State Of Louisiana VS Emanuel Brown
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 KA 1765 STATE OF LOUISIANA VERSUS EMANUEL BROWN 60 Judgment Rendered Maw 6 2011 r Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 02 04 0126 Honorable Richard D Anderson Judge Hillar C Moore 111 District Attorney Tracey Barbera Assistant District Attorney Attorneys for State Appellee Baton Rouge LA Frank Sloan Attorney for Mandeville LA Defendant Appellant Emanuel Brown BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J The defendant Emanuel Brown was charged by bill of information with two counts of attempted second degree murder counts 1 and 3 violations of La S 30 R 14 and 14 and three counts of attempted armed robbery counts 2 4 1 27 and 5 violations of La R 14 and 14 The defendant pled not guilty and S 64 27 following a jury trial was found guilty as charged on all counts The defendant filed a postverdict judgment of acquittal which was denied For the conviction for the attempted second degree murder of Dallas Byrd count 1 the defendant was sentenced to fifty years at hard labor without benefit of parole probation or suspension of sentence for the conviction for the attempted armed robbery of Dallas Byrd count 2 the defendant was sentenced to fortynine years at hard labor without benefit of parole probation or suspension of sentence for the conviction for the attempted second degree murder of Troy Godeaux count 3 the defendant was sentenced to fifty years at hard labor without benefit of parole probation or suspension of sentence for the conviction for the attempted armed N robbery of Troy Godeaux count 4 the defendant was sentenced to fortynine and onehalf years at hard labor without benefit of parole probation or suspension of sentence and for the conviction for the attempted armed robbery of Ergin Dale Crochet Jr count 5 the defendant was sentenced to fortynine and onehalf years at hard labor without benefit of parole probation or suspension of sentence The sentences were ordered to run concurrently to each other but consecutively to any other time served The defendant now appeals designating one assignment of error We affirm the convictions and sentences FACTS Dallas Byrd worked at Icon a lounge on Highland Road in Baton Rouge On October 12 2001 at about 2 a Byrd finished his shift and walked out the 30 m back of Icon toward his car As he approached the driver side of his car two s 2 men who were crouched down stood up The man in front pointed a gun at Byrd and demanded his money As Byrd turned to run away the gunman shot him Byrd stumbled and fell and the two men ran Byrd survived his injuries and testified at trial that the two men were black The person who shot him was almost six feet tall and thinner than his accomplice Byrd could not identify either man because they were wearing bandanas over their faces The person who shot Byrd was also wearing a blue hoodie At the scene where Byrd was shot police officers with the Baton Rouge Police Department recovered a 45 caliber bullet and a 45 auto cartridge case The bullet which had exited Byrd body was lodged in s s Byrd shirt Troy Godeaux worked for Tiger Steam Cleaning which cleaned restaurant hood systems on grills On the night of December 10 2001 Godeaux was working at Superior Grill after closing time and after the manager had left Godeaux was cleaning the grill hood with a pressure washer when two men entered Superior Grill and yelled at Godeaux to get his attention Godeaux testified at trial that as he turned he saw two black men pointing guns at him and demanding that he open the manager office for them Godeaux did not have the keys to the office which s was locked One gun was black and the other gun was silver The taller thinner man had the silver gun Both men wore hooded sweatshirts and had bandanas on their faces Godeaux who was holding the pressure washer wand sprayed the two men with water The man with the silver gun shot Godeaux Godeaux then kicked in the office door The man who shot He fired his gun two more times including at an inner door inside the office which he was unable to breach The two men then left Superior Grill Godeaux was unable to identify the shooter He testified that the person with the silver gun did all of the shooting Inside Superior Grill police officers with the Baton Rouge Police Department recovered three 45 auto cartridge cases and three 45 caliber bullets including one bullet lodged in the 3 door inside the manager office s On December 23 2001 at about 1 a Sergeant Craig Tibbetts with the 00 m Baton Rouge Police Department was on patrol with his K9 Donte Sergeant Tibbetts testified at trial that he saw a car in the parking lot of Lone Star Steakhouse Saloon