State Of Louisiana VS Zachary Pusch
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NOT DESIGNA FOK PUBLICATION TED STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 KA 1306 STATE OF LOUISIANA VERSUS ZACHARY PUSCH Judgment Rendered On G APR 1 013 Appeal from the 23rd Judicial District Court n In and for the Parish of Ascension State of Louisiana Trial Court No 28 483 The Honorable Ralph Tureau Judge Presiding Donaid Candell Attorney for Appellee Assistant District Attorney State of Louisiana Gonzales Louisiana Ricky L Babin District Attorney for Appellee Attorney State of Louisiana Donaldsonville Louisiana Lieu T Vo Clark Louisiana Appellate Project Attorney for Appellant Zachary Pusch Mandeville Louisiana BEFORE PARRO WELCH AND KLINE JJ Judge William F Kline Jr retired serving Pro Tempore by special appointment of the Louisiana Supreme Court KLINE J The defendant Zachary Pusch was charged by grand jury indictment with second degree murder a violation of La R 14 He pled not guilty and S 30 1 following a jury trial was found guilty as charged He filed a pro se motion for new trial which was denied He was then sentenced to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence The defendant now appeals challenging the sufficiency of the evidence in support of his conviction and the district court denial of his motion for new trial For the s following reasons we affirm the defendant conviction and sentence s FACTS On May 3 2011 the defendant and victim were patrons at the Suthern Kumfort lounge in Ascension Parish The defendant was escorted out of the lounge after engaging in an argument with his ex who was employed girlfriend there After being escorted out the defendant re the building Upon entered exiting the building for the second time the defendant bumped into many of the lounge patrons including the victim The victim followed the defendant out of the lounge and asked Why did you push me N word Then the defendant and victim swung at each other The victim missed the defendant but the defendant hit the victim in his nose and he fel to the ground face down A bystander pulled the victim to the side while the defendant began pacing around the parking lot area of the lounge unconscious when the defendant The victim was lying face down and was ran toward him and jumped on him The defendant stomped once on the back of the victim neck and twice on the back of s his skull The lounge bouncer who was attending to the victim told the s defendant that he had probably just killed the victim The defendant responded Good I hope he dies The defendant attempted to come toward the victim a Z Although the defendant sbrief states that the victim was a bouncer at the lounge the record does not support that asser ion 2 third time befare the police arrived on the scene but was stopped by another lounge patron The defendant was taken into custody and he gave a taped statement He stated that he had been doing work on the computers and camera systems at the lounge for the owner earlier that day and was being paid with alcohol He and his girlfriend exbegan arguing and the lounge owner told him that he needed to leave He exited with the lounge owner who was going to drive him home but he got into an argument with the owner so the owner went back into the lounge According to the defendant the victim charged out of the lounge and accused the defendant of pushing the s victim homeboy a bouncer at the lounge The victim was charging him so he punched the victim in his face The victim landed on the ground on his stomach and the defendant fell on top of him and punched him two more times in the back of his head Although the victim was still lying on his stomach at this point the defendant stated that it appeared he was about to get back up so the defendant ran and jumped on the victim He stated that he attempted to land on the victim back but landed on his head The defendant stated that he had s many alcoholic drinks that day The officer taping the defendant statement s testified that at the time of his statement a slight odor of alcohol emanated from the defendant but his speech was not sluggish and he did not stutter or stagger The sequence of events leading to the victim death was not recorded on the s s lounge video recording system According to the detective who was called to recover surveillance video from that night the lounge computer system was s stopped by the defendant a little after noon that day and no events after that time were recorded Dr Bruce Wainer the Chief Forensic Pathologist and Deputy Coroner for East Baton Rouge Parish testified that the cause of the victim death was blunt s 3 Reports indicated that the defendant blood content was 0 percent s alcohol 04 3 force trauma to the head The victiin had multiple abrasions on the surface of his face multiple fractures of facial bones and fractures at the base of his skull The victim also suffered from hemorrhages inside of the skull and multiple contusions of the brain DISCUSSION In combined assignments of error the defendant argues that the district court erred in denying his motion for new trial because the evidence was insufficient to support his second degree murder conviction The defendant does not contest killing the victim but argues that he should only have been convicted of manslaughter According to the defendant he had just gotten into an argument with his girlfriend ex and his emotions were heightened The defendant also contends that he was deprived of his self and cool reflection and was control provoked by the victim Sufficiencv of Evidence the As indicated the defendant confessed that he killed the victim The remaining issue is whether the jury should have convicted him of manslaughter as opposed to second degree murder The constitutional standard for testing the sufficiency of the evidence as enunciated in Jackson