Fresno appellate court tosses gang member's conviction

The Fresno BeeJuly 7, 2014 

A Fresno appellate court has tossed out the conviction of a Fresno gang member who was sentenced to 110 years in prison for a 2008 drive-by shooting that wounded two innocent bystanders, including a promising Washington Union High School football player.

The 5th District Court of Appeal said Fresno County Superior Court Judge Gary Orozco erred by allowing Fresno police detective Andre Benson to give improper opinion testimony about an accomplice in the 2012 criminal trial of James Edward Hicks.

During the trial, Benson testified that he believed Eric Carolina was telling the truth when he said he was the driver of the car that was involved in the October 2008 shooting of Washington Union football player Dante Smith, then 17, and his friend, Dashawn Roland, then 15.

Carolina, who was given a plea deal to testify against Hicks, identified Hicks as the shooter.

Because Carolina was an accomplice to the shooting, his testimony had to be corroborated by an independent witness, the appellate justices said. But the only other witness to the shooting -- Roland's stepmother -- initially picked another person out of a police photo lineup, the justices noted.

On a second try, the stepmother picked Hicks.

The stepmother's "inconsistent identifications of the shooter ... may very well have led the jury to place undue emphasis on detective Benson's opinion testimony regarding Carolina's credibility," the justices wrote.

Because Carolina's credibility was a critical issue in the trial, the justices wrote: "The jury here may very well have relied on the detective's positive assessment of the accomplice's veracity to resolve that issue against the defendant."

Therefore, Benson's testimony could have prejudiced the case against Hicks, the justice said.

The ruling, filed last week, means Hicks, who is incarcerated in Salinas Valley State Prison, will be tried a third time.

"You know what they say -- the third time is a charm," Fresno attorney Curtis Sok said Monday.

Sok defended Hicks, now 23, in two trials. In Hick's first trial in March 2011, the jury was split on his guilt, Sok said. To reach a verdict, the jury must be unanimous.

Like the appellate justices noted in their opinion, there was problems with evidence in the case, Sok said.

Police said Hicks -- with Eric Carolina at the wheel -- fired into a crowd of people outside some apartments at Jensen and Walnut avenues around 5 p.m. Oct. 19, 2008. At the time, Police Chief Jerry Dyer said Smith and Roland were innocent bystanders to the gang violence.

Roland was shot in the face; a bullet broke his jaw. Smith was shot seven times in the legs, shoulders and chest. A surgeon took out five bullets; another bullet had gone right through. But one bullet in his left thigh was too close to a major artery and could not be removed.

Because of the stepmother's initial statements to police, detectives arrested another person as the shooter, court records say. That person was let go and never charged when Hicks and Carolina were arrested on Nov. 6, 2008. Police said Hicks and Carolina both made statements that implicated them.

Prior to his trial, Carolina, now 28, pleaded guilty to three felony charges in exchange for a prison sentence of 23 years. He also had to testify against Hicks.

Court records say neither Smith nor Roland identified the drive-by gunman, and Sok argued that Hicks wasn't the shooter and that Carolina gave conflicting statements about the identity of the shooter and what happened.

But with Carolina's testimony and other evidence, prosecutor William Lacy was able to tell jurors that Hicks and Carolina were southwest Fresno gang members and that Hicks fired into the crowd, believing he was shooting at members of a rival street gang. Instead, the bullets hit Smith and Roland who were talking to each other when gunfire erupted, Lacy said.

The jury convicted Hicks of five felony charges, including shooting from a motor vehicle, shooting at an inhabited dwelling and street terrorism.

When Hicks was sentenced in June 2012, his family and friends caused a ruckus in Orozco's courtroom.

"This is bull. No one was killed," a man yelled as he left the courtroom. A woman cursed and threw her cell phone to the floor, smashing it into pieces. "This ain't fair," she said, crying.

But Orozco said Hicks "had a clear intent to hurt, injure or kill those in the crowd."

Eight bailiffs rushed to the court to quell the disturbance. No one was arrested, but Lacy was led from the courthouse in protective custody.

In its 19-page ruling, the appellate justices concluded that Lacy's questioning of Benson about Carolina being truthful -- over Sok's objections -- led to the conviction being reversed.

Sok said Monday that if Hicks didn't win on that issue, he had another legal ground for an appeal: Orozco's punishment of 110 years in prison is cruel and unusual punishment.

The reporter can be reached at (559) 441-6434, plopez@fresnobee.com or @beecourts on Twitter.

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