State of La. v. JOHNSON

• Decision Date: 26 May 2010
• Docket Number: No. 2009-KA-0706.,2009-KA-0706.
• Citation: 41 So.3d 1188
• Parties: STATE of Louisiana v. Jeremy JOHNSON.
• Court: Court of Appeal of Louisiana — District of US

41 So.3d 1188

STATE of Louisiana v. Jeremy JOHNSON.

No. 2009-KA-0706.

Court of Appeal of Louisiana, Fourth Circuit.

May 26, 2010.

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Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for State of Louisiana.

Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).

PATRICIA RIVET MURRAY, Judge.

In this criminal appeal, the defendant, Jeremy Johnson, appeals his conviction for manslaughter and eighty-year sentence as a habitual offender. Finding no error, we affirm his conviction and sentence.

STATEMENT OF THE CASE

On February 6, 2003, Mr. Johnson and Quantrell Kelson jointly were charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. They both pleaded not guilty. In March and May 2003, the trial court found Mr. Johnson incompetent to proceed. In November 2003, the trial court found Mr. Johnson's competency was restored and that he was able to stand trial. In June 2005, Mr. Johnson and Mr. Kelson jointly were tried by a twelve-person jury. The jury convicted both of them of the responsive verdict of manslaughter. On June 15, 2005, the trial court denied their motions for new trial, sentenced them both to serve forty years at hard labor, and denied their motions to reconsider sentence. The State then filed multiple bills against both of them. On August 1, 2005, the trial court adjudicated both Mr. Johnson and Mr. Kelson second-felony habitual offenders.

On August 4, 2005, the trial court vacated the original sentences imposed on them. Mr. Johnson was resentenced to fifty years at hard labor. The co-defendant, Mr. Kelson, was resentenced to forty-five years. Both Mr. Johnson and Mr. Kelson were granted appeals.

Due to the intervention of Hurricane Katrina, the record was not lodged in this court until May 2006, and transcripts of the proceedings were unavailable. The court reporter responsible for those transcripts certified that her notes and tapes of the proceedings were lost when her home flooded as a result of Hurricane Katrina. Because the transcripts were lost due to no action (or inaction) on the part of Mr. Johnson or Mr. Kelson, this court found their rights to meaningful review of their convictions and sentences were violated. Consequently, this court vacated both of their manslaughter convictions, habitual offender adjudications, and sentences; and remanded the case to the trial court for further proceedings. State v. Kelson, 06-0477 (La.App. 4 Cir. 7/26/06), 936 So.2d 321 (Unpublished Opinion Table).

On June 11, 2007, the trial court denied the motions filed by Mr. Johnson and Mr. Kelson for severance and to suppress the evidence, statement, and identification. On December 21, 2007, the State filed a substitute bill of information charging Mr. Johnson and Mr. Kelson with manslaughter, a violation of La. R.S. 14:31. On January 18, 2008, the trial court, over the State's objection, granted Mr. Kelson's motion to sever. On April 3, 2008, this court denied the State's writ application regarding that ruling.

On December 10, 11, and 15, 2008, Mr. Johnson was tried before a twelve-person jury and found guilty as charged of manslaughter. On December 22, 2008, the trial court sentenced Mr. Johnson to forty years at hard labor without benefit of parole, probation, or suspension of sentence. On that same date, the trial court denied Mr. Johnson's motion to reconsider sentence and adjudicated Mr. Johnson a second-felony habitual offender. The trial court then vacated the sentence previously imposed and resentenced Mr. Johnson as a second-felony offender to eighty years at hard labor. This appeal followed.

STATEMENT OF THE FACTS

On the night of December 5, 2002, Louis Kaplan was severely beaten in his Algier's apartment and left in a trash dumpster. Although he was still alive when the police found him, Mr. Kaplan died a few days later in the hospital. The forensic pathologist who performed the autopsy determined the cause of death to be blunt force trauma.

On the night in question, the New Orleans Police Department ("N.O.P.D") received several 911 calls concerning this crime. Gesielle Rousell, N.O.P.D. Assistant Communications supervisor, identified an audiotape of one of the 911 calls received on December 5, 2002, from the crime scene (3800 Texas Drive in Algiers). The caller (Keisha Price) said she was sleeping at her boyfriend's apartment and woke up to find blood all over the apartment. The caller reported "two black males, no description given." The caller further reported that she jumped out of the window, that her boyfriend possibly was injured inside, and that it was unknown if the subjects were still inside. The call was documented as a report of "unknown trouble."

