State v. Hill

431 So. 2d 871
Louisiana Court of Appeal·Decided May 3, 1983·No. 15332-KA·Published·Cited by 11 cases

Opinion

431 So.2d 871 (1983)

STATE of Louisiana, State/Appellee,
v.
Howard HILL, Defendant/Appellant.

No. 15332-KA.

Court of Appeal of Louisiana, Second Circuit.

May 3, 1983.
Rehearing Denied June 8, 1983.

*872 Richard Goorley, Asst. Indigent Defender, Shreveport, for defendant/appellant.

Dale G. Cox and Catherine Estopinal, Asst. Dist. Attys., Shreveport, for State/appellee.

Before MARVIN, JASPER E. JONES and SEXTON, JJ.

SEXTON, Judge.

The defendant, Howard Hill, appeals his conviction for the September 28, 1981, attempted second degree murder of Ralph Brumley, a Shreveport City Jailer, and his sentence imposed for that offense of 50 years at hard labor. We affirm.

The defendant was originally found incompetent to stand trial on December 14, 1981, and after his return from the Feliciana Forensic Facility for treatment of the psychosis which precluded trial, he was found competent to proceed on September 23, 1982. He thereafter pled not guilty and not guilty by reason of insanity, waived his right to a trial by jury and was found guilty as charged in a bench trial on July 13, 1982. He was sentenced as previously indicated on October 20, 1982.

At about 10:00 a.m. on September 28, 1981, the defendant appeared at Shreveport *873 City Hall and requested to see the Mayor. After being directed to a security officer, the defendant indicated that he wanted the Mayor to buy him "some dope." The security officer, Lieutenant Mangum, described the defendant as loud and profane and testified that the defendant threatened him upon learning that he was a police officer. The Lieutenant further testified that the defendant was salivating excessively and had very bloodshot eyes. While the Lieutenant was unable to smell any alcohol, he testified that the defendant appeared to be "under the influence of some sort of intoxicant."

Lieutenant Mangum arrested the defendant for disturbing the peace in violation of a Shreveport City ordinance, patted the defendant's outer clothing, and in the company of a uniformed officer escorted the defendant to the booking desk where he was once again searched. Upon reaching the jail, the defendant was placed in a jail cell reserved for problem prisoners. In contrast to his earlier behavior, the defendant was calm and polite for a number of hours. At about 5:00 p.m., Mr. Brumley handed the defendant his supper through a small portal in the cell door provided for that purpose. The defendant did not eat. In response to Mr. Brumley's inquiry, the defendant advised Mr. Brumley that the food was too hot. The defendant was given additional time to finish his meal.

Mr. Brumley returned later and found that although all the other prisoners had eaten, the defendant had not touched his food. Mr. Brumley advised him to go ahead and eat and the defendant placed his tray on his lap. At this point the defendant told Mr. Brumley that he wanted to show him something. Mr. Brumley then observed through the 11 inch by 12 inch portal in the door of the cell as the defendant stood up and removed the tray from his lap. The defendant then retrieved, from the top of his bunk, what appeared to be merely a cigarette wrapped in toilet paper. The defendant extended the "cigarette" through the portal opening with his hand, and Mr. Brumley moved toward defendant's outstretched hand to observe it. As Mr. Brumley remarked that the object was only a cigarette, the defendant slashed at Mr. Brumley's throat with a single-edged razor blade that had been concealed in the cigarette and toilet paper. As the defendant slashed at him, Mr. Brumley ducked his body to the right and was struck by the razor blade on the left side of his face. He received a deep gash from directly under his ear down to his chin which subsequently required 16 stitches to close. After the incident, the defendant shook the razor at Mr. Brumley and exclaimed, "that will teach you to mess with me."

The defendant originally indicated four assignments of error, but does not brief Assignment of Error No. 1 and that assignment is therefore considered abandoned. State v. Domingue, 298 So.2d 723 (La.1974). By Assignment of Error No. 2 defendant contends the trial court erred in overruling the defense motion for a directed verdict because the State did not affirmatively prove the requisite specific intent. By Assignment of Error No. 3 defendant contends that under the standard pronounced in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), a rational trier of fact could not have found the defendant guilty beyond a reasonable doubt. In his final assignment defendant contends that the sentence imposed is excessive.

ASSIGNMENT OF ERROR NO. 2—DENIAL OF DEFENDANT'S MOTION FOR A DIRECTED VERDICT

By this assignment the defendant asserts that the trial court erred in denying the defense motion for a directed verdict made in accordance with LSA-C.Cr.P. Art. 778.[1] The import of this article was succinctly *874 summarized in State v. Hargrave, 411 So.2d 1058 (La.1982):

"The denial of such a motion may be reversed on appeal only if there is no evidence of the crime or an essential element thereof or where the denial is a palpable abuse of discretion. State v. Vaughn, 378 So.2d 905 (La.1979)." Hargrave, supra, at 1061.

Therefore in order for the defendant to prevail there must have been no evidence of one of the elements of the offense of attempted second degree murder. The elements of this offense are (1) a specific intent, (2) to kill or inflict great bodily harm, and (3) an act tending directly toward the accomplishment of that object. LSA-R.S. 14:30.1, 14:27, and State v. Huizar, 414 So.2d 741 (La.1982).

Specific criminal intent is present when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act. LSA-R.S. 14:10(1). However, specific intent is a state of mind not required to be proven as a fact, but can be inferred from the circumstances of the offense and the actions of the defendant. State v. Holmes, 388 So.2d 722 (La.1980). The length and depth of the victim's wound indicate that the defendant's thrust was well aimed and powerful. It was not merely a parry or even a thrust, but was a strong and purposeful slash. As the trial judge noted, it was only by "a stroke of fortune or good luck in reflexes, [that] Mr. Brumley was alive and able to testify at the trial." We agree that it is apparent from the record that if the jailer had not taken timely evasive actions the defendant would have cut him deeply in the throat, probably severing a major artery there. Furthermore, the defendant lured the victim within striking distance before slashing at him with the concealed razor blade.

These actions constitute evidence of each of the aforementioned essential elements of the offense of attempted second degree murder and we thus find that the denial of the motion for a directed verdict was not a palpable abuse of discretion.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3—INSUFFICIENCY OF EVIDENCE

Defendant here contends that when viewed in the light most favorable to the prosecution, the evidence is insufficient for a rational trier of fact to have found that the essential elements of the offense were proven beyond a reasonable doubt. See Jackson v. Virginia, supra.

We have just delineated the evidence with resp

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