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State v. Green

Court of Appeals of Louisiana, Fifth Circuit

December 26, 2019

STATE OF LOUISIANA
v.
JACOBIE A. GREEN AKA "COBIE"

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-3758, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Matthew R. Clauss Laura S. Schneidau

          COUNSEL FOR DEFENDANT/APPELLANT, JACOBIE A. GREEN AKA "COBIE" Meghan H. Bitoun

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

          ROBERT A. CHAISSON JUDGE.

         Defendant, Jacobie A. Green a/k/a "Cobie," appeals his convictions and sentences for two counts of second degree murder and one count of attempted second degree murder. On appeal, defendant contends that the trial court erred in admitting his statement at trial, in denying his motion to quash the indictment, in admitting speculative photographs, and in including the State's requested jury charge. Finding no merit to these arguments, we affirm defendant's convictions and sentences.

         PROCEDURAL HISTORY

         Defendant was charged, by grand jury indictment, with the second degree murders of Johnell Ovide a/k/a "Ruga" (count one) and Trammel Marshall (count two), in violation of La. R.S. 14:30.1, and the attempted second degree murder of Blake Lamb, in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count three).[1] Defendant pled not guilty at his arraignment. Following the resolution of some pre-trial motions, the matter proceeded to trial before a twelve-person jury on July 31, 2018. At the conclusion of the trial on August 3, 2018, the jury unanimously found defendant guilty as charged.

         On September 12, 2018, following the denial of defendant's motion for new trial, the trial court sentenced defendant to life imprisonment on counts one and two and fifty years imprisonment on count three, all without benefit of parole, probation, or suspension of sentence, to run consecutively. Defendant now appeals.

         FACTS

         This case involves a double homicide and an attempted homicide that occurred on June 21, 2015, on the westbank of Jefferson Parish. On that date, defendant, Dartanya Spottsville, and Johnell Walker went to Reginald Henry's apartment where they shot and killed Trammell Marshall and Johnell Ovide and attempted to kill Blake Lamb.

         At trial, Reginald Henry testified about the circumstances surrounding part of the shooting incident. According to Mr. Henry, on June 21, 2015, he, his cousins - Johnell Ovide and Trammell Marshall - and his friend, Blake Lamb, were at his apartment located at 1617 Apache Drive in Harvey. At approximately 10:00 p.m., as Mr. Henry was in his bedroom getting ready to go to a party, he heard a knock at the door. Mr. Henry came out of his bedroom, and Mr. Marshall opened the door. Standing there were Jacobie Green (defendant), Dartanya Spottsville (a/k/a "Lo"), and Johnell Walker (a/k/a "Shadow"), whom Mr. Henry knew.[2]

         The three wanted to know the location of the party and were allowed to enter Mr. Henry's apartment, at which point Mr. Lamb placed a gun on top of a stool. Mr. Spottsville reached for the gun. At that same time, Mr. Lamb also reached for it saying, "nah, … they got one in the head."[3] Mr. Henry, who was walking toward his bedroom, stopped and told Mr. Spottsville not to touch the gun. According to Mr. Henry, Mr. Spottsville picked up the gun, pointed it toward Mr. Ovide, and shot once, and then pointed it toward Mr. Lamb and shot him. In an attempt to save his life, Mr. Henry ran to his bedroom, "hit the bed" and "went straight through the window."

         As he escaped, Mr. Henry heard more gunshots and "ow's from the shots, like it was hitting somebody." During his testimony, when asked about the number of gunshots he heard, Mr. Henry described that it "sounded like warfare." Once Mr. Henry got outside, he ran through the open gate of the apartment complex, asked someone to call the police, and then sat down on the side of the stairwell until the police arrived.

         Blake Lamb also testified at trial regarding the circumstances surrounding the shooting. According to Mr. Lamb, on June 21, 2015, at approximately 10:00 p.m., he, Mr. Marshall, Mr. Ovide, and Mr. Henry were at Mr. Henry's apartment where they were making plans to go to a daiquiri shop. While they were smoking marijuana and playing on their phones, there was a knock at the door. Someone opened the door, and defendant, Mr. Spottsville, and Mr. Walker were allowed inside.

