State v. Holder

• Decision Date: 07 November 2012
• Docket Number: No. 12–258.,12–258.
• Parties: STATE of Louisiana v. Dexter HOLDER.
• Court: Court of Appeal of Louisiana — District of US

101 So.3d 1059

STATE of Louisiana
v.
Dexter HOLDER.

No. 12–258.

Court of Appeal of Louisiana,
Third Circuit.

Nov. 7, 2012.

[101 So.3d 1060]

J. Phillip Haney, District Attorney, 16th Judicial District Court, Angela B. Odinet, New Iberia, LA, for Appellee, State of Louisiana.

Edward Kelly Bauman, La. Appellate Project, Lake Charles, LA, for Defendant–Appellant, Dexter Holder.

Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.

SAUNDERS, Judge.

[3 Cir. 1]Defendant, Dexter Holder, was charged on June 5, 2007 with armed robbery, a violation of La.R.S. 14:64; attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1; and two counts of second degree kidnapping, a violation of La.R.S. 14:44.1. The State elected not to prosecute the armed robbery charge.

On June 10, 2009, Defendant filed a motion to enroll as pro se counsel and a motion to waive counsel. On July 6, 2009, the trial court conducted a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and denied the motion.

A jury found Defendant guilty of all three remaining charges on October 14, 2009. Defendant was sentenced on March 30, 2010 to twenty-five years at hard labor for attempted second degree murder and ten years at hard labor on each count of second degree kidnapping. The kidnapping sentences were to run concurrently with each other but consecutively to the attempted second degree murder sentence. The State filed its original multiple bill of information on October 16, 2009, but withdrew it at the sentencing hearing on March 30, 2010. The State filed a new multiple bill at the sentencing hearing, and Defendant pled not guilty.

At the multiple offender hearing on March 18, 2011, the trial court accepted evidence of Defendant's criminal history and took the matter of his adjudication under advisement. On July 7, 2011, the

[101 So.3d 1061]

trial court found Defendant to be a fourth or subsequent felony offender and vacated the earlier sentence for attempted second degree murder. The trial judge sentenced Defendant “as a fifth felony offender for attempted second degree murder to the mandatory minimum of 50 years with the Department of Corrections at hard labor.” She kept intact the two ten-year sentences for second degree kidnapping. The two ten-year sentences, [3 Cir. 2]already adjudicated to run concurrently with each other, are to run concurrently with the fifty-year sentence.

FACTS:

On April 27, 2007, Wilson Honore, III saw Defendant “[g]etting through the window” of apartment B–18 of the St. Edwards housing project, “[t]earing the screen down trying to get in.” This was the home of Honore's aunt, Linda Jones, who lived there with Defendant's father, Ronnie Merritt, and Defendant. Honore did nothing; he “went on [his] way.” Two hours later, after 10:00 p.m., Honore saw Defendant “pass in front [of Honore's] grandfather's house,” apartment B–24. Honore was getting out of his van and Defendant “just came on [him,] and [he didn't] know what was wrong.” Defendant had two knives in his hand, and “him and his Daddy was getting into it.” Honore got out of the van and headed toward his friend's apartment, B–16. Defendant asked Honore “[does he] want some, too?” He approached Honore with the knives but stopped and resumed arguing with Merritt. Honore asked Merritt to handle the situation and take care of his son.

While Defendant and his father argued, Honore watched Defendant go into Merritt's house. Honore went “to the back door of one of [his] partner's house” and knocked on the door. Someone hollered, “he's coming around the corner,” and Honore heard gunshots. He turned around and saw Defendant pointing a rifle directly at him and firing it.

Honore “took out running” after the first three shots, and he heard more. One of the shots hit him in the ankle. Although Honore did not know how many shots were fired, he recalled hearing more than five. On June 4, 2009, Honore signed an affidavit prepared by Defendant alleging he wanted to drop the charges against Defendant; he testified at trial he wanted to “[f]orgive and forget.” Honore believed the incident was “a misunderstanding or whatever he was going [3 Cir. 3]through ... an accident to [him] ... [i]t wasn't meant.” Honore admitted, however, the shots did not appear to be accidentally fired.

Earlier in the evening, Honore had seen Defendant with Yolanda Lewis, who he testified was Defendant's girlfriend. They were in the parking lot in front of Merritt's apartment.

Merritt testified as a hostile witness at trial that he “pulled up in [his] car” when Defendant and Honore were arguing. Merritt told Honore “to go ahead on, so it wouldn't be nothing.” Honore “stood there for a while” and left after Defendant went into the house.

