State v. Demery

679 So. 2d 518, 1996 WL 474095
CourtLouisiana Court of Appeal
DecidedAugust 21, 1996
Docket28396-KA
StatusPublished
Cited by19 cases

This text of 679 So. 2d 518 (State v. Demery) 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. Demery, 679 So. 2d 518, 1996 WL 474095 (La. Ct. App. 1996).

Opinion

679 So.2d 518 (1996)

STATE of Louisiana, Appellee,
v.
Nigaragua Tehran DEMERY, Appellant.

No. 28396-KA.

Court of Appeal of Louisiana, Second Circuit.

August 21, 1996.

*519 Indigent Defender Office by Kurt Goins, New Orleans, for Appellant.

Richard Ieyoub, Attorney General, Paul Carmouche, District Attorney, Catherine M. Estopinal, Assistant District Attorney, for Appellee.

Before SEXTON, NORRIS and WILLIAMS, JJ.

NORRIS, Judge.

Defendant, Nigaragua Tehran Demery, was indicted for the second degree murder of George Burns in violation of La.R.S. 14:30.1. A jury found him guilty as charged and he was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant now appeals his conviction and sentence advancing three assignments *520 of error.[1] For the reasons assigned below, we affirm defendant's conviction and sentence.

FACTS

On the evening of January 5, 1995, Demery, the victim, Burns (a/k/a Pookie, Touchet), Larry Mitchell, Deitrice Moses (a/k/a Dee), and Reginald Davis (a/k/a Red) were "hanging out" together, drinking alcohol, and talking. The group was outside of the house where Demery and Mitchell's grandmother lived on Jordan Street in Shreveport. Defendant and Mitchell were first cousins.

In the course of the evening Demery and Burns had an argument. According to Mitchell and Moses, Demery had a .22 caliber revolver stuffed down inside his pants. He pulled out the gun and started shooting at Burns. He fired three shots at Burns while he was standing and then fired two more shots at Burns after he fell to the ground. Mitchell testified that before shooting Burns, Demery said, "You think I ain't real." After shooting Burns, Demery turned and pointed the gun at Moses and Davis. They, along with Mitchell, ran from the area.

Law enforcement officials arrived on the scene promptly after the shooting. Burns was transported to LSU Medical Center, and despite undergoing surgery, he died of acute heart and lung failure due to loss of blood.

Dr. George McCormick, forensic pathologist and Caddo Parish Coroner, recovered a bullet from Burns's body during the autopsy. Dr. McCormick testified that Burns sustained a gunshot wound to the abdomen at the lower edge of the rib cage. The bullet was sent to Richard Beighley, a criminalist with the Northwest Louisiana Crime Lab, for examination. Beighley testified that the bullet was consistent with a .22 caliber bullet. He also examined the jacket that Burns was wearing at the time he was shot. Beighley stated that he found three holes in the jacket: one in the hood, one in the chest area, and one in the abdomen area. The holes were consistent with the size of bullet holes, and he determined them to be entrance holes. Beighley also found one exit hole in the back of the jacket.

Demery testified at trial and gave a different version of the evening's events from that of Mitchell and Moses. He admitted shooting Burns, but claimed that he fired in self-defense because Burns was reaching for a gun. He stated that the group was standing outside his grandmother's house drinking alcohol and smoking marijuana. Demery claimed that Burns began talking loudly and when he asked Burns to lower his voice, Burns replied, "You can't tell me what to do." The two began arguing and calling each other names. Demery stated that Burns then said, "What, you want to buck?," an expression implying that he wanted to fight. At that point, according to defendant, Burns reached into his jacket with his right hand. Defendant claimed that he had seen Burns with a .25 automatic pistol earlier in the evening and thought he was reaching for it. Defendant pulled out his gun and began shooting. When he saw Burns fall to the ground, he turned and ran from the area, throwing the gun away somewhere along the way.

Despite defendant's claim to the contrary, both Mitchell and Moses testified on direct and cross examination that they never saw Burns with a gun on the night of the shooting. Further, Mitchell, who was defendant's cousin and Burns's friend, stated that Burns did not reach into his pocket or put his hands behind his back, but did pat his side. Moses, who was a close friend of both Demery and Burns, also testified that he did not remember Burns putting his hands inside his pocket or behind his back. Both Mitchell and Moses denied any suggestion that they could have removed the gun from the scene. Investigating officers did not find a gun or any other weapon on or near the victim's body.

The defendant, a 15-year-old, was tried by a 12-person jury. He claimed self-defense as a justification for the shooting. After hearing all the evidence, the jury by a 10-2 vote found him guilty of second degree murder. *521 Pursuant to La.R.S. 14:30.1, defendant was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant now appeals his conviction and sentence, advancing three assignments of error.

Assignment of Error No. 1

Defendant alleges that the trial court erred when it failed to find appreciable evidence of an overt act committed by the deceased, and refused to allow the defendant to present evidence of the deceased's dangerous reputation to support his claim of self-defense. At trial, Demery related his account of the events leading up to the shooting and described his apprehension that Burns might shoot him. Defense counsel then asked him if he had ever seen Burns pull a gun on anyone. The state objected to improper use of character evidence of the victim and the trial court sustained the objection without argument. In brief Demery argues he was denied the right to present evidence of dangerous character, thus entitling him to a new trial.

The foundation for the admissibility of such evidence is La.C.E. art. 404[2]

A. Character evidence generally. Evidence of a person's character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: * * *
(2) Character of victim. (a) Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible; * * *
B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith * * *
(2) In the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of the victim's prior threats against the accused or the accused's state of mind as to the victim's dangerous character is not admissible; * * *

This article's predecessor, La.R.S. 15:482, originally required "proof" of an overt act or hostile demonstration before evidence of the victim's threats or dangerous character was admissible. Likewise, the overt act or hostile demonstration had to be established to the satisfaction of the trial court. State v. Terry, 221 La. 1109, 61 So.2d 888 (1952). However, the legislature amended La. 15:482 in 1952 to require "evidence" rather than "proof" of an overt act.[3]

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Cite This Page — Counsel Stack

Bluebook (online)
679 So. 2d 518, 1996 WL 474095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-demery-lactapp-1996.