State of La. v. Bone, 12–KA–34.

• Decision Date: 11 September 2012
• Docket Number: No. 12–KA–34.,12–KA–34.
• Parties: STATE of Louisiana v. Eric J. BONE.
• Court: Court of Appeal of Louisiana — District of US

107 So.3d 49

STATE of Louisiana

v.Eric J. BONE.

No. 12–KA–34.

Court of Appeal of Louisiana,

Fifth Circuit.

Sept. 11, 2012.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Scott U. Schlegel, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.

Eric Bone, IPP, Angola, LA, Defendant In Proper Person.

Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.

FREDERICKA HOMBERG WICKER, Judge.

[5 Cir. 2]Defendant appeals his conviction for second degree murder claiming that the evidence presented against him at trial was not sufficient to support his conviction. Defendant further assigns as error the trial court's denial of his motion to suppress text messages obtained by police through a subpoena duces tecum without a showing of probable cause. For the reasons discussed herein, we affirm defendant's conviction.

Procedural Background

On November 19, 2009, a Jefferson Parish Grand Jury returned an indictment charging defendant, Eric J. Bone, with the second degree murder of Demetrius Jackson in violation of La. R.S. 14:30.1.¹ Defendant was arraigned and pled not guilty. On May 10, 2011, defendant proceeded to trial before a twelve-person jury. On May 13, 2011, the jury found defendant guilty as charged. On May 19, 2011, the trial judge sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On May 24, 2011, defendant filed a motion for appeal, which was granted by the trial court.[5 Cir. 3]Factual Background

The victim, Demetrius Jackson, was shot and killed outside of Cesar's nightclub in the early morning hours of July 25, 2009. Kyron Jackson, the victim's brother and a member of the Calliope Gang, arrived at Cesar's nightclub with a group of friends between 12:30 and 1:00 a.m. on July 25, 2009. Members of the Gert Town gang, including defendant (aka “Heavy”) and co-defendant Shawn Flot, subsequently arrived at the club and confronted the Calliope gang. Kyron testified that members of the Calliope gang began “fussing” and “throwing money up” at the Gert Town gang members; he further stated that one member of the Calliope gang spit in Shawn's face leading to a “big old confrontation.” Kyron testified that the actions of the Calliope gang prompted Shawn to tell Kyron, “I'm going to kill you when we get out the club.” At some point during this verbal confrontation, an unrelated physical altercation took place among some other patrons of the club and the Gert Town and Calliope members left the club. Kyron testified that while he, the victim, and another Calliope gang member known as “Stink” began walking to their car, a vehicle driven by defendant and occupied by other Gert Town members pulled up on the roadway and stopped. Kyron testified that co-defendant Shawn Flot exited the vehicle and began shooting; Kyron ran back toward the club but noticed that defendant's car circled the block to apparently see if anyone was shot before fleeing the scene. Kyron followed the ambulance to the hospital to see his brother but did not provide any information to investigating authorities that night.

Officer Jacob Tapley testified that he was working a detail at Cesar's nightclub on July 25, 2009, when the shooting occurred. Officer Tapley was outside of the club, approximately 300 feet away, when he heard gunshots. Tapley testified that he did not witness the shooting but did notice a silver four-door [5 Cir. 4]vehicle driving away from the scene at a high rate of speed; he radioed the description of the vehicle into headquarters and ran to the victim to render assistance. On cross-examination, Tapley testified that he never saw anyone getting out of the vehicle and never saw any doors open or close; further, he testified that he never observed the vehicle circle the block or return near the scene.

Officer Alton Savage testified that he was working a detail a few blocks away from the shooting on July 25, 2009. Savage testified that he received the description of an Infiniti vehicle involved in a shooting over his radio and, within seconds, noticed a vehicle matching the given description traveling at a high rate of speed. Savage activated his emergency lights and attempted to stop the Infiniti; he further noted the vehicle's license plate number and testified that the vehicle appeared to contain four occupants. Savage testified that the vehicle's driver refused to stop and a high speed chase continued to the interstate where Savage lost sight of the vehicle near the I–10 Slidell exit. A vehicle that matched the license plate and description given after the shooting was recovered burned and abandoned that same day in New Orleans.

