State Of Louisiana VS Ernest Gerald Beraud
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1566 I STATE OF LOUISIANA VERSUS EARNEST GERALD BERAUD I DATE OF JUDGMENT ON R a 2 6 2013 PEAL FROM THE TWENTY JUDICIAL DISTRICT COURT FIRST NUMBER 26629 DIV G PARISH OF LIVINGSTON STATE OF LOUISIANA HONORABLE ERNEST G DRAKE JR JLJDGE Scott Penilloux District Attorney Patricia Parker Amos Counsel for Plaintiff Appellee State of Louisiana Livingston Louisiana Scott H Nettles Counsel for Defendant Appellant Livingston Louisiana Ernest Gerald Beraud BEFORE KLJIIN PETTIGREW AND McDONALD JJ Disposition CONVICTION AND SENTENCED AFFIRMED I KiJHN J Defendant Earnest Gerald Beraud was charged by grand jury indictment with manslaughter a violation of La R S 1431 He pled not guilty and following a jury trial was found guilty of the responsive offense of negligent homicide a violation of La R 14 He was sentenced to five years at hard S 32 labor Defendant now appeals urging that the evidence was insufficient to support his conviction We affirm defendant sconviction and sentence FACTS On March 23 2011 around 1130 p Detective Robert Audoin with the m Livingston Parish Sheriff Office responded to an investigation involving a s shooting on Emest Stilley Road in Livingston Parish Upon arrival the detective saw a man lying in a pool of blood beside a Ford Explorer parked in front of s defendant home The detective spoke with defendant inside of his home Defendant stated that he was in bed when he heard a horn honking around ll 00 m p Defendant who is confined to a wheelchair got out of his bed and into his wheelchair and went out onto his front porch He saw the victim went down the ramp that extended from his front porch and told him to leave He then went back up the ramp to get his shotgun and retumed to his front porch with the gun The victim got back in his vehicle and proceeded to back the vehicle up Defendant hollered at the victim to stay out of his garden but defendant backed into it Defendant then fired a shot that hit the front of the victim vehicle s The victim got out of his vehicle and stated Pm going to get your expletive a Defendant saw something shiny in the victim hand that he thought was a gun so s 2 i he shot at the victim who fell down and did not move cousin who lived next door and then called 911 Defendant called his Defendant was then transferred to the detectives office where he gave a taped statement and was subsequently placed under arrest An autopsy report indicated that the cause of the victim death was s multiple perforating internal injuries secondary to a shotgun wound I SUFFICIENCY OF THE EVIDENCE In his sole assignment of error defendant contends that there was insufficient evidence to support the negligent homicide conviction Defendant does not contest having killed the victim but asserts that his actions were justified because he acted in self Accarding to defendant he believed that the defense shiny object in the victim hand was a gun and because he was confined to a s wheelchair and unable to run away ar engage the victim physically he took the only course of action he saw available to avoid being attacked The constitutional standard for testing the sufficiency of the evidence as enunciated in Jackson v Virginia 443 U 307 99 S 2781 61 L 560 S Ct 2d Ed 1979 requires that a conviction be based on proofsufficient for any rational trier of fact viewing the evidence in the light most favorable to the prosecution to find the essential elements of the crime beyond a reasonable doubt La C art P Cr 82 L In conducting this review we also must be expressly mindful of Louisiana s circumstantial evidence test which states in part assuming every fact to be proved that the evidence tends to prove in order to convict every reasonable hypothesis of innocence is excluded La R 15 State v Wright 98 S 438 0601 The victim was wearing a silver watch and a black cell phone was found near his body 3 La App lst Cir 2 730 So 485 486 writs denied 99 La 99 19 2d 0802 99 29 10 748 Sa2d ll57 2000 La 11 773 So 732 0895 00 17 2d Defendant was found guilty of negligent homicide which is defined as he t killing of a human being by criminal negligence La R 14 S 32A 1 Criminal negligence exists when although neither specific nor criminal intent is present there is such disregard of the interest of others that the offender conduct s amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances La R 14 S 12 When the defendant in a homicide prosecution claims self the State defense must prove beyond a reasonable doubt that the homicide was not committed in defense self State u Williams 2001 La App lst Cir 12 804 0944 O1 28 2d So 932 939 writ denied 2002 La 2836 So 135 According 0399 03 14 2d to La R 14 a homicide is justifiable w committed in self S 20A 1 hen defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger However a person who is the aggressor or who brings on a difficulty cannot claim the right of self unless he withdraws from the defense conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict La R 14 S 21 On appeal the relevant inquiry is whether after viewing the evidence in the light most favorable to the prosecution a rational trier of fact could have found beyond a reasonable doubt that the defendant did not act in defense self State v Williams 804 So at 939 2d A recording of defendant statement taken at the detectives office was s played during trial Defendant told the detectives that were interviewing him that 4 he had known the victim his whole life and had been telling him for months not to come to his residence But defendant also stated that he and the victim had not been having problems and had no history of fighting Defendant did not know why the victim came to his residence on the night of the shooting and the last time the victim had been at his house was approximately one year prior He stated that when he went down his wheelchair ramp and told the victim to leave the victim said No I want your a I going to kill you He said that he could tell the m victim was messed up so he went back into his house to get his shotgun before returning to his front porch The victim then got back in his vehicle and proceeded to leave but backed into the defendant garden which was at the foot s of the wheelchair ramp The defendant shot the front of the victim vehicle and s the victim got out of the vehicle with something shiny in his hand moved toward the victim and said I want your expletive a Pm going to ki11 you The victim made about two steps toward defendant While he was right outside of the vehicle defendant shot him According to defendant both shots were fired from the porch and defendant and victim were the only two present at the time of the shooting Detective Ben Ballard with the Livingston Parish Sheriff Department s testitied at trial He identified a photograph that he took of a cellular phone at the scene of the shooting According to Detective Ballard the phone which was Z Testimony presented at trial established that the victim was positive for cannabinoids and had a alcohol blood content of 291 grams percent 5 i found near the body of the victim had 9 displayed on the screen 1 He testified that no deputies or detectives typed 9 into the phone after 1 recovering it from the scene The detective stated that whoever touched the phone last dialed 9 but did not hit send 1 Detective Ballard also testified that two spent shotgun shells were recovered from the scene One was found inside defendant sresidence and the other was found off the side ofthe wheelchair ramp According to the detective the location of the shells indicated that contrary to defendant sstatement that both shots were fired from his porch one shot was fired while he was on the ramp The victim s body was approximately sixty and one feet from the location on the ramp one half where that shot was fired The distance from the doorway of defendant s residence to the center of the victim body was seventy and one s one halffeet The trier of fact is free to accept or reject in whole or in part the testimony of any witness Mareover 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 s to 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 lst Cir 9 721 So 929 932 An appellate court errs by substituting its 98 25 2d 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 rationaliy rejected by the jury State u Calloway 2306 2007 La 1 1 So 417 418 per curiam 09 21 3d 6 The jury obviously rejected defendant stheory that he acted in self defense in shooting the victim In reviewing the evidence we cannot say that the jury s determination was irrational under the facts and circumstances presented to them See State v 2006 La 11 946 So 654 662 The victim 0rdodi 0207 06 29 2d was in his vehicle leaving defendant house when defendant retrieved his gun s The victim only stopped and got out of his vehicle after defendant shot at it It is uncontested that the victim was not physically attacking defendant before he fired his weapon and was approximately sixty to seventy feet away from defendant Also there was no evidence that the victim was actually armed during the verbal altercation Considering the evidence presented in the light most favarable to the prosecution we conclude that a rational jurar could have found that the State established beyond a reasonable doubt that defendant did not act in self defense The sole assignment of error lacks merit DECREE For these reasons we affirm the conviction and sentence of defendant appellant Earnest Gerald Beraud CONVICTION AND SENTENCE AFFIRMED 7
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