NOT FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-250
STATE OF LOUISIANA
VERSUS
KEVIN NARCISSE
********** APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 06-705 HONORABLE JOHN E. CONERY, PRESIDING **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Michael G. Sullivan, and Billy H. Ezell, Judges.
AFFIRMED
Jeffrey J. Trosclair Assistant District Attorney St Mary Parish Courthouse Franklin, LA 70538 (337) 828-4100 Ext. 550
COUNSEL FOR APPELLEE: State of Louisiana
Edward K. Bauman Louisiana Appellate Project P.O. Box 1641 Lake Charles, LA 70602-1641 (318) 491-0570 COUNSEL FOR DEFENDANT-APPELLANT: Kevin Narcisse COOKS, Judge.
STATEMENT OF THE FACTS
On January 8, 2006, Robert West and three friends, Shawn Broussard, Jacobe
Villery, and Vanity Archangel (West’s fiancee), were driving around New Iberia in
search of five dollars worth of marijuana. At the corner of Ann and Sam Streets, they
encountered several people. When they pulled the car up to the curb, Brandon
“B”Augustine approached the car, and Villery, who was familiar with Augustine
from high school, told him they wanted to buy some marijuana. Augustine took five
dollars from Villery, walked over to Defendant, Kevin Narcisse, and gave him the
money. Defendant returned to the car and gave Villery a small bag of marijuana. An
argument ensued between Defendant and the victim, Mr. West, who was a passenger
in the car, over the quantity of marijuana. Mr. West got out of the car to confront
Defendant but instead faced a gun. As he was attempting to flee, Defendant shot him
six times, five times in the back and once in the back of his arm. The victim died as
a result of the gunshot wounds. Defendant ran from the scene but eventually
surrendered himself six weeks later.
Defendant was indicted by a grand jury on April 25, 2006, for first degree
murder. On December 19, 2006, the charge was amended by bill of information to
second degree murder, a violation of La.R.S. 14:30.1. Defendant filed a “Motion to
Suppress Identifications” in November 2006. Hearings were held on the motion on
April 17, 2007, and May 23, 2007. The motion was denied in open court, and on
July 12, 2007, the trial court submitted written reasons for the denial.
Trial commenced on August 13, 2007, then was continued to and completed
on August 17, 2007. The jury returned a verdict of guilty of second degree murder.
Defendant then filed a “Motion for Post Judgment of Acquittal” and “Motion for
New Trial.” The “Motion for Post Judgement of Acquittal” was denied without a
2 hearing. The hearing on the “Motion for New Trial” was held on September 10,
2007, and denied on the same date in open court. Defendant was sentenced on
September 11, 2007, to life imprisonment without the benefit of parole, probation,
or suspension of sentence.
Defendant has now perfected a timely appeal alleging four assignments of
error: 1) The photographic line-ups were unduly suggestive and conducted
improperly; 2) The verdict of the jury was contrary to the law and evidence as there
was insufficient evidence to sustain the verdict of second degree murder; 3) The trial
court erred when it denied Defendant’s “Motion for New Trial”; 4) The trial court
erred when it denied Defendant’s challenge for cause regarding the prospective juror,
Irving Thomas. On July 18, 2008, Defendant filed a pro-se supplemental brief
alleging as errors insufficient evidence, improper photographic line-up procedure, and
that the trial court erred when it denied his motion for a mistrial.
LAW AND DISCUSSION
ASSIGNMENT OF ERROR NUMBER ONE.
Defendant contends that the trial court erred when it denied his motion to
suppress the evidence asserting the photographic line-up was unduly suggestive in
that the witnesses’ attentions were unduly focused on him. He also asserts proper
procedures for viewing a line-up were not followed by the officers, which affected
the reliability of the identification of Defendant as the shooter. Defendant also
asserts the witnesses’ descriptions of the shooter were only “as having short dread
locks and a red jacket or red hooded sweatshirt” and that no witness described any
facial features of Defendant.
In State v. Broadway, 96-2659, p. 14 (La. 10/19/99), 753 So.2d 801, 812, cert.
denied, 529 U.S. 1056, 120 S.Ct. 1562 (2000), the supreme court stated:
3 The defendant has the burden of proof on a motion to suppress an out-of-court identification. La.Code Crim. Proc. art. 703D. To suppress an identification, the defendant must first prove that the identification procedure was suggestive. State v. Prudholm, 446 So.2d 729 (La.1984). An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980). However, even when suggestiveness of the identification process is proved by the defendant or presumed by the court, the defendant must also show that there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Prudholm, supra.
In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court held that an identification may be permissible, despite the existence of a suggestive pretrial identification, if there does not exist a “very substantial likelihood of irreparable misidentification.” The factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Id. at 114, 97 S.Ct. 2243.
