State Of Louisiana VS Brandon C. Davis
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NOT DESIGNATED FOR PUBLICATIOIV STATE OF LOUISYANA COURT OF APPEAL FIRST CIRCUIT NO 2012 KA 1391 STATE OF LOUISIANA VERSUS BRANDON C DAVIS 7udgment rendered AR Y 2 5 2013 Appealed from the 22 Judicial District Court in and for the Parish of St Tammany Louisiana Trial Court No 445529 1 Honorable William J Burris Judge HON WALTER P REED ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA COVINGTON LA AND KATHRYN W LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE LA PRENTICE L WHITE ATTORNEY FOR BATON ROUGE LA APPELLANT DEFENDANT BRANDON C DAVIS BEFORE KUHN PEITIGREW AND McDONALD 7J PETTIGREW J The defendant Brandon C Davis was charged by grand jury indictment with second degree murder a violation of La R 14 He pled not guilry and following a S 34 1 jury trial was found guilty as charged The defendant filed motions for new trial and postverdict judgment of acquittal which were denied He was sentenced to life imprisonment without the benefit of parofe probation or suspension of sentence He now appeals designating two assignments of error We affirm the conviction and affirm the sentence as amended FACTS On November 26 2007 Annette Gordon and Eric Frick were at their home on East Second Street in Covington After 9 p that evening Frick was working on the side 00 m of the house building a drawer When Frick went back into the house to retrieve something two men who Gordon later identified as the defendant and Hammond approached the house Gordon testified at trial that Hammond walked up a few steps toward the front door and asked Gordon if he could use her phone because his truck had broken down Gordon handed Hammond her cell phone and observed that the defendant stayed on the sidewalk behind Hammond Frick motioned for Gordon to go inside to take care of one of the children in the house As Gordon made her way through the house to get Pull she heard what she thought was a firecracker She went to the front door Ups and saw Frick lying on the steps Frick died shorkly thereafter from a bullet wound She closed the door and locked it Gordon granddaughter told Gordon that she Gordon was s bleeding Gordon then realized she had been shot in her hand The bullet that hit Gordon had come through the side window of the house and lodged in a blue rubber tub The defendant and Hammond left the scene Gordon did not see who shot Frick or who shot through her window and she did not see either the defendant or Hammond with a gun defendant Co Shawn Hammond was tried in a joint trial with the defendant Hammond was also found guilty as charged Hammond sappeal is pending with this murt See State v Hammond 2012 La 1559 App 1 Cir 3 13 22 3d So 2 The following day Donald Burch a Louisiana DOTD employee was driving to work when he found a Rossi 357 magnum revolver in the middle of La Hwy 36 The gun contained three 38 live rounds and bivo fired 3 arkridge cases Burch later turned the gun over to the police Two days aft that on SUovember 29 Kathy Barton an ATF r special agent found a Smith Vesson S 357 magnum revolver near a mailbox just VV ofF of La Hwy 36 The gun contained flve 357 live rounds and one fired 357 magnum cartridge case The guns were found in close proximity to each other and less than a mile from Frick house Earl Washington testified at trial the Rossi 357 found by Burch was s stolen from his home in Baker in November 2005 evidence The guns were tested for DNA s Burch DNA was found on the Rossi 357 and Frick DNA was found on the s W S 357 The defendant DNA and Hammond DNA was not found on either gun s s Meredith Acosta with the New Orleans Police Department Crime Lab and an expert in firearms identification testified at trial that she test the guns found near Frick fired s house It was determined that the bullet that struck the blue rubber tub was fired from the Rossi 357 and the bullet that struck and killed Frick was fired from the S 357 W Dr Michael DeFatta who performed the autopsy on Frick testified at trial that Frick had been shot in the right shoulder The bullet traveled through the top of his right lung and into the lower lobe of his left lung According to Dr DeFatta the stippling found on the right upper eyebrow and eyelid of Frick indicated that the gun was 36 to 43 inches away from his body when he was shot Marguerite Tyson who