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State v. Norman

Court of Appeals of Louisiana, Fifth Circuit

December 18, 2019

STATE OF LOUISIANA
v.
DERMAINE NORMAN

          ON 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 PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Bridget A. Dinvaut J. Philip Prescott, Jr.

          COUNSEL FOR DEFENDANT/APPELLANT, DERMAINE NORMAN Meghan H. Bitoun

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson

          FREDERICKA HOMBERG WICKER JUDGE.

         Defendant, 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.

         FACTS

         On July 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.

         St. 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.[1] 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 further.[2]

         Defendant was interviewed on June 17, 2011, by Detectives Scott Guillory and Jerry Fountain.[3] 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.[4] 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.[5]Defendant stated that he had forgiven Bailey an $850 debt owed to him to take care of the situation.

         William 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.

         Defendant 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."

         Detective 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."

         After 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 served concurrently.

         PROCEDURAL HISTORY

         On 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.

         On 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.

         On March 26, 2014, defendant filed a motion to suppress various statements made to St. John's Sheriff's Office detectives.[6] 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[7] warnings before making that statement.[8]

         The 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.[9]

         Subsequently, 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.[10]

         On May 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.

         Defendant 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 ...


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