State v. Durham

996 So. 2d 642, 2008 WL 4571542
CourtLouisiana Court of Appeal
DecidedOctober 15, 2008
Docket43,558-KA
StatusPublished
Cited by9 cases

This text of 996 So. 2d 642 (State v. Durham) 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. Durham, 996 So. 2d 642, 2008 WL 4571542 (La. Ct. App. 2008).

Opinion

996 So.2d 642 (2008)

STATE of Louisiana, Appellee
v.
Jamorris Montreal DURHAM, Appellant.

No. 43,558-KA.

Court of Appeal of Louisiana, Second Circuit.

October 15, 2008.

*644 John Schuyler Marvin, District Attorney, John Michael Lawrence, Robert Lane Pittard, Assistant District Attorney, for Appellee.

W. Jarred Franklin, Louisiana Appellate Project, for Appellant.

Before BROWN, WILLIAMS, and MOORE, JJ.

BROWN, Chief Judge.

Defendant, Jamorris Montreal Durham, was charged by bill of information with simple burglary of an inhabited dwelling, which occurred between the hours of midnight and 8:00 o'clock a.m. on April 24, 2007, a violation of La. R.S. 14:62.2. A jury found defendant guilty. The trial court sentenced defendant to nine years imprisonment at hard labor, with the first year to be served without benefit of parole. A motion to reconsider sentence was filed and denied. Defendant appealed. Defendant's conviction and sentence are affirmed.

Discussion

Sufficiency of the Evidence

Defendant claims that the state failed to prove guilt beyond a reasonable doubt. He argues that his conviction was based on the inconsistent and untrue testimony of two co-defendants, Gabrielle Lynn and Tony Sheppard, who were granted immunity.

Applicable Legal Principles

The decision of the U.S. Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), expanded appellate review of facts in state court criminal cases. The Jackson decision did away with Louisiana's "no evidence" standard because it did not adequately protect due process guarantees. The Jackson reasonable doubt standard is now the only standard of review for Louisiana appellate courts. That standard is whether the evidence, direct or circumstantial, viewed in the light most favorable to the prosecution, was sufficient to prove the elements of the crime beyond a reasonable doubt. This test pronounced in Jackson has been fully implemented by the Louisiana Supreme Court and is legislatively embodied in La. C. Cr. P. art. 821.

Defendant argues that his case is based solely upon circumstantial evidence and, as such, the evidence must exclude every reasonable hypothesis of innocence. *645 La. R.S. 15:438. This statutory (not constitutional) rule, however, is simply a component part of the more comprehensive reasonable doubt standard. State v. Wright, 445 So.2d 1198 (1984). The single standard for appellate review is the standard established by Jackson. See State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78 (Lemmon, J, concurring). The reviewing court "does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the event." State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020. Rather, the court must evaluate the totality of the evidence in a light most favorable to the state and determine whether a rational juror could not have found proof beyond a reasonable doubt. State v. Mitchell, supra.

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 a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App. 2d Cir.05/09/07), 956 So.2d 769. This includes the testimony of accomplices. An accomplice is a competent witness to testify against his or her co-perpetrator, even if the prosecution offers inducements to testify; these inducements, however, may weigh on the witness's credibility. See State v. Jetton, 32,893 (La.App. 2d Cir.04/05/00), 756 So.2d 1206, writ denied, 00-1568 (La.03/16/01), 787 So.2d 299. The credibility of an accomplice's testimony is not within the province of the court of appeal to decide. Id. Rather, credibility determinations are for the trier of fact. Id. The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; and the reviewing court may impinge on that discretion only to the extent necessary to guarantee due process of law. State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

Facts of the crime as presented at trial

On April 24, 2007, the victim, Angela Warke, returned home at 8:00 a.m. from working a midnight shift to discover that her Bossier Parish residence had been burglarized. Ms. Warke notified the sheriff's office, and Deputy Bruce Bletz, a detective with the Bossier Parish Sheriff's Department, responded. It was determined that entry had been gained through an unsecured window. The items stolen from the home included two laundry baskets, two televisions, an Apex DVD digital theater system, a Kodak digital camera and printer dock, a Dell desktop computer with monitor, a Magnavox DVD player, some women's shoes, DVD movies, approximately $80 in change, a curio cabinet, and food from the refrigerator and pantry. The investigating officers took photographs of the crime scene.

Shortly after the burglary, Ms. Warke received a telephone call from a female. The caller told the victim that she knew where the stolen property was located, that the victim could get it back by paying $2,000, and that she (the caller) would call back with instructions. Ms. Warke notified the sheriff's department of the call, and Deputy Bletz's investigation determined that Gabrielle Lynn was the caller. Deputy Bletz interviewed Ms. Lynn, and during this interview Ms. Lynn informed him that the stolen property had been brought to her residence by her boyfriend, Tony Sheppard, and defendant. This information led to the arrest of both defendant and Sheppard. Although search warrants were executed at different locations, the victim's property was never recovered.

*646 After his arrest, defendant made several telephone calls to various people discussing the burglary; in one of these calls, defendant made arrangements for a mutual friend to call and inform the victim that he would tell her where her property was located if she would drop the charges against him. Ms. Warke knew defendant because they had a one-month friendship/affair that ended before the burglary occurred. Ms. Warke reported the calls to Deputy Bletz, who then gained access to calls defendant made from the jail. Defendant's calls were played in pertinent part for the jury at trial.

Following jury selection, the state dismissed all charges against co-defendant, Tony Sheppard, but ordered him held in jail until he truthfully testified against defendant. Sheppard testified that on the date of the burglary, in the early morning, defendant drove to Ms. Lynn's residence and told him that he had "hit a lick," meaning that he had stolen something. At defendant's request, Sheppard helped defendant move the stolen property from a house on East Third Street to Ms. Lynn's residence. Sheppard described the items as TVs, a computer, a curio cabinet, DVDs, and lots of other things inside two clothes baskets. Sheppard and Lynn went to bed, and the next morning Sheppard moved the stolen items to his (Sheppard's) father's house "where somebody was supposed to come and pick it up." Sheppard admitted that he (Sheppard) made the contact to sell the stolen property but that after viewing the items, the "dude" did not want to buy them.

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Cite This Page — Counsel Stack

Bluebook (online)
996 So. 2d 642, 2008 WL 4571542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-durham-lactapp-2008.