State v. Preston

118 So. 3d 1129, 12 La.App. 5 Cir. 798, 2013 WL 2121455, 2013 La. App. LEXIS 962
CourtLouisiana Court of Appeal
DecidedMay 16, 2013
DocketNo. 12-KA-798
StatusPublished
Cited by2 cases

This text of 118 So. 3d 1129 (State v. Preston) 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. Preston, 118 So. 3d 1129, 12 La.App. 5 Cir. 798, 2013 WL 2121455, 2013 La. App. LEXIS 962 (La. Ct. App. 2013).

Opinion

HANS J. LILJEBERG, Judge.

|2On March 4, 2010, a Jefferson Parish Grand Jury returned an indictment charging defendant, Andre C. Preston, with the attempted second degree murder of Cary Smoot in violation of La. R.S. 14:27:30.1 (count one), the second degree murder of P.D.1 in violation of La. R.S. 14:30.1 (count two), possession with intent to distribute cocaine in violation of La. R.S. 40:967(A) (count five), and possession of a firearm while in possession of marijuana in violation of La. R.S. 14:95(E) (count six).2 On March 12, 2010, defendant pleaded not guilty to all charges.

On February 13, 2012, defendant withdrew his pleas of not guilty to counts five and six only, and entered pleas of guilty. On count five, the trial court sentenced defendant to 15 years imprisonment at hard labor, the first two years to be served without the benefit of parole, probation, or suspension of sentence. And on count six, the trial court sentenced defendant to ten years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.

Defendant proceeded to trial on the remaining two counts, and on February 15, 2012, a 12-person jury returned verdicts of guilty as charged. The trial court denied defendant’s motion for new trial. Defendant waived sentencing delays, and the trial court sentenced defendant on count one to 50 years imprisonment at hard |3labor without the benefit of parole, probation, or suspension of sentence. And on count two, the trial court sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. These sentences were ordered to be served consecutively to each other as well as the sentences already imposed on counts five and six. Defendant’s motion for appeal was granted. FACTS

On September 12, 2009, Cary Smoot was in his vehicle leaving Advance Auto Parts [1131]*1131on Airline Highway in Kenner, when defendant exited a vehicle and discharged an AK-47 at least 17 times at Smoot.3 Smoot sped off, but his vehicle, shot numerous times, did not travel very far.4 He exited his vehicle and jumped into the vehicle of his friend, Walter Bailey, whom he had been following, and was driven to a police officer.

Johnny Campbell, a friend of defendant, testified that he remembered this shooting because he heard a gunshot, walked out of his house, and saw Cary Smoot get picked up in a car and speed off. Campbell walked to defendant’s house and told him that Cary Smoot had been targeted in a shooting. Defendant’s brother, Shaquille Preston, also testified that he was at home with defendant when Campbell arrived. After informing defendant of the shooting, Campbell and defendant then walked back to Campbell’s house, where they watched the police investigate the incident.

Officer Amanda Roh of the Kenner Police Department was on patrol when Cary Smoot flagged her down on Kenner Avenue. As the officer stopped her |4vehicle, Cary Smoot exited the passenger seat of his vehicle, and approached her in a state of panic, waving his arms in the air and claiming he had just been shot. He showed the officer a wound on his back, which was subsequently determined not to be a gunshot wound. Cary Smoot advised the officer that the incident occurred near 10th and Fairway Streets in Kenner. He gave the officer two names: “Roger” and “Kareem.”

At trial, Kirk McKenzie,5 a neighborhood acquaintance of defendant and Roger Chairs, testified that defendant told him Chairs was driving while he (defendant) shot at Smoot with an AK-47 on September 12, 2009.

However, when defendant took the stand at trial, he denied shooting at Cary Smoot. He said he was at home with his brother that day when Campbell came to his house and told him that someone shot Smoot. Defendant explained that Chairs told him that he (Chairs) shot at Cary Smoot. Defendant maintained that he was friends with Cary Smoot and that he had no trouble with Cary Smoot’s cousin, Louis Smoot. He claimed that a few days after the shooting, he even met with Cary and told him that he wasn’t the person who shot at him.

Fourteen casings were recovered in connection with this shooting. Jene Rauch of the Jefferson Parish Sheriffs Office Crime Lab, an expert in the field of firearm and tool mark identification, determined that all 14 casings were of the same type and were consistent with having been fired from an assault-type weapon such as an AK-47.

Six days after this incident, on September 18, 2009, Detective Jeff Adams of the Kenner Police Department interviewed Cary Smoot, who identified three individuals as the perpetrators: defendant as the shooter, Chairs as the driver, and |,.¡Kareem Nicholas as a passenger. Arrest warrants were subsequently issued for all three men.

[1132]*1132A couple of months later, on the evening of November 6, 2009, Cary Smoot encountered defendant at a football game at Buddy Lawson playground in Kenner. As defendant stood near the concession stand, he flashed Cary a black 9 mm Gloek handgun positioned in his waistband.

The next night, Cary saw his cousin Louis out with Calvin Bardell near Jesse Owens playground in River Ridge. Then, later that night, in the early morning hours of November 8, 2009, Cary was visiting his girlfriend on Bengal Road in River Ridge, when he heard at least 30 gunshots. Concerned for his cousin, he immediately called Louis, who told him that defendant and Chairs were shooting at him. Cary then called defendant to confront him.6 Defendant told Cary that he wasn’t trying to shoot Louis, that he was just trying to scare him, and that if he wanted Louis dead, he would have killed him.

At trial, Ernest Pollard and Calvin Bar-dell testified about the events in the late evening hours of November 7 and the early morning hours of November 8.7 On the night of November 7, 2009, Pollard was outside a bar when Chairs drove up in a black SUV with Joshua Moss and Samuel Baker. Pollard, an admitted drug addict, approached the vehicle and asked Chairs for some “dope.” While talking to him, Pollard noticed Chairs had a MAC-11 weapon in his lap. Pollard joined the men and rode around with them for a little while before being dropped off.

Then, later that night, Pollard was picked up by Bardell, Louis Smoot, and a fourth individual, Brandon Watson. The four men, looking to purchase marijuana, proceeded to Jesse Owens playground. Bardell was driving, Watson was sitting | behind him, Louis was in the front passenger seat, and Pollard sat behind him. While on South Upland Avenue near the playground, another vehicle driven by defendant pulled up behind Bardell’s vehicle. Chairs, Moss, and Baker were in the vehicle with defendant; Chairs was seated in the backseat. Defendant and Chairs began asking Bardell who was in the front seat next to him. Bardell did not answer, but noticed that a backseat occupant of the other vehicle was wielding a MAC-11. Louis Smoot, who appeared afraid, attempted to duck out of view and repeatedly told Bardell to drive off. As the tension between the two vehicles escalated, Pollard noticed defendant reaching for something. At this moment, Bardell fled south on Upland Avenue towards Jefferson Highway, prompting an eruption of gunfire from defendant’s vehicle. When Bardell reached Jefferson Highway, he turned left; defendant’s vehicle turned right.

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Related

State ex rel. Preston v. State
193 So. 3d 128 (Supreme Court of Louisiana, 2016)
State v. Austin
146 So. 3d 716 (Louisiana Court of Appeal, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
118 So. 3d 1129, 12 La.App. 5 Cir. 798, 2013 WL 2121455, 2013 La. App. LEXIS 962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-preston-lactapp-2013.