State v. Frith

499 So. 2d 474, 1986 La. App. LEXIS 8450
CourtLouisiana Court of Appeal
DecidedDecember 3, 1986
DocketNo. 18168-KA
StatusPublished
Cited by3 cases

This text of 499 So. 2d 474 (State v. Frith) 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. Frith, 499 So. 2d 474, 1986 La. App. LEXIS 8450 (La. Ct. App. 1986).

Opinion

HEARD, Judge Pro Tem.

The defendant, John Allen Frith, and two others, John Wayne Costin and Robert Eugene McCuin, Jr., were indicted by a Oua-chita Parish Grand Jury for first degree murder. LSA-R.S. 14:30. An amended indictment charging Frith with second degree murder, LSA-R.S. 14:30.1, was subsequently filed, to which Frith pled not guilty. After a jury trial Frith was found guilty as charged by unanimous verdict. He was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. On appeal Frith makes two assignments of error:

(1) There was insufficient evidence to establish the defendant’s guilt beyond a reasonable doubt.
(2) The trial court erred in failing to declare a mistrial or take other curative measures following a co-defendant’s withdrawal from his plea agreement when defendant’s trial strategy and opening statement was based on the co-defendant’s availability as a witness.

We find that both assignments are without merit, and accordingly affirm the conviction and sentence.

Costin, originally a co-defendant, pled guilty to one count of armed robbery and conspiracy to commit first degree murder. He served as the prosecution’s principal witness at Frith’s trial. McCuin had been scheduled to appear as a witness in the trial, but he withdrew from his plea bargain during the trial.

On the evening of October 25, 1984, Cos-tin saw Jack Baswell at a:convenience store in West Monroe, and observed that he appeared to be carrying a large sum of money. Baswell, aged nineteen, was an itinerant salesman who sold leather goods, car stereo equipment and other items from his car. Costin testified that he went to Frith’s house, where he and Frith made [476]*476plans to take the victim’s goods and money. They then proceeded to McCuin’s residence to enlist his help. Frith brought a 30.06 rifle with him from his home, and Costin already had a .22 caliber rifle in his truck. After being joined by McCuin, the three went to Costin’s trailer and made plans for McCuin to lure Baswell to an isolated area on Toney Bayou Road. The three would then “hem in” the victim with their vehicles and rob him.

McCuin was armed with Costin’s .22 rifle when he went to the convenience store. Frith, in the back of Costin’s truck, had his 30.06 rifle. Costin had a shotgun in the seat next to him. After McCuin’s and Bas-well’s vehicles passed by on the road, Cos-tin followed them. Costin testified that as they passed Baswell’s car he heard three shots fired by Frith and then saw the car swerve off the road. McCuin fired two shots with the .22 caliber rifle as Costin was turning the truck around. Costin said that he fired his shotgun into the car door in response to Frith’s cries of “Shoot him! Shoot him!”, and McCuin then shot the victim with a shotgun. Frith took McCuin’s truck and left the scene while McCuin took $60 from the victim’s pockets and Costin ransacked the victim’s car for the leather bags, speakers and car stereos. The three met at Costin’s house where they hid the stolen items under Costin’s boat. Each of the partners received $20 for their efforts. McCuin later returned to the site, unsuccessfully searching for more money.

Baswell’s body was discovered the following morning by Shelby Lenard. Investigation of the area revealed distinctive tire markings in the road, which were found to match Costin’s truck when he was arrested on an unrelated charge. No prints were found because all three had used gloves. The evidence brought out at trial from the expert witnesses and investigating officers substantially corroborated Costin’s story.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, Frith contends that the evidence adduced was insufficient to establish defendant’s guilt beyond a reasonable doubt as to each essential element of the crime charged.

The Louisiana Supreme Court recently defined the scope of appellate review regarding the sufficiency of evidence to sustain a conviction. The conviction must be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. State v. Garcia, 483 So.2d 953 (La.1986).

Defendant was charged with a violation of LSA-R.S. 14:3o.!.1

On appeal, defendant contends that Costin’s testimony could not be believed by any rational trier of fact because of several discrepancies between Costin’s testimony and the physical evidence. In brief, Frith admits that a conviction can be sustained on the uncorroborated testimony of a purported accomplice. However, he contends that such testimony should be treated with great caution. Defendant relies upon State v. May, 339 So.2d 764 (La.1976) and State v. Murray, 375 So.2d 80 (La.1979) for the proposition that although a conviction can be sustained on the uncorroborated testimony of a purported accomplice, the jury should be instructed to treat such testimony with great caution. Defendant argues that because of the inconsistencies between Costin’s testimony and the physical evidence, his testimony is suspect and insufficient to carry the burden of proof.

[477]*477The same argument was examined and rejected by a panel of this court in State v. Wilkerson, 448 So.2d 1355 (La.App.2d Cir. 1984). It is not the function of the appellate court to evaluate the credibility of the witnesses and overturn the trier of fact on its factual determination of guilt. The jury resolved the inconsistency against Frith. Conflicting testimony goes not to the sufficiency but to the weight of the evidence. State in the Interest of Cox, 461 So.2d 658 (La.App. 1st Cir.1984), writ denied 464 So.2d 1375 (La.1985). This court is constitutionally prohibited from addressing a question of fact such as witness credibility. LSA-Const. Art. 5 § 10(B). Thus, this portion of Frith’s argument is without merit.

Frith also argues that the trial court should have instructed the jury that they could convict on the uncorroborated testimony of an accomplice but should do so with great caution. The same situation was presented in State v. Dunn, 454 So.2d 1229 (La.App. 2d Cir.1984). In Dunn, as here, no special jury instruction was requested by the appellant, and no objection was raised to the charge given. LSA-C. Cr.P. art. 801 requires that a party assigning as error the failure to give a jury charge must object before the jury retires. Since appellant failed to request a special charge or object to the charge given, this argument cannot be urged on appeal. Dunn, supra.

The evidence is sufficient to sustain Frith’s conviction. The state presented the testimony of several members of the Oua-chita Parish Sheriff’s Office who identified numerous items of physical evidence recovered at the crime scene, and also items taken from Baswell’s vehicle that were found at Costin’s trailer. Although there were some discrepancies between the testimony of Costin and the physical evidence, those inconsistencies were minor and do not cast substantial doubt on the veracity of Costin’s testimony. Shell casings were found in the area where Frith allegedly fired shots from the rear of the pickup truck which Costin was driving. The deputies observed tire tracks which corresponded to the markings of the pickup truck driven by Costin.

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Related

State v. Wright
598 So. 2d 493 (Louisiana Court of Appeal, 1992)
State v. Litty
521 So. 2d 849 (Louisiana Court of Appeal, 1988)
State v. Frith
503 So. 2d 490 (Supreme Court of Louisiana, 1987)

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Bluebook (online)
499 So. 2d 474, 1986 La. App. LEXIS 8450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-frith-lactapp-1986.