State Of Louisiana VS Quentin O. Lewis
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST GIRCUIT 2013 KA 0533 STATE OF LOUISIANA VERSUS QUENTIN O LEWIS Judgment Rendered y N 0 1 2013 On Appeal from the 16th Judicial District Court In and for the Parish of St Mary State of Louisiana R Trial Court No 2010 183316 The Honorable James R McClelland Judge Presiding Margaret Smith Sollars Louisiana Appellate Project Thibodaux Louisiana Attorney for Appellant Quentin O Lewis J Phil Haney District Attorney Walter J Senette Jr Assistant District Attorney Franklin Louisiana Attorneys for Appellee Quentin O Lewis Angola Louisiana Pro Se State of Louisiana x BEFORE PARRO GUIDRY AND DRAKE JJ DRAKE J The defendant Quentin O Lewis was charged by grand jury indictment with second degree murder on count one and with possession of a firearm or canying a concealed weapon by a convicted felon on count two in violation of La S 1 R 1430 and La R 14 The defendant entered a plea of not guilty on S 95 1 both counts After a trial by jury the defendant was found guilty as charged on both counts The trial court denied the motion for a new trial and the defendant was sentenced to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence on count one and to fifteen years imprisonment at hard labor without the benefit of probation parole or suspension of sentence and afine on count two The trial court ardered that the sentences be served 5000 consecutively The defendant now appeals assigning error to the trial court s denial of challenges for cause as to three potential jurors and to the sufficiency of the evidence to support the second degree murder conviction The defendant filed a pro se brief to bolster the challenge to the sufficiency of the evidence in support of the second degree murder conviction For the following reasons we affirm the convictions and sentences STATEMENT OF FACTS On the evening and early morning of May 15 2010 around midnight a 16 shooting took place outside ofJohnny Bds Night Club located at 1534 Cypremort Road in St Mary Parish The perpetrator a masked male approached a group of individuals who were in the parking lot and instructed them to come closer to him The group ignored him and he pulled out a gun as he repeated the instruction As a bound wheelchair female in the group tried to escape the gunman fired one shot followed by multiple additional gunshots as the rest of the group started running Angelo D Williams the victim was one of the individuals in the line of fire and was struck in the head by a single gunshot and died as a result Deputy David 2 Hines and Detective Scott Tabor of the Iberia Parish Sheriff sOffice responded to the scene Loria Lewis the defendant mother who lived on Cypremort Road near the s club discovered a black ski mask next to her parch and informed Deputy Hines Deputy Hines instructed Detective Tabor to recover the mask and place it into evidence The defendant was arrested on May 17 2010 and charged with smurder Williams The arresting officer Sergeant Todd Anslum indicated that the defendant tried to escape from the back door of the residence where he was apprehended The State and the defendant stipulated to the defendant priar s conviction of simple robbery and that the defendant never applied for or received any permit to carry a firearm ASSIGNMENT OF ERROR NUMBER ONE In the first assignment of error the defendant argues that the voir dire answers given by prospective jurors Randall Robicheaux Dana Lee and Alicia Bercegeay as a whole indicated that they could not be fair and impartial Thus the defendant argues that the trial court erred in denying challenges for cause as to these three prospective jurors The defendant notes that Robicheaux indicated that he knew several police officers that he had a friendship with the prosecutor and that he knew the prosecutor sfather The defendant also notes that Lee was the victim of three armed robberies Finally the defendant notes that Bercegeay knew several deputies and had an uncle who was murdered around the time of the trial Louisiana Code of Criminal Procedure article 797 provides in pertinent part that the State or the defendant may challenge a juror for cause on the ground that the juror is not impartial whatever the cause of his partiality La Code Crim P art 797 Also a juror may be challenged based on the existence of a 2 relationship with the district attorney such that it is reasonable to conclude that it would influence the juror in aniving at a verdict La Code Crim P art 797 3 3 Further a defendant may challenge a juror for cause on the grounds that the juror will not accept the law as given to him by the court La Code Crim P art 79 4 7 A challenge for cause should be granted even when a prospectivejuror declares his ability to remain impartial if the juror responses as a whole reveal facts from s which bias prejudice or inability to render judgment according to law may be reasonably implied State v MaNtin 558 So 654 658 La App lst Cir writ 2d denied 564 So 318 La 1990 However a trial court ruling on a motion to 2d s strike jurors for cause is afforded broad discretion because of the court ability to s get a person first impression of prospective jurors during voir dire State v Brown OS La App lst Cir 5 935 So 211 214 w denied 06 1676 06 2d it 1586 La 1 948 So 121 07 8 2d Prejudice is presumed when a trial court erroneously denies a challenge far cause and the defendant ultimately e his peremptory challenges State v austs Kang 02 La 10 