State v. Davenport, 2016–KA–0223
| Decision Date | 18 October 2017 |
| Docket Number | NO. 2016–KA–0223,2016–KA–0223 |
| Citation | 316 So.3d 888 |
| Parties | STATE of Louisiana v. Tyrone K. DAVENPORT and Dale M. Elmore |
| Court | Court of Appeal of Louisiana — District of US |
Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Donna Andrieu, Assistant District Attorney, Mithun Kamath, Assistant District Attorney, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 1677, Abita Springs, LA 70420—1677, Justin Caine Harrell, ATTORNEY AT LAW, 1100 Poydras Street, Suite 2900, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Joy Cossich Lobrano, Judge Regina Bartholomew Woods, Judge Paula A. Brown )
In this criminal appeal, Tyrone K. Davenport and Dale M. Elmore ("Mr. Davenport" and "Mr. Elmore") appeal their convictions for racketeering, in violation of La. R.S. 15:1353, second degree murder, in violation of La. R.S. 14:30.1 and La. R.S. 15:1403(B), and attempted second degree murder, in violation of La. R.S. 14(27) 30.1 and La. R.S. 15:1403(B). For the reasons that follow, we affirm the convictions, amend the sentences and affirm the sentences as amended.
On August 14, 2013, the State indicted Dale "Check Peazy" Elmore and Tyrone K. "Tyga" Davenport along with several others1 pursuant to the Louisiana Racketeering Act, La. R.S. 15:1351, et seq. , alleging they were either members, associates, or both, of an organization known as "Taliban Survival Corporation," "The Taliban," "Hot Glocks," or "P–Block" (collectively "Taliban"), who engaged and/or conspired to engage in a pattern of racketeering activity. The racketeering activities consisted of murder, conspiracy to commit murder, attempted murder and public intimidation, which occurred during the period of June 1, 2010 through March 31, 2012, primarily in the area on and around Monroe, General Ogden, Green and Hickory Streets in New Orleans, Louisiana. The State alleged that the organization's purpose was the enrichment of its members and associates through the sale of narcotics.
In a sixteen-count indictment, the State alleged that Mr. Elmore and Mr. Davenport (collectively the "Defendants") engaged in a drive-by shooting on January 5, 2011, on I–10 near the Broad Street overpass, killing Ralph Bias ("Bias") and wounding Corey Martin ("Martin"). On August 19, 2013, the Defendants were arraigned and pled not guilty to the charges. Defendants were tried together by a trial by jury held on June 15 through 19, 2015. The jury subsequently convicted the Defendants of racketeering, second degree murder and attempted second degree murder.2
The Defendants filed Motions for New Trial, Post–Conviction Verdict/Judgment of Acquittal, and Appeal. On October 21, 2015, the district court granted each of the Defendant's Motions for Appeal, but denied all of their other post-trial motions. The Defendants waived all sentencing delays and were sentenced to fifty years at hard labor without the benefit of parole, probation or suspension of sentence for racketeering; and life at hard labor without the benefit of parole, probation or suspension of sentence for second degree murder with an additional fifty years for the gang enhancement provision to be served consecutively to the sentences for racketeering and second degree murder. The Defendants were also sentenced to fifty years at hard labor without the benefit of parole, probation or suspension of sentence for attempted second degree murder with an additional twenty-five years without benefits for the gang enhancement provision to be served consecutively to the sentences for racketeering and second degree murder. Mr. Davenport also filed a Motion to reconsider after sentencing, which the district court denied. The instant appeal followed.
The record shows that Mr. Martin has had multiple encounters with Defendants, which took place both before and after the January 2011 incident. Mr. Martin reported that in 2007—after the murder of his brother—he became a target of violence. He said the people who killed his brother are related to Mr. Davenport. According to Mr. Martin, in June 2010, while living in the Pigeon Town neighborhood of New Orleans, while sitting in his truck he saw Jamal Harris ("Mr. Harris") and Mr. Davenport shooting at him. Again, in November 2010, while attending a nightclub on Louisiana Avenue with his friend Mr. Bias, he saw Mr. Davenport, Mr. Elmore, Mr. Harris and Mr. Noel. Mr. Harris approached him and a fight ensued. In January 2011, he was shot and Mr. Bias was killed. In March, 2012, while walking into a store in the Pigeon Town neighborhood with his friend Jamal Lewis ("Mr. Lewis"), a truck full of individuals connected with the Taliban fired upon them, striking Mr. Lewis.
