State v. Wells
| Citation | 203 So.3d 233 |
| Decision Date | 14 September 2016 |
| Docket Number | NO. 2014-KA-0612,2014-KA-0612 |
| Parties | State of Louisiana v. Tyrone Wells |
| Court | Court of Appeal of Louisiana (US) |
Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, 619 S. White St., New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Bidish J. Sarma, 1204 Dwight Way, Berkeley, CA 94702, COUNSEL FOR DEFENDANT/APPELLANT, TYRONE WELLS
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu )
The defendant, Tyrone Wells, appeals his conviction and sentence for second degree murder. Finding no reversible error, for the reasons that follow, we affirm his conviction and sentence.
Tyrone Wells (hereafter "Wells" or "the defendant") was charged by a grand jury indictment on 28 August 2003 with first degree murder, a violation of La. R.S. 14:30. He pleaded not guilty at his 3 September 2003 arraignment. Trial proceeded in March 2009; however, the jury was unable to reach a verdict and a mistrial was declared. Wells' second trial commenced in October 2009 beginning with a Witherspoon voir dire pre-selection of jurors lasting for 11 days in October. The formal trial began on 30 November 2009 with eleven jurors being selected, sworn and sequestered. Trial recommenced on 4 December 2009 when one additional juror and alternates were selected and sworn. A verdict was rendered on 16 December 2009, finding Wells guilty of second degree murder. His motion for new trial was denied on 20 May 2010, and he was sentenced on 18 June 2010 to mandatory life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This timely appeal followed.
Wells was convicted of the 11 July 2003 murder of Jose A. Vazquez, Jr. (hereafter, "Jose" or "the victim").
Kimberly Vazquez ("Kimberly"), Jose's widow, testified that she and Jose had been together for twelve years, married for eight at the time he was killed, and residing together at 5323 Venus Street in New Orleans, directly behind the family's restaurant. A back gate in their residence fence allowed one to enter upon the restaurant property and into the rear door of the restaurant.
On the morning of 11 July 2003, Jose arose at about 4:51 a.m., went into the restroom, prepared to leave, kissed his wife goodbye, said goodbye to the puppies, turned off their home alarm, exited through the front door, resetting its alarm, and drove off in his truck. Kimberly got up, turned on the television and a lamp, before receiving a call informing her that the restaurant's alarm had gone off. She tried to call the restaurant and Jose's cellphone a number of times but got no answer. When the alarm company called a second time, Kimberly asked them to please dispatch the police because something was wrong. Kimberly replied in the negative when asked whether she knew the defendant, had ever seen him before this incident, or had ever seen him at the restaurant.
She stated that the alarm company called their residence, and she told them her husband was not home. She confirmed that the alarm company called her mother-in-law, then called her back with a question as to whether her mother-in-law had understood what the company had asked of her about the alarm company dispatching the police to the restaurant in response to the alarm. Kimberly stated that at that point she told them to dispatch the police. She confirmed that she and Jose had no children. She testified that she believed her father-in-law reopened the restaurant approximately a week after the funeral.
John Stokes, Jr. testified that in June 2003 he was employed by the United States Army, Department of Defense, and a company commander for 377thTheatre Support Command, stationed at 5010 Leroy Johnson Drive, in New Orleans, on Lake Pontchartrain. His unit had a written food contract with the Vazquez Seafood Restaurant that took effect on 8 June 2003, pursuant to which the restaurant was to cater breakfast and lunch to the unit, with the members of the unit eating dinner at the restaurant. The contract was in effect on 11 July 2003. The victim would personally set up and serve breakfast in the Reserve Center, usually arriving between 6:00 and 6:30 a.m.
Julio Guzman, owner of J&J Alarms, testified that J&J provided security/ burglar alarms for the doors and the motion detector inside the Vazquez Seafood Restaurant. Two doors were in the front of the restaurant and one in the rear; all were on the same alarm zone. He described how when one enters the restaurant through either the entry/exit, "entry delay" doors at the front or the rear, the keypad would beep for thirty or forty seconds until one turned it off. He said that if not turned off within that time a signal would be reported to "command central" or "central station;" he confirmed on cross examination that "a different company" monitored the alarm. He said that if entry was made through a non-entry delay door, the alarm signal would be sent immediately.
