State Of Louisiana VS John H. Jones

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 KA 1543 STATE OF LOUISIANA VERSUS JOHN H JONES Judgment Rendered March 28 2007 Appeal from the 18th Judicial District Comi In and For the Parish of West Baton Rouge On Trial Comi No 052166A Div Honorable J Robin Free B Judge Presiding Appellee Richard J Ward Jr Counsel for District State of Louisiana Attorney Antonio M Clayton Maliin K Maley Sr Becky L Chustz Elizabeth A Engolio Assistant District Plaquemine Attorneys LA Counsel for Defendant Frank Sloan Louisiana Appellate Project Appellant John H Jones Mandeville LA BEFORE g PETTIGREW DOWNING AND HUGHES JJ HUGHES J The defendant John H Jones with attempted second degree murder LSA R S 14 30 1 motion for s new violation of LSA R S a The defendant entered by jury the defendant the defendant charged by grand jury indictment was 2 The defendant imprisonment at hard suspension of sentence as charged was sentenced labor without the benefit The defendant now of a trial The trial court denied the verdict judgment notwithstanding motion for trial guilty After plea of not guilty I found was a 14 27 and to and twenty five years parole probation appeals raising the or following assignments of enor 1 sustaining the defense objection to the sheriff testifying that the defendants were trying to kill the deputy 2 The evidence For the The trial court ened in was following reasons not insufficient we to support the conviction affirm the conviction and sentence STATEMENT OF FACTS On about or West Baton May 7 2005 just after Rouge Parish Sheriff s Office led six Rouge Parish Jail from isolation cells were allowed and half a to use to Corporal Fahey tapped response The defendant was Corporal Fahey of the inmates of the West Baton holding cell the on After about glass of the male holding using the facilities open indicted and tried with as co the first inmate the defendant area hour and receiving a a Jr Both defendants were later amended to the proper language he apparently moved for the judgment of conviction on the lesser included responsive did not modification of the verdict and offense of aggravated an Shaheed Claiborne originally charged with attempted first degree murder The charges attempted second degree murder Gibson was also found guilty as charged Although After defendant Donald Gibson were 2 The inmates Corporal Fahey opened the door of the holding cell Corporal Fahey held the door I the male m telephone and shower facilities asked the inmates if they were finished positive 10 00 p use battery pursuant to LSA C CrP 2 art 821 Inmate Donald Gibson exited second exited the door After Gibson exited the door he defendant As Corporal Fahey turned several socks socks one ultimately defendant shuck mop bucket In by the lunged toward Corporal Fahey began beating him in the head with inside of the other filled with batteries and soap tore began and the batteries and soap in the head with the Corporal Fahey fall to 3 The The out wringer section of a 4 an obtained away Gibson followed attempt from pnson to escape Corporal Fahey s set of the defendant and Gibson keys and pressed buttons on the control panel located behind the booking desk As the defendant and Gibson used the control panel to open doors Charles Tuminello the shift operator to summon an Corporal Fahey a broken were pOliion The defendant and Gibson booking and bonding through area before Corporal Fahey head 3 and Although were one to a s Sergeant an the wrong trapped laceration in the upper second laceration in the lower back room crown portion various witnesses ch uing the trial oftlns matter referred to the key to between the The blunt ultimately being captured a keys became they attempted unsuccessfully Next head caused find the COlTect of the use thus to plate of security glass that separates the release a booking room unable of lodged inside the keyhole when they attempted unlock the door the office of ambulance release the door and to to Tuminello instructed supervisor Sergeant Meanwhile the defendant and Gibson button ran to break from the trauma to area of his of his head socks containing the batteries and soap as a sock the socks were introduced into evidence and Detective Ronald of the West Baton Rouge Parish Sheriffs office who investigated the incident and Lejeune collected the evidence testified that multiple socks that against Corporal Fahey relates to the 4 According DNA a were We note that references made herein to the other used socks multiple profile to the scientific testimony of witnesses one regarding inside the a sock had been combined with batteries and soap to form the weapon analysis report obtained from the mop buccal swab of