State of Louisiana Versus Henry Ford, III

• Court: Louisiana Court of Appeal
• Decided: December 26, 2019
• Docket: 19-KA-242
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 19-KA-242

VERSUS FIFTH CIRCUIT

HENRY FORD, III COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-1016, DIVISION "D" HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING

December 26, 2019

JOHN J. MOLAISON, JR. JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and John J. Molaison, Jr.

CONVICTIONS AFFIRMED; REMANDED JJM FHW RAC COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Andrea F. Long Matthew Whitworth Brittany Beckner

COUNSEL FOR DEFENDANT/APPELLANT, HENRY FORD, III Holli A. Herrle-Castillo MOLAISON, J.

Defendant appeals his conviction and enhanced sentence for being a felon in

possession of a firearm. For the reasons that follow, we affirm defendant's

convictions and sentences on count 2 and 3. Further, we remand for clarification of

defendant’s multiple offender sentence imposed on count one, and for the

correction of errors patent on the face of the record.

PROCEDURAL HISTORY

On February 23, 2018, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Henry Ford, III, in count 1 with possession of a

firearm by a convicted felon, a violation of La. R.S. 14:95.1, in count 2 with

resisting an officer with the use of violence, a violation of La. R.S. 14:108.2, and in

count 3 with unauthorized entry of an inhabited dwelling, a violation of La. R.S.

14:62.3. On March 19, 2018, defendant pled not guilty to all counts. Defendant

thereafter filed a “Motion to Declare Article 782(A) Unconstitutional Because It

Allows for a Non-Unanimous Verdict In This Second Class Case;” however, the

record does not reflect that the trial court ruled on defendant’s motion. The matter

proceeded to a jury trial on October 22, 2018, at the conclusion of which defendant

was found guilty as charged on counts 1 and 2, and guilty of attempted

unauthorized entry of an inhabited dwelling on count 3. On November 8, 2018, the

trial court sentenced defendant to serve 20 years at hard labor without the benefit

of parole, probation, or suspension of sentence on count one, three years at hard

labor on count two, and three years at hard labor on count three, with all sentences

to be served concurrently.

On December 11, 2018, the State filed a multiple offender bill of

information, alleging that defendant was a second felony offender. Defendant filed

19-KA-242 1 a motion for appeal1 on December 27, 2018, that was granted on January 3, 2019.

On May 9, 2019, following a hearing on the multiple offender bill, defendant was

adjudicated a second felony offender. At that time, the court vacated the original

sentence for count 1, and resentenced defendant to a term of 20 years at hard labor

without the benefit of parole, probation, or suspension of sentence. The enhanced

sentence was ordered to run concurrently with the previously imposed sentences

for counts 2 and 3. Defendant objected to the sentence. On May 14, 2019, the trial

court made a nunc pro tunc minute entry which indicated that defendant’s sentence

as a second felony offender was 25 years without the benefit of parole, probation,

or suspension of sentence.

The instant appeal followed.

FACTS

At trial, Commander Roma Reedom of the Jefferson Parish 911

Communications Division verified the report of an incident that occurred on

January 1, 2018, at approximately six minutes after midnight. At that time, a caller

who wished to remain anonymous reported that “she’s heard five shots.” At no

point did the caller identify the shooter.

Jefferson Parish Deputy Kenneth Bonura testified that on January 1, 2018,

he was assigned to the Second District, where he patrolled the Harvey, Gretna, and

Terrytown areas. On that date, he was dispatched to the Woodmere neighborhood,

after a complainant had reported multiple gunshots near an intersection. After

arriving in the area where the shots were reported, Deputy Bonura and Deputy

Conner Tims parked on the corner of Morriswood Drive and Keith Way. Upon

exiting the unit, Deputy Bonura heard approximately 10 gunshots. At that time,

1 Defendant’s motion for appeal was untimely as it relates to his underlying convictions and sentences, and premature as it relates to his multiple offender adjudication and sentence. In similar instances, this Court has considered such appeals in the interest of judicial economy and the avoidance of useless delay. See State v. Jones, 15-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713, 716. Thus, we will consider the merits of defendant’s appeal.

19-KA-242 2 Deputy Bonura approached the corner of Dulaney Drive and Keith Way on foot

and observed a parked vehicle. He also saw someone walking in front of the

houses on Dulaney Drive toward Keith Way. Deputy Bonura called for backup.

