NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
24-149
STATE OF LOUISIANA
VERSUS
DETRIAVION D. GREEN
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 351,275 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE
ELIZABETH A. PICKETT CHIEF JUDGE
Court composed of Elizabeth A. Pickett, Sharon Darville Wilson, and Guy E. Bradberry, Judges.
CONVICTIONS AND SENTENCES VACATED; JUDGMENTS OF ACQUITTAL ENTERED.
Annette Fuller Roach Louisiana Appellate Project P. O. Box 6547 Lake Charles, LA 70606-6547 (337) 436-2900 COUNSEL FOR DEFENDANT-APPELLANT: Detriavion D. Green J. Phillip Terrell, Jr. District Attorney, Ninth Judicial District Kelvin G. Sanders Assistant District Attorney P. O. Box 7358 Alexandria, La 71306-7358 (318) 473-6650 COUNSEL FOR APPELLEE: State of Louisiana PICKETT, Chief Judge.
FACTS
Detriavion Green, the defendant, was charged by bill of indictment with the
second degree murder of Shemar Nash, in violation of La.R.S. 14:30.1, and the
attempted second degree murder of Day’lon Patterson, in violation of La.R.S.
14:27 and 30.1. The defendant was found guilty as charged by a unanimous jury
verdict. The trial court sentenced the defendant to life imprisonment at hard labor
without parole, probation, or suspension of sentence for second degree murder and
sixteen years for attempted second degree murder, to run concurrently. He is
before this court appealing his convictions.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by
this court for errors patent on the face of the record. After reviewing the record,
we find there are no errors patent.
ASSIGNMENTS OF ERROR
1) The evidence was insufficient to prove beyond a reasonable doubt the identity of the person who shot and killed Shemar Nash and shot in the direction of Day’Lon Patterson.
2) When viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, the evidence was insufficient to prove beyond a reasonable doubt that Detriavion Green either killed Shemar Nash or participated in an armed robbery during which Shemar Nash was killed.
3) When viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, the evidence was insufficient to prove beyond a reasonable doubt that Detriavion Green attempted to commit second degree murder of Day’Lon Patterson.
4) Defense counsel rendered assistance below that required by the Sixth Amendment when he failed to request a “great caution” charge, failed to object to the trial court’s failure to give a “great caution” charge, and failed to object to the court’s definition of attempted second degree murder, which erroneously included a felony-murder alternative. Additionally, attempted second degree murder required a finding that Green specifically intended to kill Day’lon Patterson. Thus, the court’s instruction that a guilty verdict could be returned if the jurors concluded that the offender was engaged in the perpetration or attempted perpetration of armed robbery even though he had no intent to kill was a misstatement of the law. Counsel’s failure to object to both the insufficient and incorrect jury instructions given by the court deprived Detriavion Green of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the attendant provisions of the Louisiana Constitution and resulted in prejudice to Detriavion Green.
5) The trial court erred in failing to properly advise Detriavion Green that the time frame within which he had to file an application for post-conviction relief did not begin to run until his judgment of conviction was final.
ASSIGNMENTS OF ERROR ONE, TWO, AND THREE
In these combined assignments of error, the defendant raises several
challenges to the sufficiency of the evidence presented by the state. We will first
discuss the evidence presented at trial then discuss the specific challenges raised by
the defendant.
Trial Transcript and Joint Exhibit
Angie Branton, director of the Rapides 911 Center, testified that they
received a call on January 6, 2021, at approximately 23:06 hours from Trent
Roberson of 2404 Detroit Street reporting that his friend had been shot in the head.
The case was assigned to Alexandria Police Detective Tod Beaman, who
arrived on the scene after patrol officers had secured it. Upon arrival, he saw a
deceased male, Nash, next to the stairs leading to the side entrance of the house. It
appeared that Nash had been shot in the face with an exit wound on the back of his
head. Roberson, the only person present at the scene, was brought to the station
2 for questioning. Detective Beaman interviewed Roberson and searched his cell
phone after obtaining consent. He saw that immediately prior to the 911 call, a
contact labeled “Yay-O head hunter” had called Roberson. This individual was
identified as Marckeeyse Dorsey (Dorsey), a name familiar to Detective Beaman
from previous cases he had worked, including the robbery of “an AR-15 style rifle
that was chambered in 762 by 51 which is a very large caliber.”
