State v. Sholes

782 So. 2d 691, 2001 WL 286423
CourtLouisiana Court of Appeal
DecidedMarch 7, 2001
Docket99-KA-2414
StatusPublished
Cited by6 cases

This text of 782 So. 2d 691 (State v. Sholes) 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. Sholes, 782 So. 2d 691, 2001 WL 286423 (La. Ct. App. 2001).

Opinion

782 So.2d 691 (2001)

STATE of Louisiana
v.
Kevin F. SHOLES.

No. 99-KA-2414.

Court of Appeal of Louisiana, Fourth Circuit.

March 7, 2001.

*692 Hon. Harry F. Connick, District Attorney, Orleans Parish, Juliet Clark, Assistant District Attorney, Orleans Parish, New Orleans, LA, Counsel for Plaintiff/Appellee.

Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, Counsel for Defendant/Appellant.

*693 Court composed of Judge ARMSTRONG, Judge JONES and Judge LOVE.

ARMSTRONG, Judge.

STATEMENT OF CASE

On October 23, 1997, the defendant, Kevin F. Sholes, was indicted for the second degree murder of Walter McKay, in violation of La. R.S. 14:30.1. The defendant pled not guilty at his arraignment on October 28, 1997. The defendant filed suppression and discovery motions on November 19, 1997. After a motion hearing on March 18, 1998, the trial court denied defendant's motions to suppress evidence and identification. The defendant was found guilty as charged after a jury trial on November 12, 1998. The defendant filed a motion for new trial on December 1, 1998. The trial court denied the motion on the same day. The defendant waived delays. The trial court sentenced the defendant to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. The defendant's motion to reconsider sentence was denied. The trial court granted defendant's motion for appeal and set a return date of February 1, 1999.

On appeal defense counsel raises one assignment of error. Additionally, the defendant has filed a pro se brief in which he asserts three assignments of error.

STATEMENT OF FACT

At approximately 10:30 p.m. on September 3, 1997, Warren McKay was sitting outside his house on Laussat Place with his friend, Tyrone Jones. While he and Jones were talking, the defendant approached them and asked Warren where was his brother, Walter McKay. Warren told the defendant that Walter was inside the house. The defendant then went inside the house. A few minutes later, Warren heard a gunshot. He ran inside. The defendant told Warren that Walter had shot himself. The defendant then pushed Warren to the side and left the house. Warren heard gasping coming from the bedroom. He walked into the bedroom and saw his brother lying on the floor, bleeding. The witness turned over the mattress on the bed and found his brother's.38 caliber revolver. He took the gun and ran outside. Warren told Tyrone that they needed to get his brother to the hospital. He then ran after the defendant. While running, he borrowed a neighbor's phone and called the police. The witness, realizing he could not find the defendant, went home and put the gun away. Warren then stayed with the victim until the police arrived. The witness told the officers that the defendant shot his brother. He acknowledged that his brother was a drug dealer. He stated that the victim had several thousand dollars in the ceiling above the bedroom. However, that money was missing after the shooting. The next day, Warren found a .45 casing while cleaning the house. He turned it over to the police. The witness identified the defendant at trial and in a photographic lineup.

Tyrone Jones testified that at approximately 10:00 p.m., he picked up Warren McKay from his house and went for a ride. They came back about twenty minutes later. When they returned to Warren's house on Laussat Place, they sat on his car and talked. While they were sitting on the car, the defendant walked up and asked if they knew where the victim was at that time. Jones and Warren told the defendant that the victim was inside the house. The defendant then went inside the house. Shortly thereafter, Jones heard a gunshot. Warren jumped off the car and ran inside. The defendant came out of the house and said that the victim had been shot. Jones then went to call the *694 police. The witness noted that the defendant had his hands in his pockets when the defendant left the house. Jones identified the defendant at trial and in a photographic lineup. He acknowledged that he did not see the shooting.

Gerald Gillard, the victim's uncle, stated he was sleeping at the time of the shooting. He was awakened by the gunshot. As Gillard approached the bedroom, he observed the defendant leaving the house. The defendant had his hand in his pockets. The defendant did not say anything but made a face and then left the house. The witness identified the defendant at trial and in a photographic lineup. He also acknowledged that he did not see the shooting.

Dr. Paul McGarry, a forensic pathologist with the Orleans Parish Coroner's office, performed an autopsy on the victim. Dr. McGarry testified that the victim died from a single gunshot wound to the chest. The bullet entered the chest and passed through the left lung and pulmonary aorta, causing massive internal bleeding. He removed the bullet from deep tissue in the right upper back. Dr. McGarry stated that the wound was not consistent with a theory of suicide or a self-inflicted injury. Chemical tests revealed the presence of cocaine in the victim's body.

Officer Ricky Jackson responded to a call at 3057 Laussat Place at approximately 10:20 p.m. on September 3, 1997. When he arrived on the scene, he observed a black male lying on the floor in a bedroom. The subject had a gunshot wound to the chest and was bleeding profusely. The officer then notified an emergency medical unit. Officer Jackson secured the two witnesses in the house, Warren McKay and Mr. Gillard, until the homicide detectives arrived.

Det. Calvin Brazley, the lead homicide investigator, arrived on the scene shortly thereafter. When he arrived on the scene, he observed that the residence was a single-family dwelling. He went into the bedroom and noted that, in addition to the bed, there was a dresser, a chiffirobe and a television in the room. The victim was lying on the floor, on the right side of the bed. Emergency medical technicians were treating the victim. There was a large puddle of blood, with footprints in it, near the victim. Several drawers were missing from the dresser. A spoon was on top of the dresser. Small portions of crack cocaine were found in a couple of the dresser drawers. A sheet of paper with names and dollar amounts was found in the kitchen. A .45 caliber casing and two hundred twenty dollars were found on the scene. The officer obtained information concerning the defendant as a possible suspect. Det. Brazley obtained an arrest warrant for the defendant on September 4, 1997. The officer conducted photographic lineups with Warren McKay, Gerald Gillard and Tyrone Jones. All three men positively identified the defendant as the perpetrator. The witnesses also gave the officers statements concerning the shooting. Det. Brazley noted that no weapons were found on the scene. The officer learned that the victim had been involved in drug trafficking.

The parties stipulated at trial that if Officer Timmy Seuzeneux had testified at trial, he would have stated that he tested the .45 casing for fingerprints and found none.

A review of the record reveals no errors patent.

COUNSEL'S ASSIGNMENT OF ERROR NUMBER 1 AND DEFENDANT'S PRO SE ASSIGNMENT OF ERROR NUMBER 1

In these assignments, the defendant contends that the State failed to produce *695 sufficient evidence to prove that he was the person who shot and killed the victim. He argues that the circumstantial evidence is insufficient to meet the State's burden.

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Related

State v. Brown
56 So. 3d 1095 (Louisiana Court of Appeal, 2011)
Sholes v. Cain
370 F. App'x 531 (Fifth Circuit, 2010)
State v. Wix
838 So. 2d 41 (Louisiana Court of Appeal, 2003)
State v. Dangerfield
816 So. 2d 885 (Louisiana Court of Appeal, 2002)
State v. Bunley
805 So. 2d 292 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
782 So. 2d 691, 2001 WL 286423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sholes-lactapp-2001.