State v. Miller

868 So. 2d 239, 2004 La. App. LEXIS 404, 2004 WL 385130
CourtLouisiana Court of Appeal
DecidedMarch 3, 2004
DocketNo. 37,472-KA
StatusPublished
Cited by2 cases

This text of 868 So. 2d 239 (State v. Miller) 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. Miller, 868 So. 2d 239, 2004 La. App. LEXIS 404, 2004 WL 385130 (La. Ct. App. 2004).

Opinions

It CARAWAY, J.

Following a shooting that occurred in his apartment, the defendant was charged with second degree murder of an acquaintance. He was tried and convicted by a jury and sentenced to the mandatory punishment of life in prison without benefits. The defendant now appeals challenging the sufficiency of the evidence. The defendant’s conviction and sentence are affirmed.

Facts

In the evening hours of December 23, 2000, the defendant, Jeffery Michael Miller (“Miller”), was in his apartment “hanging out” with Quin Moody, “Little James” and “Dray.” The men were watching a movie when the victim, Warren “Hank” Hewitt (“Hewitt”) arrived and joined them. Miller and Hewitt went to high school together. Carrying a wine bottle, Hewitt sat down on the couch next to Miller and was noticeably intoxicated. He was loud and obnoxious during the movie. Later, Dray and Little James left the apartment and did not return.

[242]*242Moody was the only eyewitness who testified at trial about the confrontation that led to Hewitt’s death. Hewitt and Miller began a friendly session of “trash talking,” boasting about who was better than the other. During that time, Miller’s next door neighbor, Kendra Dickson, called. Miller told her that he would be over later because he was getting ready to “slap box this dude”1 and started laughing.

| gHewitt and Miller were large men, both approximately 250 pounds. While slap boxing, the victim swung and fell. He got back up and became a little more aggressive. Hewitt then hit Miller with a closed fist in Miller’s face. Miller told the victim to stop and at that point he pinned Hewitt down and asked him if he meant to fight for real. Heudtt told the defendant to get up off him, and Moody also told both men to “cut it out.”

Miller then got up off the victim and went to the kitchen to retrieve his gun. He emerged from the kitchen pointing the gun but the victim was steadily coming towards him. Hewitt was unarmed. The two exchanged words. Wh'en they were approximately eight feet apart, Miller shot the victim and he fell to the floor.

Miller then went to his next-door neighbor’s apartment and told her to call 911 because he had just shot and killed “this guy.” While Dickson was on the phone with police, Miller went back to his apartment. Dickson and Moody, who had left Miller’s apartment and returned to his own apartment next door, then heard several gunshots. Miller returned a second time to Dickson’s apartment with his arms extended and told her to take the gun from him. Dickson took the gun from Miller. She and Miller went back over to his apartment where Dickson observed the dead body of Hewitt. Miller then walked over to the body and began beating the body in the face with his fists and shouting at Hewitt. Dickson calmed Miller down and when law enforcement arrived Miller told them that he and Hewitt were slap boxing and Hewitt gave him a closed fist lick in his face. He admitted retrieving his gun out of the kitchen and, shortly thereafter, shooting the victim.

|sThe coroner testified that the toxicology screen revealed a “very large amount” of alcohol in the victim’s body, “even a fatal amount.” However, this did not cause the victim’s death, since some persons can tolerate much higher levels of alcohol than others. Nevertheless, its effect on the victim would have impaired his ability to act.2 Moody confirmed that Hewitt’s speech was slurred throughout his visit in the apartment. The coroner testified that the first gunshot wound entered the victim’s jaw and passed downward through his neck into his left lung. That wound alone would have resulted in death but would not have caused immediate death. On the other hand, eight other wounds resulted from bullets traveling upward through the victim’s body. Apparently, these bullets were fired during the second shooting incident, as the body lay on the floor.

After trial, the jury found Miller guilty of second degree murder. He was sentenced to the mandatory punishment of life in prison without the benefit of probation, parole, or suspension of sentence. Miller now appeals his conviction and sentence.

Discussion

Miller raises three assignments of error that all relate to the sufficiency of the [243]*243evidence. He argues that the trial court erred in including the aggressor doctrine, La. R.S. 14:21, in the jury charge and in denying his motions for post-judgment verdict of acquittal and new trial. Miller further asserts that the evidence shows that Hewitt was the aggressor so that the state did not prove that the homicide was not perpetrated in self-defense. Alternatively, he | ¿argues that the killing occurred in the heat of passion and the conviction should be reduced to manslaughter.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. Specific intent is the state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent need not be proven as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Taylor, 621 So.2d 141 (La.App. 2d Cir.1993), writ denied, 93-2054 (La.2/11/94), 634 So.2d 371. Specific intent is a fact issue to be determined by the trier of fact. State v. Jasper, 28,187 (La.App.2d Cir.6/26/96), 677 So.2d 553, 559, unit denied, 96-1897 (La.2/21/97), 688 So.2d 521 (internal citations omitted).

A homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing, is necessary to save himself from that danger. La. R.S. 14:20(1). A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he ^withdraws from the conflict in good faith and in such .a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.. La. R.S. 14:21.

When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State in re D.P.B., 2002-1742 (La.5/20/03), 846 So.2d 753; State v. Gaddis, 36,661 (La.App.2d Cir.3/14/03), 839 So.2d 1258.

La.C.Cr.P. art. 821 provides that a motion for post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. This is a question of legal sufficiency. State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992).

La.C.Cr.P. art.

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Bluebook (online)
868 So. 2d 239, 2004 La. App. LEXIS 404, 2004 WL 385130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-miller-lactapp-2004.