State v. Frost
| Decision Date | 04 March 2020 |
| Docket Number | 53,313-KA,53,312-KA |
| Citation | 293 So.3d 708 |
| Parties | STATE of Louisiana, Appellee v. Monteco K. FROST, Appellant |
| Court | Court of Appeal of Louisiana — District of US |
LOUISIANA APPELLATE PROJECT, By: Edward K. Bauman, Counsel for Appellant
JOHN M. LANCASTER, District Attorney, AMANDA WILKINS, K. DOUGLAS WHEELER, Assistant District Attorneys, Counsel for Appellee
Before PITMAN, GARRETT, and COX, JJ.
The defendant, Monteco K. Frost, was convicted as charged of seven offenses arising from an incident in which a house was shot up by four gunmen who thought they could steal drugs there. A resident of the home was injured by the gunfire, and a potential witness walking near the home was fatally shot as the gunmen fled. The offenses were one count each of first degree murder, aggravated burglary, criminal conspiracy to commit aggravated burglary, and conspiracy to commit first degree murder, as well as three counts of attempted first degree murder of the house residents. For the offense of first degree murder, the defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On each of the three counts of attempted first degree murder, he was sentenced to 50 years at hard labor without benefit of parole, probation, or suspension of sentence. On the charges of aggravated burglary and conspiracy to commit attempted first degree murder, he was sentenced to 30 years at hard labor. For the offense of criminal conspiracy to commit aggravated burglary, he was sentenced to 15 years at hard labor. The trial court ordered that all of the sentences were to be served consecutively and the defendant was to be given credit for time served. The defendant appeals.
For the reasons expressed below, we are constrained to vacate the defendant's conviction and sentence for aggravated burglary on grounds of double jeopardy. All other convictions and sentences are affirmed.
On the night of May 6, 2017, the defendant went to Rayville with Quincy Hardiman, Josh Chisley, and Rontarrius Jackson to "hit a lick" or commit a robbery or burglary. Their destination was a house where the defendant believed they could steal drugs.1 All three of his companions testified that "hitting the lick" was the defendant's idea. They traveled in a black Ford Expedition owned by Hardiman's mother and driven by the defendant. Each of the men was armed: the defendant and Jackson had 9 mm handguns, Hardiman had a .380 handgun, and Chisley had an AK-47 Draco. After parking a short distance away, they approached the house.
The residence was occupied that night by three members of the McDaniel family. Deshun McDaniel, Sr. ("Deshun Sr."), was in his bedroom watching television, while his eight-year-old son, "T.M.," was playing video games on the large-screen television in the living room. Deshun Sr.'s wife resided there but was not at home at the time of the incident. His older son, Deshun McDaniel, Jr. ("Deshun Jr."), was in the kitchen cooking when someone kicked the side door of the house open. Deshun Jr. ran to the door and was able to slam it on the arm of the person attempting to enter the house. The intruder was wearing long sleeves and holding a gun which he began firing into the house. Deshun Jr. testified that shots fired by the intruder almost struck his little brother. The gunmen outside the house also opened fire, striking the house with numerous bullets. Deshun Jr. testified that, when the intruder began shooting, he yelled for his father. Deshun Sr. testified that, in response to a loud boom, he ran from his bedroom toward the kitchen. He described finding a chaotic scene with bullets "erupting," and his older son fighting with the gunman whose arm was trapped in the door. Deshun Jr. eventually released the door and fled out another door of the house. He was struck by gunfire in the buttocks and leg. His father and his little brother ran from the gunfire and were miraculously uninjured.2
The four gunmen ran back to the Expedition and began to flee. Almost immediately, they saw Keric Whitfield, a relative of the McDaniel family, walking alongside the road. Concerned that Whitfield could identify them, the defendant said that he "gotta go." The defendant, who was driving, used the driver's power switch to lower the back seat window on the driver's side. Chisley, who was in the seat behind the defendant, stuck his AK-47 Draco out the window and fired three bullets at Whitfield. One of the bullets entered Whitfield's right thigh, damaged his right femoral artery, exited his right thigh, entered his left thigh, and then exited again. The gunmen fled. A patrol officer responding to a 911 call about the gunfire from the incident at the McDaniel home arrived about 30 seconds before Whitfield died from exsanguination.
