JUDE G. GRAVOIS, Judge.
Defendant, Kevin P. Holmes, appeals his convictions for second degree murder and attempted second degree murder. On appeal, he argues that the evidence was insufficient to convict him, that the trial court erred in denying his motion for severance, and that his sentence for attempted second degree murder was excessive. For the following reasons, we affirm defendant's convictions and sentences, and remand for correction of the minute entries as described below.
On December 17, 2009, defendant, Kevin P. Holmes, was indicted by a Jefferson Parish grand jury for the second degree murder of Marvin Newman in violation of La. R.S. 14:30.1 (count one), and for the attempted second degree murder of Teri Creagh in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count two). Defendant pled not guilty to these charges at his arraignment on December 21, 2009. A new indictment was filed on July 29, 2010, charging defendant with the same counts as the original indictment. This indictment superseded the prior indictment.
On February 4, 2011, defendant's motion to suppress statement, identification, and evidence was denied. On April 21, 2011, defendant filed a "Motion and Incorporated Memorandum for Severance and/or Separate Trials." On May 27, 2011, defendant's motion for severance was denied. On November 9, 2011, defendant and his co-defendant re-urged the motion for severance. The trial court denied the motion, noting the defendants' objections.
On the night of August 22, 2009, a party was held in the 3000 block of Mt. Kennedy Drive in Jefferson Parish. A 9-1-1 call was made after several gunshots were heard. Deputy Shannon Sims of the Jefferson Parish Sheriff's Office responded to the call within a minute and saw a black male lying on the ground about a block and a half from Rochester and Mt. Kennedy, his clothes covered in blood. Although the victim was still alive, he was not responsive. Deputy Sims did not find a gun in the victim's clothing, in his hand, or in the area around where he fell. EMS arrived and transported the victim to West Jefferson Medical Center. The 20-year-old victim, Marvin Newman, died from multiple gunshot wounds.
Candice Cobena was at Lakeyda's
As Candice and Marvin were arguing, Whop, who was in the middle of the street and parallel to defendant's car, said to Marvin, "Don't your girl got my cousin's name on her." Candice explained that Whop was talking about her, apparently in reference to a tattoo she had. Marvin asked Whop to repeat what he said, and when Whop went to open his mouth, Marvin punched him. Whop fell, holding his jaw, and said, "Get him, Cuz." Candice testified that after Whop said this, defendant exited his car from the driver's side with a gun in his hand, raised the gun, and started shooting. She testified that the shooting started on Mt. Kennedy in the middle of the street on the side of the "G6" and that defendant and Marvin were very close to each other. Candice testified that Marvin turned around and ran down Rochester, a street perpendicular to Mt. Kennedy, and defendant ran down the street behind him. She said that defendant followed Marvin, and "they just kept shooting." According to Candice, defendant
In the early morning hours following the shooting, which she believed might have occurred around 8:30 p.m., Candice identified defendant in a photographic lineup and also provided statements about the incident.
Candice said that Darius Duckett was in the vehicle with defendant when he arrived. She had known Duckett for about one or two years from high school. However, she did not know where Duckett was at the time of the shooting.
Bervin Wright testified that on the night of the shooting, he observed someone wearing a white tank top with a gun. He recalled two guys leaving a car and going down the street. He recalled that someone said, "they're shooting." He was not able to make identifications, however.
Teri Creagh, a visitor from California who was in town for her nephew's graduation, was shot in her left thigh as she and other family members sought cover. She did not see the person who fired the gun. She testified that she heard gunshots being fired and thought they were coming from the driver's side of a vehicle parked behind her car. Creagh testified that she did not know either defendant.
Casings and other ballistic evidence were collected from the scene. A cluster of .380 caliber casings was found. All of the .380 caliber casings were recovered between the street and the house at 3000 Mt. Kennedy Drive. A cluster of .40 caliber casings was also found. Additional .40 caliber casings were recovered down Rochester. A projectile went through a telephone box close to the corner of Mt. Blanc and Rochester and lodged into the equipment. Also, another projectile struck the residence at 3001 Mt. Blanc.
The ballistic evidence on the scene established that two types of guns were involved, a .40 caliber and a .380 caliber. On Mt. Kennedy, five .380 caliber casings and one .40 caliber casing were recovered. A total of six casings were found on Rochester, all .40 caliber casings. The scene suggested that the starting point of the incident was at 3000 Mt. Kennedy, moving down Rochester to Mt. Blanc.
