APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 09-3638, DIVISION
"A" HONORABLE RAYMOND S. STEIB, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr., Terry M. Boudreaux, Andrea F. Long, Seth W.
Shute, Emily E. Booth.
COUNSEL FOR DEFENDANT/APPELLANT, DWAYNE WILLIAMS Sherry A.
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Hans J. Liljeberg.
M. CHEHARDY CHIEF JUDGE.
Dwayne Williams, appeals his conviction and sentence for
second degree murder. For the reasons that follow, we affirm
defendant's conviction and sentence and remand the matter
for correction of the State of Louisiana Uniform Commitment
AND PROCEDURAL HISTORY
Howard was shot in the carport outside of his home on the
evening of April 16, 2009 and died three weeks later on May
10, 2009. His cause of death was a gunshot wound to the neck
that transected his spinal cord.
night of the shooting, the victim's father, Robert
England, was inside when he heard five gunshots. He ran
outside to find his son lying on the ground with a gunshot
wound to his neck. He was still conscious and stated that he
did not know who shot him.
Ted Raymond of the Jefferson Parish Sheriff's Office
("JPSO") arrived on the scene around 7:50 p.m. The
victim was still conscious and advised the officer that he
did not know who shot him. After paramedics had transported
the victim to the hospital, Detective Jeffrey Rodrigue
arrived on the scene and began trying to locate witnesses.
the victim succumbed to his injuries on May 10, Detective
Rodrigue spoke with Adrian "Stank" Haynes and
Dagenera Molison. Mr. Haynes later testified at trial that he
was close friends with the victim and lived around the corner
from him in the Lincolnshire subdivision of Marrero. On April
16, 2009, Mr. Haynes, the victim, and their friend, James
Moore, played basketball and headed home around 6:00 p.m.
Soon after Mr. Haynes and the victim made it back to the
victim's house, Mr. Haynes went home to shower and
planned to return so the three friends could shoot pool later
that night. But when Mr. Haynes returned, the victim had been
Molison later testified at trial that she knew both defendant
and the victim and was dating defendant at the time of the
shooting. She testified that she spoke with defendant after
the shooting and he told her that he did not mean to shoot
the victim, but that he intended to shoot James Moore.
on his conversations with Mr. Haynes and Ms. Molison,
Detective Rodrigue spoke with James Moore and Rickell London.
Mr. Moore gave two taped statements. His first statement began at
10:46 p.m. and concluded at 10:55 p.m. on May 13, 2009. Mr.
Moore explained that on the day before the shooting, he had
an altercation with Angelica Williams, defendant's
sister. Then, on the day of the shooting, Mr. Moore, Mr.
Haynes, and the victim played basketball. When they finished,
Mr. Haynes and the victim went back to the victim's house
while Mr. Moore went back to his house. Mr. Moore was walking
back over to the victim's house when he noticed a
champagne-colored Toyota pass by with a driver and one
passenger. When Mr. Moore got to the victim's house, he
sat with the victim in his carport and noticed the same car
pass two or three times with a female driver and male
passenger. He then heard gunshots, saw the victim slumped
over, and ran off. Mr. Moore stated that he did not know who
shot the victim.
Moore's second statement began at 12:33 a.m. and
concluded at 12:36 a.m. on May 14, 2009. In this statement,
he changed his story and stated that he saw defendant shoot
the victim. He then identified defendant from a photographic
trial, Mr. Moore testified that he had a run-in with
defendant's sister the day before the shooting-though Ms.
Williams testified at trial and denied any such run-in. Mr.
Moore explained that on the day of the shooting he, the
victim, and Mr. Haynes had played basketball. Afterwards, he
went home, while Mr. Haynes and the victim went to the
victim's house. Mr. Moore was walking over to meet them
when he observed a vehicle with defendant in the passenger
seat and a female in the driver seat. Soon after he met up
with his friends, Mr. Haynes left to shower, leaving Mr.
Moore and the victim sitting in the carport in front of the
victim's garage. While there, Mr. Moore noticed the
vehicle circle the block and then heard gunshots. He told the
victim he was going home because "something looking
funny." As he started to walk away, he heard six
gunshots at close range and saw defendant discharging a
handgun in the victim's direction. When Mr. Moore noticed
the victim slumped over, he ran home.
Moore also testified about some prior inconsistent
statements. He testified about a letter he wrote while
incarcerated on February 1, 2010 to a "Mr.
Robertson," wherein he asserted that he was "on
lockdown" and that he did not see defendant shoot the
victim. He explained in the letter that he only said he did
in his statement because he was threatened by the detectives.
He also testified about an affidavit he signed on November
30, 2010 while incarcerated. In this affidavit, Mr. Moore
stated that he did not see defendant shoot the victim and
that he only said he did because of threats from the
detectives. He further testified about phone calls he made
from jail between October 2012 and February 2013 to his
grandmother and cousin in which he told them that he did not
see who shot the victim. At trial, he recanted his statements
in the February 1, 2010 letter, the November 30, 2010
affidavit, and the phone calls, and testified that his
testimony at trial was the truth.
