State of Louisiana v. Jerome Montrell Thomas

• Court: Louisiana Court of Appeal
• Decided: February 2, 2011
• Docket: KA-0010-0792
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-792

STATE OF LOUISIANA

VERSUS

JEROME MONTRELL THOMAS

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 9039-07 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Phyllis M. Keaty, Judges.

AFFIRMED.

John Foster DeRosier District Attorney - 14TH Judicial District Court Carla Sue Sigler Assistant District Attorney - 14TH Judicial District Court P. O. Box 3206 Lake Charles, LA 70602-3206 Telephone: (337) 437-3400 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

G. Paul Marx Louisiana Appellate Project P. O. Box 82389 Lafayette, LA 70598-2389 Telephone: (337) 237-2537 COUNSEL FOR: Defendant/Appellant - Jerome Montrell Thomas THIBODEAUX, Chief Judge.

Defendant, Jerome Montrell Thomas, was charged with attempted first

degree murder, in violation of La.R.S. 14:27 and 14:30, and attempted armed robbery,

in violation of La.R.S. 14:27 and 14:64. Defendant pled not guilty, but a jury found

him guilty as charged. A bill of information charging Defendant as a habitual

offender was filed. Defendant admitted the allegations in the bill of information and

was subsequently sentenced to eighty years at hard labor on each count, to run

concurrently.

Defendant asserts two assignments of error on appeal. He contends his

conviction for attempted first degree murder is based on insufficient evidence because

the witnesses could not reliably identify which of two defendants fired a shot at the

victim. Additionally, the in-court identification of him for the first time at trial was

unreliable because it was inconsistent with pre-trial testimony. For the foregoing

reasons, we find that the evidence was sufficient to support Defendant’s conviction

for attempted first degree murder. We also find that Defendant waived review of any

issues regarding the in-court identification made.

I.

ISSUES

We must decide whether:

(1) The conviction in this case was based on insufficient evidence;

(2) The in-court identification of Defendant at trial was unreliable. II.

FACTS AND PROCEDURAL HISTORY

Nicholas Perioux was a manager at his father’s restaurant, Pat’s of

Henderson. Perioux testified that D’Ryan Green was one of his best friends and

attended a party at the restaurant on December 6, 2004. After the party, Green stayed

to visit Perioux, who was closing the restaurant that night.

At approximately 11:00 p.m., Perioux placed Christmas gifts in his

vehicle and returned to the restaurant. Perioux and Green then exited the restaurant

together. While on the porch of the restaurant, two men appeared from behind the

columns on the porch with guns pointed at Perioux and Green.

Perioux testified that one of the men was dressed in all black. The other

man wore a white hat, and his clothes were lighter in color. When the men

approached, Perioux told Green to run. Green hesitated, and the man in the white hat

grabbed him in a headlock. Perioux testified that the man with the white hat had a

gun in his other hand and was pointing it at him. The man in black also had a gun

pointed at him.

Perioux, who was carrying a Glock .40 firearm for protection, retrieved

his gun and shot at the man in black. Perioux testified that as soon as he shot the first

round, shots were fired at him. Not long into the confrontation, the man dressed in

black slipped, fell, and ran away. When the man in black was fleeing, Green got

away from the man in the white hat. Perioux then started shooting at the man in the

white hat, and that man shot back at him, hitting him. The man in the white hat fell

backwards, then got up and ran. Perioux testified that he knew the man who was

holding Green was wearing a white hat.

D’Ryan Green described the two men as African-American and taller

than him. One of the men grabbed Green around the neck and put a gun to his head. 2 Green testified that he saw the man’s face and he was black. Green made an in-court

identification of Defendant as the man who grabbed him. Green testified that he

made the positive identification based on seeing the man from “here to here.”

Green testified that the man in the white hat put the gun to his head and

cocked the hammer. Green further testified that he fell. As Green was falling, he felt

a discharged bullet go by his head. Green then testified as follows: “I’m seeing

bullets fly. I’m seeing the guy shoot again. I’m seeing Nick pull the gun out and start

shooting. Hear him screaming; he fell; he got hit, and he continues to shoot.”

Officer Lisa Leleaux was dispatched to the restaurant on the date of the

offense. She observed a 9mm on the steps in front of the restaurant. Officer Leleaux

also found a revolver on the ground by the steps on the north side of the restaurant

and a white cap just at or below the steps. Officer Leleaux testified that the cap had

a hole in it. After the cap was collected, Officer Leleaux noticed a small amount of

blood and what appeared to be a part of a scalp inside the cap.

