BYRNES, Judge.
Derrick Bowman appeals his conviction for manslaughter and his sentence of thirty-three years at hard labor. We affirm.
On August 29, 1993 the defendant Derrick Bowman, Terrance Simon, Keenan Ward, and Sylvester Brown went to the home of Kesha Carmouche at 1722 Sixth Street. While Derrick Bowman went to her door and knocked, the victim Carnel Preston and Rashan Jones arrived. Preston asked Bowman for whom he was looking. When no one answered the door, Bowman and the other three left. Bowman was driving the vehicle, and Terrance Simon was sitting in the front-seat passenger side. At the corner, in response to a request from Terrance Simon, Bowman turned the car around. Bowman stopped the car by Preston's car. Terrance Simon said something and then began shooting. Preston was struck by two bullets. One of the bullets entered his upper back, travelled through his lung, and lodged in his heart. When officers arrived at the scene, they found four nine millimeter casings near the victim's body and bullet holes in Preston's car.
Rashan Jones and Keenan Ward testified that no fight or verbal altercation occurred between Bowman and Preston or between Terrance Simon and Preston. However, in his post-arrest statement, which was read to the jury, Bowman stated that Preston and Terrance Simon were "fussing." According to Bowman's statement, after he drove off, Terrance Simon pulled a gun from under his shirt and told him to turn back. Fearful that Terrance Simon would shoot him, Bowman complied. Terrance Simon and Preston again began "fussing." When Preston ran to his car as if he were going to obtain a gun, Terrance Simon began shooting.
Keenan Ward testified that he did not see Terrance Simon with a gun and that no one knew he had one. Keenan Ward indicated that he could not remember if Bowman had slowed or stopped the car prior to the shooting but admitted that in his statement to the police, he stated that the vehicle was stopped. In that same statement, Keenan Ward told the police that, after the shooting stopped, Bowman asked Terrance Simon what was wrong with him. Ward testified that there was no conversation between Bowman and Terrance Simon except for Simon's instruction to Bowman to turn the vehicle around.
The defendant Derrick Bowman and his codefendant, Terrance Simon, were indicted for second degree murder, a violation of La. R.S. 14:30.1. On motion of defendant Bowman, his trial was severed from that of Terrance Simon.
A review of the record for errors patent reveals none.
Initially the defendant contends that the trial court erred when it allowed the prosecutor during closing argument to make a direct reference to the defendant's failure to testify.
The trial court is required to declare a mistrial when the prosecutor directly or indirectly refers to the defendant's failure to testify. However, a direct reference mandates a mistrial whereas an indirect reference permits the court to inquire into the remark's intended effect on the jury. State v. Johnson, 541 So.2d 818 (La.1989).
In State v. Fullilove, 389 So.2d 1282, 1283 (La.1980), the prosecutor stated:
The Louisiana Supreme Court held that the prosecution's argument included a direct reference to the defendant's failure to testify. Thus, even though the reference may have been only for the purpose of enumerating the defendant's constitutional rights, a mistrial was warranted.
In State v. Reed [and William Riley], 483 So.2d 1275 (La.App. 4 Cir.1986), William Riley argued that the prosecutor made a direct reference to his failure to testify. This court reviewed the following statements in the prosecutor's closing argument:
This court held that the reference was direct and that the trial court erred in failing to declare a mistrial.
In the present case, during rebuttal argument, the prosecutor stated:
At this point, the defense counsel made an objection which was overruled by the trial court. The prosecutor continued with her argument as follows:
In the present case the assistant district attorney referred to defendants in general in stating: ... "we talked about the right that every defendant has that he doesn't have to take the stand in his own defense." The prosecutor also referred to the victim's lack of rights, including the fact that the victim "Carnel Preston can't take the stand."
If there is an indirect reference to the defendant's failure to take the stand, the court determines the remark's intended effect on the jury. State v. Bourque, 622 So.2d 198 (La.1993). In the present case, in his argument the prosecutor was focusing on the lack of the victim's rights, and the prosecutor's comments were not intended to focus the jury's attention on the defendant's failure to testify.
In State v. Michel, 422 So.2d 1115, 1120-1121 (La.1982), during rebuttal the prosecutor, "after referring to defense counsel's statement indicating that he (defense counsel) knew that defendant was not guilty, stated, `If he knows ... he should have taken the witness stand.'" The Louisiana Supreme Court noted:
In State v. Davis, 471 So.2d 310 (La.App. 4 Cir.1985), this court found that the error was indirect and harmless in view of the overwhelming evidence of the defendant's guilt. See also State v. Lamark, 584 So.2d 686 (La.App. 1 Cir.1991), writ denied 586 So.2d 566 (La.1991); State v. Moser, supra.