Corporal used and had been placed of the Louisiana State Police Crime wringer was Fahey 3 consistent with the DNA Laboratory profile the obtained from four Approximately staples per wound were used Corporal Fahey also received defensive wounds finger during close the lacerations to his to right hand and a the attack SUFFICIENCY OF THE EVIDENCE In his second evidence assignment of the defendant contends that the en or presented herein is insufficient defendant contends that there defendant that there notes was no was no to suppOli the conviction motive for specific intent to kill the overwhelming evidence shows that he and Gibson planned Corporal Fahey to neutralize him and obtain his keys explained by the fact that he and Gibson their attempt as their sole intent was to suppOli a at be the time of s state in of mind was no during specific The defendant concludes light of all the evidence is a conviction be based testing the sufficiency of the evidence on proof sufficient viewing the evidence in the light v 1979 up can anything beyond the responsive most find the essential elements of the crime 560 pumped if they aggravated battery requires that Jackson so to escape conviction for The constitutional standard for to were severity of the beating when evaluated insufficient of fact The The defendant argues that there to escape to kill verdict of in order to escape severity of the beating regarding the defendant and Gibson of the incident that the beat quoting testimony of Detective Ronald Lejeune the investigator the offense intent to they could have killed Corporal Fahey The defendant claims that the desired to argues that Corporal Fahey after they obtained his keys The defendant so The evidence that he and Gibson continued beat defendant further argues that The Virginia 443 U S The Jackson v 307 319 for any rational trier favorable beyond a 99 S Ct 2781 Virginia standard of review 4 to the prosecution reasonable doubt 2789 61 L Ed 2d was adopted by the Legislature in enacting LSA C CrP mi 821 and is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence LSA that the trier of fact every reasonable 5 La App 14 2 03 is 126 La there is another pertinent part 14 27 A a as the kill to person is specific intent of and When a case involves La 1 Cir App a reasonable doubt writ denied 514 So 2d 1987 specific intent a 420 that raises hypothesis Louisiana Revised Statute 14 in Graham 2002 1492 p jUlY reasonably rejects the hypothesis of Moten 510 So 2d 55 61 v v presented by the defense that hypothesis falls and the defendant guilty unless State State 845 So 2d 416 circumstantial evidence and the innocence provides 15 438 be satisfied that the overall evidence excludes must hypothesis of innocence 1 Cir R S to killing of a human being when guilty of an attempt to commit commit a crime and does or an omits degree murder the offender has a Under LSA R S great bodily harm to inflict or defines second 1 30 A offense when he has an act for the purpose objectSpecific tending directly toward the accomplishing of his intent is that state of mind that exists when the circumstances indicate that the offender his act or of mind consequences to follow actively desired the prescribed criminal failure to act LSA R S 14 it need not be proved as a Since 1 10 specific intent is 420 murder defendant a specific intent La App 127 06 2d So to 1126 must have the inflict great 1 Cir 3 24 05 922 So 2d 544 1127 La 1982 specific bodily han11 899 So 2d 711 A To be intent State to v State v guilty of attempted kill and not merely the Maten 2004 1718 p 5 716 writ denied 2005 1570 La dangerous weapon includes 5 state fact but may be infened from the circumstances of the transaction and the actions of the defendant Graham a any gas liquid or other substance or Specific intent to kill weapon such can knife a 1 11 96 the intentional See State gun Lejeune investigated the Lejeune one of them was four scene included the of the West Baton after the attack located a homemade knife on was found scattered the booking A blue counter also found in the to area 8 La La table in the attack room a mop bucket inmates bar of soap inside a the floor around the a razor laundry bag with a brass by the defendant and Gibson believed to belong to the where the defendant and Gibson were trapped s uniform shirt as on A also collected was Witnesses interviewed Based several collected from Detective begged for his life on by were in the defendant s isolation cell dangerous Parish Sheriff s them with blood spatter Corporal Fahey night of the attack his head Rouge of the attack The shower drain had prison garb shiIis Two the attack defendant and Gibson two deadly 96 1406 consisting of a toothbrush and