APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF
ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 12, 337,
DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable
Bridget A. Dinvaut J. Philip Prescott, Jr.
COUNSEL FOR DEFENDANT/APPELLANT, DERMAINE NORMAN Meghan H.
composed of Judges Fredericka Homberg Wicker, Marc E.
Johnson, and Robert A. Chaisson
FREDERICKA HOMBERG WICKER JUDGE.
Dermaine Norman, appeals his conviction for conspiracy to
commit second degree murder as obtained in violation of his
constitutional privilege against self-incrimination and right
to a unanimous jury verdict. Defendant further claims that
the appellate record is insufficient. We affirm his
conviction and thirty-three year sentence as we find no merit
to defendant's alleged violations of his constitutional
rights under the Fifth, Sixth, and Fourteenth Amendments, and
find that the supplemented appellate record provides the
necessary information for a complete review. As there are
errors in the Uniform Commitment Order, we remand this case
to the trial court for correction of that order.
17, 2011, Frank Lewis was shot in front of his house on 134
East 14th Street in Reserve, Louisiana, while leaving for
work. St. John's Sheriff's Office deputies collected
eight 9 mm shell casings in front of the residence. During an
autopsy, it was revealed that the cause of death was trauma
due to a projectile, which was recovered from the
victim's body. The victim had been shot three times, once
in the left arm and twice in the left buttock.
John's Sheriff's Office detectives arrested Carlton
Brown as a suspect. Brown admitted to driving Kentrell Bailey
from Laplace to Reserve at the request of defendant in
exchange for $200, money defendant previously owed him, as
well as gas money. He dropped Bailey at a residence and drove
down the street. Brown thought he heard gunshots, but
attributed the noise to the projects next door. Bailey
returned to the vehicle and told Brown that the person he was
looking for was not home. After noticing a change in
Bailey's demeanor, Brown did not question Bailey
was interviewed on June 17, 2011, by Detectives Scott
Guillory and Jerry Fountain. Defendant told the detectives
that he believed the victim, his former co-worker, had
provided information that resulted in defendant being shot in
the head on his way to work three weeks ago. Defendant was
also questioned several times on July 12, 2011, by the
victim's sister Eliza Eugene and Detective Fountain;
Detective Guillory and Captain Randall Joseph; and again by
Detective Fountain. On August 5, 2011, Detective Guillory and
Detective Hymel interviewed defendant, and after he waived
his rights, defendant admitted that he asked Brown to give
his cousin Bailey a ride to Reserve to shoot the
victim.Defendant stated that he had forgiven
Bailey an $850 debt owed to him to take care of the
D. O'Regan, III, the chief prosecutor for the cases
against Bailey and defendant for the St. John's District
Attorney's Office ("D.A.'s Office"),
extended an immunity agreement to defendant to obtain a
conviction against Bailey. On August 29, 2013, O'Regan
and Captain Larry LeBlanc, an investigator at the D.A.'s
Office, met with defendant and his then-counsel Ed Greenlee.
Defendant had driven to the meeting at the D.A.'s office
from Texas where he was living while released on bond.
O'Regan testified that he met with defendant because he
wanted to know what defendant's testimony would be at
trial before granting defendant immunity. O'Regan
testified that defendant related to him that, believing the
victim had put a hit out on him, he enlisted Bailey to kill
the victim and gave him cash or forgave a debt. Defendant
told O'Regan that after the murder, Bailey called and
said "it was done." Defendant thereafter signed the
immunity from prosecution agreement, accepting the offer in
exchange for his "accurate, complete, and truthful
testimony" at Bailey's trial.
then provided a recorded statement to Detective Fountain with
his attorney present. In that statement, defendant related
that he told Bailey that he thought he was set up by the
victim, to which Bailey responded "somebody's gotta
go." Defendant understood this to mean that the victim
would be shot. Bailey offered to take care of it, and
defendant thought that Bailey would "rob him, shoot
him." Defendant hesitated to speak further when
Detective Fountain directly asked him about the details of
the deal. Defendant and his attorney spoke privately outside
of Detective Fountain's presence. Upon their return, Mr.
Greenlee related defendant's concerns that the statement
was "not something that is designed or set up to have
new charges filed against him or come back against him, . .
.that anything he says today and when he testifies on the
ninth or any other time he has to go to court on this case,
cannot and will not be used against him." Mr. Greenlee
sought assurances that after giving the statement, defendant
would be free to return to Texas and "no new charges or
any charges arising out of any of this statement or testimony
will ever be brought against him."
