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STATE OF LOUISIANA VERSUS MICHAEL L. CURTIS DEMOND T. SOLOMON

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NO. 2011-KA-1676 COURT OF APPEAL

* FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 489-816, SECTION "H" Honorable Camille Buras, Judge ****** Judge Edwin A. Lombard ****** (Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Joy Cossich Lobrano) Leon A. Cannizzaro, Jr. District Attorney Matthew C. Kirkham Assistant District Attorney 619 South White Street New Orleans, LA 70119 COUNSEL FOR APPELLEE, STATE OF LOUISIANA Powell W. Miller LOUISIANA APPELLATE PROJECT P.O. BOX 4121 New Orleans, LA 70178-4121 COUNSEL FOR DEFENDANT/APPELLANT, MICHAEL L. CURTIS Mary Constance Hanes LOUISIANA APPELLATE PROJECT P. O. Box 4015 New Orleans, LA 70178-4015 COUNSEL FOR DEFENDANT/APPELLANT, DEMOND T. SOLOMON AFFIRMED

MARCH 13, 2013

The defendants, Michael Curtis and Demond Solomon, challenge the sufficiency of the evidence underlying their respective convictions for manslaughter and raise other assignments of error pertaining to the validity and constitutionality of their convictions. In addition, defendant Curtis contends that his sentence is unconstitutionally excessive and illegal. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendants' convictions and sentences. Relevant Procedural History The defendants were jointly charged by grand jury indictment on August 27, 2009, with second degree murder, a violation of La. Rev.Stat. 14:30.1, for the shooting death of Lindsey Singleton which occurred on March 29, 2009.1 On September 2, 2009, they pleaded not guilty. After a hearing on March 12, 2010, the trial court denied defendants' motions to suppress the evidence and identifications. The defendants' trial before a twelve-person jury began on February 14, 2011, with jury selection. The trial court denied the defendants' motion to declare La. Code Crim. Proc. art. 782(A) unconstitutional on February 15, 2011, and the following day both defendants were found guilty of

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manslaughter. The trial court denied defendant Curtis's motion for new trial and defendant Solomon's motion for post-verdict judgment of acquittal on May 26, 2011, and, after waiver of sentencing delays, both defendants were sentenced to forty years at hard labor. On June 22, 2012, defendant Curtis was adjudicated a second-felony habitual offender, his original sentence was vacated and he was resentenced to eighty years at hard labor with credit for all time served. The defendants' appeal is timely filed. Relevant Facts The following evidence was adduced at trial. On the evening of March 29, 2009, Officer Thomas Clark of the New Orleans Police Department (NOPD) Sixth District responded to a call pertaining to a shooting incident at 1223 South Johnson Street in the B.W. Cooper Housing Development. He arrived at the scene and observed a black male lying on the steps at that address, bleeding profusely. That individual, Lindsey Singleton, subsequently died. Detective Nicholas Gernon of the NOPD arrived at the scene at approximately 7 p.m. to assist in the murder investigation. Although he canvassed the area and attempted to speak to potential witnesses, no one gave him their own names or that of any of the perpetrators. NOPD Crime Lab Technician Shaheed Mohammed photographed the crime scene and collected evidence, including at least two CBC .40 S&W caliber cartridge casings, and wrote a report.

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A third individual, Dwayne Butler, was also charged in the same indictment. The State severed defendant Butler's trial, and he ultimately pleaded guilty to accessory after the fact to second degree murder.