been removed from the shower facilities used were a 3 Evidence collected wringer section of AA batteries more and shower drain prior of use writ denied 349 14 2 A 95 0340 p Brunet v inside the other with three AA batteries and attack site that LSA R S 681 So 2d 1258 Detective socks implied by 674 So 2d 344 Detective Ronald Office be used is calculated manner great bodily harm or or a Cir 4 30 96 1 App as in the instrumentality which produce death to likely or on soiled with blood Detective after the worn sharpened turkey bone a was on the located Lejeune testified that these items Lejeune also took photographs of the scene by Detective Lejeune indicated that Corporal Fahey the defendant and Gibson continued his Detective investigation severely beat Corporal Fahey 6 in an Lejeune attempt to deliver blows to concluded that the to escape from jail As to the specific facts of the incident Detective referencing a Lejeune testified follows as series of photographs taken of the scene The door An inmate might where earlier with we saw they are released This is the be released to go outside lobby If you notice this is the lobby pmi and there s a key broken off into the lock After attacking Cpl Fahey they took his keys right button on the panel they put a key in this lock and actually they were so pumped up it broke And it s a big key that fits in that lock not able to and after Detective Lejeune had to open attempting During unsure the cross no find the personal knowledge lobby door the was examination conect confirmed that he did not supposedly used during the attack to whether the used was find any blood on Detective testimony in Gibson could have killed Detective attempt an Corporal Fahey Lejeune stated that he believed was He during the attack the outside of the socks Lejeune speculated were that the caused The to show that the defendant and if they wanted to they did indeed try Lejeune conceded that in key for the door sock weapon may have been used before the lacerations defense elicited key used Lejeune stated that he Detective whether the homemade knife as Fahey Detective Gibson stopped beating Corporal Fahey and at some point focused In response to kill Corporal the defendant and on their attempt to escape Aaron attack and Ray was played during cell area cell at 5 that fellow inmate A interviewed Initially Aaron day and the was Ray was videotaped recording of Ray mop bucket called to was According testify at trial 5 s interview was Ray had mopped the holding sitting just outside of the holding to Ray but he refused two inmates expressing whom he fear for the safety of held in contempt of court ordered jailed and his taped Ray admitted into evidence as he was deemed unavailable to testify However after At that time statement was the time of the offense witnessed the at the trial and he later testified the time of the attack his relatives the trial a was recessed and then reconvened Ray was at that time 7 again called to the stand and gave testimony identified plans by photograph take the to Gibson was Deputy when they they stuffed He stated that pushed the door as portion he exited the The defendant hit a the shower facilities to sock before the attack cell and holding Gibson Corporal Fahey was Corporal Fahey an approximate in the head with began striking Corporal Fahey He indicated that the blows head with the loaded sock Corporal Fahey brought Ray viewed the attack from of the mop bucket to count were batteries and soap in pressed against the wall distance of six feet began discussing the defendant and Gibson as were too in the numerous screaming for his life during the attack As striking Fahey in the neck and head the sock broke open Gibson continued Ray stated that Corporal Fahey should have died from the attack defendant and Gibson open the door was to attempted release door and started breaking unsuccessful use the the button control as According the attack He stated that a the isolation cell to the male to to Ray several inmates knew Ray added that other inmates facilities holding cell After about opened the holding cell door original cells was so an little hazy so understaffed m on the night of he took six inmates from they could use the telephone and hour and a half Corporal Fahey completed their use of the facilities and he that he could Corporal Fahey stated a were little after 10 00 p determined that the inmates had memory to open the lookouts Corporal Fahey testified that they shower panel The security glass when their attempt about the plans of the defendant and Gibson acted a that escort the inmates back although after he remembered Gibson to the initial attack his lunging toward Corporal Fahey specifically testified as