PETERS, J.
The defendant, Odeal Pippins Lirette, appeals her conviction of second degree murder, a violation of La.R.S. 14:30.1. For the following reasons, we affirm the conviction in all respects.
It is undisputed that during the early evening hours of November 4, 2013, the defendant shot and killed James Ricky Guillory, Jr. (the victim). A St. Landry Parish Grand Jury indicted her for the offense of second degree murder, and after a two-day trial which began on June 24, 2015, a jury convicted her of the offense. At a November 12, 2015 hearing, the trial court sentenced the defendant to serve life in prison at hard labor, without the benefit of parole, probation, or suspension of sentence. Thereafter, the defendant perfected
The defendant asserts in her first three assignments of error that the State of Louisiana (state) either failed to establish that she was not acting in self-defense or that she had the requisite intent necessary to commit second degree murder. Additionally, in her fourth assignment of error, the defendant asserts that the trial court erred in failing to have all sidebar discussions recorded for appellate review.
The evidentiary record establishes that the offense occurred at a Krotz Springs, Louisiana residence located on rented immovable property, previously belonging to John Wesley Pippins, Sr. (John Sr.), who died in July of 2013. John Sr. and the defendant were formerly husband and wife and although everyone acknowledged that the residence belonged to John Sr. before his death, it was actually titled in the name of their daughter, Penny Wesley Stermer (Penny). At trial, one of the couple's sons, John Wesley Pippins, Jr. (John Jr.), testified that all of John Sr.'s children agreed that despite being titled in Penny's name, the residence actually belonged to the defendant after John Sr.'s death. A mechanic's shop owned by Bobby Guillory separates the residence where the offense occurred and the residence where the defendant was then residing.
At the time of the offense, another one of the couple's children, Brandon Pippins (Brandon), and his friend, the victim, occupied the residence. Brandon moved to the residence from a trailer located in another part of Krotz Springs approximately three months after John Sr.'s death, and one month before the offense. At Brandon's invitation, the victim moved in with him approximately one week after Brandon moved in to the residence. Bobby Guillory testified that after Brandon moved into the residence, he observed that people began frequenting the residence, with the traffic picking up around 4:00 p.m. daily. However, because he closed his mechanic's shop at 5:00 p.m. every day, he did not observe the evening traffic. Additionally, he could not say with certainty that the previous lack of visitor traffic was not primarily because of John Sr.'s poor health and advanced age.
The evidence establishes without question that the defendant did not approve of her son's living arrangements from the moment the victim moved in. According to Brandon, the defendant strongly objected to the victim's presence in the residence and wanted him to be evicted. Bobby Guillory testified that the defendant expressed a concern to him that the increased traffic evidenced illegal drug activity, and asked him to move some of the
The evidence also establishes that the defendant appeared at the Krotz Springs Police Department at 7:52 a.m. on November 4, 2013, and asked to speak to an officer about having the victim removed from the residence. When no one was available to speak with her at that early hour, she returned at 4:12 p.m. and spoke with Officer Carl Silvio.
According to Officer Silvio, the defendant "was concerned about someone that was living in her son's home, and wanted to know what [the police] could do about having the subject removed." However, when the defendant told Officer Silvio that the house was titled in her daughter's name, he told her that her daughter "would have to be the one to deal with the subject." Officer Silvio testified that at this point, the defendant began complaining about the excess traffic at the residence, and related her concern that the victim and her son were involved in illegal drug activity and that her son's relationship with the victim "was going to get [him] in trouble." The officer then explained to the defendant that more evidence than excessive automobile traffic was required before the authorities would initiate an investigation. He suggested that she begin to record the license plate numbers of the vehicles frequenting the residence as that might lead to evidence that could be acted upon. According to Officer Silvio, when the defendant finally understood that the Krotz Springs Police would not remove the victim from the residence without the request of the record owner and/or additional evidence of drug activity, she stated, "I guess I'll have to deal with it myself. Y'all aren't going to help us." At that point, she left Officer Silvio's office.
