STATE OF LOUISIANA NO. 18-KA-670
VERSUS FIFTH CIRCUIT
CORY BARTHOLOMEW COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 15,514, DIVISION "B" HONORABLE E. JEFFREY PERILLOUX, JUDGE PRESIDING
October 23, 2019
HANS J. LILJEBERG JUDGE
Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg
AFFIRMED; REMANDED WITH INSTRUCTIONS HJL JGG RAC COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Bridget A. Dinvaut Geoffrey M. Michel
COUNSEL FOR DEFENDANT/APPELLANT, CORY BARTHOLOMEW C. Gary Wainwright LILJEBERG, J.
Defendant appeals his convictions and sentences for attempted second
degree murder and aggravated criminal damage to property. For the following
reasons, we affirm. We also remand for correction of an error patent.
PROCEDURAL HISTORY
Defendant, Cory Bartholomew,1 was charged with three counts of
aggravated assault with a firearm in violation of La. R.S. 14:37.4 (counts one, two,
and three), attempted second degree murder in violation of La. R.S. 14:27 and La.
R.S. 14:30.1 (count four), and aggravated criminal damage to property in violation
of La. R.S. 14:55 (count five). On October 30 and 31, and November 2, 2017, trial
was held on counts four and five only, and a twelve-person jury found defendant
guilty as charged on both counts. On April 16, 2018, defendant was sentenced to
imprisonment at hard labor for 40 years without benefit of parole, probation, or
suspension of sentence on count four, attempted second degree murder, and
imprisonment at hard labor for five years on count five, aggravated criminal
damage to property, with the sentences to run concurrently with each other. 2
Defendant appeals.
FACTS
Darville Washington testified that on December 13, 2015, at approximately
4:00 p.m., his friends—Rickey Preston, Shawn Stipe, and Lee Eric Lockett—came
to his house, after which they went to a parade in Gonzales. When the parade was
over, they asked Mr. Washington to drop them off at Bozy’s Lounge on Sixth
Street in Edgard. Mr. Washington drove past Bozy’s and then by a brown vehicle
that he knew his cousin, Cory Bartholomew (defendant), was in. Mr. Washington
1 Throughout the record before us, defendant’s name is spelled both “Cory” and “Corey.” For consistency, defendant’s name will be spelled “Cory” in this opinion. 2 The State severed counts one, two, and three, and proceeded to trial on counts four and five. On the same date as sentencing on counts four and five, the State entered a nolle prosequi on counts one, two, and three.
18-KA-670 1 subsequently “started burning rubbers,” which he explained meant to apply the
brake and gas pedals at the same time. Less than two seconds later, he saw
defendant exit the driver’s side of the brown vehicle, walk “straight up” behind the
truck Mr. Washington was in, point something at him and “open fire” on the truck.
Mr. Washington testified that although he was looking forward and was shot in the
back of the neck, he was positive that defendant was the shooter. He explained
that he was looking out of the back windshield and the side back windshield as
defendant was exiting his vehicle and approaching the truck.
Cameras around Bozy’s captured the incident. Video of the incident was
shown to the jury. While observing the video, Mr. Washington testified that he
saw his truck pulling up, after which “Bosco,” defendant’s uncle, exited the brown
vehicle and ran off. He testified that he then observed defendant “getting in the
road,” unloading his gun, and chasing after the truck. Mr. Washington testified
that after the shooting, he drove back up Sixth Street to River Road away from
defendant and Bozy’s. As he was driving, he felt his body become weaker, and he
thought he was going to pass out. Mr. Washington testified that he could not drive
any further, so Mr. Preston began driving and brought him to Mr. Preston’s sister’s
house on Teddy Lane in Edgard. The last thing Mr. Washington remembered
before passing out was going down Sixth Street.
Mr. Washington testified that he regained consciousness two days later at
University Hospital. The police came and took his statement. They also showed
him a six-man lineup, and he positively identified defendant as the shooter. Mr.
Washington recalled writing on the lineup: “[b]eing in Edgard I used to hang with
him, yes. He is the person that shot me.”
Mr. Washington stated that sometime after the incident, he was approached
outside Bozy’s one night by defendant’s brother, Chris Bartholomew, and his
mother, Simone Bartholomew. He testified that Chris asked how much money he
18-KA-670 2 would take to “sit down and let this go.” He maintained that defendant’s mother
did not talk about money but said she hoped “this be gone [sic]” and that they
could “work this out.” Mr. Washington testified that when they approached him
outside of Bozy’s, he was alone, so he agreed to everything Chris said knowing
that he was not going to go forward with it. He explained that he did not want to
get caught in the same predicament as before and get shot again. Mr. Washington
also asserted that Chris’ “partner” came to him one time with $3,000 and told him
to take it, but he did not do so.
