State v. McHenry

711 So. 2d 404, 1998 La. App. LEXIS 752, 1998 WL 161755
CourtLouisiana Court of Appeal
DecidedApril 9, 1998
DocketNo. 30537-KA
StatusPublished
Cited by1 cases

This text of 711 So. 2d 404 (State v. McHenry) 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. McHenry, 711 So. 2d 404, 1998 La. App. LEXIS 752, 1998 WL 161755 (La. Ct. App. 1998).

Opinion

liCARAWAY, Judge.

Clifton McHenry was indicted for the second degree murder of Robert Lee Henderson. After a jury trial, McHenry was convicted as charged and given the mandatory life sentence without benefit of probation, parole or suspension of sentence. He now appeals, urging 10 assignments of error. We affirm the conviction and sentence.

Facts

At about 12:30 a.m. on April 26, 1996, 25-year-old Robert Henderson drove his girlfriend’s car to the Blitz Caf, a night club in Bastrop, to get something to eat. Henderson parked the ear across the street from the Blitz with the passenger side of his car facing the club. He walked across the street to the Blitz and ordered some fried chicken. Henderson left the Blitz eating the chicken, crossed the street, and got back into the car.

The state’s principal eyewitnesses, Marion Blakely and Tina Jackson, were sitting together in front of the Blitz and observed Henderson sitting in the car with the door open eating chicken. Though these two women gave differing versions of some details of the events and had certain conflicts between their testimony at trial and their testimony at a pretrial hearing, both witnessed the defendant, McHenry, and Ronald Evans proceed from the Blitz across the street and confront Henderson as he sat in the car. Blakely and Jackson further testified that while McHenry was standing beside the open door of the victim’s car, McHenry openly held a gun in his hand. They then observed the defendant aim at Henderson attempting to fire the weapon, which first misfired. Then, as Henderson leaned forward to close the door and start the engine, both women stated that he was shot by the defendant. Neither woman observed Henderson with a gun, heard Henderson [406]*406speak to McHenry or Evans, nor reported Henderson making any ^significant gesture ■with his hands or otherwise toward McHen-ry. Finally, as Henderson’s vehicle started moving down the street following the shooting, both women observed the defendant running after the vehicle and firing a second shot at Henderson’s car.

Shortly thereafter, the victim’s car left the highway and slid into a drainage ditch. The first shot fired by the defendant entered the victim’s left shoulder and traversed his chest cavity, piercing his aorta. The victim died as a result of the gunshot wound. When the car rolled into the ditch, Blakely heard the defendant say “I shot him.” Jackson heard the defendant say that “he was dead.” The defendant then ran down an alley away from the scene.

Policé found no bullet holes in the victim’s vehicle. No weapon was found on the victim’s body or inside the car. One spent .380 shell casing and one deformed live round of the same caliber were found at the scene.

Three days after the shooting, officers located the defendant in a Bastrop residence, but the defendant fled before he could be arrested. The defendant surrendered the next day and made a statement to police which was introduced at trial.

In defendant’s recorded statement, he told police that Henderson called him over to the ear and that Evans had gone with him. The defendant said that as they were talking, Henderson leaned over in his seat and came back up with a “black .25” (a pistol) pointed at him. The defendant said that he drew his own weapon, a Lorein .380, and fired at Henderson in self-defense. The defendant told police that Evans took Henderson’s gun from the victim’s car after the shooting. He said he later saw Evans putting the gun and a wallet underneath a house behind the Blitz. McHenry said that he did not .know why Henderson would pull a gun on him and that they had no reason to be angry with one another.

[ gRonald Evans testified at the trial that Henderson was supposed to have given him and some other person a ride to another club later that evening. He said that he was beside Henderson’s car when the defendant walked up and shoved him out of the way. Evans said that he heard the defendant say that Henderson had “ratted” on him at some point and called the police to his house. Evans testified that -the defendant then pulled out a gun and shot the victim as the victim tried to drive away.

Evans testified that at the time of the shooting, the victim’s “hands was like he had a gun on his lap” and that “it looked like he was trying to go for it but he didn’t get a chance to make it to it.” When asked whether he was sure the victim had a gun, Evans said “I can’t really say it was a gun. I can’t say that it was a gun.” Evans had previously made a statement to the police indicating that the victim had a black pistol on his knee. Evans, a convicted felon whose testimony was severely impeached with his prior inconsistent statements, also testified that the defendant tried to improperly influence Evans’ testimony while they were in jail together.

After hearing all the evidence, the jury voted unanimously to convict the defendant of second degree murder. Defendant raises ten assignments of error which we discuss herein in logical rather than numerical order of presentation.

Discussion

Assignment of Error 2. The Court erred in denying the defendant’s motion for post-verdict judgment of acquittal.

Assignment of Error 6. The evidence was insufficient to convict the defendant-of second degree murder.

Assignment of Error 9. The Court erred in including the State’s requested jury charge on thie aggressor doctrine.

After a brief hearing, the court denied the defendant’s motion for post-verdict judgment of acquittal on grounds of insufficient evidence to convict. The ^defendant's complaint of insufficiency is based upon the alleged failure of the state to prove that defendant did not kill Henderson in self-defense. The defense of self-defense or justification cannot be raised if the defendant was the aggressor, see La. R.S. 14:21, and, therefore, defendant also complains that the [407]*407trial court erred in charging the jury on the aggressor doctrine.

These three assignments of error all pertain to the sufficiency of the evidence. Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the criteria for evaluating sufficiency of evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all elements of the crime proved beyond a reasonable doubt.

Further, it is the function of the judge or jury to assess credibility and resolve conflicting testimony. Where the trier of fact has made a rational determination, an appellate court should not disturb it. Indeed, in the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the fact-trier, is sufficient support for the requisite factual conclusion. State v. Brown, 628 So.2d 207 (La.App. 2d Cir.1993).

La. R.S. 14:30.1(A) provides that second degree murder is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm. Self-defense constitutes justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(1); State v. Cotton, 25,940 (La.App.2d Cir. 03/30/94), 634 So.2d 937; State v. Jones, 600 So.2d 875 (La.App.

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Related

State v. Hopkins
774 So. 2d 1178 (Louisiana Court of Appeal, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
711 So. 2d 404, 1998 La. App. LEXIS 752, 1998 WL 161755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mchenry-lactapp-1998.