After leaving Officer Silvio's office, the defendant telephoned Penny and asked Penny to meet her at a local notary public's office to execute the papers necessary to transfer the residence into her (the defendant's) name. Penny met the defendant and executed the necessary documents to complete the transfer. Penny testified that had they been able to find a time prior to this date, she would have executed the documents earlier, and that it was "just coincidental that [November 4] was the particular day that [they] found a notary that was home at the same time that [she] was home." According to Penny, the defendant did not mention her visits to the police department earlier in the day.
At the precise moment she shot the victim, the defendant was on the telephone talking to John Jr. John Jr. initiated the call beginning at 6:21 p.m., and sometime during the initial part of the conversation, the defendant made a comment to the effect that she observed people walking down the levee. A few minutes later, John Jr. set his cellular telephone down for a moment to look for fish bait in his boat, and when he heard the defendant say something that he did not understand, he picked up the telephone and asked her to repeat what she said. The defendant responded by saying that he should "[c]all the police, and tell them to come get these people away from [her] house." The defendant then ceased responding to him although he remained on the telephone line.
At some point thereafter, John Jr. heard the defendant say something like "get out of the house, or get away from the house," and heard a male voice loudly respond with something like: "This is my f* * * * * * house, b* * * *." At this point, John Jr. heard the defendant say "don't" with an added comment which he
Brandon testified that the victim left him a voicemail message that same evening, informing him that the defendant was again complaining about his (the victim's) presence in the residence. A few minutes after he noticed the voicemail, Brandon telephoned the victim and advised him to "go inside and call the current Chief of Police[.]" Brandon heard no background voices as he talked to the victim, but toward the end of the conversation he heard a "pop sound," which he recognized as a gunshot. He then heard the victim say: "Go ahead and kill me, because my mom will kill you." This comment was followed by a second "pop sound," after which Brandon heard the victim say to him, "Your f* * * * * * mother just shot me." Brandon stayed on the line for a few moments more, but when he heard nothing else, he hung up and telephoned the police. His call to the police was received at approximately 6:43 p.m., or roughly the same time that John Jr. made his call to the police.
The defendant's reference to people coming toward the residence from the levee referred to the victim and Leah Credeur. They had been walking on the levee that evening, and according to Ms. Credeur, the defendant confronted them as they began walking off the levee toward the residence. Ms. Credeur testified that she observed the defendant speak to the victim, but did not hear most of what was said because she was carrying on a conversation with the victim at the same time. She did testify, however, that she heard the defendant threaten to kill the victim. As the confrontation escalated, the victim instructed Ms. Credeur to go back to the levee, which she did. She testified that while leaving the scene, she observed the defendant walking toward the victim and observed him walking backwards away from her. Shortly thereafter, she heard two gunshots, with a slight delay between the two. She remained on the levee until she saw the flashing lights of approaching police cars.
One of the responders to the scene was Charles Watson, the Chief of the Krotz Springs Fire Department, who responded as an Emergency Medical Technician. According to Chief Watson, when he attempted to check on the defendant to make sure she was not injured, the defendant responded, "[the victim] never got close enough to touch me[.]" Another responder, Krotz Springs Police Officer Joshua Evans, investigated the shooting that evening and brought the defendant to the police station after taking her into custody. According to Officer Evans, when he asked the defendant why she shot the victim, she responded "that her deceased husband, [John Sr.'s] ghost, would not let her sleep, and told her she had to get rid of [the victim]."
Dr. Christopher Tape, a Broussard, Louisiana medical doctor with a specialty in forensic pathology, performed the autopsy on the victim and concluded that he died as a result of a single gunshot wound
Charles R. Watson, Jr., a forensic scientist with an expertise in firearms examination and gunshot residue, testified that the weapon used in the offense stops depositing gunpowder residue on its target at approximately eighteen to twenty-four inches from the target. Additionally, he found no gunpowder residue on the victim's clothing other than "bullet wipe," which he described as the residue transferred from the projectile as it passes through the clothing.
Second degree murder is defined as "the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]" La.R.S. 14:30.1(A)(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).