Officer Bob Fry testified about the guns found at the scene. He testified

that the .357 magnum revolver contained cartridge casings when he received it and

the gun functioned properly. The 9mm contained eight live rounds and functioned

properly. Further, the Glock, which belonged to Perioux, functioned properly and did

not contain any cartridges.

Dr. Thomas Reinecke, an emergency room physician, was qualified as

an expert in emergency medicine. On December 6, 2004, Dr. Reinecke was

practicing at Our Lady of the Lake Hospital in Baton Rouge. At approximately 2:00

a.m. on December 7, 2004, Dr. Reinecke treated a man named Jerome Thomas who

said he was the victim of an assault. Thomas complained that he had been hit in the

head with an unknown object while gunshots were being fired. Thomas suffered

3 either a blunt injury or a grazing gunshot wound five centimeters long. Thomas gave

his date of birth as November 18, 1975.

Detective Gregory Single testified that he was contacted by the North

Louisiana Crime Lab and informed there had been an initial hit in response to DNA

evidence recovered at the scene. The crime lab informed Detective Single that the

DNA matched that of Jerome Thomas. Defendant was apprehended in Baton Rouge.

Defendant’s date of birth was listed on the Miranda rights form as

November 18, 1975. Detective Single questioned Defendant about a scar on his head.

Defendant stated he received the scar in December 2003, as he was pistol-whipped

during an altercation in Baton Rouge. Detective Single then received consent to

obtain Defendant’s medical records. Our Lady of the Lake Hospital had no record

of Defendant being treated in December 2003. He was treated in December 2004,

however. A DNA sample was subsequently taken from Defendant, and the DNA

results confirmed Defendant’s presence at the scene of the crime. Nevertheless,

Defendant denied any involvement in the offenses.

Mary Dukes, a forensic DNA analyst and Quality Manager at the North

Louisiana Crime Lab, was qualified as an expert in forensic DNA testing. Dukes

testified that Defendant’s DNA matched that found on the white hat. Dukes further

testified that the chances of obtaining the same match were 1 in 21.2 quadrillion.

III.

ERROR PATENT

One error patent exists concerning the habitual offender proceeding, but

the error lacks reversible merit because Defendant received a fundamentally fair

hearing.

4 The trial court erred in failing to advise Defendant of his right to remain

silent. At the sentencing hearing, the State announced it was filing a habitual

offender bill seeking to enhance the sentences on both of Defendant’s September 8,

2009, convictions, as a third offender. The trial court then asked Defendant whether

he wanted to admit or deny the allegations of the bill. Defendant stated “I admit.”

Defense counsel then told the court that he had explained to Defendant the nature of

the habitual offender procedure. Defense counsel stated that he told Defendant “[the

State had] to prove that it was a conviction, and it was a conviction, and it was Mr.

Thomas who was, in fact, the person convicted and that the conviction ha[d] taken

place within ten years from the date the prosecution or the sentence ends.”

Defense counsel further stated that Defendant admitted that he was the

perpetrator in both prior offenses and stipulated to the same. The court then

questioned Defendant directly, and he confirmed his counsel’s testimony.

In State v. Fletcher,1 00-968, pp. 3-4 (La.App. 3 Cir. 12/6/00), 776 So.2d

1240, 1243, writ denied, 01-342 (La. 12/14/01), 803 So.2d 986, this court discussed

the pertinent case law on this issue:

While La.R.S. 15:529.1 does not specifically address the issue of a defendant’s right to remain silent, in State v. Johnson, 432 So.2d 815 (La.1983), writ granted on other grounds, 438 So.2d 1113 (La.1983), appeal after remand, 457 So.2d 1251 (La.App. 1 Cir. 1984), appeal after remand, 471 So.2d 1041 (La.App. 1 Cir. 1985), the supreme court concluded that the statute clearly recognizes that a defendant has the right to remain silent and thus implicitly provides that a defendant should be advised by the trial court of this right before he acknowledges or confesses his status as an habitual offender. Thus, the trial court erred in failing to advise the defendant of this right before accepting his admission that he was the person who was convicted of the predicate offenses. The question is whether or not this is harmless error.

1 Though the writer dissented in Fletcher, the facts in this case are so apparently distinguishable that they do not require any explanatory analysis.

5 We concluded that it was.

We find Defendant in this case, like the defendant in Fletcher, received

a fundamentally fair hearing. Defendant was represented by capable counsel who

explained the habitual offender procedure to him, and Defendant admitted his prior

offenses in the presence of his attorney after being informed that the State would have

to prove his prior convictions and identify him as a habitual offender. Consequently,

this error patent is harmless.

IV.

