State Of Louisiana VS Kevin Walker

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 KA 1784 STATE OF LOUISIANA VERSUS KEVIN WALKER Judgment J On Appeal Rendered March 28 2007 from the 23rd Judicial District Court In and For the Parish of Ascension Trial Comi No 17 545 Honorable Alvin Tmner Jr Anthony G Falterman District Attorney Napoleonville LA Judge Presiding Counsel for Appellee State of Louisiana Donald D Candell Assistant District Attorney Gonzales LA Frederick Kroenke Counsel for Defendant Baton Kevin Walker Rouge LA Appellant and Benn Hamilton Baton Rouge Kevin Walker BEFORE LA Pro Se PETTIGREW DOWNING AND HUGHES JJ HUGHES J The defendant with and one pled Kevin Walker count of second guilty not Following by unanimous verdict verdict for a judgment new two pro se a He filed acquittal but but the motion trial hard at imprisonment suspension of degree labor of sentence assignments He of murder error a violation of LSA R S jury trial he was motion the motion was found seeking a denied was without now charged by grand jury indictment was a benefit a post again moved He sentenced was of charged as trial and new denied He guilty 14 30 1 probation to life parole or four counseled and appeals designating We affirm the conviction and sentence COUNSELED ASSIGNMENTS OF ERROR 1 2 that The verdict of the jury is The trial they denied contrary proceedings comi the defendant a to the law and the were fair trial and so evidence irregular and prejudicial cannot serve as the basis for a valid judgment The evidence 3 conviction of second to the trial based on jury was insufficient to support a motion for a degree murder The trial comi should have 4 new presented Richard Anderson s granted the defendant trial and s post trial behavior PRO SE ASSIGNMENTS OF ERROR 1 The trial comi erred in admitting and allowing evidence of other crimes in violation of the defendant under U S State v Const Amends V and XIV Prieur 277 So 2d 126 2 The defendant confrontation when he statements presented to was s the jury to read right to a fair trial the Louisiana Constitution and La 1973 was not denied his allowed the jury 2 to Sixth Amendment cross examine a right of witness on FACTS On November 30 1993 Glen Luna Sheliffs Deputy Dona1dsonville Louisiana the driver s seat shot three times vehicle and passenger s passenger s one on calilidge side of the an Anderson case was on the Three cartridge Street cases were ground just outside All of the doors car in were locked the door in the on the except for the Richard Anderson contacted Ascension Palish Sheliffs concerning the victim audiotaped indicated According to was Anderson the victim to On October 8 2003 the clime the making statement the COnCelTImg kill him because he knew was a talking and drinking in front of Brown jacking somebody too Plior snitch well known Liquor s finding a The defendant had either a they talked about Anderson indicated he left the were something bad would happen when the men Anderson stated and the men 380 bad were reached his home the defendant and the victim men way to men get high and about 9 or a mm gun passed him You could have counted to five day Anderson heard the victim was dead and he news thought together Before Anderson waved back before 3 None of the store and walked towards his home men because Henderson and the defendant waved at the murder concelTIing statement he s Fabian Mills Peter Henderson the defendant and Anderson had any money and next Fourth He discovered the dead victim Rolando Butler in murder because the defendant wanted to the murder were West to dispatched Ascension Palish a m door Anderson gave much was the light side of his head Detective Glen LeBlanc s 2 10 approximately of a Buick Electra in the eastbound lane The victim had been Late in 2003 victim at in a car tmTIing toward Anderson the levee You heard shots The Mills told Anderson that the defendant had shot the victim indicated the defendant had him and left him defendant had Henderson for no money nothing of this deal or got the money and the dope a jumped into his the victim down Mills and Anderson indicated he also talked The defendant stated everybody a favor the or responded that Mills and played body and s found defendant then sent Henderson and Mills to search the victim did shot Mills indicated the defendant told Henderson and fool Mills that the defendant searched the victim murder car Anderson asked if Mills Henderson by the levee got the defendant flagged Mills M him F to the f He was a body defendant about the victim that He an s The nothing was a rat s Man I just rat anyway Anderson also testified at tlial He indicated that in November 1993 he saw the victim and the defendant then heard either transclipt to give gunshots or in the