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Date: 04-28-2020

Case Style:


Case Number: KA -0019-0620

Judge: Kent Savoie


Plaintiff's Attorney: J. Phillip Terrell, Jr.
District Attorney
Ninth Judicial District

Catherine L. Davidson
Assistant District Attorney

Defendant's Attorney:

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In the early morning hours of December 15, 2002, Defendant drove two
accomplices to an area near the home of the victim, Jimmy Ray. Wearing masks
and carrying guns, the two accomplices broke into Ray’s home. The victim awoke
and produced a handgun but dropped it. The victim ran out of the house and the
burglars followed. The victim attempted to circle back to the house, and the other
two men shot him to death. The burglars returned to the vehicle, and Defendant
drove them away from the area.1
1 As noted in the district court’s recitation of this case’s history, action on this court’s
2006 remand orders and thus the appeal, has been long-delayed. The State concedes Defendant’s
right to proceed with the present appeal.
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find there is
an error patent concerning the legality of Defendant’s sentence for aggravated
burglary; however, the error is rendered moot by our decision to vacate
Defendant’s conviction and sentence for aggravated burglary.
In his first assignment of error, Defendant argues the evidence adduced at
trial did not support his murder conviction. Specifically, he argues that the State
failed to prove he was a principal to aggravated burglary and, thus, to second
degree murder via the felony-murder doctrine. Alternatively, he argues that the
aggravated burglary was completed before the murder took place.
He notes the general test for sufficiency claims, which is well-established:
When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
The court convicted Defendant as a principal to aggravated burglary; since
his accomplices killed the victim in the course of the burglary, the court convicted
him of second degree murder via the felony-murder doctrine. The law of
principals is stated in La.R.S. 14:24: “All persons concerned in the commission of
a crime, whether present or absent, and whether they directly commit the act
constituting the offense, aid and abet in its commission, or directly or indirectly
counsel or procure another to commit the crime, are principals.” A getaway driver
or lookout is a principal to a burglary. State v. LaGarde, 513 So.2d 396 (La.App. 4
Cir. 1987); State v. Holmes, 451 So.2d 1175 (La.App. 1 Cir. 1984).
Regarding the felony-murder rule, the supreme court has explained it as:
[A] general principle of accessorial liability [is] that when two or
more persons embark on a concerted course of action, each person
becomes responsible for not only his own acts but also for the acts of
the other, including “ ‘deviations from the common plan which are the
foreseeable consequences of carrying out the plan.’ ” State v. Smith,
98-2078, p. 7 (La.10/29/99), 748 So.2d 1139, 1143 (quoting 2 Wayne
R. LaFave and Austin Scott, Substantive Criminal Law, § 7.5, p. 212
(1986)). The rule has particular application in cases of felony murder.
Thus, a simple burglary may turn into an aggravated burglary and then
escalate further into a second degree felony murder well beyond the
original plan of the defendant or his accomplice who then
unexpectedly kills during commission of the underlying felony
offense. See, e.g., State v. McFarland, 07-0026, p. 10 (La.App. 5th
Cir.5/29/07), 960 So.2d 1142, 1148 (affirming conviction for second
degree felony murder in the course of an aggravated burglary because
“the fact that the defendant claimed he did not know [the coperpetrator] was armed does not absolve him from responsibility, as
the risk that the unauthorized entry of an inhabited dwelling may
escalate into violence and death is a foreseeable consequence of
burglary which every party to the offense must accept no matter what
he or she actually intended.”)(citing Smith, 98-2078 at 7, 748 So.2d at
State v. Smith, 07-2028, pp. 8-9 (La. 10/20/09), 23 So.3d 291, 296-97.
On appeal, Defendant argues that he was not a principal to either of the
felonies at issue. After giving a summary of the testimony, Defendant argues that
the evidence did not demonstrate that he had the requisite intent to be a principal.