Scott Hotard, a detective with the Iberia Parish Sheriff’s Office, was the
supervisor of the investigation. He stated based on the witnesses’ descriptions of the
shooter, the police requested a photographic line-up from Automated Fingerprint
Identification Services (AFIS), which included a picture of Defendant. However, the
picture they received from AFIS of Defendant did not look like Defendant, and none
of the pictures included men with dreadlocks. The detective then went through
pictures that were on file at the police station and picked out five other pictures of
young, fair-skinned, African American males, with “dread” hair types so as to
present a six-person photographic line-up, which would not single out the Defendant.
From the description of the shooter given to him by three eyewitnesses, namely
Villery, Broussard, and Archangel, Detective Hotard put together a photographic
line-up. He included a picture of Defendant that he had in one of his files. He also
included pictures of other light skinned African American males, as Defendant had
4 been described as such, and included one person who was also wearing red. The
detective had an encounter with Defendant a few weeks earlier, and he believed
Defendant fit the description of the shooter given by the eyewitnesses. At the motion
to suppress hearing, two detectives, Hotard and Donald Lasher testified they
conducted the interviews of the witnesses and provided them with the photographic
line-ups.
Archangel testified at the suppression hearing she watched Defendant when
he was on both sides of the car. After the shooting, she told the police the shooter
was an African American male, fair-skinned, and wore a red jacket with a hood. She
testified she took time to consider each photograph when she was given the
photographs. She stated she picked photograph number four and told the detective,
“I was almost positively sure that that was the guy who shot my boyfriend.” The
witness further testified she took her time viewing the photographs because she
wanted to be sure. She stated it was daylight when she saw the shooter from an arm’s
length away. It was approximately six hours after the shooting when she identified
Defendant as the shooter in the photographic lineup.
Broussard testified he was very certain the person he picked out of the line-up
was the shooter. He, too, viewed the photographic line-up within five to six hours
after the shooting. Broussard said he clearly saw Defendant’s face when he leaned
into the car to put a little more marijuana into the bag. When he was shown the line-
up, it did not take him very long to pick out who he believed was the shooter and
when asked what it was about the person he picked that looked like the shooter, he
stated, “Everything. His face.” He stated he had an unobstructed view of
Defendant’s face when he leaned into the car to argue with Villery and then when
Defendant put a little more marijuana into the bag that Villery was holding.
5 Villery testified, as noted above, that although he saw the red shirt and noted
that the shooter had dreadlocks, he could not be certain of the shooter’s identity;
however, he did state after viewing the pictures he told a person with the Sheriff’s
Office that photograph number one (Defendant’s picture) looked like the shooter.
Defendant argues the detectives used an improper procedure which
compounded the suggestiveness of the photographic line-up. He contends the
procedure used by authorities for the photographic line-up was not the suggested
procedure noted in the United States Department of Justice guidelines. Defendant
asserts that Detective Lasher was unaware, having never read the Department of
Justice guidelines, that he should tell the witness the suspect may not be in the line-
up. He asserts Detective Lasher improperly told Broussard the shooter had been
identified and was among the pictures shown to him in the line-up. Detective Lasher
denied he told the witness a picture of the shooter was included with the photographs.
The following testimony of Detective Lasher was taken at the suppression hearing:
BY MS. BONIN: Q. Right. So in the DVD when you say “Someone had I.D.’d the suspect and we have a line-up with him in it.”, then you must be reporting what Detective Hotard told you.
A. Ms. Bonin, I never told Mr. Villery or Mr. Broussard, okay, that a photo line-up was used and a person was I.D.’d in the photo line-up. I said a person was I.D.’d, which in my terminology means that a suspect possibly named.
Q. Where did you get line-ups because “We have a possible I.D. on who this dude might be, but we’re gonna need y’all’s help. Whenever they get there, we are going to show him to you and we are going to let you pick him out.”
A. Okay.
Q. Now doesn’t [this] tell them that a suspect has been I.D.’d and he is in the line-up?
A. No ma’am. I did not say that.
6 Q. Well, I am telling you what the DVD says. I am just--It has been transcribed. That is all right.
BY MR. ODINET:
The DVD speaks for itself, Your Honor.
At the suppression hearing, Archangel stated that Detective Hotard
told her he was going to show her some pictures. She testified as
follows:
Q. Did the person who was instructing you on the photo line-up tell you that it was just as important to clear innocent people as it was to show the person who was in fact a suspect?
A. I don’t remember all the conversations we had I just remember him telling me that there was going to be a photo line-up and me having to pick someone. That is it.
Q. I’m sorry. I didn’t hear that last part?
A. The fact that I had to do a photo line-up. Pick somebody on the paper if I seen that person.
Q. Okay.
BY THE COURT:
Well, that is not what I heard her say. I heard her say that the officer told her he was going to present her with photo line-up so that she could pick someone.
BY THE WITNESS:
A. Right.
Is that what you said? Or did I misunderstand you?
BY MS. BONIN:
You mean before? In her first testimony?
7 BY THE COURT:
Just now.
