State Of Louisiana VS Delmar Cox
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 KA 1685 STATE OF LOUISIANA VERSUS DELMAR COX Judgment On Appeal rendered from the 21 st March 28 2007 Judicial District Court Parish of Tangipahoa State of Louisiana Suit Number 111667 Division B The Honorable Bruce C Bennett Judge Presiding Scott M Perrilloux Counsel for Appellee District State of Louisiana Attorney Morgan Griggs Assistant District Amite Margaret S Sollars Thibodaux LA BEFORE I Attorney LA S Counsel for Appellant Delmar Cox PETTIGREW DOWNING AND HUGHES JJ DOWNING J Delmar Cox The defendant degree murder with second Following guilty a was charged by grand jury Cox jury trial found was in arrest of judgment all of which of was probation sentenced parole life to imprisonment pled not The charged as Cox waived any denied were guilty He judgment of acquittal defendant filed motions for new trial post verdict delay and 14 30 1 violation of La R S a indictment and sentencing hard labor without benefit at Cox now appeals of error We affirm the conviction and sentence of sentence suspension or designating one assignment FACTS Cox lived in his trailer in Kentwood a At Ballard time one Booty and Booty s s with a twelve gauge Cox up him and his near truck the him I 3 at a used to Dodge to kill run out of found gas Rainey According to s car a room car was at O s s and drove to the with money from to Cox s pickup huck Auto Sales in Kentwood Caravan Cox removed from his to hold it for closet in his office The Ballard and asked in a The defendant s brother Rainey brought the defendant to get gas for his Auto Parts in Hammond Reilly Booty used her identification card for the registration The defendant gave Sam Rainey s wallet s brought them Rainey agreed and put the shotgun Ballard On house and shot and killed Ballard They rented the hotel and shotgun he used 2 3 mother had lived with Ballard He took Ballard family then drove Booty bought The defendants truck had truck the house of Wallace 1 Cox and his where and three children ShOlily thereafter Cox contacted his brother who picked family house Cox near Booty and their children left in Ballard wallet s shotgun Inn Hotel in Hammond Magnolia Ballard Tangipahoa Parish Cox went to Ballard 2004 10 August long time girlfliend Tiffanie Booty and their sale a and she signed down payment of the bill of sale 600 00 in cash the defendant the defendant s nephew owned the shotgun 2 and the motor vehicle defendant left his truck Mississippi in the Following a traffic stop in for first Dodge a Rainey at he and his headed family to Caravan Texas Mississippi they went to brief stay in Texas Cox Laporte and s arrested based was Pursuant to arrest warrant on an degree murder in Louisiana Following questioning in Texas by two detectives from the Parish Sheriff s Office he Tangipahoa extradited was to Louisiana Detective Randy Henigan Sheriff s Office when Ballard the crime from door scene killed testified at trial that he Henigan detennined that Detective opened up to Ballard was either bedroom s It sitting up standing or distance from the bathroom window to appeared on s a his bed when he s was shot bed was his bed have been hit by the shotgun blast Detective Henigan testified some was near phone lines had been unplugged from outside of the house cross There examination Detective was no Henigan testified that he expert and that while he could not state the shots fired that killed Ballard came The bathroom doorframe had Ballard s bedroom wall through the bathroom bedroom The It appeared doorframe and shotgun used to a it as a was about to The front were broken s not on house a the On ballistics fact the evidence showed that from outside the bathroom window bullet hole that a A slug slug fired from lodged into was the cut out shotgun of went the north wall of Ballard kill Ballard later retrieved from 3 The that when he the phone junction box weapon found in Ballard on appeared of the BBs inside of it screened door and the window in the front door of the house The two fired that Ballard who died Ballard shook the walker he could hear was The bathroom house the foot of Ballard metal walker which investigated shotgun twelve feet s Parish Tangipahoa with the was open bathroom window in front of Ballard an his bed was who Rainey s s Auto Sales England Firearms single shot twelve New was a type of shotgun requires the barrel to cracked be This gauge open to load and unload each shot Patrick Lane firearms identification a Police Crime Lab testified that two shots source not of the were fired the pellets found trial that the crime slug at the and a and in Ballard scene scene Lane testified that while the that killed Ballard it is very shotgun evidence indicated scene No 6 lead shot shell which at the crime slug found determine if the twelve gauge at expert with the Louisiana State slug to rare very from the came was identify the Lane could body s was shotgun consistent with slug back a to a a particular firearm Dr Michael pathologist that he Defatta for the St the Tammany Ballard who autopsied shotgun pellet patterns on defects in the skin which Deputy Coroner and Chief Parish Coroner was his chest and face arms Ballard sustained There autopsy that there in some have way shape explained A was a a or It was metal walker in the form lot of the And large brought vicinity celiainly it defects on the was heart cavity chest cavity blood alcohol Multiple pellets The pellets content be homicide and the were entered on level of 016 cause of death or The 4 next to Mr larger these at the Ballard That would I found was found within the lungs and the pmi of the heart manner was a attention damaged removed from the the front also Regarding to my body that