State v. Thomas

981 So. 2d 850, 2008 WL 1886650
Louisiana Court of Appeal·Decided April 30, 2008·No. 43,100-KA·Published·Cited by 7 cases

Opinion

981 So.2d 850 (2008)

STATE of Louisiana, Appellee
v.
Demetrius THOMAS, Appellant.

No. 43,100-KA.

Court of Appeal of Louisiana, Second Circuit.

April 30, 2008.

*852 Carey J. Ellis, III, for Appellant.

Demetrius Thomas, Pro Se.

Paul J. Carmouche, District Attorney, Tommy J. Johnson, John F. McWilliams, Jr., Laura O. Wingate Fulco, Assistant District Attorneys, for Appellee.

Before WILLIAMS, DREW and LOLLEY, JJ.

WILLIAMS, J.

The defendant, Demetrius Thomas, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. After a bench trial, the defendant was found guilty as charged. The trial court imposed the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant now appeals. For the following reasons, we affirm the defendant's conviction and sentence.

FACTS

On April 12, 2005, Shreveport city workers were mowing the grass alongside Alto Vista Street when they discovered the dead body of Shelby Smith. The workers called the Shreveport Police Department; the responding officers discovered that Smith had suffered four gunshot wounds to the right side of his head. Police contacted Smith's family and determined that Smith had last been seen alive at a Shreveport *853 Circle K store in the early morning hours of Sunday, April 10, 2005. Surveillance video from that store showed that Smith was with a man identified at that time only as "Little D." Smith's vehicle, a Chevrolet Trailblazer with distinctive green paint and chrome wheels, was also missing.

After local television news showed photos of "Little D" and the victim's truck, viewers identified the defendant as the person called "Little D." The defendant voluntarily spoke with the police and admitted that he had been with Smith in the early morning of April 10, 2005. However, defendant said that he had not seen Smith since he dropped defendant off at home on Devaughn Street in Shreveport that Sunday morning. Police later received information from defendant's neighbors that they had seen the victim's green vehicle in defendant's yard during the day on Sunday.

On April 15, 2005, police received consent from the defendant's girlfriend, Johnee Barnes, to search the Devaughn Street residence where they both lived. Once inside, the officers detected a strong smell of blood in a back storage room. The officers left the house, secured the scene and obtained a search warrant. The subsequent search of the premises revealed numerous bloodstains on the floor and walls of the storage room and a quantity of broken auto safety glass scattered outside. Inside the residence, police found the title to the victim's vehicle.

Police questioned defendant again that same day. After being advised of his Miranda rights, defendant chose to speak with the officers. During the tape-recorded interview, defendant admitted to police that he had shot and killed Smith, dumped his body on the side of the road and burned his truck. However, defendant claimed that he had shot Smith in self-defense. According to the defendant, Smith had previously agreed to sell his custom truck to defendant for $4,000.00, but when the two arrived at defendant's house, Smith attempted to rob him of the money. Defendant said that Smith pointed a pistol at him and pulled the trigger, but when the gun misfired they wrestled for control of the weapon and defendant shot Smith. The defendant explained that he dumped the victim's body and burned the truck because he was on parole for another offense and was afraid of the consequences of his actions. Defendant directed police to the wooded area where the victim's truck was located.

Subsequently, defendant was charged with second degree murder. As previously stated, the defendant opted for a bench trial and was found guilty as charged. The trial court denied the defendant's motion for post-verdict judgment of acquittal and sentenced him to serve life imprisonment at hard labor without benefits. This appeal followed.

DISCUSSION

Through an attorney-filed and a pro se assignment of error, defendant contends the state failed to present sufficient evidence to support the conviction of second degree murder. Defendant argues that the state failed to prove beyond a reasonable doubt that he did not act in self-defense.

A reviewing court first considers the issue of sufficiency of the evidence for the reason that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could *854 not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard, now legislatively embodied in LSA-C.Cr.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, XXXX-XXXX (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a factfinder's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, XXXX-XXXX (La.11/14/03), 858 So.2d 422.

According to LSA-R.S. 14:30.1(A)(1), second degree murder "is the killing of a human being: (1) when the offender has the specific intent to kill or to inflict great bodily injury." According to LSA-R.S. 14:10(1), "specific intent" is defined as "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." Further, the specific intent to kill may be inferred by the trier of fact from the circumstances, such as discharging a firearm at close range to the victim. State v. Wilson, 40,767 (La.App. 2d Cir.8/23/06), 938 So.2d 1111, writ denied, 2006-2323 (La.4/20/07), 954 So.2d 159, cert. denied, ___ U.S. ___, 128 S.Ct. 275, 169 L.Ed.2d 201 (2007).

When self-defense is raised as an issue, the state has the burden of proving beyond a reasonable doubt that the homicide was not perpetrated in self-defense. State v. Garner, 39,731 (La.App. 2d Cir.9/8/05), 913 So.2d 874, writ denied, 2005-2567 (La.5/26/06), 930 So.2d 19. Self-defense is justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. LSA-R.S. 14:20(B)(1); State v. Dooley, 38,763 (La. App. 2d Cir.9/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.2/18/05), 896 So.2d 30; State v. Cotton, 25,940 (La.App. 2d Cir.3/30/94), 634 So.2d 937. Factors to consider in determining whether a defendant had a re

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State v. Thomas, 981 So. 2d 850, 2008 WL 1886650 (La. Ct. App. 2008).

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