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State v. Barnett

Court of Appeals of Louisiana, Fifth Circuit

April 3, 2019

STATE OF LOUISIANA
v.
SHAUN BARNETT

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-2701, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, SHAUN BARNETT Shaun Barnett Jane L. Beebe

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

          JUDE G. GRAVOIS JUDGE.

         Defendant, Shaun Barnett, was convicted by a jury of the first degree murder of Dawn Scott, the first degree murder of Raynell Kimbrough, and of possession of a firearm by a convicted felon. On appeal, he argues multiple assignments of error. After thorough review, we find no reversible error and affirm defendant's convictions and sentences.

         PROCEDURAL HISTORY

         On August 25, 2016, a Jefferson Parish Grand Jury indicted defendant, Shaun Barnett, with the second degree murder of Dawn Scott in violation of La. R.S. 14:30.1 (count one), the second degree murder of Raynell Kimbrough in violation of La. R.S. 14:30.1 (count two), and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count three). Defendant was arraigned on August 26, 2016 and pled not guilty.

         On September 7, 2017, a Jefferson Parish Grand Jury returned a superseding indictment amending defendant's charges from the second degree murder of Dawn Scott and the second degree murder of Raynell Kimbrough to the first degree murder of Dawn Scott in violation of La. R.S. 14:30 (count one), the first degree murder of Raynell Kimbrough in violation of La. R.S. 14:30 (count two), and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count three).[1] On September 8, 2017, defendant was arraigned and pled not guilty.

         On November 6, 2017, the State filed a Notice of Intent to Use Other Acts Evidence Pursuant to La. C.E. art. 404(B). On December 19, 2017, after a hearing, the trial judge granted the State's Notice of Intent to Use Other Acts Evidence Pursuant to La. C.E. art. 404(B) and ruled that the other acts evidence was admissible. Defendant sought writs, which this Court granted. This Court found that the other acts evidence was not admissible. State v. Barnett, 18-K-22 (La.App. 5 Cir. 1/19/18) (unpublished writ disposition). The State filed a writ with the Louisiana Supreme Court; the Supreme Court granted the writ and reinstated the ruling of the district court. State v. Barnett, 18-0121 (La. 1/21/18), 233 So.3d 605.

         On January 22, 2018, the defense made an oral motion for competency that the trial judge initially granted, but then denied. Defendant thereafter informed the trial judge that he wanted to represent himself. On that same date, the State amended the indictment in connection with a predicate offense in count three to correct a typographical error regarding the statutory citation and the name of the offense. Also, the trial judge ordered the State to remove two of the predicate convictions from count three.

         From January 22-26, 2018, the case was tried before a twelve-person jury that found defendant guilty as charged on all counts. On February 8, 2018, defendant filed a motion for a new trial that was denied on that same date. Afterwards, on that same date, the trial judge sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on count one; life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on count two; and imprisonment at hard labor for ten years without the benefit of probation or suspension of sentence on count three, with all of the sentences to run concurrently with each another. On February 19, 2018, defendant filed a timely motion for an appeal that was granted on February 21, 2018.

         FACTS

         On April 4, 2016, at 6:45 a.m., Erica Russell heard a knock at the door of her residence at 2140 Idaho Avenue, Apartment B, in Kenner, Louisiana. When she opened the door, D.S., [2] the ten-year-old son of her neighbor, Dawn Scott, told her that his mother did not want to wake up, that he did not know where his father was, and that "blood is everywhere." Ms. Russell testified that she went to Ms. Scott's nearby residence at 2144 Idaho Avenue, Apartment D, and entered the apartment through the back door which was already open. She went upstairs to Ms. Scott's bedroom, after which she saw Ms. Scott lying in bed, a baby lying on the side of Ms. Scott, Raynell Kimbrough, Ms. Scott's boyfriend, lying between the bed and the dresser, and blood. Ms. Russell called 9-1-1 and reported the incident.

