State v. Harvey

• Decision Date: 25 May 2022
• Docket Number: 2021-KA-0730
• Citation: 345 So.3d 1043
• Parties: STATE of Louisiana v. Dwight HARVEY
• Court: Court of Appeal of Louisiana — District of US

345 So.3d 1043

STATE of Louisiana

v.Dwight HARVEY

NO. 2021-KA-0730

Court of Appeal of Louisiana, Fourth Circuit.

MAY 25, 2022

Jason R. Williams, DISTRICT ATTORNEY FOR ORLEANS PARISH, G. Ben Cohen, Chief of Appeals, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA

Kevin Vincent Boshea, ATTORNEY AT LAW, 2955 Ridgelake Drive, Suite 207, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano )

Judge Joy Cossich Lobrano

On April 9, 2015, a grand jury indicted the defendant, Dwight Harvey ("Defendant"), on the charges of second degree murder¹ of Aaron Martin ("Martin"), attempted second degree murder² of Curtis Joseph ("Joseph"), and obstruction of justice³ in connection with the commission of the second degree murder of Martin. After a three-day trial, on February 7, 2019, a jury found Defendant not guilty of second degree murder, guilty of the lesser included offense of aggravated battery, and guilty of obstruction of justice.

On December 19, 2019, the district court sentenced Defendant to ten years at hard labor without benefit of parole, probation or suspension of sentence on the aggravated battery conviction and forty years at hard labor on the obstruction of justice conviction. The sentences were ordered to be served consecutively. After the sentences were rendered, defense counsel objected to the sentences. Defense counsel subsequently filed a motion for new trial, which the district court denied. The present appeal follows.

For the following reasons, we affirm Defendant's conviction and sentence for obstruction of justice. Additionally, in light of the Supreme Court's recent holding in Ramos v. Louisiana , 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), we vacate Defendant's conviction and sentence for aggravated battery and remand to the district court for further proceedings.

STATEMENT OF FACTS

New Orleans Police Department ("NOPD") Officer Jermell Taylor testified that on January 18, 2015, he responded to a 911 call of a suspicious person at 3017 N. Derbigny Street.⁴ When he arrived on the scene, Officer Taylor observed a man, later identified as Joseph, lying on the front porch of the residence. Joseph was bleeding and appeared to have gunshot wounds in his face and back. Joseph identified Defendant as the person who had shot him and stated that the shooting had occurred at a residence located around the corner.

Joseph testified that he was currently incarcerated for a term of ten years in connection with a felony theft conviction relating to shoplifting. He further testified that, in addition to the convictions for which he was presently in prison, he had numerous prior convictions.

Joseph testified that on January 18, 2015, he was sleeping at Martin's house on Montegut Street.⁵ He fell asleep at 8:00 a.m., having stayed up all night "shooting up with heroin and cocaine." Joseph stated that when he woke up, he heard a gunshot. Joseph testified that he witnessed Martin fall to the floor, asked Defendant what he was doing, and then, Defendant started shooting at him. Thereafter, Joseph ran towards the back of the house and escaped through a window. Joseph described the firearm used by Defendant as a .380 caliber handgun. He recalled running to the front porch of a house on Derbigny Street and identifying Defendant as the person who shot him. Joseph made an in-court identification of Defendant as the person who shot him and Martin. On cross-examination, Joseph testified that after escaping the house, he saw Defendant get into a black Chevrolet Tahoe and drive away from the scene.

Joseph's sister testified that she knew of no "beef" Defendant had with either her brother or Martin and was surprised when she heard that Defendant had shot her brother and killed Martin.

NOPD Commander Nicholas Gernon⁶ testified that he, along with Detective Amy Robinson, traveled to Avoyelles Parish, where Defendant was ultimately located in a motel and arrested in connection with the shootings, to take a statement from Defendant.

