State Of Louisiana VS Cherahkei Parker
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 KA 0593 i STATE OF LOUISIANA VERSUS CHERAHKEIPARKER Judgment Rendered NOV 0 1 2013 Appealed from the 19 Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 03 0334 09 Honorable Michael R Erwin Judge Frederick Kroenke Attorney far Appellant Louisiana Appellate Project Baton Rouge LA Defendant A Hillar C Moore III D A Dale R Lee Asst D Attorneys for Appellee Cherahkei Parker State of Louisiana Baton Rouge LA BEFORE WHIPPLE C WELCH AND CRAIN JJ J WELCH J The defendant Cherahkei Parker was charged by grand jury indictment with second degree murder on counts one and two and with attempted second degree murder on count three in violation ofLa R 1430 and La R 14 S 1 S 27 The defendant entered a plea of not guilty on each count After a trial by jury the defendant was found guilty as charged on all three counts The trial court denied the motion for postverdict judgment of acquittal and the defendant was sentenced to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence on counts one and two and to fifty years imprisonment at hard labor without the benefit of probation parole or suspension of sentence on count three The trial court ordered that counts one and two be served concurrently while count three was ordered to be served consecutively to counts one and two The trial court denied the defendant motion to reconsider sentence s The defendant now appeals assigning error to the sufficiency of the evidence to support the convictions For the following reasons we affirm the defendant s convictions and sentences STATEMENT OF FACTS On the evening of December 29 2008 victims Reginald Parker the s defendant cousin Kockie Smith and Tywin Alexander Parker cousin who s was unrelated to the defendant were at Parker residence on Shelley Court in s Baton Rouge consuming alcohol when Smith girlfriend arrived at Smith s s residence that was located next door Parker Smith and Alexander walked over to Smith residence and Parker asked Smith girlfriend to arrange a meeting with s s one of her female friends and she agreed Parker girlfriend Tequita Williams s arrived with her sister Phileen Carter the defendant According to witnesses it The defendant is referenced herein as the defendant while his cousin Reginald Parker one of the victims is referenced as the victim or Parker 2 was dark but the streetlights were on A verbal and physical altercation ensued between Parker and Williams Parker repeatedly asked Williams to leave but she refused As the quarrel escalated the defendant who was still in Carter vehicle s became involved when Parker and Alexander approached the vehicle After Parker took a swing at the defendant in the vehicle the defendant opened fire striking Parker and Alexander with multiple bullets and injuring Smith leg with a single s gunshot wound Parker was shot in the back the chest the abdomen and the left elbow while Alexander was shot in the back the left arm and the left leg Corporal Brandon Ogden of the Baton Rouge City Police Department BRPD was dispatched to the scene at approximately 9 p According to Corporal Odgen 15 m when he arrived the victims were lying face down Parker and Alexander died due to wounds sustained from the shots that entered their backs ASSIGNMENT OF ERROR In the sole assignment of error the defen argues that the offenses were ant committed in self and alternatively that the evidence warranted only a defense conviction of manslaughter The defendant notes that victims Parker and Alexander were at least six feet tall weighed over 185 pounds were intoxicated and under the influence of marijuana and claims that they were the aggressars The defendant asserts that the evidence shows he was viciously attacked by two much larger drunken and drugged men that he initially only brandished the gun and warned the victims to go away and that he did not fire the gun until Alexander tried to grab it The defendant contends that the State did not overcome the theory of self and did not show that he was the aggressor In the alternative the defense defendant contends that a rational trier of fact would have concluded that he was provoked to the point that he was deprived of an average person self and s control Z Parker blood analysis had a result of 021 grams percent while Alexander results were 0 grams s alcohol s 16 percent and both tested positive for mazijuana 3 cool reflection 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 proof sufficient 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 821 In conducting this review we also must be expressly mindful of Louisiana s circumstantial evidence test i assuming every fact to be proved that the e evidence tends to prove in order to convict it must exclude every reasonable hypothesis of innocence La R 15 State v Wright 98 La App 1 S 438 0601 s Cir 2 730 So 485 486 writs denied 99 La 10 748 So 99 19 2d 0802 99 29 2d ll57 0895 2000 00 17 La 11 773 2d So 732 When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant sown testimony that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Captville 448 So 676 680 La 1984 2d The crime of second degree murder in pertinent part is the killing of a human being hen w the offender has a specific intent to kill or to inflict great bodily harm La R 14301 To be guilty of attempted second degree S A 1 murder a defendant must have the specific intent to kill and not merely the specific intent to inflict great bodily harm La R 14 State v Bishop 2001 S 27 A 2548 La 1 835 So 434 437 Specific criminal intent is that state of mind 03 14 2d 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 S 1 10 14 The doctrine of transferred