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State v. Bernard

Court of Appeals of Louisiana, Fourth Circuit

September 18, 2019

STATE OF LOUISIANA
v.
JONTERRY A. BERNARD

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 521-734, SECTION "A" Honorable Laurie A. White, Judge

          Leon Cannizzaro Donna Andrieu Irena Zajickova DISTRICT ATTORNEY'S OFFICE ORLEANS PARISH COUNSEL FOR STATE OF LOUISIANA/APPELLEE

          Holli Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge Tiffany G. Chase.

          Tiffany G. Chase, Judge.

         Jonterry Bernard (hereinafter "Mr. Bernard") appeals his, two, fifty year consecutive sentences resulting from his conviction of two counts of attempted second degree murder. After consideration of the record before this Court, and the applicable law, we affirm Mr. Bernard's conviction, vacate his sentence and remand the matter for resentencing.

         Facts and Procedural History

         On July 8, 2014, cousins Christopher Chambers (hereinafter "Mr. Chambers") and Mark Mitchell (hereinafter "Mr. Mitchell") went to A.L. Davis Park (hereinafter the "Park"), located in the 2600 block of LaSalle Street in New Orleans, LA, to play basketball. While at the park, Mr. Chambers and Mr. Mitchell were involved in a dispute with Gerard Gray[1] over who had "winners" and would play the next basketball game on the court.

         After the initial dispute, Mr. Chambers walked across the street to a convenience store. As he walked towards the store, Mr. Chambers walked passed Mr. Bernard. Mr. Chambers testified that he attempted to speak to Mr. Bernard, but that Mr. Bernard did not say anything back to him. Once Mr. Chambers returned to the basketball court, he noticed Mr. Bernard standing on the court. Subsequently thereafter, Mr. Mitchell and Mr. Chambers had another encounter with Gerard Gray regarding who was up next to utilize the basketball court. While interacting with Gerard Gray, Mr. Chambers testified that he "felt" Mr. Bernard standing behind him. Mr. Chambers testified that in an attempt to end the dispute he turned around to shake Mr. Bernard's hand but, Mr. Bernard pulled out a gun and started shooting. Mr. Chambers was shot three times, once in the neck and twice in the chest. While running towards his cousin, Mr. Mitchell was shot twice, once in the leg and once in the chest.

         Detective Walter Edmond (hereinafter "Detective Edmond"), the lead investigative detective, responded to the scene of the shooting. Detective Edmond interviewed two witnesses and both victims. Through interviewing the witnesses, Detective Edmond obtained a description of the shooter. Detective Edmond testified that witnesses advised him that the shooter was wearing a red shirt and camo[uflage] pants. Additionally, during his interview, Mr. Chambers advised detectives that he walked past the shooter when he was walking to the convenience store prior to the shooting. From this information, Detective Edmond retrieved surveillance video from the convenience store and observed someone in the clothing described by witnesses in the video. A still photograph of the individual, from the video surveillance, was printed and presented to Mr. Mitchell and Mr. Chambers, at University Medical Center, by Sergeant David Barnes (hereinafter "Sgt. Barnes"). Sgt. Barnes testified that both Mr. Mitchell and Mr. Chambers identified the individual in the photograph as the shooter and identified that person as Mr. Bernard.[2] After the identification by Mr. Mitchell and Mr. Chambers, the still photograph of Mr. Bernard was distributed to the local media. Upon learning of his picture being in the media, Mr. Bernard presented himself to the New Orleans Police Department on July 9, 2014, to answer to the allegations.

         Mr. Bernard was interviewed by detectives over the course of several hours in three separate conversations. At the beginning of the first conversation, Mr. Bernard was read his Miranda[3]rights. In the second conversation, the detectives proceeded to discuss the shooting incident with Mr. Bernard. During the third conversation, Mr. Bernard admitted that he was the shooter and asserted that he shot in self-defense. The interview concluded with the arrest of Mr. Bernard.

         On September 5, 2014, Mr. Bernard was charged by bill of information with two counts of attempted second degree murder, a violation of La. R.S. 14:27 and La. R.S. 14:30.1. A two-day jury trial commenced on October 6, 2015 and the jury returned a ten to two verdict, finding Mr. Bernard guilty of two counts of attempted second degree murder. Mr. Bernard filed a motion for new trial, which was denied by the trial court on December 1, 2015. On the same date, the trial court sentenced Mr. Bernard to fifty-years, on each count, to run consecutively, at hard labor, without the benefit of parole, probation or suspension of sentence. This appeal followed.

         Discussion

         Mr. Bernard lists four assignments of error: (1) the trial court erred in allowing the admission of the jail recording; (2) the ten to two jury verdict violates the Sixth Amendment; (3) the trial court erred in imposing an excessive sentence; and (4) the trial court erred in failing to wait twenty-four hours after denying the motion for new trial to impose the sentence. Additionally, based on a review of the record, the issue listed as Mr. Bernard's fourth assignment of error is also an error patent. Therefore, we will discuss the error patent in conjunction with his fourth assignment of error.

         Admissibility of ...


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