Lone Star He pulled into the parking lot and circled the entire perimeter of Lone Star Finding nothing of concern Sergeant Tibbetts then let Donte out to stretch in a small grassy area at the back corner of Lone Star Next to the grassy area were several fairly tall bushes Donte alerted near the area with the bushes and began walking in the parking lot As Sergeant Tibbetts turned to tell Dontd to go back to the grassy area a man wearing a black and tan jacket ran through the parking lot from the area of the bushes Sergeant Tibbetts then saw another man emerge from behind the bushes wearing a black shirt and dark pants and run in the same direction as the first man Both men ran across the parking lot jumped a fence crossed a railroad track and began skirting their way around the back of a Wal mart Having observed all of their actions Sergeant Tibbetts drove to the Walmart which was still open at that time of night Sergeant Tibbetts observed the man in the jacket enter Walmart The other matt in the black shirt who was quite some distance behind the first man had not made it inside of Wal mart Sergeant Tibbetts observed him walking underneath the lighted walkway of Wal mart The man took off his black shirt and removed a handgun from his waistband He threw the gun on the ground then threw his shirt on top of the gun Sergeant Tibbetts stopped the man who was identified as the defendant and took him into custody Sergeant Tibbetts retrieved the defendant shirt and gun The s gun had a full magazine of eight rounds and one round in the chamber It was also determined that the manager Crochet was in Lone Star preparing to leave I At this point in the investigation the defendant was not arrested for attempted robbery He received a summons for illegally carrying a weapon and was released CI The handgun that the defendant had on his person and discarded just prior to being stopped by Sergeant Tibbetts was a silver Smith Wesson 45 automatic All of the bullets and cartridge cases found at both the Byrd and Godeaux crime scenes Icon parking lot and inside Superior Grill were fired from the defendant s handgun It was also determined that the defendant accomplice was Dantroid s Collins who was in possession of a 9mm handgun The defendant did not testify at trial ASSIGNMENT OF ERROR NUMBER 1 In his sole assignment of error the defendant argues the evidence was insufficient to support all five convictions Specifically the defendant contends the State did not prove he had the specific intent to kill Byrd count 1 or Godeaux count 3 He further contends the State failed to prove the identity of the defendant as one of the perpetrators who while armed attempted to rob Byrd count 2 or Godeaux count 4 Finally the defendant contends the State failed to prove that he while armed attempted to rob Crochet count 5 because his actions of merely being outside of Lone Star did not amount to an attempt A conviction based on insufficient evidence cannot stand as it violates Due Process See U Const amend XIV La Const art I S 2 The standard of review for the 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 have found the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 2789 S Ct 61 L 560 1979 See La C art 821 State v Ordodi 20060207 2d Ed P Cr B p 10 La 11 946 So 654 660 State v Mussall 523 So 1305 1308 06 29 2d 2d 09 La 1988 The Jackson standard of review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence La R 15 S 438 5 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 2001 2585 p 5 La App 1 Cir 6 822 So 141 144 Furthermore when the key issue is the st 02 21 2d s defendant identity as the perpetrator rather than whether the crime committed the misidentification State is required to negate any reasonable was probability of Positive identification by only one witness is sufficient to support a conviction It is the factfinder who weighs the respective credibilities of the witnesses and this court will generally not secondguess those determinations See State v Hughes 2005 0992 pp 5 La 11 943 So 1047 1051 6 06 29 2d Louisiana Revised Statutes 14 provides in pertinent part 64 A Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another by use of force or intimidation while armed with a dangerous weapon Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm See La R 14 S 30 A 1 Any 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 La R 14 S 27 A In order for an accused to be guilty of attempted murder a specific intent to kill must be proven beyond a reasonable doubt Although a specific intent to inflict great bodily harm may support a conviction of murder the specific intent to inflict great bodily harm will not support a conviction of attempted murder State in Interest