intent provides that when a person 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 ar 4 inflicting of great bodily harm would havz been unlawful against the intended victim actually intended to be shot then it w be unlawful against the person ould actually shot even though that person was not the intended victim State v Henderson 99 La App l Cir 6 762 So 747 750 writ denied 1945 00 23 2d 2223 2000 La 6793 SU 1235 O1 15 2d Although intent is a question of fact it need not be proven as a fact Intent 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 s depicting the circumstances Specific intent is an ultimate legal conclusion to be resolved by the fact finder State v Buchanon 95 La App l Cir 0625 96 10 5 673 So 663 665 writ denied 96 La 12 684 So 923 2d 14ll 96 6 2d Specific intent to kill may be inferred from a defendant act of pointing a gun and s firing at a person State v Delco 2006 La App l Cir 9 943 04 05 06 15 2d So 1143 1146 writ denied 2006 La 8 961 2636 07 15 2d So 1160 Moreover the discharge of a firearm in the direction of more than one person or a crowd has repeatedly been recognized in the jurisprudence as sufficient to prove specific intent to kill See State v Mart 419 So 1216 1217 La 1982 State 2d v Allen 94 La App 1 Cir 11 664 So 1264 1272 writ denied 1941 95 9 2d 2946 95 La 3669 So 433 State v Powell 94 La App l Cir 96 15 2d 1390 95 6 10 671 So 493 500 writ denied 95 La 2 667 So 529 2d 2710 96 9 2d State in the Interest of L 94 La App 3 Cir 2 650 So 433 H 903 95 15 2d 36 435 State v Thomas 609 So 1078 1083 La App 2 Cir 1992 writ 2d denied 617 So2d 905 La 1993 In accordance with La R 1431 manslaughter is a homicide which S A 1 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 5 an average person of his self and cool reflection Provocation shall not control reduce a homicide to manslaughter if the jury finds that the offender blood had s actually cooled or that an average person blood would have cooled at the time s the offense was committed La R 14 Sudden passion and heat of S 31 1 A blood are not elements of the offense of manslaughter rather they are mitigatory factors in the nature of a defense that tend to lessen the culpability State v Rodriguez 2001 La App l Cir 6 822 So 121 134 writ 2182 02 21 2d denied 2002 La 2 836 So 131 2049 03 14 2d 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 manslaughter Rodriguez 822 So at 134 2d Louisiana Revised Statute 14 provides that a homicide is justifiable 1 A 20 when committed in self by one who reasonably believes that he is in defense imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger On appeal the relevant inquiry is whether or not after viewing the evidence in the light most favorable to the prosecution a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self State v Williams 2001 La defense 0944 App l Cir 12 804 So 932 939 writ denied 2002 La 2 O1 28 2d 0399 03 14 836 So 135 A person who is the aggressor or who brings on a difficulty cannot 2d claim the right of self unless he withdraws from the conflict in good faith defense See La R 14 S 21 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 Williams 804 So at 939 However Louisiana law is unclear as 2d to who has the burden of proving self in a non case defense homicide State v Freeman 427 So ll61 1162 La 1983 In previous cases dealing with 2d 63 6 this issue the court has analyzed the evidence under both standards of review that is whether the defendant proved self by a preponderance of the evidence defense or whetherthe State proved beyond a reasonable doubtthatthe defendant did not act in self Similarly we need not decide in this case who has the burden defense of proving or disproving self because under either standard as will be defense discussed herein the evidence sufficiently established that the defendant did not act in self See State v Taylor 97 La App l Cir 9 721 defense 2261 98 25 2d So 929 931 Kockie Smith testified that he was inside of his home when the altercation escalated Smith recalled Tequita Williams coming to s Parker home approximately one to two hours befare the shooting while Parker was at the store purchasing alcohol As instructed by Parker Smith did not allow Williams to enter the house though she knocked at every point of entry and ultimately began yelling to let her into the home Parker Smith and Smith girlfriend were standing s outside of Smith house when Williams returned with the defendant and Carter s Smith initially went inside and his girlfriend left After hearing the commotion outside of his home Smith opened his doar and heard Parker asking Williams to leave Smith further indicated that Parker pushed Williams threw a chair at the hood of the vehicle she had arrived in and began beating the hood of the vehicle and telling them to leave At that point the driver of the car told Parker to stop hitting the vehicle and Alexander approached the driver side and addressed the s driver Parker approached the passenger side where the defendant was sitting and Alexander joined them Smith testified that the defendant door was open and s Parker was standing in one part of the door and Alexander had one of his arms on the door He testified that Parker swung at the defendant once although he was not sure if Parker actually hit the defendant Smith stated that he heard the defendant say Cus I know you not swinging at me Smith heard words being 7 exchanged and then heard the first shot go off Smith started running behind the car making his way to the neighbor shouse Smith testified that he did not realize he had been shot until he got to his neighbor house According to Smith three or s four shots were fired initially there was a pause and three or four