Court: Louisiana Court of Appeal; June 3, 2015; Louisiana; State Appellate Court
Felton Bernard appeals his conviction and sentence for four counts of first-degree murder under La. R.S. 14:30. He raises four errors: (1) insufficient evidence to prove he murdered Lionell and Leon Miskell; (2) failure of the State to establish the scientific basis for firearms evidence linking him to the murders of Diane Miskell and John Robinson; (3) the constitutionality of non-unanimous jury verdicts; and (4) excessive sentences. The court finds sufficient corroboration of witness testimonies and evidence to establish Bernard’s guilt in the murders of Lionell and Leon Miskell. The State successfully demonstrated the scientific foundation for the firearms evidence, allowing the jury to connect Bernard to the murders of Diane Miskell and John Robinson. The court also cites Louisiana jurisprudence affirming that the Sixth Amendment does not necessitate unanimous jury verdicts in state trials and that consecutive sentencing is not unconstitutionally excessive. Consequently, the court affirms Bernard’s convictions and sentences.
The case arose from a property dispute over a house in East New Orleans owned by Margie Miskell until her death in 2004. Her surviving children included Lionell, Leon, and Diane Miskell. Testimony revealed that Diane and Shirley Miskell were managing repairs to the property post-Hurricane Katrina, with Lionell and Leon expected to move in afterward. Disagreements surfaced regarding ownership rights and management of repair finances, with Bernard believing he inherited ownership. Witnesses, including Bernard’s brothers, reported seeing him and his friend Corey Berniard armed and involved in a confrontation over property ownership on November 4, 2006, culminating in Bernard slapping Lionell Miskell.
Tony Bernard tried to de-escalate a situation by giving money to the Defendant, who later left with Corey Berniard but returned to the residence. Tony witnessed the Defendant and Corey shoot Lionell Miskell and fled as the Defendant shot Miskell again. Afterward, Tony called his brother Bryan and aunt Diane Miskell without success, then reached out to his sister Angela to send someone to check on the situation due to his fear. A few days later, he identified the Defendant and Corey in photographic lineups presented by a NOPD detective.
Officers Reginald Gaines and Toka Clark responded to a report of a shooting at 4600 Camelia Street around 10 PM, finding Lionell Miskell's body in the street with multiple gunshot wounds. They later discovered a second victim, Leon Miskell, conscious and moaning in pain in the backyard of a nearby property. Officer Shonndell Fields, who recognized Leon from previous encounters, testified that he identified his shooter as 'My nephew, Felton Bernard.'
Ann Bernard, the Defendant's aunt, received a call from Angela Bernard asking her to check on Diane Miskell. Upon arriving at Diane's FEMA trailer, she found it open and unresponsive, then went to the Camelia Street residence where police were present. Officer Clark later found Diane Miskell and John Robinson dead in the trailer. Detective Greg Hamilton, assigned to the homicide unit, spoke with the responding officers upon arriving at the crime scene and subsequently identified the Defendant as a suspect based on their accounts.
Detective Hamilton oversaw evidence collection at the Camelia Street crime scene, which yielded three spent 9 mm casings, one 10 mm casing, a bullet, clothing, and blood samples. He was informed by Ann Bernard of a potential second crime scene on Dodt Street, prompting him to dispatch units for investigation. At Dodt Street, detectives found two bodies in a trailer, along with another spent 9 mm casing and photographs of the scene. Hamilton established a connection between the Camelia and Dodt Street incidents, linked to the shootings of Lionell and Leon Miskell. Ann Bernard provided a recorded statement, as did the Defendant’s brothers and fiancée, Emerald Lee. Hamilton conducted a photographic lineup with Tony Bernard, who identified the Defendant and Corey Berniard, leading to their arrest warrants. Sergeant McDaniel later arrested both suspects in Houston, following a tip from Emerald Lee.
At trial, Dr. Richard Tracy performed autopsies on the victims, confirming all deaths resulted from gunshot wounds classified as homicides. Leon Miskell had multiple entry wounds and died from complications linked to his gunshot injuries, despite hospitalization for pneumonia. Lionell Miskell suffered three fatal gunshot wounds, while Diane Miskell had a fatal head wound and a superficial shoulder wound. John Robinson died from a gunshot to the heart. Dr. Tracy confirmed bullets were recovered from all victims. Officer Kenneth Leary, a firearms examiner, testified about his role in determining the origin of bullets through microscopic analysis of markings on ammunition.
