
    STATE of Louisiana v. Troy WEST.
    No. 95-KA-0411.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 1996.
    Writ Denied May 10, 1996.
    
      Harry F. Conniek, District Attorney of Orleans Parish, Kim Madere Graham, Assistant District Attorney of Orleans Parish, New Orleans, for the State of Louisiana.
    Sherry Watters, Orleans Indigent Defender Program, New Orleans, for Defendant.
    Before SCHOTT, C.J., and PLOTKIN and MURRAY, JJ.
   JiSCHOTT, Chief Judge.

Defendant was charged along with two co-defendants, Evans and Bell, with first degree murder. A motion to suppress the identification was denied, and a motion was granted severing defendant’s case for trial. At a previous trial Bell was acquitted and Evans was convicted of second degree murder. At his trial defendant was convicted of second degree murder and he was sentenced to life imprisonment.

A review of the record for errors patent reveals none.

Officer Peggy Martin testified that on August 5, 1993 at 3:00 a.m., she and her partner, Officer Marcel Foxworth, answered a call of an aggravated battery by shooting at Julien’s Food Store, which is near the Fischer Housing Project. A crowd of thirty people stood outside the store, and ten officers were already on the ^scene. They found the victim, Ike Wilson, face up in a pool of blood. Two other victims had also been shot: Darlene Thompson and Mark Hendrix, both of whom had been shot in the leg. She said that Julien’s was located around the corner from Michelle’s Bar. No one on the scene identified the perpetrators. She later went to JoEllen Smith Hospital where she learned that Wilson had been shot thirty-two times, and that he had died. She then went to Louisiana Medical Center where she learned that Thompson had suffered four gunshots to her legs, and Hendrix had suffered one gunshot to his leg. She spoke to Hendrix but he did not provide her with any information.

Burmegene Wilson, mother of the victim, admitted that her son had drug problems which interfered with potential college football scholarships. He had been taking classes to satisfy college entrance requirements, and had been staying at her father’s house which was near to the school. Hendrix, who is Burmegene Wilson’s stepbrother, and thus the victim’s “uncle”, also stayed at that house. She said that Hendrix was killed seven days after her son. She did not know the defendant, Bell, or Evans. On cross, defense counsel asked her whether she thought that the victim’s involvement in drugs had precipitated the killings, but she said she did not know.

Officer Carl Palmer, of the crime lab, said that he photographed the scene, and that he found nine 9 mm. casings and ten rifle casings on the scene.

Detective Michael Mims testified he interviewed Thompson at the hospital. He also said Tywanda Major was interviewed that night, but that he did not speak to her at that time. He knew that Major had viewed some photographs. As a result of the information, he obtained arrests warrants for the defendant, Bell, and Evans. He said that he later met with Thompson at a hotel on St. Charles Avenue. The officers moved her to the hotel because her life had been threatened. He ^showed her photographic lineups of Bell and Evans, and she identified the two men. He showed her a photographic lineup containing a two year old picture of the defendant but she was not able to identify him. He said he also spoke with Hendrix. He then sent Thompson and Major to California to live under assumed names. He was subsequently unable to contact Major.

Officer Clarene Gillard testified that some time after the murder, he and his partner Mark Mumme received a call that the defendant may have been at 1304 Bartholomew Street. They proceeded to the residence and spoke to the defendant’s mother and brother. His mother told them that the defendant was there, and she invited them in. As they entered the house, the mother screamed excitedly, “Troy, where are you going?” and “Don’t shoot my son.” He and his partner chased a man, whom they assumed was the defendant, through the back door and over several fences, but they were unable to catch him.

FBI Agent Victor Vasys, said that he apprehended the defendant September 16,1993 after a raid on an apartment in the Fischer Housing project. The defendant once again tried to escape, but he was captured after an elaborate chase.

Paul MeGarry, forensic pathologist with the Orleans Parish Coroner’s Office, testified the victim suffered twenty gunshot wounds. There were two types of wounds: some typical of handgun wounds and some typical of rifle wounds. The trajectories of the bullets indicated that some of the wounds were suffered while the victim was standing and others were suffered when he was falling or had already fallen. He said alcohol, cocaine and morphine were found in the victim’s system.

Officer John Treadaway, a NOPD firearms expert, testified that at least two guns were fired in this case.

