97-1756 La.App. 4 Cir. 9/16/98, State v. Jordan

• Decision Date: 16 September 1998
• Citation: 719 So.2d 556
• Parties: 97-1756 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 556

719 So.2d 556

97-1756 La.App. 4 Cir. 9/16/98

STATE of Louisiana v. Kevin JORDAN.

No. 97-KA-1756.

Court of Appeal of Louisiana Fourth Circuit.

Sept. 16, 1998.

Harry F. Connick, District Attorney of Orleans Parish, Val M. Solino, Assistant District Attorney of Orleans Parish, New Orleans, for State.

Sherry Watters, Louisiana Appellate Project, New Orleans, for Kevin Jordan.

Before ARMSTRONG, PLOTKIN and McKAY, JJ.

[97-1756 La.App. 4 Cir. 1] McKAY, Judge.

I. STATEMENT OF THE CASE

On May 2, 1996, Kevin Jordan, Henry Talley and Gerald Williams were indicted for the first degree murder of Wendell McGuffey, in violation of La. R.S. 14:30. ¹ The defendant, Kevin Jordan, entered a plea of not guilty at his arraignment on May 7, 1996. After a suppression hearing, the trial court denied the defendant's motion to suppress identification on June 26, 1996. The trial court granted defendant's motion to sever on September 20, 1996. On April 1, 1997, the defendant filed a motion to quash the indictment which was denied by the trial court on the same date. After a three day jury trial, the defendant was found guilty as charged on April 4, 1997. Upon completion of the penalty phase of the trial on April 6, 1997, the jury recommended life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. On May 9, 1997, the defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence.

II. STATEMENT OF THE FACTS

On March 8, 1996 at approximately 10:00 p.m., Officer Donald LeDuff [97-1756 La.App. 4 Cir. 2] and his partner responded to a call of a shooting at 2920 Palmyra Street. When they arrived on the scene they discovered that twelve year old Wendell McGuffey had been shot in the head. They secured the scene and attempted to locate witnesses. They obtained the following information from Lamar Rickmon and Darnell Roussell:

At approximately 9:50 p.m. on March 8, 1996, Darnell Roussell was walking on Palmyra Street when he saw Anthony McGuffey. He approached and started a conversation with Anthony McGuffey and while they were speaking, a green car turned onto Palmyra. Roussell claimed there were three men in the vehicle and that the subject in the back seat was pointing at him. Another subject was driving. A third person, in the front passenger seat, was lying down in the car. Roussell was trying to look in the vehicle when he heard someone say "That's Derue right there," Roussell admitted that his nickname was "Derue". He then saw Kevin Jordan, the defendant, lean out of the front passenger window with a gun and start shooting at him and McGuffey. Roussell heard approximately five to nine shots. Both Darnell Roussell and Anthony McGuffey ran and sought cover. Roussell ran under a house. The children who were outside started running when the shots occurred. When Roussell came from under the house, he heard a lady screaming "Wendell, get up." Wendell McGuffey, had blood coming from his head. The victim subsequently died at Charity Hospital as a result of the gun shot wound.

Officer Mims also spoke with Anthony McGuffey at the scene of the shooting. McGuffey told the officer that he could possibly identify the shooter. McGuffey later identified the defendant, Kevin Jordan, in a photographic lineup as the shooter, which he later recanted.

The witnesses Roussell and Rickman identified Kevin Jordan and Dennis Camacha in the photographic lineups as the perpetrators. Roussell later at [97-1756 La.App. 4 Cir. 3] police headquarters stated that he had seen Camacha in the green vehicle earlier in the day, and that the driver of the vehicle at the shooting scene looked like Camacha and had a lot of gold teeth. Roussell was positive of his identification of Jordan. He could not see who was in the back seat.

Arrest warrants were issued and obtained for Jordan and Camacha. Following their arrests the officers took statements from Dennis Camacha and Kevin Jordan. Camacha identified Henry Talley and Gerald Williams through a photographic line-up. Subsequently, arrest warrants and search warrants were obtained for Henry Talley and Gerald Williams. Henry Talley was arrested on March 14, 1996. During the search of Tally's house a .38 caliber revolver was found under Talley's pillow. The officer also found two cartridge boxes, three starter jackets and three skull caps.

On March 12, 1996, Detective Pete Bowen participated in Jordan's arrest. He and Detective Caprera transported Jordan to the Homicide office where Jordan was advised of his rights. Jordan then waived his rights and Detective Caprera obtained a statement from him. In his statement, Jordan denied any involvement in the shooting. He stated he was with his girlfriend, Shantell Nunnery, at the time of the shooting.