shotgun pellet which perforated the heart were type of intermediate some target in the pathway between Ballard and the shotgun defects in the skin Dr Defatta stated testified at trial Office years old sixty eight consistent with were s forensic of death was entire Ballard had determined shotgun wound to the chest a to Jerry McDowell who Detective Sheliff s Office when Ballard days after the killing defendant while he was he in was played The or the Booty were statement Ballard had arguing The shot went through the Department and transcript The videotape indicates that after At this a pistol and Ballard fired glass window of the Ballard went to Cox left retrieved his nephew a being s to house he told Cox to s shotgun from shot at the defendant house Cox fired point of the interview Cox stated he one shot standing was at in bedroom door when he shot Ballard Later in the interview Ballard Texas Police Laporte The defendant stated that when he he would shoot him s interviewed the submitted into evidence were his truck and went back to the house Ballard Bell although initially denying shooting Ballard confessed Cox him Ballard trial that about eleven videotaped and the videotape transcript of the defendant s Ballard and leave at for the jury Mirandized shooting was statement s killed testified at Tangipahoa Parish with the and Detective Robert custody The defendant s interview of the defendant was was Cox stated that he shot through his bathroom window another shot at Ballard and killed him which contained about 1 200 00 saw what happened house after she heard the first shot fired and Cox fired Cox then took Ballard Cox stated that he shot Ballard because he When asked if Booty wmTImg shot at Ballard shot back 1 300 00 or a s wallet Still later in the interview was threatening Cox stated that Booty When asked how his family came to the they got inside he stated that he broke the window out Cox testified McDowell and Bell statements he had at trial He stated that his was given not true to because he doctors statement was given scared regarding the incident 5 to Detectives He also stated that were not true He explained that he lied because he he did not shoot Ballard happened the on explanation Fearing that Ballard would be immediately yards When it home about Cox s angry for not s house truck was a out of gas bed heard Ballard trying Cox heard some Booty Cox that Ballard bathroom door was was trying was closed only about sixty out at the river and bad that so they walk home which they got to their trailer Cox did dope to help her Cox saw Booty kill her Unable to was Booty standing an and shot Ballard door and was a locked wallet and hour later he raised and shotgun bedroom ran s to window Booty told slightly in the bathroom and the raise the window Cox shoved the and the bathroom door in the bathroom they began grabbed his nephew in the was was not want to argue and leave the trailer and about Booty took the shotgun and fired hole in the doorframe fire a decided to go shotgun and the shells through the small opening made by raised window built to The window to with them buying his groceries they did shells from the trailer loaded the raise the window up to were buy dope they had When he arrived he house s buy groceries for so more Booty screaming for him shotgun and to When mile away arguing because Booty wanted went to They hung following offered the Their children got dark the mosquitoes got quarter of a Cox go back to their trailer house which away from Ballard He testified that the defendant used the money to Booty and They smoked dope all day and got high not Booty direct examination about what on killed was save 70 in cash from Ballard Booty got Instead Ballard When asked day Ballard to trying was a the partially shot The shot made came Ballard open a was doorway Booty unloaded the shotgun reloaded it He then went to the front door and tried to enter but the Booty came some to the front door with the shells in the other hand 6 shotgun Booty could in one hand not open the door so she broke the then reached the shotgun through the window and unlocked the door casings and and the shell part of this children glass windowpane in the door with the shotgun Cox she as They They was went back told him that he just was their trailer and went to Booty put the shotgun in his truck From there they much as picked the river where the defendant s truck to gave Cox up their Cox was Magnolia went to the a Inn Hotel in Hammond On examination of the defendant the cross place regarding whether there was a Q There t wasn gun in Ballard gun in the house that no following colloquy took house s night from Wallace Ballard A No sir So when those said We didn t see Q none A to police no gun came back there the next and day they were right They sic were be recovered That s right ASSIGNMENT OF ERROR In this to suppOli of assignment the error conviction specifically that the of Cox argues the evidence second degree State failed to prove that it was murder was insufficient contends He he instead of someone else who shot and killed Ballard A conviction based Due Process See U S on insufficient evidence Const amend XIV reviewing claims challenging the sufficiency must consider favorable to the whether after prosecution 443 U S 307 319 the La Const mi of the evidence evidence in the as I it violates 2 S In this Court light most any rational trier of fact could have found the essential elements of the crime Virginia viewing cannot stand beyond a reasonable doubt 99 S Ct 2781 7 2789 61 L 2d Ed Jackson 560 v 1979 See also La Code Crim P 1308 1309 La incorporated in Article 821 evidence State The Jackson 1988 is must be factfinder for reasonable doubt 14 30 1 Second A State RS provides