         Officer Kenneth Boudoin of the Kenner Police Department responded to the call at 2144 Idaho Avenue at "about 6:52, 53" a.m., which was within minutes of the call coming out. He testified that when he arrived, a female told him that she thought Ms. Scott and Mr. Kimbrough were dead. Officer Boudoin entered the residence and went upstairs, after which he found a deceased male and female and an infant who was breathing. Officer Boudoin spoke to Keoka Jack, a neighbor, who told him that she heard "some boom sound" coming from that apartment. She stated that when she went to check to see where the sounds came from, she saw a champagne-colored vehicle pull out of the driveway.

         Detective Mike Jackson of the Kenner Police Department spoke to Arnell Kimbrough, Mr. Kimbrough's sister, who told him that the night before the homicides, Mr. Kimbrough and Shaun Barnett, defendant, were together at a daiquiri shop shooting pool.[3] Detective Jackson testified that he learned that defendant's address was 329 Pat Drive in Avondale and that a gold or champagne colored 2003 Ford Taurus with license plate ZNU817 was registered to defendant. On his way to 329 Pat Drive, Detective Jackson noticed a daiquiri shop in the neighborhood close to that address.

         Sergeant Edward Rohde of the Kenner Police Department responded to the call at 2144 Idaho Avenue, Apartment D, and had a supervisory role over the crime scene. Sergeant Rohde testified that the crime scene was dusted for fingerprints and items were swabbed for DNA analysis. He stated that no weapons were on the scene, no casings were recovered, no prints came back to defendant, and some prints came back to Mr. Kimbrough. A bag of marijuana was found on the dresser and there was money in a drawer.[4]

         Detective Harold Pendergast of the Kenner Police Department was the lead investigator in the homicides. He arrived at the scene at 7:01 a.m. He testified that they interviewed witnesses, collected evidence, retrieved traffic camera information regarding defendant's license plate, obtained defendant's cell phone records, [5] and obtained surveillance camera footage from near the crime scene, [6]near defendant's residence, [7] and at a nearby daiquiri shop.[8] Detective Pendergast stated that they ultimately obtained and executed search warrants for defendant's residence and vehicle.[9]

         D.S., age twelve at the time of trial, testified that he lived with his mother, Ms. Scott, and her boyfriend, Mr. Kimbrough. He explained that there were two bedrooms upstairs and that he and his brother slept in one of them and that Ms. Scott and Mr. Kimbrough slept in the other one. He slept with his door open because his mother did not like it when the door was closed, and when he was in bed, he could look out the open door and see the stairs. D.S. stated that Mr. Kimbrough had guns in the apartment.

         D.S. testified that on the night of the incident, he went upstairs to his room and went to sleep. He was awakened when he heard his mother and Mr. Kimbrough arguing that Mr. Kimbrough and someone else downstairs were making too much noise. After the argument was finished, D.S. went downstairs for something to drink, and when he did so, he saw someone with dreadlocks going out the back door. Although D.S. had never seen that person before, he heard Mr. Kimbrough call that person "Shaun." He then went to his room and went back to sleep.

         D.S. later heard gunshots during the night and woke up. Thinking the gunshots came from outside, he walked over to the window. D.S. stated that he then heard the gunshots again and saw "little flashing lights" in his mother's room. D.S. hurried up and lay down, after which he saw somebody in black clothes come out of his mother's room and run down the stairs. He then went back to sleep. He stated that the person running down the stairs after the shooting was the same person who walked out the back door and the same person who Mr. Kimbrough called "Shaun."

