State v. Washington

550 So. 2d 698, 1989 La. App. LEXIS 1530, 1989 WL 100417
Louisiana Court of Appeal·Decided August 23, 1989·No. No. 20701-KA·Published·Cited by 2 cases

Opinion

HALL, Chief Judge.

Defendant, David Washington, Jr., age 39, was charged by bill of information with two counts of attempted second degree murder in violation of LSA-R.S. 14:27 and 14:30.1. He was tried by jury, found guilty as charged on both counts, and sentenced to 50 years at hard labor on each count, the sentences to be served consecutively. Defendant appealed contending that the verdicts were contrary to the law and evidence, and the sentences imposed were excessive in violation of La. Const. Art. 1, § 20 (1974) and LSA-C.Cr.P. Art. 894.1. Finding his contentions meritless, we affirm.

I.

On the afternoon of November 16, 1987, Curtis James and Johnny Varner were in apartment no. 5 of the Parkview Apartments located in Monroe. Two black males knocked and asked for Kary Pleas. James told them that Pleas did not live there but lived upstairs. The two men left.

A short time later, defendant, also known as Sam Crockett, came to the apartment and engaged in small talk. A minute or so later, the two males returned. One of them asked for Kary Pleas again. James told him that Pleas was not there. At that point, according to James and Var-ner, defendant told the men to come in and take care of them. The taller man reached for his gun. Varner pushed James through the front door between the two men and they started running. James slipped on a wet patch and fell in the breezeway. While Varner was running he was shot in the back. One of the men stood over James and shot him in the upper portion of his leg. Defendant and the two others fled.

Both victims were taken to the hospital. The physician did not operate on Varner and left the bullet in his back. James’ injuries were extensive, requiring three operations and hospitalization for several weeks.

The victims subsequently identified defendant, and he was arrested. The two other assailants were never identified or captured.

II.

Defendant initially argues that the evidence introduced at trial is insufficient to sustain his convictions. He contends that the evidence fails to prove that he had the specific intent to kill, either directly or as a principal. He states that there was no evidence that he was armed or that he acted in a manner which would tend to establish his specific intent to kill the victims.

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. Morris, 521 So.2d 1214 (La.App. 2d Cir. 1988), writ denied 530 So.2d 80 (La.1988). Jackson is the objective standard for testing the-overall evidence, direct and circumstantial, for reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984); State v, Sutton, 436 So.2d 471 (La.1983); State v. Morris, supra. LSA-R.S. 15:438, which as to circumstantial evidence requires exclusion of every reasonable hypothesis of innocence in order to convict, provides an evidentiary guideline, emphasizes the need for careful observation of the Jackson standard, and provides a helpful methodology for its implementation in cases Which hinge on the evaluation of circumstantial evidence. State v. Morris, supra; State v. Eason, 460 So.2d 1139 (La.App. 2d Cir.1984), writ denied 463 So.2d 1317 (La.1985).

LSA-R.S. 14:24 provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act [700]*700constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

LSA-R.S. 14:27 provides in part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended....

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

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....

The gravamen of the crime of attempted murder, whether first or second degree, is the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Jarman, 445 So.2d 1184 (La.1984); State v. Huizar, 414 So.2d 741 (La.1982); State v. Odom, 511 So.2d 1214 (La.App. 2d Cir.1987), writ denied 515 So.2d 446 (La.1987). Specific intent is 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. LSA-R.S. 14:10(1). Even though intent is a question of fact, it need not be proven as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. LSA-R.S. 15:445; State v. Boyer, 406 So.2d 143 (La.1981); State v. Odom, supra.

Defendant was not convicted on purely circumstantial evidence. There was direct evidence by the victims that defendant ordered the two men to take care of them. Defendant’s former girlfriend also testified that defendant told her he had it done.

James testified that on the date of the shooting two black males knocked on his apartment door and asked for Kary Pleas. James told them that Pleas lived upstairs. The men left. Defendant subsequently came to his apartment. Defendant engaged in casual conversation with the victims. Within a few minutes the two men returned to James’ apartment and asked for Pleas again. James again told them that Pleas did not live there. Defendant told the victims that they were dealing with someone else. Defendant stated that if the victims were going to deal with anyone that they would'be dealing with him. At that point, defendant told the two men to come on in and take care of James and Varner. One of the men pulled a gun and the other one went behind the breezeway. James tried to push his way out of the apartment but could not get through. Var-ner then pushed James through the men and out of the apartment. James ran straight ahead but slipped and fell in some water. James was not certain but he thought that he heard defendant state, “Shoot them....” The taller man stood over James and shot him in the leg. James heard two shots fired at Varner. James underwent three operations. He was in the hospital for approximately five weeks.

Johnny Varner, who was visiting James on the date of the incident, testified. He stated that initially two black males came to James’ apartment and asked for Kary Pleas. They then left.

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State v. Washington, 550 So. 2d 698, 1989 La. App. LEXIS 1530, 1989 WL 100417 (La. Ct. App. 1989).

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