State v. Wells

• Court: Court of Appeal of Louisiana
• Writing for the Court: PAUL A. BONIN, Judge.
• Citation: State v. Wells, 156 So.3d 150 (La. App. 2014)
• Decision Date: 11 July 2014
• Docket Number: No. 2011–KA–0744.,2011–KA–0744.
• Parties: STATE of Louisiana v. Christopher J. WELLS.

156 So.3d 150

STATE of Louisiana

v.Christopher J. WELLS.

No. 2011–KA–0744.

Court of Appeal of Louisiana, Fourth Circuit.

July 11, 2014.

Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.

William M. Sothern, Law Offices of William M. Sothern, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).

Opinion

PAUL A. BONIN, Judge.

Christopher Wells shot and killed Brandon “Big Herb” McCue. Charged with second degree murder, Mr. Wells claimed before the jury that he acted in self-defense. A unanimous jury convicted him of manslaughter, an authorized responsive verdict. The trial judge imposed a sentence of twenty-five years. Mr. Wells appeals both his conviction and his sentence. He assigns twenty-seven errors.

At the outset of our discussion, we importantly emphasize that we do not resolve the issues presented in this appeal under the provisions of Louisiana's “stand-your-ground” law. See La. R.S. 14:20 C. We do, however, decide the matter on a reversible error in the instructions given to the jury, which instructions permitted the jury to consider the possibility of retreat by Mr. Wells as a factor in determining whether Mr. Wells had a reasonable belief that deadly force was reasonable and apparently necessary to prevent his killing by Big Herb McCue. See La. R.S. 14:20 D.

Turning to the specific assignments of error which we now consider, we first understand Mr. Wells to seek a Jackson v. Virginia review for sufficiency of evidence on his argument that the prosecution did not discharge its obligation to prove beyond a reasonable doubt that Mr. Wells did not act in self-defense.¹ We consider this claim first because Mr. Wells would be entitled to an acquittal if the evidence is insufficient to sustain a guilty verdict. We have reviewed all the evidence under the Jackson v. Virginia standard and are satisfied that any rational trier of fact considering all the evidence in the light most favorable to the prosecution could find beyond a reasonable doubt that Mr. Wells did not act in self-defense.

We next consider the central and recurring issue in his appeal which relates to whether Mr. Wells was entitled to have the jury decide his justification defense after an instruction that it was not to consider the possibility or opportunity on his part to retreat. Mr. Wells particularly objects² to the trial judge's jury instructions, wherein she permitted the jury to consider the opportunity to retreat as a factor in assessing whether the killing of Mr. McCue was necessary for Mr. Wells to preserve his own life; Mr. Wells characterizes the instruction as effectively imposing upon him a “duty to retreat” in order to benefit from the justification defense. Importantly, our finding that the guilty verdict comports with the minimum necessary for due process does not foreclose however our finding that a complained-of jury instruction was erroneous, prejudicial, and not unimportant in relation to everything else that the jury considered as revealed in the record. And, in this case, we further find that the trial judge erroneously instructed the jury that it could consider the possibility of the defendant's retreat in assessing his claim that the killing of Big Herb was necessary to save his own life. Because we also find that there is a reasonable likelihood that the jury applied the erroneous instruction in a way that was prejudicial to Mr. Wells' defense of justification and that the prosecution failed in its burden to show that the jury's verdict was beyond a reasonable doubt unattributable to the error, we conclude that the error is not harmless. Thus, we reverse the conviction and sentence and remand this matter for a new trial.³

We explain our decision in greater detail in the following Parts.

I

In this Part we set out first the unchallenged facts and then turn to a summary of the testimony of the witnesses at trial. Because, as we shall shortly explain, this case is rife with factual disputes, contradictions, discrepancies, and inconsistencies, we begin our discussion with those factual matters about which there is no dispute or challenge.

A

There is no dispute that Big Herb⁴ was killed by Mr. Wells. The shooting occurred in the parking area of the trailer park on Chef Menteur Highway where Big Herb lived. The coroner's autopsy established that Big Herb suffered four close range (i.e., within four feet), frontal entry gunshot wounds, which caused massive internal bleeding. The mortal wound pierced his central left chest, heart, diaphragm, liver, right kidney, and right adrenal gland. The coroner recovered two bullets during the autopsy. Additional chemical testing revealed marijuana residue in Big Herb's blood.