Mr. Washington testified that when he was shot in the back of the neck, the
bullet grazed his spinal cord and was still sitting in the center of his neck. He
asserted that his doctors were afraid to take it out because it was “so close.” Mr.
Washington testified that his doctors told him that because he could still move his
feet and “everything else,” muscle tissue would grow around the bullet and hold it
in the same spot.
Detective Michael Pugh of the St. John Parish Sheriff’s Office testified that
he executed search warrants on a brown 2000 Ford Crown Victoria, which was the
vehicle defendant was in, and a white 2015 Dodge Ram truck, which was the
vehicle the victim was in. He took photographs of those vehicles during the
search, which were later admitted at trial. Detective Pugh testified that he located
a Louisiana State ID with defendant’s name on it “in the dashboard” of the brown
vehicle. He also recovered an unknown caliber projectile in the bed of the truck.
Detective Pugh testified that he located a bullet hole on the back of the truck on the
passenger side. He also noted that the rear glass of the truck on the driver’s side
had been shattered. Detective Pugh explained that there were bullet holes in the
front and back of the rear seat headrest and bullet holes in the front and back of the
driver-side seat headrest. He testified that the evidence indicated that one of the
projectiles traveled from the rear shattered glass toward the driver’s seat.
18-KA-670 3 Detective Byron Smith of the St. John Parish Sheriff’s Office testified that
on December 13, 2015, he was dispatched to East 14th Street regarding a subject
who had been shot. When he walked inside the door, he observed Mr. Washington
on his knees with his upper torso and head on the sofa. Detective Smith searched
Mr. Washington’s body while talking to him and found a wound on the back of his
neck. Mr. Washington subsequently told Detective Smith that Cory Bartholomew
had shot him on East Sixth Street in front of Bozy’s. Detective Smith testified that
there were many individuals inside the residence. He spoke to several of them who
said they were in the truck, but they would not provide any additional information.
Gilbert Bartholomew III testified that his nickname is “Bosco,” that he lives
in Edgard, and that defendant is his nephew. He further testified that on December
13, 2015, he was inside Bozy’s Lounge cleaning up. He got two drinks and left,
after which he got into his father’s vehicle, the brown Crown Victoria, and went to
sleep. Gilbert III testified that a couple of hours later he heard a gunshot, but he
did not know where it was coming from. He explained that he raised his head and
saw an individual running, so he ran. He denied that anyone was in the vehicle
with him that night. Gilbert III asserted that everyone used that vehicle, and he did
not know who was using it that night. He viewed video of the incident and
identified himself exiting the vehicle and then running, but he denied seeing an
individual getting out of the vehicle on the driver’s side. Gilbert III testified that
he did not know who shot Mr. Washington. He stated that he heard more gunshots
while he was running and did not look back.
Gilbert Bartholomew Jr. testified that he lives in Edgard and that defendant
is his grandson. He also testified that he owns the brown Crown Victoria and that
he allows his family, including defendant, to use it. Gilbert Jr. could not recall
who had it on the night of December 13, 2015.
18-KA-670 4 Anthony Goudia testified that at the time of the incident, he was working as
a detective for the St. John Parish Sheriff’s Office, and he investigated the shooting
in this case. He viewed the video of the incident and stated that it showed a light-
colored car parked in the parking lot. He observed the exhaust and brake lights on
the car and opined that it was running. In the video, Mr. Goudia then saw a white
truck start to pass in front of the light-colored car. Prior to the truck getting a few
feet away from the car, a black male (“Bosco”) exited the passenger side and ran
toward Bozy’s. Mr. Goudia testified that immediately thereafter, he saw a short
black male with “dreads” or long hair get out of the driver’s side of the car, walk
toward the street where the white truck was passing, get in the street, and start
firing at the white truck.
Mr. Goudia also testified that the video showed “Bosco” looking back
toward the street where the white truck was passing and where the black male was
shooting. Mr. Goudia quickly developed defendant as a suspect based on the
victim’s statement. He added that he had known of defendant for 10 or 12 years
because he is from that area. He also testified that Gilbert Jr. told him that his
grandson, defendant, had his vehicle that evening. Mr. Goudia noted that the video
showed that before the shooting, the white truck was spinning its tires and making
smoke, and the windows of the truck were up. He testified that he saw four flashes
in front of the Crown Victoria and that the police recovered four shell casings on
the scene that correlated with what he saw on the video. Mr. Goudia stated that no
gun was ever recovered.
