State v. Alexander

• Decision Date: 13 July 2022
• Docket Number: 2021 KA 1346
• Citation: 344 So.3d 705
• Parties: STATE of Louisiana v. Kerry ALEXANDER
• Court: Court of Appeal of Louisiana — District of US

344 So.3d 705

STATE of Louisiana

v.Kerry ALEXANDER

2021 KA 1346

Court of Appeal of Louisiana, First Circuit.

Judgment rendered: JULY 13, 2022

Kristine M. Russell, District Attorney, Shaun Phillip George, Assistant District Attorney, Thibodaux, Louisiana, Attorneys for Appellees State of Louisiana

Gwendolyn K. Brown, Baton Rouge, Louisiana, Attorney for Defendant/Appellant Kerry Alexander

Kerry Alexander, Angola, Louisiana, Self-represented Litigant

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

HOLDRIDGE, J.

The defendant, Kerry Alexander, was charged by grand jury indictment with two counts of second degree murder, violations of La. R.S. 14:30.1, and pled not guilty on each count. After a trial by jury, he was found guilty as charged on each count.¹ The trial court denied his motions for post-verdict judgment of acquittal, new trial, and arrest of judgment. Defendant was sentenced on each count to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, to be served consecutively. The trial court denied his motion to reconsider sentence. The defendant now appeals, assigning the following as error in a counseled brief: (1) the trial court erred in not giving a requested special jury charge; (2) the trial court erred by imposing the life sentences consecutively; and (3) the trial court imposed excessive sentences. The defendant assigns the following as error in a pro se brief: (1) the evidence is insufficient to support the convictions; (2) the polling of the jury was unclear and non-compliant with La. C.Cr.P. art. 812 ; (3) the defendant was denied his constitutional right of confrontation; and (4) the defendant was denied his constitutional right to due process by the admission of other crimes evidence. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

On December 15, 2018, between 2:00 and 3:00 p.m., officers of the Lafourche Parish Sheriff's Office (LPSO) were dispatched to the scene of shootings that occurred in the garage of a residence on Market Street, in Raceland, Louisiana, in a neighborhood called Greenville. The two victims of the shootings, Marcel Turner and Jeremiah Ballard, suffered and succumbed to multiple gunshot wounds.² After responding to the scene, the LPSO began receiving tips related to the shootings. Based on a detailed tip, LPSO officers were dispatched to an IHOP restaurant in Boutte, Louisiana, where they coordinated with deputies of St. Charles Parish to take the defendant and his brother, Jerrell Alexander ("Jerrell"),³ into custody as suspects in the shootings.

Trevor Smith, an eyewitness at the scene of the shootings, came forward and identified the defendant and Jerrell in photographic lineups, as the two gunmen who entered the garage wearing masks that did not fully cover their faces. The defendant was taken into custody, advised of his Miranda rights,⁴ signed a waiver of rights form, and participated in a recorded interview. During the interview, the defendant repeatedly denied having any knowledge of the shootings on Market Street or being in the area at the time.

SUFFICIENCY OF THE EVIDENCE

In pro se assignment of error number one, the defendant notes that his motion for post-verdict judgment of acquittal was based on the lack of evidence in the record that he was ever properly identified as the perpetrator. On that basis, the defendant argues that no rational trier of fact could find that he is guilty beyond a reasonable doubt or to a moral certainty. Thus, he concludes that the convictions should be reversed.⁵

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The standard of review for sufficiency of the evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime and the defendant's identity as the perpetrator of the crime beyond a reasonable doubt. See La. C.C.P. art. 821(B) ; Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Williams, 2019-0077 (La. App. 1 Cir. 5/31/19), 2019 WL 2315340, at *2, writ denied, 2019-01060 (La. 10/1/19), 280 So.3d 158. The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Dyson, 2016-1571 (La. App. 1 Cir. 6/2/17), 222 So.3d 220, 228, writ denied, 2017-1399 (La. 6/15/18), 257 So.3d 685.

Second degree murder is defined in pertinent part as "the killing of a human being: (l)[w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]" La. R.S. 14:30.1(A)(1). Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1) ; State v. Coleman, 2017-1045 (La. App. 1 Cir. 4/13/18), 249 So.3d 872, 877, writ denied, 2018-0830 (La. 2/18/19), 263 So.3d 1155. Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Currie, 2020-0467 (La. App. 1 Cir. 2/22/21), 321 So.3d 978, 983.

The State bears the burden of proving those elements, along with the burden to prove the identity of the defendant as the perpetrator. Coleman, 249 So.3d at 877. When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. A positive identification by only one witness is sufficient to support a conviction. State v. Weary, 2003-3067 (La. 4/24/06), 931 So.2d 297, 311, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006).

Under La. R.S. 14:24, "[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals." An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Bridgewater, 2000-1529 (La. 1/15/02), 823 So.2d 877, 890, cert. denied. 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). Under the law of principals, all persons involved in the commission of a crime are equally culpable. State v. Posey, 2008-0746 (La. App. 1 Cir. 9/26/08), 2008 WL 4376811, at *3. A person may be convicted as a principal to second degree murder even if he has not personally fired the fatal shot. State v. Clark, 20-167 (La. App. 5 Cir. 11/18/20), 306 So.3d 619, 631, writ denied, 2020-01459 (La. 2/17/21), 310 So.3d 1150. See also State v. Massey, 11-357 (La. App. 5 Cir. 3/27/12), 91 So.3d 453, 463-64, writ denied, 2012-0991 (La. 9/21/12), 98 So.3d 332 ("Whether a defendant actually fires the bullet that strikes and kills a victim is of no consequence and the defendant may be convicted as a principal to the crime.").

In the instant case, Detective Terry Poiencot responded to the scene of the shootings as the primary investigator. Detective Poiencot observed a suspected bullet defect or bullet hole in the door that led from the garage into the kitchen and recovered three spent .45 caliber casings and one live .40 caliber round from the garage floor. The detective collected the various spent and live rounds to be sent to the Louisiana State Police Crime Lab (LSPCL) for testing.⁶ After collecting evidence at the scene of the shootings, Detective Poiencot responded to the scene of the arrests at IHOP and observed a tattoo on the defendant's face, between his eyebrows.⁷

Smith, who identified the gunmen in this case, testified that Ballard (whom he called "Gutter") was his cousin, that they lived on the same street, and that he would see Ballard every day prior to the shootings. He further testified that Turner (whom he called "Marty") was his friend. Smith also knew the defendant and Jerrell before the shootings, as their mother sold sweets and snacks on St. Philip Street, within walking distance of Smith's residence. Smith testified that he would see the defendant "Every night[,]" adding, "Every time I go by his mom's I see him." Smith confirmed that he was familiar with the defendant's voice, body build, and body type. He further confirmed that the defendant had a distinguishing mark or tattoo on his face, which he described as, "[a] big cross." Smith noted that Jerrell had a smaller tattoo of a cross on his face.

Smith testified that on the day in question, he was at Ballard's house, playing pool in the garage before the shootings. Smith denied that he, Ballard, or Turner were armed that day. Smith testified that while they were in the garage, Lajohn Thomas, another male subject who Smith was familiar with, made a brief visit. Smith indicated that it was possible that Thomas purchased marijuana before he left. After...