State Of Louisiana VS Derek Moore
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KA 2186 STATE OF LOUISIANA VERSUS DEREK NATHANIEL MOORE Judgment rendered MAY 7 20 On Appeal from the 19 Judicial District Court p Parish of East Baton Rouge State of Louisiana Case Number 05 070341 Section 8 The Honorable Wilson E Fields Judge Presiding Hon Hillar D Moore HI Counsel for Appellee District Attorney The State of Louisiana Ron C Gathe Sonia Washington Assistant District Attorneys Baton Rouge La Lieu T Vo Clark Counsel for Appellant Slidell La Derek Nathaniel Moore BEFORE DOWNING GAIDRY AND McCLENDON JJ DOWNING J The defendant Derek Moore was charged by grand jury indictment with second degree murder count one and attempted second degree murder count two violations of La R 14 and La R 14 The defendant entered a S 30 1 S 27 plea of not guilty After a trial by jury the defendant was found guilty as charged On count one the defendant was sentenced to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence On count two the defendant was sentenced to fifteen years imprisonment at hard labor without the benefit ofprobation parole or suspension of sentence The sentences are to be served concurrently The defendant now appeals assigning error to the exclusion of an alibi witness to the sufficiency of the evidence and to the imposition of sentence immediately after the denial of posttrial motions without a waiver of the time delay Subsequent to the State response by brief the defendant also filed a s reply brief that has been reviewed and considered by this Court For the following reasons we affirm the convictions and sentences STATEMENT OF FACTS On or about March 16 2007 at about 10 p a gunman knocked on the 30 m door of a residence located at 864 North 38th Street in Baton Rouge Louisiana and held the victim Cathy Brumfield at gunpoint as he entered the home gunman asked about money and for a person named Gilbert The The gunman then began firing his weapon Officers of the Baton Rouge City Police Department were dispatched to the residence Upon their arrival the officers learned that it was the scene of the shooting of victims Kevin Lee and Ms Brumfield Brumfield died as a result of injuries suffered from the shooting was identified as the shooter of both victims 2 Ms The defendant FIRST COUNSELED ASSIGNMENT OF ERROR AND FIRST SECOND AND THIRD PRO SE ASSIGNMENTS OF ERROR In the first assignment of error the defendant argues that the trial court erred in excluding alibi witness testimony The defendant contends that the defense counsel was not informed of the name of an alibi witness until the day of the trial The defendant notes that the trial court excluded the witness pursuant to La P Cr C art 727 The defendant contends that notice was given in accordance with subsection C of the statute Arguing that even if this court finds that notice was not timely the defendant maintains exclusion of the witness was not mandatory The defendant notes that the trial court reasoned that the defense did not show good cause for the late notice and argues that the trial court failed to conduct a balancing test to determine if the State would suffer prejudice as a result of the alibi witness testimony The defendant further contends that the trial court did not consider alternatives to the exclusion of the testimony and argues that the trial court violated his Sixth Amendment constitutional right to present a defense Finally the defendant argues that the trial court error was not harmless noting s that the verdicts were not unanimous The defendant has filed a pro se brief with three assignments of error wherein he reiterates the arguments in support of counseled assignment of error number one The defendant submits that he was denied due process and equal protection of the laws in that he was particularly deprived of his Sixth Amendment constitutional right to present a defense The defendant contends that the proposed testimony of an alibi witness was relevant and notes that the evidence of his guilt was not overwhelming The defendant contends that the trial court should have granted the prosecution additional discovery or inspection regarding the alibi The defendants answer to reciprocal motion for discovery in pertinent part states that on March 16 2008 he N as in the company of a Mr David Johnson at a gentlemen loun s e 3 witness testimony and modified its previous order pursuant to La C art P Cr 3and La C art 402 729 E In the course of the voir dire the defense attorney informed the court that an answer to reciprocal motion for discovery was filed The State informed the court that despite the State previous request for notice of an alibi witness