Judgment rendered June 28, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,070-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
TIMOTHY C. HOWELL Appellant
Appealed from the Second Judicial District Court for the Parish of Claiborne, Louisiana Trial Court No. 32,982
Honorable Walter Edward May, Jr., Judge
LAVALLE B. SALOMON, APLC Counsel for Appellant By: Lavalle B. Salomon
DANIEL W. NEWELL Counsel for Appellee District Attorney
JENNIFER POOL MCKAY CARY T. BROWN Assistant District Attorneys
Before COX, THOMPSON, and MARCOTTE, JJ. COX, J.
This criminal appeal arises from the Second Judicial District Court of
Claiborne Parish, Louisiana. Timothy Howell (“Howell”) was charged with
one count of second degree murder of Jason Staples (“Staples”), in violation
of La. R.S. 14:95.1. Following a six-day jury trial, Howell was found guilty
by a unanimous jury and was sentenced to mandatory life imprisonment at
hard labor without benefit of parole, probation, or suspension of sentence.
For the following reasons, Howell’s conviction and sentence are affirmed.
FACTS
On June 17, 2020, Howell was indicted for second degree murder by a
grand jury. On September 20, 2021, a six-day jury trial commenced,
wherein the State introduced the following pertinent testimony from the
following officers and expert witnesses:
First, Louisiana State Police (“LSP”) Investigator Garrett Monroe
(“Inv. Monroe”) testified that on December 10, 2019, dispatch received a
call from truck driver Jeffory Yawn (“Yawn”) that a pedestrian was lying on
the side of the road at the intersection of La. Hwy. 146 and La. Hwy. 533.
When officers arrived, they saw a purple/blue colored 2005 Chevrolet
Impala with hazard lights on,1 and the victim’s body about 100 feet away
from the vehicle. Officers initially believed the victim, later identified as
Staples, was struck by a vehicle; however, after the body was moved,
officers discovered two shell casings near the body and another shell casing
a little farther away.2 Inv. Monroe stated that aside from the two gunshot
1 Inv. Monroe reported that the truck was found on the shoulder of Hwy. 146, facing east toward Ruston. 2 Deputy Cody Dooley testified that he found keys under Staples’ body and a spent shell casing on the ground approximately three to four feet from the body. wounds to his chin and cheek, Staples had no other apparent injuries.
Because Staples still had his phone and wallet with money and credit cards,
there was no evidence to suggest he was robbed, so officers investigated a
potential homicide.
Inv. Monroe testified that the first discovered shell casing was only a
few feet away from the body and was a silver F.C. 9mm Luger; the second
was approximately five feet from the body and was a silver N.F.C.R. 9mm
Luger; and the third shell casing was a bronze Winchester 9mm Luger. Inv.
Monroe further testified that officers also found a water bottle3 at Staples’
feet and noticed the stop sign near the intersection had bullet holes in it.4
Inv. Monroe testified that the bullets removed from Staples were determined
to have been shot from the same Hi-Point 9mm gun and that the shell casing
found closest to Staples was also fired from a Hi-Point 9mm.5
Inv. Monroe testified that while at the scene, Mickey Harmon
(“Harmon”),6 who owned property near the area, informed officers that he
saw Staples in the same area the previous day, and that Staples borrowed his
3 Jacob Watts, a forensic analyst, testified that he analyzed the water bottle found at the scene and compared it to the swab collected from Howell. He testified that the DNA profile generated from the water bottle revealed that Howell’s DNA was present and was a major contributor. He also testified that he was unable to gather a DNA profile for the shell casings often because the heat from firing a gun can destroy any DNA evidence.
4 Chief Anthony Smith also testified that when called to the scene, he noticed the stop sign with bullet holes, and a Vitamin water bottle at Staples’ feet. He also stated he assisted in moving the body and also noted the two gunshot wounds on Staples’ cheek and chin. 5 Deputy Roger Smith also testified that in February 2020, he went back to the scene of the incident with a metal detector to look for any potential evidence that may have been overlooked. He stated that he located one shell casing on the side of the road, and then had to dig, but located three other shell casings under the ground. 6 Harmon testified that while Staples used his phone, a man in a dark-colored truck, that Staples identified as “Tim,” gave Staples a ride.
2 phone because his vehicle broke down. Harmon’s phone records reflected
that at 5:39 p.m., Staples made five calls: four to a woman identified as
Kayla Deason (“Deason”) and one to Sunni Howell (“Sunni”), Staples’ then-
girlfriend, and Howell’s sister.7 Officers conducted interviews with several
people, including Staples’ mother, Jacqueline Staples (“Mrs. Staples”),8
Sunni, Howell, Judy Howell (“Mrs. Howell”), and Deason. From this,
officers learned that Anthony Futch (“Futch”) evicted Staples and Sunni
from the home they rented from Futch’s father in Homer for failure to pay
rent.
