94-1036 La.App. 5 Cir. 4/16/96, State v. Durham

• Decision Date: 16 April 1996
• Citation: 673 So.2d 1103
• Parties: 94-1036 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1103

673 So.2d 1103

94-1036 La.App. 5 Cir. 4/16/96

STATE of Louisiana v. Joel DURHAM.

No. 94-KA-1036.

Court of Appeal of Louisiana,

Fifth Circuit.

April 16, 1996.

Bruce G. Whittaker, Staff Appellate Counsel, 24th Judicial District, Indigent Defender Board, Gretna, for Appellant Joel Durham.

John M. Mamoulides, District Attorney, Alison Wallis, Assistant District Attorney, 24th Judicial District Parish of Jefferson, Gretna, for Appellee State of Louisiana.

Before GAUDIN, CANNELLA, JJ., and Remy CHIASSON, J. Pro Tem.

[94-1036 La.App. 5 Cir. 2] CANNELLA, Judge.

Defendant, Joel Durham, appeals from his conviction of first degree murder and his sentence to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. For the reasons which follow, we affirm.

Deputy Mark Cerabolo testified that on February 8, 1992 he responded to a call at a McDonald's restaurant on Severn Avenue in Metairie, Louisiana. He found a young man, Leo Kern, lying unconscious on the floor, receiving cardiopulmonary resuscitation (CPR) from a deputy and a civilian. Kern had been shot. Additional officers and emergency personnel arrived shortly thereafter and the victim was driven away and died from the gunshot wound. Cerabolo secured the scene and found a spent projectile, which had pierced the victim's body and lodged in the ceiling of the restaurant. Officers also [94-1036 La.App. 5 Cir. 3] recovered a casing from a nine millimeter pistol. There were several witnesses to the crime who saw the perpetrator. Captain Walter Gorman, at the scene, obtained descriptions of the perpetrator from these eyewitnesses. Two of them, a McDonald's employee, Antoinette Dickerson, and the victim's fiancee, Yesenia Aniles, saw the perpetrator point a gun at Kern, receive money from him and then shoot him. Gorman made several composite sketches of the perpetrator and the witnesses agreed on one that best depicted his appearance. This drawing was used in the sheriff's office "wanted" bulletins.

The following night, Detective Gregory Noble was on duty and saw the composite drawing of the murder suspect and recognized the perpetrator as Joel Durham. He so informed Lieutenant Steve Buras, commander of the sheriff's office homicide division. Based on this information, Buras compiled a photographic lineup which included a picture of defendant and showed it to the witnesses. The five witnesses who viewed the photographic line-up all selected the picture of defendant as the person who had shot Kern.

Meanwhile, on the night following the shooting, Lester Ibesa, upon seeing the news account of the shooting and the picture of defendant, went to his family and told them that he had been involved in the robbery and shooting at the McDonalds. Two days after the shooting, on the morning of February 10, 1992, at 5:00 a.m., Ibesa, accompanied by his mother and stepfather, turned himself in at the First District lockup on Metairie Road. He gave a statement to the deputies informing them of his involvement in the crime as well as the involvement of defendant. He told the officers that defendant was staying at his parents' house in Tylertown, Mississippi. Ibesa also took Buras to the home of a friend on West Loyola Drive in Kenner where [94-1036 La.App. 5 Cir. 4] the weapon used in the robbery and shooting was located.

Based on the evidence that they had gathered, the officers obtained an arrest warrant for defendant. Several Jefferson Parish officers went to Tylertown, Mississippi to arrest defendant. Accompanied by local authorities, they went to the address supplied by Ibesa and found defendant there in bed, asleep. They placed him under arrest and he transported him to the Walthall Sheriff's Department, in Mississippi. He was advised of his rights. Defendant agreed to waive his rights and make a statement. In that statement, he denied having been in the McDonalds in Metairie on the night of the shooting. Some hours later, defendant made a second statement in which he admitted that he robbed Kern, but he stated that the gun fired accidentally. Defendant signed a waiver of extradition and voluntarily returned to Louisiana with the Jefferson Parish officers.

On April 9, 1992, defendant and Ibesa were indicted for the first degree murder of Kern, in violation of La.R.S. 14:30. Defendant was arraigned on April 27, 1992 and entered a plea of not guilty. On July 1, 1992, the trial court granted Ibesa's motion to sever. On September 11, 1992 the trial court heard and denied defendant's motion to suppress his confession. On October 16, 1992 the trial court heard and denied defendant's motion to suppress the identifications. Trial commenced against defendant, alone, on March 21, 1994 and continued over a five day period.