victim together s car He claimed he When the State showed Anderson firecrackers of his October 8 2003 statement he stated he had been the statement He claimed the pressure had told him that if he did not tell the tluth came a pressured from the detectives who they would lock him up for a long time Anderson saw agreed he had stated that the victim and the defendant approximately five seconds after together he heard gunshots He he disagreed he had stated that the defendant had told him that the defendant had done everyone a Anderson s defense favor and that the victim statement to the was a rat The State introduced contrary into evidence without objection from the I Peter Richard Henderson also testified at trial He indicated that night of the victim s murder he Fabian Mills and the defendant 4 on the were at Henderson s mother s house The smoking drugs rob the to planned men victim The victim car and left with him into Henderson mother s project victim backed in someone around him and in the vehicle came The back down the light not the defendant but body spoke The defendant showed him how the victim at prison on the night s pointed his Defense COlU1Sel to go s of the murder had a Ester s body had jumped in because he heard voices He conceded he gun at Henderson and the vehicle was possession with expressly stated intent was it was housed in incarcerated for a shot special attempted he had been atTested for to distribute No objections Your Honor 5 as He also claimed he had been attempted first degree murder and anlled robbelY I They asked to the defendant about the victim aggravated battery and attempted armed robbery for his home get anything and told them examination Henderson indicated he diagnosed with schizophrenia incarcerated saw The defendant told Henderson that the defendant had the victim unit of the the Henderson and Mills drove following the murder sold the gun to Jermaine murder aftelwards cross saw Henderson and Mills went back to the victim Henderson also indicated he On they made the Henderson street They found him Henderson indicated the defendant smoked got pockets and then retmned to the defendant checked his 9mm Beretta and as in the cabin and Henderson was on and he said he did not what he got few minutes and then s and followed the victim and the defendant for the defendant searching back and check the body car s a got into the victim passed the victim and the defendant round of the car and the defendant Henderson and Mills waited Henderson and Mills s the home stopped by and he had cocaine and been simple He robbery dlUgS on the specifically denied shooting after the victim s murder and atTested for possession of a approximately March of 1994 believed was a On examination cross firearm or he had on Ester to distlibute school the details of the crime FeblUaty He denied that March of 1994 he or illegal canying of firearm a the weapon purchased In which he 300 conceded he cocaine occaSIOns by him tlial In firearm two on for the clime 9mm Beretta from the defendant for possession with intent a at police only provided to Ester given Jenl1aine Ester also testified of to the spoke being granted immunity from prosecution the murder weapon had been was was on night of the murder Henderson also conceded he concerning the victim but conceded he had been atTested for aggravated assault illegal canying premises possession of a firearnl and had been incarcerated for disttibution of cocaine on school Ester denied premises purchasing the gun from Peter Henderson The State also introduced State Exhibit at head matched to the weapon was cnme bullet scene ttial A bullet evidence a as were all four forensic 9mm Beretta handgun into the left side of the victim jacket removed from Dr Alfredo Suarez fragments 4 catilidge of the weapon used had been in contact with the victim opinion s found testified pathologist removed from the victim and gave his cases s at the regarding that the banel skin SUFFICIENCY OF THE EVIDENCE In counseled argues of his a assignments of enor numbers rational ttier of fact could guilt beyond a not 6 and three the defendant conclude the State reasonable doubt Anderson Henderson and Ester one on presented the basis of the evidence testimony of The standard of review for conviction is whether sufficiency of the evidence viewing the evidence in the essential elements of the clime and the defendant of that clime be prove a reasonable doubt expressly mindful of Louisiana 99 LSA R S 438 15 State 730 So 2d 485 486 17 11 00 When conviction is based comi must that evidence in the ex p 2 99 0802 La Wright we test also which to La App 1 Cir 10 29 99 748 State 2000 0895 v light on both direct and circumstantial evidence resolve any conflict in the direct evidence most