of Hickerson 411 So 585 587 La App 1 Cir writ denied 413 2d st 2d So 508 La 1982 See State v Butler 322 So 189 193 La 1975 see 2d also State v Fauchetta 981303 p 7 La App 5 Cir 6 738 So 104 99 1 2d 08 1 writ denied 991983 La 1 752 So 176 00 7 2d 31 Specific 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 formed in an instant 390 La R 14 S 10 1 Such state of mind can be State v Cousan 94 2503 La 11 684 So 382 96 25 2d Specific intent need not be proven as a fact but may be inferred from the circumstances of the transaction and the actions of defendant State v Graham 420 So 1126 1127 La 1982 The existence of specific intent is an ultimate 2d 2d legal conclusion to be resolved by the trier of fact State v McCue 484 So s 889 892 La App 1 Cir 1986 Because the defendant in his brief presents essentially the same arguments regarding the attempted second degree murders of Byrd and Godeaux which results in our virtually identical treatment of the issues we address the attempted second degree murder convictions count 1 and count 3 together Similarly the defendant presents the same arguments regarding Byrd s and s Godeaux identification of the defendant as one of the persons who attempted to rob them Accordingly we address the attempted armed robbery convictions count 2 and count 4 together Byrd testified at trial that when one of the armed robbers pointed a gun at him he screamed and ran He thought he startled them because they kind of went like that The defendant contends there is no basis to conclude Byrd would have been shot if he had complied by standing still and turning over his money The defendant also contends that by Byrd own testimony he startled the men and the s one with the gun reacted by firing a single shot that struck Byrd The defendant further contends there was not specific intent to kill because if the men wanted to kill Byrd a fatal shot could have easily been fired as Byrd lay helpless on the ground Godeaux testified at trial that he was working with a pressure washer when 7 the two men attempted to rob him When he saw the two guns he sprayed them with the pressure washer wand The pressure washer was capable of 3 psi 000 However since the pressure washer was set at a lower pressure Godeaux managed to spray the robbers only with a fan of water Godeaux testified that it seemed to just irritate them than effectively defend me Then they shot me right after that The defendant contends the shooting was plainly a reaction from the shooter to being sprayed with the pressure washer and that the shooters easily could have killed Godeaux with a second shot before they left if they had wanted him dead Regarding both Byrd and Godeaux the defendant opines that v often do ictims not react calmly and armed robbers often overreact sic to a perceived threat Byrd testified that as he was turning to run the shot was fired and he was hit underneath his armpit Godeaux testified that his injuries left him with a chronic pain condition The bullet passed through his intestines He had a foot of his small intestine the whole right side of his large intestine and his appendix surgically removed He spent almost two weeks in the hospital and is in ongoing treatment In essence the defendant while not going so far as to claim self defense suggests that the unpredictable reactions of Byrd and Godeaux to having a gun pointed at them contributed to their being shot 1f the defendant as the aggressor cannot claim the right of self defense then he necessarily cannot claim the right of anything less than self defense See La R 14 S 21 That is if the aggressor cannot rightfully shoot his victim who threatens the aggressor life then surely the s aggressor cannot rightfully shoot his victim who has only startled him or acted unpredictably 2 At sentencing the trial court described the extent of Byrd injuries from being shot The s bullet shattered two vertebra and damaged his liver Byrd was unconscious for over a week in ICU He spent four weeks in the hospital and underwent nine months of rehabilitation 3 However we note that money was not demanded from Godeaux In any event whether the defendant was startled or reacted to the actions of his victims and whether the defendant could have assured the death of his victims by shooting them again when they were on the ground is of no moment The law is clear that deliberately pointing and firing a deadly weapon at close range indicates specific intent to kill See State v Robinson 2002 1869 p 8 La 04 14 4 874 So 66 74 cert denied 543 U 1023 125 S 658 160 2d S Ct 2d Ed L 499 2004 The defendant did not merely wing his victims by shooting them for example in the leg He shot both of them in areas that could have just as likely resulted