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State v. Jenkins

Court of Appeals of Louisiana, Fourth Circuit

April 3, 2019

STATE OF LOUISIANA
v.
DOMINIQUE JENKINS

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 522-823, SECTION "D" Honorable Paul A Bonin, Judge

          Leon Cannizzaro DISTRICT ATTORNEY Donna Andrieu CHIEF OF APPEALS Michael Danon Assistant District Attorney Parish of Orleans COUNSEL FOR STATE OF LOUISIANA/APPELLEE

          Katherine M. Franks LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Regina Bartholomew-Woods

          Regina Bartholomew-Woods, Judge

         Defendant, Dominique Jenkins (hereinafter referred to as Defendant), appeals the jury's verdict finding him guilty of manslaughter and the district court's October 20, 2017 judgment sentencing him to thirty-eight (38) years imprisonment at hard labor. For the reasons that follow, we affirm Defendant's conviction and sentence.

         STATEMENT OF THE CASE

         On December 11, 2014, a grand jury returned a true bill of indictment charging Defendant, Howard Taylor ("Mr. Taylor"), and Vernon Clay ("Mr. Clay") each with one count of second degree murder in violation of La. R.S. 14:30.1.[1] Defendant appeared for arraignment and entered a plea of not guilty on January 29, 2015. On August 14, 2015, the district court held a hearing on the motion to suppress the statement of Defendant and co-defendants. The district court rendered its ruling on December 9, 2015, granting the motion to suppress Mr. Taylor's statements and denying the suppression of Mr. Clay's and Defendant's statements. The State of Louisiana ("the State") and Mr. Clay objected and noticed their intent to seek writs.[2] On April 21, 2017, Defendant filed a motion to sever his case from Mr. Taylor and Mr. Clay requesting that each have separate trials, which the district court granted. Subsequently, Mr. Clay withdrew his plea of not guilty and entered a plea of guilty to accessory after the fact and to being a second felony offender.[3] On August 9, 2017, the State filed a motion in limine to exclude Mr. Taylor's statement, which the district court granted.[4] In response, Defendant filed a writ application for supervisory review of the district court's ruling. This Court and the Louisiana Supreme Court both denied Defendant's writ application. State v. Jenkins, 2017-0756, p. 1 (La.App. 4 Cir. 9/6/17), writ denied, 2017-1521 (La. 9/8/17), 225 So.3d 475.[5]

         The jury trial commenced on September 13, 2017, and on September 15, 2017, the jury returned a ten-to-two verdict finding Defendant guilty of manslaughter, a violation of La. R.S. 14:31.[6] On October 2, 2017, Defendant filed motions for a new trial and post-verdict judgment of acquittal, which the district court denied. On October 20, 2017, Defendant was sentenced to thirty-eight (38) years of imprisonment at hard labor with credit for time served. Defendant filed a motion to reconsider sentence, which the district court denied. Defendant now files this appeal and asserts six (6) assignments of error including two pro se assignments of error.

         STATEMENT OF FACTS

         In the early morning hours of June 25, 2014, Detective Chris Laborde of the Eighth District, as well as other members of the New Orleans Police Department ("NOPD"), responded to a call of an aggravated battery by shooting that occurred in the 500 block of Frenchman Street. The victim of the shooting was Julius Dunn ("Mr. Dunn"). A cursory investigation occurred in which several photos were taken of the area and two shell casings were recovered. Mr. Dunn was injured on the scene and taken to the hospital where he later succumbed to his injuries.

         Detective Vaught's Testimony

         Detective Ryan Vaught ("Detective Vaught") of the NOPD Homicide Division was then assigned the case. Detective Vaught was able to obtain video surveillance footage of the shooting from several establishments in the area.[7] In his narration of the surveillance video obtained from Club Vaso ("Vaso"), Detective Vaught testified that Defendant, Mr. Clay, and Mr. Taylor exited the club and headed toward Decatur Street. The same surveillance video showed Mr. Dunn and a group of friends exiting Vaso on Frenchmen Street walking along the sidewalk toward Chartres Street.[8] Further, the video showed Mr. Dunn, Defendant, Mr. Clay, and Mr. Taylor engage in a verbal discussion outside of Vaso.

         The surveillance footage from Louisiana Music Factory showed Defendant, Mr. Clay, and Mr. Taylor exit Vaso; Defendant is seen turning back toward Vaso and Mr. Dunn and his group of friends as Defendant walked away. Defendant, Mr. Clay, and Mr. Taylor, subsequently, exited the camera frame. Shortly thereafter, a white SUV, with its headlights off, pulled out of a parking lot on Decatur Street. During his investigation, Detective Vaught discovered Defendant, Mr. Clay, and Mr. Taylor occupied the white SUV on the night of the shooting.

