State v. Washington

706 So. 2d 203, 1998 La. App. LEXIS 61
CourtLouisiana Court of Appeal
DecidedJanuary 23, 1998
DocketNo. 30043-KA
StatusPublished
Cited by7 cases

This text of 706 So. 2d 203 (State v. Washington) 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. Washington, 706 So. 2d 203, 1998 La. App. LEXIS 61 (La. Ct. App. 1998).

Opinions

liGASKINS, Judge.

The defendant, Lemond Washington, was originally indicted for second degree murder. After a jury trial, he was convicted of manslaughter, a violation of La. R.S. 14:31, and sentenced to serve thirty (30) years imprisonment at hard labor. The defendant appeals. For the reasons set forth below, we reverse the defendant’s conviction and remand for further proceedings.

FACTS

On the evening of February 3, 1995, the defendant went to a skating rink in Bastrop, Louisiana, with several friends. At the skating rink, they encountered Brian Peters and his friends. Following an argument, Mr. Peters and his friends were thrown out of the skating rink. The defendant and his friends left the skating rink shortly thereafter. As the defendant left the building, Mr. Peters approached him, and words were exchanged. One. of the defendant’s friends, Fred Burrell, gave the defendant a handgun, and the defendant shot Brian Peters once in the chest. The defendant fled the premises with Christopher Sharkey, but he turned himself into the police later that night. The police recovered the gun from Mr. Sharkey. Brian Peters died of his gunshot wound that night.

Curtis Stephenson, a Bastrop police officer, interviewed the defendant in the early morning hours on February 4,1995. After a free and voluntary hearing outside the presence of the jury, the court ruled that the jury would be allowed to hear the defendant’s recorded statement. During his interview with the police, the defendant admitted being at the skating rink, having a handgun in his possession, and firing the gun. However, the defendant stated that he did not think anyone had been hit by the bullet. In the recorded statement, the defendant said that right before he-fired the gun, Mr. Peters [206]*206declared that he was going to shoot the defendant. The defendant stated that Mr. Peters then reached inside his coat Rwhere Mr. Peters kept a gun, but the defendant admitted that he did not actually see a weapon.

Fred Burrell, a friend of the defendant, testified that he brought a chrome .380 handgun to the skating rink for protection and hid the gun beside a building next to the skating rink. Mr. Burrell testified that he retrieved the gun and brought it to the defendant because Mr. Peters had a gun in the defendant’s face. When shown the gun which the police recovered from Mr. Sharkey, Mr. Bur-rell stated that it was not the same gun which he had given to the defendant; however, a criminalist with the North Louisiana Crime Lab testified that the bullet recovered from Mr. Peters’ body was fired from that gun. Mr. Burrell’s testimony about the shooting was inconsistent. He admitted at trial he had been smoking marijuana on the night of the shooting and he did not recall the events of the night very well.

The trial testimony is replete with discrepancies on virtually all of the events leading up to and involving the shooting. There was apparently some sort of an argument between Brian Peters and the defendant or one of the defendant’s friends inside the skating rink which caused the boys to be ejected from the skating rink. However, the identity of the participants in this altercation varies from witness to witness.

There are also discrepancies in the testimony as to what happened when the defendant left the skating rink and was approached by Brian Peters. All of the witnesses to the shooting testified that when Mr. Peters left the skating rink, he and his friends walked across the street and were standing near a liquor store. Several witnesses testified that after the defendant emerged from the skating rink, this group ran back to the skating rink parking lot. Some of Mr. Peters’ friends were yelling to him, “Shoot that nigger,” “Kill that nigger,” or “Shoot that bitch.” Gerald Moore, one of Mr. Peters’ friends, denied that anyone with Mr. Peters hyelled anything while crossing the street from the liquor store to the skating rink. Some witnesses testified that Mr. Peters and his friends chased, caught and surrounded the defendant, but this was also denied by Gerald Moore.

Three witnesses testified that when Brian Peters approached the defendant outside the skating rink, Mr. Peters swung at the defendant, while two others testified that he actually hit the defendant with his fists. There was also testimony that during this encounter, Mr. Peters threw a bottle which actually hit Derrick Morgan.

There is conflicting testimony as to whether Brian Peters was armed that evening, specifically at the time he was shot. Fred Burrell claimed that Mr. Peters had a sawed-off shotgun, but when interviewed the day after the incident, Mr. Burrell stated it was a .22 pistol. Mr. Burrell claimed that Mr. Peters gave his gun to Gerald Moore; however, when Mr. Peters saw that the defendant had a gun, Mr. Peters snatched his gun back from Mr. Moore. Chris Sharkey testified that he saw a gun in Mr. Peters’ hand, but later he stated that at the moment Mr. Peters was shot, he could only see Mr. Peters’ left hand and there was no gun in that hand.

Derrick Morgan testified that when Mr. Peters crossed the street from the liquor store to the skating rink, he saw a sawed-off shotgun in Mr. Peters’ possession. Mr. Morgan further stated that the gun had black tape around the handle and was about 18 to 20 inches long. Mr. Morgan admitted that he did not see the actual shooting. Eddie Lee Bryant testified that Mr. Peters had a shotgun that evening, with the barrel hanging out of the right sleeve of Mr. Peters’ jacket. Mr. Bryant stated that the gun was approximately two feet long with black tape wrapped around its handle. Mr. Bryant further testified that right before Mr. Peters was shot, Mr. Moore was holding Mr. Peters’ jacket with the gun in it; when Mr. Burrell handed the defendant a gun, Mr. Peters reached over and ^grabbed his jacket from Mr. Moore and pointed it toward the defendant; at this moment, the defendant shot Mr. Peters. Mr. Peters dropped the jacket when he was shot; Mr. Moore picked up the jacket and ran from the skating rink parking lot. [207]*207Although he.did not see a weapon in Mr. Peters’ possession, James Green also testified that after a shot-was fired, Mr. Moore picked up a blue and gold jacket and ran away from the scene with it. Wayne Lee and Gerald Moore both testified that Mr. Peters did not have any type of weapon that night, specifically not at the time when he was shot, and that Mr. Moore was not holding a weapon for Mr. Peters.

There was also conflicting testimony as to whether the defendant could, have gotten away from Brian Peters. Chris Sharkey, James Green, and Eddie Lee Bryant testified that they did not believe defendant could have escaped from Mr. Peters and his friends when the defendant fired the gun. Gerald Moore, on the other hand, testified that the altercation between the defendant and Mr. Peters had been broken up and that he and Mr. Peters were walking away from the defendant when the defendant came up behind them, called to Mr. Peters and shot him.

Officer Curtis Stephenson testified that no gun was found on Brian Peters and the only gun recovered was" the gun believed to have been used by the defendant in the shooting. After Derrick Morgan described the sawed-off shotgun Mr. Peters was alleged to have in his possession on the night he died, the defense asked that a subpoena be issued into the record for the supposed weapon. The subpoena was for a weapon in the possession of the Bastrop Police Department in connection with an investigation on another case.

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State v. Brooks
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State v. Scott
720 So. 2d 415 (Louisiana Court of Appeal, 1998)
State v. Washington
706 So. 2d 203 (Louisiana Court of Appeal, 1998)

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Bluebook (online)
706 So. 2d 203, 1998 La. App. LEXIS 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-washington-lactapp-1998.