State v. Mims

• Citation: 769 So.2d 44
• Decision Date: 21 June 2000
• Docket Number: No. 97-KA-1500.,97-KA-1500.
• Parties: STATE of Louisiana v. Mark A. MIMS, Jeffrey Mims, and Keith Stewart.
• Court: Court of Appeal of Louisiana (US)

769 So.2d 44

STATE of Louisiana v. Mark A. MIMS, Jeffrey Mims, and Keith Stewart.

No. 97-KA-1500.

Court of Appeal of Louisiana, Fourth Circuit.

June 21, 2000.

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Jasper N. Pharr, New Orleans, Louisiana, Counsel for Defendant-Appellant Mark A. Mims.

Martin E. Regan, Jr., Regan & Associates, P.L.C., New Orleans, Louisiana, Counsel for Defendant-Appellant Jeffrey Mims.

Dwight Doskey, Orleans Indigent Defender Program, New Orleans, Louisiana, Counsel for Defendant-Appellant Keith Stewart.

Harry F. Connick, District Attorney of Orleans Parish, Theresa Tamburo, Assistant District Attorney, New Orleans, Louisiana, Counsel for State-Appellee.

Court composed of Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN, Judge CHARLES R. JONES.

PLOTKIN, Judge.

In this criminal appeal, codefendants Mark Mims and Jeffrey Mims, brothers, were charged with the first degree murder of Eddie Charles in New Orleans on March 7, 1993. They appeal the jury's responsive verdict of manslaughter and their sentences of forty years at hard labor. Codefendant Keith Stewart pled guilty to manslaughter and was sentenced to ten years at hard labor, and he now makes an errors patent appeal. Leroy Stewart, Keith Stewart's brother, was also a codefendant; and he also pled guilty to manslaughter and received a sentence of ten years at hard labor. However, Leroy Stewart is not a party to this appeal. We affirm all three convictions and the sentences of Jeffrey Mims and Keith Stewart; because of an error patent, we vacate the sentence of Mark Mims and remand his case to the district court for resentencing.

PROCEDURAL HISTORY:

Defendants Mark A. Mims, Jeffrey Mims, Keith Stewart and Leroy Stewart were charged by grand jury indictment on August 5, 1993, with the first degree murder of Eddie Charles, a violation of La. R.S. 14:30. All four defendants pled not guilty at their August 10, 1993 arraignment. The trial court denied Mark Mims' motion to suppress his statement on November 4, 1994. The trial court also denied defendants' motion to suppress evidence; and it denied defendants' motion to reopen the hearing on the motion to suppress evidence on June 9, 1995.¹ This court denied defendants' application for supervisory writs as to that ruling on September 27, 1995.² On February 22, 1996, the trial court denied defendants' motions for speedy trial and to reopen the probable cause hearing. This court denied defendant's application for supervisory writs as to that ruling on March 20, 1996.³ On February 22, 1996, the State amended the indictment to reduce the charge against the Stewarts to manslaughter. Keith and Leroy Stewart then pled guilty to the amended charge. Mark and Jeffrey Mims proceeded to trial and, on April 20, 1996, were found guilty of manslaughter by a twelve-person jury.

On June 25, 1996, the trial court sentenced Mark Mims to forty years at hard labor, barring him from the benefit of parole for five years.⁴ Jeffrey Mims was sentenced to forty years at hard labor. Keith and Leroy Stewart were sentenced to ten years at hard labor. The trial court entered oral motions to reconsider sentence on behalf of all three appealing defendants. Amended minute entries for June 25, 1996, reflect that the trial court gave all three appealing defendants credit for time served and eligibility for good time and stipulated that Jeffrey Mims' sentence also be served without benefit of parole for a period of five years.⁵ The trial court denied the Mims' oral motions to reconsider sentence. All three appealing defendants made oral motions for appeal, to be supplemented by written motions. On July 9, 1996, the trial court denied the Mims' motion for new trial and their written motion to reconsider sentence. On July 10, 1996, the trial court adjudicated Mark Mims a second-felony habitual offender and, after defendant waived all legal delays, sentenced him to forty years at hard labor without benefit of probation, parole, suspension of sentence, or good time, but with credit for time served. The trial court granted defendant Mark Mims' oral motion for appeal. On February 5, 1997, the trial court granted an out-of-time appeal to Jeffrey Mims.⁶ It granted an out-of-time appeal to Keith Stewart on April 7, 1997.⁷ On April 29, 1997, it granted Mark Mims' order of appeal.⁸

STATEMENT OF FACTS:

The facts of this case are lengthy, conflicting and complex and thus require detailed recitation. Lillian Ann LeBoeuf testified that she arrived at her 5127 Cameron Blvd. home on the night of March 7, 1993, to find her son, Edward "Eddie" Charles, dead of gunshot wounds. She had last seen and spoken with him around 6:00 p.m. that evening. She stated that the Mims brothers were very good friends of Eddie; that she had known the brothers for almost all of their lives; that Mark Mims had lived with her and her son in the early part of 1970; that Eddie had been the best man in Mark Mims' wedding; and that Eddie was the godfather to Mark Mims' child.