was sick prior to trial testified at a preliminary examination hearing for purposes of perpetuating her testimony for trial According to Tyson who lives in Covington Hammond was her nephew Hammond lived in Baton Rouge and went to Covington about twice a year On the day Frick was shot Hammond had gone to s Tyson house at about 6 p to get money to get his car out Hammond asked 30 m Kendrick Gordon Kengie Annette Gordon son for the money but Kengie did not s have the money Hammond also asked Tyson sister for money but she too did not s have money Hammond left Tyson home at about 7 p or 8 p in a dark s 30 m 00 m colored pickup truck 3 Juan Banks who was in jail during triaE a9so testified at the preliminary examination hearing for purposes of per his testimony for trial According to etuating Banks the defendant lived on Ave J in Baton Rouge anks also knew Hammond In ue late 2007 Banks loaned his cell hon t the defen Phone records showed that in a ant hour 36 period from November 25 JQ7 to Nuve 27 2007 more ehan 30 calls were ober made between Banks loaned phone to the defendant and Hammond phone s s However there was no way to tell where the phones were located when these calls were made Banks stated that he would not have made or received that many phone calls Banks further stated that he would lend his phone out to other people Denise Hossley testified at trial that when she had gotten ofF of work on the evening of November 26 2007 she went to the Quick Stop Snack Shop Quick Stop in Covington store She saw Hammond who she knew of but did not know personally at the Hammond was with someone who Hossley later identified as the defendant Hossley testified that Hammond and the defendant were in a blue or dark Chevy colored pickup truck The defendant did not testify at trial ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant argues the evidence was insufficient to support his convic Specifically the defendant contends that his identity as the tion shooter was not established and that ther was no physicai evidence to suggest that he or Hammond was involved in the shooting A conviction based on ins evidence cannot stand as it violates Due Process fficient See U Const S amend XIV La onst art I 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 S U 307 319 99 S 2781 2789 61 L 560 1979 See La Code Crim P Ct 2d Ed art 821 State v Ordodi 2006 p 10 La 11 946 SoZd 654 660 B 0207 06 29 State v Mussall 523 So 1305 1308 La 1988 The Jackson standard of 2d 1309 4 review incorporated in Articie 821 is an objective standard for testing the overall evidence direct both and al circumstant for reasonable doubt circumstantial evidence La R S overall evidence When analyzing 438 5 rovides that the f fin must be satisfied the ct ier 6e aesis des exci every reasonat hypot f innocence See State v Patorno 2001 R 5 Ap 1 Ci 21 2585 La r6 2822 So 141 144 Furthermore 2d when the key issue is the defendant sidentity as the perpetrator rather than whether the crime was committed the State is required to negate any reasonable probability of misidentification Positive identification by onfy one witness is sufficient to support a conviction It is the fact finder who weighs the respective credibilities of the witnesses and this court will generally not second those determinations guess See State v Hughes 2005 pp 5 La 11 943 So 1047 1051 State v Davis 0992 6 06 29 2d 3033 La 2001 p 3 App 1 Cir 6 822 So 16l 163 02 21 2d 164 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 Specific S 30 A 1 intent is that state of mind that exists when the circumstances indicate that the ofFender actively desired the prescribed crimina9 co o follow his act or failure to act sequences La R 14 Such state of mind can be farmed in an instank State v Cousan S 10 1 2503 94 p 13 La 11 684 So 382 390 Specific intent need not be proven 96 25 2d as a mstances fact but may be inferred from the circof the of defendant transactior and the actions State v Graham 420 So 1126 1127 La 1982 The existence of 2d specific intent is an ultimate legal conclusion to be resolved by the trier of fact State v McCue 484 So 889 892 La App 1 Cir 198E 2d Deliberately pointing and firing a deadly weapon at close range indicates specific intent to kill See State v Robinson 1869 La 14 2002 p 8 4 874 So 66 74 cert denied 543 U 1023 125 S 04 2d S Ct 658 160 L 499 2004 2d Ed Parties to crimes are