State v. Smith

• Decision Date: 09 February 2011
• Docket Number: No. KA 10–830.,KA 10–830.
• Citation: 58 So.3d 964
• Parties: STATE of Louisianav.Eric Joseph SMITH.
• Court: Court of Appeal of Louisiana — District of US

58 So.3d 964

STATE of Louisiana

v.Eric Joseph SMITH.

No. KA 10–830.

Court of Appeal of Louisiana, Third Circuit.

Feb. 9, 2011.

James C. Downs, District Attorney–Ninth Judicial District Court, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.G. Paul Marx, Lafayette, LA, for Defendant/Appellant, Eric Joseph Smith.Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.EZELL, Judge.

[3 Cir. 1] The Defendant, Eric Joseph Smith, was charged in an indictment filed on April 23, 2009, with first degree murder, in violation of La.R.S. 14:30; attempted first degree murder, in violation of La.R.S. 14:30 and 14:27; and possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1. The Defendant entered a plea of not guilty on May 8, 2009.

Jury selection commenced on January 12, 2010, and the jury found the Defendant guilty as charged on January 15, 2010. The Defendant was sentenced on January 25, 2010, to serve life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence for first degree murder; to fifty years at hard labor, without benefit of probation, parole, or suspension of sentence for attempted first degree murder; and to fifteen years at hard labor, without benefit of probation, parole, or suspension of sentence for possession of a firearm by a convicted felon. The sentence for attempted first degree murder was ordered to run consecutively to the sentence for first degree murder, and the sentence for possession of a firearm was to run concurrently to the other two sentences.

A motion for new trial was filed on January 28, 2010, and denied on February 1, 2010. A motion for appeal was also filed on January 28, 2010, and was subsequently granted.

The Defendant now appeals and asserts three assignments of error. The Defendant contends the evidence presented is insufficient to prove beyond a reasonable doubt that he shot Kenderick Cyriak and his companion, the trial court erred in allowing shoe-print comparisons to be presented as scientific evidence in this case; and, the trial court erred when it allowed selective information on the phone records to be presented in the form of a chart or summary.

[3 Cir. 2] FACTS

The Defendant was convicted of shooting Kendrick Cyriak and shooting and killing Telisha Rainey.

ERROR PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent.

The trial court failed to impose a mandatory fine for the Defendant's conviction of possession of a firearm by a convicted felon. In addition to imprisonment, La.R.S. 14:95.1 requires the imposition of a fine of not less than one thousand dollars nor more than five thousand dollars. The trial court's failure to impose a mandatory fine renders the Defendant's sentence illegally lenient. However, because the issue was not raised, this court will not address it.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Defendant contends the evidence presented is insufficient to prove beyond a reasonable doubt that he shot drug dealer Kenderick Cyriak and his companion the night that he bought crack cocaine from Cyriak. The Defendant contends the sole evidence submitted by the State was the statement of a witness who suffered brain damage and memory loss in the shooting and there was no corroborating evidence except that Cyriak merely recalled him because he had sold him drugs. Further, Cyriak suffered from a scrambled memory, and there was no physical evidence, motive, or other testimony connecting him to the shootings.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); [3 Cir. 3] State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000–0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La.R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000–0674 p. 9, 796 So.2d at 657.

State v. Draughn, 05–1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). “When the key issue is not whether a crime occurred, but rather, the identity of the perpetrator, the state is required to negate any reasonable probability of misidentification. State v. Hughes, 05–992 (La.11/29/06), 943 So.2d 1047.” State v. George, 09–143, p. 5 (La.App. 3 Cir. 10/7/09), 19 So.3d 614, 618.

Alex Granville was given immunity for his testimony. At the time of trial, he had pending drug charges. Additionally, he had prior convictions for simple robbery and drugs.