Justifiable homicide is defined by La. R.S. 14:20(A), which, in pertinent part, holds that:
A homicide is justifiable:
This court in State v. Fox, 15-692, p. 4 (La.App. 3 Cir. 2/3/16), 184 So.3d 886, 890, stated the following concerning a defendant's claim of self-defense:
While this case must be reviewed under the Jackson standard, it is important to note that the case was tried before a jury, making the jury the finder of fact. "The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness[.]" State v. Higgins, 03-1980, p. 17 (La.4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). "Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence." State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). Therefore, while we will review all of the evidence presented at trial in the light most favorable to the state, we will not disturb the jury's credibility determinations absent a finding that they are clearly contrary to the evidence.
Much of the defendant's argument that she was acting in self-defense focuses around the fact that she owned the residence she was trying to prevent the victim from entering and occupying. While all of this is true, we further note that the victim was occupying the property with Brandon's permission, and there is no evidence to suggest that the victim knew of the ownership issues arising from John Sr.'s death or that the defendant had any ownership interest in the residence before she
The defendant also argues that she felt sufficiently threatened by the victim's aggression to justify her shooting him in self-defense. She bases this argument partly on the fact that the first shot did not hit the victim, and on Brandon's testimony that the victim's personality was to "confront [danger] head on" and not to "turn and run" from danger. She also notes that John Jr. heard her say "don't, don't something" before she fired the first shot, and she suggests that this evidences that she feared for her safety. This argument ignores Ms. Credeur's observation that the defendant appeared to be the aggressor when she last saw her, because the victim was backing away from the confrontation. Additionally, the scientific evidence establishes that the fatal shot was fired at a minimum distance of eighteen to twenty-four inches from the victim. The only evidence that supports the defendant's claim of self-defense is Brandon's testimony that he heard the victim tell his mother that if she killed him his mother would kill her.
Another element of the defendant's self-defense claim is based on the theory that the victim could have been leaning forward at the time of the shooting. She bases this argument on Dr. Tape's finding of a slight downward trajectory of the bullet as it passed through the victim's body. However, we find that this argument ignores the remainder of Dr. Tape's testimony, wherein he clearly stated that he could not determine the trajectory of the bullet based on the information before him, and that in any case, the downward trajectory was so slight that it was "very close to being almost straight across[.]"
The defendant also put forth a theory that the victim had been taking Amitriptyline sometime before the confrontation and that medication could have caused him to be more aggressive. Dr. Tape testified that Amitriptyline is a tricyclic antidepressant, which he did not believe to have a side effect of aggression. Further, the defendant offered no evidence to establish that the victim was taking any medications, with or without a prescription; and no tests were performed in the autopsy process to determine the presence or absence of Amitriptyline in his system at the time of the offense. Additionally, Ms. Credeur testified that she had spent the previous weekend with the victim and did not observe him ingesting any medications.
Applying the Jackson standard to the evidence presented, as well as the factors set forth in Fox, 184 So.3d 886, we find no error in the jury's conclusion that the state established beyond a reasonable doubt that the defendant did not act in self-defense. Thus, we find no merit in the defendant's first assignment of error.
The defendant asserts that the state failed to prove that she possessed the requisite specific intent to commit second degree murder, and it failed to prove that there was "insufficient provocation to deprive her of self-control and cool reflection[.]" The defendant argues that she established the mitigating factors of sudden passion and heat of blood by a preponderance of the evidence, which would require that a jury could only find her guilty of manslaughter and not second degree murder.
Louisiana Revised Statutes 14:31, in pertinent part, defines manslaughter as:
The supreme court in State v. Lombard, 486 So.2d 106, 110-11 (La.1986) (footnotes omitted) (citations omitted), held that:
This court, in State v. Jackson, 14-9, p. 12 (La.App. 3 Cir. 6/18/14), 146 So.3d 631, 639, writ denied, 14-1544 (La. 2/27/15), 159 So.3d 1066, held that "[a] reviewing court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury."
