State v. Gray
| Decision Date | 28 June 2017 |
| Docket Number | NO. 2016-KA-1195,2016-KA-1195 |
| Parties | STATE OF LOUISIANA v. GERARD GRAY |
| Court | Court of Appeal of Louisiana — District of US |
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 521-734, SECTION "A"
(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Rosemary Ledet)
Leon A. Cannizzaro, Jr.
District Attorney
Scott G. Vincent
Assistant District Attorney
PARISH OF ORLEANS
619 South White Street
COUNSEL FOR APPELLEE/THE STATE OF LOUISIANA
Kevin V. Boshea
2955 Ridgelake Drive, Suite 207
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
In this criminal appeal, Gerard Gray appeals his convictions of two counts of attempted second degree murder and his consecutive sentences of fifty years on each count. For the reasons that follow, we affirm his convictions and sentences.
On July 8, 2014, Mr. Gray was charged with two counts of attempted second degree murder, violations of La. R.S. 14:27 and 14:30.1.1 On September 9, 2014, Mr. Gray was arraigned; and he entered a plea of not guilty. As a result of various pre-trial motions by the State, the district court made two interrelated evidentiary rulings: (i) granted the State's notice of intent to introduce evidence of gang affiliation pursuant to La. C.E. art. 404(B); and (ii) granted the State's request to introduce two YouTube videos depicting, among other things, Mr. Gray's gang affiliation. Because the district court denied the State's request to introduce fourother YouTube videos, the State filed an application for supervisory writ. This court denied the State's writ for technical reasons. See State v. Gray, 16-0521 (La. App. 4 Cir. 5/23/16) (unpub.) (Tobias, J., concurring) ( that "[p]art of the relator's filing is videos in a format that does not comply with [Local] Rule 24 [of the Fourth Circuit Court of Appeal], and we are unable to review them."). Granting the State's writ, in part, the Louisiana Supreme Court held that the district court abused its discretion in excluding one of the other four YouTube videos; the Supreme Court reasoned that the video in question "has significant probative value to show defendant's authority and the extent of his willingness to protect his territory." State v. Gray, 16-0977 (La. 5/24/16), 191 So.3d 1072. Before trial, the district court also granted the State's motion to exclude discussion of a possible multiple bill sentence.
A three-day jury trial was held in this matter, beginning on May 23, 2016, and ending on May 25, 2016. The jury found Mr. Gray guilty as charged on both counts. On June 17, 2016, the district court denied Mr. Gray's motion for new trial. On that same date, the district court sentenced Mr. Gray to fifty years on each count without the benefit of probation, parole, or suspension of sentence. The district court also ordered that the sentences run consecutively. On July 8, 2016, the district court denied Mr. Gray's motion to reconsider sentence. This appeal followed.
On the morning of July 8, 2014, Christopher Chambers and eight family members—five minors and three adults—went to A.L. Davis Park (the "Park") to play basketball. The Park, which is also referred to as Shakespeare Park, is located at the intersection of Washington Avenue and LaSalle Street in New Orleans, Louisiana—the Central City or Uptown area. One of the adults who accompanied Mr. Chambers to the Park was his younger cousin, Marc Mitchell.2 While at the park, Mr. Mitchell and his cousin, Mr. Chambers, had two encounters on the basketball court with Mr. Gray—also known as the rapper "Roy Da [the] Prince"3 and a member, and an apparent leader, of the "Byrd Gang."4
The two encounters and the shootings
The first encounter was primarily between Mr. Gray and Mr. Mitchell. Mr. Mitchell stated to Mr. Gray that his group had "winners"5 and thus could use the basketball court next; Mr. Gray replied: "I hope you make it home, homie." Mr. Mitchell described this encounter as a "mild mannered verbal dispute." He testified that it did not seem like a big deal at the time. He acknowledged, however, that he believed the encounter might turn into a physical altercation or fight, but not a shooting. Mr. Chambers witnessed the first encounter and heard Mr. Gray tell Mr.Mitchell that he hoped he made it home. Nonetheless, Mr. Chambers testified that because they were just playing basketball, he was unsure if Mr. Gray's statement was serious.
After the first encounter, two or three more basketball games were played. During this time, Mr. Chambers left the park and went to the grocery store across the street to get some candy and drinks. When he was walking back to the park, Mr. Chambers noticed the man who ultimately shot him—Mr. Bernard—on the neutral ground between the store and the park. After he returned to the basketball court, Mr. Chambers waited for the basketball game that was in session to end; he estimated that this took about five minutes. During this time, Mr. Gray was pacing back and forth on the court. At some point, Mr. Chambers saw Mr. Gray go into the back with several men, including Mr. Bernard, and get into a "huddle."
