State v. Nelson

705 So. 2d 758, 1997 WL 774604
Louisiana Court of Appeal·Decided December 17, 1997·No. 96-KA-0883·Published·Cited by 4 cases

Opinion

705 So.2d 758 (1997)

STATE of Louisiana
v.
Manuel NELSON and Lawrence Peters.

No. 96-KA-0883.

Court of Appeal of Louisiana, Fourth Circuit.

December 17, 1997.

*759 Keith Couture, Chalmette, for Defendant-Appellant Manuel Nelson.

Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for Defendant-Appellant Lawrence Peters.

Harry F. Connick, District Attorney, Theresa A. Tamburo, Assistant District Attorney, New Orleans, for Plaintiff-Appellee.

Before KLEES, LANDRIEU and CIACCIO, JJ.

KLEES, Judge.

On October 6, 1994, appellants Lawrence Peters and Manuel L. Nelson were charged by bill of indictment with the second degree murder of William Henry Jones on July 16, *760 1994, and the second degree murder of Edward Elbert Wynn on July 10, 1994. The trial was completed on August 17, 1995, with verdicts of guilty as charged as to both defendants on both counts. On October 17, 1994, appellant Nelson was sentenced to life imprisonment at hard labor without parole. On October 27, 1994, appellant Peters was likewise sentenced to life imprisonment at hard labor without parole.

Nelson moved for appeal shortly after sentencing. Peters subsequently moved for an appeal which was granted on July 10, 196.

FACTS

On July 10, 1994, at around 2:30 a.m., in the 3700 block of North Dorgenois in the Florida Housing Project, Edward Elbert "Little Wynn" Wynn was shot several times by two assailants. The autopsy revealed that the victim had eighteen gunshot wounds entering from the front and back and from the base of his neck, down his torso and through his extremities. Although the toxicology report indicated a high level of alcohol and the presence of cocaine, the cause of death was from the gunshot wounds.

On July 16, 1994, at around 9:30 a.m., in the 3800 block of North Dorgenois in the Florida Housing Project, William Henry "Peewee" Jones was shot several times by two assailants. The autopsy revealed that the victim had fifteen gunshot wounds entering from the front and back. The toxicology report from this autopsy likewise revealed a high level of alcohol and the presence of cocaine, but the cause of death was from the gunshot wounds, several of which would have been immediately fatal.

Mary Jenkins witnessed the July 10 murder. She was alerted by someone who told her that her son was arguing with two men. She then observed the two defendants shooting the victim. After the shooting stopped and the defendants left the scene, she saw that the victim was not her son. She recognized both defendants. She knew them as "Sonny" (defendant Nelson), who grew up with her son, and "Lawrence" (defendant Peters), who lived in the area. Jenkins did not immediately notify the police that she witnessed the first murder because she was frightened. Subsequently, she heard Sonny bragging to people downstairs from where she was staying, as to how he killed "Peewee," (the July 16 victim). Jenkins then went to the Homicide Division and identified both perpetrators from photographic line-ups and made a statement.

Valerie Robair testified that she witnessed both murders. In the case of the July 10 murder, Robair was unable to sleep and so was looking out of her front window when she observed the victim standing next to a car talking to some people for a few minutes. The defendants told the victim to get off the car. The car pulled away and the defendants opened fire on the victim. After the victim fell to the ground, the perpetrators continued shooting. Although Robair recognized the perpetrators, she was afraid to notify the police. In the case of the July 16 murder, Robair had just stepped outside with a drink of water and her four-year-old had followed her outside. She observed the victim get out of a red car and walk around the building. When he came back to the front, the defendants started shooting. Again the defendants continued shooting the victim after he fell to the ground.

Robair knew both of the defendants. Sonny (Nelson) went to school with her son and Lawrence lived in the area. Following the July 16 murder, Robair called Crimestoppers to report that she had witnessed the murders and knew the perpetrators. She was presented with a photographic lineup from which she recognized defendant Nelson, but was afraid to sign her name to the photograph. At the time of that interview, Homicide Detective Michael Mims did not have a photographic line-up of Peters. Robair only knew Peters by his first name, but called Det. Mims when she saw Peters on the street. She advised Det. Mims of Peters's location, a clothing description and a physical description, which included tattoos of a cross and teardrops on his face.

Mary Gonzales, sister of the July 16 victim, Peewee Jones, advised the police after the shooting that her brother's vehicle was missing. The vehicle was subsequently located in the 3200 block of North Dorgenois, six blocks from the shooting. The driver's door had a *761 bullet hole, grazings and blood on it. Detective Mims interviewed Tyrone Smothers and Leroy Adams, who drove the vehicle the six blocks and parked it. Smothers and Adams admitted witnessing the shooting but denied seeing the face of either shooter. The other eyewitnesses did not identify Smothers, Adams or another named suspect, Elliot Montana, as the shooters.

As to both shootings, the eyewitnesses saw no actions by the victims against the shooters. The witnesses further saw no weapons in the hands of the victims, nor were weapons found on the scene.

The ballistics report, which was entered into evidence by stipulation because the ballistics expert was unavailable, indicated that the shell casings at both scenes were fired by two weapons; and the casings at the first scene were fired by the same weapons as the casings at the second scene.

Danielle Johnson testified for defendant Nelson that she and Nelson were walking to the store on July 16 when they heard the gunshots. They then went to the scene to see what happened. She further testified that she and Nelson were asleep in bed when the July 10 murder occurred.

Kenneth Alford and Giselle Robinson testified for defendant Peters that they were with Peters on July 10, from 10:00 p.m. until 4:30 a.m. the next day, at Club Rumors. The witnesses testified to being with Peters on Sunday evening, July 10. The murder of Peewee Jones occurred at 2:30 a.m. on July 10, early Sunday morning.

II. ASSIGNMENTS OF ERROR—NELSON

ASSIGNMENT ONE

The appellant argues that the District Attorney withheld relevant and necessary Brady material from the defendant, which could have changed the result of the trial. "The suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). Evidence is material, and hence discoverable, if there is a "reasonable probability" that the outcome of the trial would have been different had the evidence been disclosed to the defense. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). Evidence that the government failed to disclose to the defendant is considered collectively, not item-by-item, in determining whether the "materiality" requirement of a Brad

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State v. Nelson, 705 So. 2d 758, 1997 WL 774604 (La. Ct. App. 1997).

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