State v. Varnado

• Decision Date: 29 January 2020
• Docket Number: NO. 2019-KA-0330,2019-KA-0330
• Parties: STATE OF LOUISIANA v. TROY VARNADO
• Court: Court of Appeal of Louisiana — District of US

STATE OF LOUISIANA
v.
TROY VARNADO

NO. 2019-KA-0330

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

JANUARY 29, 2020

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 534-923, SECTION "F"
Honorable Robin D. Pittman, Judge

Judge Joy Cossich Lobrano

(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase)

Love, J., concurs in the result
Chase, J., concurs in the result

Leon Cannizzaro
District Attorney
Donna Andrieu
Kyle Daly
DISTRICT ATTORNEY'S OFFICE
ORLEANS PARISH
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR STATE/APPELLEE

Mary Constance Hanes
LOUISIANA APPELLATE PROJECT
P. O. Box 4015
New Orleans, LA 70178-4015

Troy L. Varnado
Louisiana State Penitentiary
Camp C Bear #3
Angola, LA 70712

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED.

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Defendant, Troy Varnado ("Defendant") has filed the instant appeal seeking to overturn the jury's verdict convicting him of second-degree murder, second-degree kidnapping, and obstruction of justice. After reviewing the facts and applicable law, and for the reasons that follow, we affirm Defendant's convictions.

PROCEDURAL BACKGROUND

On May 22, 2017, Defendant and Thayon Samson ("Thayon") were indicted on the following charges: 1) second-degree murder¹ of Lindsay Nichols ("Victim"); 2) second-degree kidnapping² of Victim; and 3) obstruction of

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justice.³ In addition, Defendant was charged with acting as an accessory after the fact,⁴ while co-defendant Thayson was charged with soliciting Defendant's murder.⁵ On May 30, 2017, Defendant appeared for arraignment and entered pleas of not guilty. Defendant unsuccessfully moved to suppress the admission of his cell phone records obtained pursuant to a search warrant.

Trial commenced on September 17, 2018. Defendant filed a request for a unanimous verdict, which the district court denied because, under the law of Louisiana as it existed on the date of the crime, a unanimous verdict was not required. After deliberations, the jury returned its verdicts: to the charge of second-degree murder, eleven of the twelve jurors returned a verdict of guilty; to the charges of second-degree kidnapping and obstruction of justice, the jury's verdict was unanimous.

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The district court denied Defendant's motions for new trial and post-verdict judgment of acquittal. On November 8, 2018, Defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence for the second-degree murder conviction. In connection with the second-degree kidnapping conviction, Defendant was sentenced to serve forty years at hard labor without the benefit of probation, parole, or suspension of sentence for the first two years. Finally, with respect to Defendant's obstruction of justice conviction, the court sentenced Defendant to forty years in prison at hard labor, with all sentences to run concurrently and with credit for time served. Thereafter, the court granted Defendant's motion for appeal.

TRIAL TESTIMONY

The State's first witness, Sergeant Merrell Merricks, a twenty-two-year veteran with the New Orleans Police Department ("NOPD"), was assigned to the "Communication Division, Custodian of Records." His testimony authenticated two 9-1-1 calls made in connection with Victim's homicide on the morning of June 21, 2015. The first call was made by Victim at 4:45 a.m. and lasted until 4:58 a.m. The second 9-1-1 call reported a stalled vehicle on the side of the road but was upgraded to a burning vehicle when the New Orleans Fire Department ("NOFD") arrived on the scene at 7:30 a.m.

After Victim' 9-1-1 call was played for the jury, Sgt. Merricks verified Victim's words: "He tried to do something to me that I didn't want to do." In another part of the call, Victim stated, "He's got a gun. He's in my face. He took

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my keys." Sgt. Merricks confirmed that Victim did not identify the person whose actions she was describing but two men were heard having a conversation in the background. The men were threatening Victim, not one another.

Sgt. Merrick testified that a male voice is heard "hurling" bad language at Victim. When the dispatcher asked who that person was, Victim said he was "a person that I met once." Victim stated multiple times, "He is approaching my car; he has my gun; he took my things out of my car." Victim also informed the dispatcher that her assailants were "shooting at her," but no shots are heard on the tape. In addition, Victim stated, "He just pointed the gun at me"; "I'm about to shoot him"; "he's got a gun"; "he's in my face." Sgt. Merricks believed that Victim referred to two persons when she stated, "Both of y'all get away from me or I will blow both of y'all away."