Jene Rauch of the Jefferson Parish Sheriff's Office Crime Lab testified as an expert in firearms examination and toolmark examination. She examined cartridge casings and projectiles from the scene and then examined projectiles collected from the autopsy and compared them. She examined six .380 caliber casings and determined that all were fired
Although only two projectiles were recovered from the victim's body during the autopsy, he sustained five separate gunshot wounds. Dr. Karen Ross, an expert in the field of forensic pathology, performed the autopsy and testified that the victim was alive when he sustained all wounds, as evidenced by the hemorrhage associated with each one. She concluded that of the five gunshot wounds, three of the wounds were consistent with back-to-front wounds, i.e., the victim was shot from behind.
Deputy Abraham Andino of the Jefferson Parish Sheriff's Office also responded to the call on the night of the shooting to investigate the homicide.
Deputy Andino interviewed Candice at the detective bureau. As a result of this interview, defendant was developed as a potential suspect in the shooting. Candice positively identified defendant in a photographic lineup and she also gave a statement. Deputy Andino located defendant and transported him to the detective bureau. After he indicated that he understood his rights, defendant gave a statement. In his initial statement, defendant did not indicate that he was involved in the shooting on Mt. Kennedy. In fact, he indicated that he was not even there.
Knowing that Whop, defendant, and a friend went to West Jefferson Hospital, Deputy Andino was able to pull the security tapes from the hospital.
Duckett believed he may have shot three times, but was not sure. He said he did not really aim the gun at Marvin, but was shooting in his direction. He said when he fired the gun, he was stationary and his head was down. He claimed he shot in self-defense and knew Marvin had a firearm on him because he saw it on the right side of his hip. He said that he had the gun for protection and was not sure of the kind of gun, but believed it was a semi-automatic and was probably "between a nine (9), something close to that." He said the gun was tucked in his pants. He said he shot Marvin to get away from him because he was scared when Marvin came at him. He said he did not intend to kill Marvin, but just wanted to get away from him.
Duckett said he went into the hospital with Whop and Brittany. Whop's jaw was broken in three places. He said he later hid the gun under a garbage can and that someone from the neighborhood took it and would not give it back.
An arrest warrant was later prepared for Duckett, and he was ultimately arrested. Deputy Andino said that Duckett mentioned self-defense in his statement. Deputy Andino testified that prior to Duckett's statement, they had the identity of one shooter, and then after his statement, they had identified two shooters.
Deputy Andino admitted that he took statements from various people and that no one said they saw Duckett fire a gun that night. However, the crime scene suggested that there were two clusters of bullet casings in two separate locations. The .380 caliber casings were in front of the house where the party was and the .40 caliber casings were down Rochester and behind a vehicle. There were also .40 caliber casings that trailed down the street where the victim was located. Candice said she saw defendant running behind the victim on Rochester firing a gun. Deputy
At trial, Duckett testified that he went to the party at 3000 Mt. Kennedy on August 22, 2009 with his cousin, defendant, in a G6. Defendant drove and parked in front of the house. Duckett said he got out of the car, but defendant remained in the car. Duckett testified that he saw Candice and Marvin arguing in the middle of the street between Rochester and Mt. Kennedy. The G6 was parked a few feet from where they were arguing. Duckett admitted that he had previously had "words" with Marvin. He said Marvin and Whop exchanged words and that Whop had said something about a tattoo on Candice for his cousin. He saw Marvin punch Whop, saw defendant get out of his car, and then shots were fired. Duckett testified that he saw defendant shoot. Duckett said he observed Marvin running down Rochester, stumbling. Duckett also said he heard a second set of shots, but did not know who fired them.
Duckett said that after the shooting, he got into the car Whop had arrived in that night.
Duckett testified that he did not speak with the detectives until about seven months after the shooting. He said Deputy Andino brought up the issue of self-defense at the interview. Duckett said that he was told if he said it was self-defense, his cousin would go home and nothing would happen to him. He explained that the detectives wanted him to say his cousin did it. He also said he asked to speak to an attorney several times. He testified that his statement, which said he was the shooter, was not true. He said he lied because he wanted to help his cousin. He testified that he had nothing to do with the shooting.