that the 438 15 Patorno 01 2585 v 5 p La 1 Cir App 144 provides in pertinent part degree murder is the killing of a human being When the offender has great bodily harm 1 Specific La When satisfied the overall evidence excludes every reasonable 822 So 2d 141 La R S of review objective standard for testing the overall an evidence of innocence hypothesis Mussall 523 So 2d 1305 v Virginia standard v both direct and circumstantial analyzing circumstantial 6 21 02 821 B art intent is that specific intent a mind of state to kill which to or inflict when exists the circumstances indicate that the offender actively desired the prescribed criminal consequences to failure Such be fonned in p state of mind La 1125 96 13 as a can follow his act an or instant 684 So 2d 382 390 State Specific La R S v 14 Cousan to act 94 2503 intent need not 1 10 be proven fact but may be inferred from the circumstances of the transaction and the actions of defendant State v Graham 420 So 2d 1126 1127 La 1982 The trier of fact is free to testimony of any witness accept Moreover or reject when there is about factual matters the resolution of which of the credibility of the witnesses the evidence to be not given will not its sufficiency evidence is not reweigh to s appellate the evidence to ovelium 8 depends matter The trier of fact subject in whole a is or in part the conflicting testimony upon one a of the determination weight of the detennination of the review factfinder An s weight appellate com1 determination of State guilt 97 2261 Taylor v 5 6 pp La App 721 1 Cir 9 25 98 So 2d 929 932 When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant s own testimony that hypothesis falls and the defendant is guilty unless there is another that raises hypothesis of innocence was based guilty defendant State Captville 448 v In the instant matter the defendant La 1984 So 2d 676 680 reasonable doubt a the theory that on of second murder degree clear the it is hypothesis In Booty shot Ballard s finding the jury resolved against the defendant the conflicts between the defendant s trial and his taped itself 4 See statement Captville as well as the conflicts within the taped testimony statement 448 So 2d at 679 Following the shooting of Ballard in Louisiana and then to Texas Cox fled in During the a newly early stages of bought vehicle to the defendant s questioning by Detectives McDowell and Bell Cox denied Mississippi He stated that he shot Ballard really know really don had My nephew stated I a t know It shotgun I didn t killed sic was this who done killed the Now who killed the at the liver with As the man I don t man me I don t man own a gun Later the defendant interrogation progressed Cox admitted that he shot and killed Ballard A finding of purposeful misrepresentation reasonably inference of the has 4 For there case guilty mind a of material been his taped as arguing indicative case of of facts of an flight following following awareness interview Cox stated that Ballard had gun in Ballard s house at Ballard s house in the misrepresentation recognized example during was no as Also at one point during his taped with him before he went interview Cox stated that Booty went to Ballard s house 9 over offense offense of the or Lying wrongdoing glill yet at trial he testified that interview he stated that Booty was a there with the afier she an an raises shotgun gunshot heard the first Later during the Captville 448 both trial finding testimony Cox guilty 17 10 as 772 So 2d 78 conflicts with the La So 2d 592 596 defendant did at trial Booty and not statement thirteenth cases a 1 Cir 1985 specific 612 intent 2d So innocence 183 by him a a the as at trier of fact does kill 190 s State La verdict See to to the a shotgun inflict great App an La at bodily a fairly close harm 1 Cir 1992 that the inference who killing Captville 448 So 2d at as a was 680 result The fact that range indicates See State As such the Wallace v hypothesis of falls we conclude that the evidence Viewing the evidence in the light doubt and to the exclusion of every reasonable was to 479 his claim that it the State any rational trier of fact could have found the defendant 8 Quinn v the chest from about twelve feet away or a render the not by the jurors only witness thorough review of the record suppOlis the jury 99 3342 p trial established that Ballard died presented by the defendant After to to was assessing what weight The conclusion who shot Ballard to all of his constitutionally are Mitchell v would have been unfavorable shotgun wound of and concluded that We in juror See State Cox shot Ballard in the chest with a some or following the fatal shot the trier of fact insufficient App he acts The fact that the record contains evidence that 83 Further the testimony elicited of taped and preceding a if told truth testified established testify truthfully could reasonably support not that the of his testimony accepted by accepted by evidence jury rejected some evidence in criminal 00 it is clear the deflect blame from him to precluded from acting give as events designed matter misrepresentation by the defendant well as his version of the fabrication The facts in the instant 680 nA and material flight In at 10 beyond hypothesis guilty of second degree murder most a favorable reasonable of innocence that The assignment of error is without merit DECREE Accordingly we affirm the defendant s conviction and sentence CONVICTION AND SENTENCE AFFIRMED 11 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 KA 1685 STATE OF LOUISIANA VERSUS DELMAR COX HUGHES J concurs While defendant evidence unfOliunately s it stOlY was at not trial is plausible his first story and matches the physical
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