State v. Montgomery

575 So. 2d 471, 1991 WL 13558
CourtLouisiana Court of Appeal
DecidedFebruary 6, 1991
DocketCr90-470
StatusPublished
Cited by8 cases

This text of 575 So. 2d 471 (State v. Montgomery) 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. Montgomery, 575 So. 2d 471, 1991 WL 13558 (La. Ct. App. 1991).

Opinion

575 So.2d 471 (1991)

STATE of Louisiana, Plaintiff-Appellee,
v.
Michael MONTGOMERY, Defendant-Appellant.

No. Cr90-470.

Court of Appeal of Louisiana, Third Circuit.

February 6, 1991.

*473 Dean J. Guidry, Lafayette, for defendant-appellant.

Richard Weimer, Wm. Babin, Asst. Dist. Attys., Lafayette, for plaintiff-appellee.

Before FORET, KNOLL and KING, JJ.

KING, Judge.

The issues presented by this appeal are whether the evidence was sufficient to convict defendant of second degree murder; whether the denial of defendant's objections and motions during his trial were reversible error; and whether defendant was denied his constitutional rights.

On November 2, 1988, Michael Montgomery (hereinafter defendant) was charged by grand jury indictment with second degree murder, in violation of La.R.S. 14:30.1. On December 16, 1988, defendant was formally arraigned and entered a plea of not guilty. A jury was selected on August 29, 1989, and a trial was held on August 30 and 31, 1989. On August 31, 1989, the jury found the defendant guilty of second degree murder. Defendant was sentenced by the trial judge on October 9, 1989, to life imprisonment without benefit of probation, parole, or suspension of sentence. The defendant timely appeals urging four assignments of error. We affirm.

FACTS

On September 23, 1988, defendant shot Clifton Brown (hereinafter Brown) outside of the Bone Shaker Lounge in Lafayette, Louisiana. Brown later died as a result of the gunshot wound. Prior to the shooting, defendant and Brown "exchanged words" inside the lounge, but no altercation took place.

Wilbert Brown (hereinafter Wilbert), the victim's brother, testified that he and Brown had two previous run-ins with defendant at the King Center over basketball games. Wilbert was present inside the Bone Shaker Lounge when Brown and defendant engaged in words and a pushing incident. After the incident, Wilbert and Brown discussed what had happened and Wilbert then bought Brown a beer. Brown left the lounge and Brian Montgomery (hereinafter Brian), defendant's brother, and defendant followed him outside.

Dorothy Celestine (hereinafter Celestine) testified that she was outside the lounge that evening and saw defendant's brother, Brian, strike Brown twice with a bat. Celestine stated that Brown did not do anything the first time Brian hit him, but attempted to block the bat with his hands the second time Brian attacked him with the bat. Defendant and Brian then began fighting with Brown. Celestine said that it looked as if Brown was trying to get away from them, but it appeared as if defendant intended to hit Brown in the chest or stomach, when she heard a gunshot and saw Brown fall face down. She saw defendant and his brother, Brian, run into the Bone Shaker Lounge.

Another witness to the shooting, Drusilla Sam (hereinafter Sam), testified that when she walked out of the Bone Shaker Lounge, defendant and Brian were fighting with Brown. Sam stated that Brian hit Brown with a bat and that defendant shot Brown with a small silver gun. Sam saw nothing in Brown's hands.

In a videotaped statement, defendant claimed that he was in the Bone Shaker Lounge when Brown bumped into him, and that the two of them exchanged words, but that they walked away from each other. Defendant alleged that he walked outside about thirty minutes later and approached Brown who was standing on the sidewalk. Defendant claims that Brown hit him in the face and then rushed toward him when he pulled his gun and it went off.

In a dying declaration, which was taped at the hospital, Brown said that it was the defendant who shot him and that it was because of a family rivalry.

After the shooting, Brian and the defendant reentered the Bone Shaker Lounge to *474 confront Wilbert. The defendant was still armed with his pistol, but he and Brian fled after an altercation inside the lounge because they were outnumbered by the people in the lounge. Defendant surrendered himself and his pistol to the police several hours after the shooting. Defendant had purchased his .25 caliber pistol three days before the shooting.

An autopsy was performed on Brown by Dr. Luis Remus. Dr. Remus determined that Brown bled to death from a gunshot wound but found no evidence of trauma to the head area of Brown. Officer William Delahoussaye (hereinafter Delahoussaye) of the Lafayette City Police Department, Crime Scene Division, testified that he recovered two pieces of a bat that had been broken apart, a spent casing and a live round, from a .25 caliber automatic pistol, at the scene of the shooting.

Christopher H. Henderson, a forensic chemist at the Acadiana Crime Lab, testified that the primer on the live .25 caliber round, found at the scene of the shooting by Delahoussaye, had been struck by the firing pin and that the cartridge had been extracted and ejected from defendant's pistol. The spent cartridge was also fired from the defendant's gun and the bullet that killed Brown was fired from defendant's.25 caliber pistol.

On November 2, 1988, defendant was charged by grand jury indictment with second degree murder of Brown, a violation of La.R.S. 14:30.1. Defendant was formally arraigned and entered a plea of not guilty as to the charges against him. A twelve person jury was selected on August 29, 1989, and a trial was held on August 30 and 31, 1989. On August 31, 1989, the jury found the defendant guilty of second degree murder. Defendant was sentenced by the trial judge on October 9, 1989, to life in prison without benefit of probation, parole, or suspension of sentence.

The defendant appeals urging four assignments of error which are:

(1) The weight and sufficiency of the evidence presented at trial was insufficient to convict defendant of second degree murder;
(2) The weight and sufficiency of evidence does not support a conviction of defendant for second degree murder, but, alternatively, was only sufficient to support conviction of defendant for a lesser included offense;
(3) The denial of defendant's objections and motions at trial was reversible error and is incorporated in this assignment of error by reference to the transcript and includes but is not limited to:
(a) The defendant's confession was unconstitutionally obtained and should not have been admitted;
(b) Inadequate foundations were laid for admission of all physical evidence which should not have been admitted;
(c) The denial of defendant's motion for directed verdict was reversible error because the State failed to present a prima facie case on all elements of second degree murder;
(d) The district attorney's leading questions were prejudicial and misleading and created reversible error; and
(e) Other assignments of error appearing from review of the transcript of the trial;
(4) Defendant was denied his constitutionally protected rights to a fair trial, procedural and substantive due process because the trial date, judge, and priority of the trial fixing on the day of the trial were selected by the State with reversible prejudice to defendant.

For the reasons hereinafter set forth, we affirm the defendant's conviction and sentence.

ASSIGNMENTS OF ERROR NUMBERS 1 AND 2[1]

In the first two assignments of error defendant contends that the evidence presented at trial was insufficient to support his conviction of second degree murder *475

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Bluebook (online)
575 So. 2d 471, 1991 WL 13558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-montgomery-lactapp-1991.