State Of Louisiana VS Marcus Evans
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0013 STATE OF LOUISIANA VERSUS MARCUS EVANS Judgment Rendered MAY 7 2010 APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE JY STATE OF LOUISIANA DOCKET NUMBER 07 070393 SECTION 7 THE HONORABLE DONALD R JOHNSON JUDGE AND THE HONORABLE BOB HESTER JUDGE AD HOC Hillar C Moore III Attorneys for Appellee District Attorney State of Louisiana and Stacy L Wright Assistant District Attorney Baton Rouge Louisiana Prentice L White Attorney for Defendant Appellant Baton Rouge Louisiana Marcus Evans BEFORE PARRO KUHN AND McDONALD JJ Judge Johnson presided over the trial and Judge Hester presided over the sentencing McDONALD J The defendant Marcus Evans was charged by East Baton Rouge Parish grand jury indictment with second degree murder a violation of La R 14 S 30 1 He pled not guilty Following a trial by jury the defendant was convicted as charged The defendant subsequently was sentenced to life imprisonment at hard labor without benefit of probation parole or suspension of sentence The defendant now appeals challenging the sufficiency of the State evidence in s support of his conviction Finding no merit in the assigned error we affirm the s defendant conviction and sentence FACTS On July 4 2007 Rose Christopher was leaving her North Baton Rouge home when she observed a body lying in a grassy field near the corner of Weller Avenue and Powhatan Street The Baton Rouge City Police were called to the area to investigate The body found face down in the field was later determined to be that of Delvin Johnson A wrecked 1992 Toyota Camry was observed in a parking lot adjacent to the field The vehicle was registered to Shameka Davis Ms Davis z A homicide investigation was launched The investigation revealed that the defendant was responsible for shooting Johnson The defendant was arrested at his place of employment the following day In a recorded statement to the police the defendant admitted that he shot Johnson but claimed he did so in defense of Ms Davis the defendant scousin The defendant claimed Johnson and Ms Davis were involved in a relationship and Johnson was physically abusive toward Ms Davis On the night of the shooting the defendant claimed Johnson who had borrowed and wrecked Ms Davis Camry became irate and belligerent towards s Ms Davis and was preparing to attack her when he shot him 2 We observe that in the defendant brief the witness first name is spelled Shaneka However throughout the s s record the witness sname is spelled Shameka In this opinion for consistency we refer to the witness as Ms Davis 2 SUFFICIENCY OF THE EVIDENCE In a single assignment of error the defendant argues that the evidence presented at his trial was insufficient to support the second degree murder conviction because the State failed to negate his theory that the victim was shot in defense of Ms Davis Alternatively the defendant argues that the evidence supports a conviction of manslaughter He claims the evidence presented at trial established that he lost his self control in an effort to protect his family Thus he asserts the mitigating factors that reduce murder to manslaughter were present A conviction based on insufficient evidence cannot stand as it violates due process See U Const amend XIV La Const art I S 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether 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 beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S S Ct 2781 2789 61 L 560 1979 See also La C art 821 State v 2d Ed P Cr B Mussall 523 So 1305 130809 La 1988 2d When analyzing circumstantial evidence La R 15 provides S 438 assuming every fact to be proved that the evidence tends to prove in order to convict it must exclude every reasonable hypothesis of innocence This statutory test is not a purely separate one from the Jackson constitutional sufficiency standard Ultimately all evidence both direct and circumstantial must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt State v Shanks 97 1885 pp 3 4 La App 1st Cir 98 29 2d 6 715So 157 159 Although defendant assignment of error includes a reference challenging the negligent homicide conviction s because he failed to present any discussion on this issue it is abandoned and we do not consider it See Louisiana Uniform Rules Courts of Appeal Rule 2 12 4 3 To support a conviction for second degree murder the State is required to show 1 the killing of a human being and 2 that defendant had the specific intent to kill or inflict great bodily harm La R 14 State v Morris 99 S 30 A 1 3075 p 13 La App 1st Cir 11 770 So 908 918 writ denied 2000 00 3 2d 3293 La 10 799 So 496 cert denied 535 U 934 122 S 1311 01 12 2d S Ct 152 L220 2002 Specific criminal intent is that state of mind which exists 2d Ed when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act La R 14 S 10 1 Specific intent may be proved by direct evidence such as statements by defendant or by inference from circumstantial evidence such as defendant actions or facts s depicting the circumstances State v Cummings 99 3000 p 3 La App 1st Cir 00 3 11 771 So 874 876 2d When a defendant claims self defense in a homicide case the State has the burden of establishing beyond a reasonable doubt that he did not act in self defense State v Fisher 95 0430 p 3 La App 1st Cir 5673 So 721 96 10 2d 723 writ denied 96 1412 La 11 681 So 1259 A homicide is justifiable 96 1 2d when committed in self defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger La R 14 State S 20 1 A v Lilly 552 So 1036 1039 La App 1st Cir 1989 It is justifiable to use 2d force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself and when it is reasonably believed that such intervention is necessary to protect the other person La R 14 S 22 However a person who is the aggressor or who brings on a difficulty cannot claim the right of self defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict La R S 4 21 14 For appellate purposes the standard of review of a claim of self defense is whether or not a rational trier of fact after viewing the evidence in the light most favorable to the prosecution could find beyond a reasonable doubt that the homicide was not committed in self defense State v Lilly 552 So at 1039 2d In this case the defendant does not deny that he shot the victim He insists however that the homicide was justifiable because he acted in defense of Ms Davis The defendant asserts his actions were in response to Johnson violent s aggression towards Ms Davis on the night of the shooting coupled with his personal knowledge of Johnson past physical abuse of Ms Davis The defendant s claims he believed that Johnson was preparing to strike Ms Davis and that his use of force against Johnson was necessary to save Ms Davis from that danger The defendant further argues that the trial testimony provided by Naketa Batiste naming the defendant as the aggressor should not be found credible At the trial of this matter Ms Davis testified that she and Johnson were involved in a romantic relationship She further testified that on July 3 2007 she was at home visiting with her neighbor Ms Batiste and her cousin the defendant when Johnson arrived and asked if he could use her vehicle Ms Davis owned a 1992 Toyota Camry Knowing that she did not have any insurance on the vehicle Ms Davis reluctantly allowed Johnson to use the vehicle Later that evening Johnson contacted Ms Davis and advised that he had wrecked her vehicle According to Ms Davis Johnson disclosed his location and she Ms Batiste and the defendant went there The defendant drove Ms Davis rode in the front passenger seat and Ms Batiste and her small children rode in the rear of the sMonte Carlo defendant There is conflicting information in the record regarding the number of children accompanying Ms Batiste on the night in question Ms Batiste testified that she had three children with her on the night of the shooting However Ms Davis testimony indicates there were two children in the vehicle s 5 When Ms Davis arrived in the area she observed Johnson and her vehicle Ms Davis became very upset at the sight of her vehicle The front end of the vehicle was severely damaged According to Ms Davis when Johnson approached and attempted to explain what happened to the vehicle she refused to listen and told him to get out of her face Because she was unsure what Johnson had hit with the vehicle there were no other vehicles in the area Ms Davis decided that she would attempt to escape any liability by reporting the vehicle stolen She used the defendant cellular phone to contact the police s Meanwhile the defendant and Johnson started arguing On the taped recording of the 911 call two males can be heard arguing in the background Ms Davis claimed she was still on the call with her back turned to the defendant and Johnson when she heard shots fired Ms Davis testified that the defendant was armed with a handgun and Johnson was not She further testified that Ms Batiste remained inside the vehicle Ms Davis testified that Johnson had been violent towards her in the past and the defendant was aware of the violence police assistance on several occasions s Johnson violence caused her to seek Ms Davis explained on cross examination that Johnson once hit her in the head eight times and threatened to kill her and her children Ms Davis denied that Johnson was violent towards her on the night of the shooting After the shots were fired the defendant and Ms Davis returned to the vehicle and left the area Ms Davis claimed she did not realize that Johnson had been hit She observed him run away toward the nearby field but was unsure whether he was injured Ms Batiste testified at the trial She testified that she and her children rode to the Weller Avenue location with Ms Davis and the defendant They remained inside the vehicle when the defendant and Ms Davis exited to speak with Johnson R From the back seat of the defendant vehicle Ms Batiste observed the entire s incident According to Ms Batiste Ms Davis became very upset when she witnessed the condition of her vehicle In response Johnson became very apologetic He apologized to Ms Davis for damaging her vehicle and assured her that he would have it fixed Ms Davis did not wish to converse with Johnson She used the defendant phone to contact the police and report her vehicle stolen s According to Ms Batiste as Ms Davis spoke with the police the defendant and Johnson were having words confrontational with Johnson The defendant was very upset and He repeatedly explained that the vehicle was Ms s Davis only transportation and demanded an explanation from Johnson regarding the damages Ms Batiste claimed Johnson was in no way aggressive toward the defendant and did nothing to provoke the shooting In fact Ms Batiste claimed he insisted I don want to fight with you and idon have to be all this The t tt defendant continued to argue with Johnson and later returned to the vehicle and armed himself with a handgun Ms Batiste denied ever observing Johnson behaving aggressively or violently towards Ms Davis Johnson was not preparing to strike Ms Davis when he was shot According to Ms Batiste the defendant continued to shoot at Johnson as he ran away Johnson ran into the nearby field and collapsed The defendant and Ms Davis returned to the vehicle defendant returned the gun to the glove box and said I f up Then they drove away ed up If The ed He dropped Ms Davis and Ms Batiste off at Ms s Davis residence and left Ms Batiste further testified that in October 2007 when she was questioned by the police regarding what she observed she provided the same information On cross examination when the defense questioned Ms Batiste regarding the delay in her reporting she explained that she initially stayed out if it but once the