While waiting for backup to arrive, Deputy Bonura saw the individual in

front of the houses walk “out of sight” on Keith Way, and he also saw three people

exit the parked vehicle and walk toward Dulaney Drive. Deputies Bonura and Tims

approached the occupants of the vehicle to ask if they had information about the

gunshots, at which time they informed the deputies that the gunshots were closer to

the intersection of Keith Way and Dulaney Drive. A third deputy, Deputy

Benjamin Blevins, arrived while Deputy Bonura was speaking to the occupants of

the car. At that time, Deputies Bonura and Blevins saw the individual, who had

previously walked away, return and walk close to the houses nearby. The

individual glanced over at the deputies and pulled a black hoodie up halfway in

front of his face, while holding his waistband with his left hand. The action of the

“suspect” holding his waistband led Deputy Bonura to believe that the individual

was holding a weapon. Deputies Bonura and Blevins asked the individual to come

over and speak with them, but he refused to comply, and pulled his hood down

further in front of his face. The deputies asked the suspect a second time to come

speak with them and they began to take steps toward him. The suspect then ran

behind a car and toward the front porch of the home located at 3840 Dulaney while

holding his waistband.

The deputies gave the suspect verbal commands at that time to stop running

and to show his hands. The suspect replied that he was trying to get home.

Concerned that the suspect was armed and about to run into a house full of people,

Deputy Bonura grabbed the suspect while he was making his way through the front

door and brought him to the ground2 to prevent him from gaining further access to

2 Deputy Bonura testified that he sustained a knee injury during initial contact with defendant.

19-KA-242 3 the home.3 During the struggle, Deputy Bonura tried to keep defendant’s left arm

pinned in order to prevent him from reaching his waistband. Meanwhile, the

guests at a New Year’s Eve party in progress at the home started to approach the

scene of the struggle between Deputy Bonura and defendant before Deputy Bonura

gave a command to stay back. The owner of the home4 assisted in keeping the

guests away from Deputy Bonura and defendant. While trying to place defendant

in handcuffs, Deputy Bonura turned defendant over onto his back when he “heard

a loud plank sound on the floor.” When Deputy Bonura looked over, he saw a

black handgun, which Deputy Blevins immediately recovered.5 As Deputy Blevins

secured the firearm, Deputy Jeffrey Easterby assisted Deputy Bonura in

handcuffing defendant. Defendant refused to stand up and had to be carried out to

a police unit.

After the owner of the home located at 3840 Dulaney, Carroll Hills,

indicated that he wished to press charges against defendant, Deputy Bonura

arrested defendant and informed him of his Miranda rights. Defendant refused to

provide deputies with his name, but his identity was learned after running

defendant’s fingerprints through an AFIS machine at the Jefferson Parish

Correctional Center. Defendant’s report indicated that he had prior felony

convictions.

On cross examination Deputy Bonura testified that he never observed

defendant firing a weapon, and he did not perform a gun residue test on defendant.

To his knowledge, the recovered firearm was not tested for fingerprints.

Darnisha Gordon testified that in the early morning hours after midnight on

New Year’s Day, 2018, she was in a vehicle with her brother, Antonio Gordon,

3 Deputy Bonura identified defendant in open court as the person he intercepted on that day. 4 Deputy Bonura testified that it was later established that defendant did not live at the address where he was arrested. 5 Jefferson Parish Sheriff’s Office Deputy Peter Nguyen, a crime scene technician, testified that he collected the gun, a Glock semi-automatic pistol, as well as ten bullets, and logged them into evidence. He identified the weapon and bullets in court during direct examination.

19-KA-242 4 and cousin, Alexus Greer, outside the home of her grandparents, Carroll and Ella

Hills, who live on Dulaney. She recalled speaking with police that night after

exiting the car before seeing “a bunch of cops” go into her grandparents’ house.

Alexus Greer similarly testified that she was sitting in a car outside of her

grandparent’s home with her cousins in the early morning hours of New Year’s

Day, 2018 when she heard gunshots. She did not see who the shooter was, but she

did see someone else walking on the street, who was wearing black pants and a

black hoodie. When police asked the person to stop, he ran into Greer’s

grandparents’ home and the police gave chase. Greer did not recall seeing

defendant at the party earlier in the evening.

Carroll Hills testified that on New Year’s Eve, 2018, there was a party at his

home, located at 3840 Dulaney Drive. “Late in the night” his family was in the

dining room eating crabs, when the front door opened and “a lot of police” came in

and wrestled someone down on the living room floor. He had not given the person

on the floor permission to be in his house.

Deputy Blevins’ testimony was consistent with that of Deputy Bonura. He

described how he heard a gun fall to the tile floor while defendant and Deputy

Bonura were struggling inside of the Hills’ home. At that time, Deputy Blevins

grabbed the gun and alerted Deputy Bonura that he had secured it. Deputy Blevins

identified defendant in open court as the individual that he assisted Deputy Bonura

in detaining that evening.