On cross-examination, Duckett admitted he had signed an affidavit at defendant's attorney's office after he told defendant's attorney that defendant did not fire a gun that night. He testified that it was not true that Marvin bullied him, as he had alleged in his statement. Duckett said everything else in his statement was true, except for when he said he was the shooter.
Defendant argues that the evidence presented was insufficient for his convictions of second degree murder and attempted second degree murder when any rational juror could only conclude that one .380 caliber gun and one shooter caused the gunshot wounds sustained by the two victims. Defendant contends that
Defendant concludes that whoever shot the .380 caliber gun on Mt. Kennedy Drive was responsible for the murder and attempted murder in this case. Defendant acknowledges that two witnesses, Candice and Duckett, testified that defendant shot a gun on Mt. Kennedy Drive. However, defendant explains that Candice's testimony contradicted the physical evidence and Duckett's testimony contradicted his earlier confession and was self-serving. Defendant contends that Duckett alone shot Marvin in self-defense, noting that he confessed and signed an affidavit saying defendant never fired a gun that night. Defendant also suggests that the physical evidence supports the details of Duckett's confession and that there was one person shooting at Marvin. He concludes only an irrational jury would convict two people of this murder and attempted murder.
The State responds that after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes proven beyond a reasonable doubt. The State notes that defendant initially lied in his statement about being present at the scene of the shooting, defendant was identified as a shooter by a witness, and defendant admitted wearing clothing that matched the description of clothing that a witness observed being worn by someone running with a gun in his hand. The State provides that even assuming arguendo that the victims were not hit by the bullets fired by defendant, defendant would still be guilty as a principal under Louisiana law.
The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005) (quotation omitted). Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La. App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. A review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Scott, 11-999 (La.App. 5 Cir. 5/31/12), 97 So.3d 1046, 1051.
The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. The trier of fact shall evaluate the witnesses' credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id. "[T]he Jackson standard does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the fact finder at trial." State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291, 1293 (per curiam).
Defendant was convicted of second degree murder. La. R.S. 14:30.1 provides that second degree murder is the killing of a human being when the offender has specific intent to kill or to inflict great bodily harm. See La. R.S. 14:30.1. Specific criminal 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." La. R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances surrounding the offense and the defendant's conduct. See State v. Graham, 420 So.2d 1126, 1127 (La.1982); State v. Young, 05-702 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 95. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person, as well as the extent and severity of the victim's injuries. State v. Bannister, 11-602 (La.App. 5 Cir. 2/14/12), 88 So.3d 628, 634, writ denied, 12-0628 (La.6/15/12), 90 So.3d 1060. Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Spears, 05-0964 (La.4/4/06), 929 So.2d 1219, 1224.
Defendant was also convicted of attempted second degree murder. La. R.S. 14:27 provides, in pertinent part, the following:
The crime of attempted second degree murder requires proof, beyond a reasonable
Encompassed in proving the element of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Severin, 04-326 (La.App. 5 Cir. 9/28/04), 885 So.2d 609, 615, writ denied, 04-2805 (La.3/11/05), 896 So.2d 64. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.
In the present case, Candice testified that she saw defendant Holmes exit a car, raise a gun, and start shooting at Marvin after Marvin punched Whop and Whop said to "get" him. She also testified that defendant ran down the street behind the victim when he fled and was firing a gun. We find that a rational jury, finding Candice's testimony credible, could have found that defendant acted with specific intent to kill Marvin when, after Whop said to "get" Marvin, defendant fired a gun in his direction and chased him down the street after he fled, continuing to shoot. Defendant's action of aiming a lethal weapon and discharging it in the victim's direction supports a finding by the trier of fact that defendant acted with specific intent to kill. See State v. Gant, 942 So.2d 1099, 1111 (La.App. 5 Cir.2006). Further, the victim sustained five gunshot wounds. Specific intent to kill may also be inferred from the extent and severity of the victim's injuries. See State v. Bannister, 88 So.3d at 634.
Although the surviving victim appears to not have been the target of the shooting, testimony that defendant shot into the crowd is sufficient to establish a specific intent to kill for the attempted second degree murder conviction. In State v. Severin, 885 So.2d at 617, this Court recognized the following:
Id. In Severin, this Court found that the testimony elicited at trial that the defendant fired his gun into a crowd of people was sufficient to satisfy the intent requirement of the statute. Id.