Following Mr. Goudia’s testimony, the State introduced the victim’s medical
records from University Medical Center into evidence.
After the State rested its case, Simone Bartholomew testified that defendant
was her son and that she “knew of” Mr. Washington. Ms. Bartholomew also
testified that Mr. Washington followed her home after they came to court the last
18-KA-670 5 time. She claimed that she stopped at a grocery store and that Mr. Washington
pulled on the side of her and asked her for $15,000 or $20,000 to pay his doctor
bill. She claimed that Mr. Washington said he did not know who shot him. Ms.
Bartholomew stated that she then drove away and called her attorney. She testified
that she did not give Mr. Washington any money.
Chris Bartholomew testified that he had a felony drug conviction and that
defendant was his younger brother. He was not at Bozy’s on December 13, 2015,
when the incident occurred. Chris claimed that Mr. Washington approached him
one or two weeks after he got out of the hospital and asked Chris to “pay him off”
so “this could go away.” He explained that he was a professional gambler and that
he and Mr. Washington gambled together in the past. Chris asserted that Mr.
Washington knew he carried a lot of money and that he asked for $15,000. Chris
said he told Mr. Washington that he did not have that kind of money. He claimed
that Mr. Washington asked him for money on more than one occasion. Chris noted
that he and defendant are close in age, that they live together, and that they “hang
out a lot.” He stated that he would do anything for defendant.
Mr. Washington testified for the State in rebuttal that after a prior court
hearing, he went to Bozy’s, and defendant’s mother was there. He explained that
defendant’s mother approached him, but he never told her that he did not know
who shot him. Mr. Washington insisted that defendant shot him on December 13,
2015.
LAW AND DISCUSSION
In his first assignment of error, defendant contends that his conviction for
attempted second degree murder violates due process. He argues that the evidence
was insufficient to support this conviction, because the State did not prove beyond
a reasonable doubt that he had the specific intent to kill the victim. Rather, he
claims the evidence showed that Mr. Washington was merely wounded by ballistic
18-KA-670 6 fragments during the offense of aggravated criminal damage to property when a
bullet hit the truck and fragmented, causing the victim to suffer a “minor wound.”
Defendant also complains the victim was allowed to falsely testify that he still had
a bullet in his neck, which the State knew was incorrect, producing the impression
that he fired directly at the victim’s head or neck. He contends that the victim’s
false testimony went to the “heart of the case,” and he must be granted a new trial.
In reviewing the sufficiency of evidence, an appellate court must determine
that the evidence, whether direct or circumstantial, or a mixture of both, viewed in
the light most favorable to the prosecution, was sufficient to convince a rational
trier of fact that all of the elements of the crime have been proven beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied,
535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).
In cases involving circumstantial evidence, the trial court must instruct the
jury that “assuming every fact to be proved that the evidence tends to prove, in
order to convict, it must exclude every reasonable hypothesis of innocence.” La.
R.S. 15:438. The reviewing court is not required to determine whether another
possible hypothesis of innocence suggested by the defendant offers an exculpatory
explanation of events. Rather, the reviewing court must determine whether the
possible alternative hypothesis is sufficiently reasonable that a rational juror could
not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-
3342 (La. 10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La. App. 5
Cir. 1/27/04), 866 So.2d 973, 977.
In this case, defendant was convicted of one count of attempted second
degree murder. In order to prove attempted second degree murder, the State must
establish beyond a reasonable doubt that the defendant specifically intended to kill
a human being and that he committed an overt act in furtherance of that goal. La.
18-KA-670 7 R.S. 14:30.1(A)(1) and La. R.S. 14:27; State v. Bishop, 01-2548 (La. 1/14/03), 835
So.2d 434, 437; State v. Bannister, 11-602 (La. App. 5 Cir. 2/14/12), 88 So.3d 628,
634, writ denied, 12-628 (La. 6/15/12), 90 So.3d 1060. Specific criminal intent is
“that state of mind which exists when the circumstances indicate that the offender
actively desired the prescribed criminal consequences to follow his act or failure to
act.” La. R.S. 14:10(1). Specific intent need not be proven as a fact but may be
inferred from the circumstances surrounding the offense and the defendant’s
conduct. State v. Holmes, 12-579 (La. App. 5 Cir. 5/16/13), 119 So.3d 181, 191,
writ denied, 13-1395 (La. 1/10/14), 130 So.3d 318. Specific intent to kill may be
inferred from a defendant’s act of pointing a gun and firing at a person, as well as
the extent and severity of the victim’s injuries. Id.