A. Yes.
BY MS. BONIN: (Continuing)
Q. Which one is it?
A. He told --I am so lost right now. I’m sorry. He told me basically there was going to be a photo line-up and I had to-- either there was going to be the person on there that I saw kill my boyfriend or he wasn’t going to be on there.
At the suppression hearing, Broussard recalled what he was told by the
detective regarding the line-up:
Q. Before they showed you those pictures, did you they--do you remember the person interviewing you say that they were “. . .waiting to get the photo line-ups because we have a possible I.D. on who this dude might be; but we’re gonna need your help. Okay? Whenever they get here, we are going to show them to you and we are gonna let you pick him.” Do you remember that?
A. No ma’am.
Q. Okay. When the photographs did get there, were you told that it was just as important in photo line-up to clear the innocent as it was to point out the guilty?
A. Yes ma’am.
Q. They told you that?
A. (Nods “yes”.)
Q. And did they tell you that maybe the person doesn’t appear exactly the same in the photograph which may have been taken another today as today he would have appeared?
Q. Did they tell you that suspect may or may not be in the photo line-up?
8 Q. Did they tell you that whether you identified somebody or did not identify somebody that the investigation was going to keep going on?
Following the continuation of the suppression hearing on May 23, 2007, and
the testimonies of Detectives Lasher and Hotard, the trial court denied the Motion To
Suppress, stating that “there are multiple cases on point that indicates that, even
though the Justice Department guidelines are not followed, the photo I.D. can be
reliable. It is up to the defendant to prove that they are not.”
In its “Reasons for Judgment on the Motions to Suppress,” the trial court
specifically found that the picture of Defendant wearing a red sweatshirt was not
unduly suggestive. The trial court stated:
At the hearing on May 23, 2007, Detective Hotard testified that he took photographs of every one that he interviewed. However, he could only find two pictures of black males who had dreadlocks and who were also wearing red. So, he put both of them in the line up. According to Mr. Hotard he believed that all of the persons in the line up had similar features, similar hair, and were fairly close in skin tone. Mr. Hotard further testified that other than the AFIS picture, the picture used was the only picture of Kevin Narcisse.
In its reasons for judgment, the trial court cited State v. Brown, 03-0897 (La.
4/12/05), 907 So.2d 1, State v. McSpaddin, 341 So.2d 868 (La.1977), and State v.
Cotton, 511 So.2d 1207 (La.App. 2 Cir. 1987) to support its denial of the motion. In
Brown, the accused had only one eye. He claimed the line-up was unduly suggestive,
since he was the only one having a missing eye. The supreme court found, based on
the totality of the circumstances, there was not a substantial likelihood of
misidentification, stating:
Further, when viewing the photographic lineup itself, it is clear that the State sought fill-in subjects with vision problems. One subject’s left eye is clouded white and appears to be blind. Another appears to have a lazy eye. While one photograph depicts a man with no apparent ocular difficulties, the two remaining subjects appear to be droopy-eyed
9 as though under the influence of drugs or alcohol. In addition, all of the other subjects have comparable hairstyles, skin tone and facial hair to defendant.
Brown, 907 So.2d at 20. In Cotton, the accused challenged the photographic line-up
because he was the only person in the line-up wearing a striped shirt similar to the
one the witness reported that the perpetrator had worn when he committed the crime.
The second circuit did not find the line-up unduly suggestive for that reason. The
other individuals in the line-up were “of similar height, weight, age and appearance.
. . . Also, there is nothing in the record to indicate that, in making his identification,
Mr. Banks focused on the clothing worn by the defendant rather than his overall
physical appearance.” Cotton, 511 So.2d at 1212. Finally, in McSpaddin, the
accused asserted the line-up was unduly suggestive because there were only two
blond haired individuals, and he was a blond. The supreme court found that “[a]
study of the photographs discloses no striking characteristic of McSpaddin which
would unduly suggest to the victim that he was the robber. Natural differences were
of course apparent, but there were type similarities which support the State’s position
that there was no intention to create undue suggestion.” McSpaddin, 341 So.2d at
871.
“A line-up is also suggestive if there is not a sufficient resemblance of
characteristics and features of the persons in the line-up. Strict identity of physical
characteristics among the persons in the photographic lineup is not required. All that
is required is a sufficient resemblance to reasonably test the identification.” State v.
Washington, 00-1312, p. 15 (La. App. 5 Cir. 5/16/01), 788 So.2d 596, 605-606, writ
denied, 01-1718 (La. 5/03/02), 815 So.2d 94 (citations omitted). While only two of
the individuals in the line-up were shown wearing red, it does not appear Defendant
was picked because of his clothing. All of the individuals had similar skin color and
10 facial features, and all had dreadlocks of various lengths. Broussard testified that the
shooter’s dreadlocks were about two inches long. In the photographic line-up the
second individual wearing red had dreadlocks approximately two to three inches long,
while Defendant’s dreadlocks appeared to be much shorter. Both witnesses who
identified Defendant within six hours after seeing him were positive of their
identifications. In State v. Louis, 32,347 (La.App. 2 Cir. 10/27/99), 744 So.2d 694,
Louis argued the photographic line-up was unduly suggestive because he was the
only individual wearing an orange prison jumpsuit. The second circuit disagreed,
stating that even if the photograph was suggestive, under the factors outlined in
Manson v. Brathwaite, 432 U.S. 98, the identification appeared reliable.