Unique markings on fired ammunition link them exclusively to the weapon that discharged them, making duplication impossible. Officer Leary investigated cartridge cases and bullets related to two homicide scenes, utilizing a comparison microscope to analyze evidence. He concluded that the 9 millimeter cartridge cases and bullets collected from Lionell Miskell’s autopsy and the Camelia Street residence were fired from the same weapon. Additionally, evidence from the Dodt Street crime scene, including casings and bullets linked to the autopsy of Diane Miskell, further indicated that these bullets originated from the same 9 millimeter firearm used in the Camelia Street shootings.
In March 2007, Felton Bernard and Corey Berniard were indicted on four counts of first-degree murder concerning the November 2006 deaths of Leon, Lionell, Diane Miskell, and John Robinson. The trial court later severed their trials and denied a motion to suppress identification evidence; it ruled Leon Miskell’s statements to police as admissible. After the State opted against seeking the death penalty, the trial commenced in October 2013, resulting in a guilty verdict on all counts. Bernard was sentenced to life imprisonment in November 2013, with concurrent sentences for counts 1 and 2, and counts 3 and 4 running consecutively to the first two due to the separate crime scenes.
The appeal raised issues regarding the sufficiency of the evidence supporting the murder convictions. Bernard contended that the evidence was inadequate to prove he murdered Lionell and Leon Miskell, disputing the admissibility of Leon’s statement as a "dying declaration." He also argued that the State did not sufficiently establish a scientific basis linking him to the murders of Diane Miskell and John Robinson. The reviewing court is tasked with assessing the constitutional sufficiency of the evidence, determining if a rational trier of fact could find guilt beyond a reasonable doubt when viewed in favor of the prosecution.
A reviewing court must not overlook its duty to evaluate evidence supporting the facts constituting a crime, even if such evidence exists. Rational fact finders may interpret evidence differently; thus, the view most favorable to the prosecution should be adopted. Judicial discretion is limited to ensuring due process protections. The court does not assess the credibility of witnesses but focuses on whether the evidence is sufficient for conviction. When a conviction is based on circumstantial evidence, it must include proof of collateral facts that reasonably support the main fact, excluding every hypothesis of innocence. This guideline aids appellate review regarding whether a rational juror could find guilt beyond a reasonable doubt. All evidence must meet the reasonable doubt standard established in Jackson v. Virginia. Conflicting evidence pertains to the weight of the evidence rather than its sufficiency, and the trier of fact determines witness credibility, which is given significant deference unless clearly unsupported by the evidence. The testimony of a single credible witness can suffice for conviction. A review encompasses all trial evidence, regardless of admissibility. If a key issue involves the perpetrator's identity, the State must eliminate reasonable misidentification probabilities. The defendant in this case was convicted of first-degree murder, defined as killing with specific intent to cause death or great bodily harm to multiple individuals, which can be inferred from the circumstances and the severity of the victims' injuries.
In State v. Seals, the Louisiana Supreme Court established that a defendant aiming and firing a lethal weapon towards victims demonstrates specific intent to kill. A conviction can occur even if the defendant did not personally fire the fatal shot, as all participants in a crime share equal culpability under the law of principals. Evidence against the defendant includes a dispute over property and money with his aunt and uncles, being armed with a friend during the shootings, and witness accounts of the shootings of Leon and Lionell Miskell. Additionally, ballistic evidence linked a single 9mm weapon to all four victims, indicating that the defendant likely shot his uncles before proceeding to shoot his aunt and her friend, John Robinson. The jury reasonably concluded the defendant acted with intent to kill or inflict serious harm on all victims, supporting his classification as a principal in the first-degree murders.
Regarding the defendant's challenge to the sufficiency of the firearms evidence, the Louisiana Supreme Court reaffirmed the Daubert test for the admissibility of expert scientific testimony, which requires that the trial court ensures such evidence is relevant and reliable. The court outlined factors for assessing the scientific validity of evidence, including whether the methodology has been tested, peer-reviewed, the potential error rate, and general acceptance within the scientific community.
