State v. Holmes

• Court: Court of Appeal of Louisiana
• Writing for the Court: JUDE G. GRAVOIS
• Citation: State v. Holmes, 119 So.3d 181 (La. App. 2013)
• Decision Date: 16 May 2013
• Docket Number: No. 12–KA–579.,12–KA–579.
• Parties: STATE of Louisiana v. Kevin P. HOLMES.

119 So.3d 181

STATE of Louisiana

v.Kevin P. HOLMES.

No. 12–KA–579.

Court of Appeal of Louisiana, Fifth Circuit.

May 16, 2013.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Megan L. Gorman, E. Clifton Milner, III, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Brad Scott, Nicole E. Burdett, Jason R. Williams, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT A. CHAISSON.

JUDE G. GRAVOIS, Judge.

[5 Cir. 2]Defendant, Kevin P. Holmes, appeals his convictions for second degree murder and attempted second degree murder. On appeal, he argues that the evidence was insufficient to convict him, that the trial court erred in denying his motion for severance, and that his sentence for attempted second degree murder was excessive. For the following reasons, we affirm defendant's convictions and sentences, and remand for correction of the minute entries as described below.

PROCEDURAL HISTORY

On December 17, 2009, defendant, Kevin P. Holmes, was indicted by a Jefferson Parish grand jury for the second degree murder of Marvin Newman in violation of La. R.S. 14:30.1 (count one), and for the attempted second degree murder of Teri Creagh in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count two). Defendant pled not guilty to these charges at his arraignment on December 21, 2009. A new indictment was filed on July 29, 2010, charging defendant with [5 Cir. 3]the same counts as the original indictment. This indictment superseded the prior indictment.¹

On February 4, 2011, defendant's motion to suppress statement, identification, and evidence was denied. On April 21, 2011, defendant filed a “Motion and Incorporated Memorandum for Severance and/or Separate Trials.” On May 27, 2011, defendant's motion for severance was denied. On November 9, 2011, defendant and his co-defendant re-urged the motion for severance. The trial court denied the motion, noting the defendants' objections.²

Immediately thereafter, trial began. On November 11, 2011, a 12–person jury unanimously found defendant guilty as charged to both counts. ³ On December 12, 2011, defendant was sentenced on count one to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, and on count two to 50 years imprisonment at hard labor. These sentences were imposed consecutively. Defendant filed a written motion for appeal on December 14, 2011. His motion for appeal was granted on December 27, 2011.

FACTS

On the night of August 22, 2009, a party was held in the 3000 block of Mt. Kennedy Drive in Jefferson Parish. A 9–1–1 call was made after several gunshots were heard. Deputy Shannon Sims of the Jefferson Parish Sheriff's Office responded to the call within a minute and saw a black male lying on the ground about a block and a half from Rochester and Mt. Kennedy, his clothes covered in blood. Although the victim was still alive, he was not responsive. Deputy Sims did not find a gun in the victim's clothing, in his hand, or in the area around where he fell. EMS arrived and transported the victim to West Jefferson Medical Center. [5 Cir. 4]The 20–year–old victim, Marvin Newman, died from multiple gunshot wounds.⁴ Another victim, Teri Creagh, was shot in her left thigh, and was taken to West Jefferson Medical Center as well.

Candice Cobena was at Lakeyda's ⁵ house on Mt. Kennedy Drive for a party on August 22, 2009. She was outside the house, arguing with Marvin Newman, whom she had previously dated. She said that defendant, Kevin Holmes, whom she knew as “Chopper,” arrived in a gold G6 Pontiac and pulled up in front of Lakeyda's house, but did not get out of the car. The car door opened, and defendant was seated in the driver's seat.⁶ She also noticed that “Whop” pulled up in a green Pontiac, but parked on the opposite side of the street across from Lakeyda's house.