Officers learned that Staples and Sunni moved from their shared home
on December 9. While moving, Staples left and attempted to go buy drugs
from Deason in Ruston. Howell, while en route to help Sunni move
furniture, saw Staples’ vehicle had broken down on Hwy. 146, and gave him
a ride. Howell helped Sunni and Staples move for a few hours, and around
11:00 p.m., took Staples to Keith Food Mart to get gas. Howell told officers
that he agreed to buy drugs with Staples, but after the vehicle wouldn’t start,
he left because something felt “sketchy.” Howell told officers when he left,
Staples was near his car and had made another phone call.
Inv. Monroe testified that he interviewed Deason and her boyfriend,
Jesse Flowers’, phone records and confirmed that neither phone left the
Ruston area that night. Deason also confirmed that Staples made plans to
Through Mrs. Howell’s testimony, it was discovered that Sunni is now 7
deceased. 8 Mrs. Staples testified that Staples had been in a relationship with Sunni for 15 years and that he often used Sunni’s phone. She admitted that Staples had a substance abuse problem and struggled financially. She also informed officers that Zane Miller (“Miller”) was in possession of a truck Staples owned and that the two had a dispute over loan payments.
3 buy drugs from her, and the last time she spoke with him was around
midnight. She reported that during the call, Flowers attempted to help
Staples fix the vehicle and she could hear Staples and Howell arguing, with
Staples telling Howell to “man up.”
Inv. Monroe testified that he also reviewed the gas station surveillance
footage9 and confirmed that Staples and Howell were there at approximately
11:00 p.m. before the store closed, and purchased gas and drinks. He stated
that two men, Fredrick Kelly (“Kelly”) and Nathan White (“White”), could
be seen pushing a car into the station. Howell gave them a bottle of oil
before leaving with Staples, but Kelly and White stayed until about
midnight. Inv. Monroe testified that he contacted and obtained phone
records for Kelly and White, who reported that after they left the gas station,
their car broke down again near Staples’ home, where they left it, before
getting a ride to “Dog’s” home in Minden. Inv. Monroe testified that neither
Kelly’s nor White’s phone numbers were found within the cellphone tower
data where Staples’ body was found.
Inv. Monroe then testified that he obtained phone records for Miller
and Futch.10 Inv. Monroe stated that Miller admitted he agreed to pay the
remainder of Staples’ truck loan, but the two had a disagreement about
payments, and ultimately, he took the truck from Staples and it was in his
possession when Staples died. From surveillance footage on Catherine
Bass’ (“Bass”) home in Minden, where Miller lived with Bass and his
9 Inv. Monroe testified that during the encounter, no hostility could be seen between any of the men, and that no one was seen going into Howell’s truck. 10 Inv. Monroe similarly testified that Futch’s phone was not found within the tower data, and there was no evidence to link Futch to the incident.
4 girlfriend, Cynthia Doyle (“Doyle”), Inv. Monroe confirmed that Miller
arrived home around 11:00 p.m., and stayed there. Inv. Monroe testified that
at one point, Miller went outside to move his truck from the front to the back
of the home. Although the back camera was charging at this time, both
Doyle and Bass confirmed that Miller came back in from the back door and
stayed home the entire night. Moreover, Inv. Monroe stated that Miller’s
phone number was not found within the cellphone tower data.
Inv. Monroe testified that a month later, officers received an
anonymous tip claiming that Ronald Moon (“R. Moon”) and Rochelle
Nugent (“Nugent”) set up a drug deal, and during the transaction, shot, and
robbed Staples. In following the tip, Christopher Bell11 (“Bell”) reported
that R. Moon claimed he shot Staples, but Inv. Monroe indicated that Bell
struggled with substance abuse and Bell admitted that he smoked marijuana
when the conversation occurred. Inv. Monroe stated that officers
interviewed Nugent, R. Moon, and his son, Colby Moon (“C. Moon”), and
learned that R. Moon and Nugent lived in Dubach, both denied knowing
who Staples was, and no evidence was ever discovered to link them to the
incident.