v Virginia 443 U 307 S 319 99 S 2781 2789 61 L 560 1979 requires that a conviction be Ct 2d Ed based on proof sufficient for any rational trier of fact viewing the evidence in the light most favarable to the prosecution to find the essential elements of the crime beyond a reasonable doubt See La Code Gim P art 82L In conducting this review we also must be expressly mindful of Louisiana circumstantial evidence s test which states in part assuming every fact to be proved that the evidence tends to prove every reasonable hypothesis of innocence is excluded La R 15 S 438 State v Wright 98 La App 1 Cir 2 730 So 485 486 writs 0601 99 19 2d a denied 99 La 10 748 So 2d 1157 00 La 11 773 So 0802 99 29 0895 00 17 2d 732 The crime of second degree murder in pertinent part is the killing of a human being w the offender has a specific intent to kill or to inflict great hen bodily harm La R 1430 Specific criminal intent is that state of S1 A mind which exists when the circumstances indicate that the ofFender actively desired the prescribed criminal consequences to follow his act or failure to act La R 14 Though intent is a question of fact it need not be proven as a S 10 1 fact It may be infened from the circumstances of the transaction Specific intent may be proven by direct evidence such as statements by a defendant or by inference from circumstantial evidence such as a defendant actions or facts s depicting the circumstances Specific intent is an ultimate legal conclusion to be resolved by the fact finder State v Buchanon 95 La App 1 Cir 5 0625 96 10 673 So 2d 663 665 writ denied 96 La 12 684 So 2d 923 14ll 96 6 Manslaughter is a homicide which would be a first or second degree murder but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his control self and cool reflection Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender blood had actually cooled or that s an average person blood would have cooled at the time the offense was s committed La R 14 Sudden passiod and heat of blood are S 31 1 A not elements of the offense of manslaughter rather they are mitigatory factors in the nature of a defense which exhibit a degree of cuipability less than that present when the homicide is committed without them Because they are mitigatory factors a defendant who establishes by a preponderance of the evidence that he acted in sudden passion or heat of blood is entitled to a verdict of 5 manslaughter State v Rodriguez O1 La App 1 Cir 6 822 So 2d 2182 02 21 121 134 writ denied 02 La 2 836 So 2d 131 2049 03 14 The trier of fact is free to accept or reject in whole ar in part the testimony of any witness Moreover when 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 The trier of fact determination of the weight to be given evidence is not subject to s appellate review Thus an appellate court will not reweigh the evidence to overturn a fact finder determination of guilt State v Taylor 97 La App s 2261 1 Cir 9721 So 2d 929 932 98 25 Viewing the evidence in the light most favorable to the prosecution we find that it s supports the jury verdict The guilty verdict indicates that the jury concluded this was a case of second degree murder and rejected the possibility of a manslaughter verdict The helpless victim was lying face down on the ground apparently unconscious The fight was clearly over when the defendant who was pacing back and forth in the parking lot suddenly ran toward the victim and jumped on his neck and head severai times The jury obviously concluded that the circumstances surrounding the altercation did not equate to sufficient provocation to deprive an average person of self and cool reflection thus mitigating control factors which would reduce the degree of homicide from murder to manslaughter were not established by a preponderance of the evidence in this case We find no error in this conclusion Furthermore an appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the trier of fact See State v Calloway 07 La 1 1 So 3d 417 418 per curiam 2306 09 21 6 Motion for New Trial The defendant also contends that the district court erred in denying his motion for new trial which was based upon La Code Crim P art 851 La 1 Code Crim P art 851 provides that the court on motion of the defendant shall 1 grant a new trial whenever t verdict is contrary to the law and the evidence he Under Article 851 the district court in ruling on a motion for new trial can 1 only consider the weight of the evidence not its sufficiency and must conduct a factual review ofthe evidence as a thirteenth juror See State v Steward 95 1693 La App 1 Cir 9 681 So 2d 1007 1014 see also State v Morris 96 96 27 1008 La App 1 Cir 3 691 So 2d 792 799 writ denied 97 La 97 27 1077 97 13 10 703 So 2d 609 An appellate court on the other hand is constitutionally precluded from acting as a juror in assessing what thirteenth weight to give evidence in criminal cases that determination rests solely with the trier of fact State v Mitchell 99 La 10 772 So 2d 78 83 3342 00 17 Appellate courts may review the grant or denial of a motion for new trial only for errors of law See La Code Crim P art 858 The defendant has made no showing that an error of law was committed in this case Accordingly the denial of the defendant motion for new trial based s upon La Code Crim P art 851 not subject to review on appeal See State v 1is Guillory 10 La 10 45 So 3d 612 614 per curiam Moreover 1231 10 8 15 the constitutional issue of sufficiency of the evidence in this case was discussed in the previous assignment of error and found to be without merit This assignment of error also lacks merit CONVICTION AND SENTENCE AFFIRMED 4 In his pro se motion for new trial the defendant also cited Article 851 However on appeal 4 he only challenges the district court ruling as it relates to Article 851 s 1 7
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