State v. Lindsey

129 So. 3d 759, 2012 La.App. 4 Cir. 1195, 2013 WL 6115139, 2013 La. App. LEXIS 2396
CourtLouisiana Court of Appeal
DecidedNovember 20, 2013
DocketNo. 2012-KA-1195
StatusPublished
Cited by4 cases

This text of 129 So. 3d 759 (State v. Lindsey) 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. Lindsey, 129 So. 3d 759, 2012 La.App. 4 Cir. 1195, 2013 WL 6115139, 2013 La. App. LEXIS 2396 (La. Ct. App. 2013).

Opinion

TERRI F. LOVE, Judge.

[ t John Lindsey (“Mr. Lindsey”) appeals his conviction for aggravated assault and possession of a firearm by a convicted felon arising from events in November of 2008. On appeal, Mr. Lindsey claims that the trial court erred when it allowed the State to introduce evidence of the 2007 aggravated assault at trial and when it denied his motion for new trial based on newly discovered evidence. We find that Mr. Lindsey failed to lodge a contemporaneous objection as required by La.C.Cr.P. art. 841; and thus, he is precluded from raising the issue of the admissibility of the 2007 aggravated assault incident on appeal. We also find that the trial court did not err in denying his motion for new trial as the newly discovered evidence is not of such a nature that “it would probably have changed the verdict or judgment of guilty.” La.C.Cr.P. art. 851. Moreover, the record reveals an error patent in Mr. Lindsey’s original vacated sentence wherein the trial court failed to impose a mandatory fine, and we remand the matter for resentencing. Therefore, Mr. Lindsey’s conviction is affirmed and the matter is remanded for resentencing in accordance with this opinion.

\ .PROCEDURAL HISTORY

Mr. Lindsey was charged by bill of information for offenses occurring in November of 2008 including attempted murder of Richard Ricks (“Mr. Ricks”), aggravated assault of a peace officer with a firearm, and two counts of possession of a firearm by a convicted felon. Mr. Lindsey filed several motions to quash and to sever the counts; however, the trial court denied his motions.

The State then filed a motion pursuant to State v. Prieur, 277 So.2d 126 (La.1973), to introduce evidence of Mr. Lindsey’s arrest for two counts of aggravated assault with a firearm arising from a 2007 drive-by shooting at Mr. Ricks’ residence. In support of its Prieur notice, the State submitted several police reports and accompanying documents that were generated during the police investigation of the incident.1 The trial court granted the State’s motion and issued a written ruling. The trial court concluded that given the similarities of the two incidents, notably that both drive-by shootings targeted two of the three victims in the subject prosecution and that the evidence was more probative than prejudicial, the evidence could be admitted at Mr. Lindsey’s trial.

Following a jury trial in the present matter, Mr. Lindsey was found not guilty as to the attempted second degree murder of Mr. Ricks and possession of a firearm by a convicted felon occurring on November 28, 2008. The jury, however, found Mr. Lindsey guilty of the lesser included offense of aggravated assault as to |3count three and found Mr. Lindsey guilty as charged of possession of a firearm by a convicted felon on November 25, 2008.

Mr. Lindsey subsequently filed motions for new trial and post judgment acquittal, which the trial court denied. Thereafter, the trial court sentenced Mr. Lindsey to six months in Orleans Parish prison relative to his aggravated assault conviction and to fifteen years at hard labor' for possession of a firearm by a convicted felon. [762]*762The State then filed a multiple offender bill of information alleging Mr. Lindsey to be a second felony offender. At the multiple bill hearing, Mr. Lindsey pled guilty to the multiple bill pursuant to a plea agreement. The trial court vacated the previously imposed sentence and sentenced the defendant according to the plea agreement to twenty-two years at hard labor to run concurrent with his six month sentence in Orleans Parish prison for aggravated assault.

Mr. Lindsey filed a motion for appeal, which the trial court granted. The appeal record was lodged with this Court, and thereafter, Mr. Lindsey filed in the trial court a motion for new trial based on newly discovered evidence. Mr. Lindsey then filed with this Court a motion to remand. This Court granted the motion and remanded the case for the sole purpose of allowing the trial court to rule on the motion for new trial.

A hearing on Mr. Lindsey’s motion for new trial was held, and the trial court denied the motion concluding that the newly discovered evidence would not have changed the verdict. The record on appeal was supplemented with a transcript of Lthe hearing, and Mr. Lindsey filed a supplemental assignment of error based on the trial court’s ruling on the motion for new trial.

FACTUAL BACKGROUND

The facts leading to Mr. Lindsey’s arrest and prosecution in the present matter took place over the course of two days in November of 2008. Additionally, the State introduced Prieur evidence from June of 2007 that the trial court found to be admissible in the present matter.

Events of June 2007

Detective Timothy Sisón

Because the trial court allowed the State to introduce evidence of the June 2007 incident, the facts surrounding the Prieur evidence are discussed first.

Detective Timothy Sisón (“Detective Si-son”) testified that in June of 2007, he investigated a drive-by shooting that took place at 1145 Terry Street. He testified that he proceeded to the location and spoke to victims Mr. Ricks and Mr. Kevin Roy (“Mr. Roy”). While at the scene, Detective Sisón learned that officers had stopped a vehicle in connection with the shooting, and two individuals had been apprehended. The two victims were then relocated to the site of the apprehension where the victims were able to identify the two suspects.

Detective Sisón testified that he was able to develop Mr. Lindsey as an additional suspect in the shooting and obtained a photograph of Mr. Lindsey which he then presented to Mr. Ricks and Mr. Roy for identification. Both men identified Mr. Lindsey as the third participant in the shooting. Detective Sisón then obtained |5a warrant for Mr. Lindsey’s arrest. Detective Sisón testified that following Mr. Lindsey’s arrest he provided Detective Si-son with a statement; however, the State failed to establish a predicate for the statement, and it was not introduced at trial in this matter.

Sergeant Henry Laurent

Sergeant Henry Laurent (“Sergeant Laurent”) testified that in June of 2007 following the report of a drive-by shooting, he was en route to 1145 Terry Street when he observed a white 2006 Mazda Millennium with temporary tags turn north from Terry Street onto De Alma Street at a high rate of speed. Suspecting the vehicle was involved in the incident Sergeant Laurent activated his lights and siren and pursued the vehicle. Sergeant Laurent testified that the chase ensued for several blocks and the Mazda entered the Gilmore [763]*763Park apartment complex. Sergeant Laurent testified that the vehicle was occupied by three people and that Mr. Lindsey was the driver. He also testified that as the vehicle neared the rear of the complex, it performed a quick turn between two buildings and struck a tree.

All three occupants then exited the vehicle and began to run together in the direction of another patrol car. Sergeant Laurent testified that rather than follow the subjects, he traveled around to the opposite end of the building and encountered Mr. Lindsey. Sergeant Laurent stated that Mr. Lindsey was holding a black semi-automatic pistol in his right hand and aimed the weapon at him. Sergeant Laurent testified that he fired two shots at Mr. Lindsey who then ran to the back fence of the complex, dropped his pistol, and escaped.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Small
189 So. 3d 1129 (Louisiana Court of Appeal, 2016)
State v. Briley
151 So. 3d 633 (Louisiana Court of Appeal, 2014)
State v. Watkins
146 So. 3d 294 (Louisiana Court of Appeal, 2014)
State v. Weathersby
140 So. 3d 260 (Louisiana Court of Appeal, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
129 So. 3d 759, 2012 La.App. 4 Cir. 1195, 2013 WL 6115139, 2013 La. App. LEXIS 2396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lindsey-lactapp-2013.