State v. Kato

157 So. 3d 695, 12 La.App. 3 Cir. 1356, 2013 WL 1975864, 2013 La. App. LEXIS 943
CourtLouisiana Court of Appeal
DecidedMay 15, 2013
DocketNo. 12-1356
StatusPublished
Cited by4 cases

This text of 157 So. 3d 695 (State v. Kato) 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. Kato, 157 So. 3d 695, 12 La.App. 3 Cir. 1356, 2013 WL 1975864, 2013 La. App. LEXIS 943 (La. Ct. App. 2013).

Opinion

GREMILLION, Judge.

1 TPefendant, Jamario Kato, and Dominique Sibley met Darious Rogers at an apartment complex in Natchitoches Parish and discussed robbing the victim, Tre-maine Jackson. Rogers handed them a “bar” of Xanax on behalf of the victim, who had been selling the drug. Rogers then returned upstairs to the apartment of the victim’s girlfriend and handed the victim the three dollars he had received from Sibley. The victim was irritated because he was selling the Xanax for five dollars per bar. Rogers claimed to have been robbed. The victim walked outside in an effort to get the rest of the money -with Rogers right behind him.

The victim leaned over the balcony and told Kato and Sibley that he needed the rest of the money. They began running up the stairs, cursing and telling the victim to “give it up.” The victim did not respond favorably, and Sibley shot him three times, lolling him.

A Natchitoches Parish grand jury indicted Defendant, Sibley, and Rogers for second degree murder, a violation of La.R.S. 14:30.1, and armed robbery, a violation of La.R.S. 14:64. A jury found Defendant guilty of second degree murder and attempted armed robbery. The trial court sentenced him to life imprisonment for second degree murder and ten years at hard labor for attempted armed robbery. The sentences are to run concurrently.

Defendant now appeals his convictions and sentences, assigning two errors. Defendant’s convictions and sentences are affirmed.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues that the evidence adduced against him at trial was insufficient to support his convictions. He complains that |«,his convictions rested upon “the uncorroborated and illogical testimony of a drugged-out convicted felon.”

The general analysis for such a claim is settled:

[698]*698When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367,1371.

The first portion of Defendant’s argument attacks the credibility of Rogers, the sole eyewitness in the case. However, some portions of the argument go to the elements of the crime rather than the witness’s credibility. The case Defendant cites, State v. Hollins, 08-1033 (La.6/26/09), 15 So.3d 69, stands for the principle that a jury should be instructed that an accomplice’s uncorroborated testimony should be viewed with great caution. Defendant does not argue whether the jury was so instructed in his case; rather, he claims that a principle of caution regarding accomplice testimony applies to his sufficiency of the evidence argument. Applying a principle more specific to witness credibility in the context of a sufficiency review, we have stated:

As mentioned in Kennerson, credibility assessments are within the province of the fact-finder, in this case the jury. A jury may “accept or reject, in whole or in part,” |Rany witness’s testimony. State v. Silman, 95-0154, p. 12 (La.11/27/95), 663 So.2d 27, 28. Clearly, the jury believed the victim’s version of events, and Hypolite’s brief offers no concrete reason why the jury’s conclusion should be considered unreasonable. This court will overturn a jury’s credibility assessment only when a witness’s own testimony demonstrates that the witness’s ability to perceive events was impaired in some way. See, e.g., State v. Bourque, 94-291 (La.App. 3 Cir. 11/2/94), 649 So.2d 670, wherein one eyewitness had consumed a large amount of alcohol before the offense and the other was a minor who believed all white men looked alike, and defendant was white.
In the present case, there was no indication that Ms. Chatman was unable to objectively perceive events, although during cross-examination she testified that she had consumed two twenty-two-ounce beers while- visiting her friend’s house earlier in the evening. It was not clear exactly when, or over what a period, she drank the beers. The testimony did not indicate that she was intoxicated, or otherwise unable to objectively perceive events, at the time of the offense.
State v. Hypolite, 04-1658, pp. 4-5 (La. App. 3 Cir. 6/1/05), 903 So.2d 1275, 1279, writ denied, 06-618 (La.9/22/06), 937 So.2d 381.
In the present case, the Victim admitted that he had taken one prescription [699]*699Lortab for pain and had inhaled “two or three lungs full” of marijuana on the morning of the shooting. However, as in Hypolite, the testimony did not indicate the Victim was unable to objectively perceive events at the time of the shooting.
Further, we observed that the Victim knew Defendant before the shooting; when he was a postman, he had delivered mail to Defendant. Although he claimed they had met only two months before the offense, Defendant acknowledged knowing the Victim. It is unlikely the Victim misidentified a person he already knew.

State v. Smith, 07-1384, pp. 6-7 (La.App. 3 Cir. 5/28/08), 984 So.2d 238, 242-43.

During his testimony, Rogers admitted to being “high” at the time of the shooting, as he had taken a single Xanax pill before arriving at the apartment; while there, he drank a beer while he ate a meal. However, much like the witness in Smith, he knew Defendant prior to the shooting and identified him at trial. Also, 14Pefendant bought Xanax from the victim and had ridden with Rogers and the victim earlier that day. Further, Rogers indicated that the shock of the shooting brought him to his senses. Also, Rogers’ account of the offense was lucid and gave no indication that he had difficulty perceiving events at the time of the shooting. In light of the jurisprudence, Defendant’s argument lacks merit.

Defendant also notes that Rogers admitted that he told a number of lies during the course of the offense and in the initial stages of the investigation. The following colloquy occurred on cross-examination:

Q. And you know what perjury is ... do you?
A. (No response recorded).
Q. You know what perjury is?
A. Yes Sir.
Q.

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Bluebook (online)
157 So. 3d 695, 12 La.App. 3 Cir. 1356, 2013 WL 1975864, 2013 La. App. LEXIS 943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kato-lactapp-2013.