Opinion
2013 KA 0702
01-23-2014
STATE OF LOUISIANA v. DERRICK GEORGE GORDY
Prentice L. White Louisiana Appellate Project Baton Rouge, Louisiana Attorney for Defendant/Appellant, Derrick George Gordy Hillar C. Moore, III District Attorney Mark Pethke Ronald Gathe Dylan Alge Assistant District Attorneys Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee, State of Louisiana
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 10-09-0544
The Honorable Trudy White, Judge Presiding
Prentice L. White
Louisiana Appellate Project
Baton Rouge, Louisiana
Attorney for Defendant/Appellant,
Derrick George Gordy
Hillar C. Moore, III
District Attorney
Mark Pethke
Ronald Gathe
Dylan Alge
Assistant District Attorneys
Baton Rouge, Louisiana
Attorneys for Plaintiff/Appellee,
State of Louisiana
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
DRAKE, J.
The defendant, Derrick George Gordy, was charged by grand jury indictment with two counts of second degree murder, violations of La. R.S. 14:30.1. The defendant pled not guilty. The defendant filed a motion to suppress a 911 recording, and the trial court granted the motion in part as to one statement on the recording. The trial court denied the motion to suppress as to the remainder of the 911 recording. The State filed an application for supervisory review with this court, seeking review of the trial court's ruling on the motion to suppress. This court reversed the trial court's ruling, specifically finding that the excluded statement was made in the course of interrogation by the Sheriff's Office dispatcher and for the sole purpose of resolving the ongoing emergency situation. This court further noted that the question posed by the dispatcher was necessary to evaluate the situation under investigation at that particular time. State v. Gordy, 2011-2420 (La. App. 1st. Cir. 3/12/12) (unpublished writ action). Therefore, the entire 911 recording was admitted at trial.
The indictment included two codefendants, Demario Alexander and Jay Winters. The trial court granted the defendant's motion to sever, and according to amendments to the indictment, Alexander's second degree murder charges were reduced to accessory after the fact to second degree murder, and Winters' second degree murder charges were dismissed subsequent to a guilty plea in another case.
After a trial by jury, the defendant was found guilty of the responsive offense of manslaughter, a violation of La. R.S. 14:31, on both counts. The trial court sentenced the defendant to forty years of imprisonment at hard labor on both counts, to be served consecutively. The trial court denied the defendant's oral motion to reconsider sentence. The defendant now appeals, challenging the admission of the 911 audio recording and the constitutionality of the sentences. For the following reasons, we affirm the convictions and sentences.
When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). The minutes indicate that the sentences were imposed without the benefit of probation, parole, or suspension of sentence. However, the sentencing transcript reflects that the trial court corrected itself and imposed the sentences without the restrictions.
STATEMENT OF FACTS
On September 30, 2009, near 10:00 p.m., officers of the East Baton Rouge Parish Sheriff's Office were dispatched to South Sunderland Avenue, near the King Bradford Drive intersection, in response to a shooting. The two victims of the shooting, Patricia Aldridge ("Aldridge") and her son, Ronald Thacker, were transported by EMS to Ochsner Hospital. During the minutes leading up to the shooting, Thacker was completing the process of moving out of his apartment on South Sunderland Avenue, which was across the street from the apartment occupied by his mother (victim Aldridge) and his stepfather, David Aldridge. Thacker's friends and roommates-to-be, Anthony Tarleton and Michael "Brandon" Pace, were helping him load some leftover items. Joshua Williams, who lived off King Bradford Drive, was also with them at the time. Thacker sent Tarleton to get one final item while the others waited by the pickup truck. As Tarleton retrieved the item, he saw three African-American males outside of the apartment, and one of them threatened to kill him if he told anyone about their presence. Tarleton, who was visibly afraid due to the threat, immediately told the others about the intruders.
Thacker, Pace, Williams, Kenji Gray (Williams' roommate) and the Aldridges started looking for the intruders. Aldridge called for emergency assistance as they pursued the individuals. Mr. Aldridge temporarily lost sight of Thacker as he was running behind the apartment buildings. Mr. Aldridge decided to head back towards their apartment and tried unsuccessfully to persuade Aldridge to end the pursuit. Pace did not know the individuals, but he testified that two African-American males had a physical altercation with Thacker before they left. As two of the African-American males ran down King Bradford Drive, Williams recognized them as the defendant and Alexander. Gray also recognized the individuals and referred to them as "D" (the defendant) and the "Little One."
Williams recalled "chilling" or hanging out with the defendant and Alexander earlier that day and had known them for a couple of weeks. Gray also recalled seeing the defendant and the "other guy" that day and noted that Williams had brought him over to their apartment, where Gray sold them a pair of shoes.
