96-367 La.App. 5 Cir. 5/28/97, State v. Pendelton

• Decision Date: 28 May 1997
• Citation: 696 So.2d 144
• Parties: 96-367 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 144

696 So.2d 144

96-367 La.App. 5 Cir. 5/28/97

STATE of Louisiana v. Christopher PENDELTON.

No. 96-KA-367 c/w 97-KA-206.

Court of Appeal of Louisiana,

Fifth Circuit.

May 28, 1997.

John M. Crum, Jr., District Attorney, William D. O'Regan, Assistant District Attorney, LaPlace, for Plaintiff-Appellee.

James T. Dixon, Jr., Indigent Defender Board, LaPlace, for Defendant-Appellant.

Before GRISBAUM, DUFRESNE and CANNELLA, JJ.

[96-367 La.App. 5 Cir. 1] DUFRESNE, Judge.

STATEMENT OF THE CASE

On October 17, 1994, the St. John the Baptist Grand Jury filed a bill of indictment, charging defendant Christopher Pendelton with the first degree murder of Ernest Fleming, a violation of LSA-R.S. 14:30. James Cockerham, Jr. and Dan Robertson were charged as codefendants. The case was assigned to Division "B" of the Fortieth Judicial District Court, under docket number 94-455. On the same day, the grand jury charged defendant, under a separate bill of indictment, with the armed robbery of Albert Robinson, a violation of LSA-R.S. 14:64. Cockerham and Robertson were charged as codefendants. This case was also assigned to Division "B" of the Fortieth Judicial District Court, under docket number 94-456. Although the two cases were not consolidated below, they were treated as such by the trial court.

[96-367 La.App. 5 Cir. 2] On October 19, 1994, defendant was arraigned, and pled not guilty as to both charges. On February 8, 1995, the state amended the indictment in case number 94-455, reducing the charge to second degree murder. Defendant was arraigned on the amended charge on the same day, and pled not guilty.

On April 18, 1995, the state filed a motion to sever defendants for trial. The trial court granted defendant's motion. The defense moved for, and was denied, a continuance. Defendant was tried in both cases by a jury of twelve. On April 21, the jury returned a verdict of guilty as charged as to both the armed robbery and the second degree murder. On October 5, 1995, the trial court sentenced defendant to the mandatory life term on the second degree murder conviction. On the same day, the trial court sentenced defendant to serve twenty years at hard labor on the armed robbery conviction. The judge ordered that the sentences be served concurrently with each other, and that they both be served without benefit of parole, probation, or suspension of sentence.

On October 10, 1995, defendant filed a motion for appeal only as to the second degree murder conviction, district court number 94-455. The motion was granted on October 23, 1995. The record in the case was subsequently lodged with this Court, and the case given docket number 96-KA-367. The case was assigned to this Court's October, 1996 docket. A preliminary review of the record, however, showed that defendant raised issues in the appeal of his murder conviction which were tied to his armed robbery conviction, and this [96-367 La.App. 5 Cir. 3] Court could not properly address these issues without considering the record in the armed robbery case.

On September 25, 1996, this Court issued an Order removing case number 96-KA-367 from its October, 1996 docket, and directing the trial court to allow appellant thirty days in which to seek reinstatement of his appellate rights as to the armed robbery conviction. On October 15, 1996, defendant filed an application for post-conviction relief in district court case number 94-456, seeking to have his appeal rights reinstated. On the same day, the trial court issued an order reinstating defendant's right to appeal. Defendant subsequently filed an appeal of his armed robbery conviction in this Court, and the case was assigned docket number 97-KA-206. On March 6, 1997, this Court issued an Order consolidating cases 96-KA-367 and 97-KA-206 for docketing purposes.

STATEMENT OF FACTS

At 7:15 a.m. on September 8, 1994, Ernest Fleming and his uncle, Albert Robinson (a.k.a. Red McGee), arrived at the Kart-N-Karry convenience store in Reserve. The store's front faces Louisiana Highway 44 (the River Road); one side of the building faces East Thirteenth Street. The two men went inside the store, where Fleming purchased a can of beer and a pack of cigarettes. They then exited the store, and stood on the East Thirteenth Street side of the building. Fleming watched for some friends who were to give him a ride to work.

An orange pickup truck driven by defendant, Christopher [96-367 La.App. 5 Cir. 4] Pendelton, passed the store, heading upriver on Highway 44. The truck then turned around and entered the store's parking lot. Dan Robertson, a passenger in the truck, got out and asked Robinson and Fleming whether they had any drugs to sell. Robinson responded that he did not. James Cockerham exited the truck and approached Robinson. Defendant pointed a .410 gauge shotgun out of the sliding rear window of the truck, and ordered his companions to rob Fleming and Robinson. Cockerham, who carried a chrome-plated handgun, searched Robinson. He took Robinson's wallet, containing ninety dollars, from his pocket.

