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State v. Ford

Court of Appeals of Louisiana, Fifth Circuit

June 19, 2019

STATE OF LOUISIANA
v.
DERRICK A. FORD, JR.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-760, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Thomas J. Butler Terry M. Boudreaux Zachary P. Popovich Douglas E. Rushton

          COUNSEL FOR DEFENDANT/APPELLANT, DERRICK A. FORD, JR. Derrick A. Ford, Jr. Cynthia K. Meyer

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.

          STEPHEN J. WINDHORST JUDGE.

         Defendant, Derrick A. Ford, Jr., appeals his convictions, habitual offender adjudication, and enhanced sentences. For the reasons that follow, we affirm defendant's conviction, habitual offender adjudication as a fourth-felony offender, and enhanced sentence on count two, attempted simple robbery. Based on our error patent review, we vacate defendant's conviction, habitual offender adjudication as a fourth-felony offender, and enhanced sentence on count one, simple kidnapping. We further remand this case for the trial court to enter a post-verdict judgment of acquittal on count one.

         PROCEDURAL HISTORY

         On March 4, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Derrick A. Ford, Jr., with second degree kidnapping in violation of La. R.S. 14:44.1 (count one), and attempted armed robbery in violation of La. R.S. 14:27 and La. R.S. 14:64 (count two).[1] On March 7, 2016, defendant pled not guilty. On May 9, 2017, the State amended the bill of information to also charge defendant with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count four). Defendant pled not guilty.

         On July 27, 2017, a twelve-person jury found defendant guilty of the responsive verdicts of simple kidnapping in violation of La. R.S. 14:45 (count one), and attempted simple robbery in violation of La. R.S. 14:27 and La. R.S. 14:65 (count two). Defendant was found not guilty on count four, possession of a firearm by a convicted felon.

         On September 13, 2017, the trial court sentenced defendant to five years in the Department of Corrections[2] on count one and three and one-half years in the Department of Corrections on count two to run concurrently with each other and with any other sentence defendant was serving.

         After sentencing, the State filed a habitual offender bill of information, alleging defendant was a fourth-felony offender under La. R.S. 15:529.1 on counts one and two, to which defendant filed objections. On October 12, 2017, after denying defendant's objections, the trial court found that defendant was a fourth-felony offender on counts one and two. The trial court vacated defendant's sentences on counts one and two, and resentenced defendant to twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence on each count to run concurrently with each other and with any other sentence he was serving.

         On October 30, 2017, defendant filed a motion to reconsider his enhanced sentences, which the trial court denied. This appeal followed.

         FACTS

         Approximately 7:00 P.M. on the evening of January 3, 2016, Heather Bourgeois testified that her friend, Charles Willis, drove her to Nahkee DeJean's house located at 5144 Mt. Matterhorn Avenue in Marrero, Louisiana, to buy heroin from DeJean.[3]

         Willis and Bourgeois called DeJean immediately prior to their arrival. After they pulled into DeJean's driveway, DeJean walked to Willis's truck and gave Bourgeois the heroin. Before they could leave, "Bootsy, "[4] later identified as defendant, came out of DeJean's house, saw Bourgeois in the truck with Willis, and became upset. Bourgeois testified that she "begged" Willis to leave, but that he shut off the truck. Defendant, with a gun in his hand, went to the passenger side of the truck where she was sitting and started punching her through the partially opened window. Bourgeois testified that she put her hand over the truck door's lock in an attempt to keep defendant from opening the door, however, she eventually gave up and defendant was able to get her out of the truck.[5] Defendant dragged her into DeJean's house by her hair. Bourgeois testified that she did not want to go into the house with defendant.

         Once inside, defendant hit Bourgeois and screamed at her that he wanted his money. Defendant pointed his gun at her, hit her with the gun, and ordered her to take off her clothes. DeJean, Tanisha Johnson, "Chopper," (later identified as Steven Shallerhorn, Jr.) and Willis were in the house during the incident. When she refused to take off her clothes, Johnson stripped her of her clothes, while "Chopper" stood over her with a gun. Bourgeois testified that at the time, defendant was telling everyone in the house what to do because he was in charge.[6]

         Vivian Varney lived next door to DeJean and heard the disturbance outside involving Bourgeois, and called her sister, which led to the police being called. Deputy Andre Nelson, Jr., Deputy Blaine Howard, and Deputy Gavin Wallace with the Jefferson Parish Sheriff's Office responded to a 9-1-1 call at 5144 Mt. Matterhorn Avenue. Dispatch informed the officers that a black male was striking a white female in the driveway of the residence with a handgun present. Upon arrival, the officers encountered a black male, later identified as Steven Shallerhorn, coming out of the residence, and he was ordered to the ground for officer safety.[7]