LMargaret Bridgewater, wife of Ike Wilson’s grandfather and mother of Hendrix, said Wilson and Hendrix were both staying at her house. When she returned home from work at 5:00 p.m. on the afternoon before Wilson was killed, Wilson, Hendrix, Patrick Jackson and the defendant were at the house. She said the defendant’s nickname was “Nokie.” Wilson left the house first, driving a maroon Monte Carlo. Then, Hendrix, Jackson and the defendant left in Jackson’s white pickup truck. Wilson returned to the house with a girl to pick something up. They were on their way to a party. Hendrix and Jackson then returned after dropping off the defendant. She said that Hendrix told her who had shot him and that she was surprised. She said that Hendrix did not return to her house after he was released from the hospital because he was afraid that someone would kill him.

Thompson testified that she had moved to California because she felt her life was threatened. She said she knew Evans, known as “Combread”, Steven Bell known as “Weebe”, and Major for some time prior to the crime. Major picked her up on that night and they arrived at Michelle’s at 12:10 a.m. They saw Joyce Johnson at Michelle’s and the three of them left together. Outside, they saw Evans, Bell, and the defendant leaning against a red car she believed was a Sentra. Wilson was in his car in the parking lot. The three girls and a fourth girl named Saundra got into their ear and left for Ju-lien’s. Major went to use the phone. Darlene Thompson was waiting to use the phone to call Hendrix, but Hendrix drove up at that point in a white station wagon with Patrick Jackson. As she was talking to Hendrix, two people rounded the corner. She immediately saw “Cornbread” and her attention was drawn to the very large gun he was carrying: a gun that was “longer than his arm.” She heard gunfire from two guns: one made a loud “boom”, the other a “pop.” She ran to some bushes where she was struck four times in the leg. She saw a red car pull up and two perpetrators get in and | .gdrive away. She could not identify the second perpetrator. She admitted on cross examination that while she was staying in the hotel, she identified Steven Bell as the second perpetrator.

Joyce Johnson said she saw the defendant and “Cornbread” fire the guns. The defendant had a smaller gun than “Cornbread.” She said the two of them robbed her brother on a previous occasion.

The defense called Spencer Dawson, a friend of the defendant, who testified he was on the scene and witnessed the shootings. He said he did not know the perpetrators but that the defendant was not one of them.

Herbert Fleming testified he knew the defendant, Wilson, Thompson, and Johnson. He said that he was at Michelle’s and that he did not see any of them there. He said he did not see Johnson outside of Julien’s. He witnessed the shooting, and said that the defendant was not one of the perpetrators.

Talia Anderson testified that the defendant came to her house at 2:15 a.m. on the morning of the crime. He was at her house when they heard the shots.

The parties stipulated that a woman named Connie Wilson viewed a photographic lineup and was unable to identify the defendant.

By his first assignment of error defendant argues the evidence was insufficient to support the conviction. He concedes that the State proved that someone killed the victim when that perpetrator had the specific intent to kill or inflict great bodily harm. He argues, however, that the State failed to identify the defendant as the perpetrator. He argues Johnson’s identification of him was unreliable and that the trial court allowed identification testimony that was hearsay evidence of identifications.

On the issue of Johnson’s identification of the defendant he argues that this was a one-on-one, in-court identification taking place nearly a year after the crime | 6and he cites a number of cases which have held that such identifications are unreliable. However, this case is not one where the victim or witness saw the defendant for the first time when the crime was committed and later identifies him from a lineup or in court. In this case Joyce Johnson had known the defendant for years and was his next door neighbor. When she saw him shooting on the night of murder she knew exactly who he was. Her identification of the defendant was ironclad because she knew him well. The cases he cites have no application to this situation.

Next, defendant argues that the “highly suspect” identification of defendant by Johnson was bolstered by hearsay identifications made by Major, who was absent from the trial, through the testimony of Bridgewater and by Hendrix, who was dead, through the testimony of Detective Mims. The pertinent part of Bridgewater’s testimony is as follows:

Q Did you go to Charity Hospital to see your son?
A Yes, I did.
Q Did Mark tell you who shot him?
MR. MEYER: Wait.
THE WITNESS: Yes, he did.
MR. MEYER: Wait, wait, wait. Wait. Judge, you know this is—
MS. PADUA: Your Honor—
THE COURT: All right. All right.
MR. MEYER: Judge, this is irresponsible.
THE COURT: I’m going to sustain your objection.
Q Were you surprised by what Mark told you as to who shot him?
A Yes, I was.
MR. MEYER: Wait. Excuse me. Wait. Judge, I’m going to ask that either the D.A. is right in on this issue or we have a mistrial. I mean, I’m defending this man against an allegation that he killed someone else.
THE COURT: I’m going to sustain the objection. I’m going to sustain the objection as to whether or not she was surprised by what she had learned. I’ll sustain that objection.