The defendant asserts in her brief that the state did not prove that she possessed the requisite specific intent to commit second degree murder. However, the only evidence that she offers to support her claim is the fact that after shooting the victim, she called the police and advised them that she had just shot him, and asked them to send an ambulance because she believed he was dying. The defendant argues that she would not have done this had she intended to kill or cause great bodily harm to the victim.
The defendant's argument ignores the fact that a little over two hours before she shot the victim, she informed Officer Silvio that she would "have to deal" with the problem of the victim's occupancy of the residence herself because the police would not do her bidding; and she then armed herself and confronted the unarmed victim. Additionally, the jury heard Ms. Credeur testify that she heard the defendant threaten to kill the victim.
The defendant's arguments that she acted in "sudden passion or heat of blood" caused by the victim's provocation, which was sufficient to deprive her of her "self-control and cool reflection," are similar to her self-defense arguments. We discussed the circumstances leading up to the shooting at length already and do not find that they are sufficient to prove by a preponderance of the evidence that the defendant was sufficiently provoked so as to deprive her of her "self-control and cool reflection." La.R.S. 14:31(A)(1).
The jury clearly found that the defendant possessed the requisite specific intent for a conviction of second degree murder, and we find no error in that credibility determination. We find no merit in this assignment of error.
The defendant's motion for a post-verdict judgment of acquittal essentially raises the same arguments that she has raised on appeal, together with an additional argument
We have reviewed Penny's testimony and find no instance where the state objected to any of her testimony on the basis of res gestae. Therefore, this assignment of error is without merit.
In her final assignment of error, the defendant asserts that the trial court deprived her of her constitutional right of appeal due to its failure to ensure that all of the sidebar discussions held during the course of the trial were properly recorded.
The right to a complete record on appeal comes from La. Const. art. 1, § 19, which states:
The requirement that all trial proceedings be recorded comes from La.Code Crim.P. art. 843, which states:
On the issue of the recordation of bench conferences, the supreme court in State v. Hoffman, 98-3118, pp. 49-50 (La. 4/11/00), 768 So.2d 542, 586-87, (footnote omitted) (citations omitted), supplemented, 00-1609 (La. 6/14/00), 768 So.2d 592, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000), held:
In State v. Johnson, 438 So.2d 1091, 1104, (La.1983), the supreme court held that argument of counsel that is missing from the transcript "is immaterial to an adequate review of the trial court's ruling."
In State v. Pinion, 06-2346, pp. 7-8 (La. 10/26/07), 968 So.2d 131, 134-35 (citation omitted), the supreme court held:
In this case, the defendant argues that the trial court's failure to record all of the bench conferences prejudiced her on review. She specifically asserts that the failure to record the one bench conference conducted during the testimony of her daughter Penny prevented the trial court from granting her post-judgment verdict of acquittal. When the trial judge reviewed the trial transcript at the hearing on the motion, it noted that the transcript contained no mention of the evidence the defendant wanted to introduce. The defendant argues that the transcript contained no mention of the evidence because it occurred in an unrecorded bench conference.
Our review of the record reveals that none of the bench conferences were recorded. However, the subject and result of most, if not all of those bench conferences, were either discussed on the record thereafter or were clearly ascertainable by the proceedings that preceded and followed the conferences.
With regard to Penny's testimony, the unrecorded bench conference clearly had as its subject the question of whether she could testify concerning anything her mother had related to her after the commission of the offense. When the trial court returned to the record, it sustained the objection by the state, and the defendant's counsel immediately instructed Penny that "she [could] not say what [her] mother said." The defendant's counsel did not object to this ruling.
Defense counsel's failure to offer evidence at trial that he was in possession of and felt to be relevant may be prejudicial to the defendant. However, it was not the unrecorded bench conferences that caused the defendant prejudice as she indicated in both her motion for post-verdict judgment of acquittal and in the instant appeal. The defendant has failed to show that she was prejudiced by the trial court's failure to record all bench conferences. We find that the bench conferences were immaterial to our review of the record. Therefore, we find no merit in this assignment of error.
For the foregoing reasons, we affirm the defendant's conviction in all respects.