         D.S. explained that the next morning, he woke up and realized his mother had not awakened him. He went into her room and saw Mr. Kimbrough's body on the floor and some blood. He did not see his mother. D.S. went downstairs and saw that the back door was wide open. He recalled seeing one of Mr. Kimbrough's guns the night before; however, when he went to bring his young brother to use the restroom, the gun was not there anymore, and the bullets on top of it were gone. D.S. then went out the back door, knocked on the neighbor's door, and told her that his mother and Mr. Kimbrough were lying down upstairs and that he saw blood. D.S. said that the woman went and checked, then came back downstairs, called the police, and told him his parents were dead.[10]

         Frank Macaluso testified that in April of 2016, he was living in Kenner and that he would leave for work at 5:30 a.m. every morning. In doing so, he would drive to Circle K at the corner of Williams and Veterans to get some coffee. He stated that when he traveled down 22nd Street to get to Williams, he would pass by the apartment complex at 2144 Idaho. Mr. Macaluso testified that on April 4, 2016, he left his house at 5:30 a.m. As he slowly approached the apartment complex in his vehicle, he noticed a "black guy" standing between two vehicles wearing a camouflage jacket[11] and something white on his head. He stated that he and the "guy" "kind of startled each other" and "made eye contact." Mr. Macaluso explained that as he passed the complex, he noticed a gold Ford Taurus parked "funny up towards the front door." Afterwards, Mr. Macaluso went to work. While there, his daughters called and told him that some people had gotten shot near the Winn-Dixie, which he explained was near the apartment complex. Mr. Macaluso was unsure if what he saw meant anything, so he called the police. Later, the police showed him a photographic lineup and he positively identified image number 4 as the individual in the camouflage jacket he saw outside of 2144 Idaho on April 4, 2016. Detective Pendergast testified that Mr. Macaluso was able to identify defendant in that photographic lineup.

         Keoka Jack testified that on April 4, 2016, she was living at 2144 Idaho Avenue, Apartment C, with her four-year-old son and her boyfriend, Carey Jones, next door to Ms. Scott and Mr. Kimbrough. On that date, at "6:00 something," she heard two noises, like "boom, boom" coming from upstairs in her apartment.[12] She stated that her master bedroom shares a wall with Ms. Scott and Mr. Kimbrough's master bedroom. Ms. Jack went upstairs, grabbed her son, and heard a second set of "booms" from the same room. She placed her son on the downstairs sofa and approximately five minutes later, she heard a car "crank." Ms. Jack opened her front door and saw an older model champagne-colored Taurus backing out from the front of Ms. Scott and Mr. Kimbrough's front door.

         Carey Jones testified that in April of 2016, he was living at 2144 Idaho Avenue, Apartment C, with his fiancée, Keoka Jack, and his son. He explained that in the early morning hours of April 4, 2016, he was awake at 2:00 a.m. smoking a cigarette outside his door when he observed Mr. Kimbrough and a "black guy" pulling up in a gold "Taurus or something like that." Mr. Jones stated that Mr. Kimbrough was in the passenger seat and the "other guy" was driving. Mr. Kimbrough and the "other guy" exited the vehicle and went inside Mr. Kimbrough's residence. Mr. Jones explained that Mr. Kimbrough stopped to talk to him for a minute before going inside. He testified that at approximately 2:30 a.m., while he was watching television, he heard Mr. Kimbrough and his girlfriend "fussing." Mr. Jones guessed that Ms. Scott was upstairs telling Mr. Kimbrough to stop making so much noise. Afterwards, Mr. Jones dozed off. He left for work "about five after, ten after 6:00", and Ms. Jack later called to tell him about the shooting.

         Jessica Marchan testified that in April of 2016, she lived at 2144 Idaho Avenue, Apartment A, with her husband, her four children, and her brother, Gabriel Gonzales. Ms. Marchan recalled seeing a black male with dreads wearing a "hat type thing" who visited and spent the nights at the apartment of Mr. Kimbrough and Ms. Scott. She also recalled that individual drove a gold Ford Taurus. Ms. Marchan identified State's Exhibit 48 as a photograph showing Mr. Kimbrough and also the person who was always at his house driving that car.