in reciprocal s discovery months before trial the defendant only gave such notice in the middle of the jury selection Contending that it had not had an opportunity to investigate any information regarding the witness the State asked the court to exclude the testimony The defense attorney stated that the defendant had just provided the information The trial court noted that the defendant had been arrested for the charges herein more than a year before the trial and found that if the defendant really knew of an alibi witness he would have provided that information to his attorney long before the jury selection The court concluded that good cause had not been shown for the delay The defendant filed writ applications in this court and the Louisiana Supreme Court for review of the trial court ruling and the s applications were denied State v Moore 08 2287 La 9 992 So 971 08 19 2d State v Moore 081925 La App 1st Cir 9 unpublished 08 18 All relevant evidence is admissible except as otherwise provided by the Constitution of the United States the Constitution of Louisiana the Louisiana Code of Evidence or other legislation La C art 402 E Louisiana Code of Criminal Procedure article 727 provides in pertinent part A Upon written demand of the district attorney stating the time date and place at which the alleged offense was committed the defendant shall serve within ten days or at such different time as the court may direct upon the district attorney a written notice of his intention to offer a defense of alibi Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi B Within ten days thereafter but in no event less than ten days before trial unless the court otherwise directs the district attorney shall serve 4 upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant presence at the scene of the alleged offense s and any other witnesses to be relied on to rebut testimony ofany of the s defendant alibi witnesses C If prior to or during trial a party learns of an additional witness whose identity if known should have been included in the information furnished under Subsection A or B the party shall promptly notify the other party or his attorney of the existence and identity of such additional witness D Upon the failure of either party to comply with the requirements of this rule the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant absence from or s presence at the scene of the alleged offense This rule shall not limit the right of the defendant to testify in his own behalf E For good cause shown the court may grant an exception to any of the requirements of Subsections A through D of this Section In evaluating whether a party has established good cause for failing to comply with notice requirements for alibi witnesses a district court should consider 1 the amount of prejudice that resulted from the failure to disclose 2 the reason for nondisclosure 3 the extent to which the harm caused by nondisclosure was mitigated by subsequent events 4 the weight of the properly admitted evidence supporting the defendant sguilt and 5 other relevant factors rising out of the circumstances of the case State v Rogers 95 1485 p 5 La App 1st Cir 96 27 9 681 So 994 997 writs denied 96 2609 2d 96 2626 La 5 693 97 1 2d So 749 The Compulsory Process Clause of the Sixth Amendment may in certain cases be violated by the imposition of a discovery sanction that entirely excludes the testimony of a material defense witness However the Sixth Amendment does not create an absolute bar to the preclusion of the testimony of a surprise defense witness Taylor v Illinois 484 U 400 409 10 108 S 646 653 98 L S Ct 2d Ed 798 1988 Several years after Taylor the Supreme Court reiterated that there is no per se bar against the exclusion of testimony for failure to comply with 5 discovery rules in the context of the notice provisions of Michigan rape shield s law Michigan v Lucas 500 U 145 111 S 1743 114 L205 1991 S Ct 2d Ed However the Supreme Court further explained its prior holding We did not hold in Taylor that preclusion is permissible every time a discovery rule is violated Rather we acknowledged that alternative sanctions would be adequate and appropriate in most cases Michigan v Lucas 500 U at 152 111 S at S Ct 1748 quoting Taylor 484 U at 413 108 S at 655 S Ct In Toney v Miller 564 F Supp 577 E La 2008 the petitioner 2d D claimed that the trial court erred in refusing to allow the testimony of two alibi witnesses his sister and his girlfriend The Court noted that the police had been told during the initial investigation by both petitioner ssister and his girlfriend that he could not have committed the robbery based on their knowledge of his whereabouts at the