859 So 649 65L This is because an erroneous 2812 03 21 2d ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error Kang 859 So at 652 2d Therefore to prove there has been an error warranting reversal of a conviction a defendant need only show 1 the trial court erroneous denial of a challenge for cause and 2 s the use of all his peremptory challenges See Kang 859 So at 652 Since the 2d defendant in this case exhausted all twelve of his peremptory challenges we need only consider the issue of whether the trial judge erroneously denied the s defendant challenges for cause contested herein See La Code Crim P art 799 The prospective jurors were asked if they knew or had any connection with the prosecutors in this case Randall Robicheaux indicated that he knew Assistant District Attorney Vincent Borne very well as a friend and also knew Borne s father but confirmed that he would be able to render a fair and impartial verdict based on the evidence and denied having any activities with Borne In challenging 4 Robicheaux the defense attorney simply argued that Robicheaux familiarity with s Borne and his family was lengthy and showed a little bit of impropriety adding that they even attended the same church The State noted that granting a challenge on that basis would make it difficult to pick a jury in small towns In denying the challenge the trial court noted that Robicheaux was adamant that he could be fair and impartial After the State and the defense stated the names of the potential witnesses in this case the trial court asked the prospective jurors if they knew any of them and Alicia Bercegeay indicated that she knew a couple of the deputies Bercegeay confirtned that she knew that a police officer testimony was to be judged the s same as any other witness and further confirmed her ability to do so When the prospective jurors were asked if anyone had been a victim or had close family members who were victims of crimes Bercegeay stated that her uncle was murdered in October presumably about five months before the trial on March 13 2012 and Dana Lee stated that he was the victim of three unprosecuted armed robberies Bercegeay and Lee indicated that those incidents would not affect their ability to serve on the jury listen to the evidence and determine the guilt or innocence in this case Both prospective jurors specifically indicated that they could render a fair and impartial verdict When the defense attorney further questioned Lee regarding the details of the armed robberies he stated that they occurred in Morgan City New Orleans and San Francisco He further indicated that they occurred several years apart within the fifteen to thirty year time span before the trial The following five colloquy then took place between the defense attorney and Lee Q But moreover have you satisfied yourself if I could that these previous experiences would not affect the way that you look at my client during the course and scope of this trial How do you know Or do you know 5 A I don know t Q You don know No one knows t A Right Q And I appreciate your candor Are you necessarily certain that you can be fair and impartial to my client A I think I can Q Okay A I mean that was all in the past Q Okay And what you went through won tcarry over A I don think it would t Q towards my client In other words I do blank and flat out ll re you not going to say man you know I been a victim and ve m I going to get A ve I never seen this gentleman before in my life Bercegeay indicated that her uncle murderer was apprehended and s awaiting trial She noted that the perpetrator had beaten her uncle in the head with a baseball bat She confirmed that his murder would not hinder her ability to listen to the evidence and be fair in this case specifically noting that they are two different cases In challenging Lee for cause the defense attorney stated that he did not give the proper answer when asked about the three armed robberies The defense attomey specifically added There was something about his body language and the fact that he has three prior incidences like this I just think that it could pose a highly prejudicial effect against my client The State noted that the robberies occurred 15 22 and 35 years before the trial that only one occurred in that area and that Lee was steadfast in stating his ability to fairly weigh the evidence In denying the challenge the trial court stated that it had also observed Lee body s language and demeanor and noted that he appeared open and warm and gave 6 thoughtful responses As to Bercegeay the defense attorney stated that she gave the proper responses but questioned her sincerity in light of her relationship with her uncle and the fact that he was murdered just months before the trial The trial court agreed with the State assessment that Bercegeay s sdemeanor and answers indicated an ability to be fair and impartial At the outset we note that while on appeal the defendant cites RobicheauY s and Bercegeay familiarity with police officers in support of his argument that s basis was not raised during his challenges below In accordance with La Code Crim P arts 841 and 800 this argument cannot be raised for the first time A A on appeal Further we find that the totality of the responses by the prospective jurars in question demonstrated their willingness and ability to decide the case impartially according to the law and the evidence The responses as a whole did not reveal facts from which bias prejudice or inability to render judgment