         Gabriel Gonzales testified that in April of 2016, he was living in the 2400 block of Idaho in an apartment complex with his sister, Jessica Perez, her husband, and their four children. He explained that he took care of his sister's children during the day and that he worked the overnight shift at Rouses in Metairie. Mr. Gonzales initially testified that on April 4, 2016, he got home at approximately 6:00 or 6:10 a.m., but when confronted with his grand jury testimony, he admitted that he probably got home at 6:45 a.m. He stated that he went inside, after which he heard noises that sounded like Winn-Dixie employees unloading and taking out their pallets. However, Mr. Gonzales explained that it could not have been that because he knew that Winn-Dixie did not take their pallets out then. He then heard crying in the back side of the apartment complex. When he went to find out what had happened, he learned that the individuals in Apartment D had been shot. Mr. Gonzales testified that while living at the complex, he saw visitors at the victims' apartment. He recalled seeing a male visitor with "dreads" on more than one occasion. The police showed him a photographic lineup, and he positively identified defendant as that person. He also positively identified defendant in court.

         Ellen Scott testified that one of the victims, Dawn Scott, was her daughter. After the murders, she went to Ms. Scott's apartment to remove her belongings, but she never recovered Ms. Scott's purse.

         Officer Matthew Glapion, Sr. testified that he was a Kenner Police Department officer assigned to the U.S. Marshals fugitive task force. On April 4, 2016, Officer Glapion went to 329 Pat Drive in Avondale to locate defendant, but left when he did not see a gold Taurus there. When he returned shortly thereafter, he saw a gold Taurus backed into the driveway. Officer Glapion testified that defendant, his mother, and his brother were there.

         Sergeant Jeffrey Adams of the Kenner Police Department testified that on April 4, 2016, he responded to the scene at 2144 Idaho Avenue, Apartment D. He supervised and participated in the execution of the search warrant on the house and the vehicle at 329 Pat Drive. They seized two black and gray jackets from the trunk of the vehicle, a cell phone located in the glove compartment, the social security card of Ms. Scott's younger child, a healthcare card in Ms. Scott's name, and a piece of paper with possible PIN numbers or passcodes on it with Ms. Scott's name on it from the back seat of the vehicle. They also seized a camouflage jacket from the living room, two socks and a flashlight from the left pocket of that jacket, defendant's ID from defendant's mother's room from between the mattress and the bedspread, the keys to defendant's vehicle from under a hat, and an envelope mailed to defendant found in his mother's room.

         Sergeant Adams explained that the camouflage jacket was seized because video footage from a neighbor's house indicated that defendant arrived in his vehicle wearing a camouflage jacket and exited without that jacket. He testified that the crime scene on Idaho Avenue was broken into a couple of times after the murder. Therefore, they went back to search the house again during which they found an AK 47 cartridge and an AK 47 bullet. Sergeant Adams testified that on April 4, 2016, there was no forced entry on either door, but on April 17, there were signs of forced entry.[13] He recalled that there was a rumor that tax-return money should have been there.

         Dr. Marianna Eserman, the Jefferson Parish deputy coroner, was qualified as an expert in the field of forensic pathology. She testified that she performed autopsies on the victims. As to Ms. Scott, Dr. Eserman testified that the cause of death was a gunshot wound to the head and that the manner of death was homicide. She further explained that Ms. Scott also sustained a gunshot wound to the left trunk and a graze gunshot wound to the left upper extremity. As to Mr. Kimbrough, Dr. Eserman testified that the cause of death was a gunshot wound to the head and that the manner of death was homicide. She further testified that Mr. Kimbrough also sustained gunshot wounds to the trunk. Dr. Eserman maintained that the weapon was at least two or three feet away from the wounds when it was fired. She noted that Mr. Kimbrough had a high alcohol level consistent with an individual drinking a lot of alcohol just prior to his death.

