Judgment rendered January 13, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,728-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
RICHARD ALLEN McLENDON Appellant
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 222,268
Honorable Michael O. Craig, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville
J. SCHUYLER MARVIN Counsel for Appellee District Attorney
JOHN M. LAWRENCE DALE N. MONTGOMERY, II Assistant District Attorneys
Before MOORE, PITMAN, and STONE, JJ. PITMAN, J.
A jury convicted Defendant Richard Allen McClendon of second
degree murder. The trial court sentenced him to life in prison without
benefit of probation, parole or suspension of sentence. Defendant appeals.
For the following reasons, we affirm Defendant’s conviction and sentence.
FACTS
On September 17, 2018, the state filed a bill of indictment alleging
that on or about June 15, 2018, Defendant committed the second degree
murder of Steven Beaird and that he had the specific intent to kill or inflict
great bodily harm, contrary to La. R.S. 14:30.1.
On December 16, 2019, the state filed a notice of intent to introduce
an inculpatory statement made by Defendant. That same day, a hearing was
held to determine the admissibility of a recorded interview Defendant gave
to Det. Tim Wooten and Lt. Matthew Gaydos of the Bossier Parish
Sherriff’s Office following his arrest on June 15, 2018. A video recording of
Defendant’s statement was viewed by the court. The recording showed that
prior to the interview, Lt. Gaydos advised Defendant of his constitutional
rights, and Defendant confirmed that he understood them. Defendant then
signed the waiver of rights form and agreed to speak with the officers.
During the course of the interview, which lasted approximately three hours
and 45 minutes, Defendant asked several times for water and to go to the
restroom. The officers provided him with water and allowed him to use the
restroom. Det. Wooten testified that Defendant freely and voluntarily gave
his statement and that he was not under any duress or given any threats or
promises. He could not recall if other witnesses mentioned that Defendant
smoked methamphetamine or drank alcohol earlier that day, but he noted that Defendant was able to talk and spoke freely during the interview.
Det. Wooten acknowledged that other witnesses stated that Defendant did
not always make sense when he spoke. He noted that Defendant appeared to
be able to think rationally, because he changed his story as the officers
revealed additional evidence. Det. Wooten testified that, in his experience,
someone who was too inebriated to give a statement would not be able to
“catch onto things that quickly.” The trial court found that Defendant’s
statements were freely and voluntarily made; and, therefore, the video of the
interview was admissible at trial.
The trial began on December 17, 2019. Kelly Kennedy testified that
at approximately 5:00 a.m. on June 15, 2018, she was awakened by the
sound of a motorcycle. From a window, she observed a motorcycle drive
past her house at 291 Parker Road toward a cul-de-sac at the end of the road.
The motorcycle turned around and drove back past her house toward
Bellevue Road. Approximately 30 to 45 seconds later, she heard and saw
two motorcycles driving past her house toward the cul-de-sac. She heard
“pop, pop, pop” and told her husband that she thought someone had just
been shot. She then saw one motorcycle drive past her house toward
Bellevue Road, and she recorded a video of this motorcycle with her
cellphone, which was played for the jury. She never saw the second
motorcycle pass in front of her house again. She then called 911 to report
the shooting. She testified that she could not tell if the first motorcycle
drove by a second time with another motorcycle or if she saw three different
motorcycles.
Jason Kennedy testified that at approximately 5:00 a.m. on June 15,
2018, his wife Kelly Kennedy woke him up when she heard motorcycles and 2 gunshots on their road. He drove his truck toward the cul-de-sac and saw
that a man on a motorcycle had been shot. He knew that his wife had called
911, so he stayed with the man until help arrived. He stated that several
other people arrived at the scene, including a “distraught” man who thought
the person who had been shot might be his brother. A woman who drove to
the scene told them, “it’s not him.”
Lori Lambert testified that on June 15, 2018, she lived at 691 Parker
Road, which is on the cul-de-sac. At approximately 5:00 a.m., she heard and
observed a motorcycle drive up to her house and then turn around and drive
away. She noted that the motorcycle sounded like a Harley Davidson. She
then heard and observed two motorcycles in front of her house. She heard
four “pops” that sounded like gunshots and saw one person fall over onto the
ground and the other person leave by motorcycle. She then called 911 and
went outside to see if she could help the person who was shot.