follows He Gibson this is up to me He comes up to me and does like he is getting ready to jump on me Well walking indicating my reaction was I tU111ed back As 8 soon as their I turned back I felt him something impact my head Initially I was stunned I didn t know what was going on you know And I looked back over toward Donald Gibson and he had he was It take their toll on me I didn t know what was I I didn t know why this was happening to me going on thought I little girl year and can to die going just had was I half a a at the believe Im t with it me to starting were was white sock in his hand and I cannot tell you how whack after whack after whack And they continuously beating many times a daughter is going about that time I little was like this out have girl in 2003 and she was was my about And all I could think about time going to All I could think about a was I I cannot believe that my to grow up without her And daddy nearing unconsciousness Corporal Fahey further testified I think I Jones over Ive got little a and told me mop handle thing And I remember over girl at Mr Man my knees there and I said was on I said He looked at at home that he right there or three times According to chasing him as his he testimony ran Corporal Fahey a During cross handcuffs in his no attack on right cause his for him to give eighteen hours right arm due to the supervisor office s the inmates to use the weapons the inmates the He were temporarily keys wore a possible fractures and at Corporal Fahey confirmed that the time of the attack between him and the defendant specifically asked how the head with the mop bucket only remember deflecting trying were a hand examination possession animosity When his on to Corporal Fahey stated that threats hospitalized support brace puncture wound was was ran Corporal Fahey thought would have been sufficient to cast the defendant and Gibson When he heard the door open he him dead in the eye not Corporal Fahey stated that he believed to kill me And he took that give a f1 indicating and he whaled sic that 6 did my head two looking up what are you doing or He stated that there Gibson prior blow and 9 to the many times the defendant hit him in wringer Corporal Fahey stated that one he had receiving another to he could the head When asked whether the defendant and Gibson the keys to allow their escape opinion they were trying to kill Corporal Fahey stated as follows Corporal Fahey reiterated me during redirect examination and stated that the lacerations required a total of over ten Don t let them stated which was spoke opened by key to area get get and he me to was to another was a his head attacked was examination cross to enter button Sergeant conscious but mumbled when approximately fifty feet office and had the office Corporal Fahey holding the back of his head During touch control s opinion deputy when Corporal just after the attack Corporal Fahey Corporal Fahey Sergeant Tuminello be talking bleeding profusely Tuminello testified that he was into his office ran In my this to obtain staples Sergeant Tuminello Fahey abruptly to simply trying were away from three different doors all could or by Sergeant Tuminello did a booking button in the not see anyone chasing Corporal Fahey Sheriff Michael Cazes alTived Corporal Fahey scene and was transpOlied Corporal Fahey defendant and Gibson s to at the hospital just after the attack before Sheriff Cazes observed the Sheriff Cazes testified that the to escape was custody open one During tIns mop handle more portion successfully opened door before of ills exiting that door the testimony Corporal Fahey however the record consistently jail the incolTect 10 the key thus Had the they would have had to When asked whether the refers to an indicates that he wnnger of the key used by key broke and became partially lodged in the keyhole defendant and Gibson 6 scene Sheriff Cazes also took injuries defendant and Gibson in their attempt the the object was used in the attack struck with a as a mop bucket defendant and Gibson Dr Alfredo Suarez s medical records of Corporal Fahey Fahey scan hairline fracture of the regular ray but x to kill trying Corporal Fahey Sheriff was According injuries s the to The possible a upon the depth of the victim Fahey had his head victim s a thinner skull he skull s Dr Suarez added that an suffered by Corporal Fahey Suarez stated that Dr hand Suarez Fahey received to re not attempt likely caused by he and Gibson in The defendant testimony s s x rays did not report unable was or simply to On to depth of a put them to trauma determine to immobilize a Dr fracture to his a cross Corporal examination whether the Corporal Fahey blow were attempting to to escape We