Granville testified that he was a drug addict and he went by the nicknames Saint, B.R., and Tank. He knew Kenderick Cyriak, whose nickname was Black. He also knew the Defendant, who was known as Jersey. Granville testified that the Defendant called him on December 26, 2008, asking for crack cocaine. Granville indicated he did not have any and told the Defendant he would call someone who could get it to him. Granville then called Cyriak, who agreed to sell drugs to the Defendant. Granville then gave the Defendant Cyriak's cell phone number.

Granville testified that he received a phone call from the Defendant on December 26 at 12:49 a.m. He then received phone calls from the Defendant at 2:08, 2:12, 2:13, 2:14, and 2:23 a.m.

[3 Cir. 4] Kenderick Cyriak testified that he had previously been convicted of aggravated battery, criminal damage, and “CDS 2.” He admitted that he had been a drug dealer, and there were charges pending against him at the time of trial. Further, he had been granted immunity for his testimony.

Cyriak testified that he sold crack cocaine five to seven times a day. He had known Granville a month-and-a-half in December 2008, and sold drugs to him about twelve times during that period. On cross-examination, Cyriak indicated he had known Granville for three or four months.

Cyriak testified that he had known Telisha Rainey for approximately two to three months before her death. He was not romantically involved with her.

Cyriak testified that before noon on Christmas Day, he was home with his family. He went to the home of Rainey's sister around noon. He and Rainey subsequently left and eventually went to the Red River Inn. Cyriak had a room there because he and his cousin had been living together and were on bad terms.

Cyriak testified that he and Rainey watched television for approximately an hour-and-a-half. Cyriak then took Rainey to see her family in Lafayette. The two eventually returned to Alexandria and went to Roy's Barbeque Stand and hung out. While there, Granville called Cyriak and told Cyriak that he had a friend that needed fifty dollars worth of crack cocaine. Cyriak told Granville to give the friend his phone number.

The Defendant called Cyriak and said he needed fifty dollars worth of crack cocaine. Cyriak spoke to the Defendant two or three times. Cyriak then met the Defendant on Ninth Street. The Defendant entered the front seat of Cyriak's car, and the transaction took place.

[3 Cir. 5] Cyriak's cell phone records indicated that he received calls from the Defendant at 2:28 and 2:37 a.m. on December 26. Cyriak then called the Defendant at 2:41 and 2:42 a.m. Cyriak agreed that he sold crack cocaine to the Defendant between 2:42 and 2:45 a.m.

The Defendant called Cyriak again at 3:39 a.m. Cyriak testified that during that call, the Defendant asked for another fifty dollars of crack cocaine, which Cyriak had. The Defendant called again at 3:51, 3:56, and 3:57 a.m.

Cyriak testified that Rainey went with him to conduct the second transaction, as she wanted to go back to Roy's afterwards. Cyriak met the Defendant on Ninth Street, and the Defendant got into the back seat behind Cyriak. Cyriak testified that there was no one else with the Defendant. The Defendant told Cyriak to drive and turn at the corner. Once around the corner, the Defendant told him to pull over, which Cyriak did. Cyriak testified that as soon as he handed the Defendant the drugs, it felt like someone punched him in the back of the neck. Cyriak then tried to put the car in drive and leave, but everything was spinning around him. At that time, Cyriak did not hear any gunshots or know he had been shot. Someone then said, “get your bitchy ass out of the car.” Cyriak was subsequently pulled out of the car and heard gunshots. Cyriak heard the tires of his car screech off, and he attempted to get up and walk. He then crawled to a house for help.

Cyriak had been shot three times. He never saw anyone approach the car. Further, he never saw Rainey get out of the car or be shot.

Cyriak agreed that the person who got into the backseat of his car was the same person that had previously gotten into the front seat of the car to buy drugs. Additionally, the voice he heard setting up the second transaction was the same voice he heard when setting up the first transaction. Cyriak identified the Defendant as the [3 Cir. 6] person who entered his car just before he was shot. He also identified the Defendant in a photographic lineup.

Cyriak testified that the first time he spoke to police, he did not tell the truth. At that time, he...