State v. McPherson

733 So. 2d 634, 1999 WL 223088
CourtLouisiana Court of Appeal
DecidedMarch 30, 1999
Docket98-KA-1207
StatusPublished
Cited by6 cases

This text of 733 So. 2d 634 (State v. McPherson) 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. McPherson, 733 So. 2d 634, 1999 WL 223088 (La. Ct. App. 1999).

Opinion

733 So.2d 634 (1999)

STATE of Louisiana
v.
Israel J. McPHERSON.

No. 98-KA-1207.

Court of Appeal of Louisiana, Fifth Circuit.

March 30, 1999.

*635 Edward L. Greenlee, Baton Rouge, Sandra C. Jenkins, Louisiana Appellate Project, New Orleans, for Defendant/Appellant.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Ellen S. Fantaci, Appellate Counsel, Deborah A. Villio, Joseph E. Roberts, Trial Counsel, Gretna, for Plaintiff/Appellee.

Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and MARION F. EDWARDS.

DALEY, Judge.

Defendant Israel McPherson appeals his conviction of one count of second degree murder, a violation of LSA-R.S. 14:30.1. Following a jury trial, defendant was found guilty of second degree murder and sentenced to serve life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. On appeal, McPherson argues that the evidence was insufficient to prove him guilty of second degree murder, and that the court erred in denying his motion for mistrial. We affirm, finding the evidence sufficient to convict the defendant as a principal, and that the trial court did not err in denying the motion for mistrial.

FACTS

At about 11:00 p.m. on May 2, 1997, Jefferson Parish sheriff's deputies responded to a report of a shooting at a Shell filling station at the corner of the Westbank Expressway and Claiborne Gardens in Westwego. Sgt. Kim Rodriguez was the first officer on the scene. When she arrived at the scene, she observed the victim, Reverend Wilson Smith, lying face-down on the ground. The victim was bleeding from the head area. No witnesses were present at the scene, and the officer helped secure the crime scene.

Sergeant Dennis Thornton of the homicide division reported to the scene at approximately 11:35 p.m. When he arrived, the victim's body had already been transported by paramedics to the hospital. He supervised the collection of evidence. Among the items recovered that night were two bullet fragments. Sgt. Thornton testified that one of the projectiles that was collected was determined to match the gun that was recovered from the defendant. The victim's vehicle was found idling with the driver's door open.

On May 3, 1997, Lieutenant Maggie Snow received a call from another officer to assist in conducting interviews. She interviewed the co-defendant, Mr. Kenneth Hill, and, based upon Hill's interview, he was arrested and a warrant was issued for the defendant's arrest. Thereafter, the defendant was located at his sister's house on Mount Rushmore Street and was arrested at approximately 3:15 a.m. on May 4, 1997. Following his arrest, the defendant *636 was advised of his rights and then proceeded to make three statements to the police. Each statement was played for the jury while they read along with copies of the transcriptions.

In his first statement, McPherson claimed that Hill had called him on the evening of May 2, 1997 and asked him to walk with him. They walked around the corner to the Shell station, stopping along the way to speak with three individuals named Freddy, Clancy, and Norman Jackson. The defendant spoke with a girl named Crystal while Hill purchased a few items. The defendant claimed that he noticed a man walk up to the store. After the defendant and Hill walked away from the store, the defendant claimed that Hill told him that he was going to rob the man. The defendant claimed further that he advised Hill to leave the man alone. Thereafter, the defendant claimed that he walked on to his home, that he heard several gunshots, but that he never saw the gun.

McPherson stated that he did not walk home with Hill, and that the next time he spoke with Hill was the following morning, when Hill called his house and told the defendant that he was scared. The defendant admitted that the whole situation was over a robbery attempt. He claimed that the reason he did not call the police to tell them about what Hill had done was because he was not a "rat." The defendant admitted that he had called Hill's house, and explained that he called to tell Hill to stop telling people that they had pulled an armed robbery and killed a man. In his statement, the defendant claimed that on the evening of the crime, he was wearing the same thing that he was wearing at the time the interview was taken. Lt. Snow testified that when she interviewed the defendant, he was wearing a white t-shirt and a pair of shorts.

In his second statement, the defendant admitted that he initially was carrying the gun on May 2, 1997. He claimed that he purchased the gun from Hill two months earlier. The defendant claimed that Hill asked him if he could carry the gun, and that he gave the gun to Hill. According to the defendant, Hill had never asked to borrow the gun before. They walked to the Shell station. The defendant claimed that upon learning that Hill planned to rob the victim, he told Hill to leave the man alone and that he began to walk home. The defendant claimed further that after he heard the gunshots, Hill caught up with him on Patton Street and gave the gun back to him. The defendant admitted that he gave the gun to one of his friends, and he agreed to take the police to retrieve it.

In his final statement to Lt. Snow, the defendant stated that he had taken the police to Mr. Ellison Harper's house. The defendant admitted that he had told Mr. Harper to give the police the gun. He admitted further that the gun retrieved from Mr. Harper's house was the gun he purchased two months earlier and that was used during the murder at the Shell station.

Colonel Walter Gordon confirmed that the defendant had taken the police to retrieve the gun from Mr. Harper's house. Col. Gordon also seized eight cartridges, two of which were Federal .38 caliber projectiles and six of which were RNP .357 caliber projectiles. Mr. Ellison Harper testified that he knew the defendant and that during the early part of May of 1997, the defendant told him that he was going to leave a gun at his house. The defendant left a gun and some bullets with Mr. Harper. Captain Louise Waltzer, an expert in firearms examinations, testified that she compared the bullet fragments that were recovered from the crime scene with the weapon that was recovered from Mr. Harper's house. She concluded that one of the bullet fragments recovered from the crime scene was fired from the weapon recovered from Mr. Harper's house.

Ms. Joan Knoten, who lived behind the Shell station, testified that she heard three gunshots at approximately 11:00 p.m. on *637 May 2, 1997. She looked out of a window and saw two black men running from the station. One, whom she described was wearing a light-colored cap and light-colored shorts, jumped from a wall at the station, and the other man, whom she described was wearing dark slacks or jeans, had already done so. According to Ms. Knoten, the two men were only a couple of feet apart. She could not see the men's faces, as the lighting in the parking lot behind the station was not very bright. Ms. Knoten testified that she did not wear glasses, and that her eyesight was pretty good.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, the defendant argues that the state failed to produce sufficient evidence to prove his guilt beyond a reasonable doubt. He argues that the state failed to demonstrate that he was anything but a mere bystander. He claims that the state did not prove that he actually shot the victim or that he was a principal to the shooting.

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Bluebook (online)
733 So. 2d 634, 1999 WL 223088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcpherson-lactapp-1999.