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State v. Hicks

Court of Appeals of Louisiana, Fifth Circuit

October 17, 2018

STATE OF LOUISIANA
v.
KEVIN HICKS

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 13-5472, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Darren A. Allemand

          COUNSEL FOR DEFENDANT/APPELLANT, KEVIN HICKS Bruce G. Whittaker

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson

          SUSAN M. CHEHARDY CHIEF JUDGE

         On appeal, defendant challenges the trial court's denial of his motion to sever his trial from that of his co-defendants and the trial court's denial of his motion for mistrial. For the following reasons, we affirm.

         Procedural History

         On January 23, 2014, a Jefferson Parish Grand Jury indicted defendant, Kevin Hicks, with the second degree murder of Deshon Evans, in violation of La. R.S. 14:30.1 (count one), and the attempted second degree murder of Jonquell Neal, in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count two). Further, in that same indictment, the grand jury indicted Kevin Hicks for the attempted second degree murder of a known juvenile (hereinafter "J.") and the attempted second degree murder of his mother, J.A., in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (counts three and four respectively).[1]

         On May 22, 2017, trial commenced before a twelve-person jury.[2] After a six-day trial, the jury found defendant guilty as charged for the second degree murder of Deshon Evans and the attempted second degree murder of Jonquell Neal, but acquitted defendant on the remaining charges of attempted second degree murder of J. and J.A. On June 26, 2017, the trial judge sentenced defendant for second degree murder to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, and, for attempted second degree murder, to imprisonment at hard labor for fifty years without benefit of parole, probation, or suspension of sentence, to run concurrently. Thereafter, defendant filed a timely notice of appeal, which was granted.

         Facts

         In this case, Kevin Hicks, defendant-herein, and his brothers, Kevias Hicks and Kedrick Anderson, were indicted on two counts of attempted second degree murder for their involvement in a shooting incident that occurred on July 13, 2013, at 2800 Mount Kennedy. In that same indictment, defendant-herein, Kevias, and Tommie Molette were charged with second degree murder and attempted second degree murder for their involvement in a subsequent shooting incident that occurred on October 8, 2013, at 5923 Becker Street.

         For clarity and completeness in addressing defendant's assignments of error, this opinion includes all of the germane testimony elicited at trial regarding five shooting incidents connected by ballistics and/or testimony to two groups of people. The first incident occurred on June 22, 2013, when A.P. was fired on while driving his girlfriend, J.A.'s, vehicle. Testimony reflected that A.P. was targeted because he had been deemed a "rat."[3] Ballistics were not recovered from that event.

         The second incident occurred on July 13, 2013, at approximately 9:45 p.m. at the Ridgefield Apartments on Mount Kennedy Drive in Marrero. During the Mount Kennedy incident, J., the two-year-old son of A.P. and J.A., was shot in the chest. J.A., the child's mother, testified that, "Kevias [Hicks'] face was the face in the front that I saw" shooting at her son and her that night. J.A. also saw Kedrick Anderson with a "big gun" that night. J.A. stated that she did not see Kevin Hicks that night.[4] Ballistics matched spent 9-mm shell casings recovered from the Mount Kennedy scene to two later shootings: the Bridge shooting and the Becker Street shooting.[5]

         The third incident was a shooting that occurred on the Crescent City Connection on July 16, 2013. During that incident, Kevias Hicks was shot by someone riding in a nearby vehicle. Neither Kevias nor Kedrick Anderson, who was also in the car, would identify the assailant. However, J.A. testified that, at some point, A.P. told her that he and Kevias were shooting at each other on the "bridge." A spent 9-mm shell casing found inside the Hicks' vehicle matched the ballistics of casings found at the Mount Kennedy and Becker Street shootings.

         In the fourth incident, which occurred on August 12, 2013, at the Beechgrove Apartments in Westwego, Aubrieon Davis, who is the mother of Kedrick Anderson's son, was fired upon by A.P. while she was driving. Subsequently, A.P. pled guilty to aggravated assault with a firearm on Aubrieon Davis for that incident. Ballistics from the .40 caliber casing recovered at Beechgrove matched a casing found in the roadway after the Bridge shooting on July 16, 2013.