Inv. Monroe testified that because Howell was the last known person
to see Staples alive, they interviewed him again, for a total of three
interviews. During an evidentiary hearing,12 Inv. Monroe testified that
11 Bell testified that he struggled with substance abuse but is currently sober. He stated that he sustained an injury to his head and now struggles with memory loss following the incident. Bell was unable to recall if he told investigators that R. Moon claimed to have shot Staples. 12 The trial court judge allowed Howell’s statements from each interview to be admitted as evidence.
5 Howell was given his Miranda rights before each interview and that he was
generally cooperative. Inv. Monroe stated that during the first interview,
Howell reported that he did not know what time he left Staples after they got
gas, and phone records attested that Howell’s phone went “offline” around
9:30 p.m. and did not show activity again until 4:30 a.m. In his second
interview, Howell admitted he kept a Hi-Point 9mm gun in his truck and that
he had it the night he was with Staples. Howell admitted that he was
frustrated with Staples because Sunni was alone in Homer.
Howell added that when he left Staples, he went to Micah Bernice’s13
home in Calhoun.14 When asked what should happen to the person
responsible, Howell only stated that a person had a right to defend
themselves, if “Staples was acting irate.” In his final interview, Howell
stated that his attorney advised him not to answer questions, but he
ultimately spoke with officers. He primarily reiterated his previous
statements, that he owned a Hi-Point 9mm and that he did not see anyone go
in his truck, but it was possible, and admitted that he had been agitated with
Staples.
Finally, Inv. Monroe testified that before Howell’s last interview, he
obtained a search warrant for Howell’s truck and home. Officers found that
during a traffic stop in November 2019, Howell told an officer he had a gun,
the officer ran the serial number for the gun, and revealed that the gun was a
Hi-Point 9mm. In searching Howell’s truck, officers discovered six shell
13 Bernice testified that he had not seen Howell in months and that he could not remember if Howell stopped by his house or not, but that Howell sometimes stopped by Bernice’s mother, who lived in Calhoun at that time. 14 When asked about witnesses seeing him at Sunni’s home, Howell only stated that he couldn’t remember if he went back to Homer.
6 casings in the truck bed and a spent silver 9mm shell casing that matched the
casing found closest to the victim’s body in make, color, and manufacturer.
Inv. Monroe testified they searched Howell’s home15 and discovered a bag
of ammunition and an empty Hi-Point 9-mm gun box with a serial number
that matched the one from the traffic stop, under Howell’s bed. Inv. Monroe
stated that they never recovered the Hi-Point gun and that Howell told them
that the gun was missing, but never reported it stolen.
Doctor Jennifer Forsyth (“Dr. Forsyth”), an expert in forensic
pathology, who performed Staples’ autopsy, testified that during her
examination, she documented two gunshot entrance wounds: (1) underside
of the chin and (2) left cheek. Dr. Forsyth testified that Staples’ skin on his
chin had stipple, which indicated that he was shot at close range, and
although she was not certain of the position of the shooter, she could provide
that the gunshot wounds were consistent with the gun being under or to the
side of the chin facing up. She also stated that she did not see any other
apparent injuries and that while some methamphetamine and amphetamine
were in Staples’ system, deaths due to methamphetamines usually had
higher dosages.
Michael Fegely, an expert in geolocation analysis, explained that he
used cellphone records as well as cell tower location data from various cell
towers throughout the area to compile a cohesive representation of the
location of phone numbers and devices presented to him. He explained that
information from a cell tower can identify phone transactions in a given area
and “tower dumps” can show the location of a cell phone and the pattern of
15 Inv. Monroe also testified that when they executed the search warrant, Howell had a .380 caliber Glock on him. 7 movement for that device. Fegely testified that he compiled cell data for
Staples, Howell, Deason, Flowers, Futch, C. Moon, Miller, and Bell from
midnight until 3:00 a.m.
Fegely generally stated that the last outgoing call made from Staples’
phone was to Deason at 12:01 a.m., and no further outgoing calls or
messages were made; moreover, the phone stayed connected to the same cell
tower, indicating that he did not move from that location. Fegely stated that
phone records and data from Howell’s phone indicated that the last known
call occurred at 5:08 p.m. on December 9, and no data activity occurred until
6:53 a.m. He stated he was unable to track Howell’s movements from
midnight until 3:00 a.m. because the phone was “offline.” He then testified
that both Deason and Flowers’ phones stayed connected to the same cell
tower in Ruston from midnight to 3:00 a.m.
Fegely testified that, based on the tower connection, Futch’s phone
remained in the Homer area and that his number was not found within the
“tower dump” where Staples’ body was found. Similarly, Fegely testified
that Miller’s phone number did not appear in the “tower dump.” Fegely also
stated that C. Moon’s phone remained in the Dubach area and Bell’s phone
remained in the Arcadia area in the specified time frame.