Edwin Tilden testified that on June 15, 2018, he was awakened by
Lambert telling him that someone was shooting a gun in front of their house
and a person got shot. Through a window, he saw a motorcycle driving
away. He then went outside and approached a person on the ground near a
motorcycle. Tilden stated that several people gathered at the scene,
including a man who was concerned the person who had been shot was his
brother. He noted that a car drove up to the scene and a woman got out of
the vehicle. Once she learned the victim was not her brother, she got back in
the vehicle and drove away in order to avoid law enforcement.
Paul Zimmerman testified that on June 15, 2018, he lived at
625 Parker Road and was awakened at 5:00 a.m. by a loud noise. From a
window, he saw two small vehicles going by at a high speed toward the 3 cul-de-sac. He stepped outside and heard multiple gunshots from what
sounded like a small-caliber weapon. He took cover and then saw a person
driving away on a motorcycle. He saw a man running toward the end of the
road who said that someone shot his brother. He observed two people drive
up to the scene, and a man exited the vehicle and a woman drove away.
Jim Berridge testified that at approximately 5:00 a.m. on June 15,
2018, he was walking his dog and had turned onto Vickers Road from
Bellevue Road when he heard two motorcycles traveling on Bellevue Road
at a high speed. He noted that one motorcycle was significantly louder than
the other and that they were not traveling side by side. Based on what he
could hear of the motorcycle noise, he thought the motorcycles had turned
onto Parker Road, which ran parallel to Vickers Road. He then heard three
gunshots and the not-as-loud motorcycle leaving the area.
Waynette Dupuy testified that on June 15, 2018, she and her brother
lived in separate residences at 3549 Bellevue Road. At approximately
5:15 a.m., she heard someone knocking on the door. Through her window
she saw Defendant at the door, but she did not answer the door. She
observed him knock on her brother’s door and then leave the property by
motorcycle.
Wayne Ebarb testified that he owned a motorcycle salvage business
and Defendant was an employee on and off for two years. He stated that he
loaned his Honda 1100 Shadow to Defendant for several months and that
Defendant was using it in June 2018. He explained that the 1100 Shadow is
a “fairly loud” motorcycle, but not as loud as a Harley-Davidson.
Ofc. Larry Weaver testified that on June 15, 2018, he worked for the
Bossier Parish Sheriff’s Office in the patrol division. At 5:02 a.m., he was 4 dispatched to Parker Road with the information that shots had been fired, a
person was injured and to be on the lookout for a motorcycle leaving the
scene. While en route to Parker Road, he observed a motorcycle, and his
dashcam video that showed he passed someone driving a motorcycle. This
video was played for the jury.
Det. Wooten testified that he was the lead detective in the
investigation of Beaird’s shooting. An arrest warrant was obtained and
executed for Defendant, and Det. Wooten and Lt. Gaydos interviewed him
on June 15, 2018. A video of the three hour and 45-minute interview was
played for the jury. Defendant stated that he was 54 years old and worked at
Ebarb’s Cycle Shop. He admitted that he used methamphetamine and drank
alcohol that morning.
Defendant stated that he had been dating Shannon Clark for about
three months and was staying at her house on Kent Road. He had known
Beaird for a month, and Clark previously dated Beaird. Defendant knew
that Beaird went to Clark’s house two or three times a week, but he stated it
did not bother him. He wondered if they still had a sexual relationship, but
claimed he was not jealous. Defendant admitted that he and Beaird bought
and sold dope. He stated that several weeks prior, there was some tension
with Beaird because he owed Beaird money for dope, but the tension ended
when he paid Beaird. The officers told Defendant that witnesses told them
that Beaird taunted him, bullied him, threatened him and his family and was
having sex with his girlfriend. However, Defendant insisted that everything
was fine between him and Beaird.
Defendant recounted his actions beginning the night of June 14, 2018.
Around 10:00 p.m., he and Beaird went to the Goldmine Casino and saw his 5 brother. Around 12:00 a.m., he and Beaird went to Art Davis’s house on
Highway 157. Between 12:30 and 1:00 a.m., Beaird left to meet a man on
Parker Road to get dope, and Defendant stayed at Davis’s house because his
motorcycle had a flat tire and broken valve stem. He left the motorcycle,
which belonged to Wayne Ebarb, at Davis’s house. Robert Smith, the
brother of Defendant’s ex-girlfriend, picked Defendant up from Davis’s
house. Defendant then asked Smith to take him to Clark’s house. He noted
that on the way to Clark’s house, they stopped at a Circle K. He denied
stopping anywhere else, including anywhere on Bellevue Road.