For technical or scientific expert testimony to be admissible under Louisiana Code of Evidence Article 702, it must meet a threshold level of reliability, as established in Foret. The trial court has discretion to consider one or more of the four Daubert factors in determining this reliability, but these factors do not apply universally to all experts or cases. The trial court's decision regarding an expert's competence is subject to a standard of abuse of discretion. An expert’s competency is generally assessed based on their knowledge of the subject matter, which can be demonstrated through specialized training, work experience, and practical application of knowledge. Prior qualifications as an expert are also relevant.
In a specific case, Officer Leary provided testimony regarding his qualifications and experience as a ballistic expert, having testified in both state and federal courts. He explained his consistent testing methods, including the comparison of fired bullets and casings using a comparison microscope, which allowed him to conclude that bullets from multiple victims were fired from the same weapon. Despite defense counsel's challenges regarding Leary's membership in professional organizations and the reliability of his testing methodology, no evidence was presented to refute his methods. Consequently, the trial court found Leary's testimony to be based on reliable scientific methodology.
Additionally, the defendant contested the admissibility of Leon Miskell's alleged dying declaration, arguing it constituted hearsay and did not sufficiently establish his identity as the shooter. Hearsay is defined as a statement made outside of the current trial offered to prove the truth of the matter asserted, as per Louisiana law.
Hearsay is generally inadmissible unless specified by the Code of Evidence or other laws (La. C.E. art. 802). A trial court's decisions regarding evidence admissibility are largely upheld unless there is a clear abuse of discretion. A trial court has broad discretion to evaluate whether the probative value of evidence is outweighed by its prejudicial impact. Exceptions to the hearsay rule include dying declarations, defined as statements made by a declarant who believes their death is imminent, concerning the circumstances of that impending death (La. C.E. art. 804(B)(2)). Admissibility requires that the declarant is aware of their condition and impending demise, though explicit acknowledgment of this awareness is not necessary; it can be inferred from the surrounding context.
In the case at hand, the defendant contends that Leon Miskell did not believe he was dying when he stated that his nephew shot him, noting he survived over twenty days post-shooting. The court referenced precedents indicating that no definitive rule exists to determine a declarant's belief of imminent death; however, if the injury is life-threatening and the declarant dies shortly thereafter, courts typically accept the statement as a dying declaration. Previous rulings have allowed statements made in response to questions as dying declarations if made while the declarant was aware of their condition, with greater seriousness of injury increasing the likelihood that the victim believed they were dying. The court clarified that Miskell's survival beyond twenty days does not automatically invalidate his statement as a dying declaration, citing similar cases where statements were admitted despite the declarants lingering for extended periods before death.
In State v. Foote, 379 So.2d 1058 (La. 1980), the court ruled the victim's statements made to a neighbor and a deputy at the hospital were admissible as dying declarations, despite the victim remaining comatose for much of the time before his death eleven days later from six gunshot wounds. The court emphasized that a declarant's belief in impending death can be assessed through both their statements and the surrounding circumstances. Testimony indicated that Leon Miskell, who was severely injured and in significant pain, was lucid enough to identify the Defendant as his assailant despite fluctuating consciousness. Witnesses, including the Defendant's brother, corroborated the shooting incident. Furthermore, Miskell's statement was also admissible under the excited utterance exception to hearsay, defined as a spontaneous reaction to a startling event made while under the stress of excitement. The court noted factors such as the timing of the statement and whether it was self-serving or reflective. The trial court must evaluate if sufficient time passed for the emotional state to settle before a reflective thought process could resume. Prior cases established the principle that statements made under immediate stress, such as a victim identifying their assailant shortly after being injured, are admissible under this exception.
The trial court's admission of statements under the dying declaration and excited utterance exceptions was upheld, as no error was found. Even if such testimony were improperly admitted, the Supreme Court has established that the introduction of hearsay testimony can be deemed harmless error if it is merely cumulative of other evidence presented. The record indicates that the trial verdict was unaffected by any alleged error regarding inadmissible evidence. Moreover, the identification of the Defendant by his brother, Tony Bernard, remained valid regardless of an out-of-court identification by Leon Miskell, which was also corroborative.
