State v. Pham

• Decision Date: 16 May 2013
• Docket Number: No. 12–KA–635.,12–KA–635.
• Citation: 119 So.3d 202
• Parties: STATE of Louisiana v. Quoc–Khoi A. PHAM.
• Court: Court of Appeal of Louisiana — District of US

119 So.3d 202

STATE of Louisiana

v.Quoc–Khoi A. PHAM.

No. 12–KA–635.

Court of Appeal of Louisiana,Fifth Circuit.

May 16, 2013.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Myles Rainer, E. Clifton Milner III, Assistant District, Gretna, LA, for Plaintiff/Appellee.

Kevin V. Boshea, Attorney at Law, Metairie, LA, for Defendant/Appellant.

Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.

MARC E. JOHNSON, Judge.

[5 Cir. 2]Appellant/Defendant, Quoc–Khoi Pham, appeals his conviction of manslaughter and 35–year sentence from the 24th Judicial District Court, Division “E”. For the following reasons, we affirm Defendant's conviction and sentence.

STATEMENT OF THE CASE

The Jefferson Parish Grand Jury returned an indictment charging Defendant with the second degree murder of Prentis Perry, a violation of La. R.S. 14:30.1. Defendant was arraigned on February 19, 2010 and pleaded not guilty. Defendant filed pre-trial motions to suppress statement and identification, which were denied by the trial court on July 7, 2010.

The case was tried before a 12–person jury on December 5 and 7, 2011, after which the jury found Defendant guilty of the lesser included offense of manslaughter. On December 13, 2011, the trial judge sentenced Defendant to 35 years imprisonment at hard labor. After imposing his sentence, the trial judge denied Defendant's oral motion to reconsider sentence. On December 19, 2011, [5 Cir. 3]Defendant filed a written motion to reconsider sentence, which was also denied. On that same date, Defendant filed a motion for appeal, which was signed by the trial judge on January 3, 2012. Defendant now appeals his conviction and sentence for manslaughter.

FACTS

On October 22, 2009, Prentis Perry, the victim, was shot and killed on Diplomat Street in Terrytown ¹ by Defendant. Defendant admitted that he shot the victim, but he asserts that the killing was done in self-defense.

Annette Larre testified that she resided at 513 Diplomat Street at the time of the shooting. She was at home on her couch when she heard two gunshots. Larre testified that upon hearing the gunshots, she looked out of her sliding glass door, which faces “up Diplomat,” and observed two males standing in the street about two houses down from her location. Larre testified that one of the men “had his arm out, and the other one was just standing there.” She then observed the man with the outstretched arm fire approximately five more shots in the direction of a nearby driveway, but she could not see at whom the shots were being fired. When the shooting ceased, Larre testified that the two men ran, and she was unable to get a look at their faces.

Dr. Susan Garcia, a forensic pathologist, testified that she performed the autopsy on the victim. Dr. Garcia testified the victim sustained seven gunshot wounds. Specifically, Dr. Garcia testified that the victim sustained three gunshot wounds to the back of his body and four to the front of his body. Among the wounds, the victim sustained a lethal gunshot wound, which entered through the back of the victim's head and exited between his eyes. Dr. Garcia also recovered two projectiles from the victim's body and one projectile from inside the body bag. [5 Cir. 4]Dr. Garcia opined that the victim was shot at a distant range, i.e. greater than three feet, depending on the weapon used. Dr. Garcia further testified that a toxicology report revealed that the victim had marijuana and trace amounts of benzodiazepine in his system at the time of his death. Dr. Garcia concluded that the cause of death was multiple gunshot wounds, and the manner of death was homicide.

Darius Edmonson testified that he has known Defendant for his entire life. Edmonson testified that, on the day of the shooting, he was with Defendant when the victim asked them for a ride to Devin Leige's house. Edmonson believed the victim was armed with a firearm. After dropping off the victim, Defendant noticed that his gun magazine had gone missing from the backseat.² Believing the victim had taken it, Defendant threatened the victim stating, “[y]ou coming down my neck like that, Dog, I'll f* * * you over you, Dog. Don't come near me like that.” ³