The testimony elicited at trial is as follows:
According to Mr. Willie Dixon ("Mr. Dixon"), in the early morning hours of January 5, 2011, Mr. Elmore approached him at his home seeking $15.00 he owed to Mr. Elmore for drugs he was given. He testified that he had previously purchased crack cocaine from local dealers in the Pigeon Town neighborhood, including Mr. Elmore. After Mr. Dixon told him he did not have the money, Mr. Elmore left, but returned shortly thereafter asking to borrow his car while also brandishing a gun. To ensure the safety of his family, Mr. Dixon gave him the keys to the silver Explorer he had rented from Enterprise Rental Car ("Enterprise"). Mr. Elmore, after parking the Explorer near the levee at Monticello Street, returned to Mr. Dixon's home around midnight the next morning, gave him the keys to the vehicle and $100 worth of drugs. Mr. Dixon testified that when he retrieved the vehicle, he noticed the right side rearview mirror was missing.
Mr. Dixon further testified that he was approached by two of the Defendants' associates on two different occasions and told not to testify in court. According to Mr. Dixon, Tyrone "Googles" Brooks ("Mr. Brooks") approached him, warning him not to testify "if he knew what was best for him."3 During another encounter, Bryant Jarrow ("Mr. Jarrow"), an unindicted co-conspirator, gave him drugs in exchange for him not appearing in court. Mr. Dixon further testified that he felt that he was being intimidated and feared for the safety of his family if he testified in court.
Mr. Martin, the surviving victim, testified that after Mr. Bias picked him up from the Pigeon Town neighborhood, they entered the Carrollton Avenue on-ramp, heading toward New Orleans East. Shortly thereafter, a silver Explorer followed them onto the interstate.4 He testified that gunshots were fired soon after they entered I–10. After hearing the gunshots, he looked to his left and saw that the gunshots were coming from the Explorer, which was occupied by four individuals, Messieurs Harris, Noel, Elmore and Davenport.
According to Mr. Martin, Mr. Harris—the driver of the Explorer—pulled along the left side of their vehicle while Mr. Elmore and Mr. Davenport began shooting out of the window at him and Mr. Bias. Mr. Bias was killed immediately and Mr. Martin was shot in his legs and back, which required surgery. Mr. Martin testified that the shooting lasted four to five minutes. Mr. Martin identified the Defendants, and testified that he knew the Defendants from the neighborhood and school.
Dr. Michael Defatta, an expert in forensic pathology, conducted Mr. Bias' autopsy. He testified that Mr. Bias had nine penetrating body, head and extremity wounds that were inflicted by a weapon thirty-six to forty-three inches from his body. He also attested that Mr. Bias' cause of death was the result of two fatal wounds to his chest, which perforated his heart and lungs.
Anthony Pardo, a seventeen-year veteran with the NOPD assigned to the homicide and FBI Gang Task Force at the time of the shooting, arrived at the scene of the shooting around 1 p.m. He testified that he conducted a general investigation of the crime scene and recovered fourteen .40 caliber shell casings from the scene.
Meredith Acosta, a firearms and ballistics identification and testing expert, testified that she examined the ballistic evidence recovered from the scene of the crime. She opined that the bullet fragments and cartridge cases recovered from the crime scene were from three separate weapons. However, at trial she did not identify the gun used in the shooting.
Detective Chris Harris, assigned to the NOPD/FBI Violent Crime Task Force, was also present at the crime scene. Detective Harris testified that upon arrival at the crime scene, he did a general investigation of the area and collected evidence.
During his testimony Detective Harris identified the State's exhibits, which included photographs of the crime scene depicting the position of the Mr. Bias' vehicle when it crashed into the guardrail on the interstate, and Mr. Bias' body in the driver's seat of the vehicle, slumped over the steering wheel.
Sergeant Williams5 , the lead investigator who arrived on the scene at approximately 1:15 p.m., testified that her responsibility on the day of the shooting was monitoring the integrity of the crime scene, gathering evidence and assigning NOPD personnel in processing the scene. She recalled assigning Detectives Pardo and Harris to process the scene of the crime for evidence.
According to Sergeant Williams, the day after the shooting, she went to Enterprise on Carrollton and Tulane to conduct a search of the Explorer for evidence connected to the shooting. Although the vehicle had already been washed and vacuumed, she noticed that the passenger side rearview mirror was broken and there was a smudge mark on the bumper of the vehicle. While at Enterprise, she learned that the vehicle had previously been rented to Mr. Dixon.
Sergeant Williams testified that she spoke with Mr. Dixon who gave a statement wherein he acknowledged that he loaned his vehicle to a person named "Peazy" and also gave her a...
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