State Of Louisiana VS D'Anthony Norman Ford
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NOT DESIGNATED FOR PUBLICAnON STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 KA 0655 STATE OF LOUISIANA YS D ANTHONY NORMAN FORD JUDGMENT RENDERED NOY I 4 2008 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT DOCKET NUMBER 06 06 0180 SECTION 6 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA THE HONORABLE RICHARD Douglas District CHIP MOORE JUDGE Attorneys for P Moreau State of Louisiana Attorney Kurt Wall Allison Miller Rutzen Assistant District Baton Rouge Attorneys LA Gary S Austin Los Angeles CA Attorneys for Defendant Appellant D AnthonyN Ford Winston Kevin McKesson Beverly Hills CA Jarvis M Antwine Baton Rouge LA PETTIGREW McDONALD AND HUGHES JJ BEFORE t 9 7 McDONALD J The D defendant indictment with second murder count found guilty charged as as violation of La R S 14 34 motion for trial new not one court ordered that the sentence imposed on 14 30 1 After one on trial and one was a and La sentenced The defendant The 14 27 to was aggravated battery denied the defendant life a s at hard imprisonment of suspension or two of court at hard labor count R S by jury the defendant guilty The trial probation parole sentence count attempted second degree imprisonment and to ten years count and to count two The defendant labor without the benefit of charged by grand jury RS guilty to count as was count one degree murder plea of a Ford Norman violations of La two defendant entered Anthony sentence to The trial as to count two be served as consecutively to the appeals raising the following now assignments of elTor The of Officer testimony Kevin admitted since the witness Adcock qualified testimony concerning gunshot residue analysis 2 The trial defendant court s s denial offer expert not to expert opinion violated was of improperly was the constitutional consideration of due process and or fundamental fairness 3 The trial failing violated the defendant s due process rights by grant a limited continuance to present his rebuttal court to expert 4 The evidence defendant produced guilty trial at of second was insufficient degree murder beyond to find a the reasonable doubt For the following reasons we affirm the convictions and the sentences STATEMENT OF FACTS On or about May 11 2006 at a Chase Bank Louisiana Marcus verbal and physical altercation with Jeffrey Young from school Washington the victim on Young and others later as to count two appeared 2 Plank Road in Baton at someone Rouge involved in was a Washington knew Washington s residence to continue the though no one was later and complexion gray Montero fired More Sport driven away from the a described large handgun gunshots having as he as ran no one was fired were drove skin bright a toward and entered fired before the Montero were As before area gunshots Young and others entered their vehicle and individual an dreds altercation ensued and physical struck before Moments away A encounter struck Sport a was this round of during gunfire On the or about right lane on one 2006 at identified proceeded through the red traffic light made Acadian the defendant bullets began striking the Chevrolet Impala stepped the bullets and died from massive internal wounds a After several witnesses suspect in both shootings in his hair at the time of his were s as by to A passenger of the Montero turn out The defendant the vehicle in the stopped door Ryan As Wilson made of his vehicle Francis was hemorrhage due was driven in Sport positioned gray Montero to questioned the defendant The defendant traveling Impala being the defendant left opened the driver turn on Thruway a as a while a m Ryan Francis the victim Thruway intersection gun to the driver middle of the intersection and 2 50 2006 Chevrolet Washington approached in the left lane at the Acadian a a Michael Brown occupied by and Marcus Sport passed approximately Winbourne Avenue Darrell Wilson and count 3 May later arrested a At this struck by right point two of multiple gunshot was developed as He had dreadlocks arrest ASSIGNMENT OF ERROR NUMBER FOUR In the fourth assignment of error the defendant contends that the evidence in support of the second denies degree murder conviction is insufficient shooting Ryan Francis inconsistencies between the The defendant The defendant contends that there testimony and pretrial occupants of the vehicle in which the victim 3 was statements riding at the were several presented by the time of his death The defendant the Montero specifically contends that Wilson not the Sport driver had the firearm that The defendant fUliher notes that while court as the shooter in his recorded shooter exited the Montero defendant further statement to witnesses Thus will focus we murder conviction detendant before this Louisiana the evidence court Supreme enacting other v events presented controlled that occurred in La CCr P art 821 that the State May on La overall v the contest I 2006 support of the second degree raised the by sufficiency R S support 443 U S a 307 conviction 99 S Ct appellate review adopted by was sufficient 12 4 La 438 15 to convince a proved beyond 907 So 2d 05 the 278 a 2002 1492 p every 5 La light rational trier of fact a reasonable doubt 8 When reasonable st Cir App 61 Legislature