State Of Louisiana VS Tolbert Morris a/k/a Talbert Morris a/k/a Tolbert Morris, Jr. a/k/a Morris, Talbert, Jr.

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I NO llESIGNATED FOR PUBLICATION E I A T S OF LOUISIANA COURT OF APPEAL p F1RST CIRCU T v 20 RA 456 STATE OF LOUISIANA VERSUS TMORRIS AiK I MORRIS A TOLBERT MORR OLBER A ALBER KiA S JR A MORR TALBERT JR K S Judgment 0 4 2013 Rendered nPPEALED FROM I7 TWEN JUDlC1AL DISTR f iE IY THIRll CTCOUR IN ANC FOR THE PAKISH OF ASCENSION STATE OF LOUISIANA TNUMBER 27652 DOCKF HONORABLE RALPH I JUDGE UREAU ky Ri L Babin t Di Attorney Attorney forAppellee State of Louisiana Donaldsonville Louisiana and Donald D Candell Assistant DistrictAttorne nzales Gc Louisiana Prentice L White Baton Rouge Louisiana BEFORE PETTIGREW Attorney for Defendant Appellant Tolbert Morris McDONALD AND NDON McCLF JJ McDONALD J Che defendaut Tolbert Morris was charged by grand jury indictment with second degree murder a violation of La K 14 count 1 aggcavated rape a S 30 1 Jation vi of La R 14 count 2 and second degree kidnapping a violation of S 42 La R 14 count 3 He pled not guilty and following a trial was S 44 1 u7d fo guilty as charged on all counts or tlle second degree murder conviction tlle efendant was sentenced to life imprisonment at hard labor without benetit of le parc probation or suspension of sentence for the aggravated rape conviction he was sentenced to life imprisonment at hard labor without benefit of parole probation ar suspension of sentence for the second degree kidnapping conviction he f sentenced to thirty years imprisonment at hard labor without bencfit of as parole robation or suspension of sentence The sentences were ordered to run consecutively The defendant now appeals designating one assignment of error We affirm the convictions and sentences FACTS On March 6 1990 at about ll p eightecn Tammy Bowers 00 m year old was outside of Lil Pal Crocer Store off of La Highway 73 in Ascension Parish s ing taki on the payphone to a friend Steve Villar Someone approached Ms fiowers abducted her ut her in a car and drove away With the phone left ing han off tlle hook Mr Villar heard Ms Bowers scream Mr Villar drove to Lil s Pal and saw Ms Bowers car there with her purse and keys still in it He also found Ms Bowers glasses on the ground with both lenses out Mr Villar went to Ms F3owers trailer which was right around the cor and found a note written by ler hcr saying shc was going to the stare to call Steve Mr Villar went back to Lil s l V and called 911 Deputy Quinn Leblanc with the Ascension Parish SherifPs ice R arrived at the scene shortly thereafler and found a I open alf pocketknife on the ground anc a black baseball cap near Ms Boweis car wo 1 days later an LP w Enlergy employee iound Ms Bowers body Ln orr River Road The autopsy and a kit revealed that she had been raped and rape beaten to death Several pieces of evidence were found at the scene and collected including a green shirt a black Tand a piece of firewood or log thought to shirt bc tlic murder weapon At the autopsy evidence was collectcd including the sweatpants and bra Ms Bowers was wearing uri and blood samples l found e air ot her chest and left hand a fiber found under her buttocks nail clippings and finger and palm prints Some hair and fibers collected were sent to the FB for ti te ng Di Emile Laga forensic pathologist erformed Ms Bowers autopsy testificd at trial that Ms Bowers was stabbed in the neck and chest He No major areeries or organs were struck so these wounds were not life t Ms reatening Bowees also sustained blunt injury to her head face and neck and suffered a force major skull fracture to the top of her head which was the cause of death Dr Laga stated he found bark off of a block inside that wound The impact was wooden so scvere the base of Ms Bowers skull was also fractured There was massive bleeding inside the skull Another blow to her face firactured her upper jaw on both sides There was also a fracture on both sides of her lower jawbone She also suttered a blunt injury to the upper spine which fractured and dislocated hei first and second vertebrae The blow to the head also caused massive injury to her brain stem which af3ects breathing blood pressure and heartbeal Time passed no suspects were identified and Ms Bowers case went cold In 2002 Captain Mike Toney with the Ascension Pai7sh Sheriffs Oftice resubmitted DNA evidence fi Ms Bowers case to thc crime lab In 2006 the om e ccin lab notified Captain Toney that it had a CODIS DNA hit for Hei Frazier Mr Frazier was arrested and charged with Ms F3owers kidnapping rape and rder ma On the morning of his trial in 2010 Mr Frazier pled guilty to anslaughter i second degree kidnapping ancl forcible rape He was sentenced to fifty years imprisonment at hard labor without benefits As part of the lea agreement Mr Frazier identified the defendant as an accomplicc