N.O.P.D. Officer Richard Sasnett testified that he and his partner responded to the report of unknown trouble. In route to the scene, they were flagged down by a female (later identified as Ms. Price) about a block and a half from the apartment. Ms. Price was hysterical, hyperventilating, and having trouble communicating. After the officers calmed her down, Ms. Price described the two suspects who beat up her boyfriend, Mr. Kaplan, as two black males. The first one was six feet tall, weighing one hundred and fifty pounds, and wearing a gray hooded sweatshirt. The second one was about five feet ten inches tall, weighing one hundred and eighty pounds, and wearing all dark clothing. Ms. Price also reported that the first one (the six foot tall individual) came into the bedroom where she was sleeping and that he had a gun.

After speaking with Ms. Price, Officer Sasnett testified that they broadcast the information they obtained from her regarding the two suspects over the police radio and relocated to the apartment. Officer Sasnett entered the apartment, and his partner stayed in the police vehicle with Ms. Price. Officer Sasnett described the apartment as a very bloody scene and characterized it as probably one of the worst crime scenes he had ever seen. Explaining the layout of the apartment complex, Officer Sasnett stated that it was part of a four-plex with two apartments downstairs and two upstairs; Mr. Kaplan's apartment was one of the upstairs apartments. There was a common entrance with stairs to the two upstairs apartments, and a foyer in between them. Officer Sasnett testified that they found a large pool of blood around the front steps of the apartment complex itself, bloody prints and splatters all the way up the common staircase leading up to Mr. Kaplan's apartment, and blood all over the front door of the apartment. He testified that "it was obvious that a big fight had taken place because the furniture had been knocked over and there was blood splattered all over the main room of the apartment."

On cross-examination, Officer Sasnett testified that the lights were on in the apartment when he arrived. He believed another unit had arrived before him and that the officers in that unit had gone to look for the victim. The victim, Mr. Kaplan, was discovered in a dumpster fifty yards away from the apartment complex.

N.O.P.D. Officer Brian Sullivan testified that his unit was the first one to respond to the report of unknown trouble. When he and his partner arrived at the apartment, the front door was open, the lights were on, but no one was inside. Large puddles of blood were on the carpet, and blood was spattered on the wall. Officer Sullivan decided to canvass the area and to attempt to locate a blood trail that would lead him to the bleeding victim. As he was exiting the apartment complex, an unidentified black male, who was standing across the street, flagged him down. Officer Sullivan characterized the man's demeanor as that of a concerned witness. The unidentified man informed him that the victim's body was in a dumpster and pointed him in the direction in which the suspects had fled.

Officer Sullivan testified that he immediately relocated to the dumpster and heard a moaning noise. He looked inside the dumpster and observed several garbage bags and a white sock that appeared to have blood on it. When he removed the garbage bags, he observed a white male, who was in very bad condition. The victim had a large laceration on his throat, was badly beaten, and was wearing only his underwear and socks. Emergency Medical Service ("EMS") and the New Orleans Fire Department arrived on the scene, flipped the dumpster on its side, and removed the victim. The victim was transported to the hospital where he died a few days later. Although Officer Sullivan returned to the spot where he had spoken to the unidentified witness ten minutes earlier, he was unable to find that witness killed by the man. Then he asked me to consider just hiding the shoes for the detectives and he would greatly reward me.

Officer Baron also testified that when Mr. Johnson was apprehended he was wearing his sweatpants turned inside out. After Mr. Johnson's clothing was taken from him at booking, his sweatpants were turned right-side out and what appeared to be blood was found on the exterior side. Once the detectives arrived and took custody of Mr. Johnson, Officer Baron left the office to check whether Mr. Kelson had the same type of substance on his clothing, which he believed to be blood. He learned that Mr. Kelson also had that same type of substance on his clothing. On cross-examination, Officer Baron testified that Mr. Johnson did not resist arrest.

Officer Baron was questioned about errors in the listing of evidence on the police property room evidence list. One error was the failure to list Mr. Johnson's shoes despite that the shoes were in the property room...