State v. Carey

628 So. 2d 27, 1993 WL 310811
Louisiana Court of Appeal·Decided December 1, 1993·No. 24859-KA·Published·Cited by 26 cases

Opinion

628 So.2d 27 (1993)

STATE of Louisiana, Appellee,
v.
Demond CAREY, et al., Appellant.

No. 24859-KA.

Court of Appeal of Louisiana, Second Circuit.

August 18, 1993.
Opinion Modifying Judgment on Rehearing December 1, 1993.

*28 Randy E. Collins, Shreveport, for appellant Demond Carey.

N. Martin Trichel, Shreveport, for appellant Bobby Wallace.

Richard Ieyoub, Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., and H. Stanley Lockard and Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.

Before NORRIS, VICTORY and WILLIAMS, JJ.

VICTORY, Judge.

Defendants, Demond Carey and Bobby Wallace, aka Bobby Young, Jr., were found guilty as charged by a jury of the second degree murder of Johnny Lee Atkins. Defendants appeal, urging among other complaints that the evidence was insufficient to sustain a conviction. We reverse the convictions, vacate the sentences and order the defendants discharged.

*29 FACTS

According to the prosecution's theory of the case, on November 20, 1990 at approximately 9:00 p.m., defendants Carey and Wallace, accompanied by Wallace's cousin, Tronde Young, were riding around in the Martin Luther King Drive area of Shreveport in a brown or green Ford four-door. While driving down Willis Street, Carey forced three pedestrians, one of whom was the victim, Johnny Lee Atkins, off the road. Carey turned the car around and drove back to where Atkins was standing. The young men exchanged words and Wallace pulled out a firearm. As Atkins began to run away, Wallace fired one shot into his back, causing his demise.

Carey and Wallace were indicted for second degree murder. One of the state's eyewitnesses to the crime could not be located by the state. Tronde Young testified at trial, but denied being in the car or having any personal knowledge of the crime. Following extensive impeachment of Young's testimony by his prior inconsistent statements, the jury convicted defendants of second degree murder.

On appeal, defendants claim that the state failed to produce sufficient evidence that they committed the crime, specifically arguing that the jury was encouraged to and used the substance of inconsistent statements as proof of guilt. We agree.

LAW

LSA-R.S. 14:30.1 defines second degree murder as the killing of a human being (1) when the offender has a specific intent to kill or to inflict great bodily harm, or (2) when the offender is engaged in the perpetration or attempted perpetration of ... armed robbery.

This court's authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and does not extend to credibility determinations made by the trier of fact. LSA-La. Const., Art. 5, § 5(C); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (1987).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of 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 the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that 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); State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable possibility of misidentification in order to carry its burden of proof. State v. Brady, 414 So.2d 364 (La.1982); State v. Long, 408 So.2d 1221 (La.1982). 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 the requisite factual conclusion. State v. Chism, 591 So.2d 383 (La.App. 2d Cir.1991), citing State v. Shepherd, 566 So.2d 1127 (La.App. 2d Cir.1990); State v. Garlepied, 454 So.2d 1147 (La.App. 4th Cir.1984), writ denied, 462 So.2d 189 (1984).

Evidence of a prior inconsistent statement, even if admissible because the probative value of the evidence on the issue of credibility substantially outweighs the risks of undue consumption of time, confusion of the issues or unfair prejudice, may only be admitted when offered solely to attack the credibility of the witness and does not constitute substantive evidence of guilt. L.C.E. Art. 607D(2); State v. Allien, 366 So.2d 1308 (La.1978); State v. Williams, 258 La. 251, 246 So.2d 4 (La.1971); State v. Taylor, 593 So.2d 431 (La.App. 2d Cir.1992).

*30 DISCUSSION

Mark Lewis testified that he and Terry Gilliam were standing on Willis street on November 20, 1990, talking with the victim, Atkins, when a car forced them off the road, turned around and returned. Lewis stated that "the guys came up and asked for some bud [marijuana] ... and then all of a sudden a gun came out ...". Lewis claimed he heard one shot, as the three pedestrians ran. He described the car as a brown or green Ford four-door, with two men in the front seat and one in the back with a pistol.

Following the homicide, Lewis was shown a photographic lineup by Detective Gary Robinson and tentatively[1] identified Wallace as "looking familiar", but was unable to identify Carey or Young. When asked at trial about the photo lineup presented by Detective Robinson, Lewis stated, "I told him it looked like the one that pulled the gun out and I wasn't sure then, but you know, I am not really still sure." Lewis told the jury "the young man in the white shirt" was the person who had the gun. However, Carey was the defendant in the white shirt at trial, not Wallace. It is apparent that Lewis was unsure of the identification, both when shown the lineup following the homicide and at trial.

D'Andre Wilson, the victim's uncle, testified he saw the victim, Atkins, in possession of about $250 and purchasing beer and cigarettes at a Fina station at about 8:00 p.m. on the night of the homicide. Wilson testified he saw the defendants and Young at approximately 8:15 p.m. to 8:30 p.m. in front of Green Oaks High School in a green, four-door Ford LTD. He stated Carey was driving, with Wallace in the front passenger seat, and Young in the back seat.

Morris Reliford, the nephew of the victim and cousin of D'Andre Wilson, testified that he had also seen defendants and Young at 7:30 p.m. to 7:40 p.m. on the night of the homicide. According to Reliford, Carey was driving, Wallace was in the front passenger seat with a pistol, and Young was in the back seat.

Much of the remaining evidence presented by the state consisted of Young's prior inconsistent statements. During the investigation, Young told police that he was riding in the car with defendants on the night in question. However, at trial he stated he did not reme

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