Defendant told officers that he knew Beaird was dead, but did not
know he had been shot in the head while on his motorcycle on Parker Road.
He stated that he did not have a cell phone and that Clark called his brother,
who told him that Beaird had been shot.
The officers told Defendant that a man on Bellevue Road heard two
motorcycles, one that was much louder than the other, and the officers
suggested that Beaird was driving a Harley-Davidson and Defendant was
driving a Honda. Defendant denied this. They told him that they had video
of someone wearing his helmet and clothing and driving his motorcycle on
Parker Road just after Beaird was shot. They also told Defendant that they
had a video of him driving past officers on Bellevue Road just after Beaird
was shot.
Defendant stated that he always carries a gun and that he just bought a
red revolver with a black handle, maybe a .38; that he shot it that day; and
that he left it under a seat in Smith’s truck. He admitted that he fled when he
passed officers on Bellevue Road because he had a gun and dope on him, the
motorcycle was illegal and he did not have a driver’s license. 6 Throughout the interview, Defendant repeatedly denied driving his
motorcycle on Parker Road and shooting Beaird. The officers told
Defendant that they knew that he was lying to them and that if his family
was also lying to them, they could be charged with accessory after the fact.
Det. Wooten, who was accepted as an expert in cell phone tower
detection, testified that he obtained records of cell phone data from Smith’s
cell phone. The data revealed that on June 15, 2018, Smith was at his
residence until just before noon when he traveled to Davis’s residence on
Highway 157; he then went to Sandra Albright’s residence at 12:15 p.m. and
remained there until 2:08 p.m.; he then was at or near his house from
2:16 p.m. to 2:31 p.m.; and after traveling on Roy Road, he then arrived at
Clark’s residence on Kent Road at 2:57 p.m. and left at 3:55 p.m. On
September 17, 2018, Det. Wooten obtained an arrest warrant for Smith for
obstruction of justice due to his failure to disclose to law enforcement
information about the murder weapon. He later agreed to cooperate with the
investigation. Six months after the murder, Smith led the officers to a
location off Roy Road where he saw Defendant discard a gun and a hat.
Det. Wooten testified that officers recovered a gun, which was engraved
with “The Pink Lady,” and a hat.
Det. Wooten also testified that Defendant’s sister lived with her
boyfriend on Parker Road and told officers that she recognized the sound of
Defendant’s motorcycle on Parker Road on the morning of June 15, 2018.
She thought Defendant had been in an accident at the end of the road, which
is why she and her boyfriend went to the scene. Det. Wooten stated that
during the investigation he received information that Beaird was selling
methamphetamine. He testified that no blood was found on Defendant’s 7 motorcycle, only Defendant’s own blood was found on his clothing and
none of Beaird’s blood was found on Defendant.
Robert Smith testified that on June 15, 2018, his sister called him
between 11:00 a.m. and 12:00 p.m. and asked him to give Defendant a ride.
He agreed because he hoped that Defendant might give him some dope in
return. Smith picked up Defendant from a location on Highway 157.
Defendant asked Smith if he wanted to smoke, so they drove to Albright’s
house, and the three of them smoked methamphetamine. Smith testified that
Defendant repeatedly spoke about a “Pink Lady” and that it “smoked his
ass.” He did not know what Defendant meant by these statements. He
noticed that Defendant was “blabbering” and talking to himself and wanted
to watch the news. Smith stated that they remained at Albright’s house for
about 35 to 45 minutes, but admitted that it could have been a few hours.
Smith testified that after they left Albright’s house, he and Defendant
stopped for gas at a Circle K on Highway 80 and then Defendant asked him
to drop him off at Clark’s house. On the way, Defendant told Smith that he
had to get rid of something and showed him a gun. They drove onto a dirt
road, and Defendant took a hat from Smith’s vehicle, put the gun inside the
hat and tossed them out of the window. They then went to Clark’s house.