according to the law could reasonably be inferred As indicated above a trial s court ruling on whether to seat or reject a jurar for cause will not be disturbed unless a review of the voir dire as a whole indicates an abuse of the great discretion accorded to the trial court State v Martin 558 So at 658 Thus only where it 2d appears that the judge exercise of that discretion has been arbitrary or s unreasonable resulting in prejudice to the accused will the ruling ofthe trial judge be reversed See State v Lee 93 La 5 637 So 102 108 2810 94 23 2d If a prospective juror is able after examination by counsel to declare to the court s reasonable satisfaction that he is able to render an impartial verdict according to the law and evidence it is the trial court duty to deny a challenge for cause See s State v Claiborne 397 So 486 489 La 1981 Thus after a review of the 2d recard of voir dire as a whole it is clear that the trial court did not abuse its broad discretion in denying the defendant schallenges for cause as to these prospective jurors Assignment of error number one is without merit 7 ASSIGNMENT OF ERROR NUMBER TWO In the second assignment of error the defendant contends that the evidence did not support beyond a reasonable doubt that he committed the murder The defendant notes that identification is at issue in this case and further notes that his presence at the club that night is not being contested The defendant contends that none of the eyewitnesses positively identified him as the shooter and there was no physical evidence to link him to the murder Further the defendant notes that the descriptions of the shooter sclothing varied and that he had distinctive tattoos on his hand that none of the witnesses mentioned The defendant contends that Lindsey Derouen who disposed of the gun was not a credible witness because she was motivated to lie to avoid prosecution and to protect her child father Finally s the defendant notes that DNA evidence linked additional individuals to the black ski mask and gave no indication as to when the object was handled In his pro se brief the defendant again argues that Derouen was not a credible witness The defendant contends that she testified out of fear of her boyfriend Jewayne Sweat and only implicated the defendant in order to clear Sweat The defendant is not contesting the conviction on count two on appeal The standard of review for sufficiency of the evidence to support a conviction is whether or not viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude that the State proved the essential elements of the crime and defendant sidentity as the perpetrator of that crime beyond a reasonable doubt See La Code Crim P art 821 7ackson v ViNginia 443 U 307 319 99 S 2781 2789 61 L 560 1979 State v S Ct 2d Ed Johnson 461 So 673 674 I App lst Cir 1984 In conducting this review 2d a we also must be expressly mindful of Louisiana circumstantial evidence test i s e assuming every fact to be proved that the evidence tends to prove in order to convict it must exclude every reasonable hypothesis of innocence La R S 8 438 15 State v Ordodi 06 La 11 946 So 654 660 State v 0207 06 29 2d Wright 98 La App lst Cir 2 730 So 485 486 w denied 99 0601 99 19 2d its 0802 La 10 748 So 1157 and 00 La 11 773 So 732 99 29 2d 0895 00 17 2d When a case involves circumstantial evidence and the trier of fact reasonably rejects a hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Moten 510 So 55 61 La App lst Cir writ 2d denied 514 So 126 La 1987 When the key issue is the defendant identity 2d s as the perpetrator rather than whether the crime was committed the 5tate is required to negate any reasonable probability of misidentification State v Holts 525 So 1241 1244 La App lst Cir 1988 Positive identification by only one 2d witness may be sufficient to support the defendant conviction State v Andrews s 0842 94 La App lst Cir 5655 So 448 453 95 2d 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 14 Specific criminal intent is that state of S 30 A 1 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 The doctrine of transferred intent provides that when a person S 10 1 shoots at an intended victim with the specific intent to kill or inflict great bodily harm and accidentally kills or inflicts great bodily harm upon another person if the killing or inflicting of great bodily harm would have been unlawful against the intended victim actually intended to be shot then it would be unlawful against the person actually shot even though that person was not the intended victim State v HendeNSOn 99 La App lst Cir 6 762 So 747 750 writ denied 1945 00 23 2d 2223 00 La 6 793 So 1235 O1 15 2d 9 Though intent is a question of fact it need not be proven as a fact It may be inferred from the circumstances of the transaction Thus 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 depicting the s circumstances Specific intent is an ultimate legal conclusion to be resolved by the fact finder State v Buchanon 95 La App lst Cir 5 673 So 0625 96 10 2d 663 665 writ denied 96 La 12 684 So 923 Specific intent to 1411 96 6 2d kill may be infened from a defendanYs act of pointing a gun and firing at a person State v Delco 06 La App 1 st Cir 9 943 So 1143 1146 writ 0504 06 15 2d denied 06 La 8 961 So 1160 Moreover the discharge of a 2636 07 15 2d firearm in the direction of a crowd has repeatedly been recognized in the jurisprudence as sufficient to prove specific intent to kill See State v Mart 419 2d So 1216 1217 La 1982 