classified as principals and accessories after the fact La R S 23 14 Principals are 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 5 I the crime La R 14 Only thase perso S 24 rswho knawingly 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 La l3 631 So 4Z7 428 per curiam T State may prove a 0893 94 2 he defendant guilry by showing tnat he serre as a principal to the crime by aiding and abetting another State v Arnold 200 p 7 App 1 Cir 9 970 So 0362 La 07 19 2d 1067 1072 writ denied 2007 La 3 977 So 904 2088 O8 7 2d Thus a general principle of accessorial liability is that when two or more persons embark on a concerted course of action each person becomes responsible for not only his own acts but also for the acts of the other State v Smith 2007 p 9 10 23 So 291 2028 La 20 09 3d 296 per curiam The defendant contends the State evidence was insufficient to establish his s idencity as the shooter Specifically the defendant asserts that no one established that he was in Covington with Hammond during the shoating According to the defendant s Hossley testimony was not credible in establishing his presence in Covington and s Gordon testimony established that she saw the silhouette but not the faces of the men who approached the house The defendant alsa points out that his DNA or fingerprints were not found on either gun The defendant further asserts that the prosecutor s prejudicial remarks during voir dire and closing argument skewed the jury credibility s determinations Natasha Powe an expert in the field of forensic DNA with the St Tammany Parish s Coroner Office test that the guns found near Frick house were tested for DNA and fied s that the defendant and Hammond DNA was not found on either gun According to s s Powe Burch DNA likely in the form of skin celis was on the Rossi 357 that Burch had s found on La Hwy 36 and Frick DNA in the farm of presumptive blood was on the S s W 357 that the police had found just aff of the highway The S 357 was the gun used W to shoot Frick and his DNA was found on the barrei the front of the trigger guard and the cylinder of that gun Dried blood was still on the barrel Powe explained that DNA from skin celis can be wiped away easily if iYs on anon surface She varnished porous 6 further explained that depending on howr much the obje has been handled after the k depositing of the original DNA sample getting a profiie versus not getting a profile is equally as likely Regarding Gordon testimony khe fer s tasserts that she could oniy give a dar height and size description qf the inen s sa at her front door e inaccurate This assertion is While Gordon did not personally knov the defendant or Hammond she clearly identified them as the persons last seen with Frick shortly before he was shot Gordon described the man she lent her cell phone to later identified as Hammond as black tall and wearing a jacket with a nood Hammond told her he needed to use her phone because his truck had broken down which she saw parked on the side of the house She described the person standing behind Hammond later identified as the defendant as li 9 hter skinned and stockY She described her s ou rce of li 9 ht which came from her porch light and a streetlight as very good She said the two men were in her view for about five minutes and that she got aview of the defendanYs face She good further stated she got a good view of the defendant because of his lighter skin very She subsequently identified both the defendant and Fiammond in six photographic person lineups as the men at her house wMen Frick was killed She provided an in court identification of the defendant and when asked or redirect examination sf she was absolutely certain that the defendant and Hammond aeere the tvro men who showed up on her porch the night Frick was shQt Gordon replied Yes Hossley testified at trial that on the evening Frick was shat she was at the Quick Stop in Covington As she left the stare she saw two men get out of a dark two colored door Chevy truck and go into tiie store They were wearing black hooded jackets and blue jeans She recognized Hammond She did not recognize the person Hammond was with but described him as light and kind of muscular Hossley subsequently identified the defendant in a six photographic lineup as the person Hammond was with that person night The defendant asserts that Hossley was impeached at trial by