analyzing provides that the trier of fact evidence excludes Graham to is whether the evidence when viewed in the prosecution circumstantial evidence innocence not by the standard enunciated by the United Virginia v That standard of Brown 2003 0897 p 22 satisfied that the driver touched assignments of error COUli in Jackson to the The multiple inconsistencies rendered the that all of the elements of the crime had been State driver s door The defendant does the the victim the defendant in will examine the evidence of this conviction for court is 979 favorable to kill he indicated that the not the police passenger of a Although this is the fourth assignment of elTor appellate L Ed 2d 560 most on tell the reviewing the sufficiency of the evidence In in on addressing the States not testimony incredible aggravated battery conviction based used police the Sport from the back door that Brown did was Washington identified The defendant concludes that the firearm State notes initially stated that must be hypothesis of 14 2 03 845 So 2d 416 420 The trier of fact is free of any witness State v to accept or reject in whole Richardson 459 So 2d 3 4 38 or in La part the testimony App 1st Cir 1984 Moreover where there resolution of which witnesses Richardson 459 the trier of fact defense that 2d So 1st Cir to as same the driver turn Acadian travel on 91 I and Wilson across s door and Acadian transported the victim defendant a a him as Wilson they had went to elementary rifle with saw left looking the driver whom he from him and as were turn long skinny a stopped the vehicle As Wilson made a right Wilson observed the defendant in fired The 9 telephone 1 to Baton Rouge As Wilson continued to call took General place at 2 56 Hospital where he a m was hospital Wilson told Officer Michael Elsbury of the Rouge Police Department where was specified that street testified that the victim stated that he had been shot Wilson called Thruway reported the incident defendant La 6 it to the driver passed firing gunshots toward the Impala At the 510 So 2d 55 Wilson further testified leaning back with the firearm were the there is another Sport its passengers Wilson stepped out the shots guilty unless immediately recognized the sufficiency presented by Impala specifically the defendant made Wilson not its innocence Moten v firearm and neighborhood Thruway pronounced dead Baton to milTor liew reat a was of the credibility 1987 Wilson described the firearm opened his raised up the defendant lived According on State 26 La view the driver and clearly school with him balTel hypothesis of and the defendant is The front passenger grown up in the identified the the matters involves circumstantial evidence and up to the side of the Montero Impala able a case the driver of the Chevrolet that the front passenger was When reasonable doubt a the evidence weight of writ denied 5 4 So 2d they pulled into the at 38 hypothesis falls Darrell Wilson after of the one determination of the a upon reasonably rejects hypothesis that raises App conflicting testimony about factual depends matter is the is the shooter the shooting occulTed and described the vehicle Hours after the incident on 5 the same date stated that the being driven by the Wilson identified the defendant examination Wilson did recorded the shooter in as during his recorded not state that a Wilson statement statement to was the shooter four foot diameter Marcus straight was Officer Elsbury gun to the driver the During he knew the defendant since All of the see only observed him during quick look the the date of the offense Sport and that collected eleven 7 62 Washington described the shooter Washington that cross casings were x 39 shell collected within area holding it with both hands police on during noted the driver of the Montero scene He stated that he couldn t up police consistently stated that casings assault rifle type from the a the passed the passenger elementary school that the defendant the defendant As photographic lineup a a hair dreds having sticking the gun but noted that the shooter was unable identify to He retracted his the vehicle shooter exited as from the shooter previous the back was as he statement to the Washington was however certain that the shooter had dreadlocks in his hair Michael Brown the other Montero described Sport brandished as fire opened Impala fireann before a a Kevin Adcock used The defendant examination was a shooter passenger ofthe whom he the driver projectile the an s identification kit to test the hands only individual to test positive During cross the test was not conclusive expert in firearms examination determined that collected floorboard of the Montero was Brown also the shooter as custody with the defendant for gunshot Corporal Adcock confirmed that Charles Watson Jr spent bullet to a photographic lineup conducted after the shooting incident of the defendant and others taken into that passing it Brown identified the defendant in court Corporal jacket testified that chubby with dreadlocks in his hair The driver exited the vehicle and chose the defendant in residue passenger by Corporal Sport was Adcock from the fired from the removed from the victim 6 s body same rear driver weapon as a s a side bullet Watson determined that the eleven 7 62 x 39 shell fired from the