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Danielle Singleton, the victim's sister, testified that she was sitting in her parked car with the door open in the driveway of the South Johnson Street residence when her brother was shot. Just before the shooting, he had walked over to her to get a cigarette and returned to the porch where ten or fifteen people were gathered, including Calvin Rankins and their cousin Venezia Singleton. Ms. (Danielle) Singleton was talking on her cell phone when she heard gunshots. After ducking down, she lifted her head and saw a white Grand Prix speed out of the driveway in front of her car. Looking back towards her brother, she saw him run towards her, grab his back, turn around, run to the other side of the driveway, and collapse on a porch. She did not see the license plate or the driver of the car but asserted that a photograph of a white Grand Prix depicted the same model of car, if not the specific car, that she saw drive away after the shooting. She admitted that she and her brother both knew defendant Curtis as a former resident of the housing project but was unable to say whether his (defendant Curtis) relationship with her brother was friendly or one of conflict. Calvin Rankins testified that he was sitting on the porch with the victim, someone he knew only as "Nunu," (subsequently identified as Venezia Singleton) and other persons when a white Pontiac stopped for a speedbump halfway through the driveway in front of them and "Demond" rolled down the window of the front passenger seat (which was closest to the porch) and pointed a gun. As "Demond" brought up the gun to fire, Mr. Rankins ran. Mr. Rankins subsequently identified "Demond" in a photographic lineup as defendant Solomon. He also identified the driver of the vehicle in another photo lineup shown to him by the police, as well as an individual he referred to as "Bam" in a third photo lineup as the passenger in the backseat of the vehicle. Although
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Mr. Rankins identified the photo lineups relating to the two defendants, he was unable to definitely identify them in court. Specifically, when first asked whether he saw the shooter and the driver in court, Mr. Rankins replied in the affirmative but then identified defendant (Michael) Curtis as the driver referring to him as "Kevin" and when asked again whether he saw the shooter in court, Mr. Rankins replied in the negative. Mr. Rankins reiterated, however, that the individuals he picked out in the photo lineups were the individuals he saw on the day of the murder. He also asserted that the police did not promise him anything, coerce him in anyway, or force him to make an identification when they showed him the photo lineups. He stated that he did not know any of the people involved personally and that the only person he had seen prior to the day of the shooting was "Kevin," and that was just around the project. Mr. Rankins declared he had never seen "Bam" or the individual he referred to as "Demond" before the shooting but that people in the project told him the names of "Bam" and "Demond." On redirect examination, Mr. Rankins confirmed that the person he identified as "Demond," number five in the photo lineup labeled State Exhibit 41, was the shooter. When asked if he was certain of his identification, he replied affirmatively. When asked again on recross examination whether, as he had previously stated, he did not see the shooter in the courtroom, Mr. Rankins replied: "I guess not. I don't see him. Not right now I don't. He could be somewhere else. I don't know." In a recorded bench conference after Mr. Rankins was excused as a witness, the State moved to have the court permit the jury to be made aware of the fact that defendant Solomon had obscured his facial tattoos with makeup. Ultimately, the State read a stipulation to the jury, agreed to by defense counsel, to the effect that defendant Solomon had makeup applied to his forehead for trial that obscured his
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facial tattoos. In addition, the defendant removed the makeup at the direction of the court and stood in front of the jury so that the jurors could observe his face without the makeup. Venezia Singleton, a cousin of the victim, testified that she was sitting to the left of the victim when shots rang out from the white Grand Prix automobile. Ms. Singleton stated that she saw the window of the vehicle being rolled down and then someone stick a gun out. The first shot fired hit the ground, but the shooter continued firing. As she ran behind a car on her left, she felt a bullet graze her. Her cousin ran in the other direction where there was no cover and, once shot, grabbed his side, staggered across the driveway and collapsed on a porch. Ms. (Venezia) Singleton remembered seeing Mr. Rankins on the evening of the shooting. She identified defendant Solomon in court as the shooter and defendant Curtis as the driver of the white Grand Prix. Ms. Singleton stated that, although she was there when the police arrived she did not speak to them at the scene. She explained that no one at that time was really talking to the police because the focus was on the victim. On cross-examination, Ms. (Venezia) Singleton stated that the white Grand Prix slowed down but did not come to a complete stop. She again confirmed that she never talked to police about the shooting. She explained that, although the police had tried to contact her through family members, they did not have her real name as at the time of the shooting she went by the nickname "Nunu." Moreover, she knew that the individuals responsible had been arrested and were incarcerated. Ms. Singleton stated that she did not decide to testify until the week before the trial. Upon being called by the District Attorney's Office and informed that the defendants were going to trial, she agreed to come forward as a witness. Ms.
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Singleton stated that she learned defendant Solomon's name after the incident from the people who, she surmised, he had been trying to shoot. Ms. Singleton stated that she had never been shown a photo lineup but that the shooting incident was unforgettable. On further cross examination, Ms. Singleton stated that she saw two people in the vehicle and that the car windows were tinted, but not darkly. She testified that the windshield was not tinted and that she was able to see both defendants as the car approached the driveway, prior to the passenger side window being rolled down. Although she did not recognize the driver at the time of the shooting, she stated he was sitting in the courtroom. She did not remember what hairstyle the driver had that day

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