State v. Cherry

752 So. 2d 894, 1999 La. App. LEXIS 2474, 1999 WL 735849
CourtLouisiana Court of Appeal
DecidedSeptember 22, 1999
DocketNo. 32,141-KA
StatusPublished
Cited by1 cases

This text of 752 So. 2d 894 (State v. Cherry) 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. Cherry, 752 So. 2d 894, 1999 La. App. LEXIS 2474, 1999 WL 735849 (La. Ct. App. 1999).

Opinions

|STEWART, J.

The defendant, William Jeff Cherry (“Cherry”), was charged with one count of attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1. After a bench trial, Cherry was found guilty of the responsive verdict of aggravated battery, a violation of La. R.S. 14:34. The trial court sentenced Cherry to imprisonment of five years at hard labor and imposed a fine of $1,000 plus costs. A motion for new trial was denied by the trial court. Cherry now appeals the denial of his motion for new trial, as well as his conviction and sentence. We affirm.

FACTS

In June 1995, Cherry began dating Sara Kamperman (“Kamperman”). Cherry and Kamperman became engaged a few months later in September 1995, at which time Kamperman began wearing an engagement ring given to her by Cherry. By November 1995, the relationship began to sour, and Kamperman returned the ring to Cherry. Cherry threatened to attempt suicide on a number of occasions, usually when Kamperman suggested slowing down their relationship. Prior to Thanksgiving, Cherry, who was employed as an L.P.N., lost his job.

Kamperman spent Thanksgiving Day with Cherry and remained that night at Cherry’s home, even after having broken up with Cherry that day. On the evening of Friday, November 24, 1995, Kamper-man returned to Cherry’s home at approximately 5:00 p.m., to drop off a birthday present for Cherry’s brother and to see Cherry before going to her parents’ home. Cherry and Kamperman spoke in Cherry’s bedroom for about fifteen to twenty minutes, during which time Cherry, who was depressed about losing his job and losing Kamperman, begged her to come back to him. At one point Sara returned to her car to retrieve a wrapping for the gift for Cherry’s brother. When she returned to Cherry’s bedroom, she found him in a semi-reclined position on his bed with a pillow on his lap. Their ^conversation resumed with Cherry becoming more upset, crying, and appearing to have trouble breathing.

According to Kamperman, she became concerned about Cherry and moved a step closer to him to console him, at which point his expression and demeanor changed. Cherry was no longer crying and did not appear short of breath. Cherry stood up, dropped the pillow, reached out his arm, and shot her. He did not say anything. Kamperman stated that she first saw the gun as the pillow dropped and that she raised her left hand. The bullet injured Kamperman’s left thumb and entered the upper right side of her chest. Kamper-man fell to the floor after being shot and remained conscious. She noted that the time was “three minutes to six”. Kamper-man testified that she begged Cherry to help her and to call 911 but that he did nothing at first. Cherry knelt down beside her, possibly to check her pulse, then left the room. Cherry returned to the room carrying a yellow box which he placed on the bed and placed the gun beside the box. Kamperman also testified that Cherry stated he did not want to go to jail, so she told him that she would say the shooting was an accident. She told him that she loved him and that they would be together. Kamperman stated that Cherry then placed the engagement ring that she had returned to him back on her finger and called 911. Kamperman denied that Cherry threatened suicide on this occasion.

Cherry testified that the shooting was accidental. He explained that he did not know that Sara was going to return after leaving his room the first time. He retrieved a Glock 10mm from his collection of more than 20 guns in order to clean it in preparation for a possible deer hunt with his brother. Cherry stated that the gun did not contain a magazine; however, he did not check to see whether a bullet was in the chamber. Cherry planned to clean the gun on his bed and stated that his gun cleaning kit was out on his bed. Cherry [897]*897testified that he was surprised to see Kam-perman return to his room and that while they talked he begged her not to | ¡¡leave. He was upset and crying when Kamper-man turned to leave. Cherry picked up the gun and called out to Kamperman. Cherry testified that he told her that if he could not be with her, then he would not be with anyone. Kamperman then walked up to him as he brought the gun around, at which point Kamperman hit his hand and the gun discharged. Kamperman walked a couple of steps and fell to the ground as Cherry dropped the gun and grabbed his ears because of the deafening noise. Cherry testified that he then went to Kam-perman, located the wound, placed a pillow over it, hugged her and told her that he loved her, and then called 911. He denied getting the gun cleaning kit out or hesitating to call for help. He stated that the engagement ring was on an ottoman next to where Kamperman was lying on the floor.

Lane Johnson (“Johnson”) and Kelly Duke (“Duke”), both EMT personnel who transported Kamperman to the hospital, heard Kamperman state that the shooting was not accidental. Lane asked Kamper-man what happened and she replied that it was not an accident and that Cherry waited to call 911 because he was afraid of getting in trouble. Duke testified that Cherry did not show much emotion at the scene. Rather, he was not crying, and he had a blank, calm look. Officers Paula Langford and Michael Blackmon of the Shreveport Police Department investigated the incident. Cherry informed them that he and Kamperman were sitting on the bed when the gun accidentally discharged while he was cleaning it. Cherry testified that he gave this statement because he was embarrassed to admit that he was suicidal. According to Officer Lang-ford, Cherry appeared very calm and was not crying. Officer Blackmon recalled that Cherry seemed upset and made crying sounds but exhibited no tears. Officer Blackmon also recalled that Cherry did not seem surprised when he was charged with attempted second degree murder.

| ¿After a bench trial of this matter, the trial court determined that the State failed to meet its burden of proving that Cherry had the specific intent to kill as required to prove the charge of attempted second degree murder. The trial court noted that he had concerns about the veracity of both Kamperman and Cherry and expressed the opinion that both individuals had a need for psychological counseling. With these expressed concerns, the trial court concluded that the shooting was not accidental and that it did not occur while Cherry cleaned the gun. This conclusion was based on four observations: (1) Kamperman stated from the beginning that the shooting was not accidental; (2) Emergency personnel confirmed hearing Kamperman state that the shooting was not accidental as she was transported to the hospital; (3) Expert testimony was of the opinion that the shooting was not accidental; and (4) Only Cherry’s testimony supported the theory of an accidental shooting. The trial court concluded that while the evidence adduced at trial was not sufficient to prove attempted second degree murder, it was sufficient to find Cherry guilty of the responsive verdict of aggravated battery as provided in La. C.Cr.P. art. 814(A)(4). Thereafter, the trial court sentenced Cherry to five years at hard labor and imposed a fine of $1,000 plus costs.

After sentencing, Cherry filed a motion for new trial based on a motion for summary judgment filed by Kamperman in her civil suit against him. In the motion for summary judgment, Kamperman’s counsel argued that there is no genuine issue of material fact that Cherry’s actions were anything other than negligence. Cherry asserted in his motion for new trial that if Kamperman had testified in accordance with her allegations in the summary judgment motion then the trial court would have had no alternative but to acquit him.

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Related

State v. Gaddis
839 So. 2d 1258 (Louisiana Court of Appeal, 2003)

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Bluebook (online)
752 So. 2d 894, 1999 La. App. LEXIS 2474, 1999 WL 735849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cherry-lactapp-1999.