State v. Ross

965 So. 2d 610, 2007 WL 2433378
Louisiana Court of Appeal·Decided August 29, 2007·No. 42,399-KA·Published·Cited by 5 cases

Opinion

965 So.2d 610 (2007)

STATE of Louisiana, Appellee
v.
Ira Jerome ROSS, Appellant.

No. 42,399-KA.

Court of Appeal of Louisiana, Second Circuit.

August 29, 2007.

*613 Kenota Pulliam Johnson, for Appellant.

Paul Joseph Carmouche, District Attorney, Lea R. Hall, Jr., Dhu Thompson, Tommy Jan Johnson, Assistant District Attorneys, for Appellee.

Before BROWN, DREW and MOORE, JJ.

DREW, J.

Ira Jerome Ross was convicted as charged of attempted second degree murder and sentenced to 50 years at hard labor without benefits. He appeals. We affirm.

FACTS

On October 5, 2003, Michael Parker was playing dominos with his nephew, Tawon, and cousin, Matthew, outside Vanessa Prim's Shreveport home on 71st Street. A tan/brown SUV rolled slowly past the home, then returned minutes later, whereupon three masked gunmen jumped out and began shooting. Parker dropped to the ground, hid behind a column, and ran in the house. Parker and Tawon each saw two of the gunmen, but couldn't see their faces. Parker suffered multiple gunshot wounds and underwent surgery, which left a bullet too near his heart to be removed.

Scott Marlan of the Shreveport Fire Department was driving eastbound on East 70th Street near Thornhill when he heard loud popping noises and saw a tan SUV parked at the intersection of Thornhill and East 71st Street. Both passenger doors were open and two men were standing outside, firing weapons at a residence. Marlan turned his vehicle around and watched the men leave the scene in the SUV. He called 911 and reported the shooting and the SUV's tag number while following the vehicle onto I-49 southbound where Shreveport Police Officer John Stratton, driving a marked police vehicle, took over the pursuit. Marlan continued to follow the chase.

As Stratton pursued the SUV, it began traveling at a high rate of speed and exited I-49 onto the westbound Highway 3132 ramp. Stratton's dashboard-mounted video camera documented the high-speed chase and the videotape was shown to the jury. As Stratton followed the SUV on the ramp, a rear passenger of the SUV leaned out and pointed a long weapon at Stratton's vehicle. Stratton heard a loud pop, sounding like gunfire hitting his windshield. Stratton never stopped his pursuit, and never lost sight of the SUV, within which he clearly saw three men. The SUV twice swerved out of control on the wet roads, traveled against traffic on Saint Vincent Avenue, then abruptly stopped in a ditch on East 78th Street. One man jumped out and pointed a long gun at Stratton. The men fled on foot.

A K-9 unit tracked the men to a house on West 79th Street. The officers conducted a knock and talk, encountering William Hall, Derrick Grant, and this defendant, Ira Jerome Ross. The men, who were sweaty, nervous, and reluctant to talk, were advised of their Miranda rights. None of the three lived there, but the house belonged to Grant's girlfriend, Lasonia *614 Haley. A protective sweep revealed muddy clothes and three pairs of muddy tennis shoes.

Ross had borrowed the rental SUV from Haley, with the understanding that he would go to the store. She next saw the SUV abandoned off West 78th Street. She consented to a search of her residence, which revealed an assault rifle and empty magazine clip. Magazines containing live cartridges were found in the console of the SUV. Haley testified that she had no prior knowledge of the existence of any of the weaponry.

Another assault rifle was recovered from under another house down the street, and a live cartridge and a purple bandana were found in the backyard. Ross was taken into custody and transported to LSU Hospital, where he was checked out and taken to jail. Det. Rod Johnson conducted an interview with him in his office, where Ross was again advised of his Miranda rights. Ross gave a DNA sample but made no statement at that time.

Det. Shawn Parker contacted Ross to discuss an earlier shooting that had injured him. After administering Miranda, Det. Parker asked the defendant if he knew who shot him on September 26. Ross said he did not know his name but he knew his face. Det. Parker asked the defendant if the person who shot him on September 26 was the same person who was shot on October 5. Ross answered affirmatively, saying he was afraid when he saw the man who had shot him and he "did what he had to do."

At Prim's house were found spent shell casings from the shoulder of the road, bullet holes in the home, and slugs recovered from inside the house.

The location of the shell casings indicated that two different caliber firearms were fired from the street towards the front porch area. Many of the fired casings and a bullet projectile were positively matched to the two assault rifles found under houses on West 79th Street.[1] However, DNA analyses of the rifles were inconclusive.

The defendant was charged by bill of information with attempted second degree murder, a violation of La. R.S. 14:30.1 and 14:27. After his conviction, a PSI was ordered and reviewed by the trial court before sentencing. A timely motion to reconsider sentence was denied. Our review of this case centers on four issues.

Sufficiency

The defendant contends that:

• the evidence presented at trial was insufficient to support the defendant's conviction;
• the evidence was insufficient regarding his identity as a perpetrator;
• the only evidence linking the defendant to the crime was his presence when the other co-defendants were arrested;
• no witnesses saw him during the commission of the crime;
• no witnesses could identify the defendant at trial;
• the victim could not identify the defendant as the individual who shot him;
• reasonable doubt exists as to his guilt; and
*615 • his conviction should be reversed and the sentence vacated.

The state notes that:

• appellate courts do not assess credibility or reweigh evidence;
• the defendant left a trail of evidence that brought police to his doorstep within a short period of time following the shooting; and
• the evidence is sufficient to support this conviction.

Our law on sufficiency is well settled.[2]

La. R.S. 14:24 regarding principals provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

Relative to these facts, second degree murder is a homicide committed with the specific intent to kill or to inflict great bodily harm, or when the offender is engaged in the "perpetration or attempted perpetration of . . . [a] drive-by shooting . . ., even though he has no intent to kill or inflict great bodily harm." La. R.S. 14:30.1.

A "drive-by shooting" means the discharge of a firearm from a motor vehicle on a public street or highway with the intent either to kill, cause harm to, or frighten another person. La. R.S. 14:37.1; State v. Gipson, 28,113 (La.App.2d Cir.6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402.

*616 Our jurisprudence requires that attempted second degree murd

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State v. Ross, 965 So. 2d 610, 2007 WL 2433378 (La. Ct. App. 2007).

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