Finally, Michelle Cazes (“Cazes”), of the Louisiana State Police
Crime Laboratory and expert in the field of firearms examination and
analysis, compared the shell casings and bullets collected from the scene and
Staples’ autopsy. Cazes determined that the shell casing found at the scene
closest to Staples’ body and the spent shell casing found in Howell’s truck
were fired from the same Hi-Point handgun. Cazes also stated she analyzed
the two bullets recovered from Staples’ body and determined they were also 8 fired from the same Hi-Point 9mm gun. On cross-examination, Cazes stated
that Hi-Point guns were common, and acknowledged that there were other
casings at the scene not fired from a Hi-Point.
The State also introduced the following pertinent testimony from lay
persons:
Futch testified that Staples and Sunni rented a house in Homer that
Futch’s father owned. He stated that although Staples was a good tenant and
they had no personal problems, he evicted Staples because he was three
months behind in rent. Futch stated that he did not see Staples on December
9, but was aware that he and Sunni were moving out because Staples texted
him earlier to help move furniture. He explained that he did not help and
spent the evening with his girlfriend, Rebecca Crain.16 He stated that he did
not know Staples died until the next morning when he went to the hardware
store17 to get locks. Futch then admitted that he knew Kelly, but that he
never told him that Staples died. On cross-examination, Futch stated he did
not know Howell, and again denied ever contacting Kelly about Staples or a
car that Kelly left parked near Staples’ home. He later admitted that it was
possible he contacted Kelly about a car through Facebook Messenger.
Deason testified that she lived in Ruston when the incident occurred.
She stated that on December 9, she was home when Staples called around 5
16 Crain testified that on Dec. 9, she went to Futch’s home around 5:00 p.m. She stated that she and Futch went to Staples’ home to deliver eviction papers, but no one was home. Crain explained that after they went back to Futch’s home, they stayed there the entire night and she was unaware of Staples’ death until the next evening. 17 Daren Wall testified that he was the manager of the M&M hardware store. He stated that Staples was scheduled to work the morning shift, but Staples’ mother called and informed him that Staples had been killed. Wall testified that Futch often frequented the store and that he was there that morning. On cross-examination, Wall testified that Futch had told him he talked to Staples the night he died, and agreed that he gave a statement to officers that Futch would keep Staples’ rent money.
9 p.m. or 6 p.m. from a number she did not recognize. She explained that
Staples had been on his way to her house to buy drugs but his vehicle broke
down. Deason stated Staples called her again from Sunni’s phone around
10:30 p.m. and explained that he was with Howell. She stated that Staples
called her for the final time around midnight, and by then, Flowers18 came
over and tried to help resolve the issue with Staples’ vehicle.
Deason stated Staples was frustrated and she could hear Howell but
could not understand what he said. Deason testified that Staples stated,
“Look, just man up. If you don’t feel like driving all the way home, just say
so. If you want to go back to Homer, just say that” and told her, “Look, let
me talk to him and figure this out, and either he’s going to bring me and
drop me off by the road or I’ll call y’all back for a ride and help with the
car,” but Staples never came by her house or called her back.
Next, Miller testified that on December 9, he lived in Minden with
Bass19 and Doyle.20 He stated that he did not know Howell, but had known
Staples for 12 years and knew that Staples had financial trouble. Miller
admitted that he gave Staples money to pay a loan on a truck; he explained
that Staples owed $1,400 dollars on the loan and that he initially gave
Staples $1,000 toward the loan and agreed to make the rest of the payment in
18 Flowers testified that during the call, Staples said he was with “Sunni’s brother,” and that the two could not get the truck started. Flowers explained that Staples said he would ask Howell for a ride, but heard Staples say, “No, you’re not. You don’t understand. You don’t understand me,” and told Howell to man up before telling them he would call them back, but never did. 19 Bass testified that she had two cameras on her home, one in the front and one in the back. She stated that both were motion activated and that although the back camera was charging at one point, Miller was home all night on the night in question. 20 Doyle testified that she got off work at 10:30 p.m. and went to the store after to get groceries. She stated that she got back home around 11:00 p.m., and cooked dinner. She testified that Miller had been home that night and never left.
10 installments. He testified that when he went to pay the last of the loan
himself, he discovered Staples had not made any payments and spent the
money on something else. Miller admitted he was upset with Staples, and
they exchanged words, and he took the truck from Staples to resolve the
issue.