The communication between Roberson and Dorsey prompted a second
interview with Roberson a short time later. He confirmed that Dorsey was at his
residence that night. Detective Beaman also conducted a search of Nash’s phone,
and he found photographs of a rifle matching the rifle previously described, the
one taken in a previous robbery. The label on the photograph, “762 2000 or
better,” indicated “they” were trying to sell the rifle. Anonymous tips led to others
who may have been present that night.
In the course of investigation, Detective Beaman learned there were others
present at Roberson’s house that night, including Eric Tison, Jimique Tison, and
Day’Lon Patterson (Patterson). Roberson confirmed this information. According
to Detective Beaman, two people were interviewed, and their stories corroborated
each other. As for physical evidence, Detective Beaman testified that the police
received a jacket from Patterson. The jacket had a hole suspected to have been
made from a bullet entry and exit and burn marks consistent with a gunshot at
close range. Detective Beaman testified that they interviewed Roberson a total of
three times, and the information they received was consistent with other
information uncovered in the investigation.
Alexandria Police Sergeant Chris Fonville photographed the scene and
collected evidence from Roberson’s house. In the yard, he identified what he
3 suspected to be a piece of the victim’s skull twenty-seven feet away from the
victim’s body. While searching the bedroom, he discovered two bags of marijuana
under the dresser. Inside a drawer, he found an empty Glock “9 millimeter
magazine and an unfired 7562 cartridge,” later described as a “762 by 39
cartridge.” During the investigation, law enforcement also recovered two cell
phones, one of which was a Samsung Android belonging to the victim Nash.
Sergeant Fonville testified that he attended Nash’s autopsy, and he took a
photograph of Nash showing the entry wound which was “[a]pproximately a
centimeter by one centimeter.” On cross-examination, Sergeant Fonville
confirmed that neither the murder weapon nor any spent shell casings were located
at the scene.
Roberson, the occupant of the home where the shooting occurred, testified
that on January 6, 2021, he was living in the home with his mother and his little
brother. That night, around 11:00 p.m., Dorsey, Nash, and Trey (the defendant)
were also present at the house. While they were there, other people showed up as
well, but Roberson testified he did not know any of them, including Patterson. He
testified that he was inside the house and thus unaware of how many other
individuals showed up that night.
Roberson was first shown his January 14, 2021 statement made to Sergeants
“Bowman [sic]” and Butler, the content of which he claimed was forced by
Sergeant Butler. He testified that he did not make the statement that Dorsey and
Patterson were at his house. Roberson acknowledged that he was arrested for
armed robbery relating to this case and that he entered a plea to robbery of Eric
Tison and Jimique Tison, which he said was also forced due to threats. At the time
4 of trial, he was serving time for the robbery, but his case was complete. Roberson
was an uncooperative witness, at times invoking the Fifth Amendment.
After Roberson’s testimony, the state recalled Detective Beaman as a
witness. He explained that after the initial interview of Roberson was conducted,
the detectives stepped out to review information and then interviewed Roberson a
second time. One week later, after gaining more information, Roberson was
interviewed a third time. All three interviews were recorded. Detective Beaman
testified that Roberson was advised of his rights, and Detective Beaman identified
the advice of rights forms signed by Roberson on January 7, 2021, and January 14,
2021. Detective Beaman testified that the defendant was not forced to sign either
form.
Prior to the interviews being played for the jury, Detective Beaman
explained that their procedure is typically to record the entire interview, but after
the interview, they often digitally record “another question and answer deal” to be
more concise for transcription. Usually, the entire video interview is not
transcribed due to its length. The jurors were provided with the transcribed portion
of Roberson’s statements for their viewing during the playing of his interviews.
