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State v. Payne

Court of Appeals of Louisiana, Fifth Circuit

October 17, 2018

STATE OF LOUISIANA
v.
ERNEST L. PAYNE, JR.

          ON 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 G. Whittaker

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.

          MARC E. JOHNSON JUDGE

         Defendant/Appellant, 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.

         FACTS AND PROCEDURAL HISTORY

         On April 11, 2013, a Jefferson Parish Grand Jury indicted Defendant, Ernest L. Payne, Jr., and co-defendant, Jordan T. Hicks, [1] with two counts of second degree murder, violations of La. R.S. 14:30.1.[2] 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.

         Among 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, "[3]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, [4] was declared dead on the scene; however, the driver of the vehicle, later identified as Martin Harry, [5] was transported to the hospital but was later declared deceased.[6] Deputy Lewis was advised by a witness that a white pick-up truck had sped away from the scene moments before he had arrived.

         Kira 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 [7] 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.

         About a 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.

         Nakia 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 truck.

         At 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.[8] On June 6, 2017, the State filed a habitual offender bill of information on count one, alleging Defendant to be a second felony offender.

         On June 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[9] on each count to run concurrently with one another.

         A 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.

         On 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 followed.

         ASSIGNMENT OF ERROR

         On 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.

         LAW AND ANALYSIS

         In his 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).

         The 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.

         The 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 ...


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