rnore shots were fired Smith identified the defendant as the person who fired the gun He further indicated that he did not see anyone other than the defendant shooting and that to his knowledge no one else out there had a gun During cross Smith stated that he remembered the driver examination Carter from previous visits and that prior to the shooting he saw her with a gun that she kept in a carrying pouch with a zipper Smith also testified that he saw the other victims on the ground when he limped back to his house He initially testified that they were face down but then without specification stated I think one of them was face down and one of them was face up Though he admitted that they consumed gin Smith denied being intoxicated and described Alexander as tipsy and Parker as kind of drunk Valarie Montgomery Alexander friend testified that she witnessed the s shooting She stated that she came to the scene to pick up Alexander and parked on the street because there was a vehicle already m the driveway with the lights on She waited inside her vehicle which was running with the headlights on Montgomery observed Alexander arguing with a female occupant ofthe vehicle in the driveway Montgomery observed the male occupant on the passenger side whom she did not know and was unable to identifyj as he tried to stop the arguments She stated that the male passenger got out of the car and she heard him say We cousins and that they should not be fighting Montgomery indicated re that the male passenger tone changed as they continued to argue and he verbally s threatened to pull it before pulling out a gun and firing it as he stood in the door of the passenger side of the vehicle Montgomery stated that the passenger shot 8 Alexander four or five times while Alexander was behind the car near the trunk and then shot Parker about four times while he was standing in front of the hood of the vehicle When asked if Parker hit the passenger before the gun was fired Montgomery stated He never touched them neither one of them did She added I didn teven see them get into his personal space like Montgomery also stated that the victims did not have anything in their hands at the time of the shooting Montgomery acknowledged that this was the first time she ever witnessed a shooting and that she was in si and unable to move at the time ock According to Montgomery after shooting the victims the shooter spotted s Montgomery vehicle aimed the gun towards her and asked Who the fis that At that point Montgomery sped away from the scene s Parker girlfriend Tequita Williams also testified at the trial She indicated that she had made two other attempts to visit Parker the day of the shooting No one was at his residence or responded when she first arrived and when she returned she saw Smith shut the door but he would not reopen it to let her in so she left again She contacted Parker by phone and he told her she could come back When she went back for the third time her sister Phileen Carter and the defendant were with her When they arrived Parker Smith and a woman she did not recognize were next door in front of Smith house She stated that when s she approached Parker he could barely walk She helped Parker walk over to a chair located near the front of the door of his house She did not recall Parker throwing a chair or hitting her She also denied that Parker asked her to leave Williams heard a pounding noise on the car and realized that Parker had approached Carter vehicle She observed Parker as he punched the defendant in s the face and appeared to be in a rage She noted that Alexander was standing behind the vehicle at the time adding that it sounded like he was verbally threatening the defendant and encouraging Parker to hit the defendant Williams 9 recalled Smith attempting to stop them fronn fighting just before she heard gunshots Williams observed the defendant shoot Parker and Alexander She testified that Alexander and Parker were unarmed to her knowledge and that she did not see anything in their hands Williams did not know the defendant was armed with a gun before the shooting took ptace Williams stated that she was standing three to four feet away from the vehi when the shooting occurred cle Tamira Patterson grew up with Parker and lived next door at the Shelley Court and McClendon Court intersection in the home that Smith fled to during the shooting Patterson observed the shooting from her bedroom window She was watching television when she heard noises and looked out of the window She first observed Parker and his girlfriend arguing The defendant who she recognized as s Parker cousin and another female were sitting in the vehicle parked in the driveway at the time She saw Parker push his girlfriend but did not see him hit the vehicle She observed Parker as he approached the vehicle and began arguing with the defendant and she saw the defendant step out of the vehicle She noted that Alexander came outside to intervene as the arguing continued She observed the defendant as he reached into the vehicle retrieved a gun and opened fire She stated that she did not see an5 happen before the defendant grabbed the gun thing and she did not see Parker hit the defendant or see a weapon in Parker hands s She stated that the defendant shot Parker about five times befare doing the same to Alexander She stated that there were nearly fve seconds between the individual gunshots fired at the victims Phileen Carter also testified as a State witness Carter testified that she and her sister picked the defendant up from wark and retumed home She stated they were waiting for Parker to come over to her house for dinner According to Carter Williams left to pick