his defense counsel According ta the defendant while Hossley did nok know him she was willing to say the 7 other person she saw with Ham was the efEndant because she wanted to do a non favor for Annette Gordon whom Hassley knew 0 cross defense counsel examinatfon for the defendant attacked HossleR ident f he defenda s fcatiori tby playing excerpts at trial of an inkervievr HossYey c ver four u a Fr6ck was killeu to John Hogue aWe ars t r s Hammond defense counseL Hogue vuen o Hossfey h in March 2012 to ask her s use questions about the shooting Hossiey stat that she was preparing for her cousin d s wedding and had wedding guests in i yard that day when Hogue came over er unannounced In the interview Hossley stated that she saw Hammond at the recorded store but did not know what vehicle he was in She also said in the interview that the defendant had braids At trial Hossley was able to identify the truck and stated that the defendant did not have braids The defendant contends that Hossley lied about seeing the defendant because Annette Gordon son Kengie asked Hossley to help him out for s his mother Hossley explained at trial that she was very busy when Hogue came to her house asking questions about a matter she wanted no involvement irr she was not sure she was supposed to even be talking to Hogue and that Kengie never told her wnat to say but only asked that she tell the police what she saw because the shooting happened at his mother house s When a case involves circumstankial 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 reasonabie doubt State v Moten 510 So 55 61 La App 1 Cir writ denied 514 So 126 2d 2d La 1987 The jury verdict reflected tf reasonable corclusion that based on the s e physical evidence and the eyewitness testimony t defeaidant ither personally shot and he killed Frick or was a principal ta the killing and shooting of Frick While it was not established beyond a reasonable doubt that the defendant was the ac shooter the ual defendant was nevertheless clearly a principal in the second degre murder of Frick Through plan and preparation the defendant and Hammond met and drove together out of town to Frick house When they approached the hause they used subterfuge in the s form of a broken down vehicle to gain the trust of Frick and Gordon Shortly thereafter 8 while Gordon was inside Fr was shot and kllled VVhen Gardon went outside she ck found Frick dying on his steps The defendant and Hammond were gone along with her cell phone Clearly the defendant icnow parti in the planning or execution of the ngly ipatea shooting Moreover Gordon was snot by a seco dgun and therefore a second shooter assuming that one shooter did not fire at Frick wifh one gun and then run to the side of the house and fire through the window with the other gun Thus it was the defendant who shot at either Frick or Gordon See State v Sonnier 380 So 1 4 1979 2d La where khe court found there was evidence of each essential element of first degree murder since Sonnier could properly be considered a principal to the offense even if he did not perform the actual shooting See also State v Mitchell 39 pp 20 La 305 22 App 2 Cir 2 894 So 1240 1251 writ denied 2005 La 6 05 17 2d 1252 0741 05 3 903 So 457 2d In finding the defendant gailty the jury clearly rejected the defense theory of s misidentification See State v Andrews 94 p 7 App 1 Cir 5 655 0842 La 95 2d So 448 453 The jury heard the testimony and viewed the evidence presented to it at trial and found the defendan guilty as charged The defendant did not testify and presented no rebuttal testimony See IWoten 510 So at 61 Hossley testimany 2d 62 s placed the defendant and Hammond at the Quick 5top in Covington on he night of the shooting s Gordor testimony placed the efendank and Hamrr at Frick ho ir ond s se Covington in the presence of Frick mom before Frick nras shot and killed Whether ts the jury believed some or ali of the testimony Qf Hossley and Gordon cannot be ascertained from the verdick Regerdiess fn the absence of internal contradiction or irreconcilable conflict w the physical evidence one witness testimony if believed by th s the trier of fact is sufficient to support a faduaf conclusion State v Higgins 2003 1980 p 6 4 898 So 1219 1226 cert denied 546 U 883 126 S 182 La 1 05 2d S Ct 163 L 187 2005 2d Ed Moreover the trier of fact is free to accept or reject in whole or