The state's chief witness against defendant was Ibesa. He testified at trial that he had been acquainted with defendant for about a month before the shooting, that he had purchased the gun which was used in the shooting, that he had fired it several times and that defendant had also fired it before the [94-1036 La.App. 5 Cir. 5] shooting. On the night of the robbery and shooting, Ibesa was in the company of defendant in the early evening and they had been drinking and taking Xanax pills. Defendant told Ibesa that he needed money for rent. Ibesa suggested that he rob the Eggroll House Restaurant, where he had previously worked. The two drove to the restaurant in defendant's car. Defendant took Ibesa's loaded nine millimeter semi-automatic pistol with him. They did not carry out the robbery because the restaurant was closed. Defendant then drove the car to a Time Saver store with the intent of robbing it, but decided against it because the store was too well lighted. Defendant next drove to a Shell service station, but decided against robbing it because of the bullet proof glass. At about 9:30 p.m., the two men drove to the McDonalds restaurant on the corner of Severn and West Esplanade Avenues. Defendant parked his car on the West Esplanade Avenue side and told Ibesa to go inside and check it out as a possible target. Ibesa went into the restaurant and walked toward the bathrooms. He observed several patrons and employees. He returned to the vehicle and told defendant that he could not successfully rob the restaurant. However, defendant insisted, stating, "I can do this place." Defendant told Ibesa to drive around to the other side of the restaurant. Ibesa drove around to the other side and observed defendant through the window. He stated that he saw defendant pull the gun out and point it at Kern. Kern put a black box on the counter and gave money to defendant. Defendant then fired the gun, hitting Kern. Defendant ran out of the restaurant door. As defendant ran across the parking lot toward the car, he encountered another McDonalds' employee, Lawrence Landry, who had fled the restaurant through a rear door after hearing the gunshot. Defendant looked directly at Landry and pointed [94-1036 La.App. 5 Cir. 6] the gun at him, but did not shoot. Defendant entered the passenger side of the vehicle and told Ibesa to drive off. As he entered the vehicle, Ibesa testified that defendant said to him "I should have shot the (racial epithet)," referring to Landry. Defendant had the money in his left hand and the gun in his right hand. Defendant handed Ibesa twenty of the sixty dollars he had taken from the restaurant. Ibesa testified that defendant told him that he shot Kern because Kern had said that he was going to remember his face.

Several other witnesses to the shooting identified defendant and Ibesa. One witness described defendant's actions as "very deliberate and very normal." Another witness testified that Kern gave defendant the money and said to the defendant, "Don't shoot, don't shoot" and the defendant fired. Still another witness testified that the gun was pointed at Kern's heart and that defendant appeared to be aiming the gun.

Louise Walzer, a firearms expert, testified that she compared the projectile from the ceiling, the casing, the firearm and found that they all matched. She also testified that the muzzle of the weapon was between eighteen and twenty-four inches from the victim when it was fired. She stated that she tested the weapon for accidental firing and that it would not fire accidentally.

Dr. Susan Garcia performed the autopsy on Kern. She testified that the victim died from a single gunshot to the left chest. The bullet exited the lower back. The angle of the wound indicated that either the gun was above the victim or that the victim was leaning slightly forward when he was shot. The bullet struck the pulmonary artery and the victim bled to death. Dr. Garcia opined that the weapon was twelve to eighteen inches from the victim when it [94-1036 La.App. 5 Cir. 7] was fired.

Defendant did not testify at trial. The trial concluded on March 26, 1994 with a unanimous jury verdict of guilty, as charged, of first degree murder. The penalty phase of the proceedings was conducted on March 28 and 29, 1994 and concluded with a unanimous recommendation of life imprisonment. On April 27, 1994 defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant filed a motion for new trial and a motion to reconsider sentence. Both motions were denied. Defendant filed a motion for appeal which was granted.

On appeal defendant assigns eight errors.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that his constitutional rights were violated at trial when the state used its peremptory challenges to systematically exclude black prospective jurors from the panel, contrary to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The basis of defendant's Batson challenge is that the prosecution used three of its peremptory challenges in challenging Ms. Comeaux, Ms. Townsend and Ms. Davis, to purge the jury of all remaining black...