Mr. Guzman explained that special instructions for the restaurant's alarm account were for "command central" to call relatives (he later said the relatives were supposed to be Jose or Jose Vazquez, Sr.) before the police were called and dispatched. This was due to prior false alarms and a city ordinance mandating fines for false alarms exceeding a certain number. Mr. Guzman identified an exhibit1 as a report generated as a result of the alarm going off at the Vazquez Seafood Restaurant on 11 July 2003, reflecting an entry/exit through one of the "entry delay" doors at 5:17:44 a.m., which he later confirmed was actually thirty seconds after the entry, when the signal went to command central that the alarm code had not been entered at the keypad to turn it off. The report reflected that a "restore" was made at 5:17:50 a.m., which was when command central received an indication that the door had closed after the entry six seconds earlier. The report reflected that calls were made to relatives, and a second entry/exit was made through either the front or rear entry delay doors at 5:23:45 a.m.
Mr. Guzman testified on cross examination that the keypad to turn off or set the alarm was in the rear of the restaurant. He confirmed that if the alarm is not deactivated/ turned-off within thirty seconds, a signal is sent to the alarm command central alerting it that the alarm had not been deactivated/ turned off. He stated that the keypad would eventually stop beeping and no alarm siren was present at the restaurant itself. The report reflected that command central got no telephone response at the restaurant. The report reflected that eight attempts were made to contact Jose Vazquez, Sr. Mr. Guzman confirmed the presence of an entry at 5:34 a.m. and a variety of later entries. He further confirmed on redirect examination that motion detectors were installed in the restaurant; everything shown in the report as "zone 2" triggers would be motion detectors being triggered.
Andrea Taylor, the New Orleans Police Department ("NOPD") Assistant Police Communications Specialist, identified two exhibits, respectively, as an incident recall and 911 recording of 11 July 2003 under NOPD item #G-19464-03, a signal 30-C, denoting a homicide by cutting at 5328 Franklin Avenue, the "Vazquez Restaurant." The incident recall reflected that the first 911 call was received at 5:35 a.m. from a caller named "Jose." EMS was notified at that same time. The incident recall reflected that the alarm company called 911 at 5:37 a.m.
Ms. Taylor confirmed on cross examination that the call from "Jose" was that his son (Jose) had been stabbed inside the restaurant. She confirmed that a call at 5:41 a.m. reflected that an armed robbery with a gun was involved and the possible perpetrator was an employee. A police officer reported at that same time that two subjects were down inside the location.
Jose Vazquez, Sr. (hereafter, "Mr. Vazquez") testified that he was originally from Cuba and had been in the United States for forty-one years. He worked as a welder for approximately ten years before going into the grocery business. He and his son, Jose, later opened the restaurant as co-owners and operators, doing everything from cooking to cleaning the floors. In 2003, he lived on St. Roch Avenue, approximately five blocks away from the victim's home and the restaurant. He said his son would get to the restaurant around 5:00 a.m. or earlier to get the breakfast ready for an Army contract. But he would leave through the front door around 2:00 p.m. on banking days, enter his vehicle, and drive to the bank to make deposits of the previous day's receipts, which he said could be between $2,500 and $5,000. He would return from the bank with coins in various denominations for the cash register, transporting the money in a bank bag. The money was kept in a desk located in a locked small office.
Mr. Vazquez testified that 11 July 2003 was a Friday, and Thursday's receipts were in the locked office that morning. When he received the call about the alarm, he got dressed, gathered his identification, his wallet, and his gun, and drove to the restaurant. From inside his parked car in front of the restaurant, he observed someone inside the restaurant with a backpack on his back, limping toward the rear of the restaurant. He drove to the rear of the restaurant, believing that it was a robbery and that the person would attempt to exit through the rear door. The back gate was closed and chained. He saw no movement, so he drove around to the front of the restaurant. When he could see no movement at the front, he returned to the rear. He telephoned his wife, who informed him that she had talked to their son's wife, who had told her that Jose was inside the restaurant. At that...
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