State v. Vance

544 So. 2d 41, 1989 WL 48903
CourtLouisiana Court of Appeal
DecidedMay 10, 1989
Docket20454-KA
StatusPublished
Cited by3 cases

This text of 544 So. 2d 41 (State v. Vance) 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. Vance, 544 So. 2d 41, 1989 WL 48903 (La. Ct. App. 1989).

Opinion

544 So.2d 41 (1989)

STATE of Louisiana, Appellee,
v.
Hury VANCE, Appellant.

No. 20454-KA.

Court of Appeal of Louisiana, Second Circuit.

May 10, 1989.
Rehearing Denied June 1, 1989.

*42 Indigent Defender Office, by Allan R. Harris, Richard E. Hiller, Shreveport, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Howard Fish, Tommy Johnson, Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.

Before HALL, C.J., and SEXTON and LINDSAY, JJ.

HALL, Chief Judge.

Defendant, Hury Vance, was charged by indictment with second degree murder with a firearm in violation of LSA-14:30.1 and 14:95.2. Defendant was tried and found guilty as charged. He was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence on the murder charge and to two years at hard labor without benefit of parole, probation or suspension of sentence for committing the murder with a firearm, the sentences running consecutively. Defendant appealed raising seven assignments of error. He only briefs and argues three assignments; the others are considered abandoned. For the reasons which follow, we affirm defendant's convictions and sentences.

On the evening of January 13, 1987, defendant and the victim, Tyrone Fredieu, were working the graveyard shift as custodians at L.S.U. Medical Center in Shreveport. Defendant was a supervisor, and he gave the victim and other workers their assignments for the night. Shortly thereafter defendant and the victim were waiting for an elevator near the admitting office on the first floor. After the elevator door opened and prior to their entering the elevator they began to fight and scuffle on the floor. While the victim was still on the floor defendant stood up. As the victim stood up defendant took his gun out of his pocket and shot the victim four times. The victim was rushed to the "code room" where he died.

Assignment of Error No. 1

Through this assignment of error defendant contends that the trial court erred in not granting a new trial since there was insufficient evidence upon which to convict him. Defendant contends that the state failed to show that he had the specific intent to kill the victim. He argues that he acted in self-defense which justifies the homicide.

The constitutional standard of review for the sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Nealy, 450 So.2d 634 (La.1984); State v. Lewis, 535 So.2d 943 (La.App. 2d Cir.1988). When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Savoy, 418 So.2d 547 (La. 1982).

LSA-R.S. 14:30.1 provides in part:

*43 A. Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or

. . . .

LSA-R.S. 14:95.2 provides in part:

A.... [A]ny person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder ... shall upon conviction serve a term of two years imprisonment for the first conviction.... LSA-R.S. 14:20 provides in part:

A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or

We find that there was sufficient evidence, viewed in the light most favorable to the prosecution, to prove the elements of second degree murder with a firearm beyond a reasonable doubt. Furthermore, there was sufficient evidence for a rational fact finder to conclude beyond a reasonable doubt that defendant did not reasonably believe he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary to save himself from that danger.

Bonnie Tillman, a custodian at L.S.U. Medical Center, testified. He stated that on January 13, 1987 between 11:30 and 12:00 p.m. he was on an elevator with a trash cart. When the elevator doors opened on the first floor he saw both defendant and the victim standing and smiling at each other. As defendant started to get on the elevator he bumped into Tillman's trash cart. The victim was standing somewhat behind defendant but he did not push defendant into the cart. Tillman told defendant to wait a minute so that he could move the cart. At that point the victim mumbled something which Tillman did not understand. Defendant said, "Enough." Defendant swung around and hit the victim causing the victim to fall backwards. Defendant stayed on top of the victim and continued hitting him. After defendant got off the victim he stepped back, reached into his pants, and retrieved his pistol. Defendant fired two shots into the victim's chest area. Tillman then allowed the elevator doors to close, and he went to the ground floor.

Tillman further testified that the victim did not impress him with his fighting ability. Defendant had no reason to shoot the victim because he had already beaten him. Tillman was two to three feet away from them, and he did not see anything in either person's hands. The victim was not standing completely erect when defendant started shooting him. During the shooting the victim and defendant were not holding on to each other.

Micheal Clark, a custodian at L.S.U. Medical Center, testified. He said that defendant and the victim did not get along very well. Clark brought the victim to work on the night of the shooting. Clark's assignment for that night was to strip, seal, and wax the main lobby. He testified that generally the housekeepers will use a putty knife to scrape the gum off the floor. Defendant told the victim to sweep, mop, and buff the burn unit, SER Room, the main hallways, and waiting area in front of admitting. Clark was in the janitorial closet in the medical emergency room when he heard the shots. Defendant was with Clark and Ron Fuller at the janitorial closet about three or four minutes prior to the shooting, and defendant made the statement that he was going to see if the victim had started his assignment. After hearing the initial shots Clark came through the door and stopped. He saw the victim hanging on defendant and looking up at defendant with blood rushing out of his mouth. Defendant "kneed" the victim, hit him with his fists, and finally knocked the victim to the floor.

Sharon Pettis, a custodian at L.S.U. Medical Center on the date of the shooting, testified. She heard gunshots while she was inside of the locker room in the surgical emergency room. She saw the victim at defendant's knees. Defendant was *44 pointing downward with a gun. Pettis did not actually see the gun. The victim stated, "Please, don't shoot me no more." Defendant shot the victim one more time. Pettis made a prior statement to the Shreveport Police Department stating that she saw the gun.

Mary Stickman, a burn technician at L.S. U. Medical Center on the night of the shooting, testified. She was standing at the corner of the emergency room when she heard defendant and the victim arguing.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Marshall
6 So. 3d 1051 (Louisiana Court of Appeal, 2009)
State v. Griffin
618 So. 2d 680 (Louisiana Court of Appeal, 1993)
State v. Vance
551 So. 2d 1317 (Supreme Court of Louisiana, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
544 So. 2d 41, 1989 WL 48903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vance-lactapp-1989.