Robinson testified that defendant was highly agitated. Fleming was also nervous, and said, "Look man, I ain't done nothing." Defendant fired a shot, hitting Fleming in the chest. Fleming later died from his injuries. Defendant ordered Robertson and Cockerham into the truck, and the three men fled the scene. Robinson ran into the store and asked the owner, Thao Nguyen, to call police. Although Ms. Nguyen did not witness the shooting, she gave police the descriptions given her by Robinson.

Deputy Damian Schexnayder of the St. John the Baptist Parish Sheriff's Office picked up the homicide call over the police radio, and began patrolling the area in search of defendant and his accomplices. Schexnayder and his partner, Deputy Sanders, spotted the orange pickup truck on Highway 44 in Laplace, and attempted to head off the perpetrators. By this time Robertson was at the wheel. He pulled the truck off the road, and the three men fled on foot. Schexnayder [96-367 La.App. 5 Cir. 5] notified department headquarters that he was continuing the pursuit on foot.

Schexnayder and Sanders located defendant hiding in a ditch. Captain Jacob Zeno and a Sergeant Watkins extricated defendant from the ditch and placed handcuffs on him. Sgt. Watkins advised defendant of his Miranda rights. Deputy Jason Weber read defendant his rights a second time, and transported defendant to the parish prison. Deputies also apprehended Robinson and Cockerham.

En route to the prison, defendant made the first of several statements to police. He told Dep. Weber that he and his companions had approached the victims at the Kart-N-Karry with the intention of robbing them. Defendant admitted that "we" shot Fleming, but did not specify who fired the shot. Defendant was transported to the detective bureau of the sheriff's office, where Detective Sergeant Andy Breaux advised defendant of his rights again. Defendant waived his rights, and agreed to answer questions from Det. Breaux and Det. Wayne Schaeffer. Defendant also signed a waiver of rights form. The questioning began at 8:02 a.m. on September 8. Defendant stated that Cockerham and Robertson picked him up at his home in St. Rose in the early morning hours of September 8. The three men rode to the Metairie/Kenner area, where they robbed drug dealers of money and drugs. The group moved on to Laplace, but did not find any victims there. Finally, defendant and his companions stopped at the Kart-N-Karry store in Reserve. Cockerham and Robertson got out of the truck, while defendant remained in the vehicle. Defendant told the [96-367 La.App. 5 Cir. 6] detectives that Cockerham had a .25 caliber handgun, while Robertson carried the .410 gauge shotgun. According to defendant, Robertson shot Ernest Fleming. The three men then fled the scene, heading east on Highway 44. They discarded the weapons along the way. Defendant's statement was not recorded.

After defendant finished his statement, detectives Breaux, Schaeffer, and Bailey took defendant to the area along Highway 44 where the guns had allegedly been discarded. A search for the guns was unsuccessful.

Officers interviewed Albert Robinson on the morning of September 8, and learned that it was the man inside the truck who fired the .410 gauge shotgun at the victim. Captain Robert Hay advised defendant of his rights, and defendant agreed to submit to additional questioning. Additionally, defendant signed another waiver of rights form. Capt. Hay began questioning defendant at 10:40 a.m. on September 8. In response to Hay's interrogation, defendant admitted to having shot Ernest Fleming. This statement was not recorded.

Det. Breaux and Det. C.J. Destor questioned defendant at 12:45 p.m. on September 8. This interrogation was recorded on videotape and on audio tape. Prior to the questioning, defendant was advised of his rights once again, and signed a waiver of rights form. Defendant again admitted to his involvement in the robbery of Mr. Robinson and to the shooting of Ernest Fleming. Defendant stated that Dan Robertson held the .25 caliber handgun on Fleming and Robinson while [96-367 La.App. 5 Cir. 7] James Cockerham searched the victims. According to defendant, Cockerham took twenty-five dollars in cash from Fleming, and drugs from Robinson. Defendant first stated he did not see Cockerham take any money from Robinson, but upon further questioning said Cockerham might have taken Robinson's wallet. The videotape of defendant's statement was presented to the jury at trial (State's Exhibit 11).

Sheriff's deputies located a .25 caliber handgun and a .410 gauge shotgun in the area where defendant had said they were discarded. On September 9, 1994, Det. Breaux presented Albert Robinson with three separate photographic lineups. Mr. Robinson identified Dan Robertson, James Cockerham, and defendant as the three men involved in the robbery and shooting. Robinson indicated that defe...