State v. Napoleon

• Court: Court of Appeal of Louisiana
• Writing for the Court: STEPHEN J. WINDHORST
• Citation: State v. Napoleon, 119 So.3d 238 (La. App. 2013)
• Decision Date: 16 May 2013
• Docket Number: No. 12–KA–749.,12–KA–749.
• Parties: STATE of Louisiana v. Terrance NAPOLEON.

119 So.3d 238

STATE of Louisiana

v.Terrance NAPOLEON.

No. 12–KA–749.

Court of Appeal of Louisiana, Fifth Circuit.

May 16, 2013.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Shannon K. Swaim, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Terrance Napoleon, Angola, LA, for Appellant/In Proper Person.

Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.

STEPHEN J. WINDHORST, Judge.

[5 Cir. 3]Defendant, Terrance Napoleon, was found guilty of six felony counts: attempted armed robbery of Terry Scott while armed with a firearm, La. R.S. 14:(27)64 (Count One); one count of attempted second degree murder of Terry Scott, La. R.S. 14:(27)30.1 (Count Two); one count of possession of a firearm by a convicted felon,¹La. R.S. 14:95.1 (Count Three); one count of aggravated burglary of a residence belonging to Louis and Aura Napoleon, La. R.S. 14:60 (Count Four); and two counts of second degree murder of Jazman Williams and Ulrich Fleming, Jr., La. R.S. 14:30.1 (Counts Five and Six). Defendant was sentenced to 49 years and 6 months imprisonment at hard labor on Count One; 50 years imprisonment at hard labor on Count Two; 20 years imprisonment at hard labor on Count Three; 30 years imprisonment at hard labor on Count Four; and life imprisonment on Counts Five and Six. The trial court further ordered defendant's sentences to be served consecutively, and without benefit of parole, probation, or suspension of sentence.

In this appeal, defendant alleges that the district court erred in allowing the admission of other crimes evidence, that his constitutional rights were violated by [5 Cir. 4]the requirement of a less than unanimous jury verdict, and that his trial counsel was ineffective for failing to advance his right to a speedy trial.

FACTS

Evidence at trial proved that during a ten-hour period on April 5–6, 2007, defendant committed a string of crimes that included three murders. Two of these murders formed the basis for Counts Five and Six; evidence of the third murder was admitted as La. C.E. 404B evidence of other crimes.

Prior to the commission of the crimes, on February 26, 2007, Mark Brossette reported his black Ford Ranger stolen. He reported that he loaned the truck to a black male named “Birdie” who did not return it. “Birdie” was the defendant's nickname.

Terry Scott, April 5, 2007:

At approximately 9:00 P.M., Terry Scott was shot with a shotgun by a man he later recognized as the defendant. Scott was leaving his house in Marrero when a black two-door Ford Ranger truck pulled up and a man jumped out of the vehicle demanding money. Scott told his assailant that he did not have any money. His assailant then reached into his truck and pulled out a sawed-off shotgun, aimed it at Scott's head, and asked him if he “was ready.” Knowing his life was in danger, Scott attempted to “wrestle” the shotgun away from the man when the gun went off and shot him in his hands. Scott was transported to University Hospital for treatment of his injuries. Scott testified that he recognized his assailant from around the neighborhood but did not know his name. While in the hospital, he was watching a television news broadcast about a separate matter which showed a picture of his assailant. When the police spoke with Scott in the hospital he identified defendant as his assailant from a photographic lineup.

[5 Cir. 5]Gregory Singleton (Orleans Parish offense, subject of 404B “evidence of other crimes” hearing), April 6, 2007:

On April 6, 2007, at approximately 4:00 A.M., defendant knocked on the door of Gregory Singleton's house, at 417 Whitney Avenue in Algiers, which is part of New Orleans. The knock was answered by Eva Miller, Singleton's niece. At the door was a man she knew as “Birdie,” who was looking for her uncle. Defendant confronted Singleton looking for money, then shot Singleton in the chest. Defendant forced Miller outside, telling her that she was coming with him because she had “seen everything.” Miller was eventually able to escape when defendant turned his back to get into a black truck. Shotgun wadding and pellets recovered during the autopsy were consistent with the gun used in the Williams and Fleming murders.