In the present case, any remark was indirect, and the majority of the panel is not thoroughly convinced that the jury was influenced by the remarks or that they contributed to the verdict. Any error was harmless.
The defendant also alleges that the trial court erred in allowing the prosecutor to engage in an inflammatory closing argument which included the following comments:
The trial court prosecutor's closing remarks will not be considered reversible error unless the reviewing court is convinced that the statements were so inflammatory or prejudicial that they influenced or contributed to the guilty verdict. State v. DiLosa, 529 So.2d 14 (La.App. 5 Cir.1988), writ denied 538 So.2d 1010 (La.1989); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, writs denied 94-0475 (La.4/4/94), 637 So.2d 450, & 94-1361 (La.11/4/94), 644 So.2d 1055.
In the present case any error was harmless as the majority of the panel is not convinced that the prosecutor's statements were so prejudicial that they influenced or contributed to the guilty verdict.
The defendant also argues that the evidence was not sufficient to prove that the defendant knew a shooting would occur, and thus the State failed to carry its burden of proof to support a conviction for manslaughter.
The standard for an appellate review of the sufficiency of evidence to support a defendant's conviction was set forth in State v. Heck, 560 So.2d 611, 614-615 (La. App. 4 Cir.1990), writ denied 566 So.2d 395 (La.1990):
La.R.S. 14:24 defines "principals" as: "All 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...." See State v. Brooks, 505 So.2d 714 (La.1987), certiorari denied, Brooks v. Louisiana, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987); State v. Watson, 529 So.2d 94 (La. App. 4 Cir.1988), writ denied 535 So.2d 740 (1989). However, to support a defendant's conviction as a principal, the State must show that the defendant had the requisite mental state for the crime. Brooks supra; State v. Spotville, 583 So.2d 602 (La.App. 4 Cir.1991), writ denied 585 So.2d 577 (La.1991).
The defendant was convicted of violating La.R.S. 14:31, manslaughter,
The term "drive-by shooting" as used in the first and second degree murder statutes is defined as "the discharge of a firearm from a motor vehicle on a public street or highway with the intent either to kill, cause harm to,
In State v. Pierre, 93-0893 (La. 2/3/94), 631 So.2d 427 (La.1994), the Louisiana Supreme Court reversed the defendant's conviction. The defendant had been tried for second degree murder, as a specific intent crime, but the jury returned a responsive verdict of manslaughter. The victim, a thirteen-year old boy, had been beaten to death and there was also evidence that he had been raped. At trial, the State conceded that the defendant had not personally struck any of the blows on the defendant. Instead, the State argued that the defendant had been a principal to the crime. The evidence consisted of inculpatory statements made by the defendant and co-perpetrators which established that the defendant was one of the group generally present. None of the evidence placed the defendant inside the abandoned house where the victim was raped. One of the codefendant's statements indicated that the defendant was merely seated in the van while the victim was beaten to death. In reversing the conviction, the Supreme Court noted that the State was required to prove the defendant's intent to kill or inflict bodily harm on the victim because the defendant had been charged under La.R.S. 14:30.1(1). The Supreme Court noted that the State introduced "no direct or circumstantial evidence that the defendant counseled or procured the others to kill [the victim] or that he participated in the actual murder." Pierre, 631 So.2d at 429. The Supreme Court also noted that "[m]ere presence at the scene is not enough to `concern' an individual in the crime," citing State v. Schwander, 345 So.2d 1173 (La.1977). Id. Finally, the Court stated:
In State v. Smith, 26,661 (La.App. 2 Cir. 3/1/95), 651 So.2d 890, writ denied 95-0918 (La. 9/15/95), 660 So.2d 458, a murder prosecution arose from a drive-by shooting. However, at the time of the crime, "drive-by shooting" was not an underlying felony in La.R.S. 14:30.1.
In other cases, the driver of the "getaway" car has been found to be a principal to the felony committed by another. In State v. Bellamy, 599 So.2d 326 (La.App. 2 Cir.1992), writ denied, 605 So.2d 1089 (La.1992), the defendant made a statement wherein he admitted to being in the company of the robbers for several hours before the offense, was present at the offense, fled the scene with the robbers, but protested his innocence by denying that he knew that the other men were going to commit a robbery. The appellate court on review found that the jury could justifiably reject the defendant's protestation that he was unaware that a robbery was going to be committed.
Similarly, in State v. Joseph, 483 So.2d 1109, 1110 (La.App. 4 Cir.1986), this court noted that it was "well-established that the driver of the get-away car is a principal to the crime of armed robbery," citing State v. Antoine, 444 So.2d 334 (La.App. 1 Cir.1983). In Antoine, a single gunman entered a store, forced the victim outside, and took her jewelry. The victim observed the robber getting into a car driven by the defendant. The appellate court found the evidence sufficient to convict the defendant of armed robbery.
