State v. Jones

598 So. 2d 511, 1992 WL 81924
Louisiana Court of Appeal·Decided April 10, 1992·No. KA 91 0105·Published·Cited by 8 cases

Opinion

598 So.2d 511 (1992)

STATE of Louisiana
v.
Arthur Edward JONES, Jr.

No. KA 91 0105.

Court of Appeal of Louisiana, First Circuit.

April 10, 1992.

Doug Moreau, Dist. Atty. by Jesse Bankston, Asst. Dist. Atty., Baton Rouge, for plaintiff/appellee.

Johnny Wellons, Baton Rouge, for defendant/appellant.

Before LOTTINGER, EDWARDS and GONZALES, JJ.

GONZALES, Judge.

The defendant, Arthur E. Jones, Jr., was charged by grand jury indictment with second degree murder, a violation of La.R.S. 14:30.1. He pled not guilty and, after trial by jury, was found guilty of the responsive *512 offense of manslaughter, a violation of La. R.S. 14:31. He received a sentence of twelve years at hard labor, with credit for time served. On appeal, defendant alleges as his sole assignment of error that the evidence was insufficient to support the instant conviction.

FACTS

On the evening of November 6, 1989, the defendant and the victim, Elzie Wellington, were patrons at Mae's Cafe on Cadillac Street in Baton Rouge, Louisiana. Both men had been inside the bar for at least an hour without incident. However, as the defendant was returning from the bathroom and the victim was going to the bathroom, the defendant suddenly struck the victim a single time, causing the victim to fall to the concrete floor. Either this fall to the floor or the initial blow struck by the defendant rendered the victim unconscious. The defendant approached the victim and kicked or stomped him one or more times. The defendant's friend, Dare Rowe, grabbed the defendant and escorted him outside. However, the defendant tried to reenter the bar; and Rowe again pulled the defendant outside. Thereafter, the defendant left.

The victim was unconscious for five to ten minutes. When he regained consciousness, he asked what had happened. He got up and was able to speak, walk to the bar, and smoke a cigarette. He gave his car keys to the owner of the bar, Ms. Earls, and asked her to see that his car was returned to his mother's home. The victim then went outside and got into the ambulance by himself. Because the State facility in Baton Rouge (Earl K. Long Hospital) did not have a neurosurgeon on staff, the victim was transferred to Charity Hospital in New Orleans. He died on November 8, 1989.

At the trial, the Coroner, Dr. Alfred Suarez, testified that he performed the autopsy on the victim on November 9, 1989. Dr. Suarez testified that the victim died as a result of a blunt trauma or injury to the head which produced a subdural hematoma. In lay terms, he explained that continued bleeding inside the victim's head produced pressure on the brain, which caused the brain to cease functioning.

Five people witnessed this incident at Mae's Cafe. Four of these witnesses, Matthew Holliday, Jr.; Dorsey Leon Parker; Evelyn J. Harris; and Mae Ella Earls, testified for the State. The other witness, Dare Rowe, testified for the defense. Mr. Holliday was working in the bar that evening as a disc jockey. Mr. Parker testified that he was Mr. Holliday's first cousin. Ms. Harris knew the defendant and was the victim's cousin. Ms. Earls, who owned Mae's Cafe, was serving drinks that evening. The testimony of all four of these State witnesses was essentially the same on every major point. They testified that the defendant started the fight by striking the first blow and that he kicked or stomped the victim one or more times. These witnesses testified that there was no prior fight or argument between the defendant and the victim that evening at the bar. None of these witnesses saw any weapons in the bar that evening. Finally, they indicated that the defendant had to be pulled away from the victim and escorted outside by Mr. Rowe.

However, the defendant testified that he fought the victim in self-defense. According to the defendant, the victim approached him, cursed him, and threatened to shoot him. The defendant claimed that he saw the victim's gun. The defendant also denied kicking or stomping the victim. Instead, the defendant testified that Mr. Parker grabbed him from behind after the fight and that he kicked at Parker in order to free himself.

The defendant's friend, Dare Rowe, testified that he did not see the beginning of the fight. He only saw the victim laying on the floor unconscious. Mr. Rowe also testified that he observed no prior fight or argument between the defendant and the victim. Two defense witnesses, Hamilton Brock and Earl Robinson, testified as to the defendant's good character and good reputation in the community. Both men also testified that the victim carried a gun. In fact, Mr. Robinson testified that the *513 victim had once pulled a gun on him when the two men had had a "disturbance." Two other defense witnesses, Alex Warner and David Quiett, also testified that they had seen the victim carrying a gun in the past.

ASSIGNMENT OF ERROR

In his only assignment of error, the defendant contends that the evidence was insufficient to support the instant conviction. We note that, in order to challenge this conviction on the basis of insufficiency of the evidence, the defendant should have proceeded by way of a motion for post-verdict judgment of acquittal. See La. C.Cr.P. art. 821. Nevertheless, we will consider a claim of insufficiency of the evidence which has been briefed pursuant to a formal assignment of error. See State v. Tate, 506 So.2d 546, 551 (La.App. 1st Cir.), writ denied, 511 So.2d 1152 (La.1987).

The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. See La.C.Cr.P. art. 821; State v. Johnson, 461 So.2d 673, 674 (La. App. 1st Cir.1984). The Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard of review incorporated in Article 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt.

The defendant was charged with second degree murder, a violation of La.R.S. 14:30.1(A.) which provides, in pertinent part:

Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; ...

However, he was convicted of manslaughter, a violation of La.R.S. 14:31(A.) which provides, in pertinent part:

Manslaughter is:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (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. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed; or

(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person;...

According to the defendant's trial testimony, the victim began the fight.

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State v. Jones, 598 So. 2d 511, 1992 WL 81924 (La. Ct. App. 1992).

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