State v. Burnes, No. 2008-KA-0622 (La. App. 12/17/2008)
| Decision Date | 17 December 2008 |
| Docket Number | No. 2008-KA-0622.,2008-KA-0622. |
| Parties | STATE OF LOUISIANA v. ELMECO M. BURNES |
| Court | Court of Appeal of Louisiana — District of US |
APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT, NO. 294-512, DIVISION "D", HONORABLE KIRK A. VAUGHN, JUDGE.
JOHN F. ROWLEY, District Attorney, WALKER H. DRAKE, Jr., Assistant D.A. Counsel for Plaintiff/Appellee.
JOHN HARVEY CRAFT, Louisiana Appellate Project Counsel for Defendant/Appellant.
Court composed of Judge BAGNERIS, Sr., Judge LOVE, and Judge BELSOME.
On August 25, 2004, a St. Bernard Parish grand jury issued an indictment charging Elmeco M. Burnes ("Burnes") with first degree murder in violation of La. R.S. 14:30. On February 28, 2007, this charge was reduced to Second Degree Murder, a violation of La. R.S. 14:30.1. Thereafter, Burnes moved to be released pursuant to La. C.Cr.P. art. 701 and was denied relief on July 18, 2006. On February 28, 2007, Burnes pled not guilty to the amended charge, moved to suppress evidence and moved to continue trial. The trial court denied both motions, and a jury was selected. After a two day trial, the jury found Burnes guilty of second degree murder.
On August 28, 2007, the trial court heard Burnes' Motion for New Trial and Post Verdict Judgment of Acquittal. The trial court denied both motions and sentenced Burnes to life in prison without the benefit or probation, parole, or suspension of sentence. For the following reasons, we hereby affirm Burnes' conviction and sentence.
Jamal Peters ("Peters") was twenty-three years old when his twenty-four year old brother, Rayford Peters ("Rayford"), was killed in July, 2004. According to Peters, he and his brother saw Burnes washing his car on the day of the shooting as they drove to the store. As they passed, Burnes shouted profanities at them. At that time, Rayford exited the van and approached Burnes to see what the problem was. Rayford got within two or three feet of Burnes and Burnes "iffed" at him. Upon hearing the "fussing" Peters exited the van and approached Rayford and Burnes to see what they were discussing. At some point, Burnes' brother appeared on the scene too. Eventually, Burnes' brother told the Peters brothers to wait while he went to retrieve a weapon. Burnes ran off too. At that point, the Peters brothers fled in their van. Peters denied ever having seen Burnes prior to this incident. Thereafter, the Peters brothers went to pick their mother up from work in New Orleans East.
Thereafter, the Peters brothers were on their lawn on Angelique Drive when Burnes passed in his car, rolled the window down, and pointed an AK-47 at them. They ran behind their van because they thought Burnes was going to open fire, although he did not. Thereafter, the Peters brothers and their friend, Charles Jackson, got two guns for protection and drove the van to Daniel St. to see Burnes in an effort to make peace. The van had two bench seats behind the driver's and the front passenger seats. Rayford drove; Charles Jackson was in the front passenger seat, and Peters was in the front bench seat, behind his brother. Peters denied bringing a firearm. The two guns were placed on the floor between the driver and passenger seats.
The trio in the van found Burnes in his yard. Peters got out of the van and approached Burnes to ask why he had been cursing. The two men spoke and shook hands. Burnes then walked with Peters back to the van. Peters sat in the van, and the conversation continued. The men shook hands again, and Burnes said, "[o]kay, man we are going to leave this alone."
After shaking hands with Burnes, Peters turned around, and Burnes shot him in the head from the rear. When asked why he turned around, Peters replied, Peters recalled five shots being fired. As a result of the shooting, Peters is paralyzed in his left arm and the left side of his body, he walks with a limp, and part of his skull has been replaced with an iron plate.
Peters denied that anyone in the van shot a gun; however, Peters apparently lost consciousness because he testified that he was at the hospital when he "came to." He never saw the shots that hit Rayford. Peters also asserted that only he spoke to Burnes during the encounter. Peters admitted to discussing the incident with Charles Jackson since it happened. Further, Peters admitted that some of his trial testimony could have come from Charles Jackson.