find that the instrumentalities used attacking Corporal Fahey considering the obj ection Corporal the leg would immobilize The defendant and Gibson time of the offense the CT concussion a confirmed that the blunt to kill to on by type suffered by they intended direct examination Dr Suarez concluded that an viewable have survived the blows his head could have killed him Suarez confirmed that have indicated 7 not assailant would not know the most Corporal Fahey perpetrators had the intent On was a Dr Suarez stated that the memory loss was specifically CT injury causes death depends an skull and would aim for the head if down and sometimes kill them Dr injury Dr Suarez stated that if probably would a may have suffered hairline fracture based Corporal Fahey could be fatal Whether such Corporal radiologist that observed Corporal Fahey occipital bone labeled reviewed expert in pathology an Dr Suarez stated that blunt trauma to the head of the scan Cazes 7 Yes responded were and the propriety of the admission of this will be discussed hereinafter 11 from jail at the by the defendant manner portion used were of Sheriff Cazes s clearly dangerous that specific weapons intent to kill implied by the was Fahey suffered serious injury dangerous body Fahey We light person most favorable through use of the handcuffs that or are to immobilize him to attempt prosecution proved beyond and to the exclusion of every reasonable head by injuring were on Corporal a reasonable doubt hypothesis of innocence all of the This degree murder elements of attempted second s presented viewed in the satisfied that the evidence the The by several blows his head caused weapons without any other pmis of his s to Corporal of the weapons use immediately began striking Corporal Fahey defendant and Gibson with jury could have reasonably concluded Thus the assignment of error lacks merit ADMISSIBILITY OF SHERIFF S OPINION TESTIMONY In the first erred in Cazes that to kill witness the even an was had the was not harmless in testify as the key issue to kill his notes that Sheriff Cazes to the ultimate issue of testimony was not helpful In the trial motion for concluding that the cOUli s judgment Louisiana Code of Evidence Article 704 in the quoted guilty of the of 12 of states opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact form an error comments responsive verdict of aggravated battery notwithstanding the verdict Testimony notes whether the defendant and Gibson Corporal Fahey the defendant denying was s notes 704 the defendant art argues that Sheriff Cazes specific intent hereinbelow not allowed to expeli witness is prejudicial whether the defendant and to C E Citing LSA beating that the trial court admissibility of Sheriff to the as avers Corporal Fahey The defendant guilt The defendant and objection testimony regarding his opinion s not the defense ovenuling Gibson tried did the defendant assignment of error However in an opinion The limitations Cazes criminal a as to the guilt the on case or art If the witness is not in the foml of opinions opinions non expert witnesses such 701 which testifying Sheriff as states as an expert his testimony inferences or inferences which or not express innocence of the accused testimony of found in LSA C E are expert witness shall an is limited those to are 1 Rationally based 2 Helpful on the perception of the witness and to a clear understanding of his testimony or the determination of a fact in issue Generally knowledge and permitted as v to a LeBlanc impressions provided he also court must properly ask allowed based upon the witness testimony State v so s La two speculative opinion evidence the to the App states 1 Cir a a to observations lay witness 10 2 06 pertinent questions to simply witness is experience may the observed facts See State 928 So 2d 599 603 determine whether the l was the testimony the defense as to elToneously admitted constitute reversible was elTor LeBlanc 2005 0885 at pp 7 8 928 So 2d at 603 The following colloquy took place at the end of the direct examination of Sheriff Cazes Q In your your with all you have just told me look at head indicating were they trYing to kill experience the back of that A testify recitation of or inferences from fact observations and 2 if prejudicial personal within his a any person of lay opinion testimony or facts However opinions or natural inference from observed facts 2005 0885 p 7 A reviewing comi only testify can subject of the testimony is such that such inferences to trial not witness lay draw reasonable inferences from his to Where the may make a man s deputy Yes 13 The defense counsel lodged In response to the don t know how he knows that stated The jury can As noted