Smith identified the gun that Defendant showed him and tossed from the
vehicle window.
Smith acknowledged that he had prior convictions for felony
possession, misdemeanor theft and domestic abuse battery. He confirmed
that he was charged with obstruction of justice in this case and spent three
months in jail before he agreed to cooperate with the investigation.
8 Sandra Albright testified that at approximately 10:45 a.m. on June 15,
2018, Defendant and Smith arrived at her door. She thought Defendant’s
demeanor was odd and noted that he was laughing so hard he was almost
crying. She stated that she, Defendant and Smith smoked methamphetamine
together. Defendant asked her if she had heard what happened to Beaird last
night. When she replied she had not, Defendant told her that someone
“smoked him.” She was not sure what this meant and hoped it referred to
smoking marijuana. She noted that Defendant then said that he would
“smoke anybody” and that he would smoke Albright and Smith “if he felt
like he had to.” He also told her that people will say things behind your
back, but not to your face. He then said people behaved that way because
“they can’t say anything anymore. They won’t ever say anything again.”
He also said “if you owe you got to pay.” Albright testified that Defendant
babbled to himself and said a lot of things that did not make sense.
Albright further testified that Defendant wanted to watch the local
news and said “it ought to be coming on the news about right now.” He then
mumbled to himself, “you better watch out before you say too much in front
of these people.” He also told her, “you would be looking like this too if it
was your first murder.” At that point, she wondered if Beaird was dead.
Defendant and Smith stayed at her house for approximately two hours. As
he was leaving, Defendant again asked her if she heard about Beaird. She
asked Defendant if he meant that Beaird was dead, and he replied “that’s
exactly what I’m saying.” She acknowledged that she had three felony
convictions for methamphetamine and that she had last used
methamphetamine about a week before trial, but not on the day of her
testimony. 9 Art Davis testified that on June 15, 2018, Defendant and Beaird
arrived at his house at 2:00 a.m. on motorcycles, and Defendant was driving
a Honda Shadow. He stated that they stayed two to three hours and had
drinks and talked. The back wheel of Defendant’s motorcycle was low, so
he added some air to it before Defendant and Beaird left. He testified that he
never saw Beaird again, but that Defendant returned a few hours later,
between 8:00 and 9:00 a.m. Defendant’s rear tire was low again, and when
he (Davis) attempted to add air to it, he broke the valve stem, rendering the
motorcycle undrivable. He denied washing Defendant’s motorcycle.
Defendant left his house around 11:30 a.m.
Jerri Craig testified that she lived on Highway 157 with Davis. On
June 15, 2018, Defendant arrived at their house between 2:30 and 3:30 a.m.
and was accompanied by Beaird, whom she had never met before.
Defendant and Beaird left on motorcycles at approximately 5:00 a.m.
Defendant returned later that morning, helped pressure wash the house and
stayed for approximately two hours. Defendant borrowed Craig’s cell phone
to call someone for a ride and left when a man arrived to pick him up.
Kelly Tullis testified that Shannon Clark is her sister, that she had
known Defendant for 37 years and that she had known Beaird for five or six
years. She added that Beaird was best friends with her sister’s deceased
husband. She stated that Beaird gave methamphetamine to Clark, and Clark
shared it with her. She testified that there was animosity between Defendant
and Beaird because of a “bad dope deal,” which took place about a week and
a half before the events of June 15, 2018. Defendant told her that he owed
Beaird money for drugs and that Beaird called him and threatened to kill
Defendant and his family if he did not pay Beaird the money he owed him. 10 Defendant showed her his gun and told her several times that he was going
to kill Beaird. She only saw the handle of the gun and noted that it was
black. She stated that Beaird often came to Clark’s house between 3:00 and
4:00 a.m. and would taunt Defendant by sitting right next to Clark. Tullis
testified that she saw Beaird and Defendant at Clark’s house around
midnight on June 15, 2018, and that they left around 12:45 a.m. on
motorcycles. She did not warn Beaird about Defendant’s intent to kill him.
Kristen Faulkner testified that Beaird was her best friend and lover
since he was released from jail in 2014. She noted that Beaird was having
sex with other people, including Clark. She testified that Beaird used and
sold methamphetamine and provided it to Clark. She stated that the night
before his death, Beaird was trying to collect money he loaned people.