Dr. Paul McGarry is a forensic pathologist. He performed the autopsy of Rayford in Orleans Parish. Rayford died from a fatal bullet that entered his head behind and below the left ear and traveled through the brain to the right temple, from whence it was recovered. This bullet was introduced into evidence at trial. Rayford's body also suffered wounds to the center of the back, the back of the head, and the scalp. In total, five separate wounds were examined. Two of the wounds were in line, showing that they could have been inflicted by the same bullet. Powder burns known as stippling were found on the body. The wounds indicate that the shots came from Rayford's left and behind his shoulder and are consistent with Rayford sitting in the driver's seat of the van and someone shooting into the van. Blood and urine tests were negative for alcohol and drugs.
Charles Jackson ("Jackson") was twenty five years old at the time of trial. Jackson has a child with the Peters brothers' sister and was living with the Peters family at the time of the shooting in 2004. At that time, Jackson suffered from a drug problem; however, by the date of trial, Jackson no longer had a drug problem. Jackson asserted that drugs had nothing to do with the shooting.
Jackson had never seen Burnes until the date of the shooting. Jackson returned home after picking up his paycheck at work, and the Peters brothers informed them of an incident with a man around the corner. Jackson went with them to "resolve the situation."
Jackson denied having a gun when he went with the Peters brothers. He testified that Rayford drove; Peters sat behind Rayford; and that he rode in the front passenger seat. Jackson recalled Peters and Burnes talking. They agreed that "everything was going to be straight" and shook hands. Jackson turned around and heard a gunshot. He saw blood on Peters head.
Jackson was shot three times, once in his left arm and twice in his stomach. Jackson recalled seeing Burnes shooting a gun. Burnes was outside the van's driver's side window, shooting in the direction of Rayford and him. Rayford slumped over onto Jackson after being shot. Burnes continued shooting after Rayford slumped over. The first shot Jackson heard was when Peters was shot in the head. Burnes shot at Rayford and Jackson after that first shot at Peters. Jackson denied that either of the Peters brothers or he had a gun in any of their hands when the shooting began. There was a gun between the seats on the floor in the van, but he denied that anyone moved it. After the shooting, Burnes ran up the street. At that time, Jackson got out of the van, ran to the drivers' side, pushed Rayford into the middle, and drove to the hospital.
On cross examination, Jackson admitted that he was high on cocaine during the entire incident. He had consumed the drug an hour before going to Burnes' house. Jackson also admitted to having two convictions for possession of marijuana and a second degree battery conviction. Jackson also admitted to placing a 9-millimeter Lueger in the van. The Lueger and the other weapon were owned by Rayford. The men took three clips with them — one for each gun and an extra. The guns were placed between Rayford and Jackson. The guns were taken for protection, and Jackson would have used one had he had the chance. Before Burnes approached the van, Jackson placed one of the guns on the right side of his leg. Jackson also admitted that when he got out of the van he picked up the gun and pointed it at Burnes. However, the clip fell out, and he was not able to shoot the weapon.
Captain Robert McNab of the St. Bernard Parish Sherriff's Office was in charge of the homicide investigation in this case. Two weapons were gathered during the investigation. One of the weapons was recovered from the rear seat of the van in which the victim was shot while the other weapon was recovered from a vacant lot at the scene of the crime. A search of the victim's personal belongings produced a purchase receipt for one of the weapons — a Hi-point nine-millimeter belonging to the victim. Checking with the Bureau of Alcohol Tobacco and Fire Arms ("ATF") revealed that neither of the recovered weapons was reported stolen. According to the ATF files, one of the weapons belonged to Rayford and the other belonged to Danny Boy Elmore. Two shell casings and a "projectile" were also recovered from the van. The projectile or bullet was discovered in the passenger side door, and the angle of the hole indicated that it had entered from the driver's side of the cab. A second bullet was recovered from the victim's head. A ballistics test revealed that the two recovered bullets came from a single weapon other than the two recovered in the investigation. The recovered casings were fired from the same gun as the recovered bullets. The murder weapon was never found, nor was any AK-47 recovered. The investigation — including witness testimony and forensics evidence — showed that shots were initially fired from the drivers' side rear window, with subsequent bullets fired from the driver's side window. The investigation also showed that Burnes was the shooter.
Burnes turned himself in to New Orleans authorities several days after the shooting and was returned to St. Bernard Parish. At that time, Burnes gave a statement to the...
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