131 So. 3d 172
La. Ct. App.2013Background
- At ~4:00 A.M. on April 19, 2010 Dayshawn Brown was shot; he drove himself to the hospital and later identified two men (Norah and Watts) in suggestive hospital "show-up" identifications.
- Earlier (~3:15 A.M.) there was a separate shooting at The Duck Off; 9-1-1 callers reported a fleeing red Monte Carlo and the shooter’s clothing; officers later observed and pursued a red Monte Carlo and arrested the defendants at an apartment.
- Police recovered white clothing from the car/apartment that matched eyewitness descriptions and the defendants made recorded jail calls after incarceration.
- At trial both defendants were convicted of attempted second-degree murder; Norah was adjudicated a fourth-felony habitual offender and sentenced to 49 3/4 years (three months below the 50-year statutory maximum-for-first-offense floor applied as a minimum under the habitual-offender statute).
- Defendants appealed, raising: incompleteness of the transcript (missing portion of officer testimony), suppression of the hospital show-up IDs, Confrontation Clause challenges to 9-1-1 and jail calls (and Bruton claim), admissibility of evidence regarding the Duck Off shooting (La. C.E. art. 404(B)(1)), authentication of jail calls (La. C.E. art. 901), prosecutor misconduct in closing, and excessiveness of Norah’s sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Incomplete record (missing portion of Officer Chenevert’s testimony) | State: record sufficiently complete for review; preserved testimony substantial | Norah/Watts: missing testimony prejudices appellate review and requires remand/new trial | Material portion was limited; defendants failed to show reasonable likelihood of prejudice; no remand required |
| Suppression of hospital show-up IDs | State: IDs reliable despite suggestiveness because of Biggers factors (viewing conditions, description, short delay, witness certainty) | Defendants: hospital one-on-one show-ups and police comments were unduly suggestive and violated due process | Procedure was suggestive but not so likely to produce misidentification; trial court did not abuse discretion in denying suppression |
| Confrontation Clause — 9-1-1 calls about Duck Off shooting | State: 9-1-1 statements were made to obtain emergency aid and are non-testimonial | Defendants: callers identified vehicle/clothes and should have testified; statements are testimonial | Calls were non-testimonial under Davis/Bryant (ongoing emergency, informal, primary purpose to get police aid); admission did not violate Confrontation Clause |
| Confrontation Clause / Bruton — recorded jailhouse calls (Watts implicating Norah) | State: inmate calls are non-testimonial social calls and admissible; not Bruton testimonial confessions | Norah: Watts’ recorded admissions implicated Norah and required confrontation protections / Bruton exclusion | Calls were non-testimonial (private, not police interrogation; primary purpose not to produce trial evidence); Bruton protections did not apply |
| Admissibility of Duck Off evidence (9-1-1 + officer testimony) under La. C.E. art. 404(B)(1) | State: evidence about the other shooting was part of the continuous narrative (res gestae) and necessary to explain police conduct, pursuit, motive, and context | Defendants: unrelated bad-act evidence prejudicial and should be excluded | Evidence admitted as integral to the transaction; probative value outweighed any prejudicial effect; no abuse of discretion |
| Authentication of jail calls & transcripts (La. C.E. art. 901) | State: telecommunications supervisor testified about recording/archiving and compared transcripts to recordings; folder numbers tie calls to inmates | Defendants: insufficient voice ID and potential for folder-number misuse; transcripts not verified | Authentication was sufficient to admit recordings and transcripts; challenges to weight/accuracy were for the jury; no abuse of discretion |
| Prosecutor’s closing rebuttal / mistrial | Defendants: prosecutor made inflammatory/improper remarks (threat to witness, calling defendants "killers") requiring mistrial | State: remarks were improper but judge admonished counsel; cure by admonition adequate | Remarks improper; trial court admonished prosecutor on the record and denied mistrial — not an abuse of discretion absent convincing prejudice |
| Excessive sentence (Norah) | Norah: sentence as a fourth-felony adjudicate is excessive and should be reduced | State: habitual-offender minimum (max for first conviction or 20 years) applies; no clear and convincing evidence to rebut presumption of constitutionality | Sentence affirmed; Norah showed no clear and convincing basis to depart below the habitual-offender minimum; not constitutionally excessive |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause protects testimonial statements; testimonial defined as statements made under circumstances likely to be used at trial)
- Davis v. Washington, 547 U.S. 813 (2006) (9-1-1 statements describing ongoing emergencies are generally non-testimonial)
- Michigan v. Bryant, 131 S. Ct. 1143 (2011) (focus on the primary purpose and ongoing emergency to determine testimonial character)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (identification admissibility assessed by reliability under totality of circumstances)
- Neil v. Biggers, 409 U.S. 188 (1972) (factors for assessing reliability of a challenged identification)
- Bruton v. United States, 391 U.S. 123 (1968) (admission of a non-testifying co-defendant’s confession implicating another defendant raises Sixth Amendment concerns)
- Perry v. New Hampshire, 132 S. Ct. 716 (2012) (Due Process exclusion for eyewitness ID applies only where police conduct creates substantial likelihood of misidentification)