PETTIGREW, J.
The defendant, Brandon C. Davis, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and, following a jury trial, was found guilty as charged.
On November 26, 2007, Annette Gordon and Eric Frick were at their home on East Second Street in Covington. After 9:00 p.m. that evening, Frick was working on the side of the house building a drawer. When Frick went back into the house to retrieve something, two men, who Gordon later identified as the defendant and Hammond, approached the house. Gordon testified at trial that Hammond walked up a few steps toward the front door and asked Gordon if he could use her phone because his truck had broken down. Gordon handed Hammond her cell phone and observed that the defendant stayed on the sidewalk behind Hammond. Frick motioned for Gordon to go inside to take care of one of the children in the house. As Gordon made her way through the house to get Pull-Ups, she heard what she thought was a firecracker. She went to the front door and saw Frick lying on the steps. Frick died shortly thereafter from a bullet wound. She closed the door and locked it. Gordon's granddaughter told Gordon that she, Gordon, was bleeding. Gordon then realized she had been shot in her hand. The bullet that hit Gordon had come through the side window of the house, and lodged in a blue rubber tub. The defendant and Hammond left the scene. Gordon did not see who shot Frick or who shot through her window, and she did not see either the defendant or Hammond with a gun.
The following day, Donald Burch, a Louisiana DOTD employee, was driving to work when he found a Rossi .357 magnum revolver in the middle of La. Hwy. 36. The gun contained three .38 live rounds and two fired .38 cartridge cases. Burch later turned the gun over to the police. Two days after that, on November 29, Kathy Barton, an ATF special agent, found a Smith & Wesson (S&W) .357 magnum revolver near a mailbox just off of La. Hwy. 36. The gun contained five 357 live rounds and one fired .357 magnum cartridge case. The guns were found in close proximity to each other and less than a mile from Frick's house. Earl Washington testified at trial the Rossi .357 found by Burch was stolen from his home in Baker in November 2005. The guns were tested for DNA evidence. Burch's DNA was found on the Rossi .357, and Frick's DNA was found on the S&W .357. The defendant's DNA and Hammond's DNA was not found on either gun.
Meredith Acosta, with the New Orleans Police Department Crime Lab and an expert in firearms identification, testified at trial that she test-fired the guns found near Frick's house. It was determined that the bullet that struck the blue rubber tub was fired from the Rossi .357; and the bullet that struck and killed Frick was fired from the S&W .357. Dr. Michael DeFatta, who performed the autopsy on Frick, testified at trial that Frick had been shot in the right shoulder. The bullet traveled through the top of his right lung and into the lower lobe of his left lung. According to Dr. DeFatta, the stippling found on the right upper eyebrow and eyelid of Frick indicated that the gun was 36 to 43 inches away from his body when he was shot.
Marguerite Tyson, who was sick prior to trial, testified at a preliminary examination hearing for purposes of perpetuating her testimony for trial. According to Tyson, who lives in Covington, Hammond was her nephew. Hammond lived in Baton Rouge and went to Covington about twice a year. On the day Frick was shot, Hammond had gone to Tyson's house at about 6:30 p.m. to get money "to get his car out." Hammond asked Kendrick Gordon ("Kengie"), Annette Gordon's son, for the money, but Kengie did not have the money. Hammond also asked Tyson's sister for money, but she, too, did not have money. Hammond left Tyson's home at about 7:30 p.m. or 8:00 p.m. in a dark-colored pickup truck.
Juan Banks, who was in jail during trial, also testified at the preliminary examination hearing, for purposes of perpetuating his testimony for trial. According to Banks, the defendant lived on Avenue J in Baton Rouge. Banks also knew Hammond. In late 2007, Banks loaned his cell phone to the defendant. Phone records showed that in a 36-hour period, from November 25, 2007 to November 27, 2007, more than 30 calls were made between Banks's loaned phone (to the defendant) and Hammond's phone. However, there was no way to tell where the phones were located when these calls were made. Banks stated that he would not have made or received that many phone calls. Banks further stated that he would lend his phone out to other people.
Denise Hossley testified at trial that when she had gotten off of work on the evening of November 26, 2007, she went to the Quick Stop Snack Shop (Quick Stop) in Covington. She saw Hammond, who she knew of but did not know personally, at the store. Hammond was with someone, who Hossley later identified as the defendant. Hossley testified that Hammond and the defendant were in a blue or dark-colored Chevy pickup truck.
