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State v. Calloway

Court of Appeals of Louisiana, First Circuit

April 12, 2019

State of Louisiana
Leron Melechi Calloway

          Appealed from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket Number 672429 Division D The Honorable David W. Arceneaux, Judge Presiding

          Prentice L. White Louisiana Appellate Project Baton Rouge, Louisiana ATTORNEY FOR APPELLANT DEFENDANT-Leron Melechi Calloway

          Joseph L. Waitz, Jr. District Attorney Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana ATTORNEYS FOR APPELLEE The State of Louisiana

          Before: Welch, Chutz, and Lanier, JJ.

          Welch, J.

         The grand jury of Terrebonne Parish indicted the defendant, Leron Melechi Calloway, with first degree murder, a violation of La. R.S. 14:30. The defendant pled not guilty. After a trial by jury, the jury found the defendant guilty as charged. The trial court denied the defendant's motion for a new trial. After a hearing, the trial court sentenced the defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.[1] The defendant now appeals, assigning error to the denial of his motion for new trial based on the admission of other crimes evidence, the denial of his motion for a change of venue, and the sufficiency of the evidence. For the following reasons, we reverse the defendant's conviction, vacate his sentence, and remand for a new trial.

         Statement of Facts

         On November 24, 2013, Connely Duplantis-the sixty-six-year-old victim- and his wife Yvonne Duplantis were visiting his parents at 222 Carolyn Avenue in Houma for the Thanksgiving holidays and were loading their vehicle to return to their home. While standing in the threshold of the door around 1:00 p.m., Mrs. Duplantis saw an unknown individual running up behind the victim. She opened the door and observed that the unknown individual was a young, black male with a small to medium build, wearing a dark hooded jacket. Mrs. Duplantis saw the unknown individual hold his right hand up to the victim's side, where the victim had a white iPhone 5 clipped to his belt. Immediately afterward, the unknown individual raised a black gun with his left hand and shot the victim. As the victim stumbled, Mrs. Duplantis began screaming and went inside to tell the victim's parents to remain inside the residence.

         Mrs. Duplantis did not get a full view of the shooter's face because the hood of his jacket partially covered his face. While Mrs. Duplantis was inside on her cell phone with the 911 operator, the victim's mother looked outside and observed that the shooter was no longer in view. When Mrs. Duplantis went outside, Houma Police Department (HPD) officers had responded and were approaching the residence. An ambulance arrived shortly thereafter. The victim eventually succumbed to his shooting injuries.[2]

         At trial, Randy Wallace, a co-defendant, testified that he was present when the defendant approached and shot the victim. Wallace indicated that on the day in question, prior to the shooting, the defendant told him that he needed money and wanted to rob someone. Wallace further indicated that he attempted to discourage the defendant from doing so. According to Wallace, as he and the defendant were walking down Carolyn Avenue, the defendant spotted an older white male (the victim) in a driveway, stated that all white people have money, and approached the victim and asked for money. Wallace watched as the defendant reached into the victim's pockets while under the carport. Wallace further saw the defendant holding what he believed to be a black and chrome pistol. Wallace fled as he heard the gunshot.

         Sufficiency of the Evidence

         In assignment of error number three, the defendant argues that his conviction stemmed from the State's ability to weave together pieces of circumstantial evidence to show that he was a person of bad character who deserved to be convicted of first degree murder of a beloved citizen of the community. The defendant contends that there was no physical evidence linking him to the shooting. He further contends that the video recording of the two men attempting to sell the victim's iPhone was not conclusive. The defendant notes that Wallace is a member of a rival gang (Rider Gang) known to have been at odds with a gang the defendant was allegedly a member of (Trap Boys Mafia Gang). The defendant avers that Wallace's testimony was unconvincing, contending that while Wallace claimed to be afraid of the defendant, Wallace did not appear to be afraid in the video. The defendant argues that given the weaknesses embedded in the State's case and the insufficient evidence presented at the trial, the trial court committed reversible error in denying his motion for a new trial.

         When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. See La. C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; Hearold, 603 So.2d at 734. When the entirety of the evidence, including inadmissible evidence (which was erroneously admitted) is insufficient to support the conviction, the accused must be discharged as to that crime and any discussion by the court of the trial error issues as to that crime would be pure dicta, since those issues are moot. Hearold, 603 So.2d at 734.

         On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Hearold, 603 So.2d at 734.