In the instant case, the State presented sufficient evidence to show that
defendant had the specific intent to kill the victim. The testimony of the victim
and the video of the shooting reflect that after the victim drove past defendant and
spun his wheels, defendant exited his vehicle, stood right behind the victim’s truck,
pointed a gun toward the victim in the truck, and fired it more than once.
Detective Pugh’s testimony and the photographs of the victim’s truck indicate that
one of the bullets broke the glass on the back of the truck on the driver’s side,
traveled through the driver’s side back seat and the driver’s side front seat, after
which it struck the victim, who was sitting in the driver’s seat, in the back of the
neck. Mr. Washington testified that the “bullet” grazed his spinal cord and was
still sitting in the center of his neck, because the doctors were afraid to take it out.
In his defense, defendant presented the testimony of his mother, Simone
Bartholomew, who testified that the victim, Mr. Washington, asked her for a large
sum of money to pay his medical bills and told her that he did not know who shot
him. He also presented the testimony of his brother, Chris Bartholomew, who
18-KA-670 8 asserted that the victim approached him one or two weeks after he got out of the
hospital and asked that he “pay him off” so “this could go away.”
The credibility of witnesses is within the sound discretion of the trier of fact,
who may accept or reject, in whole or in part, the testimony of any witness; the
credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21
(La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. Additionally, under Louisiana
law, a victim’s or witness’ testimony alone is usually sufficient to support the
verdict. State v. Munson, 12-327 (La. App. 5 Cir. 4/10/13), 115 So.3d 6, 13, writ
denied, 13-1083 (La. 11/22/13), 126 So.3d 476. In the absence of internal
contradiction or irreconcilable conflict with physical evidence, one witness’
testimony, if believed by the trier of fact, is sufficient support for a requisite factual
conclusion. State v. Turner, 05-75 (La. App. 5 Cir. 5/31/05), 904 So.2d 816, 823,
writ denied, 05-2591 (La. 5/26/06), 930 So.2d 20.
In the instant case, the jury heard the testimony of all of the witnesses and
apparently found the State’s witnesses to be credible. There is no internal
contradiction or irreconcilable conflict with the physical evidence, including the
video of the shooting.
Defendant also argues the evidence did not show that the victim was
seriously injured in the incident. However, the offense of attempted second degree
murder does not require that the victim actually sustain a serious injury.3 Rather, it
requires the specific intent to kill, which may be inferred from the circumstances
surrounding the offense and the defendant’s conduct. Defendant’s conduct of
pointing a gun and firing it toward the victim in the truck are circumstances from
which the jury could have reasonably inferred that defendant had the specific intent
to kill.
3 Nevertheless, the record in this case shows that the victim’s injuries were serious. The medical records reflect that defendant had ballistic fragments at the posterior neck and scalp and that he sustained a fracture of the second cervical vertebrae.
18-KA-670 9 Defendant also complains that the victim was allowed to repeatedly testify
that he still had a “bullet” in his neck, though he only had a “bullet fragment,”
thereby producing the false impression that he fired directly at the victim’s head or
neck. However, there is no evidence that the victim testified falsely. The record
does not reveal whether or not the victim was aware that he had a portion of a
bullet in his neck, as opposed to an entire bullet. Even if the victim knew this
information, he may not have believed the difference between the two was
relevant. Further, it is unlikely that this discrepancy had any effect on the jury’s
verdict.
In light of the foregoing, we find that a rational trier of fact could have found
that the evidence was sufficient under the Jackson standard to support defendant’s
conviction for attempted second degree murder. 4,5
In his second assignment of error, defendant argues that his 40-year sentence
for attempted second degree murder is constitutionally excessive given the facts of
the instant case. He contends that the pre-sentence investigation report (“PSI”)
contained incorrect information that the victim suffered life-threatening injuries.