Detective Beaman testified that during the third and final interview,
Roberson disclosed that the defendant was at the house in addition to Dorsey,
Nash, Patterson, and two brothers, whom he described as being tall. Patterson was
at the house to buy narcotics. After the drug transaction was completed, Roberson
turned back to walk to his room, and he heard a shot. Upon hearing the shot, he
went to the side door of the house where he saw that Nash had been shot. Dorsey
was in the house during this time, and he retrieved a gun. After hearing the shot,
Roberson did not see the defendant again. Roberson saw Dorsey after the shooting,
5 but everyone else fled. Roberson, in his statements, said he had nothing to do with
the planning or execution of the robbery. From Roberson’s statements, Detective
Beaman did not know of the defendant’s involvement in the robbery. From what
Roberson indicated, Dorsey and Nash planned the robbery. In Roberson’s second
statement, he acknowledged that Dorsey was there, and, in the third statement, he
provided the other names. According to Detective Beaman, at the time of the
shooting, Roberson’s statement placed Dorsey inside the house and Nash and the
defendant outside. Detective Beaman testified that Patterson was deceased at the
time of trial, as was Eric Tison, both of whom had been present at Roberson’s
house that night. Their deaths were unrelated to this case.
As joint exhibits, the court minutes and guilty pleas from Roberson’s and
Dorsey’s proceedings were entered into the record. A review of the documents
contained therein revealed that Roberson and Dorsey were jointly charged with the
January 6, 2021 armed robbery of Eric Tison and Jimique Tison. Plea forms and
court minutes dated April 25, 2022, indicated that Roberson pled guilty to first
degree robbery and was sentenced to serve five years at hard labor without the
benefit of parole, probation, or suspension of sentence. Dorsey also pled guilty to
first degree robbery and was sentenced to serve five years at hard labor.
Roberson’s Three Recorded Interviews
In Roberson’s first statement, he said that he and Nash were at his house
watching a basketball game and smoking weed. Nash received a phone call and
went outside to talk to someone. About five to seven minutes after Nash went
outside, Roberson heard a shot. He ran outside, found Nash lying on the side of
the steps, and he called police. Roberson’s cousins Antony and Devante had been
at the house earlier, but they left a few hours before the shooting occurred. During
6 the course of the interview, police told Roberson that “people on the street” said
Nash had gotten into a fight several weeks prior, and they asked Roberson if he
knew anything about it. He said, “[y]eah, at my house, it was him and my cousin.
They was high off of, you know . . . ecstasy pills.” Roberson identified his cousin
as Marckeeyse Kirklin (Dorsey). Roberson said that he and Dorsey did not really
get along, and he did not hang out at Roberson’s house. In fact, they had “got[ten]
into it” the same night that Dorsey and Nash did. When he was asked to explain,
Roberson said that he thought somebody tried to steal some weed and “a few little
dollars” from Dorsey, and Dorsey suspected that Roberson and Nash had
something to do with it. According to Roberson, Dorsey was “on Xanax and just
tripping.” He said he did not think Dorsey could have “done this.”
In Roberson’s second interview, he said he, Dorsey, and Nash were at his
house watching a game. Dorsey was on the phone talking to someone “about
pulling up.” When asked what Dorsey’s intentions were, Roberson said, “I gu- - -
- they was trying to (inaudible) rob somebody[.]” When asked who “they” were, he
said “Yao [Dorsey] and Shemar [Nash].” He said Dorsey was talking, and Nash
“just tagged along.” He believed that Dorsey was selling weed and that he was
going to try to take their1 money. Dorsey and Nash went outside, and Roberson
believed both were armed. Dorsey had a black rifle with a handle on one end, and
Nash had a black pistol. About ten to fifteen minutes later, someone pulled up at
Roberson’s house. Approximately five minutes later, Roberson heard a shot, went
outside, and found Nash lying on the side of the steps. Dorsey was no longer there,
and Roberson could not tell whether Nash still had his gun on him. Approximately
1 Roberson did not say who “they” were.
7 two to three minutes later, Dorsey called Roberson asking, “is [Nash] okay
(inaudible) is did he get shot anything.” According to Roberson, Dorsey did not
return to the scene.
In the untranscribed portion of this interview, Roberson described the gun
that Dorsey had as long and having a handle on the front, agreeing it was probably
an AR-15. In speaking about a prior incident, Roberson said Dorsey “snaps easy”
and had shot at him the previous November during an argument.