In the present case, the defendant turned the car around and stopped it during the shooting. In his statement, the defendant attempted to account for turning the car around by indicating he was afraid of Terrance Simon. While that statement explains why he turned the car around, it does not account for the testimony of Rashan Jones that the vehicle stopped. Furthermore, Jones' testimony on the fact that the car stopped was corroborated by the pretrial statement given by Keenan Ward. The jury could justifiably reject the defendant's attempt to exculpate himself in light of the evidence that he stopped the car.
In State v. Smith, supra, the prosecution successfully proved that the defendants had the specific intent to kill or inflict great bodily harm. In the present case, the State provided sufficient evidence that the defendant intended to participate in the frightening of the victim, and he was a principal in commission of the crime.
Finally, the defendant contends that the thirty-three year sentence he received is excessive.
The defendant argues that he was only sixteen years old at the time of the crime and that he was a first offender but received a sentence only seven years less than the maximum. He further asserts that he was not the individual who did the shooting and that there was no evidence that he knew Terrance Simon was going to shoot or kill the victim.
Article I, § 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence may be reviewed for excessiveness even though it is well within statutory guidelines. La.C.Cr.P. art. 881.2; State v. Cann, 471 So.2d 701 (La.1985), State v. Clements, 94-2217 (La. App. 4 Cir. 11/16/95), 665 So.2d 137. The imposition of a sentence may be unconstitutionally excessive if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless imposition of pain and suffering. State v. Brogdon, 457 So.2d 616 (La.1984), certiorari denied, Brogdon v. Louisiana, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985). To insure
In the present case, the trial court noted that it was aware of the fact that the defendant was only sixteen at the time of the crime, but noted that youth itself, while a factor, was "not enough for this Court to conclude that any lesser sentence would not be appropriate under the circumstances." The trial court noted other factors which it considered: (1) the defendant was a principal to the crime, which the court described as the wanton shooting of the victim; (2) the jury verdict of manslaughter reflected the reduced culpability of the defendant; (3) the trial court's belief that the defendant is "a menace to society" and should be removed from the streets of the City for a long period of time for the protection of others. The trial court further stated that it would not impose the maximum sentence because the defendant did not actually pull the trigger. The trial court adequately complied with La. C.Cr.P. art. 894.1 by stating both mitigating and aggravating factors.
Maximum sentences for manslaughter convictions have been affirmed in several cases even where the defendant had no prior convictions. See State v. Maxie, 594 So.2d 1072 (La.App. 3 Cir.1992), writ denied, 598 So.2d 372 (La.1992); State v. Smith, 520 So.2d 1252 (La.App. 5 Cir.1988), writ denied, 523 So.2d 1320 (La.1988); State v. King, 563 So.2d 449 (La.App. 1 Cir.1990), writ denied, 567 So.2d 610 (La.1990).
In the present case, the defendant was a principal to a drive-by shooting that resulted in the death of one person. The shooting occurred without any provocation. The trial court considered all mitigating factors.
Accordingly, the defendant's conviction and sentence are affirmed.
AFFIRMED.
WALTZER, J., dissents with reasons.
WALTZER, Judge, dissenting with written reasons.
In his first assignment of error, the appellant contends that the trial court erred when it allowed the prosecutor during closing argument to make a direct reference to the defendant's failure to testify.
The trial court is required to declare a mistrial when the prosecutor directly or indirectly refers to the defendant's failure to testify. However, a direct reference mandates a mistrial whereas an indirect reference permits the court to inquire into the remark's intended effect on the jury. State v. Johnson, 541 So.2d 818 (La.1989) appeal after remand 597 So.2d 79 (La.App. 2 Cir. 1992) writ denied 600 So.2d 658 (La.1992) cert. granted and judgment vacated on other grounds in Johnson v. Louisiana, 508 U.S. 958, 113 S.Ct. 2926, 124 L.Ed.2d 677 (1993), remanded 628 So.2d 278 (La.App. 4 Cir. 1993).
In State v. Fullilove, 389 So.2d 1282, 1283 (La.1980), the prosecutor stated:
The Louisiana Supreme Court held that the reference was a direct reference to the defendant's failure to testify. Thus, even though the reference may have been only for the purpose of enumerating the defendant's constitutional rights, mistrial was warranted.
In State v. Reed, 483 So.2d 1275, 1276 (La.App. 4 Cir.1986), this court reviewed the following statements in the prosecutor's closing argument:
This court held that the reference was direct and that the trial court erred in failing to declare a mistrial.
In the present case, during rebuttal argument, the prosecutor stated:
At this point, the defense counsel made an objection which was overruled by the trial court. The prosecutor continued with her argument as follows:
The comments are direct references to the defendant's failure to testify. Under Fullilove, supra and Reed, supra the defendant's conviction should be reversed.
