State v. Contreras

• Decision Date: 30 May 2018
• Docket Number: NO. 2017–KA–0735,2017–KA–0735
• Citation: 247 So.3d 858
• Parties: STATE of Louisiana v. Jesus E. CONTRERAS
• Court: Court of Appeal of Louisiana — District of US

247 So.3d 858

STATE of Louisiana

v.Jesus E. CONTRERAS

NO. 2017–KA–0735

Court of Appeal of Louisiana, Fourth Circuit.

MAY 30, 2018

LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY OF ORLEANS PARISH, SCOTT G. VINCENT, ASSISTANT DISTRICT ATTORNEY, 619 S. White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE/APPELLEE

HOLLI HERRLE–CASTILLO, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, Louisiana 70073, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Dale N. Atkins )

JAMES F. MCKAY III, CHIEF JUDGE

STATEMENT OF CASE

On October 24, 2013, the State charged Jesus Estrada Contreras, a/k/a Simon Cruz Ramirez, a/k/a Oscar Herrera, a/k/a Modesto Fuentes, a/k/a "Migo" (defendant) with three counts of attempted second degree murder, La. R.S. 14:(27)30.1; one count of the illegal discharge of a firearm during a crime of violence, La. R.S. 14:94(F) ; and one count of possession of a firearm by a convicted felon, La. R.S. 14:95.1.

The defendant pled not guilty on all counts at his arraignment on November 7, 2013.¹

The defendant's motions to suppress the identification and evidence were denied June 20, 2014.

On May 8, 2015, the trial court denied the defendant's Motion to Quash Count 5 of the Bill of Information.

On July 16, 2015, the State filed its Prieur notice.

On March 14, 2016, the trial judge found the defendant competent to proceed.

The case proceeded to trial on September 6, 2016, and concluded on September 8, 2016, with the jury finding the defendant guilty of three counts of attempted manslaughter (counts 1, 2 and 3) and guilty as charged of illegal discharge of a firearm during a crime of violence (count 4) and possession of a firearm by a convicted felon (count 5).

On October 5, 2016, the defendant filed a Motion for Arrest of Judgment and a Motion for Post–Verdict Judgment of Acquittal, or in the alternative, for a New Trial, which were denied November 7, 2016.

On November 14, 2016, the trial court sentenced the defendant to twenty years at hard labor with credit for time served, on each of his attempted manslaughter convictions. On his conviction for illegal discharge of a firearm during a crime of violence, the defendant was sentenced to twenty years without benefit of parole, probation or suspension of sentence. As to the conviction for being a felon in possession of a firearm, the defendant received a twenty-year sentence without benefit of parole, probation or suspension of sentence, plus a $1,000.00 fine. The sentences on all five counts to be served concurrently.

STATEMENT OF FACT

New Orleans Police Department ("NOPD") latent print examiner Officer Joseph Pollard ("Pollard") identified State's Exhibit 1 as a certified copy of the defendant's fingerprints taken on September 4, 2013, bearing the defendant's date of birth October 28, 1971, State Identification Number 002601023 and FBI Number 319397XA1. Next, Officer Pollard identified State's Exhibit 2 as the card containing the defendant's fingerprints taken by Office Pollard prior to the start of this trial. Officer Pollard then produced a certified conviction packet, State's Exhibit 3 in globo, in the defendant's name and aliases, Jesus Estrada Contreras, a/k/a Simon Cruz Ramirez, a/k/a Oscar Herrera, a/k/a Modesto Fuentes, a/k/a "Migo," bearing Georgia State case number 99CR480C, containing a fingerprint card and plea of guilty to involuntary manslaughter signed by the defendant on September 7, 2000. The fingerprint card and the guilty plea record the defendant's date of birth as October 28, 1971.

Officer Pollard compared the fingerprints on State's Exhibit 1 and 2 to the prints contained on State's Exhibit 3 and determined the three sets of fingerprints were identical and belonged to the defendant.

NOPD Communications Officer Nicole Jones testified that she monitored 911 calls and dispatch audio. Every 911 call is recorded, generates an incident recall or brief summary of the purpose of the call and assigned an item number for identification for future investigation.

Detective Mary Colon ("Detective Colon") investigated the June 6, 2013, shooting at a residence in the 2300 block of Touro Street. When Detective Colon arrived on the scene, she learned Trina Tinsley ("Tinsley"), Dwight Griffin ("Griffin") and Carl Williams ("Williams") had been shot. Two bullet fragments and a beer can, from which the shooting suspect had been drinking, were collected by the crime scene technicians. Detective Colon submitted the beer can for DNA testing and the bullet fragments were sent to ballistics for processing. Detective Colon spoke to Tinsley, Griffin and Williams at the scene but was unable to locate the suspect. She also spoke to people who lived in the neighborhood.

