State v. Persley

• Decision Date: 16 December 2005
• Docket Number: No. 40,271-KA.,40,271-KA.
• Citation: State v. Persley, 918 So.2d 491 (La. App. 2005)
• Parties: STATE of Louisiana, Appellee v. Eric PERSLEY, Appellant.
• Court: Court of Appeal of Louisiana — District of US

918 So.2d 491

STATE of Louisiana, Appellee v.Eric PERSLEY, Appellant.

No. 40,271-KA.

Court of Appeal of Louisiana, Second Circuit.

December 16, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kenota Pulliam Johnson, for Appellant.

Eric Persley, Pro Se.

Paul J. Carmouche, Dale G. Cox, for Appellee.

Before PEATROSS, DREW & MOORE, JJ.

PEATROSS, J.

On April 14, 2000, Rodriques Rusley¹ was shot and killed while standing outside a nightclub in downtown Shreveport, Louisiana.After a police investigation and arrest, the State charged Eric Persley("Defendant") with the second-degree murder of Mr. Rusley.Defendant was twice tried by a jury for the offense.The first trial took place in March 2002 and resulted in a mistrial.The second trial took place in November 2003 and resulted in a conviction of Defendant for manslaughter.²Defendant now appeals his manslaughter conviction, asserting thirteen assignments of error.For the reasons set forth in this opinion, Defendant's conviction is affirmed and his sentence is amended and, as amended, affirmed.

FACTS

The facts illustrated herein are taken from the testimony of a myriad of witnesses in this case and were introduced as evidence at Defendant's second trial.³At approximately 3 a.m. on April 14, 2000, several patrons were present at Club Lacy's, a dance club on the southwest⁴ corner of Spring and Texas Streets in downtown Shreveport.Among the patrons in the club that morning were Defendant and three of his friends, Calvin Mitchell, Billy Smith and Demetrius Christaw.The four had driven to Club Lacy's in Defendant's white 1997 Mercedes E-320 sedan.During the evening, Mr. Smith became involved in a heated verbal exchange and, later, in an altercation with other club patrons.As a result, the foursome were ejected from the club.The victim's girlfriend, Charlene Ward, was inside Club Lacy's and witnessed the aforementioned altercation and the ejection.Mr. Christaw⁵ later testified that the four men returned to the white Mercedes and he got into the rear passenger seat and watched as Defendant and Mr. Smith retrieved firearms from the vehicle.

At approximately the same time, Shreveport Police Department("SPD") Officers Shannon Presley and Matthew Reardon, both uniformed bicycle patrol officers, were standing in front of Studio 54, another dance club, on the northeast side of the Spring/Texas Street intersection.The officers were speaking with Joseph Lacy, the owner of Club Lacy's and Studio 54.

Suddenly, the officers and Mr. Lacy heard a gunshot from the direction of Club Lacy's.The trio immediately went towards the scene.Officer Presley saw three men standing around a white Mercedes sedan, which was parked on Spring Street, south of the intersection.He then saw another man on the southwest corner of the intersection holding a handgun, positioned "in a shooter's stance."Mr. Lacy testified that he saw the man with a gun (the man across the street from the trio) fire a shot in the direction of his club door.Ms. Ward was leaving the club when the shot was fired through the door.After hearing the shot, she ran and hid in the bathroom of Club Lacy's.

As Officer Reardon was investigating several potential suspects in a stopped Camaro,⁶ Officer Presley witnessed the armed man fire three shots toward the west, where a crowd of patrons had gathered.⁷Mr. Lacy later confirmed this by testifying that he saw the shooter fire at least once to the west.⁸Officer Presley then saw two of the men who had been standing next to the white Mercedes run from the scene.Mr. Christaw later testified that Mr. Smith, still armed, fled from the scene to the south on Spring Street.

Officer Presley drew his own handgun, pointed it at the gunman and loudly ordered him to drop his weapon.The gun-man lowered his weapon and ran to the white Mercedes, which was running with a driver at the wheel, and got into the back seat on the driver's side.Officer Reardon followed the gunman to the white Mercedes and loudly ordered the man to stop and drop his weapon.The gunman did not comply.Officer Presley rode his bike diagonally across the intersection (to the southeast) toward the white Mercedes.⁹The driver revved the engine of the car and drove it directly at Officer Presley, while the passenger in the rear seat raised his gun toward Officer Reardon.In response, both officers began firing at the Mercedes.A shot fired by one of the officers went through the windshield and struck the driver in the face, at which time the car abruptly stopped in the right lane of Spring Street.