time of the crime In addition the petitioner former counsel s had apparently made an oral representation to the prosecutor that the petitioner had told him of the existence of an alibi witness Under those circumstances the Court found that there was no indication that the petitioner himself was attempting to gain any tactical advantage by contributing to the failure to give notice of alibi in a timely fashion Toney 564 F Supp at 589 In Taylor where defense counsel 2d did not apprise the court or the prosecution of the two additional witnesses until the second day of trial after the State two principal witnesses had completed their s testimony the Supreme Court found that the inference that he was deliberately seeking a tactical advantage is inescapable Taylor 484 U at 417 108 S at S Ct 657 Reviewing the decision of the trial court in light of the factors enumerated above this court is unable to conclude that the trial court abused its discretion in excluding the testimony in question Unlike the circumstances in Toney here there is no indication that the police or the prosecution were informed of the alibi 6 witness before the trial The trial court found that the defendant failed to give good cause warranting an exception to the notice requirement We agree There is a reasonable inference that the defendant was deliberately seeking a tactical advantage in failing to give notice herein Thus first counseled assignment of error and the three assignments of error argued in the pro se brief lack merit SECOND THIRD AND FOURTH ASSIGNMENTS OF ERROR In a combined argument for assignments of error numbers two three and four the defendant argues that the evidence is insufficient to support the verdicts The defendant does not contest the fact that the two victims were shot only his identity as the perpetrator The defendant contends that the only evidence linking him to the shooting is the testimony of Kevin Lee an admitted drug dealer The defendant contends that Lee withheld incriminating information from the police and was initially unable to identify anyone in a photographic lineup The defendant notes that Lee stated that he knew the defendant but he did not know the s defendant real name The defendant argues that considering Lee lack of s credibility and the lack of scientific evidence the State failed to carry its burden and the trial court should have granted the defendant smotion for new trial or his motion for judgment notwithstanding the verdict on the basis that the evidence was insufficient to support the verdicts The standard of review for sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant identity as the perpetrator of the crime s beyond a reasonable doubt State v Pittman 93 0892 p 5 La App 1st Cir 94 8 4 636 So 299 302 2d Where the key issue is a defendant identity as the s perpetrator rather than whether the crime was committed the State is required to negate any reasonable probability of misidentification 7 When analyzing circumstantial evidence La R 15 provides that the trier of fact must be S 438 satisfied that the overall evidence excludes every reasonable hypothesis of innocence State v Graham 02 1492 p 5 La App 1st Cir 2 845 So 03 14 2d 416 420 When a case involves circumstantial evidence and the trier of fact reasonably rejects a hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Moten 510 So 55 61 La App 1st Cir 2d writ denied 514 So 126 La 1987 2d Moreover where there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency State v Richardson 459 So 31 38 La App 1st Cir 1984 Thus the fact 2d that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient State v Azema 633 So 723 727 La App 1st Cir 1993 writ denied 94 0141 2d La 4 637 So 460 State v Quinn 479 So 592 596 La App 1st 94 29 2d 2d Cir 1985 Louisiana Revised Statutes 14 defines second degree murder as the 1 1A 30 killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm Louisiana Revised Statutes 14 defines attempt as any 27A person who having a specific intent to commit a crime does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended and it shall be immaterial whether under the circumstances he would have actually accomplished his purpose Specific intent is a state of mind and need not be proved as a fact it may be inferred from the circumstances of the transaction and the actions of the defendant State v Graham 420 So 1126 1127 La 1982 Specific intent to kill may be 2d 0 inferred from a defendant act of pointing a gun and firing at a person State v s Delco 06 0504 p 4 La App 1st Cir 9 943 So 1143 1146 writ 06 15 2d denied 06 2636 La 8 961 So 1160 07 15 2d Officer John Dauthier of the Baton Rouge City Police Department testified that