In the current case, the witnesses had a clear view of the accused and were
positive in their identifications. “The question for a reviewing court is to determine
whether the procedure is so conducive to irreparable misidentification that due
process was denied.” State v. Bright, 98-398, p. 17 (La. 4/11/00), 776 So.2d 1134,
1144. A review of the record herein indicates there was no intention to create undue
suggestion and there was little likelihood of a misidentification.
ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE.
Defendant argues the evidence was insufficient to sustain the verdict of second
degree murder. Additionally, he contends that the trial court erred when it denied his
“Motion for New Trial,” which was based on his argument that there was insufficient
evidence to support the verdict. In State v. Freeman, 01-997, p. 2 (La. App. 3 Cir.
12/12/01), 801 So.2d 578, 580, we noted:
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 (1979); State ex rel. Graffagnino v. King, 436
11 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 credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983).
Second degree murder is defined as a killing “[w]hen the offender has a
specific intent to kill or to inflict great bodily harm.” La.R.S. 14:30.1. The act of
pointing a gun directly at a person and pulling the trigger six times is indicative of the
specific intent to kill or inflict great bodily harm. State v. Clark, 93-1470 (La.App.
3 Cir. 10/5/94), 643 So.2d 463, writ denied, 94-2715 (La. 1/9/95), 649 So.2d 418.
Defendant further argues that the eyewitnesses’ testimonies were riddled with
such inconsistencies as to make them so incredible that their testimonies should not
have been considered by the jury. We note in passing that several of Defendant’s
references to the record are actually excerpts from the suppression of evidence
hearing, and therefore these alleged “inconsistencies” were not heard by the jury.
Although there were inconsistencies between the witnesses’ trial testimonies
concerning how many shots were heard, how many people were standing on the
corner, what color was the gun, their substantive testimonies were consistent. The
three witnesses’ descriptions of the events leading up to the shooting i.e., the search
for marijuana, the ensuing argument between the victim and Defendant, the
Defendant telling the victim to get out of the car, the positions of the victim and
Defendant outside the car, the action of the victim in turning and attempting to run
away from the car and from Defendant, and the firing of multiple shots, were all
consistent. Two of the three witnesses sitting in the car identified Defendant as the
shooter from the photographic line-up. Any conflicts in the testimony of the
witnesses are matters relating to the evidentiary weight to be accorded each of their
12 testimony and not the sufficiency of the evidence as a whole to convict Defendant.
State v. Mitchell, 01-872 (La.App. 3 Cir. 2/13/02), 815 So.2d 1041, writ denied, 02-
785 (La. 11/8/02), 828 So.2d 1110, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct.
2211, 72 L.Ed 2d 652 (1982) and State v. Nolan, 503 So.2d 1186 (La. App. 3 Cir.
1987), writ denied 507 So.2d 226 (La. 1987). A review of the record demonstrates
there was sufficient evidence from which the jury could reasonably have found
Defendant guilty of second degree murder.
Villery, Archangel’s stepbrother, present in the car at the time of the shooting,
testified Archangel and the victim traveled from New Orleans to visit family. He
testified he was sitting in the back seat behind his stepsister, who was driving, and
they were looking for some marijuana, when Broussard, who was sitting next to him
in the back seat, saw a person identified as “B” standing on a street corner.
Broussard told “B” they wanted to buy some marijuana and Villery gave “B” five
dollars to make the purchase. “B” then went to another person, (later identified as
Defendant) who came up to the car and gave Villery a small bag of marijuana. He
stated he could not describe the person “B” gave the money to, but said that he had
on “sweats, green shirt, red jacket, white on the collar, and that his hair was styled in
“short dreads.” He testified he told the man with the marijuana (Defendant) that “it
wasn’t five dollars worth.” Defendant then put a little more marijuana in the bag
and said, “If it ain’t enough you can give it back, it’s gonna sell regardless.” Villery
then handed the bag to the victim who was sitting in the front passenger’s side of the
car. He stated the victim and the man then “exchanged words” whereupon
Defendant told the victim to get out of the car. Villery testified the victim then got
out of the car to confront Defendant. Meanwhile, the man in the red jacket (later
identified as Defendant) walked around to the back side of the car. Villery stated
13 that as soon as the victim got to the back corner of the car the victim squatted down
with the palms of his hands on the ground and then turned and began running across
the street, away from the car and away from Defendant. He saw Defendant extend
his arm upward and start shooting. He recalled hearing three shots. He testified that
no one in the car had a weapon. Villery could not pick out the shooter from the
pictures shown to him in the photographic line-up and stated that he could not say
that Defendant was the shooter.