Miller testified that he had not spoken to Staples in about two months
and that on December 9, he was with his son, helping fix a truck in the
Ruston-Choudrant area until about 8:00 p.m. He stated that he went back to
Minden but stopped at a truck stop casino, played until about 9:45 p.m., and
went home around 10:00 p.m. He stated that Doyle came home around
11:00 p.m., cooked dinner and that he only left the house to move his truck
from the front to the back of the home,21 but stayed home. Miller admitted
that he gave his guns22 to Michael Rockett because he was a convicted felon
and knew officers would talk to him because he had Staples’ truck. Miller
also admitted he threatened several people, including C. Moon,23 after
Staples died, indicating that they would end up on the side of the road.
Miller denied killing Staples and stated that he should not have sent those
messages and that he only used them as a scare tactic.
Next, White testified that on December 9, he and Kelly pushed
Kelly’s car to Keith’s Food Mart. He stated that he saw Staples there and
21 Trooper Glenn Younger testified that he reviewed the surveillance footage from Bass’ home and saw Miller arrive at the home around 10:00 p.m. and that he exited to move a truck toward the back of the home. He testified that he assumed the home had a back door because he could not see any more motion on the camera after Doyle arrived. 22 Miller testified that he owned a .32 and .22 caliber gun. He also testified that he never owned a Hi-Point gun. 23 Miller stated he sent that message to C. Moon and Alana Howard, a woman they both dated, and that those messages were sent out of anger.
11 they got oil from a guy who was with Staples. White stated he and Kelly
stayed at the gas station after Staples left to fix the car, but stated that the car
broke down again near Staples’ home. White testified that while they
attempted to get the car working, he saw the same man that was with Staples
and flagged him down to help. White stated that the man claimed to have
dropped Staples off, then went to Staples’ home and began to beat on the
door and windows, calling out a woman’s name. White stated that he
stopped paying attention to the man and later he, Kelly, and another friend,
Fredrick Champ (“Champ”), went to “Dog’s” home where they stayed until
the next morning.
R. Moon testified that on December 9, he lived in Lincoln Parish with
his fiancée, Nugent,24 and at that time, did not own a phone or vehicle. R.
Moon denied telling Bell he shot Staples because he did not know either
Staples or Howell. C. Moon similarly testified that he did not know either
Staples or Howell. He stated that he knew Miller and that they both used to
date Alana Howard. C. Moon stated that Miller threatened him and told him
that he would end up on the side of the road like Staples.
At the conclusion of the State’s evidence, counsel for Howell
presented the following pertinent testimony: 25
24 Nugent also testified that she did not know either Staples or Howell. 25 Mrs. Howell primarily testified that she sent Howell to help Sunni move furniture. She stated that she sent Howell with some of Sunni’s things and $60 dollars in an envelope. Mrs. Howell stated that she called Sunni’s phone around 10:30 p.m., but Staples answered, and she told Howell to use the money to get gas. She then testified that she did not hear from Howell until the next morning when he woke her up to get his keys. She stated that Howell told her he stopped by Micah Bernice’s home before coming home.
12 Kelly testified that when the incident occurred, he lived in Homer. He
testified that on the night in question, he was with White, and later Champ,
when his car broke down. He stated that he pushed the car to a gas station
and while there, saw Staples and “Steven Howell,” who gave them a bottle
of oil. Kelly stated the car started, but it broke down near Staples and Lisa
Franklin’s home. Kelly explained that after unsuccessfully trying to get the
car started again, he pushed the car near Staples’ home. Later, he, White,
and Champ went to “Dog’s” home, where he stayed until about 11:00 a.m.
Kelly stated that Futch called him around 1:00 a.m. and told him to move the
car from Staples’ home because it leaked oil. During the call, Futch
allegedly told Kelly that Staples was dead; however, on cross-examination,
Kelly stated that he was not sure when Futch called him and that the call
took place through Facebook Messenger.
At the close of testimony, the jury unanimously found Howell guilty
as charged of second degree murder. On November 30, 2021, Howell was
sentenced to mandatory life imprisonment at hard labor without benefit of
parole, probation, or suspension of sentence. Howell subsequently filed a
motion to reconsider sentence, and the trial court denied the motion on
December 29, 2021. Howell now appeals his conviction and sentence.
DISCUSSION
Sufficiency of the Evidence
By his first and second assignments of error, Howell contends that the
evidence presented at trial was purely circumstantial and insufficient to
exclude every reasonable hypothesis of innocence that he committed the
offense or to support a conviction of second degree murder. Specifically,
Howell argues that the State failed to prove beyond a reasonable doubt that 13 he committed the offense because two other individuals, Miller and R.
