State v. Laymon

• Decision Date: 15 March 2000
• Docket Number: No. 97-KA-1520.,97-KA-1520.
• Citation: 756 So.2d 1160
• Parties: STATE of Louisiana v. Eric LAYMON and Eric Rogers.
• Court: Court of Appeal of Louisiana — District of US

756 So.2d 1160

STATE of Louisiana v. Eric LAYMON and Eric Rogers.

No. 97-KA-1520.

Court of Appeal of Louisiana, Fourth Circuit.

March 15, 2000.

Rehearing Denied March 31, 2000.

Yvonne Chalker, Louisiana Appellate Project, New Orleans, Louisiana, Counsel for Defendant-Appellant, Eric Laymon.

Joseph N. Marcal, III, New Orleans, Louisiana, Counsel for Defendant-Appellant, Eric Rogers.

Harry F. Connick, District Attorney of Orleans Parish, Cate L. Bartholomew, Assistant District Attorney, New Orleans, Louisiana, Counsel for State-Appellee.

Court composed of Judge STEVEN R. PLOTKIN, Judge DENNIS R. BAGNERIS, Sr., Judge ROBERT A. KATZ.

PLOTKIN, Judge.

On October 28, 1993, Eric Rogers, Eric Laymon and Jermaine Davis were indicted for the first degree murder of twelve-year-old Ivory Simms. Rogers and Laymon pled not guilty at their arraignment on November 3, 1993; Davis did likewise on November 12, 1993. On June 3, 1994, the trial court denied defendants' motions to suppress identification, evidence and confessions. Rogers filed a motion to sever on November 23, 1994, which the trial court denied. On February 18, 1995, after a four day jury trial, Davis was found guilty as charged. The jury was deadlocked as to Rogers and Laymon, however, and a mistrial was declared for those two defendants.

After Davis' penalty phase on February 19, 1995, the jury recommended life imprisonment at hard labor. On April 3, 1995, Davis filed a motion for new trial, which the trial court denied. On the same day, Davis waived delays and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On appeal, this court affirmed Davis' conviction and sentence. See State v. Davis, 96-0872 (La.App. 4 Cir. 8/19/98), 727 So.2d 453,

writ denied,

99-0154 (La.5/14/99), 741 So.2d 666.

The State continued its prosecution of Rogers and Laymon; and by order of the Louisiana Supreme Court, the case was transferred to the Hon. Charles Ward, Judge Ad Hoc, on January 9, 1996. Defendant Rogers filed a motion to quash due to prosecutorial misconduct on March 1, 1996; defendant Laymon later joined in this motion. After a hearing, the trial court denied the motion on April 26, 1996. After a four day jury trial, defendants were found guilty of second degree murder on May 2, 1996. Defendants filed motions for new trial and for post verdict judgment of acquittal, which the trial court denied on June 7, 1996. The trial court then sentenced defendants to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. This appeal followed.

STATEMENT OF FACTS:

At Rogers and Laymon's second trial, Lionel Burr testified that, shortly after 8:00 p.m. on August 29, 1993, he was standing on the corner of General Taylor and Laurel Streets with Ivory Simms and some of his other friends. Burr was approximately fifteen years old at the time. A dark blue, four-door car occupied by three men passed the corner, turned out of sight, and then approached again. As the car passed the second time, the man in the front passenger seat began firing a .45 caliber gun, and the man in the rear passenger seat began firing a Tech-9. At one point, the car backed up so that the passengers could continue firing. Burr was hit in the arm, groin, hip and knee, and one bullet grazed his head. Another young man, Hakeem Jones, was hit in the leg, as was six-year-old Pedro Anderson, who had been inside a nearby house. Ivory Simms was found fatally wounded one block from the scene of the attack. He died at the hospital later that night.¹ Hakeem Jones testified that he had gone to a party in a park earlier that day and had returned to the neighborhood with friends. He was standing with them by a house near the corner and was eating ice cream when a black, four-door car without tinted windows appeared at the corner of General Taylor and Laurel, went around the block, and returned. The car's lights went off, and shots rang out after Jones heard someone say "die B" to Burr. Jones testified that the two shooters were wearing ski masks² and that the front passenger had a shorter gun than did the rear passenger.³ Jones ran down an alleyway but was hit in the leg. He stated that Lionel Burr had been closer to the car at the time of the shooting than he had been and also stated that it was fairly dark at the time and that no street lights were on.

Zacadia Scott testified that he was present near the corner when the shooting began and reacted by diving under a parked car. He could not remember whether the perpetrators were masked and could not say how many of them were in the car.

