State Of Louisiana VS Tremayne Simms
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KA 0977 STATE OF LOUISIANA VERSUS TREMAYNE SIMMS On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 07 07 0394 Section VII Honorable Todd W Hernandez Judge Presiding Hillar C District Moore III Attorneys for State of Louisiana Attorney Allison M Rutzen Assistant District Baton Rouge Attorney LA John H Craft Louisiana Appellate Project New Orleans LA BEFORE PARRO Attorney for Defendant Appellant Tremayne Simms KUHN AND McDONALD JJ Judgment rendered December 23 2009 PARRO l The defendant Tremayne Simms violation of LSA manslaughter a the defendant was convicted Subsequently the defendant labor The defendant now 14 31 new He trial not guilty Following a jury trial timely moved for post verdict however the trial court denied both motions sentenced to was pled The defendant charged as judgment of acquittal and for a 5 R charged by grand jury indictment with was appeals urging twenty years of imprisonment assignments of two error as at hard follows The trial court erred in denying the post verdict motion for judgment of acquittal because the evidence 1 was found a committed in self defense was 2 beyond not such that any rational trier of fact could have killing was not justifiable because it reasonable doubt that the The trial court erred in denying the defense s motion to quash on the grounds of the unconstitutionality of any grand or petit jury selected in conformity with Article 401 A 9 Finding S of the Code of Criminal Procedure which conflicts with Article I 20 of the Louisiana Constitution of 1974 merit in the no assigned errors we affirm FACTS On the afternoon of July 3 2007 Deputy Jared Neyland with the Rouge Parish Sheriff s Office when he heard found a was attending commotion in the Mongail Long the victim had sustained stab wounds to his lobby by the defendant during nose the victim collapsed Deputy Neyland entered the lobby and a upper chest middle chest and upper left He leg Deputy Neyland that the victim had just been fight nearby residence and that the defendant discussion at the Scotlandville substation leaning against the counter bleeding profusely Several unidentified individuals advised stabbed meeting a East Baton They advised that the fight occurred was still present in the at a During this area onto the floor Immediately thereafter Deputy Neyland observed the defendant running down the street outside the substation him to stop The defendant refused to stopped behind a Neyland attempted continued to Deputy Neyland chased the defendant and ordered comply He continued to nearby fire station because he had to subdue the defendant and pull away s and further outlet place handcuffs In response to the defendant 2 no run on him eventually As Deputy the defendant continued efforts to resist he in the facial area with Freeze Plus P control spray was sprayed was Then the defendant successfully subdued Meanwhile later died of the An the victim was transported to Earl autopsy later revealed that two major arteries to death stabbing causing the victim to bleed In response to manslaughter stabbing the Long Medical Center where he K were severed The defendant was as a result arrested for police questioning the defendant eventually admitted to victim and claimed he did so in self defense SUFFICIENCY OF THE EVIDENCE In his first presented the at Specifically he assignment of trial insufficient was support the manslaughter conviction to asserts the state failed to prove that he did not act in self defense when he stabbed the victim during the physical altercation The standard of review for the is whether the defendant contends that the evidence error viewing the evidence sufficiency of the evidence to uphold in the most favorable to the light rational trier of fact could conclude that the state crime beyond a 2781 2789 61 Mussall reasonable doubt L Ed 2d 523 SO 2d 1305 560 1979 1308 09 to prove the commission of fact to be Jackson an see La offense LSA Virginia 443 U S 1st Or 2 19 99 730 So 2d 485 486 and 00 0895 La 11 17 00 s R 15 438 See State writs denied and circumstantial defendant is 10 21 97 701 So 2d 922 722 must 773 So 2d 732 guilty beyond a be sufficient to reasonable 930 cert denied 1998 3 art 307 319 821 B 99 S Ct State v requires that assuming every doubt 524 to convict La This is not a 10 29 99 a conviction satisfy a State s U 943 it must exclude Wright 98 0601 v 99 0802 applied when circumstantial evidence forms the basis of direct prosecution any When circumstantial evidence is used proved that the evidence tends to prove in order hypothesis of innocence conviction proved the essential elements of the also LSA CCr P 1988 every reasonable 1157 v a separate Ortiz App 748 SO 2d test to be all evidence rational v La both juror that the 96 1609 La 118 S Ct 2352 141 L Ed 2d As previously noted the defendant manslaughter Louisiana Revised Statute as charged with was 14 31 defines and in manslaughter convicted pertinent part follows A Manslaughter is A homicide which 1 first degree murder would be murder under either Article 30 Article or 30 1 second but the offense is committed in sudden immediately caused by of provocation his degree murder passion or sufficient self control average person Provocation shall not reduce and great bodily at the