After the gunfire exchange, the occupants exited the white Mercedes and Mr. Christaw began attending to Mr. Mitchell who was wounded, but left after so ordered by the police.¹⁰Each officer stated that only two people were in the car and neither man was holding a weapon.The driver of the car was Mr. Mitchell and the back seat passenger was Defendant.Defendant was wearing a white t-shirt with grey sleeves.¹¹The officers arrested both men at the scene.Officer Presley testified that the back seat passenger was the person who fired the three shots to the west.¹²At trial, Officer Reardon identified Defendant as the man who got out of the back seat of the white Mercedes.

A black Mercedes convertible was parked on the south side of Texas Street (to the west of) Club Lacy's.When the first shot was fired, Mr. Rusley and his friend, Kenneth Nicholson, were standing next to the black Mercedes talking.After that shot was fired, the pair "took cover," but reemerged shortly thereafter once they thought the incident had concluded.Mr. Nicholson described the person who fired this shot as "a guy in a little yellow shirt, short guy ... black male."After reemerging and commencing his conversation,¹³ Mr. Nicholson heard "multiple shots"—he said "at least four or five"— and, at that time, Mr. Rusley, who had no connection to the fight at Club Lacy's, was shot once in the right side.He told Mr. Nicholson, "I think I've been hit," lost consciousness at the scene and was transported to the hospital where he died from the gunshot wound.¹⁴No witness reported hearing any shots coming from the crowd near Mr. Rusley.Mr. Nicholson described this shooter as a tall black male in a white t-shirt; however, he did not see where the shooter escaped to because he took cover to avoid being shot.He did not see anyone other than the first man in the yellow shirt and the second man in the white shirt shooting a gun.

Police retrieved two handguns from the white Mercedes, a .40-caliber Glock Model 22 and a 9-mm Glock Model 17.The Glock 22 was in the map pocket in the front passenger's door and the Glock 17 was on the rear driver's side floorboard.Traces run with the Bureau of Alcohol Tobacco, Firearms and Explosives ("BAT-FE") revealed that Defendant had purchased both pistols at retail gun stores.¹⁵The Glock 22 was loaded with P.M.C. "El Dorado" brand ammunition and a single spent .40-caliber cartridge case (the same brand) was found just outside the front door of Club Lacy's.The door to the club was perforated with a single hole and a part of a bullet jacket was found nearby.Another spent .40-caliber P.M.C. "El Dorado" cartridge case was found on the southeast side of the intersection.Numerous other spent .40-caliber cartridge cases were found in the vicinity of Defendant's white Mercedes; however, these were Winchester "Ranger Talon" brand cases which were later determined to have been fired from the officers' Glock Model 22 handguns.

Three spent 9-mm cartridge cases were recovered at the southwest corner of the intersection where Officer Presley saw the gunman firing.As no other 9-mm cartridge cases were recovered from the scene, it was determined that these cartridge cases were fired from the 9-mm Glock that was found in the back seat of Defendant's white Mercedes sedan.The coroner recovered one 9-mm bullet from Mr. Rusley's body.¹⁶No fingerprints were found on the weapon.When recovered, Defendant's Glock Model 17 had 14 rounds remaining in the 17-round magazine and one round in the chamber.The Glock Model 22 had 12 rounds in its 15-round magazine and one round in the chamber.No fingerprints, DNA evidence or gunpowder tests were taken which effectively linked Defendant to the victim's death.

After a trial on the merits, the jury convicted Defendant of manslaughter.¹⁷He subsequently filed a Motion for a New Trial urging that the trial court erred by allowing the jury to view certain exhibits prior to an offer of the exhibits into evidence and that the error was compounded when, ultimately, the exhibits were not introduced into evidence.More particularly, Defendant complained of a map shown to the jury bearing a marking—"E.P."—which was written on it during Mr. Mitchell's trial.Defendant moved for a mistrial at the introduction of this evidence; however, the court denied his Motion.After Defendant's objection, the prosecutor agreed to remove the marking.Defendant further complained in his Motion for Mistrial that the court erred by allowing various exhibits to remain in the exhibit books published to the jurors prior to the introduction of those exhibits into evidence.On January 21, 2004, the court held a hearing on Defendant's motion.It concluded that the handling of the exhibit issues was proper and that Defendant had not been prejudiced by the aforementioned conduct.

In March 2004, Defendant filed a second Motion for New Trial based upon newly discovered evidence.Defendant alleged that a newly discovered witness, Ms. Jywone Smith,¹⁸ would testify that it was her husband, Mr. Smith, not Defendant, who fired the fatal shot.The motion asserted, inter alia, that Ms. Smith could testify that her husband stated that he"... looked over and saw [the victim] shot and lying on the ground after he fired his weapon" and that he, Mr. Smith, "took off running because he...