State v Allen 94 La App lst Cir 11 1941 95 9 664 So 1264 1272 writ denied 95 La 3 669 So 433 State v 2d 2946 96 15 2d Powell 94 La App lst Cir 10 671 So 493 500 writ denied 95 1390 95 6 2d 2710 La 2 667 So 529 State in the Interest of L 94 La App 96 9 2d H 903 3d Cir 2 650 So 433 435 State v Thomas 609 So 1078 1083 95 15 2d 36 2d La App 2d Cir 1992 writ denied 617 So 905 La 1993 2d Just before the shooting Anthony Watson and the victim his cousin met Christopher Blanks Cloris 7ones Joshua Francois and Angela Sophus who was wheelchair bound at the club They parked in a grassy area on the side of the road by the club exited their vehicles and were talking when an individual approached and told them to move closer to the road The individual pulled out a gun and Blanks immediately pushed Sophus wheelchair and told her to quickly roll it to s the club Brandishing the gun the perpetrator again told the group to come toward the road where he was standing Sophus in part testified I started rolling towards the club He was like Oh y think Pm playing and I kind of looked and I all 10 seen he was looking at me I know he was talking to me because I was heading towards the club The gunman opened fire as Sophus rolled her wheelchair to the club entrance and the others started running Several witnesses testified that they could not identify the gunman because he was wearing a black ski mask The witnesses recalled the shooter firing about six shots total They confirmed that the mask worn by the perpetrator was similar to the one in evidence Blanks and Sophus indicated that the shooter came from the area where gas pumps were located outside of the club Sophus further noted that before he approached them the gunman passed two other men who were standing outside Blanks Jones and Sophus noticed that the perpetrator smask was not pulled all the way down when he first started walking toward the group and saw him pulling it down as he approached As to the perpetrator attire Blanks said he was s wearing khaki shorts and indicated that he could not really see the shirt because it was dark but that it was either brown ar black Jones said he was wearing light clothes and Sophus was only asked about her previous description of the shirt as purple and indicated that she could not recall and that it was dark outside but added that the shirt appeared to be striped and purple Before the shooting Shannon Clavelle the head security officer at the club that night had an encounter at the front door with someone whom he later positively identified in a photographic lineup as the defendant He noted that security searched every individual who entered the club The defendant approached the building and asked how much they were charging for entrance The defendant then walked towards the front of the club down a walkway that led to the set of gas pumps He stated that the defendant was wearing a light shirt with cargo pants The shooting took place about a minute after he walked away shorts Immediately after the shots were fired Clavelle had a distant view of someone wearing cargo shorts running away from the building as a group of guys and a lady 11 in a wheelchair hurried inside indicating that someone was shooting Clavelle did not actually see the defendant with a gun Ebony Marks and Ladaisha Welch were at the club sitting in a vehicle parked in a parking lot across from the building facing the gas pumps before the shooting They knew the defendant and saw him outside before the shooting The defendant was wearing a dark shirt with light shorts heading towards brown khaki the club when they saw him Though they only heard the gunshots and did not see the shooting Welch saw someone wearing the same attire that the defendant had on running away from the club on Cypremort Road Marks and Welch were subsequently shown a photo array by the police and positively identified the defendant as the person they saw Sonia McDaniel had known the defendant for about two years at the time of the shooting She arrived around midnight and entered the club just before the shooting took place She was getting ready to exit the club after receiving a phone call from a friend who asked her to meet her outside Just when she was about to walk outside she observed someone drop a gun pick it back up and walk away towards the gas pumps As she stood in the doorway she had a side view of the s individual face She heard the gunshots as she was walking across the parking lot about three minutes later She then saw someone whom she believed to be the same person she had seen near the door of the club running down the street with a mask over his face She later told the police that she thought the defendant or his brother who looked like him was the shooter McDaniel subsequently identified the defendant in a photographic lineup as the person with the gun whose face she was able to see with the gun before the shooting On a scale of one to ten she selected eight as to her level of certainty regarding her identification Dana Derouen also testified as a State witness On May 17 2010 after she got home from wark she discovered that the defendant was at her daughter 12 s Lindsey apartment next door She was concerned because she believed that the defendant was wanted by the police for questioning She called her daughter who was at wark and told her that it would be best if the defendant left her apartment She noticed that the defendant was still at the apartment when she checked twenty minutes later Lindsey