State v. Duckett

119 So. 3d 168, 2013 WL 2121915
CourtLouisiana Court of Appeal
DecidedMay 16, 2013
DocketNo. 12-KA-578
StatusPublished
Cited by5 cases

This text of 119 So. 3d 168 (State v. Duckett) 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. Duckett, 119 So. 3d 168, 2013 WL 2121915 (La. Ct. App. 2013).

Opinion

JUDE G. GRAVOIS, Judge.

| gDefendant, Darius A. Duckett, appeals his convictions for second degree murder and attempted second degree murder. On appeal, he argues that the trial court erroneously denied his motion for severance and later motion for a new trial. He also argues that the trial court erred when it failed to give the requested jury instruction on self-defense. For the following reasons, we affirm defendant’s convictions and sentences, finding no merit to the assignments of error.

PROCEDURAL HISTORY

On July 29, 2010, defendant, Darius A. Duckett, was indicted by a Jefferson Parish grand jury for the second degree murder of Marvin Newman in violation of La. R.S. 14:30.1 (count one) and for attempted second degree murder of Teri Creagh in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count two). Co-defendant, Kevin P. Holmes, was also indicted on the same charges. Defendant filed a motion to suppress statement, which was denied on February 4, 2011.1 Cojdefendantg Holmes filed a motion for severance. Defendant joined in the motion for severance, which was denied on May 27, 2011.

On November 9, 2011, defendant orally re-urged his motion for severance, which the trial court again denied. After defendant’s objection was noted, defendant was arraigned and pled not guilty to both charges. Immediately thereafter, trial commenced and continued until November 11, 2011, when a 12-person jury unanimously found defendant guilty as charged as to both counts.2

On December 9, 2011, defendant filed a motion for a new trial, arguing the following: the verdict was contrary to law and the evidence; the trial court erred by denying his motion for severance, which violated his right to a fair trial and his Sixth Amendment right to confront his accuser, who was a co-defendant who did not take the stand and could not be cross-examined; and the ends of justice required that he receive a new trial. On December 12, 2011, the trial court denied the motion. Defendant waived sentencing delays and was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence on count one, and 50 years imprisonment on count two, to be served consecutively. Defendant objected to his sentence and orally noted his intent to appeal. Defendant also filed a written motion for appeal on December 12, 2011, which was granted on December 14, 2011.

FACTS

On the night of August 22, 2009, a party was held in the 3000 block of Mt. Kennedy Drive in Jefferson Parish. A 9-1-1 call was made after several gunshots were heard. Deputy Shannon Sims of the Jefferson Parish Sheriffs Office responded to the call within a minute and saw a black male lying on the ground about a block and a half from Rochester and Mt. Kennedy, his clothes covered in Lblood. Although the victim was still alive, he was barely moving and was not responsive. Deputy Sims did not find a gun in the victim’s clothing, in his hand, or in the area around where he fell. EMS arrived and transported the victim to West Jefferson Medical Center. The 20-year-old victim, [171]*171Marvin Newman, died from multiple gunshot wounds.3 Another victim, Teri Creagh, was shot in her left thigh, and was taken to West Jefferson Medical Center as well.

Candice Cobena was at Lakeyda’s4 house on Mt. Kennedy Drive for the party on August 22, 2009. She was outside the house, arguing with Marvin Newman, whom she had previously dated. She said that co-defendant, Kevin Holmes, whom she knew as “Chopper,” arrived in a gold G6 Pontiac and pulled up in front of La-keyda’s house, but did not get out of the car. The car door opened, and defendant was seated in the driver’s seat.5 She also noticed that “Whop” pulled up in a green Pontiac, but parked on the opposite side of the street across from Lakeyda’s house.

As Candice and Marvin were arguing, Whop, who was in the middle of the street and parallel to Holmes’ car, said to Marvin, “Don’t your girl got my cousin’s name on her.” Candice explained that Whop was talking about her, apparently in reference to a tattoo she had. Marvin asked Whop to repeat what he said and when Whop went to open his mouth, Marvin punched him. Whop fell, holding his jaw, and said “Get him, Cuz.” Candice testified that after Whop said this, Holmes exited his car from the driver’s side with a gun in his hand, raised the gun, and started shooting. She testified that the shooting started on Mt. Kennedy in the middle of the street on the side of the G6 and that Holmes and Marvin were very Rclose to each other. Candice testified that Marvin turned around and ran down Rochester, a street perpendicular to Mt. Kennedy, and Holmes ran down the street behind him. She said that Holmes followed Marvin and “they just kept shooting.” According to Candice, Holmes stopped shooting when he reached Rochester, and then ran back to his gold car and left.6

In the early morning hours following the shooting, which she believed might have occurred around 8:30 p.m., Candice identified Holmes in a photographic lineup and also provided statements about the incident.7 She testified that she was 100 percent positive that Holmes was the person she saw shoot Marvin. She also testified that she could not tell at the time of the shooting how many people were actually firing guns.

Candice said that defendant was in the vehicle with Holmes when he arrived. She had known defendant for about one or two years from high school. However, she did not know where defendant was at the time of the shooting.8 She testified that she did not know if defendant had a gun, but thought it could be possible that defendant was shooting a gun at Marvin, saying “I wouldn’t put it passed [sic] him.” She said she believed all of the shots happened at [172]*172the same time. She said that Holmes was wearing a white “tank” on the night of the incident, while defendant was wearing all black.

Bervin Wright testified that on the night of the shooting, he observed someone wearing a white tank top with a gun. He recalled two guys leaving a car and going down the street. He recalled that someone said, “they’re shooting.” He was not able to make identifications, however.

IfiTeri Creagh, a visitor to the neighborhood who was not connected to the party on Mt. Kennedy, was shot in her left thigh, but did not see the person who fired the gun. She testified that she heard gunshots being fired and thought they were coming from the driver’s side of a vehicle parked behind her car.

Casings and other ballistic evidence were collected from the scene. A cluster of .380 caliber casings was found. All of the .380 caliber casings were recovered between the street and the house at 3000 Mt. Kennedy. A cluster of .40 caliber casings was also found. Additional .40 caliber casings were recovered down Rochester. A projectile went through a telephone box close to the corner of Mt. Blanc and Rochester and lodged into the equipment. Also, another projectile struck the residence at 3001 Mt. Blanc.

The ballistic evidence on the scene established that two types of guns were involved, a .40 caliber and a .380 caliber. On Mt. Kennedy, five .380 caliber casings and one .40 caliber casing were recovered. A total of six casings were found on Rochester, which were all .40 caliber casings.

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Bluebook (online)
119 So. 3d 168, 2013 WL 2121915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duckett-lactapp-2013.