State v. Scott

• Docket Number: 2023-KA-0022
• Decision Date: 30 August 2023
• Parties: STATE OF LOUISIANA v. DAMOND SCOTT
• Court: Court of Appeal of Louisiana — District of US

1

STATE OF LOUISIANA v. DAMOND SCOTT

No. 2023-KA-0022

Court of Appeals of Louisiana, Fourth Circuit

August 30, 2023

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISHNO. 537-253SECTION"0"Honorable Camille Buras, Judge

Jason R. Williams

District Attorney

Brad Scott

Assistant District Attorney

Chief of Appeals

Thomas Frederick

Assistant District Attorney

ORLEANS PARISH

COUNSEL FOR STATE OF LOUISIANA

Kevin V. Boshea

ATTORNEY AT LAW

COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge Nakisha Ervin-Knott)

Nakisha Ervin-Knott Judge

The defendant, Damond Scott(hereafter "Defendant"), seeks review of his convictions and sentences for second degree murder, attempted second degree murder, and obstruction of justice.For the reasons that follow, we affirm the Defendant's convictions for second degree murder and attempted second degree murder; vacate Defendant's conviction and sentence for obstruction of justice; affirm Defendant's sentence for attempted second degree murder; and affirm as amended Defendant's sentence for second degree murder to reflect parole eligibility in line with La.R.S. 15:574.4(F).

STATEMENT OF THE FACTS

On the afternoon of January 17, 2017, a vehicle driven by Tommie Mahoney(hereafter "Mr. Mahoney") with David Wimberly(hereafter "Mr. Wimberly") in the passenger seat was travelling down the 1600 and 1700 blocks of Mandeville Street, near the intersection with North Derbigney Street.As Mr. Mahoney travelled down Mandeville Street, Defendant began firing shots at the vehicle.This incident resulted in the untimely death of Mr. Wimberly, the attempted murder of Mr. Mahoney, and injury to a bystander.

Sergeant Nicholas Williams(hereafter "Sgt. Williams"), the lead homicide detective in this case, responded to the scene of the shooting.NOPD was able to obtain video surveillance from cameras located in the area.Video surveillance depicted a white Chevrolet Camero traveling in the 1600 block of Mandeville Street.The Camero parked, and the driver handed an assault rifle to Defendant and another firearm to Defendant's associate.The investigation revealed that the Camero belonged to Defendant's mother, Linette Richardson(hereafter "Ms. Richardson"), although she was not the driver of the Camero during this incident.Defendant concealed the assault rifle under his jacket, crossed the street, and entered an alley of one of the houses in the 1600 block of Mandeville Street.

Minutes later, a black SUV^[1], driven by Mr. Mahoney with Mr. Wimberly in the passenger seat, travelled down the 1600 block of Mandeville Street, and the Defendant emerged from the alley firing his weapon at the SUV.Defendant continued shooting at the SUV as the vehicle travelled through the 1700 block of Mandeville Street until Mr. Mahoney lost control of the SUV.The SUV hit a parked car in the 1700 block of Mandeville Street, pinning a bystander to the ground.When the shooting ceased, Defendant fled the area on foot.Police officers recovered an assault rifle from the SUV; however, they never recovered the assault rifle Defendant used during the shooting.

During the course of the investigation, Mr. Mahoney provided the nicknames of the individuals who shot at him and Mr. Wimberly in the SUV.Although Mr. Mahoney did not identify the Defendant by his name "Damond Scott", he identified Defendant by his nickname "D-Man" as one of the shooters.Additionally, Germaine Hood(hereafter "Ms. Hood"), an eyewitness to the shooting incident, observed Defendant having an assault rifle delivered to him and identified Defendant as a shooter of the SUV.At the time of the shooting, pursuant to Defendant's bond in an unrelated case^[2], there was a court order prohibiting Defendant from being in the City of New Orleans unless he was accompanied by his mother for drug tests, doctors' appointments, and court dates.

Subsequent to the January 17, 2017 shooting incident, on March 15, 2017, Defendant was arrested for illegal possession of a firearm and resisting arrest.The NOPD body-worn camera system provided footage of Defendant's March 15, 2017 arrest and showed his face.Detective Ryan Aucoin(hereafter "Det. Aucoin"), who assumed the lead investigator role in the shooting incident after Sgt. Williams took a leave of absence from the police department, compared the March 15, 2017 arrest footage to the video surveillance from the January 17, 2017 shooting and was able to positively identify Defendant as the shooter.Based on the identification from the surveillance video, body-worn camera, and the witness identification, Det. Aucoin determined probable cause existed for Defendant's arrest.On June 6, 2017, Defendant was arrested in New Orleans, Louisiana, while he was already in jail on the March 15, 2017 arrest.At the time of the January 17, 2017 shooting incident, Defendant was seventeen years old.

