## Facts

- Derrick Francois was charged in Jefferson Parish with second-degree murder (La. R.S. 14:30.1) for killing Chandrick “Smurf” Harris and intimidation of a witness (La. R.S. 14:129.1).
- The State presented motive evidence tied to the April 2011 killing of Francois’s brother, Delast Francois, and Harris’s hostile, profane comments at that earlier crime scene, which Delast’s family likely overheard.
- In August 2011, Harris was shot at the home of his mother, Lorraine Harris.
- Lorraine was on the phone with her friend, Carolyn Geary, when loud knocking occurred; Lorraine told Geary to stay on the line and went to the door.
- Lorraine recognized the visitor as Derrick Francois (Delast’s brother). Francois asked whether “Smurf” was asleep; Lorraine allowed him inside and he went to Smurf’s bedroom.
- Geary heard noises and voices through the phone (without understanding the words), then gunshots.
- Lorraine heard a gunshot and immediately told Geary, “He killed Smurf.”
- After the shooting, Francois pointed a gun at Lorraine’s head and ordered her to be quiet; she dropped the phone, begged him not to kill her, and Francois left.
- Lorraine called 911 and identified the shooter as “Delast’s brother.”
- The first trial ended in a mistrial; a second jury convicted Francois of both offenses. The trial court imposed life without benefits for murder and 20 years for witness intimidation, concurrent.
- On appeal, Francois challenged (among other issues) admission of Geary’s phone-call testimony as hearsay and under the Sixth Amendment, and challenged the sufficiency of the evidence.

## Issues

1. Whether Geary’s testimony about what she heard during the phone call (including Lorraine’s contemporaneous statements and the sounds of gunshots) was inadmissible hearsay and violated the Confrontation Clause.
2. Whether the evidence was sufficient to prove second-degree murder and intimidation of a witness beyond a reasonable doubt.
3. Whether any error patent in the sentencing record required corrective action.

## Decision

- The court affirmed the convictions and sentences.
- The court held Lorraine’s contemporaneous statements during the phone call were admissible under hearsay exceptions, including excited utterance and present-sense impression.
- The court held the admitted statements were non-testimonial and therefore did not violate the Confrontation Clause.
- The court held the evidence was sufficient for both second-degree murder and intimidation of a witness.
- The court remanded solely to correct a clerical/minute error reflected in the sentencing record.

## Legal Principles

- A statement made contemporaneously with a startling event, while the declarant is under the stress of the event and describing what is occurring, may be admitted as an excited utterance and/or present-sense impression.
- Confrontation Clause limits apply to testimonial hearsay; spontaneous, informal statements to a friend during an ongoing emergency, describing events as they happen, are non-testimonial.
- Sufficiency review asks whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find guilt beyond a reasonable doubt; credibility choices generally belong to the jury.
- Evidence that a defendant threatened a witness immediately after a crime (including pointing a firearm and ordering silence) can support a conviction for intimidation of a witness.

## Conclusion

The appellate court upheld Francois’s convictions for second-degree murder and intimidation of a witness, concluding that the phone-call account was properly admitted as non-testimonial excited utterances/present-sense impressions and that the eyewitness identification, contemporaneous 911 report, corroborating phone-call evidence, and intimidation conduct provided legally sufficient proof; the case was remanded only to correct a record error in the sentencing minutes.


State v. Francois, 134 So. 3d 42 (La. Ct. App. 5th Cir. 2014)