         As the officers took Shallerhorn into custody, Johnson opened the door of the residence, saw the officers, then closed and locked the door. Believing that someone inside could be in danger, the officers went to the rear of the residence to prevent anyone from escaping. Once in the backyard, officers observed DeJean sitting next to the back door crying and Johnson was exiting the residence. Both DeJean and Johnson were separated, placed under arrest, and subsequently gave statements. Officers went inside the house and found Bourgeois crying hysterically. Bourgeois was placed in custody while the officers cleared the remainder of the residence.[8] The officers subsequently learned that two other individuals, defendant and Willis, were in the residence prior to the officers going into the backyard and that they had fled out the back door, jumping over several fences to escape.[9]

         As a result of the officers' investigation and statements made by Bourgeois and the other individuals arrested, the officers determined that defendant, "Bootsy," exited DeJean's house after Bourgeois pulled into DeJean's driveway, attacked Bourgeois while she was still in the truck, physically forced Bourgeois into DeJean's residence at 5144 Mt. Matterhorn Avenue by dragging her by the hair at gun point, ordered Bourgeois to strip inside the residence, and when she did not comply, ordered Johnson to strip Bourgeois of her clothing while looking for money.[10] Based on the investigation, an arrest warrant was issued for defendant.

         On January 15, 2016, defendant was arrested on unrelated charges and brought to the detective bureau where he was interviewed by Detective Francis.[11] In his interview, defendant claimed that he was at DeJean's house earlier on January 3, 2016, but he left around 5:30 P.M. He stated that a friend picked him up from DeJean's house.[12] He stated that his "Uncle Mark" then picked him up and he went to his uncle's house.[13] Defendant stated that he was not at DeJean's at the time of the incident or when police arrived.[14]

         ASSIGNMENTS OF ERROR and DISCUSSION

         In his first assignment of error, defendant argues that the trial court's publication to the jury of the videotaped statements of DeJean and Johnson taken after their arrest violated his constitutional right to confrontation. He argues that because DeJean and Johnson were unable to recall any events from that day, defense counsel was denied the opportunity to conduct meaningful and effective cross-examination of the witnesses. He argues that the violation of his right to confrontation was not harmless error.

         When the trial judge swore DeJean in at trial, DeJean stated, "I just don't want to be here, though." DeJean denied knowing "Bootsy" (defendant). She testified that she did not want to have anything to do with this proceeding and she did not recall speaking to the police after she was arrested in January of 2016. The State asked DeJean if her recollection could be refreshed if she saw herself in a videotaped statement, to which she replied that it "probably would. I don't know." DeJean blamed her lack of recollection on mental illness and substance abuse issues, stating that she was not sure if she was able to remember a conversation at that time. The State asked DeJean to "try," to which DeJean replied that the prosecutor was going to do whatever he wanted to do anyway and then she asked whether she had a choice. The State played some of the videotaped statement, and DeJean stated that she did not recognize the individual as herself, even after the State described what she was wearing. The State then played a portion of the video wherein DeJean spelled her name for officers, to which DeJean affirmatively stated she had spelled her name in the video. However, when the State again suggested that she now recognized herself in the videotaped statement, DeJean stated she did not recognize herself but heard her name spelled. When asked again if she recognized herself, DeJean replied, "That's what I'm told."

         Defense counsel objected throughout the State's questions, arguing, inter alia, that DeJean's recollection could not be refreshed since she did not recognize herself. The State continued to ask DeJean questions about the substance of her testimony in the videotaped statement implicating Bootsy as the perpetrator of the crimes involved in this incident, to which she repeatedly answered that she could not remember. DeJean stated that the videotaped statement would not help her remember.

         The State moved to introduce the videotaped statement as a recorded recollection under La. C.E. art. 803(5). Defense counsel objected, arguing that the State did not meet its burden of showing that the videotaped statement was made when the matter was fresh in DeJean's memory or that it was based on DeJean's knowledge at the time because DeJean testified that she could not remember anything. The State responded that testimony from officers showed that DeJean's statement was taken immediately after her arrest following this incident on January 3, 2016, i.e., the statement was made the same night and within a couple hours of this incident. Defense counsel argued that in the videotaped statement, DeJean was "in a similar state as she is now, and I don't know that it's - - it was made when anything was fresh in her memory and whether it reflects any of her knowledge correctly. She's in custody being forced to answer questions, she's not the defendant in this case and it's just improper and prejudicial if the full statement comes in." The trial court overruled the objection and the videotaped statement was admitted into evidence and published to the jury.

         After DeJean's statement was published to the jury, defense counsel cross-examined DeJean regarding whether she used heroin, to which DeJean replied "A lot." DeJean, however, denied using heroin prior to her testimony at trial, stating that the police picked her up too early. When questioned as to whether she used heroin the day of this incident, DeJean stated "plenty." Defense counsel continued to ask DeJean questions about her drug use, prior convictions, and prior police raids at her house related to drugs, to which DeJean answered all of defense counsel's questions without hesitation.

