State v. Smart

254 So. 3d 28
CourtLouisiana Court of Appeal
DecidedAugust 15, 2018
DocketNo. 52,208-KA
StatusPublished

This text of 254 So. 3d 28 (State v. Smart) 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. Smart, 254 So. 3d 28 (La. Ct. App. 2018).

Opinion

BROWN, C.J.

Defendant, Darrius Smart, was indicted by a grand jury for the second degree murder of Kirby Johnson ("Johnson"). Defendant waived a jury trial and, after a bench trial, was convicted of the lesser responsive verdict of manslaughter. The trial court sentenced Defendant to 40 years at hard labor with credit for time served. On appeal, defense counsel urged insufficiency of the evidence, and Defendant in his pro se brief argued that his sentence is excessive. We affirm the defendant's conviction and sentence.

FACTS

On September 23, 2016, a group of young men were on the playground near the housing project located on Johnson and Jacobs Streets in Mansfield, Louisiana. Defendant, age 19, was one of the young men. In the early evening hours, in the area where the group of young men were gathered, Johnson, age 31, left his female friend Fredreka Green, age 24, to go get a cigarette from the candy lady. When Johnson made it to the mailbox, Ray Scott, age 14, one of these young men, alerted the others to Johnson's presence at the mailbox. These young men had apparently been looking for Johnson to confront *31him about his shooting a BB gun at them the previous night. When Johnson realized that he was being pursued by the group of young men, he fled from them, heading to his apartment. Defendant raised a gun and shot at Johnson as he was fleeing. Johnson was found unresponsive, lying on a sidewalk near the intersection of Johnson and Jacobs Streets. He was airlifted to University Health in Shreveport, where he died at 3:33 a.m. from a single gunshot wound through the head as confirmed by the testimony of the forensic pathologist, James G. Traylor, Jr., M.D, who performed Johnson's autopsy. Lieutenant Billy Locke of the Mansfield Police Department, also a deputy coroner, testified that there was no blood trail, and that neither a gun nor shell casings were found.

On September 26, 2016, an arrest warrant was issued for Defendant, who turned himself in and has been incarcerated since. As noted above, Defendant was charged by indictment with second degree murder. He waived a jury trial and, after a bench trial on October 16, 2017, he was found guilty of the lesser but responsive crime of manslaughter. On December 7, 2017, Defendant was sentenced to 40 years at hard labor, which is the maximum penalty for manslaughter. No motion for reconsideration of sentence was filed. This appeal ensued.

DISCUSSION

Sufficiency of the Evidence

In this case we must determine whether the evidence presented at trial, when viewed in the light most favorable to the state, reasonably permits a finding of manslaughter. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Howard , 15-1404 (La. 05/03/17), 226 So.3d 419.

Appellate counsel contends that the state failed to prove that Defendant had a gun or that he shot Johnson and that the State's eyewitnesses gave suspicious and conflicting testimonies. Defense counsel points out that Jarius Franklin's testimony was that there was more than one shot, but all of the other witnesses testified that there was only one shot. Franklin, who was 16 years old at the time of the shooting, testified that he heard a shot, then he turned his head and saw Defendant fire the gun. Defendant also notes the discrepancy between Franklin's testimony that Defendant alone fired the gun and Fredreka Green's adamant testimony that Defendant was surrounded by other boys who were urging him to fire the gun. Appellate counsel further asserts that Franklin was coerced into testifying that he saw Defendant shoot Johnson when the investigating officer threatened to treat Franklin as a suspect instead of a witness.

In reviewing the sufficiency of the evidence to support a conviction, the appellate court is controlled by the standard established in Jackson v. Virginia, supra , which is whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Hearold , 603 So.2d 731 (La. 1992). The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens , 30,903 (La. App. 2d Cir. 09/25/98), 719 So.2d 610, writ denied, 98-2723 (La. 02/05/99), 737 So.2d 747. This standard, now legislatively embodied in La. C.C.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 02/22/06), 922 So.2d 517.

*32The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 01/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed. 2d 62 (2000) ; State v. Woodard , 47,286 (La. App. 2d Cir. 10/03/12), 107 So.3d 70, writ denied , 12-2371 (La. 04/26/13), 112 So.3d 837.

At the time of the offense, La. R.S. 14:30.1 provided, in relevant part, that "second degree murder is the killing of a human being ...[w]hen the offender has a specific intent to kill or to inflict great bodily harm." La. R.S.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
State v. Black
669 So. 2d 667 (Louisiana Court of Appeal, 1996)
State v. Taylor
954 So. 2d 804 (Louisiana Court of Appeal, 2007)
State v. Dorthey
623 So. 2d 1276 (Supreme Court of Louisiana, 1993)
State v. Casey
775 So. 2d 1022 (Supreme Court of Louisiana, 2000)
State v. Bonanno
384 So. 2d 355 (Supreme Court of Louisiana, 1980)
State v. Pigford
922 So. 2d 517 (Supreme Court of Louisiana, 2006)
State v. Cooley
257 So. 2d 400 (Supreme Court of Louisiana, 1972)
State v. Owens
719 So. 2d 610 (Louisiana Court of Appeal, 1998)
State v. Livingston
899 So. 2d 733 (Louisiana Court of Appeal, 2005)
State v. Allen
942 So. 2d 1244 (Louisiana Court of Appeal, 2006)
State v. Hearold
603 So. 2d 731 (Supreme Court of Louisiana, 1992)
State v. Lobato
603 So. 2d 739 (Supreme Court of Louisiana, 1992)
State v. Wiltcher
956 So. 2d 769 (Louisiana Court of Appeal, 2007)
State v. Burd
921 So. 2d 219 (Louisiana Court of Appeal, 2006)
State v. White
862 So. 2d 1123 (Louisiana Court of Appeal, 2003)
State of Louisiana v. Eric Dale Mickelson
149 So. 3d 178 (Supreme Court of Louisiana, 2014)
State of Louisiana v. Gary D. Howard
226 So. 3d 419 (Supreme Court of Louisiana, 2017)
State v. Woodard
107 So. 3d 70 (Louisiana Court of Appeal, 2012)
State v. Lloyd
161 So. 3d 879 (Louisiana Court of Appeal, 2015)

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Bluebook (online)
254 So. 3d 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smart-lactapp-2018.