Moon, claimed responsibility for Staples’ death.
Howell further argues that the Hi-Point 9mm gun identified as the
murder weapon is relatively common, and although he also owned a Hi-
Point 9mm, the gun was either lost or stolen, and the State presented no
evidence to establish that this was the same gun used in the commission of
this offense. Moreover, Howell asserts that of the two spent shell casings
found closest to Staples’ body, only one was dispensed from a Hi-Point
9mm, and of the other several casings recovered from the scene, only one
matched the casings found in his truck.
The standard of appellate 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 proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979);
State v. Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S.
905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Steines, 51,698 (La.
App. 2 Cir. 11/15/17), 245 So. 3d 224, writ denied, 17-2174 (La. 10/8/18),
253 So. 3d 797. This standard, now codified in La. C. Cr. P. art. 821, does
not afford appellate courts with a means to substitute its own appreciation of
the evidence for that of the fact finder. Steines, supra.
The Jackson standard is applicable to cases involving both direct and
circumstantial evidence. 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 the light most favorable to the prosecution. When
14 the direct evidence is thus viewed, the facts established by the direct
evidence must be sufficient for a rational trier of fact to conclude beyond a
reasonable doubt that defendant was guilty of every essential element of the
crime. State v. Sutton, 436 So. 2d 471 (La. 1983).
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; Broome, supra; State v. Gipson, 45,121 (La. App. 2 Cir. 4/14/10),
34 So. 3d 1090, writ denied, 10-1019 (La. 11/24/10), 50 So. 3d 827.
Appellate courts neither assess the credibility of witnesses nor
reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442.
Rather, the reviewing court affords great deference to the jury’s decision to
accept or reject the testimony of a witness in whole or in part. State v.
Gilliam, 36,118 (La. App. 2 Cir. 8/30/03), 827 So. 2d 508, writ denied, 02-
3090 (La. 11/14/03), 858 So. 2d 422. Where there is conflicting testimony
concerning factual matters, the resolution of which depends upon a
determination of the credibility of the witnesses, the matter is one of the
weight of the evidence, not its sufficiency. State v. Allen, 36, 180 (La. App.
2 Cir. 9/18/02), 828 So. 2d 622, writ denied, 02-2595 (La. 6/27/03), 847 So.
2d 1255.
In the absence of internal contradiction or irreconcilable conflict with
physical evidence, one witness’s testimony, if believed by the trier of fact, is
sufficient support for a requisite factual conclusion. State v. Elkins, 48,972 15 (La. App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied, 14-0992 (La. 12/8/14),
152 So. 3d 438; State v. Wiltcher, 41,981 (La. App. 2 Cir. 05/09/07), 956 So.
2d 769. When a defendant challenges both the sufficiency of the evidence,
and other trial errors, the reviewing court first reviews sufficiency, as a
failure to satisfy the sufficiency standard will moot trial errors. State v.
McGee, 51,977 (La. App. 2 Cir. 4/3/19), 316 So. 3d 1196.
Moreover, in a case where a defendant claims he was not the person
who committed the offense, the Jackson standard requires that the
prosecution negate any reasonable probability of misidentification. State v.
Green, 38, 335 (La. App. 2 Cir. 5/12/04), 873 So. 2d 889, writ denied, 04-
1795 (La. 11/24/04), 888 So. 2d 227; State v. Powell, 27,959 (La. App. 2
Cir. 4/12/96), 677 So. 2d 1008, writ denied, 96-1807 (La. 2/21/97), 688 So.
2d 520.
Here, Howell was convicted of second degree murder in violation of
La. R.S. 14:30.1, which is defined, in pertinent part, as “the killing of a
human being: (1) When the offender has a specific intent to kill or inflict
great bodily harm[.]” Specific intent need not be proven as a fact but may
be inferred from the circumstances of the transaction and the conduct of the
defendant. La. R.S. 14:10(1); 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
169. All that is necessary is that the defendant form the specific intent to kill
or inflict great bodily harm for an instant when committing the crime. Id.
Specific intent to kill or inflict great bodily harm may be inferred from the
circumstances of the offense, as well as the extent and severity of the
victim’s injuries. Id.
16 In viewing the evidence in a light most favorable to the prosecution,
we find that any rational trier of fact could have found beyond a reasonable
doubt that the State presented sufficient evidence to prove that Howell
committed the offense in question.