Edmonson further testified that later that same day, they arranged to meet the victim on Diplomat Street to buy drugs. According to Edmonson, during the drug exchange, the victim started “mouthing off” to Defendant about the gun clip, and then the victim acted like he was “grabbing on something” or “clutching” what Edmonson believed to be a gun. Edmonson testified that he frequently saw the victim in the neighborhood with his .40 caliber handgun “hanging out his pocket.” Edmonson admitted that he never mentioned anything about the victim “clutching” what he believed to be a gun until trial because his memory had improved since his interview with the police. Edmonson testified that the victim did not shoot at him and Defendant that night because the victim did not believe he had a chance. [5 Cir. 5]Edmonson explained that during the drug transaction, he and Defendant attempted to gather their money together when Defendant pushed Edmonson out of the way and started shooting at the victim when the victim began to reach into his pants to grab, what he believed to be, his handgun.⁴ However, Edmonson testified that he did not actually see a weapon. After the shooting ceased, Edmonson testified that he and Defendant ran to his (Edmonson's) brother's house, and that he did not know what Defendant did with the gun he used to shoot the victim.

Edmonson testified that “the whole neighborhood” was after Defendant and was trying “to harm him ... even saying that: We going to go get the Chinese Boy. And if Darius with him, we go get him, too.” Edmonson testified that Defendant was in fear for his life because of these threats.⁵

On cross-examination, Edmonson testified that because of the neighborhood threats to himself and Defendant, he had heard that Defendant was going to obtain a gun for protection. Edmonson also testified that the victim had a tattoo on his head which signified the number of bodies he had on his “belt.” Edmonson further testified that on the night of the shooting he “assumed” the victim had a gun on him because he “always” carried one with him.

Devin Leige testified that at the time of the murder, he was living in Terrytown and was a friend of the victim. Leige also testified that he was acquainted with Defendant and Edmonson. On the day of the shooting, Leige testified that Edmonson and Defendant gave him a ride to his house. Later that [5 Cir. 6]day, Leige saw Defendant again. According to Leige, Defendant was inquiring about a gun clip that had gone missing and believed the victim had stolen it. On cross-examination, Leige was asked about a prior shooting incident that occurred when he was stopped and questioned by Defendant about the gun clip. Leige denied knowledge of the shooting incident from which three casings from the pistol used in the murder were recovered. Leige further denied knowing whether the victim ever sold or used drugs and stated that he had never seen the victim in possession of a firearm.

Detective Roger Gorumba testified that he took two statements from Defendant, which were played for the jury. In his first statement, Defendant told Detective Gorumba that he knew the victim as a drug dealer from the neighborhood. Defendant stated that he had the victim's phone number in his cellular phone because he had previously purchased drugs from him. Defendant explained the events leading up to the shooting, indicating that he had driven over to Edmonson's house in the afternoon. Later that day, he and Edmonson were driving around in his car when they encountered Devin Leige. Defendant told Detective Gorumba that they stopped briefly to talk to Leige because Leige and Edmonson were friends. They then returned to Edmonson's house later that evening where they spent the night playing video games, watching movies, and listening to music. Defendant stated that while listening to music they heard multiple gunshots. Defendant told Detective Gorumba that, after waking up the next morning, he and Edmonson were walking around the neighborhood to find out what happened when they were picked up by the police. Defendant further stated that the only contact he had with the victim before the shooting was when he observed the victim drive by Edmonson's house. He also stated that, whenever he would see the victim around the neighborhood, the victim would not look at him or [5 Cir. 7]associate with him. Defendant stated that neither he nor Edmonson had any “problem” with the victim, and that the victim had no issues with him. Lastly, Defendant stated that the only firearm he owns is a Mossberg shotgun, which he has for “house protection.”

In his second statement, Defendant was informed that he was under arrest for second degree murder. He told Detective Gorumba that on the night of the shooting, he was walking down Diplomat Street to meet up with the victim to purchase marijuana. Defendant stated that when he was pulling out his money to pay for the drugs, the victim tried to take his money and gun from him; and, that is when he “backed up” and shot him. Defendant explained that, prior to the drug transaction, his handgun remained concealed in his pocket. Defendant further stated that he and the victim were alone when this incident occurred. Defendant explained that “everything happened so fast,” and that after the shooting, he “ran for his life,” disposing of the gun by giving it away to an unknown drug addict he encountered on the street. When asked by Detective Gorumba if Defendant felt he was justified in his actions, Defendant stated, “I felt like if I wasn't gonna do it, I was gonna be shot.” Defendant also stated that, although he did not see the victim with a gun at the time of the shooting, he had seen the...