He complains that the PSI recommended a maximum 50-year sentence based upon
the alleged severity of the victim’s injuries and defendant’s lack of remorse, but he
notes that both the State and the trial court agreed prior to trial that the victim’s
4 Defendant only challenges the sufficiency of the evidence regarding his conviction for attempted second degree murder. Nevertheless, a review of the record under State v. Raymo, 419 So.2d 858, 861 (La. 1982), shows that the evidence was also sufficient under the Jackson standard to establish the essential statutory elements of aggravated criminal damage to property. La. R.S. 14:55(A) provides that aggravated criminal damage to property is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered by any means other than fire or explosion. In the instant case, the evidence reflects that defendant shot toward the truck the victim was driving, that there was damage to the truck, and that it was foreseeable that the lives of the occupants of the vehicle might be endangered. 5 See also State v. Jones, 11-399 (La. App. 3 Cir. 11/2/11), 76 So.3d 1274, where the appellate court found sufficient evidence to support the conviction of attempted second degree murder which occurred when the defendant blocked in the victim’s vehicle, exited his vehicle with a gun in his hand, approached the victim’s vehicle, and began firing through the windows at the occupants inside; and State v. Odom, 511 So.2d 1214 (La. App. 2nd Cir. 1987), writ denied, 515 So.2d 446 (La. 1987), where the appellate court found sufficient evidence to support the conviction of attempted second degree murder which occurred when the defendant intentionally and repeatedly fired a deadly weapon at the victim’s car with at least three shots actually hitting the victim’s car.
18-KA-670 10 injuries and the damage to the truck merited a 10-year sentence. He indicates that
he was punished with a more severe sentence for exercising his right to a jury trial.
Defendant also maintains that the record does not reflect that the trial court
was ever made aware of the actual injuries the victim suffered, namely, two minor
ballistic fragment wounds—one in the neck and one in the scalp. He asserts that
he is a young man who lashed out inappropriately in response to the “purposefully
provocative goading” by the victim. Defendant notes that he was employed, had
no prior felony convictions, and that the victim only suffered a “minor wound”
which does not make him the “worst of the worst.” He argues that this Court
should remand for a new sentencing hearing in which the trial court will be fully
apprised of the actual injuries the victim sustained.
At the sentencing hearing, defendant did not wish to say anything before
sentencing, and the State indicated that the victim did not wish to make a formal
statement. Afterward, the trial judge stated:
All right. The Court has carefully studied the presentence report, which includes the factors that were listed therein. The Court has considered these matters, as well as the nature of the present offense, in light of the provisions of Article 894.1, and the Court makes the following findings regarding the sentence:
First and foremost, the Court recognizes the serious nature of the offense for which the defendant was convicted. These are determined to be and considered to be crimes of violence, as defined under Louisiana Revised Statute 14:2, and which resulted in life-threatening injuries to the victim, Mr. Darville Washington, as well as damage to the vehicle occupied by Mr. Washington. The Court further notes that other lives were also jeopardized by defendant’s conduct in firing a weapon at the occupied vehicle in utter disregard of the lives of the occupants. Indeed, Mr. Washington is lucky to be alive and will likely live with the unwanted souvenir of a lodged bullet in his neck for the rest of his life. Simply put, Mr. Bartholomew, your brazen act of violence is so egregious that a lesser sentence would deprecate the seriousness of the crime. You, sir, endangered life and property and were convicted by a jury of your peers.
18-KA-670 11 The trial judge subsequently stated that he had reviewed the information
contained in the PSI and the sentencing guidelines set forth in the Code of
Criminal Procedure. He then sentenced defendant to 40 years at hard labor without
benefit of parole, probation, or suspension of sentence.6
Following sentencing, defense counsel noted his objection for the record
“for purposes of appeal.” He did not specifically state objections to the sentence
nor did he file a written motion to reconsider sentence. This Court has consistently
held that a defendant’s failure to state a specific ground upon which a motion to
reconsider sentence is based limits a defendant to a review of the sentence for
constitutional excessiveness. La. C.Cr.P. art. 881.1(E); See also State v. Escobar-
Rivera, 11-496 (La. App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ denied, 12-0409 (La.
5/25/12), 90 So.3d 411. Consequently, we find that defendant is limited to a bare
review of his sentence for constitutional excessiveness. State v. McGee, 04-963
(La. App. 5 Cir. 1/11/05), 894 So.2d 398, 412, writ denied, 05-0593 (La. 5/20/05),
902 So.2d 1050.
The Eighth Amendment to the United States Constitution and Article I, § 20
of the Louisiana Constitution prohibit the imposition of excessive punishment.