Shawn Broussard’s testimony essentially corroborated Villery’s testimony. He
was sitting in the back seat behind the victim. He described the man who brought
the marijuana to the car as wearing a red jacket and sporting “short dreads”. He
stated he heard five or six shots. He further testified, later the same day at police
headquarters when he was shown a photographic line-up, he identified Defendant
as the shooter. He also identified Defendant at trial as the man who shot the victim.
Brandon “B”Augustine testified he was Defendant’s first cousin. He was
apparently Defendant’s drug runner at the scene. He stated they had been friends all
of their lives. He testified his cousin wore his hair in “dreads” at the time of the
shooting. His version of the events leading up to the “lil’ altercation” was consistent
with the testimonies of Villery and Broussard. He stated, however, when the victim
got out of the car, he went around to the back of the car from the passenger side
going toward the driver’s side and approached Defendant and it “look like he (the
victim) was going to do something”. At first he testified, although he heard shots,
he did not see a gun in his cousin’s hand because he had run away before the
shooting. However, he then admitted that he had told the grand jury that he saw
Defendant with a gun. He further admitted he told the grand jury his cousin admitted
shooting the victim, but then explained that he lied to the police because he was
14 afraid as he had witnessed a murder. At trial, on redirect examination, Augustine told
the jury he did see Defendant shoot the victim. Augustine testified as he was running
away from the car he heard the victim say, “[G]et my gun, get my gun,” after he had
been shot. Clearly, the jury observed for themselves the prior inconsistences in this
witness’ testimonies but obviously believed his in-court testimony which was
consistent with the other witnesses and physical evidence presented at trial.
Vanity Archangel testified she and the victim had just become engaged to be
married. She described the shooter as not tall, with “dreads,” and that he had on
something red like “A T-shirt or pullover maybe. A jacket or something. It was just
red.” She got out of the car to try and stop the confrontation which she thought was
about to take place. She stated she saw something silver come out of Defendant’s
pocket. After she heard shots fired, she started toward the victim. She said the
shooter ran up from behind her, grabbed the victim for a second, then ran off. A
short time later, only hours after the shooting, she picked Defendant out of the
photographic line-up as the shooter. At trial, she identified Defendant as the shooter.
She further testified as she got to the victim, he was wobbling and talking crazy. He
said, “Baby, get the gun.” She thought that he may have been talking about a small
BB gun she had bought for her cousin which may have been in the trunk of the car
at the time. Her testimony seemed to indicate the victim was not coherent.
Brandon “B” Augustine’s testimony was perhaps the most problematic of the
eyewitness testimonies. At trial, he stated he lied to the grand jury about seeing his
cousin shoot the victim or that his cousin admitted to him he fired the shots that
killed the victim; however, as noted above, he reluctantly admitted at trial he saw his
cousin shoot Robert West. Donnie Lasher, a detective with the Iberia Parish
Sheriff’s Office, testified he interviewed Augustine the day after the shooting, and
15 Augustine told him four different versions, including that he was never there; he had
left before the shooting; and that he was walking his dog when he heard the shots.
Detective Lasher stated Augustine never once said he saw a gun in his cousin’s hand
during the interview. However, after Defendant was taken into custody, Augustine
testified before the grand jury and at trial that he saw Defendant with a gun at the
time of the shooting. At trial, he testified he saw his cousin, Defendant, shoot the
victim multiple times as he testified there was no one else present outside the car;
and, as he was running from the scene, he heard the shots and saw his cousin shooting
the victim.
In State v. Milton, 06-550, pp. 8-9 (La. App. 3 Cir. 9/27/06), 939 So.2d 678,
683, writs denied, 07-643, 07-1140 (La. 12/07/07), 969 So.2d 625, 627, this court
stated:
With regard to inconsistencies between a witness’s pre-trial statement and his or her trial testimony, this court explained in State v. Bender, 598 So.2d 629, 636 (La.App. 3 Cir.), writ denied, 605 So.2d 1125 (La.1992):
When a witness is impeached, this simply means the jury, as the trier of fact, was presented with evidence which it could consider and weigh in determining the credibility, or believability, of a witness. Simply because the witness may have been impeached by prior inconsistent statements does not mean that the jury was prohibited from believing anything said by the witness. The inconsistencies in the witness’s statements are one of any number of factors the jury weighs in determining whether or not to believe a witness’s trial testimony.
Furthermore, the jury may “accept or reject, in whole or in part, the testimony of any witness.” State v. Leger, 04-1467, p. 19 (La.App. 3 Cir. 6/1/05), 907 So.2d 739, 754, writ denied, 05-2263 (La.4/17/06), 926 So.2d 509, (quoting State v. Duncan, 93-1384, p. 8 (La. App. 3 Cir. 4/6/94), 635 So.2d 653, 657, writ denied, 94-1067 (La.10/28/94), 644 So.2d 649).
