State v. Taylor

• Decision Date: 24 October 2007
• Docket Number: No. 42,627-KA.,42,627-KA.
• Citation: 968 So.2d 1135
• Parties: STATE of Louisiana, Appellee v. Tremaine TAYLOR, Appellant.
• Court: Court of Appeal of Louisiana — District of US

968 So.2d 1135

STATE of Louisiana, Appellee v.Tremaine TAYLOR, Appellant.

No. 42,627-KA.

Court of Appeal of Louisiana, Second Circuit.

October 24, 2007.

Louis G. Scott, for Appellant.

Jerry L. Jones, District Attorney, J. Michael Ruddick, Assistant District Attorney, for Appellee.

Before BROWN, CARAWAY & PEATROSS, JJ.

PEATROSS, J.

Defendant, Tremaine Taylor, was convicted by a jury of attempted second degree murder, armed robbery and two counts of carjacking.In regard to attempted second degree murder, the trial court sentenced Defendant to 45 years at hard labor without benefit of parole, probation or suspension of sentence.In regard to armed robbery, the trial court sentenced Defendant to 70 years at hard labor without benefit of parole, probation or suspension of sentence.In regard to both counts of carjacking, the trial court sentenced Defendant to 20 years at hard labor without benefit of parole, probation or suspension of sentence and ordered that the carjacking sentences be served concurrently.The trial court ordered that the sentences for attempted second degree murder and armed robbery be served concurrently to each other and consecutively to the sentences for carjacking, with credit for time served.Defendant now appeals.For the reasons stated herein, the convictions and sentences of Defendant are affirmed.

FACTS

On March 2, 2003, Willie Lamar Reed was walking home from a friend's house on Luther Street in Monroe when Defendant approached him and asked for a cigarette.When Reed told Defendant that he did not have enough cigarettes to give him one, Defendant grabbed Reed by the throat.Reed jerked away from Defendant and, at the same time, saw something shiny coming up toward him.Suddenly, Reed saw a flash and felt a gunfire blast go within two to three inches of his face; Reed testified that fragments from the blast actually hit his face.Reed ran to a neighbor's house and called the police.Reed went back outside and saw Defendant, who then said, "Mot Reed, I see you, bitch."Defendant then fired another shot at Reed, and Reed ran back inside the house.Reed testified that he could see Defendant walking down the sidewalk, that Defendant was continuing to discharge the firearm and that Defendant took a car from someone in a nearby driveway while still armed with the handgun.He further testified that, when he saw the police arrive, he told them what happened, including the facts that there was no argument between him and Defendant and that Defendant had no reason for doing what he did.Reed maintained that he believed Defendant would have shot him in the forehead if he had not jerked back.

Donnie McGee testified that he was visiting a friend on Luther Street that night and that he thought he heard gunshots as he got out of his car.McGee testified that he went inside and continued hearing gunshots, but that he went back outside because he remembered leaving his keys inside the car.While standing outside next to his 1996 Buick Century and talking to his friend, Defendant walked up and got inside of McGee's car.McGee told Defendant to get out of his car, but Defendant started the engine.McGee reached inside the car to retrieve the keys and try to get Defendant out of his car, but Defendant then pointed a gun at his chest.McGee backed away, and Defendant drove away.McGee testified that he did not give Defendant permission to take his car.

Soon thereafter, Vincent J. Newton, Jr., was driving his 1999Lincoln Navigator on Jackson Street when he encountered Defendant.Newton noticed Defendant because he thought Defendant was driving "crazy" and following him as Newton took a friend to her home on Mississippi Street.Newton saw Defendant pull into a nearby driveway and, after the friend got out of his vehicle, Defendant knocked on Newton's window and pulled open the car door.Newton saw that Defendant had a silver gun pointed at him, and Defendant told Newton to give up the truck.Defendant then made Newton give him all of his valuables, which included a ring, a cell phone and some loose cash.Defendant drove away in Newton's Lincoln Navigator, and Newton then flagged down a Monroe Police patrol car that was passing by at the time.