Although a sentence is within statutory limits, it can be reviewed for constitutional
excessiveness. State v. Smith, 01-2574 (La. 1/14/03), 839 So.2d 1, 4. A sentence
is considered excessive if it is grossly disproportionate to the offense or imposes
needless and purposeless pain and suffering. Id. A sentence is grossly
disproportionate if, when the crime and punishment are considered in light of the
harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La.
App. 5 Cir. 9/28/04), 885 So.2d 618, 622.
6 The trial judge also sentenced defendant to five years at hard labor for the aggravated criminal damage to property conviction; however, defendant is not challenging that sentence on appeal.
18-KA-670 12 A trial judge has broad discretion when imposing a sentence, and a
reviewing court may not set a sentence aside absent an abuse of that discretion.
The issue on appeal is whether the trial court abused its discretion, not whether
another sentence might have been more appropriate. State v. Dorsey, 07-67 (La.
App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside
a sentence for excessiveness if the record supports the sentence imposed. State v.
Pearson, 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a
trial court’s sentencing discretion, three factors are considered: 1) the nature of the
crime; 2) the nature and background of the offender; and 3) the sentence imposed
for similar crimes by the same court and other courts. Id.
Defendant was convicted of attempted second degree murder in violation of
La. R.S. 14:27 and La. R.S. 14:30.1. He was facing a sentencing range of 10 to 50
years at hard labor without benefit of parole, probation, or suspension of sentence.
The trial court sentenced him to 40 years imprisonment at hard labor without
benefit of parole, probation, or suspension of sentence. Therefore, defendant’s 40-
year sentence is within the statutory range.
Although defendant did not have any prior felony convictions, the record
reflects that defendant had prior arrests for criminal activity. In selecting a proper
sentence, a trial judge is not limited to considering only a defendant’s prior
convictions but may properly review all prior criminal activity. State v.
Youngblood, 18-445 (La. App. 5 Cir. 5/22/19), 274 So.3d 716, 744.
Also, if a trial judge has agreed to impose a particular sentence pursuant to a
plea bargain, this does not restrict that judge from imposing a more severe sentence
if the defendant elects to go to trial and is convicted. State v. Aleman, 01-743 (La.
App. 5 Cir. 1/15/02), 809 So.2d 1056, 1066, writ denied, 02-0481 (La. 3/14/03),
839 So.2d 26. Further, with respect to the lack of remorse, under La. C.Cr.P. art.
894.1, the trial court can consider any relevant aggravating circumstances not
18-KA-670 13 otherwise specified in the article. The article does not prohibit the trial court from
considering a defendant’s lack of remorse. See State v. L.A.C., 07-1411 (La. App.
3 Cir. 4/30/08), 982 So.2d 277, 279.
Additionally, the jurisprudence supports defendant’s 40-year sentence for
attempted second degree murder. In State v. Bradstreet, 16-80 (La. App. 5 Cir.
6/30/16), 196 So.3d 876, cert. denied, 16-1567 (La. 6/5/17), 220 So.3d 752, this
Court upheld the defendant’s 40-year sentence on each count of attempted second
degree murder, noting that the two victims were shot multiple times and that the
shootings occurred in a residential neighborhood potentially risking harm to others
nearby. In State v. Thomas, 10-269 (La. App. 3 Cir. 10/6/10), 48 So.3d 1210,
1217, writ denied, 10-2527 (La. 4/1/11), 60 So.3d 1248, cert. denied, 565 U.S.
859, 132 S.Ct. 196, 181 L.Ed.2d 102 (2011), the appellate court upheld the
defendant’s 40-year sentence for an attempted second degree murder conviction,
noting that the defendant had an extensive criminal history and that he had fired
into a crowd of people endangering multiple lives. See also State v. Jones, 12-
0891 (La. App. 4 Cir. 8/7/13), 122 So.3d 1065, writ denied, 13-2111 (La. 4/11/14),
137 So.3d 1212, in which the Fourth Circuit upheld the two defendants’
consecutive 40-year sentences for two counts each of attempted second degree
murder.
