State v. Harris

968 So. 2d 229, 2007 WL 2966025
Procedural entryThis page is a short order in State v. Harris. Read the opinion of the Court — 968 So. 2d 187
Louisiana Court of Appeal·Decided September 26, 2007·No. 2006-KA-1295·Published

Opinion

968 So.2d 229 (2007)

STATE of Louisiana
v.
Kenneth R. HARRIS.

No. 2006-KA-1295.

Court of Appeal of Louisiana, Fourth Circuit.

September 26, 2007.

*230 Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.

Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.

(Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).

EDWIN A. LOMBARD, Judge.

The defendant, Kenneth R. Harris, appeals his conviction for being a convicted felon in possession of a firearm, a violation of La. R.S. 14:95.1.[1] After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant's conviction.

Relevant Facts and Procedural History

On December 23, 2004, New Orleans Police Department (NOPD) Officers Kendrick Bankston and Thomas Felix of the Third District were dispatched in response to a call reporting an armed robbery that occurred in the 200 block of Camp Street. Upon their arrival, the victim provided the officers with a brief description of the robber and the officers drove through the area looking for the perpetrator. At the intersection of Laurel and Josephine Streets, the officers saw the defendant walking down the street in clothes matching the victim's description of the robber's clothes. Officer Felix opened the passenger door of the police unit and directed the defendant to approach. Rather than complying with the request, the defendant backed up and retrieved a handgun from his waistband and then ran away. Officer Felix pursued the defendant on foot while Officer Bankston attempted to intercept him with the police vehicle.

In the 800 block of Adele Street, Officer Bankston parked and, as he exited the vehicle, heard a gunshot. Following the sound of the gunshot, Officer Bankston found his partner, Officer Felix, lying on his back on the ground with the defendant straddling him. Being separated from the two men by a six and one-half foot fence, Officer Bankston immediately called in a signal 108 (police officer's life in danger). As he did so he heard his partner call to him that there was a gun by his foot. Officer Bankston looked down and saw a weapon. Shortly thereafter, several officers *231 from the Sixth District arrived on the scene in response and assisted Officer Felix in subduing the defendant. The gun was subsequently formally seized.

The defendant was arrested and charged with being a felon in possession of a firearm. On March 1, 2005, he was arraigned and entered a not guilty plea on March 1, 2005. On August 16, 2005, the defendant was tried in front of a twelve-person jury.

Both Officer Bankston and Officer Felix testified at trial. On cross-examination, Officer Bankston conceded that when he and his partner first observed the defendant and decided to conduct and investigatory stop, the defendant was simply walking down the street with a female and there was nothing unusual in his behavior. When the defendant took off running, his female companion did nothing. Officer Bankston further testified that he observed the defendant in possession of the handgun, both when he first pulled it out of his waistband and again while he was fleeing from the officers. Officer Bankston admitted that he lost sight of both the defendant and his partner as they ran through a driveway in the new St. Thomas development and, accordingly, did not see the defendant discard the weapon.

Officer Felix's testimony substantially corroborated that of his partner. According to Officer Felix, after he opened the car door to speak with the defendant, the defendant backed up, raised his shirt, and pulled out a weapon. He pursued the defendant on foot on Josephine Street to Annunciation Street and then into a driveway area. When Officer Felix entered the area between two buildings, he quickened his pace in hopes of stopping the defendant from escaping through the driveway but then realized that a fence prevented the defendant from going further. The defendant pointed his gun directly at Officer Felix and Officer Feliz fired his own weapon at the defendant, hitting the building. The defendant then turned around and attempted to climb the fence and, in the process, dropped his weapon onto the ground on the other side. Officer Felix pulled the defendant off the fence and held onto him until other officers arrived to assist him. Officer Felix identified the gun submitted into evidence as the gun he saw the defendant throw over the fence.

Officer Jay Jacquet, stipulated to be an expert in the identification of fingerprints, testified on behalf of the State. Officer Jacquet stated that he compared the fingerprints of the defendant, which he took in court, with fingerprints on the back of an arrest register and another set on the back of a bill of information from case number 445-527 and that the fingerprints obtained from the defendant in court matched those on the back of the arrest register and on the back of the bill of information.

The State also presented the testimony of Suzanne Fourcade, a probation and parole officer for the Louisiana Department of Corrections. Ms. Fourcade testified that she supervised the defendant's probation in connection with a conviction for possession of cocaine and, as part of her duties she informed the defendant of the conditions of his probation, including a prohibition on carrying firearms or dangerous weapons. Ms. Fourcade identified the form the defendant signed indicating he was aware of the conditions.

The State's final witness, Mary Beyer, a crime scene investigator for the NOPD, identified various crime scene photographs that she took on the night of the defendant's arrest, as well as various pieces of physical evidence taken from the scene.

The defense attempted to present Nikema Wright as its first witness, but was not *232 allowed to do so due to the witness's violation of the sequestration order and, according, the sole witness for the defense was the defendant. He stated that on the night of December 23, 2004 he was walking to the store with Nikema Wright when a police car drove up. Officer Felix exited and came toward him, at which point he turned and ran. With Officer Felix in pursuit on foot, the defendant stated that he ran until he came up against a fence. At that point, Officer Felix pulled him off and hit him in the head with his weapon, and the gun discharged. The defendant was told to stay on the ground, which he did. The defendant stated that he suffered injuries that required stitches and staples. The defendant denied ever being in possession of a weapon. He stated that he ran from the police because he was trying not to go to jail just before Christmas.

The jury returned a verdict of guilty as charged and, on January 17, 2006, the court sentenced the defendant to serve ten years at hard labor without the benefit of probation, parole, or suspension of sentence. The court also imposed a mandatory fine of $1,000.00 but suspended payment.

Errors Patent

A review of the record reveals no errors patent.[2]

Discussion

In his sole assignment of error on appeal, the defendant argues that he was denied the constitutional right to present witnesses on his own behalf due to the trial court's sua sponte decision to bar his only witness from testifying due to her alleged violation of the sequestration order.

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State v. Harris, 968 So. 2d 229, 2007 WL 2966025 (La. Ct. App. 2007).

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