State v. McGee

• Decision Date: 03 April 2019
• Docket Number: No. 51,977-KA,51,977-KA
• Citation: 316 So.3d 1196
• Parties: STATE of Louisiana, Appellee v. Dumauriea Leon MCGEE, Appellant
• Court: Court of Appeal of Louisiana — District of US

316 So.3d 1196

STATE of Louisiana, Appellee

v.Dumauriea Leon MCGEE, Appellant

No. 51,977-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered April 3, 2019

LOUISIANA APPELLATE PROJECT, By: Edward Kelly Bauman, Counsel for Appellant

JEFFREY M. LANDRY, Attorney General, BROOKE A. HARRIS, Assistant Attorney General Counsel for Appellee

Before WILLIAMS, STEPHENS, and BLEICH (Pro Tempore ), JJ.

ON REMAND

STEPHENS, J.

This criminal appeal arises from the Third Judicial District Court, Parish of Lincoln, State of Louisiana. The defendant, Dumauriea Leon McGee, was charged by grand jury indictment with second degree murder, in violation of La. R.S. 14:30.1. After a jury trial, McGee was found guilty as charged and sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence. No motion to reconsider sentence was filed. Initially, on appeal McGee argued he received ineffective assistance of counsel at trial (among other assignments of error). This court ordered the matter remanded to the trial court with instructions for an evidentiary hearing on the issue of ineffective assistance of counsel. State v. McGee , 51,977 (La. App. 2d Cir. 5/23/18), 247 So.3d 1142 (" McGee I "). However, that decision was reversed and remanded by the Louisiana Supreme Court. State v. McGee , 2018-1052 (La. 2/25/19), 264 So. 3d. 445 (" McGee II "). For the following reasons, we affirm McGee's conviction and sentence.

FACTS

DeAnthony Mardis was shot and killed on May 30, 2013, in Ruston, Louisiana, while trying to purchase marijuana from McGee, who immediately fled the scene. McGee was arrested in Tallahassee, Florida, by officers with the Tallahassee Police Department and was interviewed by Detective Craig Isom on June 3, 2013. United States Marshals transported McGee to Louisiana, where he was taken into custody by the Ruston Police Department on June 13, 2013. McGee was charged by grand jury indictment with the second degree murder of Mardis, and at arraignment, McGee pled not guilty. McGee's trial commenced on January 9, 2017, at which he was represented by a court-appointed attorney. The jury was presented with the following testimony and evidence.

Officer Lloyd Anthony Pollard, who was employed by the Ruston Police Department on May 30, 2013, testified that he was dispatched to a house at 1307 Benton Street in Ruston shortly after 9:00 p.m. in response to a shooting. Upon arriving, Ofc. Pollard observed Mardis lying partially underneath a blue truck parked in the front yard of the residence. Emergency medical services ("EMS") and other officers were already at the scene and informed Ofc. Pollard that Mardis was still alive but had a weak pulse. In an effort to preserve the scene, Ofc. Pollard took photographs prior to EMS taking Mardis to the hospital. He also testified that he believed Mardis crawled under the vehicle in an attempt to hide from his shooter. Mardis was transported to a hospital, where he later died.

Officer Gerald Jenkins of the Ruston Police Department was also dispatched to 1307 Benton Street and sketched the scene, documenting where the following evidence was recovered: a cigarette lighter, a cigarette butt, a digital scale, $ 11.00 in cash, three .38 caliber cartridges, a shoe impression, a machete, two Corona beer cartons (one of which contained marijuana), and two spent .38 caliber shell casings.

Officer Jenkins specifically noted that the digital scale was discovered in the ditch by Benton Street. The three live .38 caliber bullets were located near the truck, two on the opposite side of the truck from where Mardis's body was found and one near the rear of the truck. The two spent shell casings were located in the paved parking lot of the Royal Crest Apartment complex where McGee lived, which is next to the house at 1307 Benton Street. While examining the scene, Ofc. Jenkins noted that although there was a large bloodstain near the truck, it was unclear where Mardis began bleeding. Further, there were several shoe prints discovered on the truck's driver's side but none indicated there was a struggle. A machete was discovered in the bushes, but Ofc. Jenkins stated his opinion that it did not appear connected to the crime. The machete was not fingerprinted, and defense counsel did not request it be fingerprinted. A map of the crime scene entered into evidence at the trial indicates the machete was located separately from the marijuana found at the scene.

