State v. Jones

• Decision Date: 25 February 2003
• Docket Number: No. 02-KA-908.,02-KA-908.
• Citation: 841 So.2d 965
• Parties: STATE of Louisiana v. Terrence J. JONES.
• Court: Court of Appeal of Louisiana — District of US

841 So.2d 965

STATE of Louisiana v. Terrence J. JONES.

No. 02-KA-908.

Court of Appeal of Louisiana, Fifth Circuit.

February 25, 2003.

Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.

THOMAS F. DALEY, Judge.

Defendant, Terrence J. Jones, appeals his conviction by a jury of second degree murder in violation of LSA-R.S. 14:30.1. On appeal, he makes the following Assignments of Error:

1. It was reversible error to permit the State to introduce to the jury the multiple out-of-court statements by James Artberry, the sole eye-witness to the shooting.

2. The trial court improperly restricted appellant's cross-examination of a key State witness.

Following review of the law and evidence, we affirm the defendant's conviction and sentence. Among defendant's numerous pre-trial motions was a Motion in Limine, in which he moved the court to disallow the admission, at trial, of the motion hearing testimony of a deceased witness, James Artberry. The court heard and denied the motion on June 29, 2000, ruling that the testimony was admissible under the hearsay exception for unavailable witnesses. Defendant applied for writs to this Court from the trial court's ruling. On July 14, 2000, this Court denied writs. State v. Jones, Writ No. 00-K-1286. Defendant subsequently applied for writs to the Louisiana Supreme Court. The Supreme Court denied writs. State v. Jones, 00-2155 (La.7/18/00), 766 So.2d 1261.

The State amended the Bill of Indictment on July 17, 2000, reducing the charge to second-degree murder, LSA-R.S. 14:30.1. On that day, defendant was arraigned as to the amended charge, and pled not guilty.¹ Trial began before a twelve-member jury. On July 19, 2000, the second day of trial, defendant moved for a mistrial, arguing the State prejudiced his case by withholding transcriptions of statements made to the police by James Artberry. Defendant complained that this failure to comply with discovery interfered with his ability to fully crossexamine James Artberry at the hearing on the Motion to Suppress Identification, and with the trial court's ability to make a determination regarding the reliability of the witness's identification. After hearing arguments on the matter, the trial court granted a mistrial, and reversed its prior ruling allowing the admission of James Artberry's motion hearing testimony finding that the recorded statements made to the police contained Brady material and since the defendant did not have the benefit of the recorded statements during the testimony of Artberry at the suppression hearing the defendant was denied the ability to effectively cross examine Mr. Artberry.

The State applied for writs to this Court from the trial court's ruling. State v. Jones, Writ No. 00-K-1432. This Court denied writs on September 13, 2000. The State then applied for writs to the Supreme Court. State v. Jones, Writ No. 00-KK-2837. The Supreme Court granted writs on February 9, 2001. It issued a per curiam on June 29, 2000, reversing this Court's ruling, and holding that the State's failure to provide the statements prior to the motion hearing did not deprive defendant of his ability to fully cross-examine Mr. Artberry. The Supreme Court further found that Artberry's motion hearing testimony was admissible at trial. State v. Jones, 00-2837 (La.6/29/01), 791 So.2d 622.

On August 1, 2001, defendant filed a Motion to Quash Indictment. The motion was heard and denied on August 30, 2001. Although defendant orally noticed his intent to apply for writs from the trial court's ruling, the record does not show that he actually made a Writ Application. A second trial was held on November 13 and 14, 2001. At the conclusion of trial, the jury returned a unanimous verdict of guilty as charged.

On November 29, 2001, the court sentenced defendant to a mandatory term of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant made a timely oral Motion for Appeal. The trial court granted the motion.

FACTS

Deputy Rene Pinac of the Jefferson Parish Sheriff's Office testified that he was on patrol at about 1:00 a.m. on July 28, 1997, when he received a call regarding a shooting at 7423 Fourth Street in Marrero. The victim was reported to be lying inside of a car. When he arrived at the scene, Deputy Pinac saw a blue Oldsmobile automobile in the parking lot of the Westbank Boat Supply Company, a business adjacent to the residence. The victim, Marty Martin (Martin), was lying motionless inside the car, his left leg hanging out of the open driver's side door. Deputy Pinac testified the victim appeared lifeless. Deputy Pinac called EMS. When EMS technicians arrived, they examined the victim, and found he had no vital signs.