The third and final interview was conducted one week later, after law
enforcement obtained additional information. In this interview, Roberson said that
he, Nash, Dorsey, and his cousin, Trey2 (the defendant), were at his house. It is
unclear whether the defendant was outside the whole time or whether he was inside
watching the game with the others at some point. In this statement, Roberson
initially said Trey (the defendant) was “outside or whatever uhm we was all
watching the game Shemar [Nash] had got a call he stepped outside (inaudible)
Uhm Yao [Dorsey] invited someone . . . there was a transaction.” Nash received a
phone call and stepped outside. A person named Patterson came in through the
side door which led into the kitchen. Roberson said Patterson, Dorsey, and two
other guys were in the kitchen. Roberson said he stood “mid in the hallway near . .
. the bathroom and the kitchen like it’s all like in one lil small lil gap.” He said he
could not see into the kitchen because the “two guys,” whom he believed to be the
buyers, were tall. However, Roberson could see Dorsey and Patterson. After the
transaction was completed, Roberson walked off and “they” opened the door and
he heard a “pow.” “Everybody scattering and I see Yao [Dorsey] run back in the
2 In the untranscribed portion of the recording, Roberson described Dorsey as his “blood cousin” but said he did not know the defendant was his cousin.
8 house grab a gun[,]” which he believed was a rifle. When Roberson walked
outside, he saw Nash lying on the ground, and he called police. Roberson denied
seeing the defendant after the shooting. When asked if the defendant was outside
with Nash, Roberson confirmed that they were both outside the house. He again
confirmed that while Patterson and the other two guys he did not know were inside
the house with Dorsey, Nash and the defendant were outside. After he heard the
gunshot, he did not see the defendant. Roberson was asked if Dorsey said anything
to him after the shooting, and he said he called “to confirm if [sic].” According to
Roberson, Patterson and the other two guys “took off.” Although Roberson
assumed a vehicle may have been there because everyone vanished quickly, he did
not see or hear one.
When Roberson was asked whether he said in his first statement that the
reason for the people coming to his house for the drug transaction was because
Dorsey was going to rob them, he replied, “Uhm I believe so but I don’t know.”
Roberson confirmed that police showed him a lineup, and he identified the
defendant as being the fourth person who was at his house that night.
After viewing the untranscribed portion of Roberson’s statement, we note
Roberson said Nash went outside and was talking. Dorsey and the defendant left
his room, and Roberson stayed in his room watching the game. He then heard a
bang and “Yay O [Dorsey] running.” He later added that Dorsey was running,
“getting everything.” Roberson admitted to leaving the defendant out of his prior
statements but added that he did not know what the defendant had to do with it.
He also said he did not think that the defendant had anything to do with it.
Roberson admitted to seeing the drug transaction in the kitchen, adding that the
defendant did not sell. He indicated he believed the defendant was outside with
9 Nash during the drug transaction. Roberson said a total of three people came to
buy weed, Patterson and two tall guys, but he denied knowing Patterson.3
Roberson said he did not want police to think Dorsey shot Nash because the
two were friends, and he did not think Dorsey did it. The officers told Roberson
they were ninety-five percent sure Dorsey did not shoot Nash, and Roberson
responded, “cool.” When police asked Roberson where the guns went, he said that
Dorsey picked one up from the couch and ran outside with it. Roberson did not see
the defendant with a gun. He did not see the defendant but believed he ran from
the scene with Dorsey. When police asked him for the defendant’s contact
number, Roberson said the defendant was a friend of Nash and Dorsey and he did
not have a phone number for him.
Louisiana Revised Statutes 14:30.1 defines second degree murder in
pertinent part as follows:
A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated or first degree rape, forcible or second degree rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.
Attempt is defined in La.R.S. 14:27 in pertinent part as:
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the
3 Although it is not clear, at one point in the interview, Roberson said that after the transaction was done, before Patterson walked out, a guy came in the house. Dorsey let him in and gave him the weed. At other points, Roberson made it sound as if no more than three buyers came to the house, Patterson and the two tall guys.