It was for the jury as fact finder to accept or reject some or all of the testimony
of this witness. A review of the record as a whole reveals the testimony of the
16 witnesses at trial, along with all the other evidence presented, established consistent
facts upon which the jury apparently based its decision. Although there were some
inconsistencies in the witnesses’ testimonies, two of the three witnesses in the car
identified Defendant as the shooter, as did Defendant’s cousin, who was his drug
runner. Moreover, the testimonies were not refuted by physical evidence. Finally,
Defendant fled the scene and evaded the police for six weeks. Evidence of flight,
concealment, and attempt to avoid apprehension indicates consciousness of guilt and,
therefore, is one of the circumstances from which the jury may have inferred guilt.
State v. Fuller, 418 So.2d 591 (La.1982); State v. Emerson, 31, 408 (La. App.2
Cir.12/9/98), 722 So.2d 373, writ denied, 99-1518 (La. 10/15/99), 748 So.2d 470.
Accordingly, considered in a light most favorable to the State, a rational trier of fact
could have found Defendant guilty of second degree murder beyond a reasonable
doubt.
Defendant further complains that a detective with the Iberia Parish Sheriff’s
Office was allowed to testify to matters outside his area of expertise.1 There was
expert medical testimony that the bullets recovered from the victim’s body were from
a .22 caliber revolver. Doctor Collie Trant, a forensic pathologist, performed the
autopsy of the victim. He testified the gunshot wounds were the cause of death. He
also confirmed there were five wounds in the victim’s back and one on the back side
of the victim’s arm. He estimated the shots were not fired from a distance farther than
two to four feet. The gun that fired the bullets was never located.
At trial, Detective Robert Green testified while no casings from a .22 caliber
gun were found, four .45 caliber casings were located in the area of the shooting. He
1 In brief, appellate counsel names Detective Donnie Lasher as the officer who was not qualified as an expert in firearms identification. However, the record shows that it was Detective Robert Green who discussed the .45 caliber casings found near the scene of the shooting.
17 testified he determined the casings were not relevant to the current case because (1)
the medical evidence established that the victim was shot with a gun using .22 caliber
bullets, and (2) the .45 caliber casings had been on the ground for quite some time.
He noted that the .45 caliber casings were found under pine needles, embedded in the
grass, had dirt inside them, and there was no odor of burnt gun powder emanating
from the casings. Defendant objected to the testimony regarding the .45 caliber
casings, arguing that the detective was not qualified as an expert in firearms. The
trial court permitted the testimony under La.Code Evid. art. 701, which allows
opinion testimony under certain circumstances. Defendant does not articulate exactly
how the trial court’s ruling on this objection relates to the instant insufficient
evidence claim. The testimony regarding the .45 casings was irrelevant.
Finally, Defendant argues because the evidence was insufficient “the trial
court erred in finding him guilty of second degree murder instead of manslaughter as
the record supports such a reduction.” He argues the circumstances surrounding the
death of the victim indicate the offense was committed in sudden passion or the heat
of blood caused by the victim’s provocation.
In pertinent part, manslaughter is defined in La.R.S. 14:31(A) as:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.
The Louisiana Supreme Court has stated that “sudden passion” and “heat of
blood” are not elements of manslaughter, they are “mitigatory factors in the nature of
a defense” and “exhibit a degree of culpability less than that present when the
homicide is committed in the absence of these factors.” State v. Snyder, 98-1078, p.
18 4 (La. 4/14/99), 750 So.2d 832, 837-38, rev’d on other grounds, 545 U.S. 1137, 125
S. Ct. 2956 (2005) and ___ U.S. ___, 128 S.Ct. 1203 (2008). Thus, an accused who
establishes by a preponderance of the evidence that he was provoked to such a degree
that he acted in sudden passion or heat of blood is entitled to a verdict of
manslaughter. State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832 and State v.
Ellis, 42,286 (La. 7/11/07) 961 So.2d 636, writ denied, 07-1641 (La. 1/25/08), 973
So.2d 753.
The three witnesses present in the car with the victim testified there were words
exchanged between Defendant and the victim over the quantity of the marijuana. All
three testified Defendant told the victim to get out of the car. Augustine, Defendant’s
cousin, testified the victim acted aggressively toward Defendant when he exited the
car. Detective Lasher testified Augustine told him Defendant “mean mug[ged]” the
victim, meaning that they were staring each other down. There was no testimony of
what words were said between the two, nor was there any testimony that the two
exchanged blows. In fact, there was eyewitness testimony that as the victim came
around the back of the car he hit the ground with his palms down and then began
running away as shots rang out. Generally, provocation involves physical acts or
threats. Id. Words or gestures, no matter how offensive, will not suffice to rise to the
level of mitigating conduct on the part of the victim. State v. Brooks, 36,855 (La.
