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State v. Galle

Court of Appeals of Louisiana, Fourth Circuit

March 20, 2019




          Leon A. Cannizzaro, Jr. District Attorney Parish of Orleans Kyle Daly Assistant District AttorneyCOUNSEL FOR RESPONDENT, STATE OF LOUISIANA

          Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase

          Terri F. Love Judge.

         This application for supervisory review arises from defendant's application for post-conviction relief, which the trial court denied. After review based on defendant's assertions of ineffective assistance of counsel, we find that defendant failed to meet to the burden outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As such, the trial court did not err in denying his application for post-conviction relief. The writ is granted, but relief is denied.


         Relator, Conell Galle, and his codefendant, Allen Scott (hereinafter "Defendants"), were jointly charged with two counts each of attempted second-degree murder and one count each of possession of a firearm by a convicted felon. The trial court denied Mr. Galle's motion in limine to have grand jury testimony of victim, Thomas Williams, who was allegedly unavailable as a trial witness, read into the record. This Court denied Mr. Galle's writ application seeking review of that decision.[1] Following a trial by a twelve-person jury, Defendants were found guilty as charged of the attempted second degree murder of Nykeisha Jackson (count one); not guilty as to attempted second degree murder of Mr. Williams (count two); and guilty as charged of possession of a firearm by a convicted felon.

         Mr. Galle was sentenced on count one to forty years at hard labor and on count three to ten years at hard labor, both sentences to be served consecutively and without benefit of parole. On appeal, this Court affirmed Mr. Galle's convictions and sentences. The matter was remanded for imposition of the mandatory fine as to count three. Mr. Galle challenged the denial of his motion in limine to have the grand jury testimony of Mr. Williams read into the record. State v. Galle, et al, 11-0930 (La.App. 4 Cir. 2/13/13), 107 So.3d 916, writ denied, 13-0752 (La. 10/30/13), 124 So.3d 1102.

         Subsequently, Mr. Galle filed a counseled application for post-conviction relief asserting two claims: 1) the grand jury testimony of Mr. Williams should have been presented to the jury; and 2) that he was entitled to an evidentiary hearing. On the same day, Mr. Galle filed a pro se application for post-conviction relief asserting two claims: 1) ineffective assistance of counsel for failing to object to an erroneous jury instruction regarding attempted second degree murder and the corresponding responsive verdicts; and 2) he was denied his constitutional right to confront his accuser because the victim, Mr. Williams, did not testify.

         The trial court issued a judgment denying Mr. Galle's application for post-conviction relief. Mr. Galle sought supervisory writs from this Court, which were denied. State v. Galle, 15-0584, unpub. (La.App. 4 Cir. 8/20/15). The Louisiana Supreme Court initially denied writs, but then granted reconsideration, vacating the trial court's ruling and remanding the matter to the trial court for an evidentiary hearing. State v. Galle, 15-1734 (La. 3/13/17), 212 So.3d 1164. The Supreme Court stated:

The district court's ruling denying post-conviction relief is vacated and the matter is remanded to the district court for an evidentiary hearing to determine whether exclusion of the grand jury testimony at trial, which the state disclosed before trial pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), impeded relator's fundamental right to present a defense and whether trial counsel rendered ineffective assistance with regard to litigating the admissibility of this evidence and demonstrating its importance to the defense. Notwithstanding that the Fourth Circuit on direct review found no error in the trial court's ruling excluding the grand jury testimony, see State v. Galle, 11-0930 (La.App. 4 Cir. 2/13/13), 107 So.3d 916, writ denied, 13-0752 (La. 10/30/13), 124 So.3d 1102, and the procedural bar against repetitive claims, the interest of justice requires revisiting these issues in a case in which relator's defense was that the state's sole eyewitness misidentified him and the state parted the usual cloak of secrecy which surrounds grand jury proceedings to disclose the testimony at issue because it directly contradicted that eyewitness account. See La.C.Cr.P. art. 930.4(A); see also State v. Galle, supra (Lombard, J., dissenting); see generally Stewart v. Wolfenbarger, 468 F.3d 338, 3576th Cir. 2006, as amended on denial of reh'g and reh'g en banc (Feb. 15, 2007) (finding prejudice as a result of the exclusion from trial of exculpatory evidence that "went to the very heart of Petitioner's defense.").

Galle, 15-1734, pp.1-2, 212 So.3d at 1165.

         The trial court conducted an evidentiary hearing on Mr. Galles' application for post-conviction relief and denied his application. Mr. Galle's present application for supervisory review followed.


         We previously summarized the facts surrounding Mr. Galle's alleged crimes in his previous appeal as follows:

The matter went to trial on March 14, 2011. During the three-day trial before a twelve-person jury, the following evidence was adduced. Among the State's witnesses were Ms. Jackson and the NOPD officers involved in the investigation. The State did not present Mr. Williams as a witness.
New Orleans Police Department Officer George Jackson was qualified by joint stipulation as an expert in the taking, examination, and comparison of fingerprints. Officer Jackson testified that he had taken defendant Scott's fingerprints in court the previous day. He matched those known fingerprints of defendant Scott to fingerprints on an arrest register, a bill of information, and a plea of guilty form evidencing what the officer said was Scott's 2006 conviction for illegal discharge of a firearm. Similarly, Officer Jackson testified that he had taken defendant Galle's fingerprints in court the previous day. He matched those known fingerprints to documents evidencing Galle's arrest and 2004 conviction for possession of cocaine.
The audio recordings of the 911 calls received in the early hours of March 21, 2009, two reporting gunshots and one reporting a person having been shot, were identified by Gesielle Roussel, the NOPD division supervisor and custodian of 911 audio recordings, and played for the jury. Ms. Roussel also identified the incident recall dated March 21, 2009, at approximately 4:23 a.m., from General Taylor and Loyola Streets, pertinent to the 911 calls and confirmed that at no point during any of the three calls was the alleged shooter identified.
Officer Vara testified as to his role in the events of March 21, 2009, stating that at approximately 4:20 a.m., he and his FTO were dispatched to the 2200 block of General Taylor Street as a result of 911 calls of gunshots. Upon turning onto General Taylor Street, Officer Vara saw the male later identified as Mr. Williams standing in the street covered in blood from a gunshot wound to the neck. In addition, as he approached the residence at 2204 General Taylor Street, Officer Vara observed the female later determined to be Ms. Jackson lying on the ground with a gunshot wound to her head and another one to her chest area. Inside the residence, Officer Vara observed blood on all the walls except the middle bathroom. He identified photos of the scene, which were subsequently admitted into evidence. Officer Vara testified that the victims described the perpetrators to him only as two black males and, although he spoke to neighbors, none of them witnessed the shootings. Officer Vara related that he and his FTO brought Mr. Williams into the residence and sat him down on a couch inside to await medical assistance. A crack pipe and a push rod were found in the residence, but Officer Vara was unaware of any arrests being made in connection with those items. He did not recall any weapons or spent cartridge casings being found inside the residence.
On cross-examination, Officer Vara indicated that the shootings occurred in the middle bedroom, the room in which drug paraphernalia and money were found. He based this conclusion on a neighbor's report of hearing gunshots fired in the center of the residence. Although Officer Vara was absent from the scene when it was processed, he confirmed that photographs of the middle bedroom showed a crack pipe and push rod, a ten-dollar bill and a five-dollar bill, a box of Arm & Hammer Baking Soda, and an open box of plastic sandwich bags. Officer Vara did not recall seeing a plastic bag inside a toilet, as depicted in a crime scene photograph, but stated that it could have been there at the time he was in the residence. When asked how blood had been spread throughout the residence, Officer Vara refreshed his recollection by referring to his police report and then stated that when Thomas Williams was shot in the neck, he ran into the back of the residence and then ran back to the front.
NOPD Crime Scene Technician Bessie Patrolia testified that she processed the crime scene and identified a copy of her report. She stated that although she took eleven blood samples from the crime scene, none were submitted for a laboratory exam nor (to her knowledge) were any DNA profiles generated from the blood samples. She did not collect any latent fingerprints from the scene or from any object at the scene, specifically a twenty-dollar bill recovered; a crack pipe; or the metal push rod. To her knowledge, no ballistics report had been generated regarding the one spent bullet collected by her.
Bobby Dickerson testified that he was then in custody in Washington Parish with charges pending against him and had a 1991 conviction for possession of crack cocaine. He stated that he did not want to be in court that day, that he did not want to participate in the trial in any way, and that he did not want to answer any questions the prosecutor asked of him. After being declared a hostile witness on motion by the State, Dickerson denied knowing either defendant but referred to Mr. Williams as "Uncle." Dickerson recalled meeting with Detective McGhee, the crime scene investigator, on the day of the incident and confirmed talking with him about what happened when Mr. Williams got shot, but insisted "they" coerced him to say those things. Dickerson confirmed that he and Mr. Williams had gone to Ms. Jackson's residence to purchase drugs. He further confirmed that when they got to the residence, he stayed in the car while Mr. Williams went into the residence to meet with Jackson. When asked whether "Duke" (later identified as Galle) and somebody else subsequently showed up at the residence, Dickerson said he did not know. When asked immediately thereafter whether, after Duke and the other person showed up, Duke and Ms. Jackson talked for a second, Dickerson replied that he did not know what they talked about inside.
When asked whether he saw Duke take out a gun and hand it to the other person, Dickerson said he did not see that happen. When asked whether he saw or heard Duke tell the other person to "lay that bitch down," Dickerson replied that he had not seen that, but had been coerced "to say all that what I just said in my first statement." When asked whether he had told Detective McGhee those things, Dickerson confirmed that he had, stating, "[h]e coerced me to say that." Dickerson said he was on narcotics at the time. Dickerson denied seeing Jackson get shot in her head. He denied seeing the person who was with Duke shoot Mr. Williams in the neck. Dickerson stated that he left after the shooting but returned to the scene to check on Mr. Williams. After Mr. Williams and Ms. Jackson were taken to the hospital, Dickerson met with Detective McGhee and told him "all of these things." He reiterated that he was coerced by the detective into saying what he did in his statement.
On cross-examination, Dickerson stated that he was parked across the street from Jackson's residence. He said the screen door on the residence was closed, and the porch light was off. It was around 4:00 a.m. or 5:00 a.m., and dark. Dickerson conceded he had been using drugs all night, "smoking and using heroin," and confirmed that the whole night was a blur to him. He replied in the affirmative when asked whether the recorded statement Detective McGhee said Dickerson made to him had been coerced and influenced by the detective. According to ...

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