Fountain stated that, according to the D.A.'s office,
after giving his statement defendant "will be released
and he'll be allowed to go back to Texas as long as he
appears on the ninth for the trial to testify." He
further assured defendant that no federal charges would be
brought against defendant and his material witness warrant
would be recalled. Defendant then told Detective Fountain
that he paid Brown $200 in advance to pick up Bailey. Brown
and Bailey went to the victim's house on two occasions;
"Frank got killed" on their second trip. It was
understood that Bailey's debt would be cleared upon
Bailey "taking care of it."
signing the immunity agreement, Captain LeBlanc served
defendant with a subpoena for Bailey's trial date.
Defendant, however, failed to appear on Monday, September 9,
2013, when the D.A.'s office would have made arrangements
for him to stay at a hotel outside of the parish. Captain
LeBlanc spoke to defendant on multiple occasions on September
9th, and defendant told him that he was having car troubles
and he was afraid for his life. When defendant failed to
appear for Bailey's trial on the morning of September 10,
2013, the State allowed Bailey to plead guilty to one count
of conspiracy to commit second degree murder and one count of
attempted possession of a firearm by a convicted felon with a
sentence of five years imprisonment on each count to be
September 17, 2012, the St. John District Attorney filed a
bill of information charging defendant, Dermaine Norman, with
conspiracy to commit second degree murder in violation of La.
R.S. 14:26 and La. R.S. 14:30.1. On October 4, 2012,
defendant was arraigned and pled not guilty.
August 29, 2013, defendant entered into an immunity agreement
with the D.A.'s Office in exchange for immunity for the
charged offense, and the terms of the agreement detailed that
he would testify at his co-conspirator Kentrell Bailey's
trial. On September 10, 2013, when defendant failed to
appear, the State orally voided the immunity agreement and a
bench warrant was issued for defendant.
March 26, 2014, defendant filed a motion to suppress various
statements made to St. John's Sheriff's Office
detectives. The State filed an objection to the
motion, arguing that the motion lacked specificity and should
be denied. On October 13, 2014, defendant supplemented his
March 2014 motion to suppress, identifying six specific
statements he sought to suppress. Of note, he sought to
suppress the August 29, 2013 recorded statement made to
Detective Jerry Fountain at the D.A.'s office wherein he
implicated himself and Bailey in exchange for immunity from
the State. Defendant's motion to suppress was heard on
October 13 and December 8, 2014. On February 27, 2015, the
trial court issued a written judgment granting the motion to
suppress as to the August 29, 2013 statement because it was
not voluntary as it was made during the course of immunity
negotiations and defendant had not received
Miranda warnings before making that
State sought this Court's supervisory review of the trial
court's suppression of the August 29, 2013 statement. On
June 25, 2015, this Court granted the State's writ, held
that the statement was admissible, and remanded the matter
for proceedings consistent with its disposition. See
State v. Norman, 15-259 (La.App. 5 Cir. 6/25/15)
(unpublished writ disposition) (JJ., Wicker, Murphy,
Johnson). On July 28, 2015, defendant filed a writ with the
Louisiana Supreme Court, which was not considered due to its
untimely filing. State v. Norman, 15-1467 (La.
8/28/15), 174 So.3d 1158.
on May 6, 2016, the State filed a Notice of Intent to
Introduce Defendant's Statements. The State indicated its
intention to introduce defendant's August 29, 2013
unrecorded statement made to Assistant District Attorney
O'Regan and Investigator LeBlanc, as well as the August
29, 2013 recorded statement to Detective Fountain in its
case-in-chief. On May 9, 2016, defendant filed an opposition,
stating that the statement made to Mr. O'Regan and Mr.
LeBlanc was not previously the subject of a suppression
motion, and the State had the burden of proving the
admissibility of the statement. The statement was ultimately
determined to be admissible by this Court.
9, 2016, defendant filed a motion to declare La. C.Cr.P. art.
782(A) and La. Const. art. 1, § 17 unconstitutional.
Defendant argued that the statutes were unconstitutional to
the extent they allowed for a non-unanimous verdict in
non-capital felony cases. The trial court denied the motion
after a hearing.
filed a Motion to Suppress Statement Given Under Inducement
or Promise on May 9, 2016. Defendant once again challenged
his recorded statement to Detective Fountain. On May 17,
2016, the trial court issued a written ruling, finding that
it would permit the use of ...