However, Defendant acknowledges that his accomplices killed the victim and that
he drove the getaway vehicle to a parking lot near the scene. He notes that his
statement to police, the statement of accomplice Craig Bailey, the testimony of
accomplice Sherrod Wilson, and Wilson’s prior statements varied on a number of
The salient point is what Defendant knew about the offense the other two
apparently had planned. Wilson testified that Defendant knew a “lick” was set up
and that a “lick” could be anything from a robbery to a gang fight. However, in
context, it is highly unlikely that either Wilson or Defendant thought they were
going to a fight. According to Wilson, Defendant drove the trio on a quick
reconnaissance of the victim’s residence. They went around the block, and
Defendant stopped in a parking lot. He stayed in the vehicle while the other two
men left wearing masks and carrying guns. In his statement, Defendant claimed he
thought they were going to retrieve a stolen dog. In Bailey’s statement, the initial
intentions of Defendant and Wilson are not clear, but it appears that some sort of
unauthorized entry into victim’s home was intended. Defendant did not testify;
however, in a statement to police, he said he thought the other two men wanted to
retrieve a stolen dog.
As Defendant observes, he and the other two men recounted divergent
versions of the relevant events. As Kennerson shows, credibility is a matter for the
factfinder. “The trier of fact is free to accept or reject, in whole or in part, any
witness’s testimony.” State v. Flowers, 16-130, p. 7 (La.App. 1 Cir. 9/19/16), 204
So.3d 271, 277, writ denied, 16-1871 (La. 9/6/17), 224 So.3d 983. Ultimately, a
fact-finder’s credibility assessment will not be overturned in the absence of
manifest error. State v. James, 99-1858 (La.App. 3 Cir. 5/3/00), 761 So.2d 125,
writ denied, 00-1595 (La. 3/23/01), 787 So.2d 1010. The judge in this case was
within his discretion to discount Defendant’s statement that he was helping retrieve
a stolen dog and credit information from Wilson and Bailey that indicated a crime
was afoot. Wilson testified that he and Bailey donned masks and black clothing
while they were in the vehicle with Defendant, that Defendant knew a “lick” had
been set up, and that a “lick” meant they were going after some money or drugs.
The proceeds were to be split three ways. Bailey’s statement indicated that
Defendant was actively involved but was otherwise unclear since Bailey’s version
was apparently meant to minimize his role in the offense. This evidence was
sufficient to support a determination that Defendant intentionally participated in
the aggravated burglary as the driver and thus a principal. Since the burglary
resulted in a murder, he was likewise guilty as a principal to felony-murder.
Defendant also argues that the burglary and murder were chronologically
separate, and, therefore, the burglary could not form a basis for felony murder.
Wilson described the events leading up to the murder as follows:
Jimmie Ray recognized Craig Bailey’s voice, and he told Craig
Bailey, he say, don’t do this to me, we like brothers. So now, I’m
really confused because now I realize that he knows this guy, that he’s
for to [sic] rob or whatever, you know. So, Jimmy Ray and Craig they
start tussling, and Jimmie Ray he drops, he drops the gun. So after he
drops the gun, he break and run out the house, that’s when I pick[ed]
up the gun. And we go and follow behind ‘im. So, as we follow
behind ‘im, I fired two shots, one’s coming out the driveway, with the
40-caliber. And then I fire another shot when I enter the street. So,
after we don’t see ‘im, we turn to leave, coming back the same way
that we enter, on side’a (phonetic) the carport. So, as we turned to
leave, I hear something coming behind, so I turn[ed] around and I say,
Craig, he’s coming back. So, when I say, Craig he[’s] coming back,
that’s when Craig Bailey turn around and he shoot. He shoot a shot.
Now, I don’t know, but I’m thinking he hit the guy, Jimmie Ray, in
the leg, because Jimmie Ray fell and he crawled behind the van. Now
as he’s crawling behind the van, that’s when Craig Bailey, me and
Craig Bailey walked behind the van. So as the guy was crawling,
Craig Bailey commence to fire, so he’s steady shootin’. Now I fired
some shots. Really not knowing what Craig Bailey’s gonna do if I
don’t fire, you know, because he’s steady shootin’. So he walk up on