At the scene of the shooting police investigators recovered four spent bullet casings, three from a .380 caliber firearm—found near the decedent's left arm—and the other from a .40 caliber weapon. They also recovered one 9mm bullet, one .40 caliber cartridge case, a clip for a semiautomatic weapon, a Days Inn Hotel key, a black shirt, a camouflage vest, and a cell phone. The investigators matched the two .380 caliber bullets collected from the autopsy with the Highpoint .380 caliber semiautomatic pistol which Mr. Wells admittedly owned and used in the shooting, and which the police confiscated from his house. As a result of a court-authorized search of Mr. Wells' car, the investigators located and confiscated one Bryco Arms Jennings 9mm handgun, which had one live round of ammunition chambered and four live rounds of ammunition in the magazine. The gun was wedged between the driver's seat and the center console of Mr. Wells' vehicle. The 9mm handgun belonged to Big Herb and was in his possession at the time of the shooting.

At the time of the shooting, the two men, Big Herb and Mr. Wells, were not alone. Alton “Pound” McCue, the decedent's brother, was definitely present as was Derrick Richard, who had accompanied Mr. Wells to the trailer park. Pound testified at the trial; Mr. Richard did not.⁵

After the shooting, the defendant grabbed Big Herb's gun and drove away; most likely Mr. Richard was in the car with him. Because Mr. Wells had lived with the McCue family some years before, there was no question of Pound's identification of him to the police. The police arrested Mr. Wells on the evening of the day of the killing, and, following advisement of his rights under Miranda , Mr. Wells made a statement in which he admitted to killing Big Herb.

B

We now turn to consider the conflicting testimony of the trial witnesses.⁶ We first note, however, that there may well have been additional witnesses at the scene of the shooting, but their presence or existence is disputed. John Hooks, corroborated by Pound, testified that he was present, but Mr. Wells disputes that. Similarly, Pound and Mr. Hooks testified that a man called “Cash” was present, which Mr. Wells also disputes.⁷ Here, in any event, we will limit our discussion to the testimony of Pound, Mr. Wells, and Mr. Hooks. We particularly focus on their testimony as it illuminates the issue of self-defense.

We start with Pound's testimony. Pound testified that he went to the trailer park on Chef Menteur Highway to visit his friend, Jeremiah, who along with John Hooks, “Cash” and Big Herb were there listening to music and smoking marijuana. Pound also saw the defendant there. He referred to the defendant as a friend. According to Pound, on the day of the shooting, Mr. Wells first came to the trailer park to buy marijuana from Big Herb. Big Herb told Mr. Wells that he did not have any, so the defendant drove away.

Pound further testified that the defendant returned to the trailer park a short time later, this time accompanied by Derrick Richard. The defendant parked his Impala in front of Big Herb's Suburban. The defendant and Mr. Richard approached Big Herb, who was seated in his Suburban. Mr. Wells asked Big Herb about a gun that belonged to Mr. Wells' friend, and as he did so, the defendant apparently noticed that Big Herb had a 9mm gun in the Suburban. Pound stated that the defendant asked Big Herb why he needed a gun, to which Big Herb replied, “for protection.” The defendant kept asking the same question, trying, according to Pound, to provoke Big Herb and to get the weapon away from him. When Big Herb stepped out of the Suburban, the defendant returned to his vehicle and took a swig of vodka as he retrieved his gun from the back seat of his car.

The two continued to argue, and then, according to Pound, the defendant shot the victim. Pound testified that Big Herb never threatened or pointed his gun at the defendant. When Pound heard the second of four gunshots, he ran home.

Pound admitted that he had been accepted into the district attorney's Diversion Program for possession of marijuana third offense, a felony. That action occurred after his brother's murder and before he testified at trial. Pound denied being offered a deal for his trial testimony.⁸

We momentarily digress to point out that the defense was first informed on the day of the trial that Pound was going to testify that Big Herb was in possession of a gun and was in fact holding, although not pointing, a gun at the time. Mr. Wells' defense counsel expressed surprise because such information, critical to the defense of justification, had not been previously disclosed by the prosecution. Pound had not mentioned Big Herb's gun to the police in the statements he gave to investigators. The record reveals that Pound told the prosecutors about Big Herb's weapon less than three months after the shooting but the prosecutors withheld this information from the defense for more than a year and a half. During cross-examination, Pound explained that he never told the police about the gun because the police never asked him about one.

John Hooks testified that he...