|7The pertinent part of Mims’ testimony is as follows:

Q Okay. Now, before you got those arrest warrants, did you do any other interviewing, other than Darlene Thompson?
A Another person was interviewed. But I didn’t interview her at the time.
Q Okay. Did you review the information from the interviewer?
A Yes, I did.
Q And did you use that information to obtain any arrest warrants?
A Yes, ma’am.
Q Okay. Do you know the name of that other person?
A Yes. Tywanda Major.
Q Okay. Is that — is that somebody — a witness to the incident?
A Yes, ma’am.
Q Do you know whether or not any photographs were shown to Tywanda Major before you got your arrest warrants?
A Yes, ma’am.
Q And do you know when you got your arrest warrants?
A I got the arrest warrants on August the 5th at about seven (7:00) A.M.
Q Okay. And how many arrest warrants did you obtain in connection with the murder of Isaac Wilson?
A Three (3).
Q And you also obtained another warrant for whom?
A Just these three (3) warrants. One (1) for Troy West. One (1) for Steven Bell. And one (1) for Steve Evans.
Q And was Darlene Thompson — in looking at all of those photographs in the “State’s Exhibit Number Twenty-Six (26),” was she able to recognize any picture in that as being one (1) of the perpetrators?
A No, ma’am.

There are no hearsay identifications in this testimony. In Bridgewater’s ease she said only that she was surprised by what Hendrix told her as to who shot him. We cannot conclude that the only reasonable inference to be drawn from this statement is that Hendrix told her the defendant did it. He could have given another name which would have surprised her just as likely and as much as if the name was defendant’s.

As to Mims he was asked whether upon interviewing Darlene Thompson did he use that information to obtain any arrest warrants to which he answered yes. There followed this question and answer:

|gQ. And you also obtained a warrant for whom?
A. Just three (3) warrants. One (1) for Troy West. One (1) for Steven Bell. And one (1) for Steve Evans.

This testimony did not constitute an impermissible hearsay identification of defendant as one of the perpetrators. Thompson had testified that the only perpetrator she could identify was Evans. She did not identify the defendant as Joyce Johnson did. We interpret Mims’ testimony to mean that he was led directly to Evans from interviewing Thompson and based upon further investigation he obtained warrants for the three.

Even if defendant’s argument that the above testimony was inadmissible had merit the question on appeal would be to determine beyond a reasonable doubt that the improperly admitted hearsay did not contribute to the verdict. State v. Veals, 576 So.2d 566, 568 (La.App. 4th Cir.1991), writ denied 578 So.2d 931. In that case the court held that two of the factors to be considered in making this determination are the importance of the witness’s testimony and the overall strength of the state’s case. This vague testimony about Bridgewater’s being surprised and Mims’ about issuing an arrest warrant for defendant along with Evans and Bell were not important. Bridgewater’s statement did not necessarily refer to the defendant which is the only way the testimony could be deemed important. As to Mims everyone on the jury had to know that the defendant had been arrested as a result of an investigation conducted by Mims and others. The statement that questioning any witness led to his arrest is a self evident truism present in practically every criminal ease. It has no importance.

Finally, considering the overall strength of the state’s case this testimony hardly contributed to the verdict. Johnson told the jury her long time neighbor and acquaintance who was the defendant shot Wilson. The jury believed her. If they | ¡Jiadn’t the case would have fallen apart. The appellate court does not second guess the jury on a credibility call of this nature. For our purposes we must accept it. It is also noteworthy that Johnson’s testimony was bolstered by that of Darlene Thompson who saw the defendant with Evans and Bell at Michelle’s Bar just around the corner before the shooting and who positively identified Evans as one of the shooters.

By his second assignment of error defendant contends that he was deprived of a fair trial when the state depicted him as a person who had threatened witnesses and encouraged others to do so, participated in the murder of Hendrix, and participated in a robbery. As to the threats, when Thompson testified to this effect the objection was based upon hearsay and was sustained. There was no motion for a mistrial. Interestingly, these threats were directly received by Thompson so that her testimony concerning them did not constitute hearsay. The proper ground for objection was that the testimony was of other crimes and the proper remedy was a motion for mistrial pursuant to C.Cr.P. art. 770. In this connection defendant is raising an argument not made in the trial court and not properly before this court.