Lydell Jones testified that he had spoken with the police about the shooting, but he stated that he had not seen anything and had not even heard the gunshots. He denied telling the police that a small, black sedan drove by and began shooting.

Detective Daniel Scanlan testified that an emergency call relating to the shooting was made at 8:19 p.m. He was in the area at the time and responded very quickly. He found Simms and requested an emergency medical unit and backup assistance. At the scene, he found numerous shell casings from an automatic weapon and a box containing a substance resembling crack cocaine. Witnesses identified the car as a blue Chevette, and Scanlan broadcast this description. By this time, Lionel Burr and Hakeem Jones had been taken to the hospital by Burr's cousin, Derrick Williams, and mother. Det. Scanlan relocated to the hospital to interview the two victims and obtained their personal information. He stated that he did not succeed in obtaining descriptions of the perpetrators; however, neither victim stated that the perpetrators were masked during the attack. Det. Scanlan subsequently learned that Ivory Simms had died; and his investigation then ceased, as he was required to defer to the homicide division.

Detective Kevin Honore testified that he and his partner, Keith Williams, heard the broadcast of the shooting and description of the car at approximately 8:30 p.m. Det. Honore followed one car but determined that its occupants were not involved in the shooting. He then saw a car resembling a Chevette being driven with its lights off, even though it was then dark. The car was headed downtown, coming from the direction of the St. Thomas housing development. Three or four men appeared to be in the car, and he and his partner tried to stop it. After a brief chase, during which the officers radioed for assistance, the car struck another car in the 800 block of St. Mary Street; and four young black men abandoned the car and ran. The officers were unable to apprehend or identify any of them, nor did they see any weapons during the course of either the car or foot chase.

Det. Honore remained at the scene of the crash. Approximately thirty minutes later, Jermaine Davis approached him, stating that the car belonged to him and that it had been stolen from a McDonald's restaurant at St. Charles Avenue and Toledano Street earlier that evening. Davis asked if he could retrieve his pager from the car. Honore determined that the car, which had a temporary license plate, was registered to someone other than Davis. He had no further conversation with Davis, who was kept at the scene for further questioning.

Sergeant Eric Kesler and Det. Jimmy Stewart assisted Detective John Ronquillo in the homicide investigation. After hearing of the car chase and crash, they went to the 800 block of St. Mary Street. Sgt. Kesler found a live .45 bullet in the car. Sgt. Kesler also spoke to Jermaine Davis, who said first that he went with a friend to a McDonald's at St. Charles and Louisiana Avenues and left the keys in the car. Davis then said that he went to McDonald's to visit a female friend who worked there. When Sgt. Kesler asked if they could go to the restaurant to identify the girl, Davis said that she was no longer there. Then Davis said that no one had been with him at the restaurant. These discrepancies and contradictions caused the police to suspect, correctly, that Davis had been involved in the attack.⁴

Officer Larry Couhig testified that he responded to Det. Honore's call for assistance in pursuing the suspicious vehicle and arrived at the crash site. A dispatch was then received, prompting Officer Couhig and three or four other officers to travel less than one block to 805 St. Andrew Street, which, it was later discovered, was the home of defendant Laymon's sister. Officer Couhig testified that he was between two courtyards behind a building when bystanders began pointing and officers began running through the courtyards; Officer Couhig then came up a driveway to intercept someone being chased. The officer observed a young black man, wearing dark clothing, run into an abandoned building. At the same time, he heard a woman yell, "That's my son!". Because of this exclamation, and because he lacked a flashlight, Officer Couhig did not enter the building. The woman approached Officer Couhig and identified herself as Gwendolyn Laymon. The officer relayed information from his conversation with Mrs. Laymon to the homicide detectives. Officer Couhig participated in the arrests of Eric Laymon, on the following day, and of Eric Rogers, four days later.

Gwendolyn Laymon, Eric Laymon's mother, testified that, at approximately 9:00 p.m. on the night in question, she was sitting on the porch of her daughter's residence at 805 St. Andrew Street. She testified that the police approached and asked her to view the crashed car, which she had never seen before. Mrs. Laymon denied approaching the officers that night and denied yelling "That's my son!". She did state that she knew Eric Rogers and that his nickname was "Weanie."

Sgt. Kesler then prepared two photographic lineups—one with a picture of Davis, another with a picture of Laymon— and went to the hospital to interview Burr. Burr had initially been treated in the emergency room; h...