State v. Rosiere

488 So. 2d 965
Supreme Court of Louisiana·Decided May 20, 1986·No. 85-K-2215·Published·Cited by 520 cases

Opinion

488 So.2d 965 (1986)

STATE of Louisiana
v.
Stephen ROSIERE.

No. 85-K-2215.

Supreme Court of Louisiana.

May 20, 1986.

*966 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Michael McMahon, Asst. Dist. Atty., for plaintiff-applicant.

Joseph Meyer, Jr., Arthur A. Lemann, III, Lemann, O'Hara & Miles, New Orleans, for defendant-respondent.

MARCUS, Justice.

Stephen Rosiere was indicted by the grand jury with the second degree murder of Gerald Glover in violation of La.R.S. 14:30.1. After a bench trial, defendant was found guilty as charged. Defendant moved for a post verdict judgment of acquittal contending that the state failed to prove that he was guilty of second degree murder and for a new trial on the ground that the state had material exculpatory information which it had failed to turn over to him. The trial judge denied defendant's motions and sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The court of appeal reversed defendant's conviction finding insufficient evidence to support the conviction. The court also found that the motion for a new trial, although moot, should have been granted because the state suppressed material exculpatory evidence.[1] Upon the state's application, we granted certiorari to review the correctness of that decision.[2]

Sufficiency of Evidence

The state contends that the court of appeal erred in reversing defendant's conviction on the ground of insufficient evidence. It argues that there was sufficient evidence to prove that defendant killed Glover with specific intent and without justification.

At trial Fred McFarland, a New Orleans police officer and the state's key witness, *967 testified that shortly after midnight on August 31, 1983 the patrol car which he was driving and in which defendant was a passenger was proceeding south on Louisiana Avenue when he observed two males on a motorcycle traveling at a high rate of speed in a northerly direction. As he made a U-turn, defendant turned on the lights and siren. The motorcycle did not pull over; it accelerated. The patrol car pursued it believing that the riders may have committed a serious crime. Defendant notified the dispatcher of their situation, the motorcycle's license number and their need for assistance. As the motorcycle began up the Palmetto overpass, the police unit was only two car lengths behind, after having pursued the suspects for two to three miles at speeds in excess of seventy miles per hour. At this point defendant announced, "I'm going to shoot," leaned out the window, took aim and fired. Initially nothing happened and he commented, "I missed." Seconds later, however, Glover toppled off the back of the bike. Defendant's response was, "Oh fuck, I hit him." According to McFarland, the suspects had not fired any shots at the patrol car, nor had there been any pops, flashes or sparks, in the vicinity of the motorcycle which one might have mistaken for gunfire. After realizing what had happened, defendant asked, "What am I going to do now?"

McFarland further testified that within seconds the coverup began: defendant called in a "108"—notified the dispatcher that officers were being shot at. As McFarland pulled the car over to the side, he and defendant began to concoct their coverup. The two officers got out of the car and approached the body. Shortly thereafter, McFarland returned to the car and proceeded after the motorcycle. He stated that prior to his departure, no one had yet arrived at the scene. McFarland drove down the overpass, stopped the car and let the motorcycle escape because the biker could verify that no shots had been fired from the motorcycle. Furthermore, he called in another "108" providing additional support to their coverup. He then returned to the scene and picked up defendant. They drove down the overpass, and defendant took an old rusted automatic, which he had retrieved from the trunk, and dropped it out the window. Not long afterward, a police officer recovered the drop gun.

An hour after the shooting, McFarland gave a statement to New Orleans Police Department (NOPD) homicide detectives in which he contended that defendant did not shoot until after the bikers had shot at the police car. A few days later, after talking to defendant, McFarland gave another statement in which he claimed that the shooting had been accidental. Finally, after being confronted with various discrepancies in his statements and being offered immunity, McFarland agreed to testify truthfully at defendant's trial.

Rene Brooks, the driver of the motorcycle, corroborated McFarland's testimony. He testified that neither he nor Glover were armed and that during the chase he had not hit the kill switch on his motorcycle and his bike had not backfired. The remainder of the state's case consisted of testimony by a Palmetto Street resident who had heard only one shot fired and of physical evidence which described the scene and which established that defendant's gun was the murder weapon.

Defendant's case consisted primarily of testimony from two Palmetto Street residents, a motorcycle expert and an investigator from the New Orleans Office of Municipal Investigations. The two residents testified that on the night Glover was killed they had heard two shots fired only seconds apart on the Palmetto overpass. The expert's testimony established that if Brooks had hit the kill switch his motorcycle would have backfired and that at night this backfire would be accompanied by a small flash which one might mistake for a muzzle flash.[3] Finally, the investigator *968 testified that the day after the shooting he had taken a statement from defendant in which defendant said he returned fire because he had believed the motorcyclists were shooting at him. The investigator also recounted that in a search of the Palmetto overpass conducted a week after the shooting, he had recovered a lead pellet which was not consistent with police ammunition.

After reviewing the evidence adduced at trial, the trial judge concluded that the state had proved defendant's guilt beyond a reasonable doubt and therefore denied defendant's motion for a post verdict judgment of acquittal. The court of appeal in reversing defendant's conviction found that "McFarland lacks credibility and is not worthy of belief" and "Brook's testimony has little, if any, probative value." Having discredited the state's two key witnesses, the court concluded that the "totality of the State's case is weak, at best, and woefully insufficient to convict." In rejecting the trial judge's findings and making independent determinations as to McFarland's credibility and the probative value of Brook's testimony, the court of appeal erred. It is not the function of an appellate court to assess credibility or reweigh the evidence. Appellate review for minimal constitutional sufficiency of evidence is a limited one restricted by the standard developed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Trosclair, 443 So.2d 1098 (La.1983); State v. Richardson, 425 So.2d 1228 (La.1983).

The constitutional standard for testing the sufficiency of evidence, enunciated in Jackson v. Virginia requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find t

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State v. Rosiere, 488 So. 2d 965 (La. 1986).

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