-1
call contained objectionable hearsay. He contends that an
out-of-court statement made within the call was made in
response to police dispatcher interrogation regarding the
identity of the alleged perpetrator after the incident had
concluded; as such, it is testimonial and should not have
been admitted into evidence. He avers that its introduction
into evidence over objection at trial was contrary to his
Sixth Amendment right to confrontation and Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004), and was not harmless error. Defendant further argues
that even if the admission of the 9-1-1 call did not violate
the Confrontation Clause, the calls were still inadmissible
under the hearsay rules, specifically La. C.E. art. 801(C).
He argues that the call was inadmissible hearsay and should
not have been admitted into evidence under the excited
utterance exception under La. C.E. art. 803(2).
State responds that Defendant complains in part that the
introduced 9-1-1 calls-three total-constituted inadmissible
hearsay; however, the State points out that when the calls
were admitted into evidence at trial, defense counsel only
objected based on "the Crawford case" and made no
objection regarding a violation of hearsay rules. As a
result, the trial court only ruled upon whether the 9-1-1
calls violated the Confrontation Clause, not whether they
violated the Code of Evidence rules. As such, the State
contends that any claim made on appeal that the calls were
inadmissible hearsay is waived.
State continues to argue that under the circumstances of the
instant case, the statements made in the 9-1-1 calls were
nontestimonial in nature because the circumstances
objectively indicated that they were given to assist police
officers in responding to an ongoing emergency. The State
maintains that the questions posed by the 9-1-1 operator were
necessary to evaluate the situation, locate potential
perpetrators, and dispatch the required assistance. The State
avers that, because the primary purpose of the callers'
statements and the questioning by the 9-1-1 operator was to
address and resolve an ongoing emergency, Defendant's
constitutional rights under the Confrontation Clause were not
violated. Nevertheless, the State concludes that even if the
calls were improperly admitted, claims of error under the
Confrontation Clause are subject to a harmless error
analysis. The State notes that Defendant was concerned about
the 9-1-1 caller stating a "white truck" had just