London testified at trial that around 7:30 p.m. on April 16,
2009, defendant asked her to give him a ride to Lincolnshire
"to go kill someone." She did not think he was
serious, but she noticed that he had a gun in his waistband.
Ms. London was driving a champagne and burgundy Toyota Camry
and defendant was in the front passenger seat. As they
approached Lincolnshire, defendant remarked to Ms. London,
"Whatever goes on stays." It was then that she
realized defendant's homicidal intent was sincere.
Defendant directed her through the subdivision, and they
circled one block several times. When Ms. London noticed
"three or four boys" in front of a house, defendant
instructed her to park two houses down and to turn off her
headlights. She complied. Defendant exited the vehicle and
pulled the gun from his waistband. Within seconds, Ms.
London, who could not see defendant or the other boys, heard
several gunshots. Defendant soon returned to the car, put the
gun back in his waistband, and told her to "drive off
fast." Ms. London testified that she was offered a plea
agreement to accessory after the fact to second degree murder
in exchange for her testimony.
London also testified about prior inconsistent statements she
had made. She explained that while incarcerated on a charge
of principal to second degree murder, she made several phone
calls to her friends and family, in which she stated that she
did not know anything about the shooting. She acknowledged
statements she made to an assistant district attorney in
which she said she had nothing to do with the shooting. Ms.
London further testified about her statements she gave to
Detective Rodrigue in the days after the victim's death.
She explained that she lied in her first statement when she
said that she did not drive defendant on the day of the
shooting. Ms. London recanted her prior inconsistent
statements and testified that her testimony at trial was the
Rodrigue obtained an arrest warrant for defendant based on
his conversations with Mr. Moore and Ms. London. And on July
16, 2009, a Jefferson Parish Grand Jury returned an
indictment charging defendant with the second degree murder
of Robert Howard. Defendant entered a plea of not guilty.
matter proceeded to a trial by jury on March 11, 2013. On
March 14, 2013, ten of the twelve jurors returned a verdict
of guilty as charged. On April 23, 2013, defendant moved for
a new trial, which the court heard and denied on February 18,
2014. Following numerous continuances, defendant was
sentenced on November 13, 2017 to life imprisonment at hard
labor with the benefit of parole. Defense counsel orally moved
for reconsideration of sentence which was denied in open
court. On November 14, 2017, defendant filed a written motion
for reconsideration and a motion for appeal. His appeal was
granted on November 20, 2017.
the record in this appeal was lodged here, on March 14, 2018,
the Clerk of this Court ordered the district court to rule
upon defendant's written motion for reconsideration of
sentence. The district court denied defendant's motion on
March 19, 2018.
appeal, defendant raises four assignments of error:
(1) The State failed to prove defendant guilty of second
degree murder beyond a reasonable doubt and, by the trial
court's ruling and the State's withholding of
evidence, the defendant was denied full cross-examination of
the only witness who purported to identify him.
(2) The district court erred in denying the motion for new
trial based on trial defect of having a juror decide the case
who was not qualified to serve.
(3) The district court erred in denying the motion to declare
La. C.Cr.P. art. 782 unconstitutional and in accepting a
verdict in this case that was not unanimous.
(4) The district court erred in imposing an illegal sentence,
as it violated the ex post facto clause and life imprisonment
with parole was unconstitutionally excessive under the
circumstances of this offense or the offender.
of Error One
submits six arguments in support of his first assignment of
(a) James Moore was the single witness who identified Dwayne
Williams as the shooter. James Moore's purported
identification of Dwayne Williams changed three times and
does not support the conviction;
(b) Defendant was prevented from cross-examination of James
Moore as to his violent history as a juvenile and involvement
in other conflicts, in particular a murder, such that other
persons may have been out to get him, in addition to
reflecting on his credibility and self-interest;
(c) Reasonable hypothesis as to other perpetrators were not
excluded; instead the State prevented the defendant from
developing them. The day of his death, Robert Howard was
hanging out with Stank and James Moore who were known to be
involved in drug sales, as each of them had distribution
arrests after this incident. Moore had attacked someone in
Bridge City and allegedly had killed someone over his
brother's drug death. The families and friends of these
people were likely seeking retribution.
(d) Dwayne Williams was convicted on a vote of 10-2. If only
one more juror was persuaded by the evidence about James
Moore's activities, the Brady violation would
have effected [sic] the verdict and Mr. Williams would not
have been convicted.
(e) Neither Dagenera Molison or Rickell London identified
Dwayne Williams. Neither of them were believable as they had
their own interests, their claims could not be verified, and
London's statements also changed multiple times.
(f) The State offered no corroboration of the identification
by forensic evidence.
opinion addresses these arguments in the following ...