         On the surveillance video obtained from the Blue Nile, the white SUV is seen with the brake lights illuminated, indicating that it was slowing or stopping. Then, people are seen reacting to something and Mr. Dunn is seen holding his stomach while running outside of the camera frame. According to Detective Vaught, the shooting occurred at the Blue Nile. He summarized that the white SUV pulled out of a parking lot located on Decatur Street near Elysian Fields Avenue with its headlights off, traveled westbound on Decatur Street, and turned right on Frenchman Street heading northbound, passing several businesses and continued to the Blue Nile where the shooting happened, and then continued to travel northbound on Chartres Street to Royal Street where it turned left.

         During Detective Vaught's investigation, he discovered one of the friends with Mr. Dunn that night was Daniel Bryant ("Mr. Bryant") who was near Mr. Dunn when he was shot. Detective Vaught interviewed Mr. Bryant the day after the homicide. During the interview, Mr. Bryant showed an Instagram photograph of Defendant and Mr. Clay on his cellphone and identified both men by name, assigning Defendant as the shooter.[9] Detective Vaught stated that he printed out the photograph and both Mr. Bryant and Detective Vaught signed it. After this interview, Detective Vaught performed a query search of the names of Defendant and Mr. Clay to obtain any records[10]. He obtained a search warrant for the Instagram account associated with the photograph. Thereafter, he received a data compact disc from Instagram containing information for the account of "Shawtyy_too_turnt;" the account contained more than a hundred photographs of Defendant, but not many photographs of Mr. Clay or Mr. Taylor. The court record reflects that this Instagram account belonged to Defendant.

         Detective Vaught conducted a second interview with Mr. Bryant and his attorney, Dante Butler ("Mr. Butler"), wherein Mr. Bryant identified Defendant and Mr. Clay as two of the three suspects in the surveillance footage. Further, Mr. Bryant confirmed the identities of Defendant and Mr. Clay when the photographs were presented.[11] During his investigation, Detective Vaught learned that Defendant and Mr. Clay were cousins. After this interview, Detective Vaught applied for arrest warrants for Defendant and Mr. Clay. After reviewing the photographs and information posted on Defendant's Instagram account, Detective Vaught identified the third suspect as Howard Taylor.

         Detective Vaught gave a description and a picture of the white SUV seen in the surveillance footage to a Jefferson Parish Sheriff's Office ("JPSO") detective, who provided a license plate number matching a vehicle with a similar description; the vehicle had South Carolina plates. It was discovered that Jasmine Branch ("Ms. Branch") was issued a traffic citation while driving that vehicle in Jefferson Parish. However, Detective Vaught was unable to search the vehicle because Ms. Branch had informed him the car had been wrecked in the interim between the shooting and the interview.[12]

         Detective Vaught discovered that Ms. Branch was Mr. Taylor's girlfriend. A photo of a bail bond receipt evincing her name was posted on Defendant's Instagram account; the bail bond receipt was for Mr. Taylor. Detective Vaught interviewed Mr. Clay and Mr. Taylor, but declined to apply for arrest warrants for them. Nevertheless, both were indicted for the crime.

         Defendant agreed to give a recorded statement, which the State played in open court. Detective Vaught read Defendant his Miranda Rights. On the recording, Defendant, who admitted his nickname was "Shawty," stated that some time in June 2014, he went to Vaso with his cousins, Mr. Clay and "Donald."[13]Defendant stated that sometime later, the three men (himself, Mr. Clay, and Donald) decided to leave Vaso and proceeded to Donald's green Infinity SUV to leave the area. Defendant denied that he was ever inside of a white SUV at any time that night and stated that he was only with Mr. Clay and Donald. When Detective Vaught told Defendant that he received information that did not corroborate his story, Defendant stated he did not know why anyone would implicate him in this crime and elected to end the interview.

         Detective Laborde and his team recovered two shell casings from the scene along with Mr. Dunn's belongings including clothing, a cellphone, and other items. A pellet was recovered during Mr. Dunn's autopsy, but there was no DNA or fingerprint evidence to test.

         On cross-examination, Detective Vaught admitted that none of the surveillance videos obtained show footage of the parking lot where the white SUV pulled out from or footage that revealed the occupants inside of the vehicle. He also admitted the he could not recall whether crime scene technicians took any measurements between where Mr. Dunn collapsed and the location where the shell casings were recovered. On redirect examination, Detective admitted that he was discontented with the lack of evidence recovered from the crime scene and the inadequacies of the investigative procedure prior to his involvement.