         Finally, the fifth shooting event occurred on October 8, 2013, at 5923 Becker Street in Marrero. The surviving victim, Jonquell Neal, testified that he and his friend, Deshon Evans, were recording rap music in a studio at Deshon's house, when they heard a knock at the front door. Evans opened the door to Kevias Hicks, Tommie Molette, and defendant-herein. Neal remembered that when Kevias came to the door, he said something about running from another shooting where a child had been shot. After the men talked for a little while, they decided to record a song in Deshon's studio.

         After they had been rapping and recording for a while in the studio, Neal heard Kevias say that he was a "god" and that "your life is in my hands." Neal was concerned but continued writing his song. When he heard a loud sound, Neal thought it was the music at first. But when Neal looked up, Evans' blood was all over him, and Evans was dead. Neal saw Kevias, Molette, and defendant-herein shooting in Evans' direction.

         Neal testified that, after he was shot, he picked up Evans' firearm from the floor, and put it in his lap. When defendant-herein tried to shoot him, Neal raised Evans' weapon, "let off a shot," and defendant-herein left. Neal stated that more than twenty-five or thirty shots were fired.

         That night, Neal received four gunshot wounds in his shoulder, thigh, and "feet." Immediately after the shooting, Neal positively identified Kevias, Molette, and defendant-herein as the shooters from photographic lineups. Neal further reported in his statement at the hospital to Sergeant Gary Barteet of the Jefferson Parish Sheriff's Office ("JPSO") that Kevias was shooting a 9-mm Smith and Wesson, that defendant-herein was using a 9-mm Beretta, and that Molette was using a .40 caliber Colt. At trial, Neal testified that he was "100% sure" that Kevias, Molette, and defendant-herein were the individuals who shot Evans and him that night.

         Dr. Susan Garcia of the Jefferson Parish Forensic Center, who was accepted as an expert in the field of forensic pathology, conducted the autopsy on Deshon Evans. She explained that Deshon Evans' cause of death was multiple gunshot wounds, [6] including a lethal wound to the head, and that his manner of death was homicide.

         Special Agent William Charles Williams of the FBI was accepted as an expert in the field of historical cell site analysis. Agent Williams analyzed historical records for two phone numbers - one associated with defendant-herein and one associated with Molette - for the early morning hours of October 8, 2013. According to Agent Williams, both phones utilized the cellular phone tower nearest to 5932 Becker Street numerous times between 1:04 a.m. and 1:41 a.m. Williams testified that further data was consistent with both phones leaving the area around Becker, traveling along the Westbank Expressway, over the Mississippi River via the Crescent City Connection, and traveling north to the New Orleans East area. Williams testified that both phones were utilizing the nearest tower to 7840 Mills Avenue in New Orleans East between 2:52 a.m. and 2:54 a.m. The Mills Avenue address in New Orleans is associated with defendant's mother.

         In order to connect the incidents, the State presented evidence regarding spent cartridge casings recovered at the scenes of the Mount Kennedy, the Beechgrove, the Bridge, and the Becker Street shootings. JPSO Deputy Jené Rauch, who is the supervisor of the firearms and tool mark section for the JPSO Crime Lab, was accepted as an expert in the field of firearm and tool mark examination.

         Deputy Rauch testified that, after the July 13, 2013 Mount Kennedy shooting, fourteen casings that were fired "in the same" 9-mm weapon were recovered. Further, 2 casings were recovered that had been fired from a second 9- mm firearm. Also, eight 7.62 by 39-mm caliber casings were recovered that were all fired "in the same weapon." Finally, one .45 caliber casing was found on the scene.

         Deputy Rauch testified that, after the July 16, 2013 shooting on the Westbank Expressway, two casings were recovered: a 9-mm casing recovered from inside of the Hicks' vehicle and a .40 caliber casing recovered from the roadway of the Expressway. Ballistics revealed that the .40 caliber casing at Beechgrove was fired from the same .40 caliber pistol used during the shooting on the Westbank Expressway that injured Kevias Hicks.

