State v. Winzer

151 So. 3d 135, 2014 La. App. LEXIS 2418, 2014 WL 5002184
Louisiana Court of Appeal·Decided October 8, 2014·No. No. 49,316-KA·Published·Cited by 9 cases

Opinion

CARAWAY, J.

|T Jonterrance Winzer was charged by grand jury indictment and convicted as charged by a jury with the crimes of second degree murder and armed robbery. [138] Winzer received concurrent sentences of life imprisonment for the murder conviction and 99 years for the armed robbery. He appeals his convictions and sentences. We affirm.

Facts

On the afternoon of April 26, 2011, police were dispatched to the home of Johnny Ray Simmons in the Sensley’s Townhouses in Farmerville, Louisiana. Upon their entrance into Apartment 26, police discovered the body of Romon Johnson, who had been shot multiple times. Police investigation revealed the Johnson had been shot as he sold one-half pound of marijuana to Simmons and Nicholas Higgins. It was also learned that 24-year-old Jonterrance Winzer, his 16-year-old brother, Lonnele Shelton, and Meagan Ward had spent the previous night at Simmons’ apartment and were present during, but not privy to, the sale. Simmons’ girlfriend, Ladrina Gray, her niece, Gerreal Gray, and Simmons’ nine-month old daughter were also in the apartment at the time of the shooting.

Police ascertained that Winzer and Simmons were childhood friends. On April 25, after a chance meeting with Simmons, Winzer came by his friend’s apartment with his girlfriend and little brother and played dominoes late into the evening. The three ultimately spent the night at Simmons’ home.

| ¡.Police questioned all individuals present in the apartment at the time of the shooting. Those interviews resulted in Winzer and his brother being implicated as the shooters. Arrest warrants were issued for the two brothers who were ultimately apprehended and arrested in Oklahoma City, Oklahoma.

On May 23, 2011, the Union Parish Grand Jury returned an indictment, charging Winzer with the second degree murder and armed robbery of Johnson. The matter proceeded to trial, and on July 25, 2013, a 12-person jury found Winzer guilty as charged on both counts. Winzer was sentenced to concurrent sentences of life imprisonment for second degree murder and 99 years for armed robbery, without benefit of probation, parole, or suspension of sentence. Winzer did not file a motion to reconsider sentence, but lodged a timely appeal. His appellate counsel raises one assignment of error and in a pro se and supplemental brief, Winzer makes seven additional assignments or error.

Discussion

Sufficiency of the Evidence

In two pro se assignments of error1 and in Winzer’s assignment of error by counsel, the sufficiency of the evidence is challenged. Winzer argues that none of the eyewitnesses could positively testify that Winzer |sshot or robbed Johnson. Winzer points to inconsistencies in the witnesses’ statements and argues that Simmons’ and Warden’s testimonies were made with expectations of leniency in their own prosecutions. He contends that the witnesses’ testimonies which were fraught with internal contradictions and irreconcilable con[139] flict with physical evidence were not sufficient to support his convictions.

At trial, the state presented the testimony of eleven witnesses, including the Coroner, Dr. Frank Peretti, an expert in forensic pathology. Dr. Peretti testified that Johnson suffered from three gunshot wounds: one to his right eyelid, one in the back of his neck, and one to his right cheek. In Dr. Peretti’s opinion, the right eyelid wound was the fatal shot. He recovered a “small-caliber, non-jacketed bullets, .22’s.”

Both Simmons and Higgins testified. Simmons testified that he and Winzer grew up together. The two had seen each other the day before the incident and Win-zer, Ward and Shelton spent the night at his apartment. On the morning of the incident, Higgins called Simmons to set up a purchase of marijuana with an individual named Johnson, whom Simmons did not know. Simmons recalled that in the late morning, Gerreal Gray arrived at the apartment after getting out of school. She was the niece of Simmons’ girlfriend, La-drina Gray, who also lived in the apartment with the couple’s nine-month old baby. Higgins also arrived.

Near lunchtime, Simmons, Winzer, Shelton and Higgins left the residence to obtain food for everyone. Upon their return, Simmons testified that he and Higgins discussed the marijuana purchase and pooled $310. |4Simmons stated that although the two were originally going to Johnson’s residence, ultimately Johnson came to Simmons’ home. After entering the apartment, Johnson went to the kitchen to join Simmons and Higgins. According to Simmons, it was Higgins who gave Johnson the money for the one-half pound of marijuana contained in a plastic bag. As Johnson counted the money, Simmons smelled the “weed” to “see what grade I got.” Simmons claimed that immediately after the sale, he went to the bathroom and closed the door. As he came out of the bathroom, Simmons saw Shelton standing in front of the dishwasher in the kitchen. Simmons observed “[Shelton’s] hand up and I saw him with the pistol and he shot. That’s when he shot [Johnson].”

Simmons stated that Shelton shot Johnson from behind. He saw the victim fall to the ground. Simmons testified that he went back into the bathroom “soon as he shot [Johnson].” Simmons testified that after he went back into the bathroom, he heard “scuffling and stuff going on.” He peeked out of the door and saw “Winzer, Shelton and Higgins by the front door.” Simmons testified that he guessed “they were jumping on him at the time.” He heard another shot and then everything “calmed down.” Simmons testified that he “looked back out” and saw Shelton and Higgins “moving toward the table part.” As Simmons left the bathroom and ran upstairs, he saw Winzer “picking up the money.” Although he only “caught a glimpse” of Winzer, he was “arm distance” from him and “went right by him” as he ran up the stairs. Simmons recalled that he heard what sounded “like two more gun shots” while upstairs. Simmons also recalled hearing a knock at 15the front door and “running up my steps.” He feared for the safety of his girlfriend and daughter and came out of the bedroom. He saw Higgins, Shelton and Winzer “running out the door at the time.” Simmons stated that he then came downstairs and opened the screen door for police. He saw Johnson “laying down there,” and the bag of money and marijuana were gone.

On cross-examination, Simmons admitted that he pled guilty to accessory after the fact to second degree murder and armed robbery. He also acknowledged that he initially told the police he was upstairs the entire time and did not see [140] who shot Johnson but later gave a second statement in which he admitted being downstairs. He also stated that Winzer and Shelton had no part of the marijuana sale.

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State v. Winzer, 151 So. 3d 135, 2014 La. App. LEXIS 2418, 2014 WL 5002184 (La. Ct. App. 2014).

151 So. 3d 135 (State v. Winzer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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