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
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and John J. Molaison, Jr.
STEPHEN J. WINDHORST JUDGE.
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.
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). 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.
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.
September 13, 2017, the trial court sentenced defendant to
five years in the Department of Corrections 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.
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.
October 30, 2017, defendant filed a motion to reconsider his
enhanced sentences, which the trial court denied. This appeal
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
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, " 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. Defendant dragged
her into DeJean's house by her hair. Bourgeois testified
that she did not want to go into the house with defendant.
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.
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.
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. 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.
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. Based on the investigation, an arrest
warrant was issued for defendant.
January 15, 2016, defendant was arrested on unrelated charges
and brought to the detective bureau where he was interviewed
by Detective Francis. 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. He stated that his
"Uncle Mark" then picked him up and he went to his
uncle's house. Defendant stated that he was not at
DeJean's at the time of the incident or when police
OF ERROR and DISCUSSION
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
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
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.
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.
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.
Johnson testified, she also stated that she did not want to
testify.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.
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.
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.
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.
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
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
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.
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. 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." 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.
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 ...