State v. Wells
| Decision Date | 13 April 2016 |
| Docket Number | No. 2011–KA–0744.,2011–KA–0744. |
| Citation | 191 So.3d 1127 |
| Parties | STATE of Louisiana v. Christopher J. WELLS. |
| Court | Court of Appeal of Louisiana — District of US |
191 So.3d 1127
STATE of Louisiana
v.
Christopher J. WELLS.
No. 2011–KA–0744.
Court of Appeal of Louisiana, Fourth Circuit.
April 13, 2016.
Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Matthew C. Kirkham, Assistant District Attorneys, New Orleans, LA, for Appellee.
William M. Sothern, Law Offices of William M. Sothern, New Orleans, LA, for Appellant.
(Court composed of JUDGE PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).
(ON REMAND FROM LOUISIANA SUPREME COURT)
PAUL A. BONIN, Judge.
Rejecting his claim of self-defense in the killing of Brandon McCue, the jury found Christopher Wells guilty of manslaughter, a verdict which was responsive to the charge of second-degree murder. On his appeal to us, we found that under the well-known Jackson v. Virginia1 standard the evidence was sufficient to support a finding by the jury of his guilty beyond a reasonable doubt, but we nonetheless reversed his conviction and ordered a new trial because of instructional error. See State v. Wells, 11–0744 (La.App. 4 Cir. 7/11/14), 156 So.3d 150 (Landrieu, J., dissenting).2 At that time we pretermitted consideration of his remaining twenty-two assignments of error. Id., p. 3, 156 So.3d at 153, n. 3.
On the prosecution's application, the Supreme Court granted a writ of certiorari. See State v. Wells, 14–1701 (La.4/17/15), 168 So.3d 389. We were then reversed by the Supreme Court. See State v. Wells, 14–1701 (La.12/8/15), ––– So.3d ––––, 2015 WL 8225228. The Supreme Court remanded the appeal to us for consideration and disposition of the theretofore pretermitted assignments of error. Id., p. 8. ––– So.3d at ––– –.
Following remand, we invited the parties to the appeal to refresh their briefing with new authorities. We now decide the outstanding assignments not already disposed of by the Supreme Court's opinion. We generally cluster these assignments into four categories.
The first category involves Mr. Wells' substantial complaints about possible Brady and Giglio violations. We have concluded that the proper disposition of these complaints is to defer them to post-conviction proceedings.
The second category involves claims of instructional errors, which claims were not disposed of in our original opinion. We do not find any reversible error in the jury instructions.
The third category includes several evidentiary rulings. We have subjected all of those rulings to review under an abuse-of-discretion standard. And we decide that
some of the rulings were not erroneous and others, which were erroneous, do not require reversal.
The fourth category addresses five remaining and unrelated assignments. The first is Mr. Wells' claim that a conflict of interest existed, demonstrated by the representation of both Mr. Wells and the witnesses testifying against him by the Orleans Public Defenders' Office. Because Mr. Wells did not object and his representation was not compromised, we find no actual conflict existed. Second, Mr. Wells argues his right to confrontation was violated by the introduction of evidence not authored or conducted by the testifying witnesses. Under Crawford and its progeny, we do not find the evidence testimonial and thus no confrontation violation occurred. Third, Mr. Wells claims this court, in a prior order, erred by failing to consider certain statements from jurors about misconduct and misunderstandings affecting the verdict. Because we find our previous decision correct, we do not overturn it.
Next, Mr. Wells claims that his sentence of twenty-five years at hard labor is excessive and violates his constitutional protection against an excessive sentence. We have reviewed this assignment under the particularized Dorthey abuse-of-discretion standard and conclude that the sentence is not excessive. The final assignment is Mr. Wells' objection that the record on appeal is incomplete. We have considered that complaint de novo because it was first made here. We find that the record is sufficiently complete to ensure that Mr. Wells' right to judicial review has been adequately vindicated.
Accordingly, considering the earlier dispositions of his assignments of error and the lack of any reversible error identified in this direct appeal, we affirm Mr. Wells' manslaughter conviction in the killing of Brandon McCue as well as the sentence imposed. We explain our decision in greater detail below.
I
In this Part, we first briefly describe the pertinent facts. For a fuller discussion, see State v. Wells, 14–1701 (La.12/8/15), ––– So.3d ––––, 2015 WL 8225228 ; State v. Wells, 11–0744 (La.App. 4 Cir. 7/11/14), 156 So.3d 150.