         After Detective Vaught testified, the State called Mr. Bryant to testify, but he refused. The State requested that Mr. Bryant be declared a hostile witness, which the district court granted. After speaking with his attorney, Mr. Bryant testified that he was currently serving a sentence in the Department of Corrections for convictions unrelated to the current matter. Mr. Bryant also invoked his Fifth Amendment privilege, which the district court declined to recognize.[14] Consequently, the record reflects that Mr. Bryant testified that he was not offered anything in exchange for his testimony, but still refused to testify. On cross-examination, Mr. Bryant further refused to testify.[15]

         The State recalled Detective Vaught to the stand. Detective Vaught testified that he was familiar with Mr. Bryant from prior encounters. Detective Vaught also testified that he had taken the recorded statement by Mr. Bryant the day after the shooting. The State attempted to introduce and publish the recorded statement, but Defendant objected on grounds that it violated the Confrontation Clause of the Sixth Amendment of the United States Constitution. The district court sustained Defendant's objection.[16]

         Sean McElrath's Testimony

         The State then called Sean McElrath ("Mr. McElrath"), an NOPD employee, to the stand. Mr. McElrath is a firearms examiner for the Crime Lab. Mr. McElrath was qualified as an expert in the field of firearms identification. Mr. McElrath examined the ballistics evidence in this matter and examined six (6) specimens; two (2) of the specimens were forty-five caliber cartridge casings and Mr. McElrath was able to determine that both were shot from the same weapon. The other four specimens were projectile fragments recovered from Mr. Dunn's body and at least one of the projectile fragments was consistent with forty-five class ammunition.

         On cross-examination, Mr. McElrath testified that his examination revealed that only one gun was used and explained the process of the reaction produced when this type of gun is fired. Mr. McElrath described the reaction as a "mini-explosion" that produces a flame inside of the gun chamber that explodes the projectile out of the barrel of the gun. The flame produces a "muzzle flash," which varies in visibility when this gun is fired; however, the "muzzle flash" is more visible at night. Mr. McElrath stated he was not presented with the actual firearm for testing and had no information to identify the shooter.

         On re-direct examination, Mr. McElrath testified, after reviewing the surveillance footage, he did not see a "muzzle flash" inside of the white SUV; however, he testified that this did not negate the fact that one could have gone off, but that he simply could not see because of the quality of the surveillance video. Mr. McElrath further testified that too many variables existed to determine the location of the gun when fired based solely on the location of the shell casings recovered at the scene.

         Dr. Cynthia Gardner's Testimony

         The State's next witness was Dr. Cynthia Gardner ("Dr. Gardner"). Dr. Gardner is a forensic pathologist and New Orleans Coroner's Office Deputy Coroner who performed Mr. Dunn's autopsy and authored the autopsy report. Dr. Gardner testified that Mr. Dunn suffered from one gun shot in his lower chest, but there was no exit wound. She further testified that Mr. Dunn suffered from internal injuries. The autopsy report indicates that the bullet and its fragments punctured Mr. Dunn's stomach, liver, inferior vena cava, diaphragm, right lung, and ninth rib. Dr. Gardner testified that she did not find any gunpowder residue or stippling on Mr. Dunn's body. She determined that the cause of death was a homicide.[17] On cross-examination, Dr. Gardner testified that she could not determine the identity of the shooter.

         Mr. Butler's Testimony

         The State called Mr. Butler, the attorney for Mr. Bryant, to the stand. He relayed that Mr. Bryant willfully gave a statement to the police prior to trial, but had since changed his mind regarding testifying at trial. A third party informed him that Mr. Bryant had received threats via social media.[18] After learning of this information, Mr. Butler informed the State and Mr. Bryant. Notwithstanding the aforementioned, Mr. Bryant never indicated his knowledge of the threats or expressed fear for his life if he testified.

         On cross-examination, Mr. Butler reiterated that Mr. Bryant was not aware of the social media posts or that his initial refusal to testify was attributed to fear because of these posts. He also admitted that Mr. Bryant had sought assistance with the sentence he received in Jefferson Parish and did not want to testify if the State was unwilling to "help."[19] However, Mr. Butler also testified that Mr. Bryant did intend to cooperate by testifying at trial.[20] On re-direct examination, Mr. Butler reiterated that Mr. Bryant had not received any assistance for his guilty plea in Jefferson Parish and intended to testify.

         Mr. Bryant's Testimony

         The State re-called Mr. Bryant to the stand. The State asked Mr. Bryant why he was now testifying despite his initial refusal. He responded that he "just needed time to think about it."[21] Mr. Bryant identified Mr. Dunn as his cousin and confirmed that they were together, along with two other men, at Vaso the night of the shooting. He testified that he only knew one of the men as DJ. Mr. Bryant stated that he saw Defendant and Mr. Clay outside Vaso; he and Defendant "passed words." There had been prior altercations with both Defendant and Mr. Clay. He explained that the three of them (Mr. Bryant, Mr. Clay, and Defendant) had been at odds for some time. Prior to the night of the shooting, Mr. Bryant had never seen them at Vaso, but he "knew it was going to be something."

         The State then directed Mr. Bryant to testify as to the sequence of events that led up to the shooting. According to Mr. Bryant, as Defendant and Mr. Clay left Vaso, he observed them walk up Decatur Street; both men continually looked back at Mr. Bryant and his group as they walked. Shortly thereafter, the group decided to leave Vaso and started walking up Frenchman Street to their parked vehicle. As they walked, he noticed the white SUV, with Defendant inside, approaching. He identified Mr. Clay as the front seat passenger and Mr. Taylor as the driver.[22] Upon seeing the vehicle, Mr. Bryant ...


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