Dr. Fraser Mackenzie was the forensic pathologist who performed the autopsy on the victim's body. He determined the cause of death was a gunshot wound that perforated the heart, lungs, and aorta. In his opinion, the victim would have bled to death within three to five minutes. The doctor testified that toxicology screenings revealed the victim had cocaine, amphetamines, and alcohol in his system. Sandra Barrette, Martin's mother, testified that her son had struggled with a cocaine addiction for several years.

James Artberry (Artberry), who lived at 7423 Fourth Street, approached Deputy Pinac and said he had witnessed the shooting. He gave the deputy a description of the perpetrator and his car. Deputy Pinac broadcast the information over the police radio. He then placed Artberry in the back of his police vehicle. Artberry was transported to the criminal investigations bureau of the sheriff's office, where homicide Detective Mike Tucker and Lieutenant Ralph Sacks questioned him.

Detective Tucker testified that he obtained a total of four statements from Artberry. Three of them were tape-recorded, and were admitted at trial. Those recordings were transcribed. The tapes were played for the jury at trial. The first interview was conducted at 3:18 a.m. on July 28, 1997. Artberry stated he had witnessed a shooting that night. He said he knew the victim casually for more than two years, and that he knew the man was a crack cocaine user.

Artberry in his statement said he encountered Martin on the night of July 27, 1997 at The Happy Hour Lounge, located at Fourth and Jung Streets. Artberry entered the bar at about 10:15 p.m. Martin arrived at about 10:35 p.m., and shortly thereafter, he asked Artberry to help him find a prostitute. Artberry agreed, and went to Martin's car with him. The car was a light blue Oldsmobile or Buick. They were unsuccessful in locating a prostitute, and Martin drove Artberry back to the Happy Hour. Artberry walked home from there.

Artberry in his statement said he saw two unknown African-American men in a blue Pontiac Grand Prix park in front of his house. The car had tinted windows, and a yellow sticker on the back window, indicating a lack of insurance coverage. Artberry went inside his house, and watched the men through a window. The victim drove up the street at a high rate of speed, and parked in front of the house. Artberry opened his door, and saw that the victim was standing next to the Grand Prix, talking to its occupants through the open passenger side window. The driver of the Grand Prix exited the vehicle. Martin walked back to his own car, opened the door and reached inside. He then stood up and put his hand into his pocket as if he were searching for something. Artberry believed the men were engaging in a drug deal.

The driver of the Grand Prix fired two shots, striking Martin. The shooter was two to three feet away from the victim. The victim got into his car and lay down. The shooter fled the scene in his own car. Artberry said his brother came outside after the shots were fired, and Artberry instructed him to call police. Artberry told Tucker he did not get a good look at the shooter's face due to poor lighting in the area, and that he did not recognize the passenger in the shooter's car.

Artberry gave a second recorded statement at the Criminal Investigations Bureau at 4:08 a.m. on July 28, 1997. Artberry confessed that he had failed to disclose some pertinent information during the first interview because he was frightened of recrimination by the perpetrator. He had actually been involved as an intermediary in a drug deal gone wrong. He told the officers that the victim stopped him and said he was looking for some dope. Artberry thought he knew where the victim could purchase drugs, and he took him to Jung Street, near Fourth Street. They met with a woman whose name Artberry did not know. Artberry told the woman what Martin wanted. She in turn flagged down the blue Grand Prix. She told the car's occupants that Martin wanted drugs, and Martin followed the men in his car. Martin and the two African-American men met outside of Artberry's house.

Artberry in his statement stated that he saw the victim approach the passenger window of the Grand Prix. The passenger gave Martin a rock of crack cocaine, and Martin gave him money. Artberry heard the passenger say that Martin had only given him one dollar, and that Martin owed him twenty dollars. Martin searched his pockets, then went to his car and rummaged inside. The passenger told the driver to take his f___ing head off. The driver approached Martin with a gun. The driver told Artberry he faulted him for the deal's unsatisfactory outcome, and then he shot Martin twice. Martin turned and sat in his car. Artberry, fearing he would also be shot, went into his house.

During the second interview, Artberry identified the shooter as an African-American male name Terrence. He told the officers that Terrence...