According to the testimony of the defendant's friend, Jay Winters, around 9:00 p.m. someone started banging loudly on his apartment door; when he opened the door, the defendant and Demario Alexander were outside. Winters' apartment was located on Yorkfield Drive. According to Winters, the defendant ran in, took one of his guns, and left. As the defendant and Alexander ran to the end of Yorkfield Drive toward the intersection of Sunderland Avenue and King Bradford Drive, Winters and two acquaintances got in the vehicle that Winters was renting at the time and followed them. They lost sight of the defendant and Alexander before pulling over on King Bradford Drive and exiting the vehicle when they saw a crowd of people on Sunderland Avenue.
Winters testified that he knew the victims, as he was a marijuana dealer, and Aldridge often purchased marijuana from him.
When Williams spotted the defendant again, he noticed that the defendant was armed with a gun. As he headed back to the apartment, Mr. Aldridge also observed the defendant, whom he recognized from seeing him in the neighborhood on other occasions, following behind Thacker. At that point, Mr. Aldridge ran back toward his wife as she turned the corner. He saw a vehicle as it came speeding up the alleyway between Yorkfield Drive and Sunderland Avenue. Winters, whom he also recognized since he lived in the area, exited the passenger side of the vehicle. As Winters ran toward them, Mr. Aldridge pushed his wife behind him and braced himself for a confrontation with Winters, who appeared to be unarmed. At that point he heard three or four gunshots and as he turned around, he saw his wife as she was being shot. Aldridge's phone call with emergency assistance was still active and the shots were recorded on the call. Pace testified that he observed Thacker as he was being shot, and Gray saw Aldridge and Thacker being shot before he ran inside to check on his own daughter. Williams testified that he not only observed the victims as they were shot multiple times, but also observed the shooter, whom he positively identified as the defendant. Aldridge was pronounced dead on arrival at the hospital, and Thacker died shortly after arrival. Both deaths were due to multiple gunshot injuries.
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant contends that the trial court erred in partially granting the State's request to play the 911 call in front of the jury and that this court erred in ruling that the call could be played in its entirety. The defendant argues that there was no material or relevant information to be gained from the recording. The defendant further argues that there should have been a determination as to whether the evidence in question was testimonial or nontestimonial. The defendant contends that the 911 recording did not shed any light on any statutory factors necessary for the State to satisfy its burden of proof and that "its only purpose was to get the jury to understand the gory nature" of the offenses. The defendant concludes that his convictions must be reversed because there was no probative value in the State's prejudicial use of the 911 recording.
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. All relevant evidence is admissible, except as otherwise provided by positive law. Evidence which is not relevant is not admissible. See La. Code Evid. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403.
In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. amend. VI. The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004).
Aldridge contacted 911 at approximately 9:49 p.m., requested to be connected to the Sheriff's Kleinpeter Substation, and reported the sighting of several African-American male intruders. Aldridge observed the perpetrators running up a neighboring street in the area. Aldridge yelled to the dispatcher, "there they go," and began to pursue the perpetrators while still on the phone with the dispatcher. Aldridge advised that she was running up King Bradford Drive toward O'Neal Lane. On the 911 recording, Aldridge can be heard running with her phone. The dispatcher requested additional information after Aldridge lost sight of the perpetrators. The dispatcher asked Aldridge why the perpetrators threatened to kill her and her son. Aldridge replied, "because my son is moving out of his apartment, and one of my friends went to the back door to go get some stuff, and they said, 'since you seen me, I know where you live, and if you call the law or tell anybody, we're coming back to shoot you.'" While Aldridge was still on the line with the dispatcher, the perpetrators returned to the area. Aldridge can be heard advising the dispatcher, "Here they come." Aldridge then screams and a series of gunshots can be heard. Aldridge continues to scream and eventually states, "I'm dead." The dispatcher attempts further conversation with Aldridge to no avail.
In granting the defendant's motion to suppress in part, the trial court found that the first part of the conversation was nontestimonial (wherein Aldridge was providing information on the purpose of the call and describing her location and the events that were transpiring) and the latter part of the conversation (wherein Aldridge was screaming as she was dying) fell into the category of an exception to the hearsay rule. However, the trial court ultimately concluded that the question between the dispatcher and Aldridge regarding why the perpetrators threatened to kill Aldridge and her son constituted testimonial evidence barred by Crawford. The trial court ordered this portion of the call suppressed. This court reversed that ruling, and the entire 911 recording was played at the trial. State v. Gordy, 2011 - 2420.
In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Court revisited Crawford and specifically addressed the issue of whether "statements made to law enforcement personnel during a 911 call or at a crime scene are 'testimonial' and thus subject to the requirements of the Sixth Amendment's Confrontation Clause." Davis, 547 U.S. at 817, 126 S.Ct. at 2270. In Davis, the victim initiated a 911 call while involved in a domestic disturbance with her former boyfriend. In response to the 911 operator's questions, the victim identified her attacker as Davis and described the specifics of the ongoing assault. At trial, the court admitted the recording of the 911 call despite the fact that the victim did not testify. Davis, 547 U.S. at 817-19, 126 S.Ct. at 2270-71. After noting that Crawford was not helpful in characterizing the victim's statements as testimonial or nontestimonial, the Court concluded that statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. The Court further concluded that statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis, 547 U.S. at 822, 126 S.Ct. at 2273-74.