Gerald Williams was also arrested on March 14, 1996. Officer Mims spoke with Williams and his mother. After advising Williams and his mother of Williams' rights and informing them that Williams was under arrest for first degree murder, Williams and his mother signed the rights of arrestee form and waived his rights. Officer Dwight Deal took his statement which he later reiterated at trial. Officer Deal testified that there were no threats, coercion or inducements used to obtain the statement.

At trial Gerald Williams testified that he and Kevin Jordan obtained a green Ford Taurus from James Hill on March 7, 1996. He further testified that [97-1756 La.App. 4 Cir. 4] on March 8, 1996, he and Jordan picked up Henry Talley, in order to find Dennis "Deroue" Roussell. Williams, Talley and Jordan were in the vehicle when the victim, Wendell McGuffey, was shot. Williams then stated that Jordan shot Wendell McGuffey from the front passenger seat and that he was lying down in the back seat so no one could see him. Talley was driving the vehicle. Williams stated he heard four shots.

The same night as the shooting Officer Michael Mims observed a car parked in the front of the residence at 2920 Palmyra Street which had bloody clothes lying on the back. Another car in front of the house had a bullet hole in the left rear door. The officer also found bullet strike marks on the buildings. Two bullets were retrieved from two vehicles on the scene. One bullet was recovered from the victim.

Officer Mims took a statement from James Hill concerning the possession of the green Taurus. Hill identified the defendants Kevin Jordan and Gerald Williams in photographic lineups prepared by Officer Mims. Hill testified that on March 7, 1996, he had rented a 1993 green Ford Taurus. Later that evening, the vehicle was in the possession of Kevin Jordan and Gerald Williams. Hill never saw the vehicle again after March 7, 1996.

Ms. Leona Jordan, the defendant's mother, testified at trial that at approximately 9:30 p.m. on March 8, 1996, she received a phone call from Shantell Nunnery. Shantell told her that the defendant was at her house and he would be home soon. Ms. Leona Jordan testified that on March 8, 1996, the defendant arrived home shortly after 10:00 p.m.

There were a series of other shootings involving Kevin Jordan which were later discovered through police investigations. On August 22, 1995 police responded to a shooting in the 2500 block of Bienville. Kevin Jordan, the defendant in the instant case, was the victim of that shooting. Jordan told the [97-1756 La.App. 4 Cir. 5] officer that four guys he knew from school had driven past him and that three of the subjects had fired on him. Jordan stated that he retreated to a nearby house and returned fire with a Tech 9, a semiautomatic weapon. New Orleans Police officer Dennis Bush conducted a follow-up investigation of this shooting. Jordan one month later, in a photographic lineup, identified four subjects; Terence King, Damon Ford, Charles Daniels and Changlakong Kilvarign.

On September 24, 1995, the date the photographic lineup was conducted, Jordan was shot again. The shooting occurred in the 2400 block of Conti Street. Jordan identified Terence King as one of the perpetrators.

On January 16, 1996, Homicide Detective John Ronquillo investigated a murder which occurred in the 2400 block of Conti Street. Darryl Marshall was killed. Kevin Jordan and Gwendolyn Moliere were injured in the shooting. Terence King was arrested for Marshall's murder.

III. DISCUSSION AND RECOMMENDATION

A. Errors Patent and Assignment of Error No.1

Upon review of the record, no patent errors were found. However, the defendant contends the trial court erred when it denied his motion to quash the indictment. The defendant questions the constitutionality of the statute under which he was charged and convicted. He contends the statute, as it pertains to a drive-by shooting, is vague and overly broad. The defendant also argues that the evidence is insufficient to support the allegation of specific intent to kill more than one person.

The defendant was charged with and convicted of first degree murder in violation of La. R.S. 14:30(A)(1),(3). The statute, in pertinent part, defines first degree murder as "the killing of a human being ... [w]hen the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of ... drive-by shooting ... [or] ... [97-1756 La.App. 4 Cir. 6] [w]hen the offender has the specific intent to kill or to inflict great bodily harm upon more than on person." "Drive-by shooting" is defined as "the discharge of a firearm from a motor vehicle on a public street or highway with the intent either to kill, cause harm to, or frighten another person." La. R.S. 14:37.1.

The defendant argues that the definition of "drive-by shooting" is vague and overly broad. He specifically refers to the terms "public", "cause harm", and "frighten" as being vague and overly broad.

The constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against...