Patina Goldsmith testified that she was visiting her sister at 1307 Benton Street on the night of the shooting. Goldsmith heard gunshots around 9:00 p.m., went outside with her sister's boyfriend, Roderick Doss, and discovered Mardis lying underneath her sister's truck. Doss also testified and corroborated Goldsmith's version of events, adding that after the shooting, Doss looked out the window before going outside and observed McGee, whom Doss knew as "Cali," running toward the apartment complex. Doss did not see anything in McGee's hands. Doss identified McGee in open court as the man he saw running on the night of the shooting.

Robert Womack testified he discovered bullets and a rusty black gun several months after the shooting while visiting a friend who lives at 1305 Benton Street. The gun was in some underbrush. Womack contacted the police, and Officer Harriet Sykes collected the gun, which was loaded. She brought the gun to the Ruston Police Department. Both Womack and Ofc. Sykes identified the gun in open court.

Mary Catherine Zoll, a chemist with the North Louisiana Crime Lab ("NLCL"), was accepted as an expert in forensic chemistry and testified that she performed a chemical analysis on the suspected marijuana (State's Exhibit Nos. 9 and 10) collected from the scene. Zoll confirmed at trial that the substance recovered was marijuana. Other testimony established that it is common for drug dealers to hide their merchandise, in packages similar to the Corona six-pack carton containing marijuana recovered from the crime scene.

Dr. Frank Peretti, an accepted expert in medicine with a specialty in forensic pathology, performed the autopsy on Mardis and testified that he was killed by two gunshot wounds, one in his upper left chest and the other in his mid-back. The first wound was a "through and through" and no bullet was recovered; however, Dr. Peretti was able to retrieve a bullet from the second wound. Both wounds appeared to be "distant gunshot wounds," which are injuries inflicted when the gun is two or more feet away from the target when fired. Mardis also had two abrasions on his upper left back and sand on his face and back. Mardis had marijuana, hydrocodone, and THC (tetrahydrocannabinol) in his system at the time of his death.

Troy Kendall Stracener, another analyst with the NLCL and accepted expert in forensic firearm identification, testified that the .38 caliber revolver found by Womack had its serial number filed off, and Stracener used chemicals to recover the number. Due to the rust inside the barrel of the revolver, which altered the unique grooves therein, Stracener was not able to determine whether the bullet recovered from Mardis's body was fired from that particular revolver; however, Stracener noted that the bullet possessed the same class of characteristics as the referenced bullets fired during analysis. The two spent shell casings recovered from the scene were fired from the revolver. Finally, the bullets and shell casings recovered from the scene, including the one removed from Mardis's body, were all the same caliber, brand, size, and shape.

Nicholas Moore was a witness at the scene, and he testified to meeting with Mardis, Lamarro Moore, and Patrick Pringle at Lamarro's house on the night of the shooting at approximately 9:00 p.m. Pringle drove the four men to Benton Street and parked near the bushes located between the Royal Crest Apartments and the house at 1307 Benton Street. Mardis exited the vehicle. Nicholas saw Mardis meet with a person wearing a hood, whom Nicholas did not recognize. Mardis eventually returned to the vehicle, and Pringle drove them back to Lamarro's house. Nicholas did not exit the vehicle and could not recall whether anyone else did; however, Pringle drove the men back to Benton Street, where Mardis got out of the vehicle and met with the person a second time. Nicholas, Lamarro, and Pringle remained in the vehicle, while Mardis spoke with the person. Nicholas noted that Mardis and the person were out of his line of vision, but he suddenly heard what sounded like a fight. Mardis and the person appeared in the yard of 1307 Benton Street, where Nicholas saw the two men "swinging" at each other. Nicholas heard a gunshot. Mardis fell, and Nicholas heard a second gunshot—the shots were "seconds" apart—a very short time, Nicholas described. Nicholas fled the scene on foot and hid behind nearby houses.

Ultimately, Nicholas gave a statement to Ofc. Jenkins on June 3, 2013. Following the shooting but prior to giving his statement, Nicholas saw a television news report on the shooting, which identified McGee as a suspect. While giving his statement, Nicholas told Ofc. Jenkins that the man he saw in the news report, McGee, looked like the man who shot Mardis. Nicholas also stated that Mardis was unarmed when he exited Pringle's vehicle and did not have anything in his hands when he was shot.

Lamarro Moore was also in the vehicle when the crime occurred and testified that on the night of the shooting, Pringle picked him up prior to 9:00 p.m. The pair drove to Mardis's house and collected Mardis. While driving back to Lamarro's house, Mardis stated that he wanted to buy some marijuana. Lamarro suggested a dealer, later identified as McGee, he had met through a friend and seen a few days before at an EZ Mart, where Lamarro got his cell phone number. Lamarro texted McGee, who instructed Lamarro, Pringle, and Mardis to meet him at Benton Street, behind the Royal Crest Apartments. Prior...