in part the testimony of any witness The trier of fact determination of he weight to be given s 9 evidence is not subject to appellate review An appellate court will not reweigh the evidence to overturn a finder det of guilt act rmination State v Taylor 97 2261 pp 5 La App I Cir 9 721 2c y29 932 We are canstitutionally precluded 6 98 25 from acting as a irar in assessir what weiyht to give evidence n criminal thirteenth g cases See State v Mitchell 99 p La 017 772 SQ 78 83 The fact 342 00 Zd that the record contains evidence thaf 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 1 Cir 1985 2d We note as well that a fact finder could have reasonably concluded that certain conditions could have contributed to the lack of the defendant sDNA on either gun For example it was pointed out during Powe testimony that e temperatures could s xtreme cause DNA to denigrate more rapidly when out in the open Also it appears that whatever DNA may have existed on the Rossi 357 prior to being found was likely wiped away by or covered with Burch DNA when furch found and handled the gun s Similariy it appears that whatever DNA may have existed on the 5 357 was displaced W by Frick DNA when Frick as the ewidence would suggest grabbed the gun Frick DNA s s was found on the barrel the front part of the trigger guard and the cylinder all parts of a gun that would be touched by Frick if he were grabbing a gun khat was being pointed at him After a thorough review of he record we find that the evidence negates any reasonable probability of misidentification and supports the jury verdict s 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 reasonabl cfoubt and to the exclusion of the hypotheses of innocenee suggested by the defense at trial that the defendant was guilty of the second degree murder of Eric Frick See State v Calloway 2007 pp 1 2306 2 a 21 f 1 1 So3d 417 418 per curiam 09 Finally notwithstanding that these issues are improperly raised under a sufFiciency argument we address the defendanYs arguments that the prosecutor prejudicial s remarks during voir dire and closing argument skewed the jury credibiiity s l0 determinations Durin voir dire the pr was discussing with a prospective juror secutor the about sufficiency of testimony from a single witrsess to establish guilt The prospective juror in what appeared to b a refere to the two defendants sYated If ce these gen were ta get o the st a teli r that I would believe them That lemer Ro i e s an example The prosecutor eesponded Wei tia are not the maie versions of the y Mother Teresa so Both defense counsef obje The objections were sustained ted and the trial court admonished the prospective jurors that the prosecutor scomment was improper and to t out of your mind entirely ake it In his closing argument the prosecutor noted that a lack of forensic evidence should not preclude a conviction and that if it did the State could never convict anyone on eyewitness testimony The prosecutor added If that the case then it will make my s job easy I have a lot fewer cases and there will be a lot more criminals running wild ll Both defense counsel objected and the objections were overruled We do not find that the Mother Teresa comment could have reasonably contributed to the defendanYs conviction See State v Williams 615 So 1009 1017 2d La App 1 Cir writ denied 619 So 543 La 1993 Moreover the trial court 2d properly admonished the prospective jurors to disregard the comment See State v Hoffman 98 p 44 La 4 768 So 542 587 cert denieu 531 U 946 3118 00 11 2d S 121 S 345 148 L 277 2000 Ct 2d Ed Prosecutors are allowed wide latitude n choosing ciosin argument tactics Louisiana Code of Criminai Procedure a 774 co the scape of argument to tiele fines evidence admitted to the lack of evidence tq conclusions of fact that the state or defendank may draw therefrom and to the law app to the case The triai judge icable has broad discretion in controlling the scope of closing argument Even if the prosecutor exceeds these bounds we will not reverse a conviction if ot thoroughly convinced that the argument influenced the jury and cc to the verdict State v Frank 99 ntributed 0553 p 26 La 5 957 So 724 741 cert denied 552 U 1189 128 S 07 22 2d S Ct 1220 170 L 75 2008 Furthermore the trial court instructed the jury that closing 2d Ed arguments were not evidence Thus considering the jury instructions and the