New Orleans Police Homicide Detective Lance Reed testified that he led the on-scene early morning investigation of the death of Eddie Charles. Det. Reed identified evidence related to that investigation, including photographs and a diagram of the scene; spent cartridge casings recovered near the victim's body; one live 9mm cartridge found in the street directly in front of the victim's residence; a black baseball cap with the letter "P"; and the victim's slippers and pajamas. Det. Reed said that the victim sustained multiple gunshot wounds. Det. Reed further testified that, later that evening, he viewed a television news broadcast concerning the arrest of armed individuals in the French Quarter and that he recognized a van displayed there as being similar to the description of one seen by a witness near the scene of the homicide. Det. Reed had the 9mm firearms seized in connection with the French Quarter arrests tested to determine whether one of them had been fired during the homicide. After receiving the test results, Det. Reed obtained arrest warrants for the Mims brothers, who by then had been released from police custody. Det. Reed stated on cross-examination that the live 9mm round was found later during the morning of the murder, after being pointed out by neighbors. He also stated that no fingerprints were found on the live round.

Dr. Susan Garcia, who was qualified by stipulation as an expert in the field of forensic pathology, performed an autopsy on the victim's body. She said the victim sustained six identifiable gunshot entrance wounds and two exit wounds, with wounds 4 and 6 both potentially fatal because of internal bleeding. All of the wounds were caused by bullets fired at least eighteen inches from the entrance sites. Four projectiles were recovered from the body, correlating to wounds numbered 2, 3, 4 and 6. Dr. Garcia was able to mark her initial "G" on the base of each bullet except the bullet from wound 2. Dr. Garcia testified that she also performed an autopsy on the body of one Walter Ward, who was shot to death on June 30, 1995.

New Orleans Police Officer Michael Nievez testified that he was the first officer to arrive on the scene of the homicide in the early morning hours of March 7^th. He assisted in recovering eight 9mm spent casings near or under the body. He testified that no weapon was found on or near the victim's body.

Adrian Charles, one of the victim's brothers, testified that he knew the Mims brothers. He went to the scene of the homicide where, in the morning light, he discovered a bullet lying in the street. He said that he asked someone to park an automobile to prevent other vehicles from disturbing it and that he notified police, who collected the bullet.

United States Border Patrol Agent Ramone Rivera testified that he and his partner were in New Orleans in March of 1993 to make a war-on-drugs presentation to school children. Agent Rivera and his partner walked around the French Quarter one night, consumed three beers, and returned to their hotel room at approximately 10:00 p.m. Agent Rivera returned to the French Quarter around 1:30 a.m., in search of a slice of pizza. He observed some individuals in black jackets and Oakland Raiders hats beginning to fight with some other individuals outside of a daiquiri shop. He saw a male draw a gun from the inside of his jacket. When the male turned around, he apparently dropped a magazine out of the gun. Agent Rivera said he walked alongside the male for about two blocks and informed him that he could get into significant trouble for carrying a concealed weapon. The male responded, "Hey, you better shut the f ____ up, Mexican, or I'm going to pop you." Agent Rivera walked back to the location of the fight to find a group of people looking down at the ground. He then saw on the ground a magazine containing bullets, which he retrieved after identifying himself as a Border Patrol Agent. He subsequently approached a police officer, told him about the person dropping the magazine, and turned it over to the officer. As Agent Rivera was returning to his hotel room, he observed the individual with the gun and another individual inside of a black van. Agent Rivera wrote down the license plate number of the van and returned to give it to the police officer with whom he had earlier spoken, alerting him that the individual with the gun was inside of the van. At trial he identified the piece of paper plate on which he had written the license plate number. Agent Rivera viewed a photograph of a van and said its license plate number was the same as the number of the van in which he had seen the gunman. He identified Mark Mims in court as the gunman, remembering a distinctive mole or burn mark on the left side of Mims' cheek. On redirect examination, Agent Rivera said the gun Mark Mims pointed at him was a Beretta.

On cross-examination, Agent...