time without any intent to the death cause engaged in the perpetration attempted or perpetration of any felony not enumerated in Article 30 or 30 1 of any intentional misdemeanor directly affecting the person that the offender actively desired the prescribed criminal consequences failure to act LSA proved as a 5 R 14 10 1 victim Since State it need not state of mind bodily injury The defendant asserts that his actions repeatedly beating him while he was on victim struck him with both hands the victim showed no intent to pants during the beating danger of losing his life The fact that defense to one the was La 1982 justifiable because he acted to himself solely in response to the victim ground struggling of which was in self by the victim during the fight to get covered with up s actions of He claims the a cast He claims stop beating him until he used the knife that fell from his The defendant claims he believed that he or an were 1127 deny that he intentionally stabbed the however that the homicide defense to avoid further serious a a Graham 420 SO 2d 1126 v the defendant does not case He insists constitutes specific intent is to follow his act fact but may be inferred from the circumstances of the transaction and the actions of the defendant In this or intent is that state of mind which exists when the circumstances indicate Specific be or harm When the offender is a an reflection manslaughter if the blood had actually cooled or that average person s blood would have cooled offense was committed or A homicide committed deprive cool an 2 heat of blood to homicide to a jury finds that the offender s or of was in imminent receiving great bodily injury offender s conduct is justifiable although otherwise criminal prosecution for any crime based 4 on that conduct LSA 5 R At the time of the offense in 14 18 LSA R S question 14 20 provided in pertinent part A homicide is justifiable 1 When committed in self defense by one who reasonably believes danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger that he is in imminent 2 When committed for the forcible felony involving danger reasonably believes that who purpose of to life or of such an preventing a violent or great bodily harm by one offense is about be to committed and that such action is necessary for its prevention The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing When the defendant in beyond must prove defense 939 be State a 12 6 00 02 0399 prevent an 01 0944 La La 2 14 03 was the state not committed in self 1st Cir 12 28 01 App 836 SO 2d 135 imminent assault 775 So 2d 579 584 viewing the evidence in the On light finder could have found beyond self defense Fisher State 723 writ denied the fatal incident Tumblin 1 804 So 2d 932 For the defendant s actions to Tammy Tumblin Tammy were were Nelson v La App 2nd Cir most favorable to the rational fact prosecution a after reasonable doubt that the defendant did not act in 95 0430 11 1 96 La App 1st Cir 5 10 96 673 So 2d 721 681 So 2d 1259 testify the circumstances surrounding provided only by eyewitnesses Brandon Tumblin and Michelle on the date of the both at the residence of Tammy Tumblin was already there when the completing errands also testified 2 According were and the victim both running routinely 5 stabbing the defendant Brandon victim to Brandon However she admitted that she The defendant and the victim Tumblin is disabled 34 077 or not since the defendant did not The defendant returned from occurred La a State appeal the relevant inquiry is whether Brandon Tumblin testified that and the victim Street v 96 1412 At the trial 2 prosecution claims self defense justified the force used must be reasonable under the circumstances and apparently necessary to 1 homicide reasonable doubt that the homicide Williams v writ denied a was s aunt Brandon on and Tammy the defendant and the inside her home when the away when she Lewis came fight outside drove for her and assisted her with errands in eventually became involved victim verbal altercation a allegedly occurred between them the previous day they leave it alone at the defendant shirt and watch Despite Tammy s instruction that When the victim became the verbal altercation continued disrespecting him if as preparing approached the porch where the It 3 he entered victim was the defendant The verbal altercation continued standing eventually escalated and became physical when the victim struck the defendant the face causing him backed up defendant at this of the victim to fall The victim continued to strike at the defendant against the side of the porch covering his face During the By this time the defendant in the Now able to porch the chest in he was his knees pocket The According leg However s Brandon s off the ran to Brandon According he did porch and the victim Brandon s Like testimony sister Brandon causing him to fall to Brandon to the momentarily turned her back he ground were to walk off of the inflicted There was never a The details about the incident source were pause not again after the initial fight or claimed she Michelle did not was never a at the trial see when period of time stopped beating the fight Testimony of the friction between the defendant and the victim 6 explained that the Michelle when the victim break in the developed it She porch and when she turned back she