State v. Barnes

126 So. 3d 606, 2012 La.App. 4 Cir. 1283, 2013 WL 5488886, 2013 La. App. LEXIS 1995
CourtLouisiana Court of Appeal
DecidedOctober 2, 2013
DocketNo. 2012-KA-1283
StatusPublished
Cited by4 cases

This text of 126 So. 3d 606 (State v. Barnes) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barnes, 126 So. 3d 606, 2012 La.App. 4 Cir. 1283, 2013 WL 5488886, 2013 La. App. LEXIS 1995 (La. Ct. App. 2013).

Opinion

MADELEINE M. LANDRIEU, Judge.

|, Kenneth Barnes was indicted for two counts of first degree murder, violations of Louisiana Revised Statute 14:30. Following a jury trial, Mr. Barnes was convicted on both counts. As the jury was unable to reach a verdict on the penalty phase of the trial, the court sentenced Mr. Barnes to serve two concurrent life sentences without benefit of parole, probation, or suspension of sentence in accordance with Louisiana Code of Criminal Procedure article 905.8.

Mr. Barnes filed this appeal from his convictions raising two assignments of error: that the evidence was insufficient to sustain his convictions and that he received ineffective assistance of counsel. For the reasons that follow, we find no merit in these assignments of error. Further, we find no errors patent on the face of the record and affirm Mr. Barnes’ convictions and sentences.

FACTS

On the afternoon of April 20, 2009, Fitzgerald “Gerald” Phillips and his girlfriend, Calyisse Perkins, were found dead in an abandoned house on Broadway Street in the Gert Town area of New Orleans, each having been shot once with a .38 caliber revolver. Gerald had apparently been handcuffed when he was shot. Information law enforcement had received in the days leading up to the discovery [ 2of their bodies and evidence at the crime scene made it immediately apparent to law enforcement that the two had been murdered.

The day before he was murdered, Gerald had been babysitting for his eleven year old nephew, Patrick Thayard. At some point in the evening, Gerald took Patrick with him to visit Calyisse. When they arrived, Gerald told Patrick to go inside. After being inside playing video games in a back room for approximately thirty to forty minutes, Patrick heard someone enter the apartment. Believing it to be Gerald, Patrick called out to him, but no one answered. Then, two men Patrick did not know walked into the room where Patrick was and began searching it. Patrick later described one of the men as tall, “red,” with a low haircut and a white shirt on his hand. He described the second man as having short dreadlocks, wearing a long-sleeve blue shirt, and carrying handcuffs. Patrick did not see Gerald or Calyisse and thought they must be in the front room of the apartment. When the two men left the apartment without him seeing or hearing Gerald or Calyisse, Patrick called his grandmother, Gerald’s mother, and related the incident. Mrs. Phillips and her husband immediately drove to Calyisse’s apartment to get Patrick.

[609]*609Just before receiving this call from Patrick, Mrs. Phillips had called Gerald to find out where he was. He told her that he did not know but that he loved her. Alarmed by this, she called him again, and asked Gerald what was going on. Once again, Gerald told her he loved her and hung up. When Mr. and Mrs. Phillips, along with Patrick, arrived at their home, they found that Gerald’s bedroom had been ransacked. Gerald’s laptop computer, Play Station 3 and three watches were missing. Mrs. Phillips called 911.

1 ..¡Before any police officers arrived in response to her 911 call, Mrs. Phillips learned from a family member that Gerald had apparently been kidnapped and that there was a $10,000 ransom demanded for his return. Mrs. Phillips then received another call from Gerald’s cell phone. This time, a man whose voice she did not recognize demanded ransom money.

The family member who first alerted Mrs. Phillips to Gerald’s situation was Kimberly Bailey, her niece. Kimberly testified that at approximately 2:30 a.m., Gerald called her brother Kerry on his cell phone. Kerry was sleeping so she answered the phone. The caller hung up. The phone rang again, and again the caller hung up. The third time, Ms. Bailey answered and heard Gerald say: “I been kidnapped. Come get me.” She then asked Gerald if he knew who had him and Gerald responded “Yes.” At that moment, someone took the phone from Gerald and demanded $10,000 for Gerald’s release. Ms. Bailey asked the caller if $5,000 would be enough, as that was all she could get. The caller said yes and then hung up. The person demanding the ransom then called back and said that if the money was not at “Roecafella at 3:20” a.m., he “would be putting both of them [the victims] to sleep.”1 The caller then allowed Gerald to get on the phone and he said: “Cousin, they’re not playing. They gon’ kill me.” A flurry of phone calls then took place regarding the ransom.

Officer Damon Banks responded to Mrs. Phillips’ call to police. Upon arriving at her home, Officer Banks learned of the latest calls for ransom. This development resulted in the involvement of the department’s Major Case Narcotics Unit. This unit worked in plain clothes and unmarked units, giving it the capacity to conduct undercover surveillance.

|4NOPD, in cooperation with the FBI, began investigating the case as an aggravated kidnapping. They obtained Gerald’s cell phone records and determined that Gerald had received a phone call from a number assigned to Kenneth Barnes, the defendant in these proceedings. At around 1:00 p.m. on April 19th, officers obtained a search warrant for the address associated with Mr. Barnes’ cell phone account. They proceeded there hoping to find Gerald and Calyisse.

The subject residence is one half of a New Orleans style double located at 2526 Barracks Street. Once on location, officers found Gerald’s car parked one half block away and then observed the defendant leave his residence carrying a box. They observed the defendant use a key to enter 2530 Barracks Street, the other half of the double. The defendant then exited 2530 empty-handed and returned to 2526 Barracks Street.

Because there was the potential for a hostage situation, a SWAT team cordoned off the area. After a period of surveillance during which officers observed several individuals go in and out of the Barracks Street residence, Mr. Barnes was taken into custody without incident. Mr. Barnes’ [610]*610cousin, Gregory Vincent, and Mr. Barnes’ girlfriend, Latasha Foster, were at the Barracks Street residence with the defendant and were also taken into custody.2 In a search pursuant to the warrant, officers recovered the box they saw the defendant carrying which contained marijuana, a .38 caliber revolver with three live casings and two empty slots, money, two scales and packing material. They also recovered Calyisse Perkins’ silver purse, which contained her ID and personal items wrapped in a white T-shirt. They did not, however find Gerald or Calyisse.

1 sOnce in custody, Mr. Vincent gave a statement denying his involvement in the crimes and was released. Mr. Barnes did not give a statement. Due to evidence retrieved from his home, cell phone records, and other evidence linking him to the crime, the defendant was charged with kidnapping, home invasion, and possession of a weapon, marijuana and stolen property (Calyisse Perkins’ purse). At this point in the investigation, there was no evidence of Mr. Vincent’s involvement.

As the search for Gerald and Calyisse continued, cell phone records, subscriber information, and activity from cell towers led investigators to learn that several calls had taken place throughout the evening of April 18th and the early morning hours of April 19th between the defendant’s cell phone, Gregory Vincent’s cell phone, and Gerald’s cell phone.

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Related

State v. Chambers
212 So. 3d 643 (Louisiana Court of Appeal, 2017)
State v. Falgout
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State v. Mark
146 So. 3d 886 (Louisiana Court of Appeal, 2014)

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Bluebook (online)
126 So. 3d 606, 2012 La.App. 4 Cir. 1283, 2013 WL 5488886, 2013 La. App. LEXIS 1995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barnes-lactapp-2013.