up Parker but returned without him Carter stated that Parker called Williams to come get him Carter drove Williams and the defendant to 10 s Parker residence The defendant rode on the passenger side and Williams rode on the back passenger side Carter stated that she did not see a gun when they left the house She confirmed that she had a gun that she kept in a pouch but stated that she left it at home on the night in question When they pulled up Parker was next door in front of Smith house with a fernale and Williams got out of the s vehicle and walked over to approach him Carter stated that Parker intoxicated and Williams had to help him walk across the yard Parker pushed Williams was She denied that Carter testified that after Williams helped Parker sit down Parker said I sorry this is about to go down jumped out of the chair m and hit her vehicle She stated that they did not attempt to leave and did not feel threatened at the time ar think anything was going to happen Carter testified that Alexander who she lrnew approached her vehicle came up to the driver side opened the driver side door and began cursing at her s s before rudely addressing the defendant She asked Alexander to step away from the vehicle but he remained by the door She stated that Alexander never tried to hit or grab her and that she did not feel threatened by him Parker and Alexander approached the passenger side of the vehicle and Smith tried to stop the argument She recalled the defendant sdoor being open at this point She stated that Parker hit the defendant The defendant then pulled out his gun and started shooting She stated that she did not see Parker Alexander ar anyone else with a weapon and indicated that she did not see anyone do anything that justified the defendant pulling out the gun and shooting She acknowledged that neither Parker nor Alexander attempted to get in the vehicle or to grab the gun Carter testified that the defendant told her after the shooting Let go and she drove off and called s 9ll The defendant told Carter to report the incident as a drive shooting and by she complied Dr Edgar Shannon Cooper a general pathologist and Coroner of East Baton 11 Rouge Parish was accepted as an expert in pathology Dr Cooper reviewed Dr s Corrigan autopsy reports and photographs ofthe victims and rendered an opinion as to the cause of death Dr Cooper testified that Parker lethal gunshot wound s was to the heart with an entry wound on the left side of the mid The bullet back passed through his lung part of the aorta into the heart and out through the left side of the upper abdomen or loyver chest Similarly of his multiple gunshot wounds Alexander fatal wound was the one that entered his mid went s back through his seventh vertebra and severed his spinal cord before passing into his chest Ronald Fazio the State expert witness in firearm identification testified s that his laboratory analyzed four carnidge cases collected in this case and determined that they were fired from the same firearm Although the weapon was not recovered or provided in Fazio opinion the evidence was more consistent s with the use of a semi pistol as opposed to an automatic gun He noted automatic that in regard to multiple shots being fired from a semi weapon the automatic shooter would have had to pull the trigger and release it for each shot BRPD Detective John Norwood interviewed the defendant around 2 a 45 m after he was located at his residence by Detective Belford Johnson of BRPD s homicide division After being advised of his Miranda rights the defendant agreed to make a statement The defendant stated that he was at home when he received a phone call and the caller informed him that his cous had been shot At that point he went to his cousin house on Shelley Court and left shortly after s confirming that his cousin had been shot Based on the evidence to the contrary the defendant was kept in custody BRPD Officer Pamela Brumer photographed the defendant at police headquarters and did not see any injuries on him As the sole defense witness the defendant testified that when he Carter and Williams arrived at Parker house he saw Parker Smith and a female at Smith s s 12 house next door He and Carter waited in the car as Williams approached Parker The defendant further testified that Alexander came stumbling towards the vehicle and described him as being very drunk Alexander initially addressed Carter and demanded that she open the car door before realizing that the defendant was in the vehicle When Alexander noticed the defendant in the vehicle he began cursing at him and threatened to punch him At that frme Parker was still talking to Williams and explaining his whereabouts during her earlier visits According to the defendant Alexander made a comment about a gun while his right hand was by his waist The defendant further testified that he saw Alexander grab at a black object located at his waist He stated that he did not know if it was a gun or not but that he had previously seen Alexander with a gun on other occasions As Alexander was coming around the vehicle Williams tried to back out but could not because Alexander was behind the vehicle Parker approached and opened the car door and the defendant told him to try to calm down Alexander Parker started cursing at the defendant stating that no one was going to F with my cousin referring to Alexander Parker started beating on the hood of the car and went towards the defendant and swung at him one or two times The defendant threw his hands up to stop the blow got back in his car closed he door and tried to lock it However Parker reopened the car door befare the defendant could lock it Alexander began encouraging