On cross-examination, Commander Gernon confirmed that Defendant stated, approximately seven times, that he and Joseph "were tussling over the gun." Commander Gernon elaborated that Defendant initially denied being present at the Montegut Street residence on the day of the shootings. Commander Gernon stated: "He (Defendant) also told me he was in Hammond that day, told me he was uptown, told me he was at work - -." Later, after it was explained to Defendant "how cell phone technology works and we (the police) could figure out where he was ... [his] story started to evolve." Defendant eventually admitted to being at the Montegut Street house, stating that Joseph "pulled out a gun" and that they were "tussling over the gun." Further, a review of Defendant's videotaped statement, introduced into evidence as State's exhibit 14, reflected that he admitted to leaving the Montegut Street residence. Specifically, Defendant admitted to leaving the residence via the front door after Joseph was shot.

NOPD Detective Amy Robinson was assigned the investigation of the shootings. She testified that a search warrant for the Montegut Street residence was procured, pursuant to which an assault rifle was found, along with some live ammunition.⁷ Pills and drug paraphernalia were also found at the residence. Additionally, six .380 casings were recovered. Detective Robinson testified that all of the casings were fired from the same weapon, but that the weapon was not recovered.

Based on Joseph's identification of Defendant as the shooter, Detective Robinson procured a warrant for Defendant's arrest. Upon learning of Defendant's arrest in Avoyelles Parish, Detective Robinson, along with Commander Gernon, relocated to Avoyelles Parish to question Defendant.

On re-direct examination, Detective Robinson testified that Defendant claimed in the statement he provided to Detective Robinson and Commander Gernon that he was at Martin's Montegut Street house to purchase drugs. Further, Defendant admitted to taking the gun used to shoot Martin and Joseph from the scene, stating that he gave the gun "to a guy named Laru."

Detective Eddie Williams worked in the NOPD digital forensics lab where his role was to process electronic equipment and report any relevant findings to the lead detective assigned to the case. Detective Williams testified that he processed three cell phones provided to him in the present case but was unable to extract any useful data from the cell phones.

Dr. Samantha Huber, chief forensic pathologist at the Orleans Parish Coroner's Office, was accepted, without objection, as an expert in forensic pathology. Dr. Huber testified that she performed an autopsy on the decedent, Martin, following which, she classified the shooting as a homicide.

Sean McElrath ("McElrath"), Section Chief of the Forensic Firearms Unit for the NOPD Crime Lab, was accepted, without objection, as an expert forensic firearms examiner. McElrath testified that the six fired .380 auto caliber cartridge cases found on the scene were fired from the same weapon.

New Orleans Police Sergeant Robert Barrere was responsible for documenting the crime scene. Sgt. Barrere testified that he found a "gun lighter," which he explained was a lighter in the shape of a "small silver replica of a gun."

ASSIGNMENTS OF ERROR

Defendant raises seven assignments of error:

1. The verdict of guilty of obstruction of justice is contrary to the law and the evidence.

2. The district court erred in the denial of the motion for new trial.

3. The verdict of aggravated battery is contrary to the law and the evidence.

4. The district court erred in the imposition of the maximum sentence of forty years for obstruction of justice.

5. The district court erred in the imposition of the maximum sentence for aggravated battery.

6. The district court erred in the imposition of consecutive sentences.

7. The verdict of aggravated battery was not unanimous.

We discuss Defendant's assignments of error out of order due to the non-unanimous verdict of aggravated battery in this case. As addressed later herein, we pretermit discussion of Defendant's fifth and sixth assignments of error also because of the non-unanimous verdict.

DISCUSSION

Assignment of Error No. 1: Sufficiency of the Evidence for Obstruction of Justice Conviction

Defendant contends that the evidence adduced at trial was insufficient to support his conviction for obstruction of justice.

The United States Supreme Court provided the standard for review of a claim of insufficiency of the evidence in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) :

...the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (emphasis in original) (citation omitted).

"Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court." State v. Williams, 11-0414 p. 18 (La. App. 4 Cir. 2/29/12), 85 So.3d 759, 771. In Musacchio v. United States , the United States Supreme Court described the basic nature of the Jackson standard as follows:

Sufficiency review essentially addresses whether "the government's case was so lacking that it should not have even been submitted to the jury." On sufficiency review, a

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