Detective Colon relocated to the hospital where she spoke with one of the victims, Tinsley, who related the events surrounding the shooting. Detective Colon presented Tinsley with a confirmation photo of the defendant. She then prepared an arrest warrant for the defendant and a warrant to search 825 Fourth Street. The search of the residence yielded a Ruger handgun and bullets. Detective Colon submitted all of the evidence to Central Evidence and Property and requested ballistics testing on the handgun and bullets. Detective Colon entered the arrest warrant in the National Crime Information Center Systems and later learned that the defendant had been apprehended in Texas.

Sean McElrath, the section head for the firearms unit of the NOPD Crime Lab, testified that comparison testing of the two bullet fragments obtained from the crime scene revealed that those bullets were fired by the same weapon. However, the test bullet McElrath fired from the Ruger handgun retrieved from 835 Fourth Street did not match the bullet fragments from the shooting scene, demonstrating the Ruger was not the weapon used in this shooting.

In 2012, Williams testified that he knew the defendant from purchasing drugs from him. Williams also knew the defendant through his niece, Tinsley. On June 5, 2013, Williams and Tinsley were at his sister's house in Marrero when he received a call from the defendant accusing him of having broken into the defendant's house. Williams denied the accusation and proceeded to the defendant's house on Touro Street to speak with him. When Williams arrived, the defendant was speaking to another person. The conversation made Williams uncomfortable, so he showed the defendant he was unarmed. The defendant and Williams walked to Tinsley's house, which was just a few doors from the defendant's residence, and began to drink, smoke marijuana and use cocaine. Tinsley and Griffin joined in the smoking and drinking. The defendant went to the bathroom and was gone about thirty minutes.

The defendant returned, sat on the sofa and began firing, wounding Williams and Tinsley. When Detective Colon arrived on the scene, Williams did not say he had been shot but he eventually identified the defendant as the shooter.

Griffin testified the defendant shot at him, Tinsley and Williams on June 5th or 6^th, 2013, while they were at Tinsley's residence drinking and smoking marijuana. After a few hours, the defendant went to the bathroom. When the defendant returned, he sat on the sofa and continued to drink and smoke with the others. Without warning, the defendant stood up, removed a gun from his pants pocket and began shooting at Williams. After a few shots, the defendant turned the gun in the direction of Griffin and Tinsley, who dropped to the floor and hid behind the bar. Williams kept asking the defendant why he was shooting at them, but the defendant just turned and walked out the door. Griffin told the investigating officers the defendant was the shooter.

Tinsley testified that she, Williams, and Griffin were together on June 5, 2013, in Marrero when she received several calls from the defendant. She would not take the defendant's calls, so he called Williams. Tinsley and Griffin went to her residence at 2325 Touro Street. Williams went to the defendant's house at 2321 Touro Street. Tinsley received a call from Williams asking her to meet him at the defendant's residence, which she and Griffin did. While the trio was at the defendant's residence, Williams raised his shirt to prove to the defendant he was unarmed. At that point, Tinsley and Griffin returned to her residence. Shortly after, Williams called her and asked if he could bring the defendant to her house. When they arrived at Tinsley's house, the defendant sat on the sofa drinking beer, while she, Williams and Griffin stood in the kitchen, smoking and drinking. A few minutes later, the defendant went to the bathroom. When he came back, he sat on the sofa, put down his beer, removed a gun from his pocket and fired five or six times. Tinsley was shot in the arm and fell to the floor. She heard the defendant and Williams fighting. When the noise stopped, the defendant exited through the front door.

Detective Colon visited Tinsley in the hospital where she identified the defendant as the shooter from a confirmation photo shown to her by Detective Colon.

DNA analyst Tayla Pinell ("Pinell") of the Louisiana State Police Crime Laboratory tested a swab sample taken from a beer can retrieved at the shooting scene and two oral reference swabs obtained from the defendant. Pinell's testing of the swabs produced identical DNA profiles, which statistically demonstrated that the chances the DNA profile belonged to anyone other than the defendant was one in 18.4 quintillion of the Southwest Hispanic population.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

ASSIGNMENT OF ERROR NUMBER 3

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. When the entirety of the evidence both admissible and inadmissible is sufficient to support the conviction, the accused is not...