Donna Quintanilla, a certified latent print examiner employed by the

Jefferson Parish Sheriff’s Office, was qualified as an expert in the field of

fingerprint examination. She testified that she had taken the fingerprints of

defendant in court the day before on an Ink 10 print card and marked the card with

19-KA-242 5 her initials. She compared the fingerprints taken to those contained in the State’s

other exhibits, which included three certified conviction packets for defendant.6

LAW AND ANALYSIS

Defendant raises three assignments of error on appeal: 1) The evidence was

insufficient to uphold the conviction for possession of a firearm by a convicted

felon; 2) The jury votes of 11 to 1 and 10 to 2 were unconstitutional; and 3) The

revised minute entry from sentencing and corresponding commitment incorrectly

indicate a 25 year sentence.

Sufficiency of the evidence

The standard of review for determining the sufficiency of the evidence 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

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). Both direct and circumstantial evidence must be sufficient to

support the conclusion that the defendant is guilty beyond a reasonable doubt. State

v. Harrell, 01-841 (La. App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

Under the Jackson standard, a review of a criminal conviction for

sufficiency of evidence does not require the court to ask whether it believes that

the evidence at trial established guilt beyond a reasonable doubt, but rather whether

any rational trier of fact could have found the defendant guilty beyond a reasonable

doubt after viewing the evidence in the light most favorable to the prosecution.

State v. Flores, 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122. When

addressing the sufficiency of the evidence, consideration must be given to the

entirety of the evidence, both admissible and inadmissible, to determine whether

6 The Exhibits referred to by the State and introduced into evidence in connection with Quintanilla’s testimony were 17, 18B, 19A and B, as well as 20A and B. The older fingerprint cards pertain to defendant’s 2009 and 2011 convictions for possession of cocaine.

19-KA-242 6 the evidence is sufficient to support the conviction. State v. Hearold, 603 So.2d

731, 734 (La. 1992).

In the instant case, defendant was convicted of being a felon in possession of

a firearm, in violation of La. R.S. 14:95.1. This Court has recognized that the

crime of possession of a firearm by a convicted felon has three elements: 1) status

of the defendant as a convicted felon; 2) physical and/or constructive possession by

the defendant; and 3) the instrumentality possessed was a firearm. State v. Hill, 562

So.2d 12 (La. App. 5th Cir. 1990), writ denied, 567 So.2d 99 (La. 1990). On

appeal, defendant challenges only the element of possession. Specifically,

defendant argues that there was no testimony presented that anyone observed him

with a weapon, and the State did not foreclose the possibility the gun found at the

Hills’ residence belonged to one of the guests at the New Year’s Eve party.

As noted above, the testimony of Deputy Bonura was that, prior to entry into

the Hills’ residence, he saw defendant hold his waistband in a way that led Deputy

Bonura to believe that defendant was holding a weapon. Shortly thereafter, while

attempting to handcuff defendant in a room away from people at the party, Deputy

Bonura heard the sound of something hit the floor and then saw a black handgun in

the immediate vicinity of defendant. Deputy Blevins also testified that he heard a

gun fall to the tile floor while defendant and Deputy Bonura were struggling inside

of the Hills’ home, and immediately took the gun out of defendant’s reach. The

jury apparently found the deputies’ testimony to be credible, and a reviewing court

may impinge on the fact finder’s discretion only to the extent necessary to

guarantee the fundamental protection of due process of law. State v. Mussall, 523

So.2d 1305, 1310 (La.1988). In addition, defendant produced no evidence to prove

that the gun belonged to the Hills or one of their party guests. We therefore find

that the evidence presented by the State was sufficient to prove that defendant was

19-KA-242 7 in fact in possession of the weapon and that this possession was enough to sustain a

conviction on the charge of a felon in possession of a firearm.

Non-unanimous jury verdict was unconstitutional

As noted in the procedural history of this matter, defendant’s “Motion to

Declare Article 782(A) Unconstitutional Because It Allows for a Non-Unanimous

Verdict In This Second Class Case” was never ruled upon by the trial court. In

addition, the record indicates that defendant failed to serve or otherwise notify the

attorney general regarding the motion challenging the constitutionality of La.