         Mr. Lamb described that Mr. Ovide had a gun sitting on his lap and gave it to Mr. Spottsville when he asked for it. After playing with the gun for a little while, Mr. Spottsville gave it back to Mr. Ovide. Mr. Spottsville then asked Mr. Lamb for his gun. Although Mr. Lamb let Mr. Spottsville take it, Mr. Lamb told Mr. Spottsville to give him back his gun as he had "one in the head." Mr. Spottsville then pointed the gun at Mr. Ovide and fired it. Next, Mr. Spottsville pointed the gun at Mr. Lamb and shot him in the shoulder. Mr. Lamb asserted that when Mr. Spottsville started shooting, defendant and Mr. Walker also started shooting, and Mr. Walker shot at him.[4]

         Mr. Lamb recalled that when the shooting started, Mr. Marshall "dove" into the kitchen and Mr. Henry ran to his bedroom. Mr. Spottsville went out the front door followed by Mr. Ovide. Defendant and Mr. Walker went into the kitchen, stood over Mr. Marshall, and started shooting Mr. Marshall. While Mr. Lamb was sitting on the floor, he heard a lot of screaming and gunshots and asked defendant what he was doing. According to Mr. Lamb, defendant came up to him, put the gun to his face, told him to "shut the f*ck up," and shot him in his mouth. Defendant and Mr. Walker subsequently ran out of the apartment. Mr. Marshall, who was crying, got up from the kitchen and walked out the front door. Mr. Lamb walked in Mr. Henry's bedroom but did not see anyone in there, at which point he walked back to the front room and slid down the front door, thinking he was about to die.

         Deputy Christian Dabdoub of the Jefferson Parish Sheriff's Office was the first officer to respond to the scene of the shooting. Upon his arrival, Deputy Dabdoub saw three victims, who were later identified as Mr. Marshall, Mr. Ovide, and Mr. Lamb. Deputy Dabdoub described that Mr. Marshall was lying on the grass, writhing in pain, and covered in blood, [5] that Mr. Ovide was lying still on the ground and did not appear to be breathing, [6] and that Mr. Lamb was sitting upright and leaning against the doorframe of the apartment bleeding heavily from his face and neck. Deputy Dabdoub noticed that the window to one of the rooms was broken and that the blinds and curtains were hanging outside. Further, he noted that the front door was open revealing the "chaos" inside, which included furniture moved "all over the place," bullet casings on the floor, and blood everywhere. Deputy Dabdoub spoke to Mr. Lamb, who had been shot in the face, and asked him who had done this, and Mr. Lamb replied, "Cobie from Betty Street." Deputy Dabdoub then asked Mr. Marshall who had done this to him, and he said, "Cobie from the Marrero Projects."[7]

         During his testimony, Deputy Dabdoub also relayed his interaction with Mr. Henry at the scene of the shooting. He noted that Mr. Henry was hiding behind a vehicle across the street, that he was crying, terrified, distraught, and shaking, and that he had blood on his arms. Deputy Dabdoub testified that Mr. Henry described the three men that came to the apartment that night, that Mr. Henry identified one suspect as defendant and a second suspect by the nickname "Shadow," and also identified the 1900 block of Betty Street as the possible location of the suspects.[8]

         Mr. Henry was eventually brought to the detective bureau, at which time he was interviewed by Detective Jean Lincoln of the Jefferson Parish Sheriffs Office. Based on the preliminary information given by Mr. Henry, Detective Lincoln prepared photographic lineups of defendant and Mr. Walker. Mr. Henry positively identified these two individuals as being present at the time of the shootings. Mr. Henry also showed Detective Lincoln the addresses for those three individuals who were inside his apartment at the time of the murders. With Mr. Henry's assistance, Detective Lincoln identified 1909 Betty Street as defendant's residence and learned that the residence next door, 1911 Betty Street, was associated with the third perpetrator, later learned to be Mr. Spottsville. Detective Lincoln also learned that 1477 Lincoln Avenue was the address associated with Mr. Walker. They went back to the bureau, at which point Mr. Henry positively identified Mr. Spottsville as the third perpetrator.

         Based on the information learned through her investigation, Detective Lincoln prepared a search warrant for Mr. Spottsville's address, but no items were collected from there. While there, the officers saw Denise Buras, defendant's mother, outside of 1909 Betty Street. Ms. Buras said that she was a resident of that address and gave her consent to search it.

         During the search, the officers identified a bedroom belonging to defendant.[9]In that bedroom, Detective Lincoln and other officers observed two shooting targets with holes in them hanging on the wall. The officers also located and retrieved a Glock .40 caliber magazine, a box of Blazer .40 caliber ammunition, an empty box for a Glock model 22 handgun, and an empty box for a Glock model 23 handgun. The officers also found, in one of the Glock boxes, a receipt dated June 15, 2015, for a Glock model 23 handgun with a customer name of "J. Green" on it. They also found inside the other Glock box a receipt dated February 5, 2015, with "J. Green" on it for a Glock model 22 .40 caliber handgun. Detective Lincoln asserted that .40 caliber casings were recovered from the crime scene[10] and that no Glock handguns, boxes, or .40 caliber ammunition were located in Mr. Spottsville's bedroom.