Shannon Clark testified that prior to June 15, 2018, she had known
Defendant for about four weeks and, in that time, they started dating and
living together. Beaird was best friends with her deceased husband, and she
and Beaird had been best friends for about four or five years. She admitted
that both Beaird and Defendant supplied her with methamphetamine.
Defendant asked her about her relationship with Beaird and if it was sexual.
The night before Beaird’s death, she ended her relationship with Defendant
and told him to leave because of his suspicious and confusing behavior. She
testified that the night of Beaird’s murder, she was sleeping and did not
know if Beaird and Defendant were at her house.
Clark further testified that she had never seen Defendant with a gun,
but a few days before Beaird was shot, Defendant told Clark that he had a
gun. Clark corroborated Smith’s testimony that he brought Defendant to her
house on June 15, 2018. Clark already knew Beaird was dead when they 11 arrived, and Defendant told her he played no part in the death. Clark told
Defendant that law enforcement had called to talk to him. They then left her
house to purchase alcohol. While driving in the car, they were stopped by
law enforcement.
Dr. Frank Peretti was accepted as an expert in the field of forensic
pathology. He conducted Beaird’s autopsy and testified that Beaird’s cause
of death was multiple gunshot wounds, which were made to the left eye, the
right side of the chest and the right groin. He recovered three bullets from
Beaird’s body. He noted that the evidence on the body indicated that the
gun was fired from a distance greater than two feet from the victim. He
testified that Beaird’s toxicology report revealed marijuana and a high
concentration of methamphetamines.
Det. Latricia Thomas Savage of the Bossier Parish Sheriff’s Office
testified that on January 29, 2019, she recovered a pink revolver and a hat
from an area off Roy Road. She identified the revolver, the hat and
photographs of the revolver. The photographs showed that the gun was a
Charter Arms revolver with a black handle, a pink-red body and a silver
barrel engraved with the words “The Pink Lady.” She noted that the
revolver and the hat were submitted to the crime lab.
Det. Jonathan Jackson of the Bossier Parish Sheriff’s Office testified
that he assisted in processing the scene on June 15, 2018. He recovered
Beaird’s clothing and a bullet from the saddle bag on his motorcycle.
Richard Beighley was accepted as an expert in firearms identification.
He stated that he test-fired the .38 caliber Charter Arms revolver recovered
by the sheriff’s office. He noted engravings on the gun barrel that read “The
Pink Lady,” and “.38 Special.” He compared bullets from the test-fire to the 12 three bullets recovered from Beaird’s body and found that two of the bullets
from Beaird’s body had similar characteristics to those fired from the gun
recovered and determined that they were all fired from the same gun. The
third bullet recovered from Beaird’s body could not be excluded, but lacked
sufficient individual markings to identify it as having been fired from the
same gun. Beighley noted that the rifling characteristics of the .38 caliber
gun were “very unique,” in that it had eight lands and grooves and a
left-hand twist. He testified that in his research, the only .38 caliber revolver
with those rifling characteristics is a Charter Arms revolver.
Sgt. Cesar Mora of the Bossier Parish Sheriff’s Office testified that on
June 15, 2018, he responded to Davis’s house on Highway 157 and
recovered a Honda Shadow motorcycle. He noted that the rear tire was flat.
He could not recall if the motorcycle appeared to have been recently washed
and could not recall the results when he investigated the license plate tag.
Det. Becky Fohl of the Bossier Parish Sheriff’s Office testified that on
June 15, 2018, she processed the scene at Parker Road. She identified the
photographs she took, which showed the deceased and his motorcycle, blood
stains on his clothing, a hole in his helmet visor and blood inside his helmet.
Robert McClendon, Jr. testified that he is Defendant’s brother and
lives at 535 Parker Road with other family members. He stated that
approximately three months before the incident in this case, Defendant told
him that Beaird had threatened to “take out” everybody on “the hill,”
meaning their family who lived on Parker Road. In the late hours of
June 14, 2018, or the early hours of June 15, 2018, he saw Defendant and
Beaird at the Goldmine Casino; and, when they were leaving, he witnessed
Defendant hug Beaird for a long time, which was unusual behavior and 13 caused him to worry that Defendant might be in danger. Defendant told him
that he was going down Highway 157 for a minute and then he and Beaird
would come eat breakfast with him. He made breakfast and waited for
Defendant, but he never arrived, which worried him. His sister came to the
door and told him that Defendant had been shot, so they drove to the end of
the road. When he arrived at the scene, he realized it was not his brother,
but was Beaird. His sister left in the car, and he remained with Beaird to
help him “be comfortable” because he was still breathing and no one else
was trying to help.