Parker to hit the defendant and Parker hit the defendant on the top of the head as the defendant tried to talk some sense into him Both Alexander and Parker were in the car doorway when Alexander also began hitting the defendant as Parker struck him multiple times At that point the defendant looked down and saw a gun by his foot in the car The defendant grabbed the gun and pointed it at Parker and told him to move away According to the defendant Parker stated Pull it If you going to pull it pull it They were still hitting him when the re defendant fired the gun The defendant testified that he was five feet and three 13 inches tall while Parker was over six feet tall He stated that he pulled the gun out because it was two on one they were out of control and hitting him and he was afraid for his life The defendant added that Alexander grabbed the gun and tried to take it out of the defendant hand and they semi over the gun just s wrestled before the defendant fired the first two shots At that point the victims did not move away and the defendant regained full control over the gun and started shooting The defendant said he had no other choice because they would not stop He stated he could not back out of the driveway because he was not driving and could not run because they had him blocked in The defendant testified that he did not see Smith in the yard at the time of the shooting He stated that Parker and Alexander tried to run after he opened fire but they collapsed on the ground The defendant stated that when Carter backed up the vehicle hit Alexander sleg and the defendant got out of the car at that point After looking at the victims injuries the defendant got back in the car and Carter turned the vehicle around and drove off The defendant maintained that he fired all of the shots while he was in the car and denied having ever stood up and firing any shots While the witnesses gave slightly varied accounts of the specific facts leading to the shooting much of the testimony indicated that there was little contact between the defendant and the victims before the shooting Carter was in the vehicle with the defendant and testified that she did not feel threatened before the shooting The testimony indicated that the defendant was either still in the vehicle or had stepped out into the doorway just prior to firing multiple shots into the victims In his own self testimony the defendant indicated a higher serving level of physical contact occurred between him and the victims bef the shooting ore than indicated by the other witnesses The trier of fact is free to accept or reject in whole or in part the testimony of any witness Moreover when there is conflicting testimony about factual matters the resolution of which depends upon a 14 determination of the credibility of the wimesses the matter is one of the weight of the evidence not its sufficiency The trier of fact determination of the weight to s be given is not subject to appellate review Thus an appellate court will not reweigh the evidence to overturn a fact finder determination of guilt V4 illiams s 804 So at 939 2d The guilty verdicts in this case indicate that the jury rejected the defendant s claims that he shot the victims in self or that the defendant actions defense s constituted manslaughter and attempted manslaughter Much of the evidence presented during the trial indicated that the defendant was the aggressor in the incident and had pulled the gun at a point when he was safely in the vehicle Accardingly the jury could have reasonably concluded that the victims did not pose an imminent threat to the defendant Other than the defendant stestimony there was no evidence that either of the victims were armed Carter indicated that the defendant told her to drive away from the scene after he shot the victims and report the incident as a drive shooting Furthermore the defendant initially by denied having shot the victims The defendant omissions and actions after the s shooting in fleeing from the scene and lying to the police about the shooting are inconsistent with a theory of self See State v Emanuel 2003 defense Dunn 0550 La App l Cir 11 868 So 75 80 writ denied 2004 La 03 7 2d 0339 04 25 6 876 So 829 State v Wallace 612 So 183 191 La App 1 Cir 2d 2d st 1992 writ denied 614 So 1253 La 1993 Flight following an offense 2d reasonably raises the inference of a guilty mind and lying has been recognized as indicative of an awareness of wrongdoing Captville 448 at 680 n 4 A rational juror could have found the State established beyond a reasonable doubt that the defendant did not act in self Thus we find no error in the defense s jury rejection of the defendant claim of self Further a rational juror s defense could have found insufficient evidence of provocation such that a reasonable 15 person would have used deadly force The defendant failed to establish by a preponderance of the evidence that he acted in sudden passion or heat of blood See State v Maddox 522 So 579 582 La App 1 Cir 1988 2d 51 Accordingly we cannot say that the jury determination was irrational under the s facts and circumstances presented to them See Ordodi 946 So at 662 2d 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 jury State v Calloway 2007 La 1 1 2306 09 21 So3d 417 418 per curiam After careful review 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 second degree murder and attempted second degree murder Accordingly the trial court correctly denied the defendant smotion for postverdict judgmental of acquittal Far the foregoing reasons the defendant convictions and sentences are s affirmed CONVICTIONS AND SENTENCES AFFIRMED 16
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