10 accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
Specific intent to kill is required for a conviction of attempted second degree
murder:
It is well settled in Louisiana jurisprudence that the crime of attempted second degree murder cannot be based upon an underlying felony. State v. Guccione, 96-1049, p. 17 (La.App. 5[] Cir. 4/29/97), 694 So.2d 1060, 1068, writ denied, 97-2151 (La. 3/13/98), 712 So.2d 869. An attempt to commit second degree murder requires that the offender possess the specific intent to kill and commit an overt act tending toward the accomplishment of that goal. LSA-R.S. 14:27(A); 14:30.1(A)(1). This is inconsistent with the felony-murder theory of an unintentional killing as provided in LSA-R.S. 14:30.1(A)(2)(a).
State v. Graham, 02-1492, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 416, 421; see
also State v. Gay, 36,357, 36,358 (La.App. 2 Cir. 10/23/02), 830 So.2d 356.
The standard of review when the sufficiency of the evidence is challenged
on appeal is as follows:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel.
11 Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371. It is the factfinder’s role to weigh the respective credibility of the witnesses, and the reviewing court will not second- guess the credibility determinations of the factfinder beyond the sufficiency evaluations under the Jackson standard of review. State v. Richardson, 425 So.2d 1228 (La.1983). The testimony of a single witness, if believed, and absent internal contradictions or irreconcilable conflicts with physical evidence, is sufficient to support a conviction. State v. Pierre, 14-1071 (La.App. 3 Cir. 5/6/15), 170 So.3d 348, writ denied, 15-1151 (La. 5/13/16), 191 So.3d 1054.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B); State v. Ordodi, 06-207 (La. 11/29/06), 946 So.2d 654, 660. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove,” every reasonable hypothesis of innocence is excluded. La.R.S. 15:438; State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 00-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984).
State v. Coleman, 17-1045, p. 6 (La.App. 1 Cir. 4/13/18), 249 So. 3d 872, 877, writ denied, 18-830 (La. 2/18/19), 263 So.3d 1155.
State v. Simmons, 23-661, pp. 2–3 (La.App. 3 Cir. 3/20/24), 381 So.3d 1033,
1036–37.
12 The defendant raises several claims regarding the insufficiency of the
evidence presented by the state to support his conviction. First, he contends the
state failed to show that he was either the person who fired the fatal shot or that he
participated in an armed robbery during which Nash was shot. Additionally, the
defendant contends the state failed to prove that he attempted to shoot Patterson or
that he had the intent to kill him. The defendant notes that the only person placing
him in the vicinity of the shooting was Roberson, who was impeached at trial due
to his various inconsistent statements and his trial testimony that his prior
interviews were not truthful. Even if the jury found Roberson’s statements
truthful, the defendant contends that they were still insufficient to establish that a
robbery was taking place at the time of the shooting or that the defendant was still
present at the time of the shooting and purported robbery. Because there was no
corroboration of Roberson’s testimony or physical evidence connecting the
defendant to the shooting or placing him in possession of a weapon, he contends
that his identity as either the shooter or a principal was not proven beyond a
reasonable doubt.
Next, the defendant contends that no physical evidence connected him to the
shooting as the only evidence linking him to the killing was his presence at the
residence minutes prior to the shooting. Additionally, he contends that there was
no evidence establishing that a robbery of Patterson occurred, that there was a plan
to rob anyone, or even if there was a plan, that he was a part of the discussion. The
defendant contends that the fact he left the residence prior to the shooting was not
enough to establish his involvement or his awareness that Nash had been shot. He
notes that Roberson placed both Nash and Doyle (presumably Dorsey) outside at
the time of the shooting.
13 Finally, the defendant contends that the evidence presented at trial was
insufficient to prove that he had the specific intent to kill Patterson, as required for
a conviction of attempted second degree murder, or that he did an act in
furtherance of this objective. He notes that the state incorrectly informed the jury
that it did not matter whether the shooting of Patterson was an accidental discharge
of the weapon when the robber stumbled or if it occurred with an intent to either
kill or inflict great bodily harm on Patterson.
In opposition, the state contends that the jury accepted Roberson’s testimony
and recorded statements, which established that there was a plan to rob individuals
who came to the house to buy marijuana, that there was at least one weapon (a
rifle) at the house at the time of the offense, that only the defendant, Patterson, and
Nash were outside of the house at the time of the shooting, and that the defendant
left after the shooting. This, the state argues, is strong circumstantial evidence of
the defendant’s involvement in the robbery plan, and it proved that he fired a shot
that passed through Patterson’s jacket and killed Nash.
