State v. Norah, 2012–KA–1194.

• Decision Date: 11 December 2013
• Docket Number: No. 2012–KA–1194.,2012–KA–1194.
• Citation: 131 So.3d 172
• Parties: STATE of Louisiana v. Joseph NORAH, Sean Watts.
• Court: Court of Appeal of Louisiana — District of US

131 So.3d 172

STATE of Louisiana

v.Joseph NORAH, Sean Watts.

No. 2012–KA–1194.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 11, 2013.

Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Scott G. Vincent, Parish of Orleans, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.

Holli Herrle–Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant, Sean Watts.

Sherry Watters, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant Joseph Norah.

(Court composed of PAUL A. BONIN, DANIEL L. DYSART, and Rosemary LEDET, Judges.)

PAUL A. BONIN, Judge.

The defendants, Joseph Norah and Sean Watts, were found guilty by a jury of the attempted second degree murder of Dayshawn Brown. Following their trial, Mr. Norah was adjudicated a fourth felony offender under La. R.S. 15:529.1, and Mr. Watts admitted to being a second felony offender. Both defendants appeal their convictions, and Mr. Norah appeals his sentence of forty-nine and three-fourths years.

Their first jointly-raised assignment of error contends that the record is too incomplete to afford constitutionally-sufficient judicial review of their appeal due to the missing portions of the testimony of a police officer. We find that the defendants have not shown that they have suffered any reasonable likelihood of prejudice from the missing portions of the officer's testimony, and that we may proceed with a full review of their other assignments of error.

The defendants argue that their Due Process rights were violated by the trial judge's denial of their pretrial motion to suppress the out-of-court identifications by Mr. Brown. Both defendants were identified by Mr. Brown during suggestive show-up procedures on the ramp of the hospital where Mr. Brown sought emergency medical treatment. We find that the trial judge did not abuse his discretion in finding that the defendants did not establish the unreliability of Mr. Brown's out-of-court identifications, and, on that account, their rights to Due Process were not violated by the suggestive show-up procedures.

The defendants together claim that their rights under the Confrontation Clause were violated by the admission into evidence of the recordings of 9–1–1 telephone calls regarding a different shooting in which the shooter's clothes were described and a red Monte Carlo vehicle was seen fleeing the scene. Because we find that the statements made during the 9–1–1 calls were not testimonial, the trial judge did not abuse his discretion in admitting the calls. Mr. Norah similarly claims that his right under the Confrontation Clause was violated by the admission into evidence of the recordings of jailhouse telephone calls made by his co-defendant, Mr. Watts, which seemingly implicated Mr. Norah in the shooting of Mr. Brown. Because we find that Mr. Watts' jailhouse calls were also not testimonial evidence, we conclude that the trial judge did not abuse his discretion in admitting those calls.

The defendants together argue that the trial court erred in admitting into evidence 9–1–1 calls from and testimony regarding another shooting. Because we find that the evidence was admissible under La. C.E. art. 404 B(1) as conduct that constitutes an integral part of the act or transaction that was the subject of the trial, we hold that the trial judge did not abuse his discretion.

The defendants also argue that the recordings and transcripts of the jailhouse calls made by the defendants were inadmissible because the prosecution did not properly authenticate the evidence. The prosecution was required to demonstrate to the satisfaction of the trial judge under La. C.E. art. 104 A that the jailhouse calls were shown to be made by the defendants under the authenticity standard established by La. C.E. art. 901 A. Based upon testimony provided during the trial, we conclude that the trial judge did not abuse his discretion in finding that the jailhouse calls had been sufficiently authenticated for the purposes of admissibility.

The defendants, in their last joint assignment of error, argue that the prosecutor's comments during his closing rebuttal argument were so prejudicial that the trial judge should have declared a mistrial. Here, the prosecutor's argument certainly went outside of the bounds of proper argument, but the trial judge properly admonished him in the presence of the jury. Because we are unconvinced that the prosecutor's improper argument contributed to the jury's verdict, we conclude that the trial judge did not abuse his discretion in denying their motion for mistrial after finding that the defendants' ability to obtain a fair trial was not impaired.

Mr. Norah argues that a less-than-unanimous jury convicted him in violation of his rights under the Sixth and Fourteenth Amendments. As we have often held, he is not entitled to relief on this claim.¹ Finally, believing that the legislatively-mandated minimum sentence was twenty years, Mr. Norah argues that his sentence of forty-nine and three-fourths years was excessive. We note that his sentence, which the prosecution has not appealed, is three months short of the legislatively-mandated fifty-year minimum sentence for this matter. Because Mr. Norah suggests no basis for further deviation below the fifty-year minimum, we affirm his sentence.