in death It was reasonable for the jury to infer that the defendant in shooting Byrd and Godeaux in the torso area at close range with a 45 handgun intended to kill his victims See Cousan 684 So at 390 Graham 420 So 2d 2d at 1127 1128 Regarding the convictions for attempted armed robbery the defendant correctly points out that neither Byrd nor Godeaux identified the defendant as one of the two men involved in the attempted armed robberies on October 12 2001 and December 10 2001 Byrd and Godeaux both testified they could not identify the defendant as one of the robbers because both robbers had most of their faces covered with bandanas and hoods However it was established at trial that the 4 The evidence strongly suggests that the defendant shot both victims since he was in possession of the 45 handgun as testified by Sergeant Tibbetts and Godeaux and the bullets that struck the victims were fired from the defendant handgun However even had the defendant s s accomplice shot the victims under principles of accessorial liability the defendant would have also been guilty of the attempted second degree murders of Byrd and Godeaux The parties to crimes are classified as principals and accessories after the fact La R 14 Principals are S 23 all persons concerned in the commission of a crime whether present or absent and whether they directly commit the act constituting the offense aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime La R 14 Only those persons S 24 who knowingly participate in the planning or execution of a crime are principals An individual may be convicted as a principal only for those crimes for which he personally has the requisite mental state See State v Pierre 93 0893 La 2 631 So 427 428 per curium State 94 3 2d v Wiley 2003 884 La App 5 Cir 4 880 So 854 863 64 writ denied 20041298 th 04 27 2d ha 10 885 So 585 where the defendant codefendant shot and killed the victim 04 29 2d s during an armed robbery the court found that under the principle of assessorial liability it was reasonable to conclude the defendant was guilty of murder since the risk that an armed robbery or any robbery may escalate into violence and death is clearly a foreseeable consequence which every party to the offense must accept no matter the intent See also State v Smith 20072028 pp 1013 La 10 23 So 291 297300 per curiam 09 20 3d E bullet that struck Byrd the cartridge case found near Byrd and the three bullets and three cartridge cases found in Superior Grill where Godeaux was shot were all fired from the 45 handgun that the defendant was in possession of when he was stopped by Sergeant Tibbetts The defendant also points out in his brief that when he was arrested he had neither a hooded sweatshirt nor a bandana Pursuant to a search warrant police officers searched the defendant residence for evidence related to the crimes and s did not find a hooded sweatshirt or a bandana at the residence While the 45 handgun the defendant had in his possession matched all of the bullets and cartridge cases found at both crime scenes where the victims were shot the defendant argues that there is simply no way of excluding the possibility that the handgun was bought and sold more than once between the attempted armed robbery at Superior Grill on December 10 2001 and the defendant arrest s on December 23 2001 The defendant adds that the State failed to exclude the reasonable hypothesis that he came into possession of the handgun after the attempted armed robbery at Icon on October 12 2001 Sergeant John Colter with the Baton Rouge Police Department testified at trial that the 45 handgun the defendant had in his possession was originally registered to someone in Washington State in 1994 Sergeant Colter stated that the 45 handgun could have been sold twice or three times or four times or ten times since that first purchase However he also noted that between 1994 and December 23 2001 there is no transfer record of that weapon When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt See State v Moten 510 So 55 61 La App 2d I Cir writ denied 514 So 126 La 1987 The jury verdicts reflected the 2d s Uri reasonable conclusion that based upon the evidence viewed in the light most favorable to the prosecution the defendant was one of the armed robbers at Icon and Superior Grill While the items such as a bandana or hooded sweatshirt were not found at the defendant residence the jury could have reasonably concluded s that he disposed of those items in any number of places He also could have kept them at his girlfriend house where the defendant was ultimately arrested for the s instant offenses However the police had only an arrest warrant for the defendant and not a search warrant so they