recovered defendant AK 47 same s mother the telephone call radio defendant to driven A fifty caliber by the defendant Desert cellular s telephone records telephone used for the tower Defense witness Detective Sheriffs Office testified that reported her firearm Eagle registered in the was There at 2 56 on DalTell an 2006 inbound 13 May 2006 Thruway location reception of that telephone Michelli March 25 was a m The intersection of Winbourne Avenue and North Acadian mother of the East call Parish Baton Brendia Ford the defendant one of her relatives had the firearm since she stated that she had left it in her unlocked vehicle described ask as a silver questions Ford abruptly walked more filed the report and did recovered A witnesses State v utility vehicle not The defendant did reviewing or court is have any not called upon 600 So 2d 1319 324 render the evidence accepted by Watson also determined that a 7 62 x weapon to decide whether La to 1992 the to Michelli ever being The fact that the record the trier of fact insufficient casing it believes the weight of the evidence testimony accepted by 39 shell attempting by the trial testify whether the conviction is contrary Smith was away and entered her home not contains evidence that conflicts with the not As the detective knowledge of the at s At the time of the AK 47 Romanian assault rifle stolen report Detective Michelli asked Ford if she thought Detective Michelli all frequency engineer for Sprint Nextel Corporation the defendant s cellular cOlTesponded with the cell scene were Brendia Ford s name a I type firearm from the vehicle Timothy Piper examined casings assault rifle type collected from the collected from the a trier of fact does State scene v of the Azema May II shooting was fired trom the same firearm as the eleven shell casings collected trom the scene of the May 13 2006 shooting Further a fifty caliber cartridge case regarding the May II 2006 shooting incident was fired from the fifty caliber Desert Eagle tirearm recovered trom the vehicle driven by the detendant 2006 7 633 So 2d 723 727 La 637 So 2d 460 State v The defendant the location of the alTest 1st Cir 1993 App Quinn s cellular the defendant 479 So 2d 592 596 telephone records at the time the shooting driving was a vehicle that the witnesses described the offense driver and shooter clear view a he was Brown identified the defendant Positive identification conviction 6 63 shot to State In this death most s favorable For the above hair to was reasons the question the shooter one they together grew up as Although Washington during a the could photographic lineup and in witness may be sufficient La provided by the time of his st App Cir 612 to 02 support assignment as 822 So 2d was the shooter and the distinct the third passenger alTest a Viewing was consistent all of the evidence in a any rational trier of fact could have found prosecution the shooter and this shooter at the time of certain that the shooter had dread locked hair by only hair s at of the description positively identified the defendant identified the defendant positively that the defendant as as At the time of his of the three passengers present when the victim two case description of the shooter light shooting occurred Davis 2001 3033 p 3 v with the defendant and 985 show that he could have been at being driven by the as La 4 29 94 1st Cir App vehicle that matched the the incident in during identify the shooter comi La Wilson knew the defendant very well Further Wilson had not writ denied 94 014 therefore guilty of second degree murder of elTor is without merit ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO In the first and evidence second assignments of regarding the gunshot residue improper First the defendant contends of the Baton testimony to on prove that the test results the defendant argues that testing performed in this that State witness Rouge City Police Department gunshot residue error was case was Corporal Kevin Adcock unqualified to offer expert The defendant further contends that the State failed were reliable noting 8 that the trial court did not make a preliminary determination as to the results of the to as whether v 579 of prejudicial satisfy the 509 2786 2795 2796 125 L Ed 2d 469 1122 La The defendant concludes that the 993 test and State 993 results constituted elTor Foret the Louisiana v considering the admissibility first testify Merrell Dow Pharmaceuticals Inc v Corporal Adcock s testimony and the In State is to So 2d 1116 628 admission qualified 113 S Ct 592 93 Foret was The defendant argues that the State failed to test reliability requirements of Daubert US Corporal Adcock make a preliminary of Supreme Court held that where a proposed expert testimony the trial of whether the assessment trial court court must reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly 628 So 2d at 122 quoting Gunshot residue detection Daubert testing is La testing as a on the as an tests cross the trial court in ground asserted expert witness the field of a new in this to the 592 93 at See State courts if a person has was Boyer v have led over one examination that he not was training in gunshot residue that the that the test was not instructions in conclusive conducting the lab for further testing an expert courts test had