The defendant did not testify at trial.
In his first assignment of error, the defendant argues the evidence was insufficient to support his conviction. Specifically, the defendant contends that his identity as the shooter was not established, and that there was no physical evidence to suggest that he, or Hammond, was involved in the shooting.
A conviction based on insufficient evidence cannot stand as it violates Due Process.
Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.
Parties to crimes are classified as principals and accessories after the fact. La. R.S. 14:23, Principals are 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. La. R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals. An individual may be convicted as a principal only for those crimes for which he personally has the requisite mental state.
The defendant contends the State's evidence was insufficient to establish his identity as the shooter. Specifically, the defendant asserts that no one established that he was in Covington with Hammond during the shooting. According to the defendant, Hossley's testimony was not credible in establishing his presence in Covington, and Gordon's testimony established that she saw the silhouette, but not the faces, of the men who approached the house. The defendant also points out that his DNA or fingerprints were not found on either gun. The defendant further asserts that the prosecutor's prejudicial remarks during voir dire and closing argument "skewed the jury's credibility determinations."
Natasha Powe, an expert in the field of forensic DNA with the St. Tammany Parish Coroner's Office, testified that the guns found near Frick's house were tested for DNA and that the defendant's and Hammond's DNA was not found on either gun. According to Powe, Burch's DNA, likely in the form of skin celis, was on the Rossi .357 that Burch had found on La. Hwy 36, and Frick's DNA, in the form of presumptive blood, was on the S&W.357 that the police had found just off of the highway. The S&W .357 was the gun used to shoot Frick, and his DNA was found on the barrel, the front of the trigger guard, and the cylinder of that gun. Dried blood was still on the barrel. Powe explained that DNA from skin cells can be wiped away easily if it's on a "varnished" non-porous surface. She further explained that depending on how much the object has been handled after the depositing of the original DNA sample, getting a profile versus not getting a profile is equally as likely.
Regarding Gordon's testimony, the defendant asserts that she could only give a height and size description of the men she saw at her front door. This assertion is inaccurate. While Gordon did not personally know the defendant or Hammond, she clearly identified them as the persons last seen with Frick shortly before he was shot. Gordon described the man she lent her cell phone to, later identified as Hammond, as black, tall, and wearing a jacket with a hood. Hammond told her he needed to use her phone because his truck had broken down, which she saw parked on the side of the house. She described the person standing behind Hammond, later identified as the defendant, as lighter skinned and stocky. She described her source of light, which came from her porch light and a streetlight, as very good. She said the two men were in her view for about five minutes, and that she got a "good view" of the defendant's face. She further stated she got a "very good view" of the defendant because of his lighter skin. She subsequently identified both the defendant and Hammond in six-person photographic lineups as the men at her house when Frick was killed. She provided an in-court identification of the defendant, and when asked on redirect examination if she was absolutely certain that the defendant and Hammond were the two men who showed up on her porch the night Frick was shot, Gordon replied, "Yes."
Hossley testified at trial that on the evening Frick was shot, she was at the Quick Stop in Covington. As she left the store, she saw two men get out of a dark-colored two-door Chevy truck and go into the store. They were wearing black hooded jackets and blue jeans. She recognized Hammond. She did not recognize the person Hammond was with, but described him as "light" and kind of muscular. Hossley subsequently identified the defendant in a six-person photographic lineup as the person Hammond was with that night.
The defendant asserts that Hossley was impeached at trial by his defense counsel. According to the defendant, while Hossley did not know him, she was willing to say the other person she saw with Hammond was the defendant "because she wanted to do a favor for Annette Gordon," whom Hossley Knew. On cross-examination, defense counsel for the defendant attacked Hossley's identification of the defendant by playing excerpts at trial of an interview Hossley gave, over four years after Frick was killed, to John Hogue, Hammond's defense counsel. Hogue went to Hossley's house in March 2012 to ask her questions about the shooting. Hossley stated that she was preparing for her cousin's wedding and had wedding guests in her yard that day when Hogue came over unannounced. In the recorded interview, Hossley stated that she saw Hammond at the store, but did not know what vehicle he was in. She also said in the interview that the defendant had braids. At trial, Hossley was able to identify the truck and stated that the defendant did not have braids. The defendant contends that Hossley lied about seeing the defendant because Annette Gordon's son, Kengie, asked Hossley to help him out for his mother. Hossley explained at trial that she was very busy when Hogue came to her house asking questions about a matter she wanted no involvement in; she was not sure she was supposed to even be talking to Hogue; and that Kengie never told her what to say, but only asked that she tell the police what she saw because the shooting happened at his mother's house.