In brief, Howell suggests that another individual could have killed
Staples, namely, Futch, R. Moon, or Miller; however, cell phone records and
data from the cell tower where Staples was killed, do not support this
conclusion. Inv. Monroe testified that, based on Staples’ last outgoing
phone call and when his body was discovered, he died between 12:08 a.m.
and 2:42 a.m. Phone records and data were pulled from these individuals,
and several others, to confirm their locations and outgoing and incoming
phone calls and messages from midnight until 3:00 a.m.
With respect to Futch, Howell highlights that Futch and Staples had a
disagreement concerning rent and that Kelly testified that Futch knew about
Staples’ death approximately two hours before the body was discovered.
However, data from the cell tower and Futch’s phone records reflected that
from midnight until 3:00 a.m., Futch remained in the Homer area, and was
not found within the cell tower information dump. Moreover, Futch testified
that he was at his residence in Homer during this timeframe and did not
know where Staples was that evening. Futch’s ex-girlfriend also
corroborated that he was home during this time.
Howell also suggests that R. Moon could have killed Staples because
he allegedly told Bell that he did so following a drug deal. The record
reflects that when the incident occurred, R. Moon’s location could not be
verified through cell data because R. Moon did not own a phone at that time.
However, he testified that when the incident occurred, he lived in Lincoln 17 Parish with his girlfriend Nugent. He also denied having ever spoken to
Bell26 about Staples because he did not know either Staples or Howell.
Moreover, Inv. Monroe testified that the alleged “drug deal” was an
anonymous tip to the crime stopper hotline with no further evidence to link
R. Moon to the incident.
Howell then suggests Miller could have been responsible because he
and Staples had a disagreement concerning payments on Staples’ truck and
Miller told several people he killed Staples. Although Miller admitted he
threatened some people, he clarified that he only intended to intimidate them
and denied killing Staples. Importantly, information from the cell tower
near the incident confirmed that Miller was not in the area when Staples
died, and surveillance from Miller’s home in Minden reflected that Miller
was home at approximately 10:00 p.m. and did not leave the residence for
the remainder of the night. Although the home’s back camera was charging,
Miller’s girlfriend and ex-mother-in-law both confirmed that he never left.
The record, however, does reflect that Howell was the last known
person with Staples before he died. Cell phone records and data revealed
that Howell’s phone died sometime after 9:30 p.m., so his location could not
be verified. However, video surveillance from a gas station showed that
Staples and Howell were together around 11:00 p.m. and then left together.
Testimony from both Deason and Flowers further confirmed that Staples
was with Howell from 12:01 a.m. until 12:08 a.m. when Staples called
Deason. Both Deason and Flowers testified that Staples and Howell had
gotten into an argument, and Deason testified she heard Staples say, “Look,
26 We further note that Bell was unable to recall ever having a conversation with officers concerning this matter. 18 just man up. If you don’t feel like driving all the way home, just say so. If
you want to go back to Homer, just say that,” indicating that the two had an
argument.
Cell phone data from Staples’ phone and the cell tower revealed that
after Staples ended the call with Deason, no subsequent calls or messages
were made thereafter, and the phone never left the area, despite Howell’s
assertion that when he left Staples, Staples had made another phone call.
Moreover, evidence from forensic and firearm analysis reports confirmed
that the two bullets removed from Staples were fired from a Hi-Point 9mm
gun, the exact gun Howell told officers he owned and had in his truck the
night Staples died but was now missing. Evidence further established that
the spent shell casing found closest to Staples’ body matched another spent
casing officers discovered in the back seat of Howell’s truck as well as the
ammunition later found under Howell’s bed in color, make, and
manufacturer.
In viewing all of the evidence in the light most favorable to the
prosecution, we find that a rational trier of fact could have found beyond a
reasonable doubt that Howell was responsible for Staples’ death. Therefore,
this assignment of error is without merit.
Invocation of Right to Remain Silent and Right to Counsel
In his final assignment of error, Howell asserts that the trial court
erred in admitting statements he made to Inv. Monroe during his third
interview. Howell contends that Inv. Monroe continued to question him
after he made an unequivocal request not to speak by shaking his head, and
to have counsel present, highlighting the following exchange:
Q: . . . Are you willing to answer questions, at this time? 19 A: Uh, my lawyer has advised me against that?
Q: Okay, so you don’t want to answer any questions?
A: Uh, I mean– (shakes head right to left).
Q: I mean it–it’s just a yes or no question. And, like I said, number five says, uh, “If you do decide to start answering questions, you still have the right to stop at any – at any time.”
A: Okay.
Q: So, what–So, you, uh–
A: I mean, I–I’ll try to answer whatever questions you, got, man.
