State v. Thomas

• Decision Date: 10 August 2016
• Docket Number: 50,929–KA.,50,420–KA
• Citation: 201 So.3d 263
• Parties: STATE of Louisiana, Appellee v. Tremond THOMAS, Appellant.
• Court: Court of Appeal of Louisiana — District of US

201 So.3d 263

STATE of Louisiana, Appellee

v.Tremond THOMAS, Appellant.

50,420–KA

50,929–KA.

Court of Appeal of Louisiana, Second Circuit.

Aug. 10, 2016.

Rehearing Denied Sept. 22, 2016.

Louisiana Appellate Project by Douglas Lee Harville, for Appellant.

J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Melanie Frye McCullough, Douglas M. Stinson, Assistant District Attorneys, for Appellee.

Before WILLIAMS, DREW & PITMAN, JJ.

PITMAN, J.

In these consolidated cases, a jury convicted Defendant Tremond Thomas of second degree murder and aggravated burglary. For the second degree murder conviction, the trial court sentenced Defendant to life imprisonment at hard labor with parole eligibility after 35 years. For the aggravated burglary conviction, the trial court sentenced Defendant to 30 years at hard labor to run concurrently with the life sentence. Defendant appeals. For the following reasons, we affirm his conviction and sentence of second degree murder and vacate his conviction and sentence for aggravated burglary.

FACTS

On December 10, 2012, a grand jury filed a bill of indictment charging 15–year–old Defendant with first degree murder in violation of La. R.S. 14:30(A)(1), stating that, on or about September 24, 2012, Defendant committed the first degree murder of Iesha Winbush. On December 18, 2012, the bill of indictment was amended to charge Defendant with second degree murder in violation of La R.S. 14:30.1. The bill of information was orally amended in open court on May 5, 2014, to second degree murder. On December 18, 2012, Defendant was formally arraigned and entered a plea of not guilty.

On April 5, 2013, Defendant filed a motion to suppress statements. A hearing on the motion to suppress was held on April 23 through April 25, 2013. On May 2, 2013, the trial court filed an order denying the motion to suppress.

On May 5, 2014, a bill of information was filed charging Defendant with aggravated burglary of an inhabited dwelling in violation of La. R.S. 14:60(1), alleging that, on or about October 12, 2012,¹ Defendant and Randolph Andrew committed aggravated burglary of the dwelling located at 638A Patton Street in Bossier City while armed with a dangerous weapon or committing a battery therein. The parties agreed that the charge of aggravated burglary should be consolidated into the trial for second degree murder because the charges arose out of the same facts and allegations. Defendant waived a formal reading of the charge and entered a denial.

Trial began on May 5, 2014. Sgt. Darren Barclay of the violent crimes unit of the Bossier City Police Department testified that, on September 23, 2012, he responded to a duplex located at 638 Patton Street in Bossier City, Louisiana, to investigate a shooting. He stated that law enforcement received a search warrant for the residence and then began an investigation. He and the jury were shown photographs of the crime scene, and he testified about these photographs. He noted that the events at issue occurred on the right side of the duplex, i.e., 638A Patton Street. In photographs of the exterior of the duplex, he identified the front porch and a door on the side of the house. A television and a Madden videogame box were located in the living room. He also described the bedroom where the victim, Iesha Winbush, was found. He noted that a television had been turned upside down, the bed's mattress had been turned on the box springs and there was blood on the bed sheets, the mattress and the box springs. He pointed out a bloody sock and a bloody towel and noted that Ms. Winbush was found lying in a pool of blood next to the bed. He testified that he obtained an arrest warrant for Taurus Carter and arrested him on October 3.