Monroe Police Officers Roy Cox and Tommy Crowson approached Defendant inside the Winnsboro Grocery and Gas because he matched the description issued in a BOLO ("Be On The Lookout").Defendant initially refused their request to step outside, so they handcuffed him and forcefully took him outside.When searching Defendant's person, they found a cell phone and a ring.The Lincoln Navigator was in the parking lot with a silver and black 9mm Smith and Wesson handgun inside.Monroe Police OfficeLisa Quillar drove Newton to Winnsboro Grocery and Gas, where Newton identified the vehicle, ring and cell phone as being his.In the meantime, bullet casings were recovered from the crime scenes at Luther Street, which were sent to the North Louisiana Crime Laboratory for analysis.Michael Stelly, an expert in firearms identification with the North Louisiana Crime Laboratory, testified that the bullet cartridges recovered from the crime scene on Luther Street were fired from the handgun recovered at Winnsboro Grocery and Gas.Monroe Police Officer Roderick Jackson, who was the detective on the case, testified that the crime scenes on Luther Street were approximately four miles from the Winnsboro Grocery and Gas.

During opening and closing statements at trial, counsel for Defendant did not dispute the State's assertion of what Defendant did on March 2, 2003; however, he argued that Defendant was not responsible for his actions because, earlier in the day, he had been smoking a marijuana cigarette that was, unbeknownst to him, laced with phencyclidine ("PCP"), which caused him to commit those crimes.Officer Jackson testified that Defendant was eventually taken to the hospital for evaluation because he was behaving in a strange manner and throwing things at the Monroe Police Department.Medical records from the hospital indicated that a toxicology test was performed on Defendant's urine and that it tested positive for PCP and marijuana.In support of his claim that he involuntarily ingested the PCP, Defendant presented the testimony of Clyde Bernard Mitchell.Mitchell, who was incarcerated at the time of trial, testified that he is Defendant's friend and that he was at a barbeque with Defendant on that day.He further explained that he gave Defendant a marijuana cigarette laced with PCP while Defendant was cooking.Mitchell testified that he did not tell Defendant about the PCP and that he did not know it would affect him that way.

On cross-examination, Mitchell testified that he and others smoked this same cigarette, but that neither he nor anyone else who had smoked that cigarette tried to kill, rob or carjack anyone else that day.When asked why he did not give this information to police earlier, Mitchell testified that he did not want to get a reputation for being a "rat" by talking to police.Warren Brown, an investigator with the District Attorney's office, testified that he interviewed Mitchell before the trial and that Mitchell told him that Defendant and everyone at the barbeque knew that the marijuana cigarette was laced with PCP.

As previously stated, based upon the evidence at trial, the jury convicted Defendant of attempted second degree murder, armed robbery and two counts of carjacking.

DISCUSSION

Assignment of Error Number One (verbatim):The trial court erred by excluding the testimony of Dr. Donald Harvey Marks.

Defendant argues that the trial court erred in excluding the expert testimony of Dr. Donald Harvey Marks because his testimony was admissible under La.C.E. art. 702 in that it was necessary to help the jury understand that his actions were indicative of drug intoxication.Defendant argues that this expert testimony was necessary to prove his lack of specific intent, which was an element of the offenses charged.Defendant also argued that, because the State argued that Defendant was not very intoxicated and that the PCP did not affect others the way it affected him, the testimony of Dr. Marks was necessary to show the jury how drugs affect different people in different ways.As a result, Defendant argues that the jury may not have believed that he was intoxicated at the time of the offenses.Defendant argues that Dr. Marks had excellent credentials, which included having both an M.D. and a Ph.D., being the associate director of research at Hoffman LaRoche Pharmaceutical, being the associate director of research at Aventis Pasteur Pharmaceuticals, being board-certified in internal medicine, having medical licenses in three states and being both a physician researcher and practicing physician at a hospital.Defendant argues that less qualified individuals, such as laymen, crime laboratory employees and law enforcement officers, have been permitted to testify about intoxication.Defendant further asserts that the Daubert standards do not apply to all cases requiring expert testimony.In addition, Defendant argues that the trial court erred in excluding the testimony on the ground that it would be based upon hearsay because experts are allowed to use hearsay information and because the State would have had the opportunity to cross-examine Dr. Marks.According to Defendant, the trial court should not have excluded the testimony, but, rather, allowed the jury to determine what weight should be given to it.

The State argues that the trial court did not commit manifest error by excluding Dr. Marks as an expert witness on the adverse effects of PCP.In support thereof, the State emphasizes that Dr. Marks' experience was limited to two cases that he treated 15 years ago, where he received information from police that the patients were on PCP and where he could not clearly recall if the PCP intoxication had been confirmed by medical tests....