he was notified two persons had been shot and he reported to the scene Upon his arrival Officer Dauthier interviewed the son of the deceased victim Darius Brumfield Brumfield informed the officer that he knew the gunman as Dot Brumfield was unable to identify the gunman from a photographic lineup Brumfield stated that the gunman had twists in his hair at the time of the offenses unlike anyone in the lineup Officer Dauthier also interviewed the other victim Lee Lee stated that on the day of the shooting he and the defendant whom he referred to as Dot and Gilbert Schuler had been involved in the purchase of narcotics that the defendant having given a sum of money approximately 4 to Schuler for the 00 500 purchase of narcotics When the deal was not consummated because Schuler did not return with the promised product the defendant became upset The defendant came to Lee house and began accusing him of being part of a conspiracy to take s money from him The defendant inquired as to the whereabouts of his money and Schuler Lee further informed Officer Dauthier that this was when the defendant began firing his weapon at Lee girlfriend the deceased victim Lee identified the s defendant as the shooter from a photographic lineup Officer Dauthier was unsure as to why an interoffice written communication between him and Detective Gann indicated that Lee was unable to identify anyone in a lineup and did not remember typing or reading such a communication Brumfield testified that shortly after he heard a knock at the door he heard screaming and walked to the front of the house to investigate mother the deceased victim were screaming 9 His sister and his The gunman held the gun to his s mother head Brumfield stated that the gunman was a man known as Dot Brumfield ran to his bedroom to hide After the gunshots ended Brumfield walked back to the front of the house and saw his mother on the floor bleeding and also observed Lee bleeding Brumfield further testified that he heard Dot hollering and asking for someone named Schuler before he heard the gunshots Brumfield stated that he could not identify anyone in the photographic lineup because the gunman had twists or dreadlocks in his hair During cross examination Brumfield stated that Lee told him that the gunman was Dot Lee testified that on the morning of the offenses his longtime friend Schuler and Dot called him Lee had known the defendant for about five to seven years Lee identified the defendant as Dot in court Lee testified the defendant had previous deals with Schuler before the date in question wherein the defendant would pay for drugs before receiving them This time however Schuler did not come back with the drugs Lee suffered gunshot wounds to his neck back and side Lee confirmed his identification of the defendant from a photographic lineup Based on our review of the evidence we conclude that the State negated any reasonable probability of misidentification Positive identification by only one witness may be sufficient to support a conviction State v Andrews 94 0842 p 7 La App 1st Cir 5 655 So 448 453 Herein the trier of fact accepted 95 2d the testimony of Lee Lee knew the defendant very well and his factual account was consistent with the statements that Brumfield heard the gunman make before the shooting An appellate court is constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases that determination rests solely on the sound discretion of the trier of fact As the trier of fact a jury is free to accept or reject in whole or in part the testimony of any witness Richardson 459 So at 38 A rational juror could have concluded that 2d all of this evidence together viewed most favorably to the State proved beyond a 10 reasonable doubt that the defendant committed the instant offenses This assignment of error lacks merit FIFTH ASSIGNMENT OF ERROR In the final assignment of error the defendant contends the trial court erred in sentencing him immediately after denying his motion for new trial and motion for post verdict judgment of acquittal without obtaining a waiver of the sentencing delays The defendant argues that the case should be remanded for resentencing In his reply brief the defendant further argues that the Official Revision Comment to La C art 873 and State v Martin 199 La 39 5 So 377 1941 P Cr 2d required that the defendant be apprised of the right to a sentencing delay prior to an express waiver of said right The defendant is correct in that the trial court did not wait the required twentyfour hours after denial of the defendant motion for new trial motion in s arrest of judgment and motion for postverdict judgment of acquittal before imposing sentence See La C art 873 