         Deputy Rauch further testified that, after the Becker Street shooting in October 2013, eight 9-mm casings were recovered that had been fired from the same 9-mm pistol. Next, four 9-mm casings were recovered that had been fired from a second 9-mm pistol. Also, thirteen casings fired from a .40 caliber pistol were recovered. Finally, a .45 caliber Taurus pistol was recovered from the scene but ballistics confirmed that it was damaged by a bullet during the shooting, which prevented it from firing that night.

         Deputy Rauch testified that the ballistics database used by law enforcement connected one 9-mm firearm to the shootings at Mount Kennedy on July 13, 2013; on the Crescent City Connection Bridge on July 16, 2013; on Becker Street on October 8, 2013; and at the scene of a homicide at I-10 and Clearview Parkway on December 30, 2013. At Mount Kennedy, fourteen 9-mm rounds were shot from this weapon. After the Bridge shooting, one expended 9-mm casing from this weapon was found on the floor of the interior of the vehicle driven by the Hicks brothers that night. At Becker Street, eight 9-mm rounds were shot from this weapon. Finally, three casings fired from this weapon were found at the Clearview/I-10 homicide but further investigation revealed that the December homicide was not linked to the instant crimes.[7]

         JPSO Deputy Chief Timothy Scanlan, who is the Commander of the Technical Services Bureau, was accepted as an expert in the fields of firearms and tool mark examination, blood stain pattern analysis, and crime scene reconstruction. Deputy Chief Scanlan investigated the Mount Kennedy and Becker Street crime scenes and formulated conclusions. Deputy Chief Scanlan asserted that Jonquell Neal's testimony was consistent with the cartridge case distribution and the angles of fire at the Becker Street crime scene. He also asserted that after reviewing reports of the Mount Kennedy scene, what he found there was consistent with the description of events provided by J.A.

         After hearing the testimony and evidence, the twelve-person jury found defendant-herein guilty of the second degree murder of Deshon Evans and the attempted second degree murder of Jonquell Neal, but not guilty of the attempted second degree murder of J. and J.A. Defendant-herein appeals his convictions.

         Discussion

         On appeal, defendant raises three[8] assignments of error: first, the trial court erred in denying his motion to sever counts; second, the trial court erred in denying his motion to sever defendants; and third, the trial court erred in denying the motion for mistrial after the witness' reference to defendant's exercise of his post-arrest right to remain silent.

         Motion to Sever Counts/Offenses

         Defendant argues that the trial judge erred by denying the Motion to Sever Counts because the crimes were different since the Becker Street shootings involved violence between adult males, but the Mount Kennedy shootings involved violence directed at a woman and child. Defendant, who concedes that he was acquitted of the Mount Kennedy shootings, argues that the evidence surrounding that shooting was extremely prejudicial, and, therefore, should have been severed in the interest of justice.

         The State responds that the offenses were properly joined under La. C.Cr.P. art. 493, in that they were of the same or similar character given that they were all shootings. The State also notes that the offenses were linked because the defendants obtained access to the Becker Street residence by claiming to be on the run from the Mount Kennedy shooting and ballistics links one of the 9-mm guns used at Becker Street to the Mount Kennedy shootings. The State further points out that defendant has not met his "heavy burden" of showing prejudice, as his acquittal of the Mount Kennedy shootings indicates that the jury was able to set aside its emotions and evaluate each offense on its own merits. Finally, the State asserts that evidence of the Mount Kennedy shootings and other incidents related to the "beef" between A.P. and the Hicks brothers completes the events leading to the Becker Street shootings and would have been admissible at the trial of both crimes.

         In his pre-trial Motion to Sever the Counts, defendant argued that the defendants[9] and the counts should be severed because a large amount of "very convoluted" evidence, which applied to some defendants but not all of them, would be very difficult for a jury to understand.

         At the hearing, the trial judge stated that he was not confused with regard to the charges in the indictment, and he did not see how a jury would be confused. He also stated that there were two separate and distinct dates, July 13, 2013 and October 8, 2013, for the ...


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