State v. Sandifer

• Decision Date: 27 June 2018
• Docket Number: NO. 2016–KA–0842,2016–KA–0842
• Citation: 249 So.3d 142
• Parties: STATE of Louisiana v. Demond D. SANDIFER, Sam Newman, Tyron Harden
• Court: Court of Appeal of Louisiana — District of US

249 So.3d 142

STATE of Louisiana

v.Demond D. SANDIFER, Sam Newman, Tyron Harden

NO. 2016–KA–0842

Court of Appeal of Louisiana, Fourth Circuit.

JUNE 27, 2018

Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Kyle Daly, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA

Sherry Watters, LOUISIANA APPELLATE PROJECT, P.O. BOX 58769, New Orleans, LA 70158–8769 Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. BOX 1677, Abita Springs, LA 70420, Mary C. Hanes, LOUISIANA APPELLATE PROJECT, P.O. Box 4015, New Orleans, LA 70178–4015, COUNSEL FOR APPELLANTS/DEFENDANTS

(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Paula A. Brown )

Judge Rosemary Ledet

In this criminal appeal, three defendants—Demond "Lil D" Sandifer ("Sandifer"), Sam "Lil" Newman ("Newman"), and Tyron "T–Man" Harden ("Harden") (collectively, the "Defendants")—appeal their respective convictions and sentences for murder, attempted murder, conspiracy to commit racketeering, conspiracy to commit illegal use of weapons, first degree robbery, and illegal carrying of weapons. With respect to the convictions, we affirm; with respect to the sentences, we affirm in part, correct in part, vacate in part, and remand.

STATEMENT OF THE CASE

Around 2008, a criminal street gang called the "110'ers" formed in the New Orleans Lower Garden District.¹ The 110'ers consisted mostly of males in their late teens and early twenties, and its territory centered around the River Garden Apartments. The 110'ers was comprised of three sub-gangs: the St. Thomas Youngins ("STY"), the St. Mary Mafia ("SMM"), and the Skull Squad Mafia ("SSM"). In 2011, SSM began associating with another gang, the Young Mafia Fellaz ("YMF") to murder rival gang members.

On May 8, 2013, fifteen individuals were indicted in connection with the activities of the 110'ers. Among those indicted were the Defendants,² who were jointly charged with conspiracy to commit racketeering (Count 1); conspiracy to commit illegal use of weapons (Count 2); and the second degree murders of Shawanna Pierce and Brianna Allen (Counts 27 and 28).³ With the exception of Count 1, all charges in the indictment were alleged, under La. R.S. 15:1403(B), to have been committed with the intent to promote, further, or assist in the affairs of a criminal gang. See La. R.S. 15:1403(B).

Before trial, Harden moved to sever the charges related to the murders of Ms. Pierce and Brianna (Counts 27 and 28) from all other charges and to exclude the hearsay statements of Sandifer and Newman. Each of the motions was denied.

On January 14, 2015, the State proceeded to trial against the Defendants on Counts 1, 2, 19, 21, 27, 28, 37, and 38. During the 11–day trial, the State presented the testimony of 49 witnesses and introduced 192 exhibits. At the conclusion of trial, the jury rendered the following verdicts:

• Count 1 (conspiracy to commit racketeering): as to Sandifer and Newman, guilty as charged; as to Harden, not guilty;

• Count 2 (conspiracy to commit illegal use of weapons): as to each of the Defendants, guilty as charged;

• Counts 27 and 28 (second degree murder): as to each of the Defendants, guilty as charged;⁴ as to Sandifer and Newman only the jury further found that these murders were committed "in furtherance of criminal gang activities."

On November 17, 2015, the Defendants were sentenced as follows:

• Count 1 (conspiracy to commit racketeering): Sandifer and Newman were each sentenced to 50 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence;

• Count 2 (conspiracy to commit illegal use of weapons): Sandifer, Newman, and Harden were each sentenced to 10 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence;

• Counts 27 and 28 (the second degree murders of Ms. Pierce and Brianna): Sandifer, Newman, Harden were each sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; and, as to Sandifer and Newman, an additional 25 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in light of the jury's finding that the murders had been committed in furtherance of gang activity.⁵

This appeal followed.⁶

DISCUSSION⁷

Together, the Defendants assign 17 errors. The assignments overlap considerably, and each of the Defendants has adopted the assignments of the others. For ease of discussion, we organize the assignments into the five issues—(1) cognizability; (2) sufficiency; (3) severance; (4) admissibility; and (5) sentencing—and address the assignment by issue rather than number.