Q: Okay. So that’s a yes?
A: Yeah, I’ll answer your questions until I find–I guess until I find that you’re being an–I don’t know.
The law regarding the admissibility of confessions is well-settled;
before the State may introduce a confession into evidence, it must
demonstrate that the statement was free and voluntary and not the product of
fear, duress, intimidation, menace, threats, inducements or promises. La.
R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Blank, 04-0204 (La. 4/11/07),
955 So. 2d 90. The State must also show that law enforcement officers
advised the defendant of his Miranda rights and that he knowingly waived
those rights. State v. Moseley, 587 So. 2d 46 (La. App. 2 Cir. 1991), writ
denied, 589 So. 2d 1066 (La. 1991), citing Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
However, even after waiving his Miranda rights, a defendant may
invoke such rights at any time prior to or during questioning. State v. Leger,
05-011 (La. 7/10/06), 936 So. 2d 108, cert. denied, 549 U.S. 1221, 127 S.Ct.
1279, 167 L.Ed. 2d 100 (2007); State v. Wilson, 50,865 (La. App. 2 Cir.
20 11/16/16), 208 So. 3d 999, writ not cons., 17-0217 (La. 4/24/17), 219 So. 3d
329. Although Miranda does not require that a defendant exercise his right
to remain silent by any particular phrasing, a defendant’s invocation of his
right to remain silent, just as a request for counsel, must be clear and
unambiguous. Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176
L.Ed.2d 1098 (2010), citing Davis v. United States, 512 U.S. 452, 114 S.Ct.
2350, 129 L.Ed.2d 362 (1994).
In the case sub judice, testimony confirms that Inv. Monroe read
Howell his Miranda rights and Howell indicated that he understood those
rights by executing a written waiver of rights form. However, Howell
argues that his confession should have been suppressed because he invoked
his 5th Amendment right to remain silent when he indicated he did not want
to answer questions by shaking his head and all questioning thereafter
should have ceased. We disagree.
Here, the transcript of Howell’s third interview reflects that in
response to Inv. Monroe’s inquiry of whether Howell wanted to answer any
questions, Howell’s response was “Uh, I mean-” and he shook his head from
right to left; video recording of the interview reflects that Howell made a
barely audible comment and slightly moved his head. Given that an
invocation for the right to remain silent must be express and unambiguous,
we cannot say that Howell’s response was a specific invocation of his right
to remain silent.
Moreover, we note that after Inv. Monroe stated “I mean it—it’s just a
yes or no question. And, like I said, number five says, uh, ‘If you do decide
to start answering questions, you still have the right to stop at any – at any
time,’ ” Howell continued to speak, stating, “I mean, I – I’ll try to answer 21 whatever questions you, got, man.” Because Howell did not invoke his right
to remain silent prior to or during questioning, we find that it was
permissible for investigators to continue the interview.
Howell further contends that his statements should not have been
admissible because he invoked his right to counsel, which should have
ceased the interview. We disagree.
The inquiry in cases where the defendant claims he invoked his right
to counsel is whether the statement was clear and unambiguous under the
circumstances so as to put a reasonable police officer on notice that
defendant was invoking his right to counsel during a custodial interrogation.
State v. Payne, 01-3196 (La. 12/4/02), 833 So. 2d 927. In Davis v. U.S., 512
U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994), the Supreme Court
declared that an equivocal or ambiguous statement, such as “maybe I should
talk to a lawyer,” was insufficient to constitute an invocation of the Miranda
right to counsel, and that an unambiguous, clear assertion of the right was
necessary to trigger the rule that interrogation cease upon invocation of the
right.
After being advised of his rights and asked if he wanted to answer
questions, Howell stated that his lawyer advised him against that. At no
point during the exchange did Howell specifically request that he wanted his
attorney present or that he did not want to speak until his attorney was
present. Rather, Howell merely mentioned that at one point, his attorney
advised him not to answer questions. Moreover, during the evidentiary
hearing, Howell admitted that he never specifically asked for or requested
counsel during the interview. Under the bright-line rule established in
22 Davis, supra, Howell’s passive comment of his attorney’s advice is
insufficient to invoke his right to counsel.
Accordingly, we find that Howell failed to show that he invoked his
right to silence or counsel in a clear manner such that a reasonable police
officer in the circumstances would have understood the statement to be an
unequivocal request for an attorney and that custodial interrogation was to
be terminated. Therefore, we find that the trial court did not err in admitting
the statement and thus, this assignment of error is without merit.
CONCLUSION
For the reasons stated above, Howell’s conviction and sentence are
affirmed.