motion for come me back with the a judge stated in peliinent part guilty verdict of aggravated kill also was evidence to nature of the testimony in innocence is See also State So 2d 1099 v was opinions to an writ denied not 704 mi called 16 was fact Sheriff Cazes perceptions As the specific intent to kill we harmless comi intent the issue The evidence of the prejudicial as an was opinion to as 704 5 Cir 127 98 708 8 28 98 in 723 So 2d 415 the of plain language a of that is othelwise admissible is an ultimate issue question helpful on guilt LSA C E art App Based expeli testimony and an inapplicable regarding testimony solely because it embraces Nonetheless as on La 98 0643 be excluded s the evidence the finding of specific La general opinion testimony was s expert witness art 704 question on denying the motion the trial prohibition against expressing by the trier of issue s Hubbard 97 916 p 1106 detective who not to they could question only applicable holding that LSA C E LSA C E kill him to noting that reasonable minds could differ We note that the or have been support the jury defendant cites the above trial judge probably battery that would judge added that based In s the notwithstanding I would have they ttuly wanted could have gone either way noted that there to I felt like had The trial have finished it verdict denying the defendant aggravated battery being reason in appeal on of judgment of guilty the trial verdict objection the trial judge give that whatever weight they think it deserves the defendant by I testimony stating the above to objection an to was to be decided rationally based the determination of a on fact in arguably the testimony was admissible find that any beyond a error in admitting reasonable doubt 14 the Despite testimony the trial in judge s reservations Moreover during find we the that testimony in examination cross defendant and Gibson the evidence question were trying direct examination without defense Lejeune stated that to kill during cross Based objection on admission of the 1384 85 La L Ed 2d 490 testimony 1993 1994 S Ct 2078 2081 Thus the first celio re trying in was Also to kill him we during See State 511 denied citing Sullivan v U S v 1100 was without to any error in the Code 627 So 2d 1373 114 S Ct 1870 128 279 113 art 921 See also LSA C Cr P assignment of error lacks merit CONVICTION AND SENTENCE AFFIRMED 15 This Louisiana 508 U S 275 1993 that he find that the verdict surely unattributable question 124 L Ed 2d 182 he believed the direct examination review of the record actually rendered in this trial testimony elicited Corporal Fahey were examination and our herein objection Corporal Fahey stated believed that the defendant and Gibson reiterated the verdict In cumulative was Detective supports STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCillT 2006 KA 1543 STA TE OF LOUISIANA VERSUS JOHN H JONES J Downing assigns reasons dissents and I dissent because I find merit in Mr Jones In a case fit a was charge of aggravated battery the Sheriff of speculate before the jury that This deputy testimony circumstances where the aggravated battery unattributable to jury I cannot conclude opinions inferences which 2 and the that of error was Rouge Parish hying to kill his close these under responsive verdict verdict of surely was the error If the witness is not 1 Mr Jones could have returned the Louisiana Code of Evidence form of West Baton inadmissible was assignment that the evidence better personally concluded where the trial court allowed to first s to a testifying or 701 as an 1 provides expert his testimony in the inferences is limited to those opinions or are Rationally based Helpful art on clear the perception of the witness and understanding of his testimony or the determination of a fact in issue Here Sheriff Cazes his perceptions opine deputy I over He defense This was was not present objection testimony Since Sheriff Cazes testimony fails to not tendered as an was based at the on attack that the defendant qualify his experience Yet he was was I allowed on to to kill his can think of trying for either limitation not expert I do not address his testimony under La c E art 704 no circumstance where within Art 70 I In s testifying limitations finding this error on to the ultimate conclusion would fall lay opinion testimony harmless the majority dismisses the trial court evaluation of the evidence and calls the evidence cumulative cannot agree that in this close the inadmissible whose case testimony of prestige and office may the verdict was have influenced the jury 2 However I surely unattributable the Sheriff of West Baton s Rouge to Palish

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