the guy and he shoot some more and said his gun’s empty.
Q. What happened after that?
A. After that, after that we leave, you know. We didn’t even
enter back into the house. We leave after that.
Bailey also related a version of the offense in his statement:
BY BAILEY: I, when I realized it was a pistol involved, that’s when
Sherrod ran out the room and told me, he[’s] got a pistol. And when I
seen him running of the room, I had already took off running.
BY GREEN: Okay[.]
BY GREEN: And when I took off running, I, I come out that side
door, here right on the side, and I cleared that fence, jumped it.
BY GREEN: So you went to the back of the house.
BY BAILEY: Yes sir, I’m not just saying the back, but I know it was
on that side part, and I . . . cause I jumped the, the fence, said like I
ain’t . . . I just jumped it, boom.
BY GREEN: Okay. Back into that field?
BY BAILEY: Yes sir.
BY GREEN: Jump the fence, you was in the field at the back of the
BY BAILEY: Yes sir, and I, I jumped that, that next fence, it had, ah,
BY GREEN: Where did Sherrod go?
BY BAILEY: . . . a field right there, and that’s when Sherrod was
following me at one point, and that’s when Sherrod say, man, fuck
that, I’m fixin’ to go back. I’m fixin’ to kill this nigger. He gotta
come on wit’ it, or somethin’ like that. So that’s when Sherrod went
back, and by the time he went back, I went to, not to his backyard, but
to the yard next to his yard, to the fence. And that’s when I seen the
dude comin’ outta his house, and once he was coming outta . . . I
didn’t see ‘im comin’ outta his house, but I seen ‘im going to the
driver door of that van.
BY GREEN: Umm hmm.
BY BAILEY: And when he was going to the driver door of that van,
Sherrod come back from around the house, and that’s when a shot was
fired. After a shot was fired, ‘nother shot was fired, and that’s when I
see the dude go from a stumble from there. And once the shots was
fired, I seen the dude go from a stumble, I left, Officer Green, I, I
mean I took of running, and I left. And so that’s when . . . after you
heard that shot fired and stuff, it calm for about, I say maybe five
seconds, and then that’s when you heard a commotion outside, just
bloom, bloom, bloom, bloom, bloom [sic]. Then for (interrupted)
BY GREEN: And where you was at when you heard that?
BY BAILEY: When I heard that, I was out the field headed towards
the truck, get, getting’ in the truck with Corday, tellin’ him, askin’
him, where he was, an’ and why he ain’t, he wun’t over there.
We find that the relevant events occurred as one continuous series of
actions; thus, the aggravated burglary is a factually connected underlying offense.
Bailey testified that Wilson killed the victim to silence him. Wilson blamed the
actual killing on Bailey and testified that the victim recognized Bailey’s voice.
Bailey told the victim that he “shouldn’t have called my name.” Viewed as a
killing to prevent future testimony, the burglary and the murder were certainly
connected; thus, the murder conviction stands.
For the reasons discussed, the assignment lacks merit.
In his second assignment of error, Defendant argues that the trial court erred
by denying his motions for new trial. Rulings on such motions are reviewed for
abuse of discretion. State v. Daigle, 07-928 (La.App. 3 Cir. 1/30/08), 974 So.2d
869. Defendant presents little argument in brief, noting that on December 5, 2005,
the district court heard his first motion for new trial, in which he presented the
testimony of a witness who indicated that Defendant was intoxicated on the date of
the offense. The court ruled that the testimony did not change its ruling, especially
in light of Defendant’s statement to police. As discussed in the prior assignment,
Defendant told investigators that he was helping to recover a stolen dog; he did not
allege intoxication. This argument presented the court with another credibility
determination, which was within the district court’s discretion.
The other motion for new trial is the one that was not heard for
approximately thirteen years. In the original motion, Defendant argued that the
State’s medical expert, Dr. George McCormick, may not have performed the
autopsy on the victim and, thus, may have committed perjury at Defendant’s trial.
As noted earlier, the district court eventually heard this motion on February 12,
