FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 521-734,
SECTION "A" Honorable Laurie A. White, Judge
Cannizzaro Donna Andrieu Irena Zajickova DISTRICT
ATTORNEY'S OFFICE ORLEANS PARISH COUNSEL FOR STATE OF
Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Paula A. Brown,
Judge Tiffany G. Chase.
Tiffany G. Chase, Judge.
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.
and Procedural History
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 over who had "winners" and
would play the next basketball game on the court.
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.
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. 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.
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
Mirandarights. 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.
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.
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.