favorable to the by the direct evidence and the reasonably inferred from the circumstantial evidence for rational juror to conclude guilty of evelY essential beyond a by viewing When the direct prosecution facts was perpetrator of innocence is hypothesis 98 0601 reI evidence is thus viewed the facts established a the 773 So 2d 732 a the reviewing State as the proved proved that the evidence tends writ denied nom identity a to the favorable circumstantial evidence s Wright v s uphold conducting this review every reasonable So 2d 1157 writ denied sub La In every fact to be assuming in order to convict excluded 19 2 beyond in pmi states most any rational bier of fact could conclude the State prosecution must light to must be sufficient reasonable doubt that the defendant element of the clime Wright 98 0601 at p 3 730 So 2d at 487 Second has is a degree murder is the killing of a human being when the offender specific intent engaged in the degree robbelY inflict great kill or to perpetration or or bodily time of this offense to inflict great prior LSA R S to or when the offender attempted perpetration of anned robbery simple robbelY harm bodily harm even though 14 lA 30 amendment 7 he has 1 by 1997 and no intent to kill A 2 first or to in effect at the La Acts No 899 S 1 Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender climinal consequences to follow his act intent is Though a question failure or of fact it need not be proven by direct evidence such Specific from circumstantial evidence such the circumstances resolved 10 5 pointing gun and a La 01 at 1 Cir 6 23 00 App 15 6 firing a reasonable a thorough juror light most depicting La 12 6 96 684 96 1411 person State 762 So 2d 747 review favorable 751 of 99 1945 p Henderson v writ denied 2d So act 3 defendant a of the record to the State s 2000 2223 La the v will a 745 So 2d 217 State 2000 0829 not assess fact finder in this proved beyond the s State 223 v 8 s all of the identity testimony of the accept or Johnson reject or State as nom State in whole State On the against 99 0385 p 9 774 So 2d 971 credibility of witnesses determination of guilt viewed The verdict rendered the ex Glynn 94 s or La reI appeal this reweigh the evidence v a reasonable doubt a writ denied sub La 11 13 00 case of innocence hypothesis jury accepted pmi the testimony of any witness 1 Cir 11 5 99 convinced that are presented As the trier of fact the jury was free to witnesses we degree murder and the defendant the defendant indicates oveliun1 facts 1 Cir perpetrator of that offense against the victim comi or App ultimate could find that the evidence elements of second Johnson inference Buchanon 95 0625 p 4 La an and to the exclusion of every reasonable App by or 793 So 2d 1235 After in actions may be inferred from to kill Specific intent in the v s intent may be to be is 673 So 2d 663 665 writ denied 96 923 State defendant It may be legal conclusion intent Specific by the fact finder as a 1 10 14 fact as a by a defendant statements as prescribed LSA R S to act inferred from the circumstances of the transaction proven the actively desired to 0332 p 32 La 1 Cir App 10 6 95 7 4 95 661 So 2d 464 2d So 653 its of the witnesses the matter is sufficiency So 2d 1365 This State depends one 1368 writ denied 97 1124 La assignment 95 1153 a upon determination of the weight La App 97 17 10 La about conflicting testimony of the Lofton 96 1429 p 5 v writ denied Moreover when there is factual matters the resolution of which credibility 1310 1288 of the evidence not 1 Cir 3 27 97 701 2d So 691 1331 of enol is without melit IRREGULAR AND PREJUDICIAL TRIAL COURT PROCEEDINGS In counseled tIial court State in ened 2 Exhibit assignment of enol number granting into the State evidence Amendment confrontation s in two request for violation a the defendant argues the continuance in Sixth defendant s of the and LSA C E art 607 D rights allowing 2 Van Jo1mson in excluding hearsay and the testimony of Patrick Washington concerning in excluding the testimony of Phoebe Anderson for violation of In pro argues the trial court enoneous1y admitted violation of the defendant State v Prieur in violation light In pro supra defendant argues the tIial evidence s the assiglmlent of enol number one the defendant sequestration order se as comi to se a 2 into evidence in State Exhibit fair trial LSA C E assignment of enol enoneously admitted mi and 404 B number State Exhibit the two 2 into Sixth Amendment confrontation of the defendant s rights A motion for continuance based upon the absence of state facts to which the absent witness is expected to a witness must testify showing the mateliality of the testimony and the necessity for the presence of the witness the tIial facts and circumstances available