Regarding the constitutionality of non-unanimous jury verdicts, the Defendant contends that such verdicts violate the Sixth and Fourteenth Amendments. Louisiana law permits non-unanimous verdicts in certain cases, requiring only ten jurors to concur. The Defendant references the Supreme Court case Apodaca v. Oregon, which upheld non-unanimous verdicts, and argues this precedent should be reconsidered in light of Apprendi v. New Jersey. However, Apprendi dealt with sentencing enhancements and did not directly address jury unanimity. The Louisiana Supreme Court, in State v. Bertrand, reaffirmed the constitutionality of non-unanimous verdicts, and subsequent rulings, including State v. Barbour, supported this stance. The Defendant's argument for a right to unanimous verdicts based on recent jurisprudence is therefore rejected.
The U.S. Supreme Court has established that most protections of the Bill of Rights apply to the states via the Fourteenth Amendment, but it clarified in Apodaca that while the Sixth Amendment mandates unanimous jury verdicts in federal trials, this requirement does not extend to state trials. The Court reaffirmed this position in McDonald.
In the matter of the Defendant's appeal regarding four consecutive life sentences, it is argued that these sentences are unconstitutionally excessive. The appellate counsel points out that the prior defense counsel failed to object or seek reconsideration of the sentences, claiming this constituted ineffective assistance of counsel. Generally, ineffective assistance claims are better suited for post-conviction relief applications, allowing for a full evidentiary hearing. However, they may also be addressed on appeal if supported by sufficient record evidence.
To succeed in an ineffective assistance claim, a defendant must demonstrate that counsel's performance was deficient and that this deficiency resulted in prejudice. The standard established in Strickland v. Washington requires showing that counsel’s serious errors deprived the defendant of a fair trial and that there is a reasonable probability the outcome would have been different but for those errors.
The Defendant must prove that if an objection or motion for reconsideration had been filed, the sentencing issue would have been found meritorious by the court. The Louisiana Constitution prohibits excessive punishment, and although a sentence may fall within statutory limits, it remains subject to constitutional review for excessiveness.
A sentence is deemed unconstitutionally excessive if it is grossly disproportionate to the offense or inflicts unnecessary suffering. A trial judge possesses broad discretion in sentencing, which cannot be overturned by a reviewing court unless there is a clear abuse of that discretion. A sentence is considered grossly disproportionate if it shocks the sensibilities of justice when the crime and its punishment are evaluated against the societal harm inflicted. The key inquiry for appellate review is not the appropriateness of an alternative sentence but whether the trial court abused its discretion. Compliance with statutory sentencing guidelines, particularly La.C.Cr.P. art. 894.1, is essential, though the focus is on whether there is an adequate factual basis for the sentence rather than strict adherence to the guidelines.
Resentencing is unnecessary if the record supports the imposed sentence. An appellate court must assess whether the trial court’s sentence is excessive in relation to the defendant and the case context, bearing in mind that maximum sentences should be reserved for the most severe offenders. The trial court has discretion regarding whether sentences run concurrently or consecutively. Although the trial court did not provide reasons for the sentences imposed, this omission is deemed irrelevant given the circumstances, particularly in cases of mandatory minimum sentences. Lastly, La.C.Cr.P. art. 883 stipulates that sentences for multiple offenses arising from the same act or scheme should be served concurrently unless the court specifies otherwise.
Sentences of imprisonment are generally served consecutively unless the court specifies otherwise. Louisiana law allows for consecutive sentences even when offenses arise from a single act, provided the trial judge considers factors like the offender’s criminal history and the nature of the crimes. In this case, the trial judge imposed consecutive sentences for four counts of first-degree murder based on two separate acts, which was deemed appropriate. The court found no error in this decision and noted that the defendant had not demonstrated ineffective assistance of counsel or that the sentences were excessive. Testimony and evidence presented at trial supported the jury's guilty verdict, and the court upheld that a non-unanimous jury verdict does not violate due process rights. The imposition of consecutive sentences for offenses stemming from separate acts was also ruled not to be unconstitutional. Consequently, the defendant's convictions and sentences were affirmed. Additionally, the court noted that other jurisdictions have upheld greater sentences for fewer or lesser convictions, further supporting the appropriateness of the sentences in this case.