         Pamela Williams-Cyprian, a drug analyst at the Jefferson Parish crime lab, was qualified as an expert in the field of the analysis and identification of controlled dangerous substances. She analyzed a clear plastic bag containing green "vegetative" material and a piece of paper containing a white powder-like substance. Ms. Williams-Cyprian testified that testing revealed that the green "vegetative" material was marijuana and that the white substance did not contain cocaine.

         Lucy Camarena, a former JPSO DNA analyst, was accepted as an expert in the field of forensic DNA analysis. Ms. Camarena testified that she conducted DNA analysis on the camouflage, long sleeve shirt seized from defendant's residence. She found that the DNA profile obtained from the cuttings from the sleeve of the shirt (42T1) and from the lower back of the shirt (42T6) were consistent with the DNA profile obtained from the victim, Mr. Kimbrough. She also found that the probability of finding the same DNA profile if the DNA had come from a randomly selected person other than Mr. Kimbrough was one in greater than a hundred billion.

         Detective Pendergast testified that he obtained information that there was some sort of romantic relationship between defendant and Ms. Scott, and therefore, he had requested a paternity test for R.S., the infant lying next to Ms. Scott when she was found. Ms. Camarena testified that Mr. Kimbrough could not be excluded as the biological father of R.S., and that Mr. Kimbrough was three million times more likely to be the father of R.S. than another randomly selected African-American male. She maintained that the relative probability of paternity was 99.99 percent for Mr. Kimbrough and that defendant was excluded as the biological father of R.S.

         Jene' Rauch testified that she worked for the JPSO crime lab as the supervisor of the firearm and tool-marks section. The trial court thereafter accepted her as an expert in the field of "Firearms and Tool Mark Examination." She testified that specimen 14A (a copper jacket from the upstairs bedroom), specimen 15 (a copper-jacketed projectile from the right breast of Ms. Scott), specimen 16A (a copper jacket from Ms. Scott's skull), and specimen 17A (a copper-jacketed projectile from Mr. Kimbrough's skull) were all fired from the same gun and were consistent with .38 caliber class ammunition. Ms. Rauch determined that the evidence was consistent with the use of a revolver.

         JPSO Detective Joseph Mancuso testified that he worked with traffic cameras and the license plate recognition system and that he did so in April of 2016. He explained that license plate cameras were set up throughout Jefferson Parish in multiple locations and that they searched for defendant's license plate number ZNU817 for April 4, 2016, the date of the incident. The evidence reflected that defendant's residence was on Pat Drive in Avondale on the West Bank of Jefferson Parish and that the homicides were committed in Kenner on the East Bank of Jefferson Parish. Detective Mancuso indicated that the evidence showed that defendant's vehicle was seen going back and forth in the area between his residence and the crime scene several times on April 4, 2016. Significantly, he explained that the evidence showed that defendant's vehicle was seen at Huey P. Long and Clearview west at 6:42 a.m., heading back toward the area of his residence shortly after the homicides were committed.[14]

         Leland Dwight, an investigative specialist for the Louisiana State Police, testified that he plotted defendant's cell phone calls on maps using tower locations. He was also provided with license plate readings. Based on that information, he produced a report regarding his analysis of them. Mr. Dwight indicated that the location of the cell phone calls and the location of defendant's vehicle on April 3 and 4, 2016 matched closely. He explained that this showed that defendant's cell phone and vehicle went back and forth in the area between his residence and the crime scene on those dates.[15]

         Jeremy Smith testified that he was incarcerated within the Department of Corrections and serving a two-year sentence for drug possession. Mr. Smith explained that on August 7, 2016, he was arrested and held in the Jefferson Parish Correctional Center. He said that from August 9, 2016 until November 3 or 4, 2016, he and defendant were bunkmates. He stated that he had never met defendant, heard his name, or saw his face before he met defendant in prison. Mr. Smith indicated that defendant was not friendly or talkative at first, but after a couple of weeks, defendant started talking to him. Mr. Smith testified that defendant told him that the tattoo on his arm, "Jasmine," was the name of his ex-girlfriend whom was with him seven or eight years when he committed a murder, that he and his ex-girlfriend's father had problems, and that defendant had killed "Jasmine" because she witnessed him commit the other crime.