LAW AND DISCUSSION

Sufficiency of the Evidence and In-Court Identification

Defendant contends the conviction in this case is based on insufficient

evidence, as the witnesses could not reliably identify which of two defendants fired

a shot at the victim, and on improper in-court identification. Therefore, he argues that

his conviction for attempted first degree murder should be vacated and set aside.

Defendant asserts the critical question is whether the State had enough

information to establish that he fired the gunshot that hit Perioux. He contends that

because of the confusion and rapid sequence of events, there is insufficient evidence

to convict him of attempted first degree murder.

Defendant argues the two weapons found at the scene were never tied

to a specific person, and the 9mm had not been fired. Defendant additionally asserts

it is unclear which of the men wore the white hat. Furthermore, Perioux apparently

told police the men were all in black, but denied that at trial. Defendant avers that

Perioux admitted he had been told about the white hat being found and DNA tying

it to Defendant. Thus, Perioux’s in-court identification of Defendant as the person

who fired the shots was highly doubtful. Defendant further contends that by the time

6 of trial, Perioux was able to “specifically identify the kind of gun being held by the

only person arrested, through DNA, the white hat.” Defendant asserts that this

evidence is highly questionable, and his conviction for attempted first degree murder

should be reversed.

In State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437,

writ denied, 06-1285 (La. 11/22/06), 942 So.2d 553, the defendant asserted his

convictions were based on insufficient evidence, particularly the witness’

identification of him as the person who committed the robberies. He questioned the

witness’ identification because she allegedly told her son that the police identified the

robber. The defendant asserted that this court had to determine whether there was a

suggestive identification and if it presented a substantial likelihood of

misidentification.

This court held:

“A defendant who does not file a motion to suppress an identification, and who fails to contemporaneously object to the admission of the identification testimony at trial, fails to preserve the issue of its admissibility as an error on appeal.” State v. Johnson, 95-711, pp. 3-4 (La.App. 3 Cir. 12/6/95), 664 So.2d 766, 769, writ denied, 96-0082 (La. 3/29/96), 670 So.2d 1236. See also La.Code Crim.P. arts. 703(F) and 841(A). The record reveals that the defendant did not file a pre-trial motion to suppress the witnesses’ identifications or object to its admissibility at trial. Consequently, as the defendant failed to preserve this issue, we do not review it on appeal.

Id. at 440.

The State relies on Boyance and further contends that while a motion to

suppress would not have been possible because of the in-court identification,

Defendant did not contemporaneously object to it at trial. Thus, the error was not

preserved for review.

7 In State v. Brumfield, 96-2667 (La. 10/20/98), 737 So.2d 660, cert.

denied, 526 U.S. 1025, 119 S.Ct. 1267 (1999), the defendant contended that the court

should not have admitted the testimony of the store manager who survived a shooting

because her recollection of the crime and her identification of one of the assailants

occurred only after she had been hypnotized by the police. At trial, there was no

objection to the testimony or the identification. The supreme court found the

defendant waived any claim based on the erroneous admission of this evidence.

Here, we find that Defendant waived review of the issue of improper in-

court identification because he failed to contemporaneously object at trial. Further,

even if Defendant had not waived his objection, the evidence in the record was

sufficient to support the finding that he was the man who shot Perioux.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984).

State v. Draughn, 05-1825, p. 7 (La. 1/17/07), 950 So.2d 583, 592, cert. denied, 552

U.S. 1012, 128 S.Ct. 537 (2007).

When the key issue is not whether a crime occurred, but rather, the identity of the perpetrator, the state is required to negate any reasonable probability of misidentification. State v. Hughes, 05-992 (La. 11/29/06), 943 So.2d 1047. One witness’s positive identification is sufficient to support a conviction. Id.

State v. George, 09-143, p. 5 (La.App. 3 Cir. 10/7/09), 19 So.3d 614, 618.

Perioux testified that the man in the white hat grabbed Green.

Additionally, although Perioux testified on cross-examination that at the time of the

events he did not know who shot him, he testified on direct examination that the man

in the white hat fired at him, hitting him. Green identified Defendant as the man who 8 grabbed him. Further, as he was falling from the grasp of the man who grabbed him,

he felt a discharged bullet go by his head and saw the man fire the gun again. DNA

evidence indicated Defendant wore the white hat.

Although Perioux’s testimony may be inconsistent, his testimony that

Defendant shot him or shot at him was supported by Green’s testimony. The jury

made credibility determinations and found the witnesses’ testimony to be credible

despite any inconsistencies therein. It is not this court’s function to reweigh the

evidence or assess credibility. 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. Accordingly, this

assignment of error lacks merit.

V.

CONCLUSION

For the reasons explained above, we affirm Defendant’s conviction and

sentence.