At trial Mr Frazier testified that on the night Ms Bowers was abducted he was riding with the dePendant in the defendant Plymouth Duster They saw Ms s Bowers talking on the payphone outside of Lil Pal The defendant pulled into the s parking lot behind her car The defendant got out of his car approached Ms Bowers and knocked her out He put her in his car and they drove about fifteen tes miFi to a lane where the defendant removed Ms I from the car ravel oweis and raped her They returned to the car and drove to River Road The defendant removed Ms Bowers from the car and again raped her They then drove further down River Road and the defendant pulled into a drive The defendant while vay olding a i knifie told Mr Frazier that he might as well take his turn Mr Frazier then raped Ms Bowers The defendant then took Mr E3owers by the hand ai d walked her down a dirt road A while later Mr Fraaier heard screaming He walked to where Ms Bowers and the defendant were and saw them tighting Ms l3owers fell to the ground and the defendai picked up so and began t nething ting hit her with it Mr Frazier ran away without helping Ms Bowers Mr Frazier testiCied he knew the defendant from growing up around him and that he was a friend of the family he 7 defendant did not testify at trial AS5IGNMENT OF ERROR In his sole assignment of error the defendant argues the evidence was insufficient to support his convictions Specifically the defendant contends that his identity as a co of these crirnes against Ms Bowers was not perpetrator established at tcial by the State A conviction based on insuCficient evidence cannot stand as it violates Due Process See U Const amend XIV La Const S 4 art I 2 The standard of review for the suCliciency of the evidence to uphold a conviction is uhether or not viewing the evidence in the light most favorable to the UrosecuYion any rational trier of fact could have found the essentia elements of thc crime beyond a reasonable doubt Jaekson v Virginia 443 U 307 319 99 S Ct S 2781 2789 61 L 560 1979 See La Code Crim P ait 821 State 2d Ed B v Ordodi 2006 La I1 946 So 654 660 State v Mussall 523 0207 06 29 2d So2d 1305 1308 La 1988 The Jaekson standard of review incorporated in 09 Ariicle 821 is an objective standard for testing the overall evidence both direct and circuinstantial for reasonable doubt When analyzing circumstantial evidence La R 15 provides that the factfinder must be satisfed the overall evidence S 438 excludes every reasonable hypothesis of innocence See State v Patorno 2001 2585 La App Ist Cir 6 822 So 141 144 Furthermore when the key 02 21 2d issue is the defendant identity as the perpetrator rather than whether the crime s was committed the State is required to negate any reasonable probability of misidentification 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 second those determinations guess See State v Hughes 2005 La 11 943 So 1047 lOSI State v 0992 06 29 2d Davis 2001 La App 1 st Cir 6 02 822 So2d 161 I 63 3033 21 64 The parties to crimes ai classified as principals and accessories after the fact La R 14 Principals are all persons concerned in the commission of a S 23 e crii whether present or absent and whether they directly commit the act constituting the offense aid and abet in its commission or directly or indicectly counsel or procure another to commit the crime La R 14 S 24 Only those peesons who knowingly participate in the planning or execution of a cri are ne principals An ii dividual 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 5 La 2 631 So 427 428 per curiarn The State may prove a defendant 94 3 2d guilry by showing that he served as a principal to the crime by aiding and abetting another State v Arnold 2007 La App lst Cir 9 970 So 1067 0362 07 19 2d 2088 2d I072 writ denied 2007 La 3 977 So 904 08 7 Thus a general principle of accessorial liability is that whe two or more persons cmbark 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 La 10 23 2028 09 20 So3d 291 296 per cw iam he I defendant concedes Ms Bowers was abductecl raped and murdered lowever he contends t were no eyewitnesses to these crimes and that Mr ere s Frazier identification of him as a co was a fabrication to procure a perpetrator lighter sentence Further according to the defendant the DNA tests which suggested the defendant presence at the crime scene were inconclusive s Accordingly the defendant argues that his identity as a perpetrator was not proved beyond a reasonable doubt Testimony and physical evidence introduced at thc trial established that Ms Bowcrs was abducted raped and killed She died from having her skull crushed likely from a large piece of wood perhaps a tree branch found near her body on River Road Ms Bowers was also stahbed in the neck and chest Evidence frotn a rape kit including nail clippings semen and hairs obtained from a pubic combing was collected A black shirt and a green