Candice's testimony also supplied evidence as to defendant's identity as one of the perpetrators. Candice testified that she was 100 percent positive that defendant was shooting at Marvin. She also identified defendant in a photographic lineup. She knew defendant prior to the shooting for about one or two months. Positive identification by only one witness is sufficient to support a conviction. State v. Harris, 07-124 (La.App. 5 Cir. 9/25/07), 968 So.2d 187, 193.
Absent internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Caffery,
Candice believed defendant was wearing a white "tank" on the night of the incident. Another witness, Bervin Wright, although not able to make an identification, testified that he saw a person wearing a white tank top with a gun in his hand on the night of the shooting. In his second statement made to the police, defendant admitted that he was wearing a white t-shirt on the night of the shooting.
Defendant left the scene of the shooting and went to the hospital. He then lied about his presence at the scene of the shooting in his initial statement, saying he was not there. He later changed his story and admitted his presence after the deputy received consent for his cell phone records to check his location. A defendant's flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Gant, 942 So.2d at 1111.
Although Duckett testified that he saw defendant shoot Marvin and this could be seen as self-serving testimony, ballistic evidence and testimony presented by the State shows that two separate guns were involved in this case. Further, testimony was presented that more than one set of shots were heard. In defendant's second statement, he stated that he heard a couple of gunshots that sounded like they came from different guns. He believed it could have been "about three guns." The jury could have found beyond a reasonable doubt that based on the evidence presented two shooters were involved.
Deputy Andino believed that Duckett's statement was consistent with the .380 caliber casings found close to the sidewalk on the scene. Defendant argues that only the.380 caliber weapon fired shots that struck the victims in this case. However, no projectile was recovered from the surviving victim's injury.
Further, defendant fails to acknowledge the law of principals. Under La. R.S. 14:24, "[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals." Only those persons who "knowingly participate in planning or execution of a crime" are principals to that crime. State v. King, 06-554 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-0371 (La.5/4/07), 956 So.2d 600. An individual may only be convicted as a principal for those crimes
A person may be convicted of an offense even if he has not personally fired the fatal shot. State v. Page, 08-531 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 449-50, writ denied, 09-2684 (La.6/4/10), 38 So.3d 299. The law of principals states that all persons involved in the commission of a crime are equally culpable. Id.; see also State v. Massey, 11-357 (La.App. 5 Cir. 3/27/12), 91 So.3d 453, 463-64, writ denied, 12-0991 (La.9/21/12), 98 So.3d 332, where this Court noted that whether a defendant actually fires the bullet that strikes and kills a victim is of no consequence and the defendant may be convicted as a principal to the crime.
After viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of second degree murder and attempted second degree murder beyond a reasonable doubt, including that defendant was a shooter in this case. As such, this assignment of error is without merit.
Defendant contends that he was prejudiced by the trial court's denial of his original and re-urged motion to sever. Defendant explains that the basis for the motion to sever was that there was only one gun used in the commission of the murder and attempted murder charged, but two individuals were being charged, leaving the only possible argument that each defendant could present was that the other defendant had the gun and committed the shooting. Defendant argues that the denial of the motion to sever was erroneously based on a clear misrepresentation of the evidence that the State intended to produce at trial. Specifically, defendant contends that at the hearing on the motion to sever, the lead prosecutor told the judge that both separate caliber bullets were recovered from the victim's body, making it clear that the victim was shot by two weapons. Defendant claims the ballistic evidence proved the exact opposite and the State's experts testified that the only bullets recovered from the victim's body were .380 caliber bullets, and that those bullets were fired from the same weapon. Defendant claims that the motion to sever was re-urged during trial, but the trial court failed to rule on it.
Additionally, defendant argues that he was unable to present relevant evidence to the jury regarding his co-defendant's confession, including that Duckett was incarcerated in a different parish on a different charge at the time he gave his confession. Defendant also notes that the jury was never able to learn that an eyewitness provided a description of the lone shooter and that description matched Duckett. Defendant argues that if Duckett had not been a co-defendant there would have been no Confrontation Clause issue and the jury could have learned about this highly exculpatory identification. Defendant further argues that he was forced to defend against a second prosecutorial team — his co-defendant. Defendant argues that assuming arguendo that the antagonistic test was not proved based on the actions of the defendants during the State's case, it was made wholly apparent when Duckett took the stand in order to exculpate himself and point the finger at defendant.