The state recalled Det. Wooten to testify. He identified maps
depicting Highway 157, Bellevue Road, Vickers Road and Parker Road. He
noted the short distance between Davis’s house on Highway 157 and
Bellevue Road and pointed out the intersections of Vickers Road and Parker
Road with Bellevue Road.
The state rested, and the defense recalled Kelly Tullis. She stated that
she did not warn Beaird about Defendant’s threats because she did not have
Beaird’s cell phone number and her sister would not give it to her. She
denied that she told law enforcement that Beaird and Defendant sold dope
for the Bandidos motorcycle club. She stated that she knew Beaird and
Defendant sold methamphetamine, but did not know from whom they got it
or to whom they sold it.
The defense recalled Det. Wooten. He testified that on June 15, 2018,
Tullis gave a recorded statement in which she told officers that Beaird and
Defendant were not members of the Bandidos, but that they were used by
the Bandidos to deal methamphetamine so that the gang would not be
associated with drug dealing. 14 On December 19, 2019, a unanimous jury found Defendant guilty as
charged of second degree murder.
A sentencing hearing was held on March 10, 2020. The trial court
imposed the mandatory sentence of life imprisonment at hard labor, without
benefit of probation, parole or suspension of sentence.
Defendant appeals.
DISCUSSION
Sufficiency of the Evidence
In his first assignment of error, Defendant argues that the state
presented insufficient evidence to prove beyond a reasonable doubt that he
murdered Beaird. He contends that facts overlooked or not accepted by the
jury established a reasonable hypothesis of his innocence, i.e., that someone
other than Defendant was with Beaird on Parker Road when Beaird was shot
and killed. He emphasizes testimony that there could have been three
different motorcycles on Parker Road that morning.
The state argues that it presented sufficient evidence to prove beyond
a reasonable doubt that Defendant shot and intentionally killed Beaird. It
contends that the inferences drawn from the circumstantial evidence
presented at trial left no reasonable hypothesis of innocence and established
Defendant’s guilt beyond a reasonable doubt.
The standard of review for a sufficiency of the evidence claim 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hearold, 603 So. 2d 731
(La. 1992); State v. Smith, 47,983 (La. App. 2d Cir. 5/15/13), 116 So. 3d 15 884. See also La. C. Cr. P. art. 821. This standard does not provide an
appellate court with a vehicle for substituting its appreciation of the evidence
for that of the fact finder. State v. Pigford, 05-0477 (La. 2/22/06),
922 So. 2d 517. The trier of fact makes credibility determinations and may
accept or reject the testimony of any witness. State v. Casey, 99-0023 (La.
1/26/00), 775 So. 2d 1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L.
Ed. 2d 62 (2000). The appellate court does not assess credibility or reweigh
the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442.
The Jackson standard is applicable in cases involving both direct and
circumstantial evidence. State v. Allen, 36,180 (La. App. 2 Cir. 9/18/02),
828 So. 2d 622, writs denied, 02-2595 (La. 3/28/03), 840 So. 2d 566, and
02-2997 (La. 6/27/03), 847 So. 2d 1255, cert. denied, 540 U.S. 1185, 124 S.
Ct. 1404, 158 L. Ed. 2d 90 (2004). An appellate court reviewing
the sufficiency of the evidence in such cases must resolve any conflict in the
direct evidence by viewing that evidence in a light most favorable to the
prosecution. Id. When the direct evidence is thus viewed, the facts
established by that evidence must be sufficient for a rational trier of fact to
conclude beyond a reasonable doubt that the defendant was guilty of every
essential element of the crime. Id.
Circumstantial evidence consists of proof of collateral facts and
circumstances from which the existence of the main fact may be inferred
according to reason and common experience. State v. Broome, 49,004 (La.