Next defendant complains about the testimony of Mims that provided an inference that defendant killed Hendrix. Defendant objected and asked for an admonition which the court provided. There was no motion for a mistrial.

While the foregoing two assignments of error are without merit for the reasons stated it may be that evidence of direct threats and intimidation of witnesses and the coincidence of the murder of a key witness just one week after the murder in question, along with the facts that all of these individuals were generally together on the night of the subject murder, most of them were acquainted with one another, and some were quite close to one another, could be |10made available to the jury if properly presented in accordance with the rules of procedure. The state’s dereliction was its failure to provide notice in advance of the trial of intention to produce evidence of those other crimes. However, its failure to do so was waived by defendant’s failure to object on this particular ground. A defendant may not take the calculated risk of not moving for a mistrial and then, after being convicted, argue that he was deprived of a fair trial when he knowingly waived the proper remedy.

Finally, defendant argues that the state unfairly produced evidence that defendant had committed an armed robbery against Johnson’s brother. This is based on 'a single statement made by Joyce Johnson in her direct testimony. After identifying defendant as her former next-door neighbor in the Fischer Housing Project the following occurred:

Q. And when was that you were living in the Fischer Housing Project that you came to meet Nokie?
A. I had been seeing him around, until one (1) time he robbed my little brother.

A fair reading of the testimony shows that she blurted this out without any suggestion by or solicitation from the prosecutor. In cross examination by defense counsel the details of this robbery were given to the jury. The isolated statement made on direct examination can hardly be considered as prejudicial.

Since the assignments of error and arguments discussed herein are without merit the conviction and sentence are affirmed.

AEFIRMED.

PLOTKIN, J., dissenting.

| iPLOTKIN, Judge,

dissenting.

Appellant contends that the only witness for the State to identify West as a perpetrator was concealed from the defense prior to trial and that this witness was unreliable and biased. According to the appellant, the State failed to prove West’s identity as perpetrator beyond a reasonable doubt. Specifically, appellant challenges Johnson’s in-court identification as untimely, unreliable, and prejudicial; and complains that the State succeeded in introducing two hearsay identifications to impermissibly bolster Johnson’s identification. According to the appellant, considering the record as a whole without hearsay, the State failed to prove that Troy West shot and killed Isaac Wilson.

Joyce Johnson was the only witness at trial to identify West as a shooter. Johnson, who had not made any pretrial identification, identified West, with whom she was familiar, in court as the shooter in an event that occurred approximately one year before trial. In State v. Johnson, 343 So.2d 155, 160 (La.1977), the Louisiana Supreme Court found that in-court identification procedures were not unduly suggestive because the identifying properties of the witness chair could be remedied on cross examination. Although in the instant case, defense counsel had |2the opportunity to cross examine Johnson and put the issues of her unreliability and bias before the jury, and the defense was notified twelve days before trial in the supplemental answers to defendant’s bill of particulars that Johnson would be compelled to testify, Johnson’s in-court identification was impermissi-bly bolstered by hearsay identifications, discussed below, to appellant’s prejudice.

Appellant complains that identifications of West by Major, who was absent, and by Hendrix, who was deceased, were admitted through the testimony of Bridgewater and Mims. According to the appellant, although neither witness relayed verbatim the hearsay identifications of Hendrix and Major, from the testimony of Bridgewater and Mims it could be inferred that Major and Hendrix had both identified West as the shooter. The majority, however, finds Bridgewater’s testimony to be devoid of hearsay, Mims’s to be permitted as an explanation of a police investigation, and error, if any, to be harmless.

Bridgewater later affirmed, out of the presence of the jury, that Hendrix had made an out-of-court statement to her that West had shot him. This statement was not made under belief of impending death. The statement is hearsay and no exception renders it admissible. Although Bridgewater did not relay Hendrix’s statement verbatim to the jury, it would have been extremely difficult for the jury to hear Bridgewater’s testimony that she was surprised at who shot her son, which was presented in the context of her own and her son’s familiarity with West, without inferring that Hendrix told her that West shot him.