C.Cr.P. art. 782(A). In State v. Veal, 11-44 (La. App. 5 Cir. 12/28/11), 83 So.3d

211, 213–14, writ denied, 12-2373 (La. 4/5/13), 110 So.3d 1072, this Court

declined to address the merits of a similar assignment of error because defendant

did not serve the attorney general with his motion challenging the constitutionality

of the statute. Due to the absence of a trial court ruling and the failure to properly

serve the attorney general, defendant is not entitled to review by this Court.7 State

v. Bravo, 16-562 (La. App. 5 Cir. 4/12/17), 219 So.3d 1213, 1220.

The sentencing minute entry/commitment is incorrect.

In his last assignment of error, defendant contends that while the trial court

sentenced him to 20 years as a second felony offender, both the amended minute

entry and the commitment incorrectly reflect that he was sentenced to 25 years.

The May 9, 2019 transcript from defendant’s sentencing as a multiple

offender, pursuant to La. R.S. 15:529.1, as well as the corresponding minute entry

and commitment, all indicate that the trial court sentenced defendant to 20 years at

hard labor without benefit of probation, parole, or suspension of sentence. For

reasons unclear in the record, however, on May 14, 2019, the trial court made a

7 Even if this issue was properly before us on appellate review, the Louisiana Supreme Court and this Court have long held that non-unanimous jury verdicts for twelve-person juries are not unconstitutional in non-capital cases. State v. Edwards, 420 So.2d 663, 674 (La. 1982); State v. Bertrand, 08-2215 (La. 3/17/09), 6 So.3d 738, 743.

19-KA-242 8 nunc pro tunc minute entry which indicated that defendant’s sentence as a second

felony offender was 25 years without the benefit of parole, probation, or

suspension of sentence. Similarly, an amended uniform commitment order

(“UCO”) dated May 14, 2019, reflected that defendant had received an enhanced

sentence of 25 years.

Under State v. Lynch, 441 So.2d 732, 734 (La. 1983), when there is a

discrepancy between the transcript and the commitment, the transcript generally

prevails. However, given the unusual circumstances presented by the nunc pro tunc

minute entry, we find that a remand is appropriate for clarification on the issue of

defendant’s multiple offender sentence imposed on count one.

ERROR PATENT REVIEW

We have reviewed the record for errors patent according to La. C.Cr.P. art.

920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d

175 (La. App. 5th Cir. 1990). We note the following, which require correction.

There are discrepancies with respect to the original UCO, as amended on

January 9, 2019, and the May 14, 2019 amended multiple offender UCO.

Specifically, on the January 9, 2019 UCO, the disposition date incorrectly provides

that the date of the disposition of this matter was November 8, 2018, when it was

on October 23, 2018. Also, on the May 14, 2019 multiple offender UCO, the date

defendant’s original sentence was vacated is not provided. Accordingly, we

remand the matter for correction of these noted errors and direct the Clerk of Court

for the 24th Judicial District Court to transmit the original of the corrected UCO

and multiple offender UCO to the appropriate authorities in accordance with La.

C.Cr.P. art. 892(B)(2) and the Department of Corrections’ legal department. See

State v. Doucet, 17-200 (La. App. 5 Cir. 12/27/17), 237 So.3d 598, writs denied,

18-77 (La. 10/8/18), 253 So.3d 789 and 18-196 (La. 11/5/18), 255 So.3d 1052,

cert. denied, -- U.S. --, 139 S.Ct. 2676, 204 L.Ed.2d 1079 (2019).

19-KA-242 9 CONCLUSION

For the reasons stated above, we affirm defendant's convictions and

sentences on counts two and three and remand for clarification of defendant’s

multiple offender sentence imposed on count one, and for the correction of errors

patent on the face of the record.

CONVICTIONS AFFIRMED; REMANDED

19-KA-242 10 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 26, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-242 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE) TERRY M. BOUDREAUX (APPELLEE) HOLLI A. HERRLE-CASTILLO COLIN CLARK (APPELLEE) ANDREA F. LONG (APPELLEE) (APPELLANT) GRANT L. WILLIS (APPELLEE) THOMAS J. BUTLER (APPELLEE) J. TAYLOR GRAY (APPELLEE)

MAILED HON. JEFFREY M. LANDRY (APPELLEE) HON. PAUL D. CONNICK, JR. (APPELLEE) ATTORNEY GENERAL MATTHEW WHITWORTH (APPELLEE) LOUISIANA DEPARTMENT OF JUSTICE BRITTANY BECKNER (APPELLEE) 1885 NORTH 3RD STREET ASSISTANT DISTRICT ATTORNEYS 6TH FLOOR, LIVINGSTON BUILDING TWENTY-FOURTH JUDICIAL DISTRICT BATON ROUGE, LA 70802 200 DERBIGNY STREET GRETNA, LA 70053