The State responds that defendant did not offer any evidence in support of a severance, but only provided vague and general representations that the defenses presented at trial would be antagonistic. The State contends that these conclusory statements were insufficient to satisfy
Further, the State contends that even if defendant could establish an abuse of discretion relative to the severance ruling, reversal of the conviction would not be warranted given the lack of demonstrable prejudice in this case. The State explains that Duckett's statement to the police did not implicate defendant and defendant had an opportunity to cross-examine Duckett at trial. The State further notes that defendant would have been faced with the same incriminating evidence of his guilt whether tried jointly or alone. The State also contends that defendant's argument that he could not present relevant evidence as to Duckett's confession at a joint trial should not be credited because he fails to acknowledge that he was able to cross-examine Duckett in regard to the statement, and does not show the evidence which he allegedly could not present was admissible and/or particularly favorable.
On April 21, 2011, defendant filed a "Motion and Incorporated Memorandum for Severance and/or Separate Trials." In this motion, defendant argued that he believed his co-defendant would present a defense directly contradictory to his defense, suggesting that they would be antagonistic defenses. Defendant claimed that he would argue Duckett's statement that he was the shooter was truthful, but expected Duckett to claim his statement was false. Further, defendant suggested that he and his co-defendant would have to defend against each other and the State.
Later, on May 27, 2011, defendant's motion for severance was heard and denied. Duckett argued that it was not fair to defend against the State and his co-defendant at the same time. Defendant argued that the evidence did not support the theory that two individuals were firing shots from the same location. Defendant also argued that he would have to blame Duckett and prove the validity of Duckett's statement, and in return Duckett would say his statement, where he confessed, was false. Defendant claimed that this was not speculation and would happen since it was the only defense. The State argued that a severance was not required because its theory was that there were two shooters who had separate weapons involved in this case, noting the two sets of casings involved. The judge decided that trying the defendants together would not prohibit a defense and he agreed with the state that there was not a Bruton or Crawford problem.
On November 9, 2011, the day of trial, defendant and his co-defendant re-urged the motion for severance. Duckett argued that the defenses would be antagonistic and that each defendant would place the blame on the other for the shooting.
Defendant suggests that the inadvertent statement regarding the projectiles recovered from the homicide victim's body caused him to later re-urge his motion to sever during trial, a motion that defendant claims the trial court failed to rule on. However, as argued by the State in its brief, it appears that the context of the reference to a severance during trial by defendant pertained to evidence relating to matching casings from other crime scenes. The request briefly mentioned during trial appears unrelated to the misstatement regarding the projectiles recovered from the homicide victim's body or the basis of the severance offered pre-trial or argued on appeal.
After the defendants' convictions, Duckett filed a motion for a new trial, which included an argument regarding severance. On December 12, 2011, Duckett's motion for a new trial was heard. The court denied the motion for a new trial as to the severance, agreeing with the State that there was no prejudice to Duckett and that the case came down to the degree of culpability. Defendant did not file a motion for new trial.
La.C.Cr.P. art. 704 provides the following:
Whether justice requires a severance must be determined by the facts of each case. State v. Prudholm, 446 So.2d 729, 741 (La.1984); State v. Coe, 09-1012 (La.App. 5 Cir. 5/11/10), 40 So.3d 293, 301, writ denied 10-1245 (La.12/17/10), 51 So.3d 17. A defendant is not entitled to a severance as a matter of right, but the decision is one resting within the sound discretion of the trial court. State v. Coe, supra. A denial of a motion to sever will not be overturned absent a clear abuse of discretion. Id.
A severance is necessary if the defenses of the co-defendants are mutually antagonistic to the extent that one co-defendant attempts to blame the other, causing each defendant to defend against both his co-defendant and the State. State v. Prudholm, 446 So.2d at 741; State v. Coe, 40 So.3d at 301. The defendant bears the burden of proof in a motion to sever. State v. Coe, supra. The mere unsupported allegation that defenses will be antagonistic is not sufficient to require a severance. State v. Prudholm, 446 So.2d at 741; State v. Coe, 40 So.3d at 301. "Justice does not require severance where only the extent of participation of each defendant is at issue." State v. Gaskin, 412 So.2d 1007, 1012-13 (La.1982).
Furthermore, the fact that each defendant has pointed a finger at the other does not make defenses automatically antagonistic.