         When Johnson testified, she also stated that she did not want to testify.[15]Johnson admitted that she was at DeJean's house on January 3, 2016 prior to Bourgeois arriving, and that she remembered speaking with police officers prior to being charged in this incident. When the State asked who else was at DeJean's, Johnson replied, "I'm done." While Johnson admitted that she knew defendant, when she was asked if defendant was at DeJean's house on January 3, 2016, Johnson responded, "I'm not answering no questions. I'm ready to go back up state. I'm not testifying." Johnson then testified that she did not remember if defendant was at DeJean's house on January 3, 2016. When asked if she would recognize herself in a videotaped statement made to police on the night in question, she replied that she did not know because she was high. She denied giving a statement to police indicating that she saw what transpired between defendant and Bourgeois. Johnson stated that viewing her statement would not help refresh her memory.

         The State moved to publish Johnson's videotaped statement as a prior recorded recollection under La. C.E. art. 803(5). Defense counsel then lodged "the same objections that I had to Ms. DeJean's," arguing that the witness was not in any state of mind to accurately provide any information because of drug use. The trial court noted defense counsel's objections for the record, admitted Johnson's videotaped statement, and the statement was published to the jury.

         On cross-examination, defense counsel questioned Johnson about the sentence she received for pleading guilty in this case, to which Johnson replied that she received a ten-year sentence and was currently serving part of her sentence at a rehabilitation facility. When asked whether she remembered the events of January 3, 2016, Johnson responded that she did not remember. Defense counsel asked Johnson if she spoke with DeJean after they were taken into custody, to which Johnson replied "No." Defense counsel also showed Johnson a part of the videotaped statement and asked Johnson questions about police tactics. On redirect, Johnson was asked about serving her time in a "rehab center," to which Johnson admitted she was serving her sentence in a prison.

         We find the trial court did not err in admitting the videotaped statements of DeJean and Johnson. The appearance of DeJean and Johnson at trial and their subjection to cross-examination were the only elements necessary to satisfy defendant's right to confrontation. Because DeJean and Johnson claimed they could not remember the events of the incident and that their memories were not refreshed by the videotape under La. C.E. art. 612B, the State offered and the trial court properly admitted their videotaped statements as a recorded recollection under La. C.E. art. 803(5), an exception to the hearsay rule. Furthermore, although defendant claims he was denied his right to cross-examine the witnesses, "the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish." United States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 (1988). Accordingly, this argument is without merit as defendant had an opportunity to, and did in fact, cross-examine both witnesses, both of whom did not hesitate to answer all of defense counsel's questions.

         We also note that the jury was able to view the videotaped statement, the witnesses' demeanors and states of mind therein, and give the recorded statements the weight the jury felt each deserved.

         In his second assignment of error, defendant argues that the trial court's ruling preventing defense counsel from questioning defense witness David Olasky about "Uncle Mark's" unavailability to testify, violated his right to present witnesses and a defense. Defendant alleged that Mr. Olasky's testimony would have proven that defendant was not at DeJean's house at the time of the incident.

         At trial, defense counsel called Mr. Olasky, a private investigator with the Jefferson Parish Public Defender's Office, who testified that during his investigation he was asked to locate a "Mr. Mark Franklin." Mr. Olasky testified that he spoke with Mr. Franklin's mother in person and spoke with Mr. Franklin over the phone. Mr. Olasky stated that he was given Mark's last name, his approximate age and his father's first name, and was able to use that information to find an address in Algiers. He testified that he went to Gretna Park Apartments two times, knocked on two doors, and was told that Mark moved out.

         During questioning, defense counsel attempted to elicit from Mr. Olasky what Mr. Franklin told him in a ten-minute telephone conversation regarding defendant's whereabouts on the night of the incident. Mr. Olasky denied ever meeting Mr. Franklin in person. The State objected to Mr. Olasky's testimony on the grounds that it was in violation of discovery and was hearsay. Defense counsel argued that Mr. Olasky's testimony was admissible since Mr. Franklin was unavailable to testify because he was infirm.[16] Defense counsel also contended the testimony was admissible as a statement against interest because Mr. Franklin represented that he knew where defendant was that evening, therefore, Mr. Franklin is "at risk for criminal liability."[17] The State responded that there was no showing (1) that Mr. Franklin was unavailable, (2) that Mr. Olasky's testimony fell within another hearsay exception, or (3) that Mr. Franklin had ever been arrested or charged in any crime. The trial judge sustained the State's objection, finding that Mr. Olasky's testimony constituted hearsay and the defense had not shown how Mr. Franklin was unavailable.

         Both the Sixth Amendment to the United States Constitution and Article I, §16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Lirette, 11-1167 (La.App. 5 Cir. 06/28/12), 102 So.3d 801, 813, writ denied, 12-1694 (La. 02/22/13), 108 So.3d 763. This right does not require a trial court to permit the introduction of evidence that is inadmissible, irrelevant, or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. Id. A trial judge's determination regarding the relevancy and admissibility of evidence will not be ...


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