She claimed there before the defendant stabbed him in the chest defendant hitting the defendant somewhat at odds with attempted to get up observed the defendant stab the victim in the upper chest the other stab wounds Scotlandville However Michelle claimed the victim pocket and he grabbed defendant s to the Michelle also testified that the victim hit the knife the and stabbed the being stabbed again was as from rose testified that she also witnessed the continuously beat the defendant fell still was not hit the defendant testimony about the details of the incident defendant first over Instead the victim backed away to avoid Michelle Tumblin Michelle get up from the ground the defendant The victim get help in the stabbing the leg as in point the victim backed away from the defendant all the way to the other side when the knife fell was was on encounter a knife fell from the defendant s picked up the knife and stabbed the victim substation to 3 upset Tammy s residence and removed his When the victim returned fight to regarding something that established that this incident The defendant s self defense claim preserve the defendant Michelle Tumblin defendant Michelle s in this case indicates that the guilty verdict returned life s or concluded that the homicide See LSA 5 R 14 20 1 account of the events s and 2 jury believed inflicted Although continuously and repeatedly as defendant before being stabbed in the chest she also testified that she momentarily was ground and he it on the defendant and turned back around could have conjunction with the defendant was up This is his feet on s back were actions not The defendant why by the time Michelle Thus needed to save the immediately after the stabbing actions of s defendant ie a rational trier of fact was not repeatedly stabbing the s life Moreover Upon a of the record in this prosecution we find that case a all viewing the evidence in the light most rational trier of fact could have concluded that the defendant did not act in self defense in error are theory of self defense our review favorable to the the failing to report the incident running from the police and initially being dishonest with the arresting officers inconsistent with was to discontinue reasonably concluded that the fatal force utilized by the defendant wounded victim s in leg causing the victim briefly back away necessary under the circumstances defendant stopped striking the is reasonable to conclude that while Michelle the defendant stabbed the victim in his his attack never fight When considering Michelle s testimony that of Brandon Tumblin turned on the was struck the victim turned away from the down not necessary to they could have reasonably found that the account of the incident reflected that the victim he was Even if the longer defending himself when the fatal blow was no jury either rejected the killing the victim This assignment of lacks merit DENIAL OF MOTION TO OUASH CONSTITUTIONALITY OF CODE OF CRIMINAL PROCEDURE ARTICLE 401 A In his second are excluded unconstitutional from as assignment of error jury service He it conflicts S the defendant argues that directly with LSA Const complains that convicted felons LSA C Cr P art I art S is 9 20 by excluding from jury service convicted felons whose citizenship rights have been restored 7 401 A Louisiana Code of Criminal Procedure article 401 A qualify to serve as a juror have been convicted of Article I a person must n conviction for any offense in order to ot be under indictment for a which citizenship shall be restored upon termination of art provides that felony for which he has not been pardoned a 20 of the Louisiana Constitution the restored 5 provides in Defendant argues that the right nor Defendant cites Full part state and federal felony rights of supervision following to serve on a is one of jury rights contemplated by that constitutional provision and that LSA C Cr P 401 A 5 is therefore unconstitutional We find no merit in the defendant s argument Restoration of full supervision under Article See State jury So 2d 1206 work or hold I 20 does not restore convicted felon a Selmon 343 So 2d 720 721 22 v 1211 rights of citizenship upon release from federal La App 2nd Cir 1987 public office are restored La 1977 State Only basic rights such State Adams v s as right or to sit state on a Haynes 514 v the to vote right 355 So 2d 917 922 La 1978 Article V 33 A of the Louisiana Constitution who has reached the age of which he is domiciled legislature was LSA CCr P SO 2d 82 956 The See State 91 writ denied 127 S Ct 385 on the defendant the defendant s the v 05 2072 166 L Ed 2d 276 authority Jacobs 04 1219 La 4 28 06 juror within the parish in in The instituting the qualifications La App 5th Cir 5 31 05 927 So 2d 282 cert denied 549 in 904 s U 2006 foregoing discussion motion to serve as a A citizen of the state legislature may provide additional qualifications well within its constitutional art 401 Based majority is eligible to provides we find no error in quash the grand jury indictment the trial court The s denial of argument raised by challenging the constitutionality of the jury service criteria is without merit For the foregoing reasons the defendant s conviction and sentence CONVICTION AND SENTENCE AFFIRMED 8 are affirmed
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