State v. Brashears

902 So. 2d 536, 2005 WL 955253
CourtLouisiana Court of Appeal
DecidedApril 26, 2005
Docket04-KA-1207
StatusPublished
Cited by3 cases

This text of 902 So. 2d 536 (State v. Brashears) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brashears, 902 So. 2d 536, 2005 WL 955253 (La. Ct. App. 2005).

Opinion

902 So.2d 536 (2005)

STATE of Louisiana
v.
John BRASHEARS.

No. 04-KA-1207.

Court of Appeal of Louisiana, Fifth Circuit.

April 26, 2005.

*537 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Shannon H. Huber, Frank A. Brindisi, James W. Adair, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, and SUSAN M. CHEHARDY.

EDWARD A. DUFRESNE, JR., Chief Judge.

The defendant, John Brashears, appeals his conviction of second degree murder, a violation of LSA-R.S. 14:30.1. We affirm the conviction and remand.

The Jefferson Parish Grand Jury returned an indictment charging defendant with the second degree murder of Myra Huy. At the arraignment, defendant pled not guilty. The matter thereafter proceeded to trial before a twelve person jury which found defendant guilty as charged. After denying defendant's motions for new trial and for post-verdict judgment of acquittal, the trial court sentenced defendant to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

Defendant met the victim, Myra Huy, through a friend, and the two began a relationship which lasted about five or six years. On the day of the shooting, September 13, 2002, defendant and Huy were *538 living together on Adolph Street in Jefferson Parish. At trial, the sixty-five year old defendant testified that when he returned home, Huy came out of the house with a gun and began fussing at him in the backyard. Defendant took the gun away from her. Huy then proceeded to get into her mother's car. Defendant followed her to the car to try to talk to her. Defendant was leaning on the car door with the gun in his hand resting on the open window. Defendant testified, "I thought she was reaching at the gun but she slammed the door and the gun bumped the side of her head and went off." According to defendant, no one's finger was on the trigger when the gun fired. Defendant then opened the car door, looked inside, and saw blood coming out of Huy's nose and mouth. He testified that it appeared to him that she was not breathing. Defendant got scared and fled the scene in his vehicle. After driving about four to five hours, defendant threw the gun out of the car window. Defendant apparently stopped in Texas to get some gas, and then decided to return home. Defendant first went to his parents' house and then surrendered to police. After being advised of his rights, defendant gave a statement to police in which he admitted that he and the victim were arguing prior to the shooting. He claimed that the gun was lying on the car window, that Huy went to grab it, that he then pulled the gun back, and it went off. Defendant was subsequently arrested and charged with the second degree murder of Huy.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant argues that the trial court erred in failing to grant a new trial based on insufficient evidence.[1] Specifically, defendant contends that the state failed to present evidence that he intended to shoot the victim, and thus, failed to negate the reasonable hypothesis of innocence that the gun was accidentally discharged.

The constitutional standard for testing the sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all of 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). When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates 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." On appeal, the reviewing court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, the court must evaluate the evidence in a light most favorable to the prosecution and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Boss, 03-133 *539 (La.App. 5 Cir. 5/28/03), 848 So.2d 75, 77, writ denied, 03-1968 (La.5/14/04), 872 So.2d 508.

Defendant was convicted of second degree murder which is defined, in pertinent part, in LSA-R.S. 14:30.1 A(1) as the killing of a human being when the offender has specific intent to kill or to inflict great bodily harm. Specific 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." LSA-R.S. 14:10(1). Specific intent need not be proven as a fact but may be inferred from the circumstances and actions of the accused. State v. Woodhead, 03-1036 (La.App. 5 Cir. 1/27/04), 866 So.2d 995, 999, writ denied, 04-0598 (La.7/2/04), 877 So.2d 144. Whether a defendant possessed the requisite intent in a criminal case is for the trier of fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Simmons, 98-841(La.App. 5 Cir. 6/1/99), 738 So.2d 1131, 1134, writ denied, 99-2419 (La.4/20/00), 760 So.2d 333. Flight and attempt to avoid apprehension are circumstances from which the jury may infer a guilty conscience. State v. Falkins, 04-250 (La.App. 5 Cir. 7/27/04), 880 So.2d 903, 913, writ denied, 04-2220 (La.1/14/05), 889 So.2d 266.

In the present case, we find that the evidence presented at trial was sufficient to support defendant's conviction. Both in his trial testimony and in his statement given to police, defendant maintained that the shooting was an accident. At trial, defendant stated that he was leaning on the car door with the gun in his hand resting on the open window. Defendant testified, "I thought she was reaching at the gun but she slammed the door and the gun bumped the side of her head and went off." In his statement given to police, defendant maintained that the gun was lying on the car window, that Huy went to grab it, that he pulled the gun back, and it went off. However, testimony presented by the state showed that Huy sustained a contact gunshot wound.

Dr. Susan Garcia, a forensic pathologist with the Jefferson Parish Coroner's Office, testified that she performed an autopsy on the victim, and determined that she sustained a contact gunshot wound to her left ear. She explained that a contact wound indicates that the muzzle of the weapon was in contact with the skin at the time of the discharge of the weapon. Dr. Garcia further noted that at the time of discharge, the weapon was in or on the ear canal of the victim. Finally, at the time of discharge, the gun was pointed level or maybe slightly down when it was fired.

The state also called Alfred Schwoeble as an expert witness in the field of gunshot residue analysis.

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