State v. Shaw

672 So. 2d 237, 1996 WL 148506
CourtLouisiana Court of Appeal
DecidedApril 3, 1996
Docket27,892-KA, 27,893-KA
StatusPublished
Cited by14 cases

This text of 672 So. 2d 237 (State v. Shaw) 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. Shaw, 672 So. 2d 237, 1996 WL 148506 (La. Ct. App. 1996).

Opinion

672 So.2d 237 (1996)

STATE of Louisiana, Appellee,
v.
Timothy L. SHAW, Appellant.
STATE of Louisiana, Appellee,
v.
Charlie Dewayne SUMLER, Appellant.

Nos. 27,892-KA, 27,893-KA.

Court of Appeal of Louisiana, Second Circuit.

April 3, 1996.

*240 Peter Edwards, Robert Noel, II, Monroe, for Appellant, Timothy L. Shaw.

Michael Courteau, Gilmer Hingle, Monroe, for Appellant, Charlie Dewayne Sumler.

Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Madeleine M. Slaughter, Asst. District Attorney, for Appellee.

Before MARVIN, WILLIAMS and STEWART, JJ.

WILLIAMS, Judge.

The defendants, Timothy Lavelle Shaw and Charlie Dewayne Sumler, were jointly indicted by a Ouachita Parish grand jury for second degree murder, a violation of LSA-R.S. 14:30.1. After a joint trial, a jury found the defendants guilty as charged. Both defendants unsuccessfully filed motions for post verdict judgments of acquittal and for new trials. The trial court sentenced each defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendants appeal their convictions. For the reasons assigned below, we affirm.

FACTS

In the early morning hours of August 21, 1993, the victim, Patrick Johnson, was shot in the head after winning a dice game against the defendants and several other individuals. Timothy Lavelle Shaw, Charlie Dewayne Sumler, and Levelle Tolliver were jointly indicted for the second degree murder of the victim.[1]

The evidence presented at trial shows that a group of young men, including the defendants in this case, were gathered on the front porch of a house on Third Street in Monroe. The group also included Tolliver, Michael Cooper, Latara Williams and Willie Edwards. The victim pulled up in a car and asked the members of the group if they wanted to participate in a dice game. Several members of the group agreed, and after they purchased the dice, they began playing on the porch. At some point, Tolliver asked the victim to shoot dice for $1.00, but the victim refused because they were shooting for $10.00. The victim won everyone's money. The victim then walked to his car which was parked in the driveway.

Several witnesses gave conflicting testimony as to what happened next. However, the testimony and recorded statements introduced into evidence indicate that Sumler and Shaw came down from the porch and stood in front of the victim. Both men had weapons. Sumler pointed a .380 automatic weapon at the victim. Both Sumler and Shaw were "clicking" the triggers of their guns, but the guns would not fire. According to witnesses, Shaw was perturbed that his gun was malfunctioning. Tolliver, who had remained on the porch with Edwards and *241 Williams, stated, "Let me get a piece of this." He then went behind the victim's car, told the victim to give up the money, and shot the victim in the back of the head. After the shooting, everyone fled the scene. Kenneth Franklin, an individual who had come upon the scene immediately prior to the shooting, took money from the wounded victim. The victim was transported to the hospital where he died several hours later.

Dr. Steven Hayne performed an autopsy on the victim, and testified that the victim died of a single gunshot wound to the right temple of the head. He opined that the wound was made by a projectile from a larger caliber handgun, but he could not determine the size or caliber. The wound was not a contact wound which usually indicates that the gun being held was at least one foot away from the victim when it was fired.

DISCUSSION

Shaw-Assignment of Error No. 1:

Sumler-Assignment of Error Nos. 6, 7 and 8:

(Sufficiency of the Evidence)

Both defendants contend the evidence is insufficient to support their convictions because the state failed to establish that they entered into an agreement with Tolliver to commit the armed robbery of the victim. These contentions lack merit.

When the assignments include the sufficiency of the evidence to convict and other errors, the reviewing court is directed to review the sufficiency assignment first. State v. Hearold, 603 So.2d 731 (La.1992); State v. Huff, 27,212 (La.App. 2d Cir. 8/23/95), 660 So.2d 529. The proper standard of appellate review for a sufficiency of evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cotton, 25,940 (La.App. 2d Cir. 03/30/94), 634 So.2d 937.

The Jackson standard applies to both direct and circumstantial evidence. Direct evidence consists of testimony from a witness who actually saw or heard an occurrence, proof of the existence of which is at issue. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Lilly, 468 So.2d 1154 (La.1985); State v. Turner, 591 So.2d 391 (La.App. 2d Cir.1991), writ denied, 597 So.2d 1027 (1992). When the direct evidence is viewed in the light most favorable to the prosecution, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Stokes, 26,003 (La.App. 2d Cir. 6/22/94), 639 So.2d 395. For circumstantial evidence to convict, it must exclude every reasonable hypotheses of innocence. LSA-R.S. 15:438.

LSA-R.S. 14:30.1(A) defines the crime of second degree murder. That statute provides in pertinent part that second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of ... armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. LSA-R.S. 14:64. Those persons concerned in the commission of the offense, whether present or absent and whether they have aided and abetted, counseled or procured another person to commit the prohibited act, are principals in that offense. LSA-R.S. 14:24. Only those persons who knowingly participate in the planning or execution *242 of a crime are principals. State v. Pierre, 93-0893 (La. 02/03/94), 631 So.2d 427, 428.

(A) The Evidence Supporting Shaw's Conviction

Shaw cites State v. Pierre, supra, in support of his argument that there was insufficient evidence to convict him of the crime of second degree murder. In the Pierre case, the supreme court reversed the defendant's conviction of manslaughter. The defendant had been charged as a principal to second degree murder. The state admitted that the defendant did not kill the victim, and there was no evidence that he counseled or procured his co-defendants to kill the victim.

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Cite This Page — Counsel Stack

Bluebook (online)
672 So. 2d 237, 1996 WL 148506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shaw-lactapp-1996.