Thus, after our review of the defendants' assignments of error as well as our review for errors patent,² we affirm the convictions of both defendants and the sentence of Mr. Norah. We explain our decision in the following Parts.

I

In this Part, we provide the factual background which gave rise to these criminal proceedings. At roughly 4 A.M. on April 19, 2010, Mr. Brown drove to Gene's Po–Boys near the corner of St. Claude Avenue and Elysian Fields Avenue. As he pulled up in front of the Walgreen's store on the opposite side of St. Claude, he noticed an argument occurring between the defendants and three women in front of the po-boy shop. In an effort to avoid this altercation, Mr. Brown parked, and decided to wait to enter the store. Mr. Brown passed this time by speaking on the phone with his cousin.

Detective Krister Vilen, in his testimony at trial, estimated that Mr. Brown viewed the defendants from roughly fifty to sixty feet away. Mr. Brown also testified that, despite not knowing the men and viewing them in the middle of the night, the streetlamp and storefront lighting illuminated the area such that he could clearly see the defendants' faces, hairstyles, and clothing. Mr. Brown stated that Mr. Watts was wearing white jeans, a white dress shirt, and white shoes, while Mr. Norah was wearing blue jeans and a white t-shirt. Mr. Brown also noted that one man was “bald-headed,” while the other had a “bald fade” haircut.

Mr. Brown then heard one of the defendants shout that he thought Mr. Brown was calling the police. At that moment, the ongoing altercation ceased, and the defendants got into their red Chevrolet Monte Carlo, and oriented the vehicle such that they were facing the same direction on St. Claude as Mr. Brown's parked car. Mr. Brown, alarmed by this, drove off eventually stopping at the red light governing the intersection of Elysian Fields and North Claiborne Avenue. Mr. Brown testified that the red Monte Carlo driven by the defendants followed him to that intersection. As the red Monte Carlo approached Mr. Brown's stopped vehicle, Mr. Brown heard multiple “pops.” Mr. Brown was shot once through his nose and twice in his head—where one bullet still remains—and immediately drove himself to University Hospital.

Before these events, at roughly 3:15 A.M., Officer George Chenevert was dispatched to a separate shooting at The Duck Off, a nightclub located at 2304 A.P. Tureaud Avenue. A 9–1–1 caller stated that a red Monte Carlo vehicle without a license plate was seen fleeing the scene, and Officer Chenevert responded by searching the surrounding neighborhood for that vehicle. After briefly diverting to another call, Officer Chenevert went to the scene of the shooting. While there, Officer Chenevert observed a red Monte Carlo travelling slowly past the scene of the crime, and ran to his patrol car in order to pursue and locate that vehicle.

Officer Chenevert then engaged in a high-speed pursuit, which ended at the 1600 block of Governor Nicholls Street. The defendants fled from their vehicle into a nearby apartment complex. Officer Chenevert, along with several other officers and after being granted permission to search the premises, eventually located the defendants in a bedroom in Kim Powell's apartment.

Detective Vilen arrived at Ms. Powell's apartment about 4:30 A.M. The police conducted searches of Ms. Powell's residence and the red Monte Carlo during which a white tank top, a pair of white and brown shoes, and two white dress shirts were discovered. Detective Vilen then drove to University Hospital to take a statement from Mr. Brown. Detective Vilen noted, and Mr. Brown confirmed at trial, that Mr. Brown was conscious and alert despite the hospital administering morphine for his pain earlier that morning. After taking Mr. Brown's statement, Detective Vilen decided to see if Mr. Brown could identify the defendants through show-up identifications. Out of concern for Mr. Brown's health, the detectives chose to perform the identifications at the hospital.

The show-up identifications took place at roughly 8 A.M., slightly less than four hours after the shooting. While transporting Mr. Brown in a wheelchair from his seventh floor hospital room to a separate waiting area with tinted external glass on the first floor of the hospital, Detective Vilen told Mr. Brown that he wanted Mr. Brown to take a look at some recently arrested suspects, who fit his descriptions and had run from police in a red Mote Carlo.

The defendants were also driven to the hospital at this time. Detective Vilen testified that Mr....