State v. McKinney

673 So. 2d 1205, 94 La.App. 4 Cir. 2113, 1996 La. App. LEXIS 708, 1996 WL 203550
CourtLouisiana Court of Appeal
DecidedApril 24, 1996
DocketNo. 94-KA-2113
StatusPublished
Cited by1 cases

This text of 673 So. 2d 1205 (State v. McKinney) 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. McKinney, 673 So. 2d 1205, 94 La.App. 4 Cir. 2113, 1996 La. App. LEXIS 708, 1996 WL 203550 (La. Ct. App. 1996).

Opinions

hWALTZEB, Judge.

STATEMENT OF THE CASE

Defendant, James E. McKinney, a/k/a John King, was charged by Bill of Information with armed robbery and attempted first degree murder, violations respectively of La. R.S. 14:64 and La.R.S. 14:27(30.1). The State amended the first charge from attempted first degree murder to attempted second degree murder. McKinney pleaded not guilty. A lunacy commission was appointed and determined that McKinney was sane under the McNaghten rule at the time of the alleged offense, was able to understand the charges and proceedings against him, could effectively participate in his defense and could assist his attorney, and was able to appreciate the usual, natural and probable consequences of his acts, and was able to distinguish right from wrong and was sane at the time of the offense. The trial court found probable cause and denied McKinney’s Motion to Suppress his statement. Following trial on 14 February 1991, a twelve-member jury found McKinney guilty of attempted manslaughter and armed robbery. He was sentenced on May 10, 1991, to serve ten and one-half years on the attempted manslaughter conviction and to serve ninety-nine years without benefit of parole, probation, or suspension of sentence on the armed robbery conviction; the sentences are to run concurrently. From that sentence, McKinney appeals. We affirm.

STATEMENT OF FACTS

^Chester Audler, a taxi driver, picked up a passenger on 26 July 1989, and was driving to 1700 Valence Street when his passenger, McKinney, pointed a .357 Magnum at him and said, “You know what this is.” Mr. Audler tried to use a stun gun that he kept on the front seat, but McKinney took it away from him. As McKinney was wrenching the stun gun from Mr. Audler’s hand, the stun gun went off and burned McKinney’s hand. McKinney shot Mr. Audler three times and then demanded his money. Mr. Audler gave him $28, and tried to get out of the car; however, he could not move because he was paralyzed as a result of one of McKinney’s shots. McKinney then left the area. At trial Mr. Audler identified McKinney as the man who shot him three times and robbed him.

Police Officer M.D. Audibert of Special Operations Division, testified that he responded to a call on 26 July 1989, at approximately 4:30 a.m., and observed the victim, whose face was covered with blood, half in a cab and half in the street. Officer Audibert called an ambulance and secured the scene and notified the Police Department’s Homicide and Robbery divisions. Officer Audibert reported that the victim reported his 38 or 357 hand gun was missing.

Sergeant Edward Ranee of the Robbery Division testified that he was the supervising officer at the crime scene. He testified that during the course of his investigation, the victim was hospitalized and was going to remain hospitalized for quite an extensive period of time.

Detective Rudy Fascio of the Robbery Division testified that he was unable to conduct a formal police photographic lineup for the victim because the victim was heavily medicated, and was described as being paralyzed and on the brink of death, and not in the physical condition to go through something as emotional as a photographic lineup.

| sDr. Abbott, an orthopedic surgeon, treated Mr. Audler at Baptist Hospital where the victim was taken immediately after the shooting. Dr. Abbot removed a bullet from the soft tissue of the victim’s back right side and stabilized a fracture of his shoulder with a metal rod. The most severe injury Mr. Audler received, the doctor said, was a bullet that entered his left flank, injured his spleen, and cut through (transected) his spinal cord. That bullet left him with paralysis of the lower extremities and damage to the victim’s bladder. The damage to the victim’s spleen was immediately life threatening, and caused the loss of gross amounts of blood. Another bullet caused severe damage to his shoulder, from which the victim was still suffering pain, and a third bullet went through his wrist. According to Dr. Abbott, the injury to the spinal cord and the injury to the spleen could have caused the victim to die.

Officer Fascio testified that a confidential informant notified the police that a suspect [1207]*1207with a burn mark similar to that which the perpetrator would have received from the victim’s stun gun was staying at the LeDale Hotel in the 700 block of St. Charles Avenue and was in possession of the victim’s gun. Officer Fascio obtained a search warrant and entered the room while McKinney was sleeping. He found a stainless steel revolver on the dresser and a pair of blood-stained socks hanging over the bathtub. Officer Fascio noticed that McKinney had a bum mark on his right hand.

When McKinney was arrested, he made a statement that was read at trial, in which he described what happened when he asked the taxi driver for his money:

... I told him to stop. He stooped and I pulled out the gun and told him, “give me the money”. He looked at me and said, “oh no”. I then said, “give me the money”. He then turned and was reaching for something on the seat and I asked him, “what you’re getting man?,[”] and he said “nothing”. I then looked across the front seat and I was holding the gun in my right hand. He then shocked me 14[with] something and my gun went off at the time, falling on the floor in the back seat. I looked and saw him with that shocker in his right hand and a gun in his left hand. I hurried up and picked my gun up and started shooting. First, I shot in the roof, but he did not pay any attention to that. He was getting ready to shoot me. I then started shooting at him. I shot him in the leg first, his arm or side the second shot. I knew I had shot him a third time, but I’m not sure where. He then laid down across the front seat of the car and said “man, you done killed me”. He then took the money from his top shirt pocket and threw the money outside the cab on the ground and I picked up the money and ran. When I was running, I heard him calling for help, so I knew that I had not killed him and that he was going to be alright.

The police officer than asked, “James, where did you go after taking the cab driver’s money?” McKinney answered,

... I ran to St. Charles Avenue and a trolley ear was coming so, I got on it and rode to a gas station and gave a man a dollar to call me a cab. The cab came and I rode to Lee Circle and then I went home.

A fingerprint expert compared the prints that were lifted from the outside of Mr. Audler’s cab with McKinney’s fingerprints and found they were a positive match.

ASSIGNMENT OF ERROR: The trial court erred in imposing an excessive sentence.

The defense argues that the trial court erred in imposing an excessive sentence for the armed robbery conviction. McKinney received the maximum term of ninety-nine years without benefit of parole, probation, or suspension of sentence. Pointing out that McKinney’s only prior conviction was for solicitation for a crime against nature, the defense argues that under the sentencing guidelines — which he acknowledges were not in effect at the time of this crime — an eight to ten and one-half year term for armed robbery would have been imposed.

| gArticle 1, Section 20 of the Louisiana Constitution of 1974 provides that “No law shall subject any person ...

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Related

State v. Mims
769 So. 2d 44 (Louisiana Court of Appeal, 2000)

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Bluebook (online)
673 So. 2d 1205, 94 La.App. 4 Cir. 2113, 1996 La. App. LEXIS 708, 1996 WL 203550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mckinney-lactapp-1996.