2019. Significantly, Defendant presented no evidence at the hearing; at the end of
its argument for relief, the defense simply argued “the likelihood of Dr.
McCormick’s perjury.”
For its part, the State acknowledged that there was some general doubt
regarding the doctor’s actions regarding autopsies in his career, but there was no
definitive new information regarding his actions in the present case. The State also
argued that the medical evidence was not pivotal to its case against Defendant. We
find that, in the absence of evidence to support the underlying argument that Dr.
McCormick did not perform the autopsy in this case, it would have been wholly
inappropriate for the district court to grant the motion for new trial. Therefore, this
assignment lacks merit.
In his third assignment of error, Defendant argues that the convictions for
both felony-murder and the underlying offense violate the constitutional protection
against double jeopardy.
Recently, the Louisiana Supreme Court denounced the “same evidence” test
for double jeopardy, leaving the “additional fact” test found in Blockburger v.
United States, 284 U.S. 299, 52 S.Ct 180 (1932), as the sole standard for the
double jeopardy analysis. However, the supreme court’s analysis shows that the
prohibition against double jeopardy in a felony-murder situation remains extant:
In [State ex rel.] Wikberg [v. Henderson, 292 So.2d 505, 508-
09 (1974)] the majority, despite stating that the Blockburger test is not
much different than the test traditionally used in Louisiana, see
Wikberg, 292 So.2d at 508-09, engaged in a broader analysis to find
that convicting a defendant for attempted armed robbery following a
conviction for felony-murder arising out of the same incident violated
the prohibition against double jeopardy. The majority based its
conclusion on the belief that the enumerated felony underlying a
felony-murder charge operates much like a lesser responsive charge
while not technically amounting to such:
Of course, an essential element of the state’s proof of
felony-murder is the commission or attempted
perpetration of the enumerated felony. The enumerated
felony is therefore a different grade of the same offense
(or an included offense) for double jeopardy purposes.
See C.Cr.P. Art. 596.
In most cases, the lesser grade or included offense is
generically the same as the more severe crime charge,
e.g., armed robbery and theft. In the case of felonymurder and felony-manslaughter, however, generically
different offenses such as armed robbery and murder are
combined into a single offense through a legal fiction,
which fiction relieves the state of proving intent to kill or
inflict great bodily harm. This difference may account for
some of the confusion in the jurisprudence dealing with
felony-murder and double jeopardy.
Wikberg, 292 So.2d at 509. The majority noted that the legislature
enacted Article 596 without the “responsiveness” requirement of
former Article 279 of the 1928 Code of Criminal Procedure and
thereby “broadened” the protection of the article, which view may
have inspired the statement in [State v.] Steele[, 387 So.2d 1175
(La.1980)] that Louisiana law is “somewhat broader” than
Blockburger. See Wikberg, 292 So.2d at 510. Chief Justice Sanders’
dissent in Wikberg clearly perceived the majority as utilizing a
broader test than used previously in Louisiana or federal courts. See
Wikberg, 292 So.2d at 513-14. Regardless, the U.S. Supreme Court
subsequently found in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct.
2912, 53 L.Ed.2d 1054 (1977) (citations omitted) that “[w]hen . . .
conviction of a greater crime, [felony murder], cannot be had without
conviction of the lesser crime, [in this case] robbery with firearms, the
Double Jeopardy Clause bars prosecution for the lesser crime, after
conviction of the greater one.” Therefore, Harris healed the brief
schism between federal and Louisiana double jeopardy jurisprudence.
The concept that Louisiana must utilize a second, broader double
jeopardy analysis, however, took root well beyond the context of
Article 596 and felony murder in which it arose.
State v. Frank, 16-1160, pp. 9-10 (La. 10/18/17), 234 So.3d 27, 33.
Pursuant to the language in Frank, specifically its reference to the ruling in
Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912 (1977), the double jeopardy