Over the next few days, the police developed the defendant and his cohorts as suspects. Based on an anonymous tip, Hardiman was brought in for questioning. He denied involvement and was released. However, his mother gave the police permission to search the Expedition, where a 9 mm bullet was observed by an officer on the driver's seat. When Hardiman attempted to hide the bullet, he was arrested for obstruction of justice. He then gave a statement to the police in which he provided details of the offenses and the names of his accomplices, all of whom were questioned by the police and denied involvement. Eventually, Chisley and Jackson gave statements admitting their complicity in the incident at the McDaniel home and the subsequent murder of Whitfield.
On May 31, 2017, the defendant, Hardiman, and Chisley were indicted for the first degree murder of Whitfield, three counts of attempted first degree murder of the members of the McDaniel family, criminal conspiracy to commit first degree murder of Deshun Jr., aggravated burglary, and criminal conspiracy to commit aggravated burglary.3 On August 16, 2018, Chisley pled guilty to manslaughter and aggravated burglary and agreed to testify for the state. In September 2018, the state filed a motion to sever, in which it stated that it had elected to try the defendant alone. Consequently, an amended bill of indictment was filed against only the defendant on September 11, 2018.
The defendant's jury trial commenced on September 17, 2018. Hardiman, Chisley, and Jackson testified on behalf of the state. Although there were slight variances in their testimony, all of them identified the defendant as the instigator of the offenses committed on May 6, 2017, including Whitfield's murder. Numerous photos of the crime scenes were introduced into evidence, along with bullets and projectiles recovered at the sites. A unanimous jury convicted the defendant as charged on all seven offenses.
On September 26, 2018, the trial court imposed the mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence for the first degree murder of Whitfield. On January 9, 2019, the 23-year-old defendant appeared for sentencing on the remaining offenses. The trial court noted that the presentence investigation ("PSI") report included "negative and derogatory information but no positive information" about the defendant. It observed that the defendant's extensive juvenile record began when he was 13 years old and resulted in him being on juvenile probation or incarcerated for various offenses in violation of juvenile probation for practically the entire period until he turned 18. The PSI report indicated that his adult criminal record began in 2013 with convictions for simple burglary and flight from an officer, for which he received 45 days in jail. In 2014, he pled guilty to aggravated second degree battery, for which he was sentenced to five years at hard labor, with four years suspended and five years of probation upon release from incarceration. In 2016, he pled guilty to cruelty to juveniles and was sentenced to five years at hard labor with three years suspended and two years of supervised probation upon release from incarceration. Additionally, the PSI report indicated that, on September 12, 2018, while awaiting his trial on the instant offenses, the defendant was charged with aggravated escape, illegal possession of stolen things, flight from an officer, aggravated obstruction of a highway of commerce, and resisting an officer with force or violence.
The trial court sentenced the defendant to 50 years at hard labor without benefit of parole, probation, or suspension of sentence on each of the three counts of attempted first degree murder; 30 years at hard labor on the charges of aggravated burglary and conspiracy to commit attempted first degree murder; and 15 years at hard labor on the offense of criminal conspiracy to commit aggravated burglary. The trial court ordered that all of the sentences were to be served consecutively to each other and to the previously imposed life sentence for first degree murder. 4
The defendant appealed, asserting three assignments of error. They are: (1) the defendant's convictions for attempted first degree murder and the underlying offense of aggravated burglary violated double jeopardy; (2) the jury erred in finding that the defendant had the specific intent to commit attempted first degree murder; and (3) defense counsel was ineffective in failing to file a motion to quash the amended bill of indictment.
The defendant argues that his convictions for attempted first degree murder and aggravated burglary constituted double jeopardy because the aggravated burglary was the underlying offense for the attempted first degree murder charges. Because of the manner in which the state chose to prosecute these charges and the jury charges instructing the jurors about the elements of two of the three attempted first degree murder charges, we find merit in this argument.
Both the United States and Louisiana Constitutions provide that no person shall be twice put in jeopardy of...
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