State v. Gulley

963 So. 2d 1063, 2007 WL 2323371
CourtLouisiana Court of Appeal
DecidedAugust 15, 2007
Docket42,237-KA
StatusPublished
Cited by1 cases

This text of 963 So. 2d 1063 (State v. Gulley) 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. Gulley, 963 So. 2d 1063, 2007 WL 2323371 (La. Ct. App. 2007).

Opinion

963 So.2d 1063 (2007)

STATE of Louisiana, Appellee
v.
Marcus D. GULLEY, Appellant.

No. 42,237-KA.

Court of Appeal of Louisiana, Second Circuit.

August 15, 2007.

*1066 Eric Anthony Wright, New Orleans, for Appellant.

Paul J. Carmouche, District Attorney, Tommy J. Johnson, Philip House, Assistant District Attorneys, for Appellee.

Before BROWN, STEWART, and DREW, JJ.

BROWN, Chief Judge.

While consorting with a prostitute in a local motel, Kenneth Graham was robbed at gunpoint by an intruder. Graham identified defendant, Marcus Gully,[1] as the perpetrator, and a jury convicted defendant of armed robbery. Defendant was adjudicated a second felony offender and sentenced to 49½ years at hard labor without benefit of parole. The two issues raised by defendant in his appeal are whether the evidence presented at trial met due process sufficiency standards and whether the conduct of defendant's counsel during the trial met constitutional competency standards. We affirm.

Sufficiency of the Evidence

Defendant argues that the jury should not have believed the testimony of the victim, Kenneth Graham, and defendant's accomplice, Nicole Myers (the prostitute who was with the victim at the time of the robbery), because they were high on cocaine at the time of the robbery, and their testimony contained inconsistencies and contradictions.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the court wrote:

In short, [In re] Winship[, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ], presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.

*1067 The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court a means to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App. 2d Cir.08/30/02), 827 So.2d 508, writs denied, 02-3090 (La.11/14/03), 858 So.2d 422, 05-0947 (La.01/27/06), 922 So.2d 541.

The critical inquiry is whether the record evidence, viewed in the light most favorable to the prosecution, could reasonably support a finding of guilt beyond a reasonable doubt.

Trial Testimony

Kenneth Graham testified that on the evening of May 2, 2004, he was driving in Shreveport when he saw a young white female he knew as "Nicole" on the street. Graham gave Nicole (who has several aliases but whose full name is Nicole Myers) a ride to the nearby Sessions Motel (also known as the Livingston Motel) on Pete Harris Drive, where Ms. Myers had a room. In her testimony, Ms. Myers stated that the two went to "handle business." She clarified that she was a prostitute and that Graham was one of her customers. Graham stated that once they got to the motel, Ms. Myers left the room briefly, then returned with some crack cocaine. Graham admitted that he was "buying sex from her" and that they had previously been together more than once but less than five times. On the other hand, Ms. Myers stated that they had previously been together between 10 and 30 times.

Graham testified that he and Ms. Myers smoked crack and had sex. According to Graham, he smoked about two rocks of crack. Ms. Myers estimated that the pair smoked about 40 rocks of crack, or $400 worth. According to Graham, Ms. Myers acted nervous and, after their encounter, she left the room a second time. When she returned, she was accompanied by a black male armed with a handgun. The armed man pointed the gun at Graham and said, "drop it, homeboy."[2] Graham did not understand the request so the intruder told him to drop his money. Graham turned over his wallet, which was empty, but refused to tell the man where his money was. The armed man cycled the slide on his pistol, ejecting a live cartridge onto the motel room floor, and ordered the victim to remove his clothes. Graham complied. Meanwhile, Nicole searched the room and went through Graham's personal effects. She found money in Graham's pants pocket and gave it to the armed man. The intruder took Graham's pants and wallet, ordered the victim not to report the crime because "he knew where I lived," and then fled along with Nicole Myers.

After waiting for a short time, Graham looked out the window of the motel room and saw his pants on the ground outside the room. As he retrieved his pants, Graham spotted a police officer nearby. Graham reported the crime to Shreveport Police Department Officer Tracy Stovall, who went back to the room with Graham and found a live .380 caliber bullet on the floor of the room. Graham told Officer Stovall that he knew the woman as "Nicki" and that he did not know the armed man. *1068 The officer's report states that Graham identified the armed robber as a black male; there are no other physical descriptions of the robber in the report. Graham did not tell Officer Stovall that he had smoked crack cocaine and had sex with Nicole Myers. The crime occurred at approximately 8:00 p.m.

No suspects were apprehended that night. On May 11, 2004, SPD Detective Michael McConnell interviewed Graham, who admitted to having sex with Ms. Myers on the date of the incident, but did not reveal that the two had smoked crack. Graham related to the detective that as he was putting his clothes back on, Nicki left the room and came back with a man, who pulled a semi-automatic on him and forced him to give up his money. The female assisted by searching Graham's clothing. According to Det. McConnell, Graham said that he could identify Nicki, but "might not" be able to identify the male suspect because he [Graham] "was trying to keep from looking at him [the robber]." At trial, however, Graham testified that the robber stood by the door, about five feet from him, and Graham was able to see the man clearly, without any obstructions of his view. He denied telling officers that he attempted to avoid making eye contact with or looking at the robber.

Days later, Det. McConnell located Nicole Myers on a street corner in the Allendale area of Shreveport. Police officers photographed Ms. Myers and used that picture in a photo lineup. Graham, without hesitation, identified Ms. Myers from the photo lineup as the woman involved in the robbery. Det. McConnell arrested Nicole Myers as a principal to armed robbery. Ms. Myers denied any knowledge of the crime and stated she was in Ohio on the date of the robbery.

Thereafter, an informant called Detective McConnell and told him that Marcus Gully was the man involved in the robbery. Detective McConnell testified without objection that, "[A confidential informant] advised that he had heard that I had arrested Nicki and that the individual who committed the armed robbery was the defendant, Marcus Gully.

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Related

State v. Franks
975 So. 2d 836 (Louisiana Court of Appeal, 2008)

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Bluebook (online)
963 So. 2d 1063, 2007 WL 2323371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gulley-lactapp-2007.