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
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
composed of Judges Fredericka Homberg Wicker, Robert A.
Chaisson, and John J. Molaison, Jr.
FREDERICKA HOMBERG WICKER JUDGE.
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.
AND PROCEDURAL HISTORY
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., 
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
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.
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. 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.
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.
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
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.
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.
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.
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.
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.
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
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.
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