State v. Garrison

• Decision Date: 23 April 2020
• Docket Number: NO. 19-KA-62,19-KA-62
• Citation: 297 So.3d 190
• Parties: STATE of Louisiana v. Emmett GARRISON, IV aka "Lil Emmet"
• Court: Court of Appeal of Louisiana — District of US

297 So.3d 190

STATE of Louisiana

v.Emmett GARRISON, IV aka "Lil Emmet"

NO. 19-KA-62

Court of Appeal of Louisiana, Fifth Circuit.

April 23, 2020

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLANT, EMMETT GARRISON, IV AKA "LIL EMMET", Meghan H. Bitoun

Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg

WINDHORST, J.

Defendant, Emmett Garrison, appeals his convictions and sentences. For the reasons stated herein, we affirm defendant's convictions and sentences and remand with instructions.

PROCEDURAL HISTORY

On May 5, 2016, a Grand Jury for Jefferson Parish returned a true bill indicting defendant, Emmett Garrison IV a/k/a "Lil Emmett," and co-defendant, Corey Flag, with the second degree murder of Bruce Lutcher, in violation of La. R.S. 14:30.1. On May 6, 2016, defendant pled not guilty.

On September 1, 2016, defendant and co-defendant Flag were charged in a superseding ten-count indictment. Defendant was charged in eight of the ten counts as follows:

Count 1: second degree murder of Bruce Lutcher on or about November 23, 2015, in violation of La. R.S. 14:30.1 ; 4

Count 2: conspiracy to commit armed robbery on or between November 23, 2015 and December 11, 2015, in violation of La. R.S. 14:26 and La. R.S. 14:64 ;

Count 3: attempted armed robbery with a firearm of Franklin Diaz on December 11, 2015, in violation of La. R.S. 14:27 and La. R.S. 14:64.3 ;

Count 5: attempted armed robbery with a firearm of Fausto Alvarez on December 11, 2015, in violation of La. R.S. 14:27 and La. R.S. 14:64.3 ;

Count 6: attempted second degree murder of Fausto Alvarez on December 11, 2015, in violation of La. R.S. 14:27 and La. R.S. 14:30.1 ;

Count 7: armed robbery with a firearm of Jose Galeas on December 11, 2015, in violation of La. R.S. 14:64.3 ;

Count 8: illegal discharge of a firearm while committing an armed robbery on December 11, 2015, in violation of La. R.S. 14:94 F; and

Count 10: illegal discharge of a firearm on December 9, 2015, in violation of La. R.S. 14:94 A and B.

Defendant pled not guilty to the superseding indictment.

On October 3, 2016, the State filed a notice pursuant to La. C.E. art. 404 B seeking to introduce "other crimes evidence" pertaining to (1) an alleged illegal discharge of a firearm on December 7, 2015, and (2) a December 22, 2015 shooting incident resulting in the death of a teenaged girl and the wounding of defendant. Defendant filed an objection. On January 23, 2017, the trial court ruled that the December 7, 2015 illegal discharge of a weapon incident was inadmissible, but the December 22, 2015 shooting incident was admissible. A hearing was also held on June 12, 2017, on defendant's motion to suppress identification, which was denied by the trial court.

On September 5, 2017, a twelve-person jury trial commenced against defendant and co-defendant, Flag. On September 8, 2017, the jury found defendant guilty as charged on all eight counts.¹

On September 14, 2017, the trial court denied defendant's motion for new trial. After a waiver of delays, the trial court sentenced defendant to consecutive terms of imprisonment as follows:

Count 2: twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence;

Counts 3 and 5: twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence plus an additional five years at hard labor without benefit of parole, probation, or suspension of sentence to be served consecutively for a total of thirty years imprisonment on each count;

Count 6: fifty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence;

Count 7: forty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence plus an additional five years without benefit of parole, probation, or suspension of sentence for a total of fifty years imprisonment;

Count 8: ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; and

Count 10: two years imprisonment at hard labor.

The trial court postponed defendant's sentencing on count one, second degree murder, pending a Miller ² hearing because defendant was seventeen years old at the time the offenses were committed.

Defendant filed a motion to reconsider sentence and a motion for appeal on his non-homicide convictions and sentences for which he was sentenced on September 14, 2017. The trial court denied defendant's motion to reconsider sentence on November 6, 2017. After a Miller hearing on December 3, 2018, defendant was sentenced on count one to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On December 20, 2018, the trial court granted defendant's motion for appeal on his non-homicide convictions. On January 1, 2019, defendant filed a motion to reconsider his life sentence without parole imposed on count one and a second motion for appeal with respect to his life sentence. On January 7, 2019, the trial court denied defendant's motion to reconsider life sentence and granted his second motion for appeal as to his life sentence without parole eligibility. This appeal followed.

