State v. Harris

151 So. 3d 654, 2013 La.App. 4 Cir. 1134, 2014 La. App. LEXIS 3130, 2014 WL 4923013
Procedural entryThis page is a short order in State v. Harris. Read the opinion of the Court — 2011 La.App. 4 Cir. 0941
Louisiana Court of Appeal·Decided October 1, 2014·No. No. 2013-KA-1134·Published

Opinion

SANDRA CABRINA JENKINS, Judge.

17 Defendant, Leonard Harris, was charged by bill of information with one count of attempted second degree murder in violation of La. R.S. 14:(27)30.1. Following a three-day trial, the jury returned a verdict of guilty as charged. The trial court denied defendant’s motion for new trial and post-verdict judgment of acquittal and sentenced defendant to serve a term of fifty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant appeals his conviction. As his sole assignment of error, defendant asserts the trial court erred in denying his motion for new trial. After reviewing the entire record, we find no merit to defendant’s argument on appeal. For the reasons discussed herein, we affirm defendant’s conviction and sentence.

FACTUAL BACKGROUND

Shelly Nelson (“Shelly”) was shot near the corner of St. Roch and Vienna Street in New Orleans, Louisiana on the morning of March 24, 2008. At trial, Detective Hal Amos (“Detective Amos”) testified that when he arrived at the scene, he found Shelly slumped over her steering wheel suffering from multiple gunshot wounds. Detective Amos met with Shelly the day after the shooting in the hospital. Despite [656]*656Shelly having tubes down her throat, according to Detective |2Amos, Shelly was able to verbally identify Leonard Gaines, her ex-ñancé, as the shooter. Detective Amos testified that Shelly further stated the shooter was driving a blue Ford Expedition and that Gaines was the father of her child, drove a green Lexus, worked offshore, and was able to provide Gaines’ date of birth. Two days after the shooting, Detective Amos returned to the hospital and found Shelly’s condition had improved. Shelly informed Detective Amos that she had no recollection of identifying Gaines as her shooter, and the actual shooter was the defendant, Leonard Harris.

Steve Nelson (“Steve”), the victim’s brother, testified that he was the first person to arrive at the hospital and was present when his sister initially identified Gaines as her attacker. He said that Shelly could not talk, but was able to scribble “L-E-N-A-R-D” on a piece of paper before the officers arrived at the hospital. Steve stated he was also present when his sister identified the defendant as the shooter. Upon Shelly hearing Steve say the name “Pluck,” Gaines’ nickname, she clarified that it was the wrong “Leonard” ' and the defendant, Leonard Harris, was actually the shooter. Steve immediately went to the police station and relayed this information to Detective Amos. According to Steve, his sister never verbally stated that Gaines shot her.

Yolanda Nelson (“Ms. Yolanda”) is the victim’s mother. Ms. Yolanda testified that while in the hospital, she began calling out names once hei; daughter regained consciousness. According to Ms. Yolanda, when she said “Pluck,” her daughter did not respond, but when she said “Leonard,” Shelly’s “eyes kind of opened and rolled back.” Ms. Yolanda thought her daughter was responding to Leonard Gaines’ name because that-is the only person she, herself, knew named Leonard. Ms. Yolanda then informed the police that her daughter had identified ¡¡¡Gaines as the shooter. Ms. Yolanda testified that some time later, it was discovered that Gaines was not the shooter when Shelly specified Gaines was not the Leonard that shot her — it was the defendant, Leonard Harris.

Shelly testified that she and defendant had gone out with friends the previous night for Easter Sunday. After returning home with her girlfriends that night, defendant repeatedly called Shelly and eventually showed up at her house. When presented with her phone records from that night, Shelly testified that defendant called her twenty-six times that day. Shelly went outside to talk with defendant in his truck. Shelly claims, despite his copious attempts, she did not allow defendant to come inside as she had a housing inspection scheduled for 8:00 a.m. the next morning.

On the morning of the shooting, as she sat in the car waiting for the housing inspection, Shelly saw a man, wearing a bandana and black hat, with a gun through her rear view mirror. The man began shooting from the back of the car, came around the side of the car, and continued shooting. When a screaming lady appeared, the shooter pulled his bandana off and Shelly opened her eyes to see that the shooter was the defendant, Leonard Harris. Shelly immediately called her mother to tell her she had been shot.

When Detective Amos arrived at the scene, Shelly nodded yes when asked if she knew the shooter but was not .asked who it was at that time. Shelly also told Detective Amos that she saw a blue Expedition on the street shortly before she was shot which was gone when the police arrived. Shelly did not recall scribbling the name “Lenard” in the hospital but did remember [657]*657being presented the photo lineup wherein she identified defendant as the shooter. Shelly identified defendant in court as the person who shot her and when asked if she was positive, Shelly |4replied, “Yes, I am.” Shelly claims Detective Amos lied about her verbally identifying Gaines as the shooter when she was in the hospital. Shelly also did not recall providing the type of car Gaines drove or his birthdate, as she explained she was heavily medicated while in the hospital.

Based on the interview with Shelly, Detective Amos obtained an arrest warrant for Leonard Harris. The defendant was subsequently arrested and charged with the attempted second degree murder of Shelly Nelson.1

ERRORS PATENT

In accordance with La.C.Cr.P. art. 920, all appeals are reviewed by this Court for errors patent on the face of the record. After reviewing the record, we note one error patent. The trial court failed to follow the sentencing delays mandated by La.C.Cr.P. art. 873 when it issued an original sentence immediately after denying defendant’s motion for new trial and post-verdict judgment of acquittal.

This Court recently addressed the same error patent by stating:

In addressing a failure to abide by the sentencing delay mandated by Louisiana Code of Criminal Procedure article 873, the Louisiana Supreme Court has stated that when there has been no objection raised regarding the sentence imposed and no showing or suggestion that the defendant was prejudiced by the failure to observe the delay, judicial efficiency dictates that this court need not follow the useless formality of remanding for reimposition of a sentence which has not been challenged. Accordingly, this Court has held that where a defendant does not challenge his sentence on appeal, any failure to abide by sentencing delays pursuant to Louisiana Code of Criminal Procedure article 873 is harmless error. Therefore, the trial court’s error is harmless and merits no relief.

State v. Augustine, 12-1759, pp. 4-5 (La.App. 4 Cir. 9/18/13), 125 So.3d 1203, 1206, writ denied, 13-2484 (La.4/4/14), 135 So.3d 639 (internal citations omitted). The defendant has not assigned error as to his sentence. For the reasons expressed in Augustine, this error patent is harmless and merits no relief.

LAW AND ANALYSIS

In his sole assignment of error, defendant argues that the trial court erred in failing to declare a mistrial or grant a new trial.

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State v. Harris, 151 So. 3d 654, 2013 La.App. 4 Cir. 1134, 2014 La. App. LEXIS 3130, 2014 WL 4923013 (La. Ct. App. 2014).

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