State v. Guess

104 So. 3d 41, 2012 WL 3194955, 2012 La. App. LEXIS 1027
CourtLouisiana Court of Appeal
DecidedAugust 8, 2012
DocketNo. 47,370-KA
StatusPublished
Cited by4 cases

This text of 104 So. 3d 41 (State v. Guess) 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. Guess, 104 So. 3d 41, 2012 WL 3194955, 2012 La. App. LEXIS 1027 (La. Ct. App. 2012).

Opinion

STEWART, J.

L The defendant, Daniel Frank Guess, Jr., was convicted of second degree murder and sentenced to life imprisonment at hard labor. He now appeals his conviction and sentence. Finding no merit to the assignments of error, we affirm.

FACTS

On January 28, 2010, a grand jury indicted the defendant for the second degree murder of Alton “Buster” Porter (“Porter”) on January 17, 2010. The events [44]*44leading to the murder were established at the jury trial.

Terrance Greely (“Greely”) testified that the defendant picked him up at his house on the- night of January 16, 2010, and asked to borrow a gun. Greely did not have a gun on him, so he took the defendant to get a gun he had stashed in an Expedition that belonged to Antonio Morris (“Morris”). Later, they went to the defendant’s trailer where a number of the defendant’s friends were hanging out, drinking, and smoking marijuana. By some accounts, the defendant and others were also taking Xanax.

At some point later that night, the defendant wanted to leave the trailer and asked Greely to drive him. They left in a vehicle that belonged to the defendant’s stepbrother, Michael Fleming (“Fleming”). Greely was not familiar with the rural community, so the defendant directed him on where to go. Greely testified that the defendant had him stop by one home. He waited in the car while the defendant left the vehicle. When the defendant returned, he directed Greely to another location. As they were driving, the defendant told Greely that he passed up the house. Greely stopped and then backed into a driveway. The defendant left the vehicle, and Greely 12watched him walk up to the house until his phone rang. Greely was still on the phone when the defendant “jumped” in the vehicle and “stated that he shot him.” Greely was shocked by the defendant’s statement. He dropped his phone, then picked it up and told the person that he’d call back later. The cell phone was admitted into evidence and showed the time of the call to be 1:27 a.m. and that it lasted five minutes and 33 seconds.

As Greely drove away from the victim’s home and began to pick up speed, the defendant warned him that the brakes on the vehicle were not that good. Greely then hit the brakes and lost control of the vehicle, which ended up in a ditch. The two exited the vehicle. Greely began walking down the street, but the defendant told him that he was going in the wrong direction. They then called for a ride back to the defendant’s trailer. The defendant gave the gun back to Greely, who brought it the next day to Willie Moy (“Moy”) and instructed him to hide it.

Morris testified that he gave Greely and the defendant a ride back to the trailer after they wrecked the vehicle and that, once home, the defendant said that he shot someone twice in the head. Fleming, who was called by the defense, admitted with reluctance on cross-examination that he heard the defendant saying that he shot someone. Ashley Circolone was also at the defendant’s trailer that night. She testified that the defendant told her that he killed “Buster.” The next day Circo-lone told the defendant’s sister, Holly Guess (“Holly”), who contacted a friend who was with Chelsea Parker at the time. Parker called Porter’s sister, Donna Kap-penman, to check on him. Kappenman, her husband, daughter and son-in-law ran to | .^Porter’s house where they found the door unlocked and Porter lying on the floor of his bedroom between the bed and dresser.

Lieutenant Renee Smith (“Smith”), a crime scene unit coordinator for the Oua-chita Parish Sheriffs Office (“OPSO”), identified a number of photographs taken at Porter’s home. Smith testified that Porter had gunshot wounds to his back and face, that there were no signs of a forced entry or struggle, and that no drugs or drug paraphernalia were found in Porter’s home. Bryan Boney, an OPSO investigator, testified that the gun was located behind a vacant house near Moy’s residence on Tanglewood. Audra Williams, a [45]*45forensic DNA analyst with the North Louisiana Crime Lab in Shreveport, found DNA matches between buccal swabs from the defendant and swabs from the base pin and the rubber grip on the gun.

Dr. Frank Peretti, an expert in forensic pathology, was present when the autopsy was performed and testified as to the findings in the report. According to Dr. Per-etti, Porter had two entrance gunshot wounds. The wound to Porter’s right cheek showed evidence of stippling, which occurs when the weapon is not directly against the skin when fired but is close enough to have grains of burnt and unburnt gunpowder fall on the skin. Porter sustained a second wound on the right side of his back. Peretti considered this to be the fatal wound, because it caused internal bleeding and injury to the lung. Both bullets were recovered from Porter’s body. Dr. Peretti testified that Porter did not have any defensive injuries. Toxicology and urinalysis results showed that Porter had methamphetamine in his blood and urine at the time of his death.

I/The state introduced into evidence and played for the jury a recording of a phone call made by the defendant from jail to his mother. During this call, the defendant stated that Porter “deserved what he got” and “deserved what I did to him.”

The defense attempted to paint Porter as a drug pusher and to establish an intoxication defense. Amanda Stancill, a friend of the defendant and his sister Holly, testified that she had visited Porter’s home with the defendant approximately five times during the holidays before the murder occurred. She claimed they went there for “dope.” Stancill testified that she saw Porter take drugs out of a locked drawer and that he had a handgun in the drawer as well. She also testified that Porter kept needles for drug use in an old coffee can on a kitchen cabinet.

The defendant’s then girlfriend, Kimberly Norris, was at the defendant’s trailer the night of January 16, 2010. She testified that the defendant was taking “Xanax bars.” She recalled that she had taken two Xanax and that the defendant had taken eight. She also recalled that he was passed out at a table when she left the trailer sometime between 12:30 pm and 1:00 am to go to a McDonald’s. She testified that the defendant was not at the trailer when she returned and that she left before he got back. Brittany Teston, who was also partying at the defendant’s trailer and accompanied Norris to McDonald’s, testified that the defendant was “passing out” at a kitchen table when they left and that he was drunk and had taken Xanax.

IsFleming, who also lived in the trailer, testified that the defendant was “really messed up,” slurring, and that his eyes were red and “glazed over.” He recalled that the defendant asked to use his car. He explained that he let him use it because the defendant would have done so anyway as the keys were left in the car. Fleming admitted that the defendant left the trailer sometime during the night, and he stated that the defendant was “still messed up” when he returned. As previously stated, Fleming admitted that he heard the defendant say that he shot someone in a house.

After deliberations, the jury returned a verdict of guilty as charged of second degree murder. At the sentencing hearing, the trial court imposed the mandatory life sentence without benefits. This appeal followed.

On appeal, the Louisiana Appellate Project assigns as error the insufficiency of the evidence and the excessiveness of the sentence. The defendant has filed a pro se brief with additional assignments of error.

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Related

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194 So. 3d 679 (Louisiana Court of Appeal, 2016)
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State v. Crossley
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Cite This Page — Counsel Stack

Bluebook (online)
104 So. 3d 41, 2012 WL 3194955, 2012 La. App. LEXIS 1027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-guess-lactapp-2012.