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State v. Ellis

Court of Appeals of Louisiana, Fifth Circuit

July 15, 2019

STATE OF LOUISIANA
v.
KENDELL ELLIS

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-6748, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Lynn Schiffman Zachary P. Popovich.

          COUNSEL FOR DEFENDANT/APPELLANT, KENDELL ELLIS, Lieu T. Vo Clark

          Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and John J. Molaison, Jr.

          FREDERICKA HOMBERG WICKER JUDGE.

         Defendant, Kendell Ellis, appeals his convictions for second degree murder, attempted second degree murder, and conspiracy to commit armed robbery. For the following reasons, we find both of defendant's assignments of error to be without merit and therefore affirm his convictions and sentences. Finding an error patent, we remand this matter to the District Court for correction of the uniform commitment order and minute entry to conform with the transcript.

         FACTS AND PROCEDURAL HISTORY

         At approximately 8:42 p.m. on October 23, 2014, Lakeisha Pierre heard gunshots outside of her sister's residence at 1101 DiMarco Street in Marrero, Louisiana. A man, later learned to be Anderson Massey, ran in her direction and fell face first onto the ground. The deceased's Pontiac G6 and a small dark four-door car took off towards the Westbank Expressway. Ms. Pierre discovered her eight-year-old niece, A.T., who had been playing outside with her four-year-old cousin, had been shot in her backside, and Ms. Pierre lay on the ground comforting her until the EMS arrived to take her to University Hospital.[1], [2]

         Deputy Dominick Henry of the Jefferson Parish Sheriff's Office (JPSO) was dispatched to the location and found Mr. Massey with multiple gunshot wounds lying face down on a driveway between two vehicles. JPSO Homicide Detective Jean Lincoln interviewed the witnesses, A.T., Ms. Pierre, and David Bailey. Mr. Bailey was the only witness to see the shooter chasing the victim with a gun, but he did not know or recognize him.

         JPSO found six fired cartridge casings and a copper projectile at the scene. Dr. Marianna Eserman, an expert in the field of forensic pathology, performed an autopsy on Mr. Massey the next day. She testified that the cause of death was a gunshot wound to the chest, and that the manner of death was homicide. Mr. Massey also had a gunshot wound to the abdomen, entering through the right lower back, and a graze gunshot wound of the hand.

         Detectives searched Mr. Massey's apartment at 1109 DiMarco and found over $1, 100 in cash, a semiautomatic pistol, an assault rifle, marijuana, pills, and scales. The victim's two cellular phones were not recovered, but the records were requested from Verizon and T-Mobile.[3] The victim's vehicle was located the next day in Algiers using its GPS tracking device. It was recovered at an apartment complex at 3300 Garden Oaks where it appeared to have been recently cleaned on the outside and ransacked on the inside. Detectives obtained a warrant to search the victim's car. Upon searching the vehicle they found that the carpets and paneling had been removed from the car. Crime Scene Investigator Peter Nguyen dusted the vehicle for latent prints and collected DNA samples from the interior door handle, gearshift, and steering wheel.

         Detective Lincoln obtained video surveillance taken on the night of the murder from Gold Star Pawn, New Orleans Original Daiquiris on Lapalco, and a business called NOLA LED on Westwood, all located near the murder scene. Detective Lincoln testified that they had no suspects after viewing the videos and that the first time a witness came forward was Jonathan Emilien on November 10, 2014. In October of 2014, Mr. Emilien had been assisting narcotics detectives on an unrelated case. They asked him if he knew anything about the DiMarco shooting, and he answered negatively.

         Mr. Emilien was later incarcerated in the Jefferson Parish Correctional Center (JPCC) in November of 2014, in the same annex or tier as defendant, someone that he had known since 2001. He testified that while he and defendant were talking one day, Mr. Emilien brought up an incident that he had heard about of somebody being shot and killed on DiMarco. In response, defendant said that it was "his work." Mr. Emilien testified that after the lights went out in the dorm, while they were sleeping in nearby beds, defendant told him that he was there with C.J. (the victim), that "they" tried to rob him, and that shots were exchanged. Mr. Emilien had known the victim from the neighborhood as a drug dealer, but did not know him well. Defendant told him that he called the victim about buying marijuana and that they were supposed to meet at the daiquiri shop on Lapalco in Marrero. When the victim did not show up, defendant and "J" went to DiMarco. Mr. Emilien stated that he later learned that "J" was Jarred Simmons.

         Mr. Emilien testified that defendant told him that when they saw the victim in his vehicle driving on DiMarco, defendant called the victim's cell phone, saw the phone light up in the victim's car, and therefore, knew that it was Mr. Massey. Mr. Emilien explained that defendant had the victim's phone number because a third party had previously called victim's phone number on either the defendant's or Mr. Simmons's telephone. When defendant and Mr. Simmons got to the victim's apartment on DiMarco, they exited their vehicle and approached the victim from behind as he was trying to put his key into the door of his residence. When the victim resisted, defendant shot him. Defendant told Mr. Emilien the victim tried to run away after the first shot. Defendant also told him that he and Mr. Simmons had guns and that defendant's gun was a Smith and Wesson 9 mm. Mr. Emilien also testified that defendant said that he and Mr. Simmons then went into the victim's apartment and took marijuana and $1, 700. Defendant told him that he and Mr. Simmons were the last people to call the victim before the murder.

