State v. Flag

262 So. 3d 1018
CourtLouisiana Court of Appeal
DecidedDecember 19, 2018
DocketNO. 18-KA-70
StatusPublished

This text of 262 So. 3d 1018 (State v. Flag) 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. Flag, 262 So. 3d 1018 (La. Ct. App. 2018).

Opinion

CHAISSON, J.

Defendant, Corey Flag, appeals eight felony convictions and sentences. On appeal, he contends that the evidence was insufficient to support his convictions as the State failed to negate any reasonable probability of misidentification, and that the trial court abused its discretion in allowing the admission of other crimes evidence pursuant to La. C.E. art. 404(B). For the reasons that follow, we find no merit to defendant's arguments, and accordingly, we affirm his convictions and sentences.

PROCEDURAL HISTORY

On May 5, 2016, the Jefferson Parish Grand Jury returned an indictment charging defendant and his co-defendant, Emmett Garrison, IV, with the second degree murder of Bruce Lutcher, in violation of La. R.S. 14:30.1. Defendant was also charged with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. At his arraignment, defendant pled not guilty.

On September 1, 2016, defendant and co-defendant Garrison were charged in a superseding ten-count indictment. Defendant was charged in eight of the ten counts as follows: count one : second degree murder of Bruce Lutcher on or about November 23, 2015, in violation of La. R.S. 14:30.1 ; count two : conspiracy to commit armed robbery on or between November 23, 2015, and December 11, 2015, in violation of La. R.S. 14:26 and 14:64 ; count three : attempted armed robbery with a firearm of Franklin Diaz on December 11, 2015, in violation of La. R.S. 14:27 and 14:64.3 ; count four : illegal use of a weapon while attempting to commit an armed robbery on December 11, 2015, in violation of La. R.S. 14:94(F) ; count five : attempted armed robbery with a firearm of Fausto Alvarez on December 11, 2015, in violation *1022of La. R.S. 14:27 and 14:64.3 ; count seven : armed robbery with a firearm of Jose Galeas on December 11, 2015, in violation of La. R.S. 14:64.3 ; count nine : possession of a firearm by a convicted felon on or between November 23, 2015, and December 11, 2015, in violation of La. R.S. 14:95.1 ; and count ten : illegal use of a weapon on December 9, 2015, in violation of La. R.S. 14:94(A)(B).1 On September 2, 2016, defendant pled not guilty to the superseding indictment.

On September 5, 2017, trial commenced before a twelve-person jury. At the conclusion of the four-day trial on September 8, 2017, the jury returned a verdict of guilty as charged on all eight counts.

On September 14, 2017, the trial court heard and denied defendant's motion for new trial. After defendant waived sentencing delays, the trial court sentenced him to consecutive terms of imprisonment as follows: count one : life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; count two : twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; counts three and five : twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence plus an additional five years at hard labor without benefit of parole, probation, or suspension of sentence to be served consecutively for a total of thirty years imprisonment on each count; count four : ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; count seven : forty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence plus an additional five years at hard labor "without benefits" for a total of fifty years imprisonment; count nine : twenty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; and count ten : two years imprisonment at hard labor.

Defendant now appeals.

FACTS

Second degree murder of Bruce Lutcher on November 23, 2015 (count one)

On November 23, 2015, Bruce Lutcher was shot and killed outside his apartment on Ute Street in Harvey, Louisiana. At trial, Cassandra Gilds, the victim's girlfriend, testified as to the circumstances surrounding the shooting. According to Ms. Gilds, on November 23, 2015, at about 9:40 p.m., Mr. Lutcher received a phone call and left the apartment they shared. Ms. Gilds was aware that Mr. Lutcher sold drugs and testified that it was not unusual for him to be gone for a few minutes at a time. On that particular night, Ms. Gilds became concerned when Mr. Lutcher did not return after some time had passed. She tried to call his cell phone using a blocked number, but Mr. Lutcher did not answer. Ms. Gilds then asked her friend, Shantrell Johnson, to call his number, and once again, Mr. Lutcher did not answer.2

About three minutes later, Ms. Gilds heard the doorbell to her apartment ring twice. Thinking it odd that Mr. Lutcher would ring the doorbell, Ms. Gilds went to *1023the door and listened. She heard footsteps on the stairs as well as a voice that she did not recognize. Ms. Gilds then heard Mr. Lutcher say, "[n]o, come on, son, no. No, bra." Thereafter, she heard multiple gunshots followed by "scratching noises." Afraid the perpetrators were going to come after her and her children, Ms. Gilds remained inside the apartment and called 9-1-1. While waiting for the police, Ms. Gilds eventually opened the apartment door and saw Mr. Lutcher at the bottom of the stairwell on his knees with his head against the wall. Mr. Lutcher was unresponsive,3 and his wallet and cell phone were missing.

Detective Rhonda Goff of the Jefferson Parish Sheriff's Office, the lead investigator in the shooting, arrived at the scene and supervised the collection of evidence and the taking of photographs. At trial, Detective Goff indicated that it was common knowledge that Mr. Lutcher sold marijuana and further stated that a large amount of marijuana had been found near the scene. No firearms were ever recovered in connection with the investigation into the homicide of Mr. Lutcher; however, ballistics material including projectiles and casings were recovered on the scene.

Detective Goff observed that Mr. Lutcher's pockets4 had been turned inside out and that there was a bottle of Visine and the victim's keys on the ground, leading her to believe that Mr. Lutcher had been the victim of a robbery. Mr. Lutcher's wallet and cell phone were never recovered. However, Detective Goff stated that upon listening to Mr. Lutcher's voicemail recording obtained from Ms. Johnson's phone, she concluded that Mr. Lutcher's cell phone was taken during the robbery. Further, Detective Goff testified that she heard running sounds and the voices of three individuals on the voicemail recording, leading her to believe that there was a minimum of two suspects.

About two days after the shooting, Detective Goff spoke with a woman named Ms. Davis5 who lived nearby and claimed to have witnessed the shooting. According to Detective Goff, Ms. Davis told her that she saw the victim and a man wearing a black hoodie on the night of the murder, which Detective Goff found to be inconsistent with the information gained from the voicemail recording obtained from Ms. Johnson's cell phone.

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Cite This Page — Counsel Stack

Bluebook (online)
262 So. 3d 1018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-flag-lactapp-2018.