Louis and Aura Napoleon, April 6, 2007:

In the early morning hours, Louis and Aura Napoleon were asleep in their apartment on Carol Sue Ave., Gretna, Louisiana. Defendant kicked in their front door, entered the bedroom and pointed a “long” gun at them. Mrs. Napoleon ran from the room and called 911, while Mr. Napoleon yelled “No, no,” calling the defendant “Birdie,” and attempted to wrestle the gun away from him. Defendant eventually took off running toward a black truck. Mr. Napoleon knew defendant, who was his cousin. Later, Mr. Napoleon received a call from defendant, who was screaming and who told him that defendant “was going to kill” Napoleon. At trial, Louis Napoleon stated that he grabbed the gun from defendant because he believed he was “going to die.”

Jazman Williams, April 6, 2007:

At approximately 7:11 A.M., Jazman Williams, a 14–year–old boy, was found dead, lying on the side of the road in the bushes off Highway 45 in Crown [5 Cir. 6]Point. He had sustained a gunshot wound to the back of his head and an injury to his hand. A shotgun shell was found under the victim's foot. At the time of the murder, Juleau Williams, the victim's sister, had dated defendant off and on for about five years. She confirmed that defendant was the last person seen with her brother on the night before his death. In investigating this murder, the officers believed that evidence belonging to defendant could be found in the apartment belonging to Raneka Williams, defendant's niece and the victim's cousin. Her apartment was searched and a .410 shotgun shell and a gun cleaning kit were seized. Shotgun wadding and shotgun fragments retrieved from the victim's head confirmed that the victim had been shot with a .410 shotgun.

The shotgun used to commit the murder was later found inside the stolen Ford Ranger that defendant was using at the time of the murders. Both Raneka Williams and Juleau Williams stated that defendant had lived with them in the past, and that they had seen a shotgun in the closet of the room where defendant slept.

Ulrich Fleming, April 6, 2007:

Around 6:00 A.M., Ulrich Fleming was found dead inside his vehicle, which appeared to have broken down on the side of Interstate–10 in Kenner, Louisiana. Fleming had suffered from a gunshot wound to the left side of his face. Wadding and pellets from a .410 shotgun recovered during Fleming's autopsy proved to be consistent with the wadding and pellets found during Williams' autopsy. A white T-shirt later found in the truck that defendant was using at the time of the murders, was found to contain both defendant's and Fleming's DNA.

Recovery of the Ford Ranger

In April of 2007, Mr. Brossette's black Ford Ranger, which he had previously reported stolen, was recovered in Houston, Texas. Several bullet holes [5 Cir. 7]were located on the exterior of the vehicle and a shotgun was found lying on the floorboard. CDs found in the truck were dusted for fingerprints and one of the fingerprints was identified as that of defendant. A black sawed-off .410 shotgun, along with an empty box of .410 shotgun shells and three shotgun shells (one fired and two live) were found in the truck. The shotgun shell found under victim Williams' foot was determined to have been fired from the .410 shotgun seized from the truck. Also found in the truck was a white T-shirt, which contained blood DNA of both defendant and Ulrich Fleming.

ASSIGNMENTS OF ERROR

In his first assignment of error, defendant alleges that it was error to admit evidence of the Gregory Singleton homicide in New Orleans, as that evidence was unduly prejudicial and far outweighs its potential probative value as to any issue in the charges at trial. Defendant maintains that the error in admitting this evidence was not harmless, warranting reversal and remand for a new trial.

Generally, a court may not admit evidence of other crimes to show a defendant is a man of bad character, and that he has acted in conformity with his bad character. State v. Brown, 03–1616 (La.App. 4 Cir. 3/31/04), 871 So.2d 1240, 1247,writ denied,04–1285 (La.10/15/04), 883 So.2d 1044 (quoting State v. Taylor 01–1638 (La.1/14/03), 838 So.2d 729, 741,cert. denied,540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004)).

However, the State may introduce evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason for its admissibility, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. 404 B(1). The State must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. [5 Cir. 8]State v. Prieur, 277 So.2d 126 (La.1973). Additionally, the State must prove that the defendant committed the other acts. Id.

While the Louisiana Code of Evidence prohibits the use of evidence of other crimes or wrongful acts to prove the character of a person in order to show that he acted in conformity therewith, such evidence is admissible “when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.” La. C.E. art. 404 B(1); State v. Brown, 95–124 (La.App. 5 Cir. 5/30/95), 656 So.2d 1070, 1074–75.Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. Close proximity in time and location is required between the charged offense and the other crimes evidence to insure that the purpose served by admission of other crimes evidence is not to depict defen...