The state contends that a reasonable jury could infer that the defendant
attempted to take something of value (either drugs or money) from Patterson, that
it was in his immediate control, that the defendant used force or intimidation by
pointing a gun at Patterson, and that he was armed with a dangerous weapon, as
evidenced by the bullet hole in Patterson’s jacket. Additionally, the state argues
that the jury could also infer that he missed Patterson and struck Nash, even though
Nash was not the intended target of the bullet. Additionally, the state argues that a
reasonable jury could infer that the defendant’s flight after the murder indicated
consciousness of guilt.
14 Even assuming all of the facts provided in Roberson’s third statement (the
only statement in which he acknowledged the defendant’s presence at the house
that night) were accepted as true by the jury, there was nothing establishing that the
defendant was part of the planning or was aware of Dorsey (whom Roberson
described as “talking” and Nash as following along) and Nash’s plan to carry out a
robbery. There was no evidence that the defendant was armed that night. Although
there was no expert testimony presented regarding the injuries, law enforcement
believed a high-powered weapon was used in the shooting as evidenced by a piece
of Nash’s skull being found twenty-seven feet away from his body. The only
testimony regarding a high-powered weapon was about a gun belonging to Dorsey.
While it appears that gun may not have always remained in Dorsey’s control and
may have been accessible to others, it appears from Roberson’s statement that
Dorsey came into the house after the shooting to get his rifle. (“Everybody
scattering, and I see Yao [Dorsey] run back in the house grab a gun.”) which
Roberson believed was a rifle. This implies that the rifle was not in the
defendant’s possession at the time of the shooting. The only other weapon
referenced was a pistol, which Nash had, according to Roberson.
One hypothesis of innocence advanced by the defense at trial was that
Dorsey was the shooter. Nash and Dorsey had gotten into an altercation the prior
week. Roberson’s second statement placed Dorsey outside with a gun at the time
of the shooting, and then one week later, he said that Dorsey was inside with no
gun. Another hypothesis of innocence advanced by the defense at trial was that
Nash and Patterson may have simultaneously fired at each other. The state’s
rebuttal was that in that situation, Patterson would have had to possess a long gun
(rifle), and the state questioned how he would have hidden it.
15 The jury obviously chose to believe that Dorsey was inside at the time of the
shooting and that the defendant and Nash were outside. After the transaction was
complete and the buyers were leaving, Patterson was shot at, and Nash was hit in
the head, presumably by a high-powered rifle. The defendant had earlier been
inside the house, but he went outside at some point before the buyers arrived.
Roberson saw Dorsey after the shooting but not the defendant. He
believed/assumed that the defendant left with Dorsey. It is possible the defendant
left the scene prior to the arrival of the buyers or that someone else may have
approached the house while the buy was occurring. Roberson, the only witness on
the scene, who pled guilty to first degree robbery, maintained that he was inside
the house at all times prior to the shooting and that he never saw the defendant
with a gun. The only thing tying the defendant to the shooting was the fact that he
was outside of the house prior to the shooting. Additionally, Roberson and Dorsey
pled guilty to first degree robbery of two victims bearing the last name Tison,
presumably the two “tall guys” who accompanied Patterson to the house. Every
reasonable hypothesis of innocence was not excluded in this case, especially given
the internal inconsistencies in Roberson’s statements, lack of an eyewitness to the
shooting, and the lack of any physical evidence linking the defendant to the
offenses. For these reasons, the state did not meet its burden of proving the
defendant’s guilt beyond a reasonable doubt. Accordingly, the defendant’s
convictions are reversed, an acquittal is hereby entered, and his sentences are
vacated.
Assignments of Error Four and Five are rendered moot.
16 CONCLUSION
The defendant’s convictions for second degree murder and attempted second
degree murder are vacated, a judgment of acquittal on both counts is hereby
entered, and his sentences are vacated.
CONVICTIONS AND SENTENCES VACATED; JUDGMENTS OF ACQUITTAL ENTERED.