prohibition bars the present conviction for both aggravated burglary and seconddegree murder. When double jeopardy is found, the proper remedy is to vacate the
conviction and sentence for the lesser-punishable offense. State v. Price, 39,582
(La.App. 2 Cir. 03/23/05), 899 So.2d 633. Consequently, Defendant’s conviction
and sentence for aggravated burglary is vacated.
In his fourth assignment of error, Defendant argues that his sentences are
excessive. In light of our conclusion that the burglary conviction and sentence are
vacated, any discussion of the burglary sentence is moot.
Regarding his mandatory life sentence for murder, Defendant argues that,
while his role in the crime was minor, he is the only member of the trio of
accomplices who is serving a life sentence. The information provided by
accomplices Wilson and Bailey showed that they were both present at the killing
and Defendant was not. Also, the evidence does not show that Defendant had any
advance knowledge that the victim would be killed. Nonetheless, we note the
following language from the second circuit:
In these assignments, the defendant asserts that the sentence
imposed by the trial court, although mandatory, is excessive, and cruel
and unusual punishment. Defendant argues that it is not fair in this
case, where he was convicted as a principal and received a life
sentence without benefit of parole, probation, or suspension of
sentence, while the person who actually shot the victims was allowed
to plead guilty to a lesser offense and received a sentence of seven
years at hard labor.
The penalty for second degree murder is life imprisonment at
hard labor, without benefit of parole, probation, or suspension of
sentence. LSA-R.S. 14.30.1. The Louisiana Supreme Court has
consistently held that a mandatory sentence of life imprisonment for
second degree murder does not constitute cruel and unusual
punishment. State v. Landry, 388 So.2d 699 (La.1980), cert. denied,
450 U.S. 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 (1981); State v. Daniel,
378 So.2d 1361 (La.1979); State v. Graham, 422 So.2d 123
(La.1982), appeal dismissed, 461 U.S. 950, 103 S.Ct. 2419, 77
L.Ed.2d 1309 (1983).
Further, the supreme court has stated:
There is no injustice in punishing one of two guilty
principals when the jury has possibly miscarried justice
by acquitting the other guilty principal on the basis of
mistake, compromise, lenity or nullification. At most,
there is only the illusory appearance of injustice which is
nothing more than intellectual discomfort with an
imperfect system of criminal justice.
State v. Irvine, 535 So.2d 365, 369 (La.1989).
These assignments lack merit.
State v. Harper, 27,278, pp. 17-18 (La.App. 2 Cir. 8/23/95), 660 So.2d 537, 547-
48, writ denied, 95-2318 (La. 1/12/96), 666 So.2d 320. Similar reasoning applies
in the present case; the accomplices’ sentences have no bearing on the term that
Defendant received. Thus, this assignment lacks merit.
In his fifth and final assignment of error, Defendant argues that his
constitutional right to a speedy trial was violated by the thirteen-year delay in his
proceeding, as discussed previously. He requests discharge from incarceration.
Defendant cites State v. Davis, 10-697 (La.App. 1 Cir. 11/1/10), an unpublished
case from the first circuit which examined a delay between a court-martial and an
appeal by applying Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182 (1972). In
another case, the supreme court has explained: “That test consists of four factors:
(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s
assertion of his right to a speedy trial, and (4) the prejudice to the defendant.” State
v. Mathews, 13-525, p. 2 (La. 11/15/13), 129 So.3d 1217, 1218. Without reference
to Wingo, the State acknowledges that the delay was lengthy but argues that any
prejudice to Defendant was cured when the second motion for new trial was finally
While the delay at issue is undeniably lengthy, Defendant was not ultimately
prejudiced by it. He is serving a mandatory life sentence, and the motion for new
trial, discussed earlier, lacked merit. Thus, Defendant is not entitled to be
discharged from incarceration. This assignment lacks merit.

Outcome: Defendant’s conviction and sentence for second degree murder are affirmed;
however, his conviction and sentence for aggravated burglary are vacated due to
double jeopardy.

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