App. 2 Cir. 3/5/03), 839 So.2d 1075, writ denied, 03-974 (La. 11/07/03), 857 So.2d
517.
A rational trier of fact, viewing the evidence in a light most favorable to the
prosecution, could have found that Defendant failed to establish the mitigating factors
of “heat of blood” or “sudden passion” by a preponderance of the evidence.
19 ASSIGNMENT OF ERROR NUMBER FOUR.
In his fourth assignment of error, Defendant argues he was prejudiced when the
trial court refused to excuse a potential juror for cause, forcing him to use a
peremptory challenge, which resulted in exhaustion of all of his peremptory
challenges. As the Defendant did not object to the trial court’s refusal to grant his
challenge for cause, this Court will not address this assignment. “A defendant may
not assign as error a ruling refusing to sustain a challenge for cause made by him,
unless an objection thereto is made at the time of the ruling. The nature of the
objection and grounds therefor shall be stated at the time of objection.” La.Code
Crim.P. art. 800(A).
PRO-SE ASSIGNMENT OF ERROR NUMBER 1:
Defendant argues the trial court erred when it did not grant defense counsel’s
motion for a mistrial. He alleges the trial court crippled his defense when it refused
to allow the defense attorney to ask leading questions on cross-examination.
Louisiana Code of Evidence Article 611(C) provides:
Generally, leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony and in examining an expert witness on his opinions and inferences. However, when a party calls a hostile witness, a witness who is unable or unwilling to respond to proper questioning, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. Generally, leading questions should be permitted on cross-examination. However, the court ordinarily shall prohibit counsel for a party from using leading questions when that party or a person identified with him is examined by his counsel, even when the party or a person identified with him has been called as a witness by another party and tendered for cross-examination.
The trial court is permitted a certain amount of control over the mode of
questioning so as to:
(1) Make the interrogation and presentation effective for the ascertainment of the truth;
20 (2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.
La.Code Evid. art. 611(A).
“Subject to the discretion of a trial judge to preclude repetitive and unduly
harassing interrogation, the cross-examiner is not only permitted to delve into the
witness’ story to test the witness’ perceptions and memory, but the cross-examiner
has traditionally been allowed to impeach, or discredit, the witness.” State v.
Robinson, 01-273, p.6 (La. 5/17/02), 817 So.2d 1131, 1135. However, the ruling of
the trial court as to the scope and extent of cross-examination should not be disturbed
absent an abuse of the trial court’s broad discretion. State v. Irish, 00-2086 (La.
1/15/02), 807 So.2d 208, 213, cert. denied, 537 U.S. 846, 123 S.Ct. 185 (2002).
Further, the courts have held:
A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion.
State v. Jackson, 07-84, p. 12 (La. App. 5 Cir. 6/26/07), 963 So.2d 432, 440, writ
denied, 07-1666, (La. 1/25/08) 973 So.2d 754.
A review of the record reveals, during cross-examination, defense counsel
continuously attempted to testify and asked leading questions of the witnesses. The
State occasionally objected, and the trial court, while repeatedly granting leeway to
defense counsel, sustained several of the State’s objections. However, during the
cross-examination of Jacobe Villery, the trial court asked both attorneys to approach
the bench and admonished defense counsel for testifying rather than questioning the
witness. The trial court stated:
21 Okay. I’ve asked you three times nicely not to testify in the case. If you have a question, ask it. The next time you start testifying I’m going to sanction you. If you have a question, ask the question. This is not a police officer. He is under cross-examination. You are entitled some leeway, but you cannot testify for the witness. Now he’s already said he saw the man walk behind the car.
Judge.
If you want to ask him some questions about that, ask him some questions. Don’t testify.
(Back on the record)
....
Q. All right. Have you ever said that -
Would y’all excuse the jury for a minute, please. Bring the jury in the back.
(Court reporter’s note: Jury excused.)
We’re having some difficulty with the manner and form in which the questions are taking place. On the one hand the Court recognizes counsel’s right to full and complete cross-examination. On the other hand this Court is obligated, obligated to consider not just the rights of the accused, but under our constitution this Court is obligated to consider the rights of the citizens of Iberia Parish as well as the rights of the victim in a trial. It’s not only the rights of the defendant that this Court has to protect but every one’s rights. The manner and method of examination by counsel testifying and stating facts that may be misrepresented to a relatively uneducated witness is not acceptable. Counsel has been warned three times not to do that. Not to testify in the case and then asked the witness “is that correct?”. All the court is requesting, is that counsel question the witness without testifying. That is the
22 ruling of the Court. If you’d like to state something else for the completeness of the record you may do so at this time.
Yes, Judge. I would like to state for the record that the, that counsel should have the right to cross-exam by using leading questions. Leading questions are not just for police officers or hostile witnesses. Leading questions on cross-exam are permitted and that’s what I have been doing.
