State v. Gipson

747 So. 2d 187, 98 La.App. 4 Cir. 0177, 1999 La. App. LEXIS 3303, 1999 WL 1078715
CourtLouisiana Court of Appeal
DecidedNovember 17, 1999
DocketNo. 98-KA-0177
StatusPublished

This text of 747 So. 2d 187 (State v. Gipson) 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. Gipson, 747 So. 2d 187, 98 La.App. 4 Cir. 0177, 1999 La. App. LEXIS 3303, 1999 WL 1078715 (La. Ct. App. 1999).

Opinion

hKLEES, Chief Judge.

On July 18, 1996, the State filed a bill of information charging the defendant-appellant Willie Gipson with one count of second degree murder, a violation of La. R.S. 14:30.1. The defendant was arraigned and entered a not guilty plea on July 22, 1996. A motion hearing was held on November 8, 1996, at which time the trial court denied the motions to suppress the identification and evidence. Following a trial on May 1,1997, a twelve-person jury returned a verdict of guilty as charged. The defendant’s post-verdict motions were denied on September 4, 1997. On October 31, 1997, the trial court sentenced the defendant to [189]*189life imprisonment without the benefit of probation, parole, or suspension of sentence. Defendant appeals this sentence. FACTS

On March 28, 1996, Officer Wellington Beaulieu was assigned to community policing and was working on foot patrol in the Florida housing project. While in the 2600 block of Alvar, he and his partner heard several shots of gunfire in the area of the 2600 block of Bartholomew. After calling dispatch, the officer | ¡¡.proceeded the one-half block to Bartholomew, where he observed a black male lying face down in the driveway. The victim, Roy Simon, had sustained several gunshot wounds. After calling for an emergency unit, the officer interviewed Sabrina Simon, the victim’s wife. The officer obtained information that a black male, wearing a green shirt, fled on a bicycle. Later, while filling out the pertinent reports, Officer Beaulieu received information by phone as a result of which he went to 2538 Mazant Street to look for a bike and a subject armed with a handgun. When no one responded at 2538 Mazant, Officer Beaulieu’s partner left to secure a search warrant. At that point, the resident of the apartment returned home and gave the police consent to search. Inside the kitchen, Officer Beau-lieu observed a bicycle; the apartment resident stated she knew nothing about the bike or to whom it belonged. The bicycle was seized as evidence. At trial, the bicycle was identified by Officer Beaulieu by the tag and because of its muddy condition. The officer testified that the courtyard was wet and muddy on the night of the incident. However, on cross-examination, he admitted that he observed no bike tracks in the area where the victim was shot. He also testified that the defendant did not live at the Mazant Street apartment.

According to the trial testimony of Dr. Paul McGary, an expert in forensic pathology, the victim Roy Simon had sustained three gunshot wounds. Three bullets, nine millimeters in diameter, were recovered from the victim’s body during the autopsy. The fatal wound had entered the victim’s abdomen and collapsed his right lung. Tests on the victim’s bodily fluids were negative for alcohol and drugs.

Marion Mosley lived next door to the victim and his wife. On the evening of the murder, Ms. Mosley was coming down the steps with the victim. The victim walked toward his car while Ms. Mosley proceeded down the driveway to her 13sister-in-law’s apartment down the block. As Ms. Mosley was talking to neighbors outside of her sister-in-law’s apartment, she heard shooting and dived into the hallway. Although she was not sure at trial, Ms. Mosley believed she saw “a bike going through the gap.” It was too dark to determine if a man or a woman was on the bicycle. She heard the victim calling, “Brenda, Brenda, Brenda, I’m shot” and ran over to him; Ms. Mosley stayed with the victim and called out for his wife, but the victim’s wife never came. Ms. Mosley testified at trial that she did not see the defendant that night.

Detective Fred Austin was the lead homicide investigator assigned to the murder of Roy Simon. After some investigation, the defendant’s name was developed as a subject. Detective Austin compiled a photographic line-up which he showed to Sabrina Simon. Mrs. Simon selected the defendant’s photograph as that of the person who shot her husband Roy. The photo line-up was conducted on May 9, 1996.

Detective Austin testified at trial that, on the night of the murder, Sabrina Simon provided a description of the shooter as approximately five feet eight inches to six feet tall. Ms. Mosley could not provide any physical description except that of a black male wearing a green shirt and riding a bike. Detective Austin further testified that the bicycle seized from the Ma-zant Street apartment was examined for fingerprints; the examination was negative for latent fingerprints. The defendant did not live at the apartment.

[190]*190Sabrina Simon testified that she had been married to the victim Roy Simon for six and a half years. They resided on Bartholomew Street in a second-floor apartment. On the day of the murder, her husband had worked then gone to Mobile One with his brother-in-law to get an amplifier. After his brother-in-law Rleft, the victim went downstairs to install the amplifier in his car. Mrs. Simon was in the kitchen cooking. Their children were in the living room watching television. As Mrs. Simon looked out the kitchen window, she could see her husband working on the car. As she watched, she observed the defendant, whom she had never seen before, “roll up” on a bicycle and shoot her husband. The defendant did not stop. Mrs. Simon could see a gun in the defendant’s hand. Mrs. Simon called 911 from the phone in the kitchen, then gathered her children. Mrs. Simon and the children went onto the apartment balcony because she wanted to give the children to her neighbor so that they would not see their father downstairs. However, the neighbor, Ms. Mosley, was downstairs. After Mrs. Simon and her children went back inside, other neighbors pounded on her door and took her children. Mrs. Simon went downstairs and stayed with her husband until the ambulance came.

Mrs. Simon testified that she had an opportunity to see the defendant as he was riding up to her husband’s car. The only clothing she could remember was a green shirt. Later, Mrs. Simon picked the defendant’s photograph out of the line-up because she remembered his face.

During cross-examination, Mrs. Simon was questioned on whether she had made a statement to police officers on the night of the murder. She recalled making a statement, but could not recall if she told them she could identify anyone; she was hysterical. She did recall telling them that she could identify the person who shot her husband if she saw him again. Mrs. Simon was also asked if she recalled making a statement on April 6th, one week after the murder. She testified that she told the police that her husband was shot twice by a thirty-eight or nine millimeter gun and that the perpetrator had medium brown skin.

| ^Defense counsel presented Mrs. Simon with a written copy of the statement she made to the police one week after the murder. According to the statement, when asked if she could identify the person who shot her husband, Mrs. Simon replied, “It would be kind of like hard cause because when it happened after I was trying to bring — I ran to the phone and to bring my children to the neighbor. That’s how I saw him going through the front court because I went to the balcony to bring my children" to my neighbor and I saw him coming - through the front court and rode back toward Mazant where the other incident happened.” Mrs. Simon’s statement also reflected that she told the police, when asked if she got a good look at the perpetrator’s face, “Maybe if I see the photos I probably could because I really didn’t look, you know, really see him that well.” (Id.).

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Bluebook (online)
747 So. 2d 187, 98 La.App. 4 Cir. 0177, 1999 La. App. LEXIS 3303, 1999 WL 1078715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gipson-lactapp-1999.