State v. Carter

• Decision Date: 10 October 2018
• Docket Number: NO. 2018-KA-0072,2018-KA-0072
• Citation: 257 So.3d 776
• Parties: STATE of Louisiana v. Charles CARTER
• Court: Court of Appeal of Louisiana — District of US

257 So.3d 776

STATE of Louisiana

v.Charles CARTER

NO. 2018-KA-0072

Court of Appeal of Louisiana, Fourth Circuit.

OCTOBER 10, 2018

Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, Donna Andrieu, William Dieters, ASSISTANT DISTRICT ATTORNEYS, Parish of Orleans, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA

Kevin Vincent Boshea, ATTORNEY AT LAW, 2955 Ridgelake Drive, Suite 207, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins )

Judge Regina Bartholomew-Woods

Appellant, Charles Carter, appeals the January 29, 2016 judgment of the district court finding him guilty of three counts of armed robbery with a firearm, attempted second degree murder, and second degree murder. For the reasons that follow, we affirm Defendant's convictions, but remand for resentencing in accordance with this opinion.

FACTUAL BACKGROUND

On September 30, 2012, New Orleans Police Department ("NOPD") Officer Tanya Watson responded to a report of a vehicle stolen in the 6300 block of Chef Menteur Highway in New Orleans. Officer Watson met with the victim, Mr. Ryan Cope, who reported his Ford pickup truck missing and executed a theft affidavit to that effect. Officer Watson obtained the truck's vehicle identification number and license plate and model numbers.

Detective Debrah Normand entered the information gathered by Officer Watson into the National Crime Information Center database, and Mr. Cope's truck was recovered on the evening of October 2, 2012, in the 7400 block of Dartmoor Street in New Orleans East. During her investigation, Detective Normand learned that Mr. Cope's truck had been used during a series of crimes – an armed robbery and simple burglary of a vehicle, both occurring in the 200 block of Bellaire Street. Fingerprints obtained from the SUV burglarized on Bellaire Street led to the development of Byron Johnson as a suspect in the theft of Mr. Cope's truck. Witnesses to the vehicle burglary on Bellaire Street observed Johnson and two other individuals fleeing the scene in the truck, which was ultimately identified by its license plate number as the truck stolen from Mr. Cope.

On the night of October 2, 2012, Derek McArthur drove his 2004 F-250 truck to New Orleans from Florida, checked into a hotel, and secured his truck in the hotel's parking lot. When Mr. McArthur awoke the following morning, he discovered his truck missing. The police recovered Mr. McArthur's truck on October 4, 2012. Fingerprints lifted from the truck, which were analyzed by an NOPD fingerprint expert, Officer George Jackson, matched Defendant and Devante Billy.

Christopher Becnel testified that on the night of October 2, 2012, at about 8:00 p.m., he drove into the driveway of his home in the 200 block of Bellaire Street.

As Mr. Becnel prepared to exit his vehicle, he noticed an African American youth, between sixteen and twenty-one years of age, hiding behind a trash can. The youth stood up and, while brandishing a gun, charged Mr. Becnel's vehicle, and Mr. Becnel backed out of his driveway. The suspect fled on foot down the street. Mr. Becnel pursued the suspect and observed an armed robbery of his neighbor, Ms. Mary Cowan, in progress on Bellaire Street. The suspect that Mr. Becnel was following yelled and motioned to the two suspects robbing Ms. Cowan, and all of the suspects fled in a white truck parked in the 100 block of Bellaire Street. As the three suspects fled, Ms. Cowan told Mr. Becnel that she and her daughter had just been robbed at gunpoint. Mr. Becnel continued to pursue the fleeing suspects. During the chase, the suspects' truck was involved in a hit and run collision on Metairie Road. After that collision, the truck proceeded on Metairie Road in the direction of City Park Avenue, where it hit another vehicle and then entered the westbound lane of the I-10 at Metairie Road. Mr. Becnel lost sight of the truck and returned to alert his wife, Toni Ann Becnel, to the incidents. In the days following the incidents, Mr. Becnel viewed a photographic lineup from which he identified Byron Johnson as the youth who pointed a gun at him. Mr. Becnel testified that the suspect was not involved in the armed robbery of Ms. Cowan.

Mrs. Becnel testified that after hearing the commotion on Bellaire Street, she examined her SUV and found one of its doors ajar and the contents of the vehicle tossed about. The glove box had been rifled through and its contents strewn everywhere. Mrs. Becnel's credit card was missing. She denied knowing Byron Johnson or the Defendant.