were unable to search his girlfriend house s While Sergeant Colter suggested the 45 handgun could have been sold several times over seven years there was nothing in the record to suggest the defendant had acquired the handgun from someone within thirteen days or less from the attempted armed robbery at Superior Grill on December 10 2001 The defendant did not testify and presented no rebuttal testimony 62 See Moten 510 So at 61 2d In finding the defendant guilty the jury clearly rejected the defense theory of misidentification based on the hypothesis that the defendant came into possession of the 45 handgun subsequent to the attempted armed robberies Finally the defendant argues that the evidence was insufficient to convict him of attempted armed robbery of Crochet at Lone Star because he did not have a bandana or hooded sweatshirt when he was stopped by Sergeant Tibbetts there is no way to exclude the possibility that the handgun was bought and sold more than once between the attempted armed robbery on December 10 2001 and his arrest on December 23 2001 and that the evidence failed to exclude the reasonable hypothesis that the defendant and Collins had walked in the vicinity of the Lone Star on their way somewhere else Whether the defendant had a bandana or hooded sweatshirt when Sergeant 5 Sergeant Tillmon Cox with the Baton Rouge Police Department testified at trial that the residence they searched might have been the defendant grandmother or some other relative ss s house 11 Tibbetts stopped him has no bearing on this particular attempted armed robbery Regardless of what the defendant was wearing he was discovered at 1 in the 00 morning hiding outside of Lone Star in some bushes Similarly whether the handgun was bought and sold several times has no bearing on this particular armed robbery attempt Regardless of who owned the gun in the past the defendant was discovered in possession of the gun after running from Lone Star to Walmart As previously noted when a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt See Moten 510 So at 61 2d In finding the defendant guilty the jury clearly rejected the hypothesis that the defendant and Collins were merely walking in the vicinity of Lone Star on their way somewhere else when Sergeant Tibbetts arrived The testimony at trial established that the defendant alighted from the bushes next to Lone Star when Sergeant Tibbett dog alerted to him The jury verdict reflected the reasonable s s conclusion that the defendant was hiding in the bushes armed with a 45 handgun at 1 in the morning waiting to rob the Lone Star manager when he left the 00 restaurant Lying in wait with a dangerous weapon with the intent to commit a crime shall be sufficient to constitute an attempt to commit the offense intended La R 14 S 27 1 B See Ordodi 20060207 at p 11 946 So at 660 2d We note as well that after being discovered the defendant fled from the scene Flight following an offense reasonably raises the inference of a guilty mind State v Captville 448 So 676 680 n La 1984 2d 4 Regarding all five convictions the jury heard the testimony and viewed the evidence presented to it at trial and found the defendant guilty on all counts The trier of fact is free to accept or reject in whole or in part the testimony of any witness Moreover when there is conflicting testimony about factual matters the 12 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 The trier of fact determination of the weight to be given evidence is not subject to s appellate review An appellate court will not reweigh the evidence to overturn a s factfinder determination of guilt State v Taylor 972261 pp 5 6 La App 1 st Cir 9 721 So 929 932 We are constitutionally precluded from acting 98 25 2d as a thirteenth juror in assessing what weight to give evidence in criminal cases See State v Mitchell 993342 p 8 La 10 772 So 78 83 00 17 2d The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient State v Quinn 479 So 592 596 La App 1St Cir 1985 2d After a thorough review of the record we find that the evidence negates any reasonable probability of misidentification and supports the jury unanimous s guilty verdicts on all five counts We are convinced that viewing the evidence in the light most favorable to the State any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was guilty of two counts of attempted second degree murder and three counts of attempted armed robbery See State v Calloway 2007 2306 pp 1 2 La 1 1 So 417 418 per curiam 09 21 3d The assignment of error is without merit CONCLUSION For the foregoing reasons the defendant convictions and sentences are s affirmed CONVICTIONS AND SENTENCES AFFIRMED 13
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