at the time to showing a probability which the bial is defened 9 at that the witness will be and facts showing due diligence used in an effort attendance of the witness to procure LSA C Cr P art 709 On September presentation of 22 following 2005 testimony the State requested because Jennaine Ester and Richard Anderson indicated Ester had been Anderson had been served at his domicile further indicated it had made evelY witnesses addresses The State advised the Anderson on on not to court that The State the presence of the secure home and two other s minutes approximately thiIiy mother had informed the State that it s The State present 20 2005 September attempt recess September 19 2005 and out to Anderson including sending people earlier were the to pnor twenty four hour a open court notice given but dire VOIr Anderson to check himself into detoxification centers was common for The State indicated it would search for Anderson at the detoxification centers from Baton Rouge to Baker In regard to Ester Turner Industries whether Ester the State indicated it knew he employed with was and the State would contact that company to detenlline was on location somewhere where the State could pick him up The defense unavailability of objected to prejudice to The defense indicated it did comi asked not know continuance to another indicated he was the court the date would looking for work not cause proceed as them an the 10 of the asked the defense if it being continued subpoenaed planned who were present inconvenience but added he could return was basis whether the witnesses it had defense witnesses Melody Williams indicated she on the defendant from the tIial would be able to return if the tIial did The The trial Ester and Anderson could articulate any continuance any receptionist in a on if a Pat11ck Mills another date busy office but she could that not say retun1ing another date would be on Emma Sanders indicated she could continued the trial There The trial come back another date The court September 28 and September 29 2006 to abuse of discretion in the was no considered the effOlts made COUlt on hardship for her a of the continuance granting by the State to procure the attendance of Jermaine Ester and Richard Anderson and the lack of to the defense from With An ruling 841 to the or error the October 8 LSA C E art COUlt COUlt 103 A admissibility of State Exhibit was made 2 and the not were checking into the the sought COUlt to the preserved for at party made take or challenges of his C CrP the to appeal at trial from Detective Kevin Hanna presented testimony the infoffi1ation arguing the defense Washington was given by Washington attempting Detective Hanna indicated Patrick had solicited his assistance only was Washington confusing s that to elicit hearsay on December statement the State The State Hanna proffer Van Johnson The defense told Detective Hanna that the investigation following objected arguing The COUlt asked the defense what statement it Detective objected On defense Washington had stated that interested in the results of the elicit from Detective Hanna elicit objection by When the defense asked what Detective Hanna found after 1993 defense or Accordingly l audiotaped grounds therefor LSA Detective Hanna indicated he interviewed Patrick 8 2003 be availed of after verdict unless the action which he desired the action of the The defense cannot order of the or 2 Exhibit admitted into evidence without was irregularity to the COUlt objections mt to State regard the time the known continuance of Anderson statement defense a prejudice the was The defense answered that it s question was attempting to trying to was investigation ended without uncovering 1 1 anything positive that the defendant committed the sustained the State Still outside of the presence of the jUlY days prior the victim to s and kill him Hanna that after the victim s response to to defense had indicated Van Johnson had murder approached Washington and asked for his help dope in Washington Hanna indicated Patrick questioning Detective money and The cOUli objection s that three to four crime rob the victim of his Additionally Washington told Detective 900 cash and murder Van Johnson had was happy On examination Detective Hanna indicated that he learned that cross medical records indicated that and was in a any merit to cast around that time Johnson had broken his Additionally Detective Washington s leg Hanna indicated he did not find statement The defense also called Patrick Washington as witness a When Washington began stating what Van Johnson had asked him the State objected and the cOUli sustained the The trial inadmissible allegedly hearsay the s On girlfriend had along with testimony made the to jUlY him was from