State v. Glover

106 So. 3d 129, 2012 WL 4795665, 2012 La. App. LEXIS 1282
CourtLouisiana Court of Appeal
DecidedOctober 10, 2012
DocketNo. 47,311-KA
StatusPublished
Cited by56 cases

This text of 106 So. 3d 129 (State v. Glover) 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. Glover, 106 So. 3d 129, 2012 WL 4795665, 2012 La. App. LEXIS 1282 (La. Ct. App. 2012).

Opinion

CARAWAY, J.

|,After a jury trial on two counts of attempted second degree murder, Orlando Maurice Glover was found guilty of two counts of attempted manslaughter in violation of La. R.S. 14:31 and 14:27. Following an adjudication as a second felony offender, Glover was sentenced to concurrent sentences of 35 years at hard labor without benefit of parole, probation, or suspension of sentence on each count and ordered to pay court costs through the inmate banking system. Glover appeals his conviction and sentence. We affirm the conviction and amend the sentences.

Facts

In the late summer of 2007, 17-year-old Orlando Glover drove his vehicle at an excessive speed through the parking lot of an apartment complex located at 4305 Illinois Street in Shreveport, Louisiana. After 19-year-old James Maiden thought that Glover was trying to run him over, the two men briefly argued. Nothing further happened that day between the parties but the following day, the two men again exchanged words.

In the early afternoon of September 14, 2007, Maiden and two friends, including 12-year-old A.M. and Lucas White Johnson, were at the apartment complex sitting outside Jareika White’s apartment. At some point, Glover walked up and “said something” to the group. Maiden challenged Glover to a fight and the defendant pulled a gun out of his waistband and started shooting. White was exiting her apartment with her 4-month-old baby when the argument and shooting were taking place. At that time, the child was struck in the leg by a bullet. Those standing outside 12ran into White’s apartment as Glover continued to shoot. A.M. was also hit by a bullet in his right upper arm. Five or six shots were fired by Glover who then ran away.

After developing Glover as a suspect in the case, police prepared a photographic lineup on the same day as the shootings. Maiden, A.M., Johnson and White positively identified Glover as the shooter. A Crime Stoppers tip eventually led police to Glover who was arrested and charged with two counts of attempted second degree murder. A jury convicted him of two counts of attempted manslaughter. Glover was adjudicated a second felony offender based upon a 2007 illegal use of a weapon conviction which involved Glover’s negligent discharge of a firearm at a house. He was sentenced to concurrent sentences of 35 years at hard labor without benefit of parole, probation or suspension of sentence.1

After sentencing, Glover moved for a new trial which was denied by the trial court. Glover also sought reconsideration of his sentence on the grounds that the court failed to consider mitigating factors and imposed excessive sentences. The [134]*134court denied that motion on March 28, 2011. This appeal ensued.

On appeal, Glover argues that the state’s evidence was insufficient to overcome his proof that he acted in self-defense. He also argues that the trial judge’s failure to instruct the jury regarding the burden of proof in selfjdefense3 cases violated his due process rights and right to present a defense and that his trial counsel was ineffective in failing to object to the trial judge’s decision. Finally, Glover argues his sentences were constitutionally excessive considering the mitigating circumstances of the offense and his status as a juvenile.

Discussion

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 80 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,-253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La. App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. 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. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any | r,witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State [135]*135v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104,148 L.Ed.2d 62 (2000).

The offense of manslaughter is defined as a homicide that would be second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31; State v. Miller, 36,003 (La.App.2d Cir.7/25/02), 824 So.2d 1208, writ denied, 02-2480 (La.6/27/03), 847 So.2d 1253. Sudden passion and heat of blood are mitigatory factors in the nature of a defense which exhibits a degree of culpability less than present when the homicide is committed without them. State v. Lombard,

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Bluebook (online)
106 So. 3d 129, 2012 WL 4795665, 2012 La. App. LEXIS 1282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-glover-lactapp-2012.