shirt found near Ms Bowers body were collected In 1990 hair samples and other evidence such as the black cap eyeglasses and pocketknife were sent to the FBI for tcsting In 2002 the evidence was resubmitted for DNA tesring When the DNA testing implicated Mr Frazier in the crimes Mr Frazier confessed to helping kidnap Ms Bowers and to raping her In exchange for the reduced charges of manslaughter and forcible rape and a lesser total sentence Me Frazier identitied the defendant as the person who 6 killed Ms Bowers According to Mr FraLier the defendant knocked Ms Bowers unconscious while she was on the payphone put her in his the defendant car s and raped her twice in different locations Romy Franco with Orchid Gellmark a private DNA testing laboratory in Dallas Texas testified at trial as an expert in mitochondrial DNA analysis According to Ms Franco mitochondrial DNA is inherited only from one mother s She explained that a mother passes her mitochondrial DNA directly to her children She opined that this type of DNA testing did not establish a unique profile like autosomal DNA because of the mode of inhcritancc namely tl everyone in the at saroe maternal lineage up or down would share the same mitochondrial DNA profile Ms Franco further indicated that unrelated people could share the same mitochondeial DNA profile Ms Franco tested hair combing of a particular Ms Bowers hair sample a hair obtained fi the pubic om and determined that the defendant could not be excluded as a contributor of that hair Stated another way the defendant DNA s was consistent with the mitochondrial DNA in that hair Ms Franco indicated that because this particular hair had no root mitochondrial DNA testing was the only testing available Ms Franco explained that she entered tl DNA profile into a at database maintained and compiled by the FBI laboratory which searches for matching DNA profiles She explained that the dalabase is composed of 4 839 individuals DNA profiles and that the search rcvealcd that of the Caucasian Asian and Native American populations there were no matches in the Eiispanic population there was one individual out of 686 who shared the same sequence as thc defendant sand in the African population the defendant is African American nmerican there were two individuals out of 1 who shared the same sequence 305 7 as the defendant Ms Franco pointed out tl the FBI database contained 4 s at 839 anonymous unrelated individuals Thus hese three peo will the same le ondrial mitocl DNA profile as tlie defendant were of no relarion to t11e defendant In determining population frequency based on the nuinber of natching individuals in the FBI database Ms Franco explained that a calculating tool known as the 95 percent conCidence interval was used Using this method Ms Franco stated that the three out of 4 individuals meant that 06 percent would share the same 839 sequence and that if you took into account population size and a conservative estimate 13 percent of individuals would possibly share that same sequence She concluded that the probability of eYClusion would be 99 percent or that this 87 percentage of individuals would be excluded On cross defense examination counsel suggested that the population of Ascension Parish was 109 as of 2011 985 Using her method of calculation Ms Franco testified that 143 people in Ascension Parish could match that mitochondria DNA profile Carolyn Booker a forensic DNA analyst with the Acadiana Crime Lab testified at trial as an expert in nuclear and YSTR DNA testing Three bloodstains were cut out of the green T found at the scene and tested in I 990 Ms Booker shirt tested these same three stains in 2010 for DNA One of the stains was a DNA match for Ms Bowers Each of the other two stains was tested which revealed the presence of male DNA meaning a Y chromosome was detected Accordingly Ms Booker conducted YSTR short tandem repeat on the Y chromosome testing on these stains Ms Booker explained that only males have the Y chromosome and that YSTR testing is specifically for the markers on a Y chromosome She further opined that YSTR DNA is paternal DNA meaning that the father passes this type of DNA to his son A hair in thc baseball cap found at Lil Pal was tested and Mr Frazier his mitochondrial DNA s prufile could not be excluded as the contributor 8 ln each of the two cuttings sl tested Ms Booker found a major e minor mixture of males meaning one person is there a lot more than the other person Comparing the first cutting to the defendant DNA Ms Booker found that the s major contributor of the stain matched the defendant at sixteen out of seventeen markers On the second cutting the major contributor matched the defendant at filteen out of seventeen markers Thus the defendant could not be excluded as a contributor of the profile on this second cutting but Mr Frazier was excluded Ms 13ooker stated lhat 99 percent of the male