However in response to the trial P Cr s court inquiry as to whether or not the parties were ready for sentencing the s defendant counsel stated We are ready judge Based on our statutory and jurisprudential review we do not find that the validity of the defendant express s waiver hinges upon the trial court express appraisal of the right to a sentencing s delay Article 873 concludes If the defendant expressly waives a delay provided for in this article or pleads guilty sentence may be imposed immediately The defendant relies on the Official Revision Comment to Article 873 and the Louisiana Supreme Court ruling in Martin In Martin the defendant argued in s Although the minutes iinply that the defendant filed the motion for new trial and motion for post judgment verdici of acquittal after the sentencing the motions were filed and ruled on before the sentences were imposed R 124 27 717 18 La C art 873 requires a 24hour delay in sentencing after denial of a motion for new trial or in arrest of P Cr judgment unless the defendant waives said delays The article does not explicitly require a 24hour delay in sentencing alter a motion for a post verdict judgment of acquittal has been denied However this Court has applied the 24 hour delay in La Code Crim P art 873 to motions for post verdict Judgment of acquittal See State v Coates 00 1013 p 5 La App I st Cir 12 774 So 1223 1226 and State N Jones 97 2521 p 2 La 22100 2d App I st Cir 9 720 So 52 53 25198 2d 11 part that her sentence was illegal because it was imposed on the same day on which she was tried and found guilty The Louisiana Supreme Court found a sufficient waiver of the delay and noted as an important factor that the trial court in that case explained to the defendant that she was entitled to the delay of twentyfour hours before being sentenced However the Court did not mandate such an explanation as a prerequisite to a sufficient waiver nor does the Official Revision Comment to Article 873 In State v Flowers 337 So 469 474 La 9 the defendant was 2d 76 13 present in court with his counsel at which time his motion for a new trial was denied and he was sentenced The court asked defendant if he wished to be sentenced on that date and his counsel replied in the affirmative The Louisiana Supreme Court found that this constituted an express waiver of the delay Indeed the jurisprudence is replete with findings of sufficient waivers without mention as to whether an explanation of the delay preceded the waiver See State v Steward 95 1693 p 23 La App 1st Cir 9 681 So 1007 1019 State v 96 27 2d Lindsey 583 So 1200 1206 La App 1st Cir 1991 writ denied 590 So 2d 2d 588 La 1992 See also State v Ferrell 94702 p 11 La App 5th Cir 95 30 5656 So 739 745 writ denied 95 2360 La 4692 So 433 2d 97 18 2d In State v Diaz 931309 p 16 La App 3d Cir 4 635 So 499 94 6 2d 508 09 writ denied 941189 La 9 642 So 191 neither the defendant 94 16 2d nor his attorney objected to sentencing being held immediately after denial oftheir motion for new trial and they did not assign the Article 873 violation on appeal The court found that the defendant and his attorney impliedly waived the delay by their active participation in the sentencing hearing Noting that the defendant received the minimum sentence under the statute the court found the error harmless 12 In the instant case by announcing his readiness for sentencing the defendant waived the waiting period Moreover on count one the defendant was subject to a mandatory sentence of life imprisonment at hard labor without the benefit of probation parole or suspension of sentence In State v Seals 950305 La 96 25 11 684 So 368 cert denied 520 U 1199 117 S 1558 137 2d S Ct 2d Ed L 705 1997 the Louisiana Supreme Court considered the mandatory nature of the death sentence in a first degree murder case and the fact that no prejudice could be shown for the failure to wait twentyfour hours before sentencing Distinguishing State v Augustine 555 So 1331 La 1990 the 2d Court held Absent a showing that prejudice resulted from the failure to afford the statutory delay reversal of the prematurely imposed sentence is not required Seals 95 0305 at p 17 684 So at 380 see also State v White 404 So 2d 2d 1202 1204 La 1981 La C art 921 P Cr The defendant did not raise any objections regarding the sentences imposed or cite any prejudice resulting from the trial court failure to delay sentencing nor have we found any indication that he s was prejudiced Based on the foregoing this assignment of error lacks merit DECREE For the above reasons we affirm the defendant convictions and sentences s CONVICTIONS AND SENTENCES AFFIRMED 13
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