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State v. Whitaker

Court of Appeals of Louisiana, Second Circuit

February 27, 2019

STATE OF LOUISIANA Appellee
v.
BREONNE WHITAKER Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 318, 083 Honorable Ramona L. Emanuel, Judge

          LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan Counsel for Appellant

          BREONNE WHITAKER Pro Se

          JANES E. STEWART, SR. District Attorney, TOMMY JAN JOHNSON WILLIAM JACOB EDWARDS Assistant District Attorneys Counsel for Appellee

          Before PITMAN, STONE, and McCALLUM, JJ.

          MCCALLUM, J.

         Breonne Whitaker was convicted of second degree murder for the shooting death of Frederick Henderson. Whitaker, who was 17 years old at the time of the murder, was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. He now appeals that sentence. Because of the mandates of the respective Supreme Courts of the United States and Louisiana and those of the legislature of Louisiana (La. C. Cr. P. art. 878.1), we are required to allow the trial judge an opportunity to conduct a hearing to articulate her reasons for sentencing.

         FACTS

         In the early morning hours of September 11, 2013, Shreveport Police Department officers responded to what they thought was a single-vehicle accident involving a GMC Envoy which had struck a utility pole on Hollywood Avenue in Shreveport. Frederick Henderson, the unrestrained driver, was the lone occupant of the vehicle. Although Henderson was sitting in the driver's seat, his upper body was slumped over into the front passenger area. Henderson, whose basketball shorts were pulled down to his mid-thigh, was not breathing and had no pulse. After paramedics began working on Henderson, they discovered that he had suffered a single gunshot wound.

         When detectives spoke with Henderson's family, they learned that Henderson was gay and that some time ago he had been involved in an altercation with a male on Kent Avenue during which his earring was torn from his ear. Kent, which intersects with Hollywood, was about a block away from where the Envoy hit the utility pole. The detectives later determined that Henderson had been shot near a business at the intersection of Hollywood and Kent.

         A gray purse containing two cell phones was found in the vehicle. Detectives were able to obtain access to the contents of the phones. They noticed several missed calls and that a call from 318-779-1507 came in shortly before the accident was reported. Detectives also noticed that one of the last Facebook messages received by Henderson was from Whitaker. This message, which left the 318-779-1507 number, stated that Whitaker had been trying to call Henderson, but the calls were going straight to voice mail.

         Detectives then went to Whitaker's home on Kent Street where they found Whitaker asleep on a couch. Before the detectives had a chance to explain their presence, Whitaker asked if the police were there about that "punk." Whitaker first told the detectives that his friend Isiah Childs had shot a "punk." After the detectives let Whitaker know that they were aware of the prior altercation with Henderson, he admitted to them that he knew the victim. He also told them that the first time that he encountered Henderson was when he caught him engaging in oral sex with Childs in his backyard. Henderson's earring was snatched during the ensuing scuffle. Whitaker told the detectives that he fired a gun at Henderson because Henderson had been following him and trying to get him into his car, and that he was scared because he had been raped when he was younger.

         Whitaker led the detectives to a gun hidden beneath a blanket in a shed behind a nearby residence. The recovered gun was a Stallard Arms JS 9mm pistol. Whitaker also showed the police where a magazine was located in a garbage can. The magazine contained four 9mm cartridges.

         Whitaker eventually told the detectives that Henderson was going to take him to visit a girl that Henderson knew, but those plans were abandoned because the girl's boyfriend was home. Henderson then drove Whitaker to an area near Mall St. Vincent in Shreveport, where Whitaker allowed Henderson to perform oral sex on him in the vehicle in exchange for $50. Whitaker also agreed to engage in sexual intercourse with Henderson, but was unable to complete the act. Whitaker claimed that when they returned to Kent, Henderson grabbed his shirt as he exited the vehicle. Whitaker then fired one shot at Henderson and ran away. He added that he returned when he heard the Envoy crash into the utility pole before running away again toward his home.

         Whitaker was arrested and subsequently indicted for second degree murder. A jury trial before Judge Ramona Emanuel began in December of 2015. The jury heard testimony from Shreveport Police Department patrol officers, homicide detectives, crime scene investigators, and a DNA analyst regarding their investigation of the murder.

         Dr. James Traylor, a forensic pathologist at LSUHSC-Shreveport, testified that the cause of Henderson's death was blood loss from the gunshot. The bullet entered Henderson's upper right arm and then continued into his chest. The bullet traveled left to right, top to bottom, and slightly from front to back. Dr. Traylor did not find any evidence of blunt force trauma, and any injuries he observed were from the gunshot. A single 9mm bullet was recovered from Henderson.

         Christopher Davis, a forensic scientist at the North Louisiana Crime Lab, testified that a bullet test-fired from the recovered gun had the same class characteristics as the bullet recovered from Henderson. He could not conclude that the recovered bullet was fired from that specific gun because it did not make sufficient individual markings on a fired bullet in order for him to do further comparison. Nonetheless, he could not exclude the gun as having fired the bullet that was found.

         As noted earlier, Whitaker originally told detectives that his friend Isiah Childs had shot Henderson. Childs happened to be in a youth challenge program in Minden at the time of the shooting. Childs testified about what happened on the date that Whitaker tore the earring out of Henderson's ear. Childs explained that he was at Whitaker's house when they took several photos of Whitaker and texted them to various numbers using Childs's phone. A "Frederica" replied, and Whitaker told Childs that "Frederica" was coming to the house to meet him. When "Frederica" arrived, Childs thought that "Frederica" was, in fact, a man. Childs left momentarily. Upon returning, he saw "Frederica" run next door while screaming for help. Childs thought the incident was humorous because Whitaker had been "played." Childs denied ever having sex with another male at Whitaker's home.

         Crystal Feaster, who has a child with Whitaker, testified that she knew Henderson from a party they had attended and that he often dressed as a woman. She recalled one occasion when Henderson drove past as she and Whitaker were walking down her street. Whitaker asked her if she knew Henderson, and then he said that he will "get some money from the faggot." This happened about a month before Henderson was killed.

         Pamela Horton testified that Henderson was her only son. He was 23 years old when he was murdered. Horton stated that Henderson helped care for a sister who has cerebral palsy as well as for an elderly great-aunt.

         On December 10, 2015, Whitaker was convicted of second degree murder. The verdict was unanimous. On December 30, Judge Emanuel, without additional comment, sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

         Post-trial proceedings

         On December 18, 2015, Whitaker filed a motion for post-verdict judgment of acquittal.

         On January 25, 2016, Whitaker filed a motion to reconsider and vacate what he alleged was an unconstitutionally excessive sentence. On April 29, 2016, Whitaker filed a motion to correct his allegedly illegal sentence under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

         On July 25, 2016, Whitaker filed a pro-se motion for new trial. The trial court denied this ...


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