population could be excluded or put 96 another way approximately one in 2 males could be included 800 Thus the defendant Sl the same paternal DNA as that found on the green shirt aced Ms Booker noted database of about s that the defendant STR 400 8 iudividuals and there were profile no was searched in matches On a cross examination Ms Booker agreed with defense counsel that the lack of a malch of the defendant sYSTR protile in the database did not mean his pi was unique but only that that profile had not yet been added to the database Using the 95 percent confldence interval to account for population size Ms Booker indicated that one in 2 meant 04 percent 800 Defense counsel suggested that given the currcnt population of tlle three area of Ascension Baton Rouge and parish Livingston 04 percent of the male population with the same YST profile of the R defendant was 136 Ms Booker suggested that the population date fi 1990 would yield a more accurate number Mr Frazier testified that the night Ms Bowers was abducted the defendant was driving a tan Plymouth Duster llavid Rathbun testifiied at trial that on the night Ms Bowers was abducted he was driving his eighteen past Lil Pal wheeler s w17en 11e saw a black male get out of the passenger side of a vehicle and walk towarcl a girl on the payphone Mr Rathbun saw the girl speak to the black male brielly before losing sight of her He described the car he saw the black male get y I out of as a 1974 Ford Torino Mr Rathbun stated the car was possibly light blue and it had damage to the right rear fender Major Benny Delaune retired from the Asccnsion Parish Sheriffs Office in 2011 testified that the defei7dant owned a 1979 Plymouth Volare the Duster version and that its color was listed as Major Delaune testified that the impound report from June 1990 cashmere indicated the defendant car was pretty beat up and that the rear end was s dainaged Major Delaune noted that a 1970s Torino looked like a Duster He further stated that the defendant lived on La Highway 74 in Geismar directly behind Lil Pal s When a case involves circumstantial evidence aud the trier of fact reasonably rejects the hypothesis of innocence prescnted 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 1 st Cir writ denied 514 So 126 La 1987 2d The jury verdict reflected the s reasonable conclusion that based on the physical evidence and the testimony of cral se witnesses including and especially that of Mr Frazier and the expert witnesses the defendant kidnapped raped and killed Ms Bowers n tinding the defendant guilry the jury clearly rejected the defense theory of misidentitication s ld see also State v Andrews 94 La App 1 st Cir 5655 So 448 0842 95 2d 453 he I jury heard the testimony and viewed the evidence presented to it at trial and fou the defendant guilty as charged d The defendant did not testify and pre5entecl no rebuttal testin See Moten 510 So at 61 Whether the jury ony 2d 62 bclicved some or all of the testi of Mr Frazier cannot be ascertained from the llony verdicts Regardless in the absence of internal contradiction or irreconcilable contlict with the physical evidence one witness testimony if believed by the trier s of fact is sufficient to support a factual conclusion State v Higgins 2003 1980 to a 1 1 4 49R So 1219 1226 cert detiicd 546 U 883 126 S 182 163 OS 2d S Ct 2d d l L 187 2005 Accordingly Mc Frazier teslimony established the s defendant participated as a principal in Ms Bowers kidnapping rape aud murdei Morcover the trier of fact is frce to accept or reject in whole or in part the testimony of any witness The trier of fact detern of the weight to be s ination iven evidence is not subject to appellate review An appellate court will not reweigh the evidence to overtut a fact finder deterrl of guilt State v s inatioi aylor 2261 I 97 La App lst Cir 98 9125 721 2d So 929 932 We are ially nstitutioi c precluded frotn acting as ajuror in assessing wliat thirieenth wcight to give evidence in criminal cases 00 17 0 772 So 78 83 2d See State v Mitchell 99 La 3342 The fact 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 insaffieient State v Quinn 479 So 592 596 La 2d App 1 st Cir 1985 After a thorough review of the record we iind that the evidence negates any reasonable probability of inisidentification and sup the jury unanimous oits s vcrdicts for eac of the dcfendant convictions We are convinced that viewing I s e tl 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 the hypothesis of nocence ii suggested by the defense at trial that the defendant was guilty of the second degree kidnapping the aggravated rape and the second degree murder of ammy Bowcrs See State v Calloway 2007 La 1 1 So 417 230 09 21 3d 4 I R per curiam For the foregoing reasons we affirm the defendant convictions and s sentence CONVICTIONS AND SENTENCES AFFIRMEU ll

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