Detective Kristie Harper investigated the burglary of Mrs. Becnel's SUV. When she arrived on the scene, Mr. Becnel described what happened. A crime technician dusted the interior and exterior of the SUV and lifted thirteen prints, six of which were identified as matching Byron Johnson. In investigating the burglary of the SUV, Detective Harper learned of the armed robbery that occurred on the same night in the same area. Further, she learned that the armed robbery suspects and the suspect in the SUV burglary fled the scene together in the white Ford truck stolen from Mr. Cope. Detective Harper was present when police located Mr. Cope's stolen truck parked in the 7400 block of Dartmoor Street. She knew that a check bearing Ms. Cowan's name was found in the vehicle. Byron Johnson was not a suspect in the armed robbery of Ms. Cowan because Mr. Becnel's testimony placed him at the Becnel home burglarizing Mrs. Becnel's SUV at the time Ms. Cowan was robbed.

Certified Latent Prints Examiner Officer George Jackson examined the fingerprints lifted from Mrs. Becnel's SUV. He ran the fingerprints in the Automated Fingerprint Identification System (AFIS), which indicated a match to Byron Johnson.

On the night of October 2, 2012, Ms. Mary Cowan recalled dining with friends and family members. When she returned to her home in the 200 block of Bellaire Street, she exited the front passenger seat of her sister's car and noticed someone to her right running down the sidewalk away from her. Right after that, she observed two males running toward her. One of the men was armed and demanded all of her belongings. Ms. Cowan testified that the person she initially noticed running down the street was different from the two men who robbed her, but that the three men left the area together in the same truck.

Her neighbor, Mr. Becnel, pursued the suspects in his vehicle. The suspects took Ms. Cowan's purse when they fled. Ms. Cowan described one of her assailants as a slightly built, teen-aged, light-skinned black male, approximately five feet, nine inches tall with his hair in twists. In the ensuing days, Ms. Cowan viewed three six-person photographic lineups, but did not identify anyone from those lineups. In March 2013, Ms. Cowan met with Detective Kristen Krzemieniecki, who showed her a fourth photo lineup, from which Ms. Cowan identified the Defendant as the unarmed robber, who pulled her purse from her on the night of October 2, 2012. Ms. Cowan's purse and wallet were eventually returned to her, but their contents, including her credit card, were missing.

Detective Krzemieniecki learned other officers believed the truck owned by Mr. Cope was used in both the Bellaire Street burglary of Mrs. Becnel's SUV and the armed robbery of Ms. Cowan on the night of October 2, 2012. Detective Krzemieniecki identified a surveillance video recorded at 7400 Dartmoor Street on October 4, 2012, in which the stolen trucks owned by Mr. Cope and Mr. McArthur are depicted.

On the evening of October 2, 2012, Officer Walter Edmond was in the general area of Louisiana Avenue and Camp Street when he heard gunfire. Officer Edmond canvassed the area, and as he neared the intersection of Delachaise and Camp Streets, he heard screaming. Officer Edmond found Sanford Kaynor shot in the chest, lying in the driveway of his Camp Street residence. Mr. Kaynor told Officer Edmond that black males shot him and stole his vehicle. Officer Edmond relayed that information to Sergeant Jonathan Bulling. Sgt. Bulling assisted in processing the scene and collecting evidence.

Detective Krzemieniecki was the lead detective in the investigation of the attempted second degree murder and armed robbery of Mr. Kaynor. The Defendant was developed as a suspect through DNA evidence collected from a black and white bandana discovered on the scene and from fingerprints recovered from Mr. Kaynor's stolen vehicle.

Grace Kaynor recounted that on the evening of October 2, 2012, she, her husband, and eight-year-old daughter were home at their Camp Street residence. Mrs. Kaynor retired about 9:00 p.m., leaving her husband and daughter watching television downstairs. She awoke to two policemen telling her that her husband had been shot in the driveway. She ran outside and found him lying on the ground in terrible pain. To comfort him she told him everything was going to be okay. He responded: "No, it's never going to be all right. I can't feel my legs." When she attempted to find her driver's license, she realized someone had been in her house because her purse, wallet, house and car keys, and cellphone were missing from their usual place in the kitchen. At the same time, she noticed that her husband's computer and her daughter's iPad were gone. She noticed the kitchen door had been unlocked as a result of her husband having gone outside to his car.

Mrs. Kaynor accompanied her husband to the hospital where doctors told her he likely would not live through the night because of the gunshot wounds. In the days following the shooting, her husband was in and out of a coma and underwent several surgeries. Mrs. Kaynor kept a diary of things her husband told her while he was hospitalized. He told her three black males, who were fifteen or sixteen years old, approached him and two of the robbers were armed with handguns. One of the three perpetrators wore a mask and the other...