After applying this test to the facts in Davis, the Court concluded that the victim's statements in the 911 call at issue therein were nontestimonial. The Court reasoned that "[a] 911 call, ... and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to 'establis[h] or prov[e]' some past fact, but to describe current circumstances requiring police assistance." Davis, 547 U.S. at 827, 126 S.Ct. at 2276 (citation omitted). The Court noted that the victim was "speaking about events as they were actually happening, rather than 'describing] past events'" and that "[a]lthough one might call 911 to provide a narrative report of a crime absent any imminent danger, [the victim's] call was plainly a call for help against bona fide physical threat." The Court also found that the nature of the questions posed by the 911 operator indicated that the purpose of the interrogation was to "resolve the present emergency, rather than simply to learn ... what had happened in the past." Finally, the Court noted that the fact that the victim's "frantic answers were provided over the phone, in an environment that was not tranquil, or even ... safe" indicated that the statements were nontestimonial. Davis, 547 U.S. at 827, 126 S.Ct. at 2276-77.
Similarly, we find in this case that the recording of the 911 call by the victim was nontestimonial. It was made under circumstances objectively indicating that the primary purpose of any questioning of the victim was to enable police assistance to meet an ongoing emergency. The call was made within minutes of the initial sighting of the intruders, the threat to kill, and in conjunction with further sightings of one of the intruders, the defendant in particular, with a gun. The call was made while one of the victims was running in the neighborhood pursuing the intruders, who eventually returned to the area where the two victims and others were, and the gunfire can be heard on the recording as it was taking place. Further, the questions posed by the dispatcher were necessary to evaluate the situation under investigation at that particular time. The recording was also admissible under the hearsay exceptions for present sense impression and excited utterance, because the victim was describing or explaining the events while she was under the stress of excitement caused by the threats and subsequent approach of the intruders/perpetrators. See La. Code Evid. art. 803(1) & (2). We find no merit in assignment of error number one.
ASSIGNMENT OF ERROR NUMBER TWO
In assignment of error number two, the defendant argues that the consecutive forty-year sentences imposed, herein totaling eighty years, are equivalent to a life sentence. Noting that he was a minor at the time of the offenses, the defendant argues that the sentences are illegal in light of Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The defendant notes that children have diminished culpability and have greater prospects for reform. The defendant further notes that the right to not be subjected to excessive sanctions is magnified when the offender is a child, and children are less deserving of the most severe punishment. The defendant contends that he did not anticipate that he would be subjected to a life sentence that did not carry the benefit of probation, parole, or suspension of sentence. On this basis, the defendant contends that the trial court's imposition of eighty years of imprisonment on a child is excessive and a clear violation of the Eighth Amendment's prohibition of cruel and unusual punishment.
We note at the outset that the defendant's assertion that the sentences were imposed with parole restrictions is incorrect, as previously noted herein. We further note that the record before this Court does not contain a written motion to reconsider sentence. Louisiana Code of Criminal Procedure article 881.1(A)(1) provides: "In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence." Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the State or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. La. Code Crim. P. art. 881.1(E); State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam).
In State v. Jones, 97-2521 (La. App. 1st Cir. 9/25/98), 720 So.2d 52, 53, this court held that a defendant who made a general oral motion to reconsider his armed robbery sentence at sentencing and later timely filed a written motion to reconsider sentence, urging in the written motion only that he had been convicted of the offense and sentenced to thirty years of imprisonment at hard labor, was precluded from obtaining appellate review of his assignment of error alleging an excessive sentence. It is well settled that a contemporaneous objection to a sentence on excessiveness grounds alone preserves only a bare claim of excessiveness. See State v. Caldwell, 620 So.2d 859 (La. 1993); State v. Mims, 619 So.2d 1059, 1059-60 (La. 1993) (per curiam). In light of State v. Caldwell and State v. Mims, the clear and unequivocal wording of La. Code Crim. P. art. 881.1(E), and this court's holding in State v. Jones, we find that a general objection to a sentence preserves nothing for appellate review. See State v. Bickham, 98-1839 (La. App. 1st Cir. 6/25/99), 739 So.2d 887, 891.
The general oral motion to reconsider sentence in that case was as follows: "Your Honor, at this time we would orally move for a reconsideration."
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Herein, after the sentences were imposed, the defense counsel stated as follows: "Note for the record, your honor, our objection to the sentence of the court for record purposes . . . . Your honor, in connection with that, it would be our intent to file a written motion for reconsideration. I'll make an oral motion for reconsideration of sentence at this time." The trial court noted the defense counsel's initial objection and denied the oral motion for reconsideration of sentence. The oral motion by the defense counsel did not voice any particular objection to the sentences. Thus, the defendant's failure to urge a claim of excessiveness or any other specific ground for reconsideration of the sentences by oral or written motion at the trial court level precludes our review of his claim of sentence excessiveness on appeal. This assignment of error lacks merit.
CONVICTIONS AND SENTENCES AFFIRMED.