Patrick by Van presented case Washington Johnson was with the fact that including cross a examination Van Johnson Lieutenant Delaune indicated the previous boyfriend Albeli Landry who did the victim that Van Johnson had talked about because the victim been Moreover that testimony of Ascension Parish Sheriff s Depmiment Lieutenant Delaune Benny victim correctly found other persons of interest in the were through comi statements concerning there objection seen on the was night known to cany money of the murder with 12 robbing not get the victim and that Claude Tassin had blood all over him The defense called Phoebe Katina Anderson State to the defendant In response to court had from a questioning by about the case was and and said a sequestered was testifying arguing it discussed with the defendant Anderson and the defense On Anderson defense s sister The objected a serious sequestration order witness a remain outside the to had comi to the no She indicated she had prohibited comiroom comiroom until dming a to way of knowing what she had mling of the a was reurged its objection excluded the testimony of Phoebe comi she was Richard relationship with the defendant and he had fathered her eleven year old daughter had as Phoebe Anderson indicated proffer The the court Phoebe Anderson indicated the prayer with the defendant The State Phoebe Anderson at tlial break in the proceedings She also indicated however she had entered the called recess during advised her that she talking witness Phoebe Anderson had violated the objected arguing by speaking as a She indicated Richard Anderson had dlUg problem and Cynthia Dominique given him money to suppOli his dlUg habit Phoebe Anderson alleged that Richard Anderson had told her he made the statement that the defendant had killed the victim because Dominique had paid him to make the Phoebe Anderson also statement alleged that Richard Anderson had been declared mentally retarded There excluding the was no abuse of the sound discretion of the trial testimony had violated the of Phoebe Anderson sequestration own knowledge of the events to assure Phoebe Anderson admitted she developing facts that a witness will testify as to prevent the testimony of one witness from influencing the testimony of others and examination in III order The purpose of sequestration is to his comi to strengthen The resolution of 13 the role of cross sequestration problems is within the sound discretion of the trial court 1108 1112 La These 1 Cir App assignments State 621 So 2d Nevers v wIit denied 617 So 2d 906 La 1993 of error are without merit MOTION FOR NEW TRIAL In assignment of error number four the defendant erred in Anderson the the motion denying s for new bial filed argues the trial court the basis of Richard on bial and post tIial behavior in particular the fact that he professed recantation of his trial recanted testimony Louisiana Code of Criminal Procedure article 851 provides in pertinent part The motion for a new trial is based on the supposition that injustice has been done the defendant and unless such is shown to have been the what allegations case it is The comi on the motion shall be denied no matter upon grounded motion of the defendant shall grant a new bial whenever New and material evidence that 3 notwithstanding the diligence by the defendant was not discovered before or dming the trial is available and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty exercise Prior to of reasonable sentencing the defense moved for new trial in pertinent pati alleging 4 In the defendant sets forth the patiicular for a new following as grounds trial notwithstanding exercise of due and reasonable diligence by the defendant C not and New available tlie trial judgment it material evidence that the was and if this evidence had been introduced would probably have changed the verdict to him at or of guilty 5 The evidence A names of the witnesses who will they will provide is listed Richard Anderson testimony given at He as will the trial of this 14 testify and the recant case his and will prevIOUS state the reasons for Initially the motion for minutes of the giving we false testimony note the defendant failed to new trial be transcribed designate that the See LSA C Cr P hearing indicated the motion was mi hearing 914 1 on The denied and the defense objected for the record There trial his was no abuse of discretion in the denial of the motion for In his brief the defendant concedes that Richard Anderson recanted alleged recantation of his trial testimony new new and material evidence This assignment to Accordingly there suppOli the motion for new trial of enol is without merit CONVICTION AND SENTENCE AFFIRMED 15 was no

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