State v. Hampton

686 So. 2d 1021, 1996 WL 739176
Louisiana Court of Appeal·Decided December 27, 1996·No. 94-KA-1943·Published·Cited by 12 cases

Opinion

686 So.2d 1021 (1996)

STATE of Louisiana
v.
Joseph M. HAMPTON.

No. 94-KA-1943.

Court of Appeal of Louisiana, Fourth Circuit.

December 27, 1996.

*1022 Harry Connick, District Attorney, Susan M. Erlanger, Assistant District Attorney, Parish of Orleans, New Orleans, for State.

Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for Joseph M. Hampton.

Before SCHOTT, C.J., and BARRY and KLEES, JJ.

BARRY, Judge.

The defendant was convicted of second degree murder (La.R.S. 14:30.1) and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. The issues are 1) sufficiency of the evidence; 2) disclosure of grand jury testimony; 3) admissibility of evidence; 4) ineffective assistance of counsel. We affirm.

Facts

On June 14, 1992 Gwendolyn Bannister hosted an outdoor party for her young son. Anthony Garrison was the disc jockey, and Durrell Robinson, the victim, helped him set up the equipment on the front porch of the apartment building.

Bannister testified that the defendant, known as "Chim Chim," was with Mark Singer. Bannister heard Singer say, "He knocked you out the night before. He's walking around looking pretty and you're not. You're going to let that go like that?" Bannister did not hear whether the defendant responded.

At about 11:00 p.m., Bannister, a female friend, and a young child were on the porch with Garrison and Robinson as they began removing the equipment. Bannister heard gunfire, looked up, and saw Singer firing a large weapon. She ran to protect the child, and testified that she saw the defendant on the sidewalk shooting a small gun toward the porch. Bannister said the victim lay on the *1023 porch and told her he had been shot. She said no one on the porch was armed.

Garrison testified that earlier in the evening, he saw the defendant and the victim shake hands twice, apparently to reconcile after a fistfight they had the previous night. Garrison said the victim told him the matter was "squashed."

Garrison testified that just before the shooting he saw four or five armed men in the alley across the courtyard. He recognized the defendant ("Chim Chim"), Singer, and a man known as Darrell. Singer was carrying an assault rifle and the defendant a handgun. Garrison urged Robinson to leave, but Robinson refused. Gunfire erupted and Garrison hid behind a speaker. He saw "fire" coming from Singer's rifle, but did not see the defendant.

Bannister and Garrison identified the defendant in a photographic lineup and at trial.

Officer Michael Harrison responded to the shooting. The entire police report is not in the appellate record, but Harrison testified that Garrison gave a statement at the scene describing one subject who was shooting, which Bannister's statement corroborated. Both witnesses gave the police a description of Singer's clothing.

Detective James Stewart testified that the defendant was arrested on June 17, 1992. Det. Stewart said that the defendant waived his rights and made a statement that Singer wanted to fight the victim, but the defendant told him the matter was "squashed." Singer retrieved an assault weapon from the grass and began shooting.

Pathologist Dr. William Newman performed an autopsy on Robinson's body and testified that he could not determine what type of gun killed the defendant.

Errors Patent Review

Counsel filed a brief requesting a review for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). Counsel's detailed review of the procedural history and facts indicate a thorough review of the record. Counsel moved to withdraw because, after a conscientious review of the record, he believes that there is no non-frivolous issue for appeal. Counsel reviewed all transcripts and found no trial court ruling which arguably supports the appeal. A copy of the brief was forwarded to the defendant informing him of his right to file a brief on his own behalf, which he did.

This Court performed an independent, thorough review of the pleadings, minute entries, bill of indictment, and transcripts. The defendant was properly charged by bill of indictment with a violation of La.R.S. 14:30.1 and the bill was properly signed. The defendant was present and represented by counsel at arraignment, motion hearings, jury selection, trial, and sentencing. Sufficiency of the evidence was raised by the defendant pro se and is discussed below. The sentence is legal.

Sufficiency of Evidence

The defendant contends that the verdict was contrary to the law and evidence, the State failed to prove specific intent, and failed to remove every reasonable hypothesis of innocence. He argues that Bannister was not credible, that there was no evidence that he shot the victim in a calculated manner and, therefore, there can be no inference of specific intent.

To determine whether the evidence is sufficient, this Court must decide 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Second degree murder is the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. La.R.S. 14:30.1. Intent to kill has been found where the defendant shot a gun at the victim. State v. Davis, 93-0663 (La. App. 4 Cir. 2/25/94), 633 So.2d 822, writ den. 94-2077 (La.9/20/96), 679 So.2d 422.

*1024 La.R.S. 14:24 defines "principal" as a person

concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime....

A person may only be convicted as a principal for a crime for which he personally has the requisite mental state. State v. Marshall, 94-1282 (La.App. 4 Cir. 6/29/95), 657 So.2d 1106, 1108.

Specific intent exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). It may be proved by direct evidence or inferred from the circumstances or the defendant's actions. Id.

In State v. Marshall, supra, a witness testified that the defendant was at the scene with a gun when the first shot was fired and the victim fell. On cross examination he said the defendant shot the victim. Another witness testified that the defendant had two guns and his codefendant fired repeated shots into the victim. One witness heard two guns. The defendant and codefendant fled the scene. Marshall held:

The jury made credibility determinations and could have reasonably inferred the requisite specific intent. When viewed in the light most favorable to the prosecution, the evidence is sufficient to prove beyond a reasonable doubt that the defendant actively participated in or aided and abetted in the commission of the killing of (the victim) with the specific intent to kill or to inflic

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State v. Hampton, 686 So. 2d 1021, 1996 WL 739176 (La. Ct. App. 1996).

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