In State v. Williams, 416 So.2d 914, 916 (La.1982), the Louisiana Supreme Court noted that the policy consideration implicit in La.C.Cr.P. art. 704 situations is the reasonableness of presenting the entire case at one time. The Supreme Court recognized the following in State v. Bradford, 367 So.2d 745, 747 (La.1978):
Id. (internal citations omitted).
In the present case, this Court is reviewing the rulings on pre-trial motions for severance. In reviewing a pre-trial motion for severance, the Louisiana Supreme Court provided the following in State v. Lavigne, 412 So.2d 993, 997 (La. 1982): "It is incumbent upon us to review the validity of the ruling without regard to whether at trial substantial other evidence was introduced or whether his conviction would have been a certainty irrespective of the joint trial."
In the instant case, defendant failed to offer evidence in support of his pre-trial motions for severance. Instead, he only made general representations that the defenses presented at trial would be antagonistic. These conclusory statements alone were insufficient to satisfy his burden regarding the severance, especially when the prior statements by the defendants did not place blame on the other. Defendant's statements did not mention Duckett by name or implicate him in the shooting. Duckett confessed to being a shooter in his statement, without mentioning defendant or implicating him. Further, the State's
Defendant suggests that the court's ruling on the severance is erroneous because it was based on the State's material factual misrepresentation that two different caliber bullets were recovered from the murder victim's body. Although defendant is correct that no projectiles recovered from the victim's body were linked to the .40 caliber weapon, defendant fails to show how justice required a severance when there was other evidence that two separate weapons were used in the shooting. The State's theory of the case was that there were two shooters, and this theory was based on the ballistic evidence recovered from the scene, including two separate types of casings. The judge did not suggest that his ruling was only based on the misrepresentation of the facts. Defendant has failed to demonstrate that justice required a severance or that he was prejudiced by the joint trial.
In State v. Turner, 365 So.2d 1352, 1354 (La.1978), the Louisiana Supreme Court stated, in pertinent part, the following:
In the instant case, defendant failed to demonstrate that co-defendant Duckett would, in fact, testify at a separate trial or that Duckett's testimony would exculpate him. Defendant suggests that there was evidence that he wanted to present regarding Duckett's incarceration and other things, but does not present how this evidence would have been admissible or favorable to him. Defendant suggests that had Duckett not been a co-defendant, there would have been no Confrontation Clause issue and the jury would have been able to learn about highly exculpatory identification evidence that an eyewitness provided a description of the shooter and that description matched Duckett. However, Duckett actually testified at trial and instead implicated defendant as the shooter. Defendant was given the opportunity to cross-examine and confront Duckett at trial when Duckett implicated him. Further, defendant was able to cross-examine Candice, who knew both Duckett and defendant prior to the shooting and who identified defendant as the shooter.
Accordingly, we find that defendant failed to show how justice required a severance or how he was prejudiced by the trial court's denial of the severance, and thus we find that the trial court did not abuse its discretion in denying the motions for severance. This assignment of error is without merit.
Defendant argues that his maximum 50-year sentence for attempted murder is constitutionally excessive and was
The State responds that defendant has failed to demonstrate that the 50-year sentence is constitutionally excessive, noting that the trial judge amply articulated the basis for the 50-year sentence imposed after hearing the evidence presented at trial that one victim was shot as a bystander during the perpetration of another shooting where the victim was killed. The State provides that based on the factors in this case, defendant cannot demonstrate that the trial court abused its broad sentencing discretion. Finally, the State notes that defendant failed to make or file a motion to reconsider sentence on the basis of the consecutive nature of the sentences imposed and is not entitled to review of this issue on appeal.
Defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence for the conviction of second degree murder of Newman. He was also sentenced to 50 years imprisonment at hard labor for the conviction of attempted second degree murder of Ms. Creagh. These sentences were ordered to run consecutively. Prior to imposition of the sentence, the homicide victim's mother provided a victim impact statement. Thereafter, the trial judge expressed that he recalled the case, noting that a fight commenced, and after someone was punched, the defendants decided to fire guns. He said he would have understood if they jumped into the fight, but did not understand why the guns became involved. The judge noted that the evidence showed that more than one gun was used and recognized that the victim was chased after the initial shooting. The judge also considered that another victim was struck with a bullet and that many more people could have been killed because the defendants did not like the way the fight "was going." He expressed his dislike for guns and with indiscriminate firing into a crowd at a party.
After imposition of the sentences, defense counsel said, "We object to the sentence." No specific objections to the sentences were made, and no motion to reconsider the sentences was filed.