Derouen also testified and stated that she knew the defendant because he was friends with her ex Jewayne Sweat After boyfriend her mother told her to get the defendant out ofher apartment she called Sweat and told him the defendant had to leave Later that afternoon the defendant called her while she was still at work and told her that he had left a gun at her apartment and that she needed to get rid of it When she got off work she went home located the gun wrapped it in a shirt and threw it in the bayou nearest to her residence by Bouligny Plaza on Main Street When she was later questioned by the police she told them about the defendant request and showed them where she had disposed s of the gun She was with the police when they recovered the gun and she identified it Prior to the grand jury hearing the defendant told her not to go to the hearing and stated that she would not get in any trouble if she did not show up During cross Lindsey stated that she followed the defendant examination s instructions because she was scared though she confirmed that he never threatened her Captain Jonathan Booth of St Mary Parish Sheriff Office responded to the s scene of the shooting and later attended the autopsy Captain Booth recovered one spent round from inside the door of the building but did not recover any spent casings near the body where the shooting took place He concluded that a revolver was used because a semi weapon would have ejected a casing When automatic the captain attended the autopsy he collected the bullet that was recovered from the victim head The bullet was sent to Acadiana Crime Lab for testing along s with the spent round recovered from the door of the building a sample of the 13 s defendant DNA and the recovered ski mask and gun Captain Booth also sent for enhancement still photographs of the individual believed to be the perpetrator that were captured from the surveillance footage of the night in question On examination cross Captain Booth confirmed that none of the witnesses identified the defendant as the shooter from the enhanced surveillance photographs On redirect examination Captain Booth clarified that the enhancement did not increase the quality of the photographs Acadiana Crime Lab Forensic Chemist l Kurowski an expert in lark forensics analysis tested the revolver and bullets recovered in this case and determined that the bullets were fired from the revolver Bethany Harris an expert DNA analyst also of the Acadiana Crime Lab tested the ski mask and the s defendant reference sample On the ski mask she obtained a DNA profile that had a mixture of DNA with the defendant as the majar contributor and at least two minor contributors The defendant was observed at the club moments before the shooting wearing attire that substantially matcked the attire that the shooter was described as wearing Further McDaniel knew the defendant and was almost certain when she identified him as the person she saw with a gun minutes before she heard the gunfire Based on eyewitness observations of the defendant and his attire just before the shooting the descriptions provided by the victim acquaintances and s other witnesses and the fact that the defendant left the murder weapon at Lindsey s Derouen apartment and instructed her to discard it the evidence overwhelmingly indicated that the defendant was the shooter Moreover a black ski mask matching the description provided by the victim acquaintances was recovered s from the defendanYs mother house just after the shooting and it was later s determined that the defendant was the major contributor to a DNA sample collected from the ski mask In the absence of internal contradiction or 14 irreconcilable conflict with the physical evidence one witness testimony if s believed by the trier of fact is sufficient to support a factual conclusion State v Higgins 03 La 4 898 So 1219 1226 cert denied 546 U 883 1980 OS 1 2d S 126 S 182 163 L 187 2005 As noted the defendant challenges the Ct 2d Ed credibility of the testimony provided by Lindsey Derouen However the trier of fact is free to accept or reject in whole ar in part the testimony of any wimess Mareover when there is conflicting testimony about factual matters the resolution of which depends upon a determination of fhe credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency The trier of fact s determination of the weight to be given is not subject to appellate review We are constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases See State v Mitchell 99 La 3342 00 17 10 772 So 78 83 2d 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 insufficient State v Quinn 479 So 592 596 La 2d App 1 st Cir 1985 In this case we cannot say that the jury determination was irrational under s the facts and circumstances presented to them See State v Ordodi 946 So at 2d 662 Furthermore an appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overtuming a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State v Calloway 07 La 2306 09 21 1 1 So3d 417 418 per curiam We are convinced that any rational trier of fact viewing the evidence presented at trial in the light most favorable to the State could have found the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence all of the elements of 15 second degree murder and the defendant identity as the perpetrator s foregoing conclusions assignment of error number two lacks merit CONVICTIONS AND SENTENCES AFFIRMED 16 Due to the
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