Cognizability⁸

The Defendants contend that conspiracy to commit racketeering and illegal use of weapons during a crime of violence are non-cognizable double inchoate crimes. The Defendants also contend that, because those crimes are non-cognizable, the jury instructions were erroneous, confusing, and resulted in a "vague verdict."⁹ The State contends that neither issue has been preserved for appellate review.

As to the jury instructions, the State's argument has merit. The Defendants failed to object to the jury instructions on any basis; thus, they failed to preserve for appellate review any issue relating to the jury instructions.¹⁰ See La. C.Cr.P. art. 841(A) (providing that "[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence"); see also State v. Lincoln, 17-0170, pp. 37-38 (La. App. 4 Cir. 11/3/17), 231 So.3d 161, 182 (observing that "[t]his Court has also found that the failure to object to jury instructions precludes a defendant from raising the issue on appeal" and collecting cases).

As to cognizability, however, we note that "[t]he conviction of a non-crime is an error patent which can be recognized by [an] appellate court on its own." State v. Marsh , 17-0584, p. 4, n. 5 (La. App. 4 Cir. 11/8/17), 231 So.3d 736, 739 ; see also State v. Mayeux , 498 So.2d 701, 702–04 (La. 1986) (recognizing, as an error patent, that attempted aggravated battery is not a crime in Louisiana). Accordingly, we will address the Defendants' argument as to the cognizability of conspiracy to commit racketeering.¹¹

The Louisiana Racketeering Act, La. R.S. 15:1351, et seq. (the "LRA"), provides, in pertinent part, as follows:

A. It is unlawful for any person who has knowingly received any proceeds derived, directly or indirectly, from a pattern of racketeering activity to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest, or equity in immovable property or in the establishment or operation of any enterprise.

B. It is unlawful for any person, through a pattern of racketeering activity, knowingly to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or immovable property.

C. It is unlawful for any person employed by, or associated with, any enterprise knowingly to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.

D. It is unlawful for any person to conspire or attempt to violate any of the provisions of Subsections A, B, or C of this Section.

La. R.S. 15:1353. Under La. R.S. 15:1353(D), a conspiracy to violate Sections (A), (B), or (C) is a cognizable, statutorily defined crime. Accord State v. Richards , 426 So.2d 1314, 1316 (La. 1982) (observing that "[a] criminal conspiracy to commit a crime is an inchoate crime separate and distinct from the completed criminal act") (citing State v. Brown , 398 So.2d 1381 (La. 1981) ).

Nonetheless, the Defendants argue that, because the definition of racketeering activity set forth in La. R.S. 15:1352(A) includes inchoate crimes, conspiracy to violate La. R.S. 15:1353(C) is a double-inchoate crime and is, thus, non-cognizable. This court recently rejected that argument in State v. Davenport , 16-0223, p. 30 (La. App. 4 Cir. 10/18/17), ––– So.3d ––––, ––––, 2017 WL 4700652, *16 noting that "conspiracy to commit racketeering under La. R.S. 15:1353(D) is a valid crime, even though an underlying inchoate crime may be a part of the racketeering activity on which the crime is based." The related assignments of error are without merit.

Sufficiency

The Defendants contend that the State failed to offer sufficient evidence to support their convictions for the second degree murders of Ms. Pierce and Brianna, conspiracy to commit illegal use of weapons, and conspiracy to commit racketeering.¹² In State v. Brown , 12-0626, pp. 6-8 (La. App. 4 Cir. 4/10/13), 115 So.3d 564, 570–71, we set forth the standard of review for claims of insufficiency as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Green , 588 So.2d 757 (La. App. 4 Cir. 1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall , 523 So.2d 1305 (La. 1988). The reviewing court must consider the record as a whole. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. at 1310. "[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the

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