evidence il presented in the case we are khoroughly c that the complained of remark by the nvinced prosecutor did not contnbute to the verdict ee Hoffman 93 at 46 768 So at 3118 2d 583 This assignment of error is w merit uut tf NT IGF7IW AS OF ERItOit IVO 2 In his second assignment of error rhe eferd argues he was convi of nt ted second degree murder by a ten to two non verdict in violation of the United unanimous States and Louisiana Constitutions Specificaily the defendant contends that the non unanimous verdict had been applied in a racially discriminatory manner The defendant relies on the argument made by Hammond defense counsel in his s motion for a new trial wherein he argued that the non verdict violates equal unanimous protection because the law was racially discriminatory in intent and nature since you have less blacks on a jury now sic days The unfounded assertion aside and notwithstanding a lack of reference by either defense counsel or the defendant in brief to the actual racial makeup of the jury in this case the argument is baseless Whoever commits the crime of second degree murder shail be dmprisoned at hard labor See La R S B 1 30 14 Louisiana Constitution article i A lland La Code Crim P art 782 provide that in eas where punishment is necessariiy at hard labor A s the case shall be tried by a jury composed of hn jur ten of whom musk concur to eive rs render a verdict Under both state and federal urisprudence a criminal conviction by a less than unanimous jury does not violate a defendant sright to t by jury specified by ial the Sixth Amendment and made applicable to the states t the Fourteenth Amendment y See Apodaca v Oregon 406 IJ 404 406 92 S 1628 1630 32 LEd 184 S Gt 2d 1972 State v Belgard 410 So 720 726 L 1982 State v Shanks 97 2d a 1885 pp 15 La App 1 Cir 6 715 So 157 164 16 98 29 2d 165 The defendant sargument has been repeatedly rejected by this ourt See State v Smith 2006 0820 pp 23 La App 1 Cer 12 952 So 1 15 writ 24 06 28 2d 16 denied 2007 La 9 964 So 352 State v Caples 2pp 15 0211 07 28 2d 2517 J05 16 La App 1 Cir 6 938 So 147 156 writ denied 2006 La 4 06 9 2d 5 2466 07 27 12 955 So 684 2d Moreover our suprem c in State v Bertrand 2008 La Urt 2215 09 17 3d 3 6 So 738 has rejecteti the argument raised by the defendant in this assignment of error In Bertrand Ehe uisiana Supreme Courk spec found that a fically us unanim person non tuvelve jrsryry verdict is cc and thax Articie 782 does not tutional nsti violate the Fifth Sixth an Fourteen ndr hAm ents Moreover the Bertrand court rejected the argument that non ju verdicts have an insidious racial mous unan y component and pointed out that a majority of the United Supreme Court also rejected that argument in Apodaca Bertrand 2008 at 6 6 So at 742 2215 7 3d 743 Accordingly this assignment of error is without merit SENTENCING ERROR Whoever commits the crime of second degr murder shall be punished by life e imprisonment at hard labor without the benefit of parole probation or suspension of sentence La R 14 In sentencing the defendant the trial court failed to S 30 B 1 provide that the sentence was to be served at hard fabor Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings witho t inspection of the evidence La Code Crim P art 920 authorizes consideration of such 2 an error on appeai Furkher La Code Crim P art 882 authorizes correckion by the A appellate court We find that correction of this illegally enient sentence does not involve the exercise of sentencing discretion and as su there is no reason why this court ch should not simply amend the sentence See State v Price 200S p 22 La App 2S14 1 Cir 12 952 So 112 124 en banc wrik enied 2007 La 222 06 28 2d Q130 08 976 Sa2d 1277 Acc because a sentence at hard labor was the only sentence rdingly that coufd be imposed we correct the sentenee by arov that it be served at hard ding labor CONVICTION AFFIRMED SENTENCE AMENDED TO PROVIDE THAT IT BE SERVED AT HARD LABOR AFFIRMED AS AMENDED Z The minutes reflect the trial court sentenced the defendant to hard labor When there is a discrepa cy n ehvee the i minutes and the transcript khe transcript prevails State v Lynch 441 So 732 734 La 2d 1983 3 An illegal sentence may be mrrected at any time by the court that imposed the sentence or by an appellate court on review La Code Crim P art 882 A 13
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