When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.
Clearly, the defendant knowingly participated in the planning or execution of the shooting. Moreover, Gordon was shot by a second gun and, therefore, a second shooter (assuming that one shooter did not fire at Frick with one gun, and then run to the side of the house and fire through the window with the other gun). Thus, it was the defendant who shot at either Frick or Gordon.
In finding the defendant guilty, the jury clearly rejected the defense's theory of misidentification.
Moreover, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt
We note as well that a fact finder could have reasonably concluded that certain conditions could have contributed to the lack of the defendant's DNA on either gun. For example, it was pointed out during Powe's testimony that extreme temperatures could cause DNA to "denigrate more rapidly" when out in the open. Also, it appears that whatever DNA may have existed on the Rossi .357 prior to being found was likely wiped away by, or covered with, Burch's DNA when Burch found and handled the gun. Similarly, it appears that whatever DNA may have existed on the S&W .357 was displaced by Frick's DNA when Frick, as the evidence would suggest, grabbed the gun. Frick's DNA was found on the barrel, the front part of the trigger guard and the cylinder — all parts of a gun that would be touched by Frick if he were grabbing a gun that was being pointed at him.
After a thorough review of the record, we find that the evidence negates any reasonable probability of misidentification and supports the jury's verdict. We are convinced that, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of the hypotheses of innocence suggested by the defense at trial, that the defendant was guilty of the second degree murder of Eric Frick.
Finally, notwithstanding that these issues are improperly raised under a sufficiency argument, we address the defendant's arguments that the prosecutor's prejudicial remarks during voir dire and closing, argument "skewed the jury's credibility determinations." During voir dire, the prosecutor was discussing with a prospective juror about the sufficiency of testimony from a single witness to establish guilt. The prospective juror, in what appeared to be a reference to the two defendants, stated, "If these gentlemen were to get on the stand and tell me that, I would believe them. That's an example." The prosecutor responded, "Well, they are not the male versions of the Mother Teresa, so —." Both defense counsel objected. The objections were sustained, and the trial court admonished the prospective jurors that the prosecutor's comment was improper and to "[t]ake it out of your mind entirely."
In his closing argument, the prosecutor noted that a lack of forensic evidence should not preclude a conviction and that if it did, the State could never convict anyone on eyewitness testimony. The prosecutor added, "If that's the case, then it will make my job easy. I'll have a lot fewer cases and there will be a lot more criminals running wild." Both defense counsel objected, and the objections were overruled.
We do not find that the "Mother Teresa" comment could have reasonably contributed to the defendant's conviction.
Prosecutors are allowed wide latitude in choosing closing argument tactics. Louisiana Code of Criminal Procedure article 774 confines the scope of argument to "evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case." The trial judge has broad discretion in controlling the scope of closing argument. Even if the prosecutor exceeds these bounds, we will not reverse a conviction if not thoroughly convinced that the argument influenced the jury and contributed to the verdict.
In his second assignment of error, the defendant argues he was convicted of second degree murder by a ten to two non-unanimous verdict in violation of the United States and Louisiana Constitutions. Specifically, the defendant contends that the non-unanimous verdict had been applied in a racially discriminatory manner.
The defendant relies on the argument made by Hammond's defense counsel in his motion for a new trial, wherein he argued that the non-unanimous verdict violates equal protection because the law was racially discriminatory in intent and nature since "you have less blacks on a jury now [sic] days." The unfounded assertion aside, and notwithstanding a lack of reference by either defense counsel or the defendant in brief to the actual racial makeup of the jury in this case, the argument is baseless.
Whoever commits the crime of second degree murder shall be imprisoned at hard labor.
The defendant's argument has been repeatedly rejected by this court.
Accordingly, this assignment of error is without merit.
Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1(B). In sentencing the defendant, the trial court failed to provide that the sentence was to be served at hard labor.