As Candice and Marvin were arguing, Whop, who was in the middle of the street and parallel to defendant's car, said to Marvin, “Don't your girl got my cousin's name on her.” Candice explained that Whop was talking about her, apparently in reference to a tattoo she had. Marvin asked Whop to repeat what he said, and when Whop went to open his mouth, Marvin punched him. Whop fell, holding his jaw, and said, “Get him, Cuz.” Candice testified that after Whop said this, defendant exited his car from the driver's side with a gun in his hand, raised the gun, and started shooting. She testified that the shooting started on Mt. Kennedy in the middle of the street on the side of the “G6” and that defendant and Marvin were very close to each other. Candice testified that Marvin turned around and ran down Rochester, a street perpendicular to Mt. Kennedy, and defendant ran down the street behind him. She said that defendant followed Marvin, and “they [5 Cir. 5]just kept shooting.” According to Candice, defendant stopped shooting when he reached Rochester, and then ran back to his gold car and left.⁷

In the early morning hours following the shooting, which she believed might have occurred around 8:30 p.m., Candice identified defendant in a photographic lineup and also provided statements about the incident.⁸ She testified that she was 100 percent positive that defendant was the person she saw shoot Marvin. She also testified that she could not tell at the time of the shooting how many people were actually firing guns.

Candice said that Darius Duckett was in the vehicle with defendant when he arrived. She had known Duckett for about one or two years from high school. However, she did not know where Duckett was at the time of the shooting. ⁹ She testified that she did not know if Duckett had a gun, but thought it could be possible that Duckett was shooting a gun at Marvin, saying “I wouldn't put it passed [sic] him.” She said she believed all of the shots happened at the same time. She said that defendant was wearing a white “tank” on the night of the incident, while Duckett was wearing all black.

Bervin Wright testified that on the night of the shooting, he observed someone wearing a white tank top with a gun. He recalled two guys leaving a car and going down the street. He recalled that someone said, “they're shooting.” He was not able to make identifications, however.

Teri Creagh, a visitor from California who was in town for her nephew's graduation, was shot in her left thigh as she and other family members sought cover. She did not see the person who fired the gun. She testified that she heard [5 Cir. 6]gunshots being fired and thought they were coming from the driver's side of a vehicle parked behind her car. Creagh testified that she did not know either defendant.

Casings and other ballistic evidence were collected from the scene. A cluster of .380 caliber casings was found. All of the .380 caliber casings were recovered between the street and the house at 3000 Mt. Kennedy Drive. A cluster of .40 caliber casings was also found. Additional .40 caliber casings were recovered down Rochester. A projectile went through a telephone box close to the corner of Mt. Blanc and Rochester and lodged into the equipment. Also, another projectile struck the residence at 3001 Mt. Blanc.

The ballistic evidence on the scene established that two types of guns were involved, a .40 caliber and a .380 caliber. On Mt. Kennedy, five .380 caliber casings and one .40 caliber casing were recovered. A total of six casings were found on Rochester, all .40 caliber casings. The scene suggested that the starting point of the incident was at 3000 Mt. Kennedy, moving down Rochester to Mt. Blanc.

Jene Rauch of the Jefferson Parish Sheriff's Office Crime Lab testified as an expert in firearms examination and toolmark examination. She examined cartridge casings and projectiles from the scene and then examined projectiles collected from the autopsy and compared them. She examined six .380 caliber casings and determined that all were fired from the same weapon. She also examined seven .40 caliber casings and determined that all were fired from the same weapon. After examining the .380 caliber casings and the .40 caliber casings, she did not believe that they could have been fired from the same gun. She concluded that based on the evidence, at least two weapons were involved. She also compared two jacketed projectiles, which were received from the morgue, and determined that they were [5 Cir. 7]fired from the same weapon and were consistent with a .380 caliber weapon. No guns were located in connection with the shootings. Further, no gun was recovered from the victim, Marvin. ¹⁰

Although only two projectiles were recovered from the victim's body during the autopsy, he sustained five separate gunshot wounds. Dr. Karen Ross, an expert in the field of forensic pathology, performed the autopsy and testified that the victim was alive when he sustained all wounds, as evidenced by the hemorrhage associated with each one. She concluded that of the five gunshot wounds, three of the wounds were consistent with back-to-front wounds, i.e., the victim was shot from behind.

Deputy Abraham Andino of the Jefferson Parish Sheriff's Office also responded to the call on the night of the shooting to investigate the homicide. ¹¹ He explained that this was a large crime scene that started at the 3000 block of Mt. Kennedy and continued down Rochester.

Deputy Andino interviewed Candice at the detective bureau. As a result of this interview, defendant was developed as a potential suspect in the shooting. Candice positively identified defendant in a photographic lineup and she also gave a statement. Deputy Andino located defendant and transported him to the detective bureau. After he indicated that he understood his rights, defendant gave a statement. In his initial statement, defendant did not indicate that he was involved in the shooting on Mt. Kennedy. In fact, he indicated that he was not even...