         In conducting the review under Jackson, we also must be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; State v. Wright, 98-0601 (La.App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 2000-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Dyson, 2016-1571 (La.App. 1st Cir. 6/2/17), 222 So.3d 220, 228, writ denied, 2017-1399 (La. 6/15/18), 257 So.3d 685.

         Louisiana Revised Statutes 14;30(A) defines first degree murder, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of armed robbery. "Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Delco, 2006-0504 (La.App. 1st Cir. 9/15/06), 943 So.2d 1143, 1146, writ denied, 2006-2636 (La. 8/15/07), 961 So.2d 1160.

         Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64(A). Armed robbery is a general intent crime. In general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal. State v. Huey, 2013-1227 (La.App. 1st Cir. 2/18/14), 142 So.3d 27, 30, writ denied, 2014-0535 (La. 10/3/14), 149 So.3d 795, cert, denied, ___U.S.___, 135 S.Ct. 1507, 191 L.Ed.2d 443 (2015).

         The State bears the burden of proving the elements, along with the burden to prove the identity of the defendant as the perpetrator. When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Draughn, 2005-1825 (La. 1/17/07), 950 So.2d 583, 593, cert, denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139 (La. 11/29/06), 943 So.2d 362, 369, cert, denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). It is the fact finder who weighs the respective credibility of the witnesses, and this court will generally not second-guess those determinations. See State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051.

         Officer Kelly Champagne of the HPD was on patrol when he received the initial dispatch and was one of the other officers to arrive on the scene. Officer Champagne was approached by a bystander who informed him that a black male abandoned an object as he ran through the yard across from 222 Carolyn Avenue. Officer Champagne searched the designated area and discovered a black Nike flip-flop type sandal located near a fence. Officer Champagne alerted the detectives on the scene who recovered the sandal.

         Detective Keith Craft of the HPD observed footage taken at the time of the offense by a camera located at a residence on Memory Lane and observed two black males running from Melrose Street along a fenced area, towards Arlington Avenue. The area between Memory Lane and Carolyn Avenue is known as Mechanicville.[3] However, the footage was recorded from a distant range and Detective Craft was unable to identify either of the individuals. Detective Craft subsequently sought additional footage of the area at the time of the offense and observed surveillance footage from two stores, Los Primos and Boost Mobile, adjacently located within close proximity of the Mechanicville area. The detective observed footage of two black males, including one individual who he was able to identify as the defendant, and another individual who he was unable to identify.[4]The individuals appeared to be walking from Los Primos to Boost Mobile. The interior Boost Mobile footage shows the same two individuals inside the store where one of them presents a Boost Mobile employee with what appeared to be a white iPhone.[5] After a brief verbal exchange, the Boost Mobile employee returned the cell phone to the individual.

         Upon arriving on the scene, Sergeant Nicole Voisin, of the HPD learned that the victim's white iPhone 5 was taken during the incident and obtained the corresponding number for the phone. Sergeant Voisin contacted AT&T to obtain an emergency ping for the cell phone and learned that the cell phone's data had been used after the shooting. Sergeant Voisin was further able to locate the defendant's Facebook page posts, one of which consisted of the following posting, "iPhone 5c for sell [sic] AT&T," posted on the day of the shooting. Another post consisted of a photograph of the defendant with the word "KILLA" above the photograph. Two days after the shooting, on November 26, 2013, HPD officers made contact with the defendant and his companion, later identified as Derrick Hanzy, who were leaving the Boost Mobile phone store on Grand Caillou Road. The defendant took flight on foot; Hanzy, however, was detained at that time. Sergeant Voisin collected a size 7, black Allstar Converse shoe across from the store, where the defendant fled.[6]

         Wallace, a member of the Rider Gang derived from the Village East neighborhood, testified that he knows the defendant "[f]rom the streets" and as a member of a gang called Trap Boy Mafia, which originated from the Memory Lane territory in Mechanicville.[7] Wallace stated that he initially lied to the police after his arrest for the instant offense, when he claimed to have no knowledge of the shooting. Wallace testified that he was afraid that the defendant and the Trap Boy Mafia Gang would hate him if he told the truth. He noted that while in jail after their arrest for the shooting, the defendant threatened him by telling him that if he testified, he would have to deal with "his Trap Boy crew[.]" Wallace testified that the defendant was wearing jeans and a black hooded pull-over, and may have been wearing black slippers with a strap. Wallace claimed that on the day in question, he did not know that the defendant was armed until he pulled the gun out. Wallace confirmed that he saw part of the gun when the defendant pulled it out. When asked if he saw the defendant shoot the victim, Wallace responded, ...

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