The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness. State v. Ragas, 07-3 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 272, writ denied, 07-1440 (La. 1/7/08), 973 So.2d 732, cert. denied, 555 U.S. 834, 129 S.Ct. 55, 172 L.Ed.2d 56 (2008); see also La.C.Cr.P. art. 881.1.
In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Berry, supra. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and therefore, is given broad discretion in sentencing. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7, 16. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Warmack, 973 So.2d at 109. "Sentence review under La. Const. art. 1, § 20 does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is most appropriate in a given case." State v. Williams, 07-1111 (La.12/7/07), 969 So.2d 1251, 1252 (per curiam). The reviewing court must keep in mind that maximum sentences should only be imposed on the most egregious offenders. State v. Caffrey, 15 So.3d at 204.
In the present case, the judge provided adequate justification for imposing the maximum sentence of 50-year imprisonment for the attempted second degree murder conviction. As expressed by the judge, this case involved a fight at a party that turned deadly when the response to a punch was a shooting. More than one gun and shooter was involved, and the risk of harm to bystanders was significant and unfortunately realized by the surviving victim. Evidence was presented that defendant chased down one of the victims after the initial shooting commenced, putting anyone or anything in his path at jeopardy. Evidence of damage to a residence and to a telephone box was presented as well. Defendant had a complete disregard for the life and property of others. Further, despite eyewitness testimony that defendant was a shooter, defendant continued to deny his involvement in the matter.
Also, jurisprudence does not indicate that defendant's maximum 50-year sentence for attempted murder was unwarranted. In State v. Stacker, 02-768 (La. App. 5 Cir. 12/30/02), 836 So.2d 601, writ denied, 03-0411 (La.10/10/03), 855 So.2d 327, the defendant argued that his 50-year sentence for attempted second degree murder was excessive in light of his relatively young age and the fact that he was a first felony offender. This Court found that even though the trial court failed to give reasons for the sentence imposed and although the defendant was a first-time offender, his sentence was not excessive. This Court noted that a firearm was used to shoot a victim at a relatively close range and that the defendant pursued the victim as the victim attempted to flee in an apartment, where the defendant fired two more shots into the apartment with children
In State v. Ross, 42,399 (La.App. 2 Cir. 8/29/07), 965 So.2d 610, the court considered the senselessness, danger, and reprehensible nature of the crime and found that the 50-year sentence for attempted second degree murder was justified and not constitutionally excessive. The court noted that serious physical injuries resulted from a drive-by shooting and considered the defendant's continuing denial of guilt and his lack of remorse.
In State v. Sarpy, 10-700 (La.App. 3 Cir. 12/8/10), 52 So.3d 1032, writ denied, 11-0046 (La.6/3/11), 63 So.3d 1006, the court found that the defendant's maximum 50-year sentence for attempted second degree murder and the imposition of a consecutive life sentence for second degree murder was not excessive. The court considered the fact that the defendant committed the crime in conjunction with second degree murder and the fact that the defendant committed the attempted second degree murder while on probation.
As such, we find that the trial court did not abuse its sentencing discretion in this case. Additionally, this Court has held that when the consecutive nature of a sentence is not specifically raised in the trial court, the issue is not included in the bare constitutional excessiveness review and the defendant is precluded from raising the issue on appeal. State v. Hunter, 11-787 (La.App. 5 Cir. 4/24/12), 94 So.3d 797, 800. In the instant case, defendant failed to specifically object to the consecutive nature of his sentence. As such, defendant is not entitled to review of the consecutive nature of his sentences on appeal. Id. at 5, 94 So.3d at 800. This assignment of error is without merit.
The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990).
The commitment reflects that defendant's life sentence would be served at hard labor, but does not reflect that the 50-year consecutive sentence for count two was imposed at hard labor. According to the transcript, the trial court imposed both of defendant's sentences at hard labor. If a discrepancy exists between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). As such, we remand the matter for correction of the commitment for accuracy purposes, and further direct the district court to make the entries in the commitment reflecting this change and direct the Clerk of Court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced, and to the Department of Corrections' Legal Department. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam). Further, the trial judge failed to restrict benefits for the sentence defendant received for count two. For accuracy purposes, since we are remanding the matter for correction of the commitment as described above, we also order the district court to correct the minute entry as to the restriction of benefits.
For the reasons expressed above, we find no merit to the assignments of error