State v. Stewart

193 So. 3d 401, 15 La.App. 5 Cir. 721, 2016 WL 2941734, 2016 La. App. LEXIS 997
CourtLouisiana Court of Appeal
DecidedMay 19, 2016
DocketNo. 15-KA-721
StatusPublished
Cited by3 cases

This text of 193 So. 3d 401 (State v. Stewart) 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. Stewart, 193 So. 3d 401, 15 La.App. 5 Cir. 721, 2016 WL 2941734, 2016 La. App. LEXIS 997 (La. Ct. App. 2016).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

1¡^Defendant, Desmon Stewart, appeals his conviction and sentence for aggravated battery in violation of La. R.S. 14:34, claiming that his ten-year sentence is unconstitutionally excessive. For the following reasons, we affirm.

STATEMENT OF THE CASE

On January-13, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant with the attempted second degree murder of Dillon Morgan in violation of La. R.S. 14:27:30.1 (count one). On March 16, 2015, the Jefferson Parish District Attorney filed an amended bill of information additionally charging defendant with , the attempted armed robbery of Dillon Morgan “while armed with a dangerous weapon, to wit: a handgun” in violation of La. R.S. 14:27:64 (count-two).

On May 15, 2015, a twelve-person jury found defendant guilty of the responsive verdict of aggravated battery in violation of La. R.S. 14:34 as to count Lone and not guilty as to count two. On May 27, 2015, the trial court sentenced defendant to ten years at hard labor.1 Defendant subsequently filed a motion to reconsider sentence, which the trial court denied. This timely appeal follows.2

FACTUAL BACKGROUND

On the night of October 29, 2013, Deputy Dylan Pabst, a patrol officer with the Jefferson Parish Sheriffs Office, arrived at 2001 Oak Creek Road to investigate reports of a shooting. Upon his arrival, other officers rendered aid to the victim lying in the street adjacent to an apartment complex while he patrolled the area searching for the fleeing suspect to no avail.. Deputy Pabst accompanied the victim in. the ambulance to the hospital. While in the ambulance, he questioned the victim, who could not. speak, about the facts surrounding the shooting utilizing .a “thumbs up” and “thumbs down” communication system. Deputy Pabst testified that he asked the.victim if he knew the person who shot him, to which the victim responded affirmatively with, a “thumbs up” signal. Deputy Pabst gave the victim a pen and paper, on which the victim wrote [404]*404defendant’s name, identifying him as the shooter. He further asked if the shooting was the result of a “drug rip”, to which the victim responded affirmatively with a “thumbs up” signal. Deputy Pabst testified that he suspected the crime to be drug-related because the apartment complex where the shooting occurred is not a high crime area.

The victim was transported to University Hospital where he underwent multiple surgeries, including a jaw reconstruction surgery.3 Detective Goff, a homicide detective, was assigned as lead detective to investigate the shooting Rbecause the officers anticipated that the victim would die and that the homicide division would be involved. She went to the hospital to interview the victim, who was on a ventilator and still could not speak. At the hospital, the victim identified defendant in a photographic lineup as the individual who shot him.

From the scene, detectives located a 9mm casing, a baseball cap (later identified as the victim’s), and a tooth or “tooth-like material” (identified as the victim’s). Officers- conducted a search, pursuant to a warrant, during which officers recovered a handgun located in a shoebox in defendant’s bedroom closet. Jene Rausch, accepted as an expert in firearms and tool-mark identification, testified that the 9mm casing found at the scene matched the gun found in defendant’s bedroom closet. The gun found in defendant’s closet was in the cocked position with the magazine loaded, which she testified was not a safe way to store the weapon because the slightest amount of pressure may have triggered the weapon to fire.

Defendant and the victim provided conflicting testimony concerning the events leading up to the shooting. The victim, Dillon Morgan, testified at trial that he and defendant attended high school together and that defendant contacted him through Facebook to purchase marijuana. The two met at a location of defendant’s choice, in the parking lot of the apartment complex on Oak Creek Di’ive where defendant’s grandmother resided, and decided that “the deal” should take place in the victim’s car. The victim testified that he showed defendant the marijuana and then asked defendant to show him the money. He testified that defendant then pointed a gun in his face. At that moment, the victim noticed a vehicle approaching with headlights. He paused for a moment and then decided to exit his vehicle and run away. He testified that he ran to the other vehicle and hit the other vehicle’s window while screaming, “he has a gun,” and attempted to escape. |fiHowever, the victim testified that he only took a few steps before he was shot and dropped to the ground.4

Defendant testified at trial that he needed money to have his neck tattoo removed in order to join the United States Army. He contacted the victim, who he knew from high school as someone who sold drugs, to purchase marijuana to resell for a profit. Defendant testified that he met the victim in the parking lot of the apartment complex to conduct a marijuana transaction. He testified that he gave the victim the money and, as the two men sat in the car, the victim received a call on his cell phone and provided an unknown third-party their location. He stated that the [405]*405unknown third-party drove up and the victim handed the money to the third-party. The victim then handed defendant a backpack containing marijuana but defendant testified that the'backpack did 'not contain the agreed upon amount of marijuana. He testified that the two began to argue and then tussle over the backpack. Defendant testified that, during the struggle, the gun began to fall out of his pants. At some point, defendant tried to push the gun away but the gun accidentally fired and dropped to the ground. Defendant testified that he was scared and that his immediate reaction was to pick up the gun and run through the apartment complex to his grandmother’s home.5

IfiThe 9-1-1 calls were played for the jury at trial and reflect that a black male, with a white t-shirt, was chasing a white male with a baseball cap, from the apartment complex parking lot to the street when a gunshot was heard. The 9-1-1 calls further reflect that the black male fled on foot through the apartment complex and that the victim was lying in the street unable to speak.

DISCUSSION

On appeal, defendant challenges his ten-year sentence, arguing that his sen-fence is unconstitutionally excessive. Defendant claims that the trial judge failed to consider La. C.Cr.P. art. 894.1 and erred in imposing the maximum sentence without consideration of all mitigating factors, including the fact that defendant' is a first-time offender with no prior criminal history.

On May 27, 2015, the trial judge sentenced defendant to ten years imprisonment at hard labor. At the sentencing hearing, defendant testified that the shooting was accidental and that he never intended to shoot the victim. Defendant’s grandmother, Ms. Cassandra Johnson, testified that defendant is a good boy, who was in college and held a job at the time of the shooting. She testified that the shooting was accidental and that defendant is a loving person who would never intentionally kill another person. She testified that defendant was in the last stage of the process to become a member of the armed forces with the United States Army at the time of the shooting.

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Cite This Page — Counsel Stack

Bluebook (online)
193 So. 3d 401, 15 La.App. 5 Cir. 721, 2016 WL 2941734, 2016 La. App. LEXIS 997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stewart-lactapp-2016.