App. 2 Cir. 4/9/14), 136 So. 3d 979, writ denied, 14-0990 (La. 1/16/15),
157 So. 3d 1127. If a case rests essentially upon circumstantial evidence,
that evidence must exclude every reasonable hypothesis of innocence. La.
R.S. 15:438; State v. Broome, supra. 16 La. R.S. 14:30.1(A)(1) defines second degree murder as the killing of
a human being when the offender has the specific intent to kill or inflict
great bodily harm.
Viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found beyond a reasonable doubt that
Defendant committed the essential elements of second degree murder.
Further, the evidence excluded every reasonable hypothesis of innocence.
The direct and circumstantial evidence presented at trial established
that Defendant was with Beaird in the hours before the murder; that
Defendant was in the proximity of the murder scene at Parker Road
immediately before and after the murder; that Defendant acted to evade law
enforcement; and that Defendant possessed and disposed of the gun used to
shoot and kill Beaird. Defendant’s specific intent to kill Beaird was
established by the fact that he shot Beaird in the left eye, the right side of the
chest and the right groin.
Accordingly, this assignment of error lacks merit.
Introduction of Statements
In his second assignment of error, Defendant argues that the trial court
erred when it allowed the introduction of his involuntary statements. He
contends that the state failed to prove the free and voluntary nature of his
incriminating statement and that the conduct of the interviewing officers
during the interview undermined his ability to give a knowing and intelligent
waiver of his rights. He states that he asked for water three times, but was
only given water once and that his requests for food and use of a restroom
were denied. He also finds fault with the interviewing officers’ threats to
17 arrest his family. He notes that the officers knew he had smoked
methamphetamine earlier that day and was not speaking in a logical manner.
The state argues that it proved Defendant’s statement was given freely
and voluntarily and was not made under the influence of fear, duress,
intimidation, menaces, threats, inducements or promises.
Before what purports to be a confession can be introduced in
evidence, it must be affirmatively shown that it was free and voluntary and
not made under the influence of fear, duress, intimidation, menaces, threats,
inducements or promises. La. R.S. 15:451. The state must also establish
that an accused who makes a statement during custodial interrogation was
first advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). State v. Roddy, 33,112 (La. App.
2 Cir. 4/7/00), 756 So. 2d 1272, writ denied, 00-1427 (La. 5/11/01),
791 So. 2d 1288. When deciding whether a statement is knowing
and voluntary, a court considers the totality of circumstances under which it
is made, and any inducement is merely one factor in the analysis. State v.
Blank, 04-0204 (La. 4/11/07), 955 So. 2d 90, cert. denied, 552 U.S. 994,
128 S. Ct. 494, 169 L. Ed. 2d 346 (2007); State v. Platt, 43,708 (La. App.
2 Cir. 12/3/08), 998 So. 2d 864, writ denied, 09-0265 (La. 11/6/09),
21 So. 3d 305.
Testimony of the interviewing police officer alone may be sufficient
to prove that the statement was given freely and voluntarily. State v.
Henderson, 31,986 (La. App. 2 Cir. 8/18/99), 740 So. 2d 240.
The admissibility of a confession or statement is in the first instance a
question for the trial court. State v. Sanders, 52,632 (La. App. 2 Cir.
5/22/19), 273 So. 3d 635, writ denied, 19-01106 (La. 7/17/20), 298 So. 3d 18 169. The trial court’s conclusion on the credibility and weight of testimony
relating to the voluntariness of a confession for the purpose of admissibility
is entitled to great weight and will not be overturned on appeal unless it is
not supported by the evidence. State v. Benoit, 440 So. 2d 129 (La.
1983); State v. Sanders, supra.
A review of the record establishes that the interviewing officers
properly advised Defendant of his rights and that his statement was given
freely and voluntarily and was not made under the influence of fear, duress,
intimidation, menaces, threats, inducements or promises. The recorded
video of the interview shows that an officer advised Defendant of his rights,
and Defendant stated that he understood them and signed the waiver form.
Det. Wooten testified that Defendant freely and voluntarily gave his
statement and that he appeared to be able to think rationally and answered
the questions asked of him. The state met its burden of proof, and the trial
court did not err in finding Defendant’s statement to be admissible.
CONCLUSION
For the foregoing reasons, we affirm the conviction and sentence of
Defendant Richard Allen McClendon.
AFFIRMED.