         Defendant also told him that one of them drove off in a white Charger that belonged to defendant's girlfriend Beldina Walker, and the other one took the victim's car from the scene before the police arrived. Mr. Emilien recalled that defendant told him his girlfriend lived in the apartments behind the Auto Zone on Manhattan. Mr. Emilien testified that after he got this information, he asked to speak to a detective. He maintained that he came forward because he felt badly about the young girl who was shot. Mr. Emilien testified that at the time he spoke to the detectives, he had not seen police reports, newspaper articles, or nola.com articles about the DiMarco shooting; he maintained that he got his information from defendant.

         Mr. Emilien testified that four or five days after his first meeting with detectives, he requested a second meeting with them as he had gotten more information from defendant. Defendant believed that "Josh" must have told the police about his involvement in the DiMarco shooting. Mr. Emilien explained that when he clarified with defendant that "Josh" was from Lincolnshire with "dreads," he realized it was Joshua Jernigan whom he knew well. Mr. Emilion understood Mr. Jernigan to be the person who gave defendant the victim's phone number. Additionally, in December of 2014, Jarred Simmons came to his cell, trying to intimidate him, and said that word was circulating that Mr. Emilien had gone to detectives about the DiMarco situation. Mr. Emilien told Mr. Simmons that he was not admitting to it. He stated that days later, Mr. Simmons came back to his cell and told him that it was his "work" on DiMarco, that he shot the victim, and that defendant was just present at the time. Mr. Emilien recalled writing a letter to Detective Morris in January of 2015, about that talk, explaining that he was feeling concern for his safety after his interaction with Mr. Simmons and that he had asked the prison personnel to keep him separated from Mr. Simmons and defendant, but they did not.

         Mr. Emilien admitted that he was a drug dealer. He explained that at the time he spoke to the detectives, he was facing charges for possession of heroin. He insisted that the detectives did not promise him that they were going to give him a plea deal or leniency but that they would inform the district attorney of his cooperation. He stated that he was facing ten years in prison, and that in April of 2016, he got a plea deal from the State wherein he would serve four years for possession of heroin and three years for resisting an officer. Mr. Emilien testified that he pled guilty to those charges and served his time. Mr. Emilien testified while incarcerated in Atlanta for armed robbery, aggravated assault, and false imprisonment, but testified that no one from Jefferson Parish District Attorney's Office or Sheriff's Office had offered him assistance on those charges. He also testified to prior convictions for felon in possession of a firearm, aggravated battery, second degree battery, possession of heroin, and possession of a controlled dangerous substance.

         Mr. Emilien also wrote a letter on behalf of defendant in August of 2015, at the insistence of defendant. The letter was for defendant's attorney expressing his intent to not cooperate with the State and with questions for the defense attorney to ask Mr. Emilien. Defendant instructed Mr. Emilien regarding the answers defendant wanted him to provide. Mr. Emilien testified that defendant did not want him to testify at trial. He stated that defendant wanted him to say that he heard the information regarding the DiMarco shooting through the grapevine from third persons, and that he went to detectives to try to get a deal for a reduction in sentencing on his heroin charge.

         Joshua Jernigan testified that on October 23, 2014, at 8:00 p.m., he was in the Lincolnshire subdivision in Marrero with Ethan Allan. He recalled seeing Mr. Simmons, whom he knew from the neighborhood, and another person in a car whom he could not identify. They pulled up to him, and Mr. Simmons asked him who did his tattoos. Mr. Jernigan testified that he provided three names to Mr. Simmons, including "C.J.," the victim. Mr. Jernigan called a friend who gave him the victim's phone number. Afterward, he called the victim from his phone. Mr. Jernigan asked the victim if he was "doing tattoos" that night, and asked the victim where they could meet. The victim told them to meet him at the daiquiri shop on Lapalco. Mr. Jernigan testified that they subsequently went to that daiquiri shop. He got out of his car and got into the car with Mr. Simmons. The victim did not show up. Mr. Jernigan stated that he did not go to the victim's house.

         Mr. Jernigan testified that he recalled giving a statement to the police in February of 2015, but it was not the truth and that he was telling the truth at trial. Mr. Jernigan recalled telling police that Mr. Simmons and the other person asked him to set them up with somebody to buy marijuana. Mr. Jernigan recalled telling the police that the other person with Mr. Simmons said that the real plan was to rob or "jack" the victim. He claimed that he did not know anything about the instant case other than what the detectives told him about defendant's charges. Mr. Jernigan testified that he had felony and misdemeanor convictions for possession of marijuana, and contributing to the delinquency of a minor, possession of a legend drug, simple robbery, and domestic abuse.

         Jarred Simmons testified while still facing his own murder charges in the instant case. He testified that defendant was his cousin. Mr. Simmons testified that on October 23, 2014, he asked Mr. Jernigan to put him in contact with someone to sell him marijuana and that Mr. Jernigan called the victim and set up a meeting at the daiquiri shop on Lapalco. The victim did not show up so Mr. Jernigan called the victim who told them to meet him on DiMarco Street. He stated that Mr. Jernigan got back in the car with Mr. Allan and left. Mr. Simmons testified ...


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