In the instant case, we find that the trial court did not abuse its discretion in
sentencing defendant to 40 years of imprisonment on the attempted second degree
murder conviction. The evidence shows that defendant’s reckless actions
jeopardized the lives of the four occupants of the truck. As discussed above, the
testimony of the victim and the video of the shooting reflect that defendant stood
right behind the truck the victim was driving, pointed a gun at the victim and the
truck, and fired it more than once. Detective Pugh’s testimony and photographs of
the victim’s truck indicate that one of the bullets broke the glass on the back of the
18-KA-670 14 truck on the driver’s side, traveled through the driver’s side back seat and the
driver’s side front seat, after which it struck the victim, who was sitting in the
driver’s seat, in the back of the neck. Also, because the victim was the driver of
the truck, it was fortunate that he was able to pull over at some point and let
someone else continue to drive. The lives of the occupants of the truck and others
could have been further jeopardized if he had continued to drive after being shot.
The medical records indicate that defendant sustained a gunshot wound to
the neck “amazingly not damaging any significant neurovascular structures.” They
also indicate that defendant had ballistic fragments at the posterior neck and scalp
and a fracture of the second cervical vertebrae.
In light of the foregoing, we find that the 40-year sentence imposed in
connection with defendant’s attempted second degree murder conviction was not
constitutionally excessive.
In his third assignment of error, defendant argues that he received ineffective
assistance of counsel at the trial court level. He contends that his counsel was
ineffective because he did not object to an erroneous jury instruction regarding
attempted second degree murder. Defendant explains that the jury instruction
regarding that offense was fatally flawed because it erroneously instructed the jury
that either a specific intent to kill or to inflict great bodily harm was the standard,
when a specific intent to kill was the appropriate standard.
The Sixth Amendment to the United States Constitution and Article I, § 13
of the Louisiana Constitution safeguard a defendant’s right to effective assistance
of counsel. According to the United States Supreme Court’s opinion in Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a
defendant asserting an ineffective assistance claim must show: (1) that defense
counsel’s performance was deficient; and (2) that the deficiency prejudiced the
defendant. The defendant has the burden of showing that “there is a reasonable
18-KA-670 15 probability that, but for counsel’s unprofessional errors, the results of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Generally, an ineffective assistance of counsel claim is most appropriately
addressed through an application for post-conviction relief filed in the district
court, where a full evidentiary hearing can be conducted, if necessary, rather than
by direct appeal. State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d
589, 595. If, however, the record contains sufficient evidence to rule on the merits
of the claim and the issue is properly raised in an assignment of error on appeal, it
may be addressed in the interest of judicial economy. Id. In the present case, the
record contains sufficient evidence to consider the merits of defendant’s claims.
La. C.Cr.P. art. 802 mandates that the trial court instruct the jury on the law
applicable to each case. State v. Cornejo-Garcia, 11-619 (La. App. 5 Cir.
1/24/12), 90 So.3d 458, 462. The standard for reviewing jury charges requires that
the charges be read as a whole. State v. Hill, 98-1087 (La. App. 5 Cir. 8/31/99),
742 So.2d 690, 698, writ denied, 99-2848 (La. 3/24/00), 758 So.2d 147.
La. C.Cr.P. art. 841(A) provides, in part, that “[a]n irregularity or error
cannot be availed of after verdict unless it was objected to at the time of
occurrence.” A party may not assign as error the giving or failure to give a jury
charge or any portion thereof unless an objection thereto is made before the jury
retires or within such time as the court may reasonably cure the alleged error. La.
C.Cr.P. art. 801(C).
In the present case, defendant did not make a contemporaneous objection to
the jury instruction at issue and, thus, he is not entitled to review of this issue.
Nevertheless, even if we consider defendant’s argument, we find the inaccurate
jury instruction was harmless and, thus, defendant was not prejudiced by counsel’s
failure to object to it.
18-KA-670 16 In State v. Hongo, 96-2060 (La. 12/2/97), 706 So.2d 419, the Louisiana
Supreme Court held that an erroneous jury instruction which improperly includes
intent to inflict great bodily harm as an element of attempted second degree murder
is subject to a harmless error analysis. The Court found that there was no
argument or evidence presented to the jury which would support a finding that the
defendant had the intent to only inflict great bodily harm and that no reasonable
jury could have concluded that the defendant had the intent to only inflict great
bodily harm. Id. at 422. The Court further found that the trial court’s erroneous
inclusion of intent to inflict great bodily harm did not prejudice the defendant nor
would its omission have affected the verdict. It concluded that because the
defendant was not prejudiced by his counsel’s failure to object, he failed to satisfy
the second prong of an ineffective assistance claim. Id.