Eyewitness H.C. testified for the State. H.C. provided information to Crimestoppers in June 2015, and later to the NOPD, that he saw two men driving away from a burning car at the location where Victim's vehicle was found in an "old model Jaguar" in the direction of the bridge to the west bank of New Orleans. H.C. stated it was light enough for him to see what he witnessed. H.C. saw a "Mohawk gentleman" get into the passenger side of the Jaguar and was the same man that he saw on the television program, "First 48." H.C. also saw the driver of the Jaguar, describing the man as "fat," with "short, tight dreadlocks" tied into a short ponytail. H.C. only saw the vehicle and its occupants for "a few seconds," but was sure that the vehicle was a "97" or "98" Jaguar.

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Dr. Cynthia Gardner, accepted as an expert in the field of forensic pathology, testified that she performs autopsies of people who die in Orleans Parish. In June 2015, Dr. Gardner performed an autopsy on Victim and prepared an autopsy report.

Dr. Gardner testified that Victim suffered nine gunshot wounds: one to the head, six to the neck, and two to the hand. Evidence of strangulation was also present along with "multiple evidence of blunt force injury," and burning that occurred post-mortem. The toxicology report indicated alcohol in Victim's system. Dr. Gardner estimated that the muzzle of the gun that shot Victim multiple times was held approximately two feet away.

Detective Robert Barrere, a fourteen-year veteran of the NOPD, was lead detective assigned to Victim's homicide. Upon arriving on the scene at approximately 8:20 a.m., he learned that Victim's car, a 2011 black Honda Accord, was smoldering when the NOFD arrived. To extinguish the fire, NOFD opened the trunk, hood and car doors; Victim's body was found in the trunk.

After securing the area and photographs of the car and body were taken, a search warrant was obtained for Victim's car and it was towed to police headquarters. At that point, crime lab technicians swabbed the car, looking for possible DNA evidence. However, none sufficient for testing was found and body samples taken for DNA testing all matched Victim.

A 9-millimeter firearm and shell casings were recovered from the vehicle's passenger area and trunk. Testing proved that the gun was the murder weapon. Det.

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Barrere's investigation revealed that Victim was shot both while in the vehicle and after she was moved to the trunk.

Following interviews with Victim's friends, Det. Barrere learned that prior to her death, Victim was on her way to meet a friend named "Thayon," in an apartment in New Orleans East.

Det. Barrere reviewed Victim's cell phone records, testifying that Victim called 9-1-1 at 4:45 a.m. on June 21, 2015. The cell phone tower that registered the 9-1-1 call was the one closest to the residence of Thayon. Before calling 9-1-1, Victim placed two calls to Thayon. The last cell phone tower registering a call on Victim's phone was "near Old Gentilly, Chef area, and Michoud," the closest to where Victim's body was found.

After learning this information, Det. Barrere obtained Thayon's cell phone records, which confirmed the two phone calls with Victim. Det. Barrere contacted Thayon and requested that he come to police headquarters for an interview. At the interview, Thayon acknowledged seeing Victim at around 4:00 a.m. while he and Defendant were at a club, but denied any involvement in her death.

Thayon's cell phone records belied his denial. When Victim placed her 9-1-1 call, Thayon's cell phone pinged off a cell tower close to his apartment building where the attack occurred.⁶ At 6:35 a.m., Thayon's cell phone pinged off a tower

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close to the location of Victim's body. After the report of the burning car and the body was found, Thayon's phone pinged from a tower located in the direction where H.C. testified the old Jaguar was heading, the west bank.

Det. Barrere then obtained a warrant for Thayon's DNA. The DNA sample matched that found on a pair of red shorts located in Victim's vehicle. He then arrested Thayon for Victim's second-degree murder.

Based on Victim's 9-1-1 call, police knew that two men were involved in her attack and ultimate murder. One person investigated as the possible second perpetrator was Trevone Samson ("Trevone"), Thayon's brother. Trevone's cell phone records, however, reflected that one minute before Victim placed her 9-1-1 call, he was uptown around Audubon Street and Earhart Boulevard.

Defendant was then investigated as the second man since Thayon identified Defendant as being with him when he met Victim. Det. Barrere obtained Defendant's cell phone records; his cell phone was pinging off the cell tower nearest Thayon's apartment at 4:23 a.m., approximately twenty minutes before Victim's 9-1-1- call. Thereafter, Thayon's cell phone pinged off a particular tower at 6:19 a.m. and Defendant's phone pinged off a tower in the same area at 6:34 a.m. The proximity of the two cell phones continued. Thayon's cell phone pinged off a west bank tower at 7:38 a.m. and Defendant's cell phone pinged off a tower nearby at 7:49 a.m.⁷

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Following Thayon's arrest, Det. Barrere obtained his cell phone. Data from the phone revealed a series of texts between Thayon and Defendant in the...