State v. Maxie

719 So. 2d 104, 1998 WL 484609
CourtLouisiana Court of Appeal
DecidedAugust 19, 1998
Docket30877-KA
StatusPublished
Cited by28 cases

This text of 719 So. 2d 104 (State v. Maxie) 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. Maxie, 719 So. 2d 104, 1998 WL 484609 (La. Ct. App. 1998).

Opinion

719 So.2d 104 (1998)

STATE of Louisiana, Appellee,
v.
Derrick MAXIE, Appellant.

No. 30877-KA.

Court of Appeal of Louisiana, Second Circuit.

August 19, 1998.

*106 J. Wilson Rambo, Monroe, Louisiana Appellate Project, for Appellant.

Richard Ieyoub, Attorney General, Don M. Burkett, District Attorney, Richard Z. Johnson, Jr., Assistant District Attorney, for Appellee.

Before MARVIN, C.J., and NORRIS and GASKINS, JJ.

GASKINS, Judge.

The defendant, Derrick Maxie, was found guilty by a jury of one count of attempted second degree murder and one count of armed robbery. The defendant was sentenced to serve twenty years at hard labor for the second degree murder conviction and fifteen years at hard labor, without benefit of parole, probation, or suspension of sentence, for the armed robbery conviction, with the sentences to be served consecutively. The defendant appeals his convictions and sentences. For the following reasons, we affirm the convictions, but vacate the sentences and remand for resentencing.

FACTS

On the evening of September 23, 1994, the defendant and several friends including Cedric Hewitt, Vyron Brooks, Steve Cooper and Johnny Wilbert decided to ride from Gloster, Louisiana to Mansfield, Louisiana. Initially, the group rode in two cars with the defendant riding in the car driven by Cedric Hewitt and the others riding in a car driven by Steve Cooper. After arriving in Mansfield, Steve Cooper stated he did not have a driver's license and therefore did not want to drive. Cedric Hewitt decided he would allow everyone to ride with him. At some point, the talk among the group turned to "jacking" someone and stealing stereo equipment. The group parked their car in Mansfield in an area known as "the projects."

As the group sat outside of the car socializing with others in the area, a car passed playing loud music and was flagged down by someone from the group. The driver of the car, Edward Simpson, stopped and then, realizing that he did not know the defendant and his group, tried to drive away. According to Mr. Simpson, one member of the group walked to the passenger side of his car with a gun. Then the defendant walked up to the driver's side and also aimed a gun at Mr. Simpson. According to the victim, the defendant ordered him from the vehicle and put a gun to the back of his head as he lay on the ground. The defendant was heard ordering the others to take the stereo equipment from the car. At some point, a struggle *107 ensued between the defendant and the victim. The driver of the car was able to escape, but not without being fired at by the defendant. Mr. Simpson fled, with the defendant pursuing him on foot. The defendant fired at the victim five or six times. The victim was injured and required stitches in his forehead, although it is not clear if he was injured by gunfire or during the struggle with the defendant. The defendant, Cedric Hewitt and Vyron Brooks were arrested and charged in this matter.

The defendant was tried by a jury. Cedric Hewitt and Vyron Brooks testified for the state and both were allowed to plead guilty to lesser charges of middle grade theft after testifying in this case. On May 27, 1994, the defendant was found guilty of attempted second degree murder and armed robbery.

After a motion for new trial was denied on September 9, 1994, the defendant was sentenced on November 16, 1994. At that time the defendant's trial counsel made an oral motion for an appeal and the trial judge requested the motion be followed by the appropriate orders for his signature. No orders were submitted by the trial attorney.

On August 22, 1997, the defendant filed a post-conviction relief application in the trial court seeking an out-of-time appeal and reconsideration of his sentence. The trial court granted the out-of-time appeal. The court also deemed the motion to reconsider sentence timely however, the motion was denied. On appeal, the defendant claims there was insufficient evidence upon which to base his conviction, that the sentences imposed are excessive, that the trial court failed to adequately state the factors considered in imposing sentence as required by La. C.Cr.P. art. 894.1 and erred in failing to adequately articulate reasons for ordering the sentences to be served consecutively rather than concurrently.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that there was insufficient evidence upon which to base his conviction of attempted second degree murder. The defendant asserts that the state failed to present sufficient evidence to prove he had the specific intent to kill the victim and thus, he could only be convicted of a lesser included offense. The defendant contends this case should be remanded to the trial court for a new trial or this court should enter a judgment of conviction for aggravated battery. The defendant does not argue the sufficiency of the evidence to convict him of armed robbery.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of evidence claim 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. State v. Bellamy, 599 So.2d 326 (La. App. 2d Cir.), writ denied, 605 So.2d 1089 (1992).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

La. R.S. 14:30.1(A) defines second degree murder, in pertinent part, as:

the killing of a human being: (1) when the offender has a specific intent to kill or to inflict great bodily harm; or (2) is engaged in the perpetration or attempted perpetration of armed robbery.

See also State v. Harper, 27,278 (La.App.2d Cir.8/23/95), 660 So.2d 537, writ denied 95-2318 (La.1/12/96), 666 So.2d 320.

La. R.S. art. 14:27 defines attempt, in part, as:

any person who, having specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward *108 the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether under the circumstances, he would have actually accomplished his purpose.

Specific intent is defined as that state of mind which 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). Specific intent is a state of mind and, as such, need not be proven as a fact but may be inferred from the circumstances and actions of the accused. State v. Graham, 420 So.2d 1126 (La.1982).

Specific intent to commit a crime is an element of an attempted offense. (La. R.S. 14:27).

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Bluebook (online)
719 So. 2d 104, 1998 WL 484609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-maxie-lactapp-1998.