         At approximately 10:00 a.m. on June 23, 2015, defendant appeared at the front desk of the detective bureau and initially spoke to Detective Gabriel Faucetta to attempt to provide an explanation about the whereabouts of the firearms from the empty Glock boxes that were collected from his bedroom. When Detective Lincoln joined them approximately ten minutes later, defendant indicated that he did not have possession of either of those weapons and had lost possession of at least one of the guns several days before the shootings in the instant case, which was several days after he bought it. Defendant claimed that he was sitting outside his residence with a weapon in his lap when a stranger walked up and asked to see it. He further claimed that he let the stranger see it, after which the stranger allegedly pointed the weapon at him and then ran away with it.

         Detective Lincoln noted suspicious similarities between that story and Mr. Henry's statement as to how the shootings first began. Detective Lincoln testified that defendant initially told them he was not at the apartment that evening and that he was with Archie Hulbert, who could corroborate his alibi. She further testified that when she asked defendant about his whereabouts during the shootings, he lost eye contact, distanced himself from looking at her, became nervous, and started sweating. As Detective Lincoln believed defendant was withholding information, she moved him to an interview room to videotape his statement. She read defendant his rights, and defendant waived them.[11]

         In his statement, [12] defendant denied being at the scene of the shootings for many hours. At some point, he admitted being present at the scene at the time of the shootings but insisted he did not have a gun. Later on, he admitted that he had a gun and that he shot it three or four times during the incident. He claimed that his head was turned while he was shooting, and therefore, he did not know who or what he was shooting at.

         At trial, there was also testimony from some expert witnesses. Detective Solomon Burke, who worked for the Jefferson Parish Sheriff's Office digital crimes unit, testified as an expert in the field of mobile device forensics. Detective Burke relayed to the jury that he examined six mobile devices in connection with the instant case and was able to extract data from defendant's cell phone. He identified three images that were extracted from that device (which are the subject of defendant's argument in Assignment of Error Number Three and will be discussed therein). Detective Burke also testified that in February of 2015, there were web searches for Glock products and a Google search for a thirty round magazine for a Glock 22 on defendant's phone.

         Linda Tran, who was employed by the Jefferson Parish Sheriffs Office as a firearm examiner, testified as an expert in the field of firearm ballistic identification and analysis. Ms. Tran asserted that specimens/casings 3, 4, 5, 6, 8, 10, 11, and 23 recovered from the crime scene were consistent with having been fired by the same Glock firearm. Further, she stated that specimens/casings 9, 22, and 48 recovered from the crime scene were fired in a different weapon, noting that those specimens had teardrop firing pin impressions which were unique to the Smith and Wesson pistol, mainly the M&P model. Ms. Tran indicated that specimens 12, 24, 38, and 49 recovered from the crime scene were projectiles with polygonal rifling, which was one of the features of a Glock pistol. She also testified that specimen 38, which caused Mr. Ovide's fatal wound, was consistent with having been fired "in" a Glock firearm and that specimen 49, a projectile removed from Mr. Lamb's jaw, was consistent with having been fired "in" a Glock firearm. Ms. Tran testified that specimen 46 was a projectile recovered from Mr. Marshall's chest and that specimen had ballistic similarities with specimen 48 that were consistent with a Smith and Wesson firearm.

         DENIAL OF MOTION TO SUPPRESS STATEMENT (Assignment of Error Number One)

         In his first assigned error, defendant challenges the trial court's denial of his motion to suppress statement. He maintains that his statement was not given pursuant to a valid waiver of rights and was not freely and voluntarily made.

         Prior to trial, defendant filed a motion to suppress statement on the basis that it was illegally and unlawfully obtained. In his memorandum in support thereof, defendant maintained that his statement was not freely and voluntarily given based on the length of the interrogation, the coercive tactics employed by the detectives, and the failure to re-advise him of his Miranda[13] rights once the interview turned into a custodial interrogation.

         At the suppression hearing, Detective Faucetta testified that on June 23, 2015, defendant voluntarily came to the detective bureau and informed the receptionist that he wanted to speak to someone in the homicide section. Detective Faucetta walked to the front desk reception area and proceeded with defendant to his office. Defendant advised Detective Faucetta that during a search of his residence, a box for a pistol had been collected and that the gun that belonged in the box had been stolen from him. However, defendant claimed he had not reported the gun as stolen and gave a vague story about the circumstances under which the gun had been taken. According to Detective Faucetta, during this initial voluntary interaction, ...


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