not been s 9 a motion for was an firearm new trial expert in he had conducted such he also testified examined by simply an suggested during specialized expert and followed the kit Adcock confirmed that the kit had The defense attorney have 406 So 2d 143 he did not have any Adcock testified that he test at 2796 State did not offer Adcock However as S Ct recently discharged to believe that Adcock hundred times Foret accepted gunshot residue denying the defendant not 113 Louisiana science assignment of error the The jury facts in issue gunshot residue analysis Adcock testified that approximately sent to a 509 U S not technique for determining by applied Following Boyer trial 981 As noted be in this field historically recognized experts 146 47 can not been that the presence of gunshot residue could simply mean that the that fired was refute such assess the weight of the may not elTor gun that in this same the trial by to was Louisiana 508 U S 275 agree with the trial court defendant s guilt such and results of the Assignments to find were La s a a trial subject properly clear abuse of error that may harmless to 279 s 113 S Ct 2078 2081 conclusion that there that any gunshot elTor residue of error numbers to one was guilty the was verdict 124 L Ed 2d 182 is error actually Sullivan elTor 1993 v We overwhelming evidence of the in the admission of the test If verdict and the jury would whether the surely unattributable error 706 So 2d 4 9 422 2 2 97 support the jury could jury result if it had observed the excluded evidence any this trial in rendered the structural but rather not The determination is based upon harmless court Even if we 96 2060 p 5 the evidence is otherwise sufficient have reached the not the defendant and thus is Hongo v is regard gun recently fired and Adcock could was evidence at issue prejudiced have See State analysis a As concluded suggestions discretion any or touched or in the presence of a was person harmless testimony regarding beyond a reasonable doubt and two lack merit ASSIGNMENT OF ERROR NUMBER THREE In the third assignment of violated his due process an expert witness 2007 the trial rights by failing Noting that the court a motion for it has commenced styled the grant a limited continuance State rested its case August 19 2007 in chief on was a recess La court may not C Cr P temporary adjournment of a trial art 708 August the 17 potential it was more hearing after Regardless of how the motion was consider the motion 10 present cumulative made after the trial commenced a to court The defendant contends that testimony would have been unique and Since the motion properly to rejected the motion after being informed that defense witness would be available the potential expert the defendant argues that the trial error as or though it had been properly A motion for denominated motion for continuance a Louisiana for requirements requirements State Code of v for by the continuance a 838 La article Procedure 709 as a 983 forth sets witnesses locate to standards same Warren 437 So 2d 836 Criminal motion a is evaluated recess the These are Facts to which the absent witness is 1 the materiality testimony Facts and circumstances will be available 3 and at the trial the witness 2 of the expected to testify showing the necessity for the presence of Facts at the time due showing to showing a probability that the witness which the trial is defelTed and diligence used in an effort to procure attendance of the witness Louisiana Code of Criminal Procedure article 712 commits disturbed Gaskin 793 on 798 other sound discretion of the trial to the continuance on appeal absent 412 So 2d 1007 La grounds bv While La C CrP where the 10 1 st Cir App 707 occurrences v judge before this s 1982 writ denied Celestine provides for that for review 612 So 2d 77 Simon v La 1 26 96 La opportunity no State s to motion for prepare a 67 to ovelTuled So 2d 896 be in writing arose necessary a v 607 So 2d written motion continuance is 369 So 2d Parsley v State 1993 motion for continuance a denial of the defendant court will not be specific prejudice See also State 95 1393 ruling and his motion for allegedly made the continuance unexpectedly and the defendant had the trial of abuse and 2 La 992 State art showing a judge a 292 294 properly n l La 1979 In the instant of the defendant prejudiced s case residue evidence for by find no There is motion As noted defense counsel we the State over a year abuse of discretion in the trial no specific showing the defendant prior to the trial simply stated that the defense 11 s was In court s denial that the defendant aware of the moving for was gunshot a recess the gunshot residue expert would not be available until the weekend would rebut State witness did not state testify testimony about the other for the record facts showing the to materiality of presence of the witness at the trial reiterate that Corporal The defense counsel added that the expert Adcock gun The defense counsel which the absent witness the as was was expected testimony and the necessity required by Article subjected to intense regarding the gunshot residue testing This assignment CONVICTIONS AND SENTENCES AFFIRMED 12 1 709 cross to for the We further examination of elTor lacks merit
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