State v. Thompson

665 So. 2d 643, 1995 WL 713747
Louisiana Court of Appeal·Decided December 6, 1995·No. 27512-KA·Published·Cited by 16 cases

Opinion

665 So.2d 643 (1995)

STATE of Louisiana, Appellee,
v.
Robert THOMPSON, Appellant.

No. 27512-KA.

Court of Appeal of Louisiana, Second Circuit.

December 6, 1995.

*644 John M. Lawrence, Indigent Defender Office, for Appellant.

Richard Ieyoub, Attorney General, Paul Carmouche, District Attorney, Hugo A. Holland, Asst. District Attorney, for Appellee.

Before WILLIAMS and PRICE, JJ., and CLARK, J. Pro Tem.

CLARK, Judge Pro Tem.

Defendant, Robert Thompson, was convicted in the First Judicial District Court, Caddo Parish, of second degree murder. Because Louisiana does not recognize the defense of diminished capacity and because the mandatory life sentence for second degree murder has been repeatedly upheld, we affirm defendant's conviction and sentence.

FACTS

Defendant Robert Thompson was charged by bill of indictment with second degree murder in violation of LSA-R.S. 14:30.1. Following a bench trial, the trial court found defendant guilty as charged. The trial court denied defendant's post-verdict motion for acquittal and motion in arrest of judgment. Defendant appeals his conviction for second degree murder and the resulting mandatory sentence of life imprisonment at hard labor.

On November 14, 1993, the defendant told Peggy Miles and Billy Frank Smith he intended to kill Elizabeth Feaster. On the morning of November 15, 1995, Ms. Feaster's daughter, LaTonya Toliver, returned home from an overnight visit and discovered her mother had spent the night with a neighbor, Shirley Walker. As LaTonya entered the Walker apartment, the defendant forced his way in, walked upstairs to the bedroom where Ms. Feaster was sleeping, stabbed her repeatedly, and then ran from the apartment. As he was leaving, the defendant threatened Shirley Walker with the knife and told Kevin Myles that he had not stabbed the baby. Ms. Feaster died a few hours later at LSU Medical Center in Shreveport.

LaTonya Toliver, Kevin Myles, Shirley Walker and Toccara Walker were eyewitnesses to the murder and they identified the defendant from a photographic line-up. Rodney Smith also witnessed the murder but was unable to identify the defendant from the line-up. Thelma Jackson, the defendant's sister, testified that the defendant called her from jail and instructed her to tell anyone who asked that he was at her house on the morning of November 15, 1993. Ms. Jackson testified she did not know whether the defendant was in her home on the morning of November 15, 1993.

Dr. George McCormick, the Caddo Parish Coroner, testified that Ms. Feaster died from stab wounds in the right upper chest that penetrated her right lung, diaphragm, liver, and small intestine and from a stab wound to her neck that penetrated her thyroid gland. Based on the fact that the wounds were in vital areas, Dr. McCormick testified that it appeared the defendant's intent was to kill the victim. Furthermore, the absence of "defense wounds" on Ms. Feaster's hands indicated she either did not see the attack or was asleep or semiconscious when it occurred.

Approximately three weeks before the murder, the defendant repeatedly threatened to kill Ms. Feaster and feign insanity to avoid punishment. The defendant repeatedly professed love for the victim and became enraged when she refused to associate with him. Kevin Myles, Roseanne Smith, Shirley *645 Walker, Peggy Myles, LaTonya Toliver and Billy Frank Smith testified they heard the defendant threaten to kill Elizabeth Feaster. The defendant also told Roseanne Smith and Peggy Miles that he planned to feign insanity to avoid punishment for the murder.

Dr. Edward Leatherman, a psychiatrist, testified he had examined the defendant four times since 1988. After the initial examination in 1988, Dr. Leatherman could not determine if the defendant was competent to stand trial on unrelated charges. On Dr. Leatherman's recommendation, the defendant underwent evaluation at Feliciana Hospital. After his release, Dr. Leatherman determined that the defendant was competent to stand trial.

Prior to trial on the current murder charge, the defense moved for a sanity commission. At the completion of the examinations and hearings, Dr. Leatherman determined the defendant was competent to stand trial. Although he appeared to suffer low intelligence and organic brain dysfunction, a disease which causes faulty memory, due to a March 1982 gunshot wound to the head, Dr. Leatherman opined the defendant knew right from wrong. Dr. Leatherman also opined he believed the defendant was a malingerer who exaggerated his symptoms.

Dr. James Phillips, a psychiatrist, also had examined the defendant four times since 1988. After the first examination, Dr. Phillips concurred with Dr. Leatherman that the defendant should be institutionalized for further evaluation. After his hospitalization, Dr. Phillips concluded that although the defendant was borderline in his intellectual functioning, he was smart enough to strive diligently to look sick and to cop out on being a responsible person, feigning psychiatric illness. Dr. Phillips agreed with Dr. Leatherman's conclusion that the defendant could distinguish right from wrong.

After testing the defendant and evaluating his medical records, Dr. Allen Michael Johnson, a psychologist, concluded that the defendant suffered from a poor, irregular memory and organic brain syndrome, but displayed no sign of schizophrenia or psychosis. Dr. Johnson concluded that the defendant had poor impulse control due to alcohol abuse and the gunshot wound; however, he believed the defendant, at the time of his examination, knew the difference between right and wrong. Johnson would not comment on whether the defendant knew right from wrong at the time of the murder.

Dr. Mark Vigen testified that he agreed with Dr. Johnson's conclusions and stated that at the time of the interviews and tests the defendant knew right from wrong. Dr. Vigen was unable to offer an opinion as to whether he knew right from wrong at the time of the murder.

Dr. Kenneth Ritter, a psychiatrist called by the defense, agreed with Drs. Leatherman and Phillips that the defendant was competent to stand trial and knew the difference between right and wrong. Dr. Ritter testified the defendant had undergone a personality change as the result of the gunshot wound and was irritable, demanding, and intolerant to frustration. Dr. Ritter also stated the defendant suffered from faulty judgment and poor short term memory.

At trial and in the post verdict motions, defense counsel argued that the defendant's diminished intelligence, poor memory, and psychological problems prevented him from forming the specific intent required to convict someone of second degree murder. The trial court rejected this theory, found defendant guilty and denied post verdict motions on that ground.

LAW

The defendant assigned as error the trial court's denial of his motion to suppress and the state's use of other crimes evidence during the trial. Thompson did not brief these errors and expressly abandoned them on appeal. Assignments of error which are neither briefed nor argued are considered abandoned. State v. Schwartz, 354 So.2d 1332 (La.1978); URCA Rule 2-12.4; State v. Kotwitz, 549 So.2d 351 (La.App. 2d Cir.1989), writ denied, 558 So.2d 1123 (La.1990).

In the trial court, the defendant filed a motion for post-verdict judgment of acquittal arguing the evidence, viewed in the light most favorable to the state, did not reasonably permit a verdict of second degree murder. *646 LSA-C.Cr.P. Art. 821. The tr

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