State v. Jackson

948 So. 2d 269, 2006 WL 3798700
Louisiana Court of Appeal·Decided December 27, 2006·No. 06-KA-565·Published·Cited by 6 cases

Opinion

948 So.2d 269 (2006)

STATE of Louisiana
v.
Elijah D. JACKSON Jr.

No. 06-KA-565.

Court of Appeal of Louisiana, Fifth Circuit.

December 27, 2006.

*271 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Ken Dohre, James W. Adair, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.

EDWARD A. DUFRESNE, JR., Chief Judge.

On July 24, 2003, the Jefferson Parish Grand Jury issued an indictment charging defendant, Elijah D. Jackson, Jr., with one count of second degree murder, a violation of LSA-R.S. 14:30.1. At his arraignment, defendant pled not guilty. The matter proceeded to trial, and on March 31, 2006, a twelve person jury found defendant guilty as charged. On April 20, 2006, the trial court denied both defendant's motion for new trial and motion for post verdict judgment of acquittal. Thereafter, on April 24, 2006, the trial judge sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

On May 4, 2003, Deputy Todd Giacona of the Jefferson Parish Sheriff's office arrived at 1108 Scotsdale, and found an unresponsive victim, later identified as Bryan Gumms, with a gunshot wound to the left side of his neck.[1]

At trial, Selina Brue testified about the circumstances surrounding the shooting. According to Brue, on the morning of the incident, she was in her apartment with defendant, Bryan Gumms, Jermaine Hudson, Courtney Casey, and Ronnell Anderson playing cards when an argument began between defendant, Hudson, and some of the other men. During the argument, one of the men told defendant to get his gun, "[and the defendant] told them when he come [sic] back with his gun that he was going to use it." At this point, everyone left the apartment, including Brue who went with defendant.

Later, on May 4, 2003, at 2:30 p.m., defendant and Brue went to Scotsdale Street, and were in front of a building with Hudson, Gumms, Casey, Anderson, and other unnamed people. At approximately 4:00 or 4:30 p.m., defendant and Hudson became involved in a dispute. According to Brue, defendant "left and went through the cut, got his car from by my building, pulled back around and then got out the car with the gun." She saw defendant walk to the opposite side of the wall from Gumms. When defendant pulled out his gun, Hudson and Casey ran away. Defendant then walked towards Gumms and shot him from a couple of feet behind, as Gumms turned his head to look back. After he shot Gumms, defendant jumped in his car and left, taking his gun with him. Brue did not talk to police that night; however, the following day, she went to the investigation bureau and told Detective Eddie Klein what happened. She also identified defendant from a photographic lineup.

*272 Based on the information received from witnesses, Detective Klein arrested defendant. Subsequently, defendant gave two taped statements. In his first statement, defendant denied being in Scotsdale and shooting the victim. In his second statement, defendant admitted that he was involved in an argument with Jermaine Hudson. At some point, Gumms tried to defend his friend Hudson. Defendant then attempted to strike Gumms with the gun, but the gun went off. Defendant saw Gumms fall, and then fled in his car.

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant argues that the evidence was insufficient to support the verdict as it failed to prove beyond a reasonable doubt that the homicide was not committed in self-defense.

The standard of review for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the state proved 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). Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Barnes, 98-932 (La.App. 5 Cir. 2/10/99), 729 So.2d 44, 46, writ denied, 99-1018 (La.9/17/99), 747 So.2d 1099. The trier of fact can accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. State v. Baker, 01-1397 (La.App. 5 Cir. 4/30/02), 816 So.2d 363, 365.

In this case, defendant was charged with second degree murder. LSA-R.S. 14:30.1 A(l) states that second degree murder is the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. In order to prove second degree murder, the state must prove the killing and that the defendant had specific intent to kill or inflict great bodily harm. State v. Cazenave, 00-183 (La.App. 5 Cir. 10/31/00), 772 So.2d 854, 859, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151.

According to LSA-R.S. 14:20 A(1), a homicide is justifiable "[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger." When a defendant claims self-defense, the state must prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Cazenave, 772 So.2d at 860. The determination of a defendant's culpability focuses on a two-fold inquiry: 1) whether, from the facts presented, the defendant could reasonably have believed his life to be in imminent danger, and 2) whether deadly force was necessary to prevent the danger. While there is no unqualified duty to retreat from an altercation, the possibility of escape is a recognized factor in determining whether or not a defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. Woodhead, 03-1036 (La. App. 5 Cir. 1/27/04), 866 So.2d 995, 999-1000, writ denied, 04-0598 (La.7/2/04), 877 So.2d 144. Furthermore, LSA-R.S. 14:21 states that "[a] person who is the aggressor *273 or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict."

Defendant contends, in his appellate brief, that he killed the victim in self-defense; however, defendant presented no such evidence or theory at trial. An appellate court need not consider a claim of self-defense raised for the first time on appeal. State v. Thibodeaux, 450 So.2d 1060, 1062 (La.App. 1 Cir. 5/30/84). Although we need not consider this claim since it was raised for the first time on appeal, we determine that it is without merit.

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