Well, certainly the Court recognizes that in some circumstances leading questions on cross-exam are permitted. What is objectionable to the Court in this case, and counsel for the State has interjected on rare occasions objections so as not to disrupt the flow of the trial. What is happening is that counsel is misrepresenting that which the witness has said or others have said in the form of a statement and then asked the witness “is that correct?” And that has led frequently to an attempt, either intentionally or otherwise, to in effect I guess to, to call it bluntly mislead the jury, and that cannot be permitted in any trial. I’m sorry if counsel takes offense but I am requesting and issuing an order that counsel, if she is going to ask leading questions, not testify, simply ask the witness a question and make certain that she is using facts that are in evidence in cross examination and not continue to misrepresent facts.
The following day of trial, prior to the jury being seated, defense counsel
moved for a mistrial based on the fact she had “not been allowed under . . . Code of
Evidence 611, Sections B and G, to ask Leading Questions.” Defense counsel
accused the trial court of “crippling (her) ability to make a defense.” The trial court
denied the motion and stated as follows:
I’ve given my reasons yesterday. I need not go into them in any greater detail, but I will file appropriate written reasons at the conclusion of the trial.
For the record, Your Honor, the State would object to the Motion for Mistrial.
23 BY THE COURT:
And I do want it clearly noted for the record that not only was counsel allowed to lead and cross-examine the witness, she continued to do it. It wasn’t that leading nature of the questions so much that was objectionable, it was her testifying and her misleading the jury and her using facts that were not in evidence such as video tapes that had never been played, questioning witnesses from portions of video tapes that they have never seen, et cetera, et cetera, et cetera. We just had enough of it. I instructed counsel to cross-examine all she wants, ask questions but stop testifying in the case.
Based on the record it is clear the trial court did not abuse its vast discretion
when it denied Defendant’s oral motion for a mistrial. The record indicates the trial
court went out of its way to accommodate defense counsel in the presentation of her
case. Prior to cross-examining the State’s witness, Brandon Augustine, the trial court
advised defense counsel as follows:
I want to make sure there’s no misunderstanding about yesterday’s rulings. Even though they were phrased only sibturoataidolnys, w thheeyrw e ceoreum nseealnwtasndteisnttiefynidnegdftoorctohveew r itness. I agree that leading questions are permissible in cross examining. What counsel was doing was going far beyond leading. The Court does have the authority to control that type of questioning. This is a critical witness for the State and the Defense. I will allow any and all leading questions on cross- examination. If counsel is going to use prior statements, however, that has to be done in accordance with law. It can’t be done the way it was being done--
Further, before closing arguments, the trial court stated to defense counsel:
We also discussed at the conference what had transpired yesterday at the bench when the Court’s instructions to counsel not to ask leading questions and to clarify that, we went over in some detail, what the Court meant by leading questions but again we went over that in the charge conference again and the Court offered to counsel the opportunity to recall a Shawn Broussard, Jacobe Villery, and other witness that had been called in order to make certain that all questions that counsel wished to ask, were asked. And that’s where we stand on that. I’m willing, I’m still willing to reopen the evidence if you want
24 to call anyone else and ask any other questions. You may want that.
No, sir. Thank you very much. I’m satisfied with that.
The trial court did not deprive Defendant of a reasonable expectation of a fair
trial when it denied his motion for a mistrial. There is no merit to this assignment of
error.
PRO-SE ASSIGNMENT OF ERROR NUMBERS 2, 3 AND 4:
The majority of Defendant’s arguments in these three assignments of error are
discussed in the above assignments of error dealing with the question of whether the
evidence was sufficient to convict him of second degree murder and whether the
photographic line-up was suggestive.
Defendant further argues the “evidence was not considered collectively, it was
done ‘item-by-item.” Defendant does not argue, however, how this “item-by-item”
presentation of the evidence resulted in prejudice to his case.
Defendant states “Detective Scott Hotard disreguarded [sic] a key witness that
had taken a picture with her camra[sic] phone of the actural[sic] shooter because he
was so persistant[sic] on closing the case and did not do a full investigation.” At
trial, Detective Hotard testified a witness, who gave the same description of the
shooter as the three witnesses in the car with the victim, had taken a picture with her
cell phone camera. However, the witness had already deleted the picture by the time
she told the detective about it because it had not come out very well. He testified he
did not attempt to retrieve the photograph. The detective explained the girl was a
mentally handicapped minor, and her mother did not want her to get involved.
However, the record indicates Detective Hotard interviewed the girl at police
25 headquarters regarding her observation of the incident. As noted, the description she
gave of the shooter was consistent with the description given by the victim’s three
friends. Defendant does not demonstrate how Detective Hotard’s investigation was
ineffective in this respect.
Defendant further asserts the witness, Brandon Augustine, lied, as evidenced
by his inconsistent statements, and that knowing presentation of false evidence
violated his right to due process. As discussed above, the witness’s inconsistent
statements were revealed to the jury. The weight of his testimony fell within the
jury’s province in judging his credibility.
DECREE