Taurus testified that, in September 2012, he and Ms. Winbush had been boyfriend and girlfriend for three or four months and were living together at 638 Patton Street, which he recently purchased with money he received as the beneficiary of his mother's life insurance policy. He stated that, on the evening of September 23, 2012, he and Ms. Winbush went to Sonic to get something to eat and then returned to his house. His brother Demetrius Carter and his cousin Ricky Corley were at the house to play a PlayStation 3 ("PS3") videogame. After his brother and Mr. Corley left, he and Ms. Winbush took their food into the bedroom to eat. He went to get ketchup and heard a knock at the front door. He stated that there was a young, light-complexioned black man at the door asking if someone named John lived there. He responded that he had the wrong address and that no one named John lived there. As he was about to close the door, another man jumped out from the side of the house with a revolver and started shooting from the front porch. He ran to a door on the side of the house and then ran across the street, jumped a fence and ran to a house on McDade Street because it looked like a safe place. He stated that he did not know the person who lived at the house and that he knocked on the door and asked if he could use the phone. He then called his brother and told him he had been robbed. His brother and cousin picked him up and took him back to his house. When he arrived at the house, he entered through the side door and began to look for Ms. Winbush and for his gun. He testified that he found her in the back bedroom in a puddle of blood. He searched for a gun he kept in the house, but could not find it. He stated that he then ran outside and sat on the front porch and cried. He noted that his brother Demetrius was the first to find Ms. Winbush lying on the floor and called 911. He testified that, when law enforcement arrived, he was lying on the porch. The police officers took him to the police station and questioned him for a day and a half. During his questioning, he identified someone named "Meechie" as the shooter. He stated that, after he left the police station, he stayed with his grandmother instead of returning to his house. It was several days later when he learned from family members that his PS3 console was missing, so he called the police station to tell them the serial number on the PS3 container box. The police officers told him to bring the box to the police station. He and his brother went to the station, and he remained in the truck while his brother took the box inside. The police officers then came outside and arrested him and charged him with second degree murder. He was then booked into jail and stayed there for approximately eight days until he was released. He testified that he did not kill Ms. Winbush.

On cross-examination, Taurus denied that he was a convicted felon and stated that there was no reason he could not own a gun. He stated that he first saw that Ms. Winbush was dead and then discovered that his gun was missing. He did not render aid to Ms. Winbush, but told police that he put white towels down, even though he did not actually do this. He denied that he spoke with neighbors Robert McHenry and Raquel Davis that evening. He could not explain why there was no evidence that bullets had been fired. He stated that he called his brother instead of 911 because he was scared. He had just received $70,000 as his mother's life insurance beneficiary and believed someone came to his house to "chase" him, not to harm Ms. Winbush. He picked Demetrius Hamilton, i.e., Meechie, out of a photo lineup as the shooter, but explained that he was not 100 percent certain that he was the shooter. He clarified that Meechie is not his cousin. He denied having an argument with Ms. Winbush the night she was killed, denied shooting her and denied making the bedroom look like there had been a struggle.

Ricky Corley testified that, on the night of September 23, 2012, he was playing catch with Demetrius Carter in the front yard of Taurus's house. He stated that Taurus and Ms. Winbush came home with food and he spoke with them briefly before leaving with Demetrius Carter to go to his house in Shreveport. Approximately ten minutes later they received a call from Taurus that someone had tried to rob him, so they immediately drove back to Taurus's house. When they arrived at the house, Demetrius Carter knocked on the door and no one answered. They called Taurus, who stated he was at a house one street over. He testified that they went to pick up Taurus, who he described as "jittery," "nervous" and "scared." When they returned to Taurus's house, he remained outside while Demetrius Carter and Taurus went to the front door and used a key to enter the house. He stated that he heard Demetrius Carter call out Ms. Winbush's name and later said that she "was gone." He noted that Taurus ran outside and "fell out on the front porch" and was crying.

Jeremy Watson testified that, from his house located at 607 Patton Street, he can see the front of the house located at 638 Patton Street, but that he does not know Taurus. He stated that, on the evening of September 23, 2012, he heard at least one gunshot around 10:00 p.m. as he was sitting on his porch. He had a clear view of the street and did not see any vehicles drive up to 638 Patton. He did not call the police because hearing gunshots is not unusual in his neighborhood; however, he knew something was out of the ordinary when police officers arrived. On cross-examination, he stated that, when sitting on his porch, he cannot see the opposite side of the street because of a privacy fence. He further stated that, in the 20 minutes between the gunshot and the police arriving, he did not see anyone jump over a fence into his yard and that, if someone had jumped over the fence, he would have seen him.

Stephen Raley testified that, late in the evening of September 23, 2012, a man came to his house at 613 McDade Street in Bossier City. He had never met this man before, but now knows his name is Taurus. He stated that he was alerted by his dog's barking that someone was at the door. When he opened the door, Taurus...