PROCEDURAL HISTORY

On September 14, 2017, Defendant was charged by grand jury indictment with second degree murder, a violation of La.R.S. 14:30.1; attempted second degree murder, a violation of La.R.S. 14:30.1; and obstruction of justice, a violation of La.R.S. 14:130.1.^[3] On September 29, 2017, Defendant pled not guilty to all charges.

A four-day trial commenced with jury selection on August 1, 2022, and concluded on August 4, 2022, with the jury finding Defendant guilty of second degree murder, attempted second degree murder, and obstruction of justice.On October 18, 2022, prior to sentencing, Defendant filed a motion for new trial, which was denied.On the same day, the trial court sentenced Defendant to life without the benefit of probation, parole, or suspension on the second degree murder conviction; fifty years without the benefit of probation, parole, or suspension on the attempted second degree murder conviction; and forty years on the obstruction of justice conviction, with the sentences to run concurrently.After sentencing, on October 18, 2022, Defendant filed a motion to reconsider sentence that was denied by the trial court.This appeal followed.

ERRORS PATENT

In accordance with La.C.Cr.P. art. 920(2), all appeals are reviewed for errors patent on the face of the record.^[4] A review of the record reveals two errors patent, one of which is also raised as assignment of error number three.

First, the record evidences that the trial court sentenced Defendant less than twenty-four hours after denying his motion for new trial.Thus, the trial court erred in failing to observe the twenty-four hour delay required by La.C.Cr.P. art. 873. La.C.Cr.P. art. 873 states that if "a motion for new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled," unless the defendant"expressly waives" the delay or pleads guilty.Nevertheless, if a defendant waives the twenty-four hour sentencing delay, then the district court's failure to wait at least twenty-four hours after a motion for new trial constitutes harmless error.State v. Robinson, 21-0254, p. 21(La.App. 4 Cir.2/18/22), 336 So.3d 567, 580, writ denied, 22-00437 (La.5/24/22), 338 So.3d 1185, reconsideration not considered, 22-00437 (La.9/7/22), 345 So.3d 430.

Defendant was convicted by jury on August 4, 2022.On October 18, 2022, Defendant filed a motion for new trial, which the trial court denied at a hearing that same day.Following the denial of the motion for new trial, the trial court asked whether Defendant was invoking his right to a sentencing delay, to which Defendant responded that he was waiving the delay.The trial court proceeded to sentence Defendant.When the district court sentenced Defendant on the same day as the denial of the motion for new trial, the district court failed to comply with the twenty- four hour sentencing delay found in La.C.Cr.P. art. 873.However, Defendant waived the twenty-four hour sentencing delay when he expressly waived the delay in open court following the denial of his motion for a new trial.Accordingly, although the trial court erred in failing to observe the twenty-four hour delay required by La.C.Cr.P. art. 873, we conclude the error was harmless.

Second, the trial court's sentence imposed for Defendant's second degree murder conviction failed to comply with La.R.S. 15:574.4(F). La. R.S. 15:574.4(F) states, in pertinent part, ".any person serving a sentence of life imprisonment for a conviction of second degree murder (R.S. 14:30.1) who was under the age of eighteen years at the time of the commission of the offense and whose indictment for the offense is on or after August 1, 2017, shall be eligible for parole consideration if all of the following conditions have been met...."

At the time of this shooting incident, Defendant was seventeen years old.Additionally, he was indicted after August 1, 2017, convicted of second degree murder, and sentenced to life without parole.In this case, the trial court erred in imposing a sentence of life imprisonment without benefit of parole because this case clearly falls within the scope of La.R.S. 15:574.4(F), which mandates that juveniles convicted of second degree murder after August 1, 2017, be eligible for parole consideration.Accordingly, as discussed infra in conjunction with Defendant's third assignment of error, we amend Defendant's sentence for second degree murder to reflect parole eligibility in line with La.R.S. 15:574.4(F).

DISCUSSION

On appeal, Defendant assigns nine errors for this Court's review: (1) the guilty verdicts of second degree murder and attempted second degree murder are contrary to the law and evidence; (2)the district court erred in denying the motion for new trial; ...