In determining whether a hearsay identification that is indirectly placed into evidence should be deemed harmless error, we must determine beyond a reasonable doubt that the identification did not contribute to the verdict in light of the importance of this testimony in the prosecution’s case, whether the testimony is cumulative, any corroborating or contradicting evidence, the extent of cross-examination, and the overall strength of the prosecution’s case. See State v. 3Wille, 559 So.2d 1321, 1332 (La.1990); see also State v. Veals, 576 So.2d 566, 568-69 (La.App. 4th Cir.), writ denied, 578 So.2d 931 (La.1991). It is difficult to say beyond a reasonable doubt that Bridgewater’s testimony was harmless. This testimony encouraged the jury to infer that Hendrix told Bridgewater that West shot him. The only other clear identification of West as the shooter was Johnson, whose testimony conflicted with Dawson, Fleming, and Anderson, and was not corroborated by Thompson, who was the prosecution’s other eyewitness to the shooting. This indirect hearsay was not cumulative with or corroborated by other testimony and not readily subject to cross examination.

In contrast, Mims’s testimony required a greater inferential leap by the jury than Bridgewater’s. The Louisiana Supreme Court, however, discussed testimony like Mims’s in State v. Wille, 559 So.2d 1321, 1331 (La.1990) (footnotes and citations omitted), stating,

Admission of information received by a police officer in the investigation of a crime, on the basis that such information explains the officer’s presence and conduct and therefore does not constitute hearsay evidence, is an area of widespread abuse. Such information frequently has an impermissible hearsay aspect as well as a permissible nonhearsay aspect, and the court in determining admissibility should balance the need of the evidence for the proper purpose against the danger of improper use of the evidence by the jury. The fact that an officer acted on information received in an out-of-court assertion may be relevant to explain his conduct, but this fact should not become a passkey to bring before the jury the substance of this out-of-court information that would otherwise be barred by the hearsay rule.
When an out-of-court statement, such as information received by a police officer during an investigation of a crime, has both an impermissible hearsay aspect and a permissible nonhearsay aspect, the issue of relevancy becomes significantly interrelated with the hearsay issue. If the non-hearsay content of the statement has little or no relevance, then the statement should generally be excluded on both relevance and hearsay grounds. Marginally relevant nonhearsay evidence should not be used as a vehicle to permit the introduction of highly relevant and highly prejudicial hearsay evidence which consists of the substance of an out-of-court assertion that was not made under oath and is not subject to cross-examination at trial.

UMims’s testimony, like the testimony in Wille, had only marginal relevance at trial. Combined with Bridgewater’s testimony, it tended to impermissibly bolster Johnson’s identification of West as the shooter.

Appellant also contends that West’s rights to a fair trial and due process of law were violated by the State’s repeated and persistent efforts to introduce evidence of West’s alleged other bad acts. According to the appellant, the prosecution depicted West as a person who had threatened witnesses and encouraged others to do so, participated in the murder of Hendrix, and participated in a robbery.

From a review of the record it is apparent that throughout the trial, hearsay was used to create the impression that West had threatened witnesses, possibly killed Hendrix, and had previously participated in a robbery. Officer Mims testified that he interviewed Thompson at a hotel and sent Thompson and Major to California after Hendrix was killed because they had told him that their lives were in danger. Thompson testified that she went to California after Hendrix was killed because there was a rumor that she was in danger, and she testified that Major’s family was also scared for Major’s life. Johnson testified that she only came to court under a subpoena because she knew that West had put a hit out on her. Johnson explained that she could identify West and Evans because her brother had told her that West and Evans had robbed him. The defense’s objections to hearsay were sustained and the prosecution was admonished repeatedly. The court instructed the jury that the only crime Troy West was on trial for was the murder of Isaac Wilson, and the court denied the defense’s motions for mistrial.

It is clear that the prosecution engaged in low-level but constant and repeated misconduct in this trial. In fact, in a bench conference in one instance, the prosecution explained to the trial judge that such tactics were necessary to respond Isto the likely defense that there was insufficient evidence. Given the cumulative effect of the lack of evidence that West was the shooter, the admission of hearsay from which it could be inferred that out-of-court declarants had identified West as the perpetrator, and the repeated admission of hearsay that suggested that West had threatened witnesses, killed Hendrix to prevent him from testifying, and had engaged in other bad acts, I cannot find beyond a reasonable doubt that all of this when combined was harmless and did not contribute to the verdict.

Accordingly, I respectfully dissent and would reverse the conviction and sentence and remand the case for a new trial. 
      
      . Johnson was unreliable according to the appellant because the crime occurred approximately one year before the in-court identification and because she was running away or falling during the events she observed. Johnson was biased according to the appellant because she admitted that she disliked and feared West and because she believed that West had robbed her brother. Appellant also notes that Johnson did not stay at the scene, did not give a prior description or make a prior identification to compare with the in-court identification, that her testimony was inconsistent with other witnesses, and that she had been convicted of distribution of cocaine.
     