The next time Merritt saw Defendant, he came up to Merritt's car with a gun. Merritt “dropped [Defendant] off around the corner,” and then he heard at least two shots. Defendant returned to the car with the gun. Merritt drove Defendant from the scene and told him he should get rid of the gun because he was going to get in trouble. At trial, Merritt testified he drove Defendant voluntarily and did not feel intimidated by him.

In an audiotape played at trial of a prior conversation between Merritt and the State's attorney, Merritt said Defendant told him he did not know if he hit Honore when he fired the gun. The audiotape also

[101 So.3d 1062]

included Merritt saying he would not have driven Defendant away if he had not had a weapon; Merritt feared he might get hurt or killed by Defendant. At trial, however, Merritt testified he did not feel threatened, but did not “trust nobody's gun”; he was not kidnapped. Merritt was “drinking that night and half of the stuff [he didn't] even remember, and “most of [what he testified] is the truth.”

Officer Wade Bergeron of the Iberia Parish Sheriff's Office responded to the shooting around 11:15 p.m. on April 27, 2007. He found a very angry and agitated Honore, who said Defendant had shot him. Honore said he thought Defendant may [3 Cir. 4]be in building “B” of the housing project. Officer Bergeron found Merritt at that location. He was excited and yelling, and he seemed unwilling to allow them inside. Merritt stated he had been assaulted by Defendant with a knife and then with a gun. He took Defendant around the block in his vehicle; he did not go voluntarily, but rather “[b]ecause he was scared of his life.”

After Honore went to the hospital, 911 received a call from someone identified as “Yolanda,” who stated Defendant was in the car with her, but “that he had gotten out.” Officer Bergeron located the vehicle, and another unit made the traffic stop. Defendant got out of the vehicle and ran. Officer Bergeron identified Defendant as the suspect who was captured after a chase of “a couple of blocks.”

Officer Bergeron's police report indicated Merritt told him Defendant forced him with a knife to open his residence. Defendant retrieved a rifle inside and left, then ran to the front of the residence and began shooting at Honore. Defendant then forced Merritt into Merritt's vehicle and told him to drive around the block. After traveling a few yards, Defendant jumped out of the vehicle.

Yolanda Lewis also testified at trial. She and Defendant “became friends and stuff” after meeting at the St. Edwards housing project two to three weeks prior to April 27, 2007. On that date, Lewis left her house and was stopped at a traffic sign when Defendant jumped into her car with a rifle. She testified about what Defendant said:

He told me something about he got to get away and stuff like that. He got to get back to Mississippi. So I say, “why what's wrong?: I say, “what you doing with that? Why you don't say that?” And I think we left, we rolled a little piece down the street and that's when he said that he had shot somebody and I had to get him back to Mississippi.

Defendant told Lewis he thought he had killed “that m* * * * * f* * * * *.” He told her she had to find some money for gas to get him to Mississippi. Lewis thought she would try to get the gun away so he did not kill her, then find a way to get him out [3 Cir. 5]of her vehicle. She persuaded Defendant to “hide the gun in the country by [her] grandmother's house.”

Lewis went to her nephew's house to get some money, but he was not at home. All the while, Defendant “was still fussing and kept telling [her] to get, you know, and cursing [her] and telling [her] to get him to Mississippi....” Defendant had no weapons after they left the gun. After they “rode around a long time again,” Lewis suggested they go to her friend's house. Defendant told her if she did not do what he told her, “he would hurt [her] family and stuff like that.”

Defendant and Lewis went to the home of Lewis's friend; Lewis asked if they could stay for a little while because she was tired. She told her friend she could “take [her] car up town,” and the friend went to a club in it. When the friend

[101 So.3d 1063]

returned on foot after leaving the car at the club, she told Lewis “[her] car is surrounded by cops,” she had heard Defendant had shot someone, and he had to leave her home. Defendant said Lewis was coming with him, and they walked down the street to where the friend had left Lewis's car. The officers were no longer there. As they walked, Lewis “was trying to cry, hoping somebody would see [her].” She passed beside two girls and whispered to them, “he gonna kill me ... I'm scared,” but she did not know if they heard her. Lewis and Defendant rode around in her car again, then went to her mother's house, where Lewis called 911. Her parents were inside the house asleep when she made the call. Lewis cooperated with Defendant because she knew her life was in danger, and she was “scared that he was going to kill [her] ... with his hand.”

After the call, Lewis left in the car with Defendant and drove until she saw a police vehicle's lights behind...