The second encounter primarily was between Mr. Chambers and Mr. Gray. This encounter occurred when Mr. Chambers and his family members headed back onto the basketball court and attempted to claim winners. Mr. Chambers testified that he was at the top of the court; Mr. Mitchell was on the side; and Mr. Gray's group was in the middle. Mr. Gray then walked between Mr. Mitchell and Mr. Chambers and stated to Mr. Chambers: "You flexing, big man." In response, Mr. Chambers told him: "Man, what you doing all this for, like you own the court or something, like come on man, what you doing?" Mr. Mitchell and the other family members admonished Mr. Chambers to "chill out, we at their house." As he prepared to leave, Mr. Chambers sensed someone behind him; that someone wasMr. Bernard. At this point, neither Mr. Chambers nor Mr. Mitchell had interacted or exchanged words with Mr. Bernard. Mr. Chambers then turned around and went to shake Mr. Bernard's hand. When he did so, Mr. Bernard said, "F*** that" and started shooting. Mr. Chambers was shot three times—once in the neck and twice in the chest.
When he saw his cousin was shot and falling down, Mr. Mitchell ran back towards his cousin. As he did so, Mr. Bernard shot him. Mr. Mitchell testified that he was shot twice—once in his leg and once in his chest. Mr. Mitchell further testified that he was hospitalized for two months for a collapsed lung and that he almost died. Mr. Mitchell confirmed that immediately before the shooting, he heard Mr. Bernard make the statement "F*** that" and then shoot at Mr. Chambers. Mr. Mitchell estimated that when the shooting began, he was about ten feet away. Summarizing what occurred, Mr. Mitchell testified that he "got in a verbal altercation with one guy and got shot by another guy that [he] didn't know."
The investigation
In response to the call for service on July 8, 2014, shortly after noon, both New Orleans Police Department ("NOPD") Officer Lazano Black and NOPD Detective Walter Edmond went to the crime scene. When they arrived, they found two male victims who were suffering from multiple gunshot wounds; the victims were both lying on the basketball court. Because the victims appeared to be in critical condition, the Homicide Unit was called to the scene.
Officer Black conducted a general investigation of the crime scene. On the scene, twenty-eight shell casings were recovered.6 Also, two houses located adjacent to the park were hit by stray bullets and had bullet holes in them—a green house on LaSalle Street and a yellow house located next door to the green house. After finding the stray bullets in those houses and collecting evidence for the crime lab, Officer Black had no further involvement in the investigation.
Detective Edmond, who was the lead investigative officer, interviewed two witnesses, both members of the victims' family. The witnesses provided the name of the suspect as "Roy the Prince." At that time, the NOPD's gang unit was contacted. It was determined that Mr. Gray was a Byrd Gang member and that he was the leader of that gang. At that juncture, however, Mr. Gray's role in the shooting was unclear.
Detective Edmond also interviewed the two victims at the hospital. One of the victims mentioned that he saw the shooter (later identified as Mr. Beard) shortly before the shooting occurred at the grocery store across the street from the Park. Based on this fact, the police obtained a copy of the surveillance footage from the grocery store. Both victims were shown a still photograph of Mr. Bernard from video surveillance footage; both victims positively identified Mr. Bernard as the shooter. Based on those interviews with the victims, Mr. Gray remained a suspect as the instigator of the altercation and cause of the shooting.
Arrest warrants were prepared for both Mr. Bernard, as the shooter, and Mr. Gray, as the instigator. Explaining the grounds for obtaining the arrest warrant for Mr. Gray, Detective Edmond attested in the warrant as follows:
Det. Edmond learned the victims were involved in a verbal altercation with Mr. Gerard Gray on the basketball court. The victims take on the incidents are as follow[s]: The victims were waiting to take their turn playing the winning team. Mr. Gray stated to the victims that they did not have next to play, and that he did. The victims argued that Mr. Gray was incorrect. Mr. Gray immediately began to state to the victims that he will show then that he had next. Mr. Gray stated to one of the victims that he might not make it home tonight. Mr. Gray stated to the victims that they must have not known where they were. Mr. Gray began to make phone calls and talk to a group of guys near the court. After several minutes the current game ends. The victims walk onto to the...
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