Additionally, in Bishop, 835 So.2d at 438-439, the defendant argued that the
trial court read an erroneous jury instruction which led jurors to believe that they
could convict him of attempted second degree murder based only on a finding that
he possessed the specific intent to inflict great bodily harm and that such error was
reversible. The Louisiana Supreme Court found that the trial court’s erroneous
jury instruction was harmless in light of the overwhelming evidence presented that
the defendant had the specific intent to kill the victim. Id. at 440.
Likewise, in State v. Frinks, 18-899 (La. App. 3 Cir. 6/12/19), 274 So.3d
635, the defendant contended that he was deprived of a fair trial because the trial
court incorrectly instructed the jury that the State needed to prove he had the
specific intent to kill or to inflict great bodily harm in order to convict him of either
the charged offense of attempted second degree murder or the lesser included
offense of attempted manslaughter. The Third Circuit found that the evidence was
sufficient to satisfy the State’s burden, beyond a reasonable doubt, of proving that
the defendant had the specific intent to kill the victim, who suffered a serious chest
18-KA-670 17 wound and had a collapsed lung. The appellate court found that under Hongo,
supra, the trial court’s inaccurate instruction regarding specific intent was harmless
error because the jury would have reached the same verdict given the sufficiency
of the evidence.
In the instant case, the jury was instructed as follows:
Attempted second degree murder occurs when the defendant had a specific intent to kill or inflict great bodily harm
And the defendant does [or omits] an act for the purpose of and tending directly toward the commission of the crime of second degree murder.
****
Thus, in order to convict the defendant of ATTEMPTED SECOND DEGREE MURDER, you must find beyond a reasonable doubt:
(1) that the defendant acted with a specific intent to kill. (2) that the defendant did or omitted an act for the purpose of and tending directly toward the commission of the crime of second degree murder. (Emphasis as found in original).
A review of the jury charges indicates that while the jury initially received
an inaccurate instruction regarding the general definition of attempted second
degree murder, including that it can be committed if a defendant has the specific
intent to kill or to inflict great bodily harm, the jury was thereafter instructed that
in order to convict defendant of attempted second degree murder, it must find that
defendant acted with the specific intent to kill. While the jury did receive an
erroneous instruction at one point, we find this error was harmless in light of the
overwhelming evidence presented that defendant had the specific intent to kill the
victim. See Hongo, supra; Bishop, supra; Frinks, supra.
Defendant has failed to show a reasonable probability that, but for counsel’s
alleged error, the jury would have reached a different verdict. Accordingly, we
18-KA-670 18 find that defendant has not shown that he received ineffective assistance of
counsel.
ERRORS PATENT
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990). On error requiring corrective action was noted.
The uniform commitment order (UCO) contains two columns, one for the
disposition date and one for the sentencing date. The UCO reflects that both
occurred on April 16, 2018. The transcript reflects that the sentencing date was
April 16, 2018, and the disposition date, or date of conviction, was November 2,
2017. The transcript prevails. State v. Lynch, 441 So.2d 732 (La. 1983). As such,
we remand the matter to the trial court for correction of the UCO to reflect the
correct disposition date. We also order the Clerk of Court for the 40th Judicial
District Court to transmit the corrected UCO to the appropriate authorities in
accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections’
legal department. See State v. Montero, 18-397 (La. App. 5 Cir. 12/19/18), 263
So.3d 899, 909.
DECREE
For the foregoing reasons, we affirm defendant’s convictions and sentences.
We also remand to the trial court for correction of the Uniform Commitment
Order.
AFFIRMED; REMANDED WITH INSTRUCTIONS.
18-KA-670 19 SUSAN M. CHEHARDY MARY E. LEGNON
CHIEF JUDGE INTERIM CLERK OF COURT
FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY OCTOBER 23, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
18-KA-670 E-NOTIFIED 40TH DISTRICT COURT (CLERK) HON. E. JEFFREY PERILLOUX (DISTRICT JUDGE) HONORABLE BRIDGET A. DINVAUT J. PHILIP PRESCOTT, JR. (APPELLEE) J. TAYLOR GRAY (APPELLEE) (APPELLEE) C. GARY WAINWRIGHT (APPELLANT) COLIN CLARK (APPELLEE) GEOFFREY M. MICHEL (APPELLEE) GRANT L. WILLIS (APPELLEE)
MAILED HON. JEFFREY M. LANDRY (APPELLEE) ATTORNEY GENERAL LOUISIANA DEPARTMENT OF JUSTICE 1885 NORTH 3RD STREET 6TH FLOOR, LIVINGSTON BUILDING BATON ROUGE, LA 70802