Mr. Wells does not dispute that he shot and killed the decedent, Brandon McCue, colloquially known as “Big Herb.” He also does not dispute that he went to the trailer park on Chef Menteur Highway with the intention of buying marijuana from Big Herb. Mr. Wells drove twice to the trailer park; the first time he was alone, and the second time he was accompanied by Derrick Richard, who did not testify at trial.
Big Herb's brother, Alton McCue, known as “Pound,” was present at the time of the shooting. John Hooks Jr. testified that he was also present at the time, although his presence is disputed by Mr. Wells but corroborated by Pound. When Mr. Wells arrived the second time, he engaged in a discussion with Big Herb, although the content of that discussion is in dispute. At the time of the discussion between the two men and at the time of the shooting, Big Herb was in possession of a 9mm firearm.
After the shooting, Mr. Wells grabbed Big Herb's gun and drove away. Because Mr. Wells had lived with the McCue family for a period of time, Pound identified him as the shooter to police. He was apprehended later that evening.
II
In this Part, we set forth Mr. Wells' several claims which allege violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),
Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Napue v. People of State of Ill., 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
A
Mr. Wells' contends that the prosecution in this case failed to timely turn over material evidence favorable to his defense. Specifically, Mr. Wells claims the prosecution withheld (1) Pound's statement that Big Herb was in possession of a gun at the time of the shooting; (2) evidence that Big Herb fired his gun at the time; (3) Pound's statement that Mr. Wells repeatedly asked if Big Herb was going to shoot him; (4) the pathologist's statement that Big Herb's injuries could be consistent with Mr. Wells' self-defense claim; (5) evidence that John Hooks had been coerced into testifying; and (6) evidence that someone had a contract out on Big Herb's life.
By way of background, the record reflects that throughout the year preceding trial, the defense made numerous requests for the prosecution to comply with its Brady obligations. On each occasion, the trial judge ordered the prosecution to review its file and make the appropriate disclosures.
On the first day of trial, but before voir dire, the prosecution provided the defense with three Brady notices. The first notice was that the pathologist, Dr. Paul McGarry, had relayed to the prosecutor that Big Herb's injuries could be consistent with Mr. Wells' claim of self-defense. Dr. McGarry had apparently revealed this information only the evening before. The second and third notices regarded the statements of Pound, Big Herb's brother, and the prosecution's main eyewitness to the shooting.3 Pound had informed the prosecution that, before Mr. Wells arrived on the scene, he, Big Herb, and some of their friends had been smoking marijuana. Pound also stated that he and Mr. Wells had previously been involved in the use and sale of marijuana.
Pound also informed the prosecution that, immediately before the shooting, Mr. Wells and Big Herb were arguing about a 9mm firearm in Big Herb's possession. Upon hearing that Big Herb was in fact in possession of a gun at the time of the shooting, defense counsel expressed surprise that the prosecution would have waited to reveal this evidence until the day before trial. Pound, however, had apparently given his statement about the 9mm only the day before. The prosecution appeared to acknowledge that Pound had not mentioned a gun in prior statements, but only because he was not asked. Notably, defense counsel argued that, if Pound had in fact previously stated that Big Herb was in possession of a gun at the time, “we don't just have suppression for a few days, we have suppression for two years.” The trial judge found the allegation “speculative[ ]” and found that because there was no proof that Pound revealed this information to the prosecution at an earlier time, there was nothing for her to rule on.
At that point, defense counsel reurged its motion to compel the prosecution to comply with its obligations under Brady and its progeny, especially in light of the several different prosecutors who had presided over the case at one time or another. The trial judge asked the prosecutor if he was in compliance, to which he replied in the affirmative, confident that he had reviewed the entirety of the file. The trial judge also instructed the prosecutor to review the detective's file for possible Brady material.
On the third day of trial, after Pound and Mrs. McCue had testified, the prosecutor
revealed that, upon his recent review of notes from previous interviews, Pound had in fact stated on two prior occasions that Big Herb was in possession of a gun at the time of the shooting. The interviews occurred in 2008 and 2009, and had been conducted by prior prosecutors. Defense counsel moved for a mistrial, citing several previous Brady requests and at least one instance where the defense specifically requested any evidence that Big Herb possessed a gun. The trial judge stated that “the Brady violation is there” and agreed that the information...
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