On appeal, defendant challenges (1) the sufficiency of the evidence used to convict him of second degree murder, (2) the trial court's ruling preventing him from introducing evidence of the deceased victim's prior manslaughter conviction, (3) the alleged abuse of discretion committed by the trial court in granting the State's La. C.E. art. 404 B motion, (4) the excessiveness of his consecutive sentences, and (5) his life sentence imposed without parole eligibility.

FACTS

Second degree murder of Bruce Lutcher on November 23, 2015 (count 1)

On November 23, 2015, Bruce Lutcher was shot and killed outside his apartment on Ute Street in Harvey, Louisiana. Cassandra Gilds, Mr. Lutcher's girlfriend, testified that on November 23, 2015, she was living with Mr. Lutcher along with their infant son and her four other children. At about 9:40 P.M. that night, Mr. Lutcher received a phone call and left the apartment. Ms. Gilds testified she was aware that Mr. Lutcher sold drugs and that it was not unusual for him to be gone for a few minutes at a time. On that particular night, she became concerned when Mr. Lutcher did not return. She called his cell phone, but Mr. Lutcher did not answer. She then had her friend, Shantrell Johnson, call Mr. Lutcher, and again, he did not answer. Mr. Lutcher eventually returned Ms. Johnson's phone call and left a voicemail recording when she did not answer.

Ms. Gilds further testified she heard the doorbell to her apartment ring twice. She thought it was odd that Mr. Lutcher would ring the doorbell because he had a key, so she went to the door and listened. She heard a voice she did not recognize and then heard Mr. Lutcher state, "[n]o, come on, son, no. No, bra." Thereafter, she heard multiple gunshots followed by a "scratching noise." Afraid the perpetrators were going to come after her and her children, Ms. Gilds remained inside the apartment and called 9-1-1. While waiting for the police, Ms. Gilds testified she opened the apartment door and saw Mr. Lutcher at the bottom of the stairwell on his knees with his head against the wall. Mr. Lutcher was unresponsive, and his wallet and cell phone were missing.

At trial, Dr. Dana Troxclair, an expert forensic pathologist, testified that Mr. Lutcher died from multiple gunshot wounds

, some of which were sustained while Mr. Lutcher had his hands up in a defensive position. Dr. Troxclair testified that Mr. Lutcher was shot thirteen times. She stated that a copper-jacketed projectile was recovered from Mr. Lutcher's mid-back during the autopsy.

Detective Rhonda Goff of the Jefferson Parish Sheriff's Office, the lead investigator in the shooting, testified that she supervised the collection of evidence and the taking of photographs at the scene. She testified it was common knowledge that Mr. Lutcher sold marijuana and that a large amount of marijuana had been found near the scene. No firearms were recovered in the homicide investigation; however, ballistics material including projectiles and casings were recovered at the scene.

Detective Goff observed that Mr. Lutcher's pockets³ had been turned inside out and there was a bottle of Visine and the victim's keys on the ground, leading her to believe that Mr. Lutcher had been the victim of a robbery. Mr. Lutcher's wallet and cell phone were never recovered. After listening to the voicemail recording retrieved from Ms. Johnson's phone at 11:24 P.M. (the time of the shooting), she concluded that Mr. Lutcher's cell phone was taken during the robbery. On the voicemail recording, she was able to discern the voices of three individuals, leading her to believe that there was a minimum of two suspects, and she heard the footsteps of the perpetrators as they fled.⁴

Marcques Joseph⁵ testified that he knew Mr. Lutcher from the neighborhood and that on the night Mr. Lutcher was murdered, he observed defendant and co-defendant Flag walking up the street with guns in their hands towards Mr. Lutcher. Mr. Joseph went inside and a few minutes later, he came back outside and saw that the police were at Mr. Lutcher's apartment building. Mr. Joseph picked both defendant and co-defendant Flag out of a photographic lineup.

Mr. Joseph also testified that sometime after the shooting of Mr. Lutcher, he had a conversation with defendant and co-defendant Flag, who were both talking about the murder stating, "that was my work." Initially, Mr. Joseph testified that defendant told him about the murder being "his work;" however, after he was reminded of his statement to Detective Goff, he insisted it was co-defendant Flag who said it was "his work" and defendant was present.

December 9, 2015 Drive-By Shooting Incident at Julie...