Detective Ashton Gibbs testified that he reported to the shooting scene at approximately 3:00 a.m. to investigate the homicide but that the bar patrons were either uncooperative or stated that they did not witness the shooting. The only lead provided to Detective Gibbs was the vehicle's license plate number, which he learned was registered to an Erica Bone. Detective Gibbs and another officer went to Erica Bone's home. She told the officers that her mother and defendant, her brother,were the primary drivers of the vehicle. Erica Bone provided her mother's address where defendant also lived. Detective Gibbs subsequently went to defendant's mother's home. Sandra Bone told Detective Gibbs that she did not know where her son was.

[5 Cir. 5]Detective Gibbs testified that Sandra Bone later contacted him and told him that she wanted defendant to meet with him. Detective Gibbs brought defendant to headquarters where he provided a statement disclosing that he was at Cesar's nightclub on July 25, 2009, but declined to provide any further details without an attorney.

Approximately one week after the shooting, Detective Gibbs met with Kyron Jackson who identified defendant in a photographic lineup as the driver of the vehicle involved in the shooting. Detective Gibbs testified that Kyron went back and forth as to the identity of the shooter but ultimately identified co-defendant Shawn Flot as the shooter. Based upon the information developed during the investigation, officers arrested defendant and co-defendant Shawn Flot and executed search warrants of their homes. From defendant's bedroom, detectives seized photographs depicting defendant, Shawn Flot, and a Darrin Jones together, as well as a T-shirt depicting members of the “Gert Town” gang; they also recovered an Infiniti ignition key, documentation relating to the vehicle, a Samsung cell phone with a contact number for “Shawn,” a holster, and two magazines. Detectives additionally seized hand-written lyrics to a rap song containing the phrase, “I stumped my ass off, black Glock, with my 40,” which Detective Gibbs testified made reference to the Gert Town gang and the idea of killing as a hobby. From Shawn Flot's residence, Detective Gibbs recovered a .40 caliber Glock handgun and a 9 mm handgun. Detectives also recovered a second handgun from a vehicle belonging to Shawn Flot's father. The weapons seized were tested and none of the weapons were consistent with the shell casings found at the scene.

Detective Gibbs also testified that Erica Bone provided him with defendant's cell phone number; Detective Gibbs gave that cell phone number to his supervisor [5 Cir. 6]to obtain a subpoena for defendant's cell phone records. After the detectives received records from Sprint Nextel, they learned that the phone number was registered to defendant's mother, Ms. Sandra Bone, and that many text messages received through the subpoena made reference to the shooting at Cesar's on July 25, 2009. Detective Gibbs testified that the text messages made reference to the victim known as “Little D” and also referred to the vehicle being “long gone.” Through defendant's cell phone records, Detective Gibbs identified individuals who communicated with defendant following the murder as Sandra Bone, Erica Bone, Shykeva Bone, Wilkena McCalebb, and Jasmine Dixon, who all testified at trial.²

Joseph Trawicki, a records custodian for Sprint Nextel, testified that the company received a subpoena for records relating to phone number 504–415–9231. Sprint Nextel responded to the subpoena and provided documentation reflecting the subscriber information, a call detail record log, and a printout of text messages sent and received for the date requested, July 25, 2009. The records demonstrate that the subscriber or owner of the phone is defendant'smother, Sandra Bone; the call detail log reflects the incoming and outgoing calls of that number in the hours following the murder. Trawicki testified that Sprint Nextel's subpoena compliance department produced records of subscriber information and call detail record logs relating to additional phone numbers subscribed to various individuals including Shykeva Bone, Lucella McCalebb, Erica Bone, Sandra Bone, and Jasmine Dixon; subsequently, Sprint Nextel's compliance department also produced printouts of text messages sent and received on those numbers.³

[5 Cir. 7]Defendant's friend, Wilkena McCalebb, testified that she was with defendant on the night of the shooting and that defendant dropped her off in his Infiniti at approximately 1:00 a.m. She further testified that her friend, Tia, who was also with them that night, used her phone to exchange text messages with defendant after the shooting. Specifically, the text messages state, “[a]lright, luv, but don't kick dat to nobody what I told you, not even Darrin,” to which Tia responded, “What?,” and defendant stated, “Da shit at Ceaser.”

The defendant's cousin, Shykeva Bone, also testified and confirmed that defendant is part of the “Gert Town Hounds” and that defendant was at Cesar's on the night of the shooting. Shykeva called defendant...