         Mr. Smith also testified that defendant told him about his current charges, namely, that defendant and his friend "Pluck" (Mr. Kimbrough) used to ride together to work and that they went to a daiquiri shop and got into an argument. Mr. Smith stated that defendant told him that he and Mr. Kimbrough went back to Mr. Kimbrough's home and that later that night, there was another argument in the living room between him and Mr. Kimbrough. Mr. Smith explained that defendant said that Mr. Kimbrough's wife came downstairs and told defendant to leave, but they ended up upstairs where there was a fight between defendant and Mr. Kimbrough, after which defendant shot Mr. Kimbrough and Mr. Kimbrough's wife. Defendant told him that afterwards, he left the scene, threw the gun in a river, went to his mother's house, and then later left. He testified that defendant told him that he thought Ms. Scott's baby was his as he was "sleeping with" Mr. Kimbrough's wife. Mr. Smith recalled that defendant mentioned some drugs Mr. Kimbrough had. He also testified that defendant told him that the police were trying to prove he committed the crime by putting blood on a camouflage jacket.

         Mr. Smith testified that he spoke to his fiancée about his talks with defendant and they decided it would be best to talk to the police. Thus, his fiancée made contact with law enforcement. He identified an advisory of rights form he reviewed before he spoke to Detective Pendergast. Mr. Smith explained that the detective did not offer him anything for his statement and that he came forward because it was the right thing to do. He felt like defendant was a "monster" who needed to "pay for what he did." Mr. Smith testified that the State subsequently offered him a plea agreement for his current charges, i.e., possession of "meth," marijuana, and clonazepam. He insisted that he never lived on the Westbank, Avondale, Woodmere, Harvey, or Kenner. Mr. Smith stated that the State told him several times to be honest and to say what he remembered to the best of his ability.

         Dennis Thornton, a former JPSO captain, testified that in 2007, when he was commander of the homicide division, Perry Ingram was murdered on November 18, 2007, at approximately 1:40 a.m., in the 3700 block of Longleaf in the Woodmere subdivision in Harvey. He testified that another dispatch came out at 6:16 a.m. regarding the murder of Jasmine McGinnis that also occurred that morning at 1524 Haydel Drive in Marrero. Captain Thornton testified that at the time of the second murder, Ms. McGinnis was wearing a shirt with a picture of her and defendant on it, her name, the name of "Shaun," and the words, "get money." He explained that defendant was a suspect in Mr. Ingram's murder and that defendant came in willingly to give a statement. The tape was played for the jury.

         Captain Thornton testified that defendant admitted that his picture and name were on Ms. McGinnis' shirt and that he had been in a relationship with Ms. McGinnis. He noted that during the statement, the detective taking the statement mentioned how the Ingram and McGinnis homicides were connected. Captain Thornton testified that this was by ballistic material that was found on both scenes. Captain Thornton explained that there was not enough evidence to charge anyone at that time. He retired in March of 2015 but was re-hired to work in the intelligence division in cold-case homicides. Captain Thornton testified that in June of 2009, Ronald Bowman wanted to provide a statement regarding the Ingram case. According to Captain Thornton, Mr. Bowman told him that there were males and females on the scene of the Ingram homicide after shots were fired and that one of them was Ms. McGinnis. Mr. Bowman also told him that the motive for the killing stemmed from a burglary that occurred prior to the homicide involving a policeman's house where some weapons were stolen.

         Captain Thornton testified that deputies determined that there was a burglary of firearms from JPSO Deputy James Jefferson at 2307 Alex Kornman in Woodmere. He explained that the deputy reported a break-in while he was gone from his house from November 20 to 25, 2007. Captain Thornton stated that did not make sense to him since Mr. Ingram was murdered before that break-in. In his statement, Mr. Bowman also ...


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