police approached to question her she told what she knew Ms Batiste insisted that the 7 defendant developed a temper with Johnson during the confrontation Johnson did nothing to provoke the defendant and even attempted to defuse the situation She testified that the defendant had no reason to shoot Johnson Officer Chris Fisher with the Baton Rouge City Police testified that he responded to the Weller Avenue location on the night in question in response to a complaint of a stolen vehicle On the scene he observed a heavily damaged 1992 Toyota Camry On the ground near the vehicle Officer Fisher noted the existence of several spent shell casings The casings were in very close proximity to each other which suggested that they had been fired in rapid succession There were no persons in the area when Officer Fisher arrived Dr Gilbert Corrigan was accepted as an expert in forensic pathology Dr Corrigan performed the autopsy on Johnson Dr Corrigan testified Johnson sustained a single gunshot wound to the right side of his back He died as a result of exsanguination due to the gunshot wound Dr Corrigan explained that the wound was inflicted from a distance of approximately four to five feet away Although the defendant did not testify at the trial his version of the events was presented through a taped statement he gave to the investigating officers upon his arrest In his taped statement the defendant stated he was at Ms Davis home s with her and Ms Batiste on the night in question when Johnson called and advised that he had wrecked Ms Davis vehicle s He claimed he and Ms Davis went to the scene to check on Johnson and Ms Davis vehicle Once they arrived Ms s Davis questioned Johnson about what happened to her vehicle and Johnson became belligerent He was yelling and screaming at Ms Davis Because Johnson was the one who damaged Ms Davis property the defendant claimed he did not s understand Johnson behavior s The defendant explained that he was also really bothered by Johnson behavior because he was aware that Johnson had a history s of physically abusing Ms Davis The defendant claimed he only fired the weapon 0 after Johnson started moving towards Ms Davis with his fist balled up He claimed he believed Johnson was preparing to attack Ms Davis and he fired the weapon to distract him The defendant claimed he raised the weapon and Johnson stated Whoa and took off running The defendant admitted that he shot more than once He claimed he believed that Johnson was hit in the leg After Johnson collapsed in the field the defendant walked over to his body to check on him He stated he then became real scared He claimed he told Ms Davis to call 911 but the cellular phone would not work He and Ms Davis got back into the vehicle and left the area The defendant claimed he placed the gun on the trunk of the vehicle after firing it and he forgot it was there when he drove away It is evident that the jury was presented with conflicting evidence regarding the events that transpired when the defendant and Ms Davis encountered Johnson after he wrecked Ms Davis s vehicle Specifically there were conflicting accounts of whether the victim was aggressive towards Ms Davis and the or defendant The guilty verdict in this case shows that the jury rejected the s defendant claim of justification based on the defense of another Considering Ms s Batiste testimony and the physical evidence the jury could have reasonably determined that the defendant did not believe that Ms Davis was in imminent danger of losing her life or receiving great bodily harm at the time he shot the victim and thus the defendant s circumstances actions were not reasonable under the Ms Batiste testimony was also consistent with Ms Davis s s testimony in that she said Johnson and the defendant were arguing or having words immediately before the shooting Contrary to the defendant claims both s women also testified that Johnson was not aggressive towards Ms Davis s With respect to the defendant we find that based on our review of the entire record a rational trier of fact after viewing the evidence in the light most favorable to the prosecution could find beyond a reasonable doubt that the homicide was not committed in self defense 9 Moreover the defendant sfailure to report the shooting to the police after he left the area is also inconsistent with a theory ofjustifiable defense of another However even if the jury believed the defendant account of the events s they could have reasonably found that the fatal force utilized by the defendant was not reasonable under the circumstances By the defendant own account of the s incident reflecting that Johnson raised his fist and attempted to become aggressive toward Ms Davis any rational trier of fact could have reasonably concluded that the killing was not necessary to save Ms Davis from the unarmed victim On the issue of credibility the defendant was afforded ample opportunity to cross examine Ms Batiste on the issues affecting her credibility Thus the jurors were well aware of all of the circumstances that the defendant claims negatively affected Ms Batiste credibility and they still chose to accept her testimony Ms s Batiste admitted that she did not report the matter to the police immediately after it occurred She acknowledged that her first statement to the police was not made until approximately three months after the shooting However Ms Batiste explained that once the police approached her with questions she advised them of what she had observed on the night in question Considering the foregoing we find that the record when viewing the evidence in the light most favorable to the prosecution reasonably supports the s jury verdict which clearly required credibility determinations On appeal this court will not assess the credibility of witnesses or reweigh the evidence to overturn a factfinder sdetermination of guilt State v Glynn 94 0332 p 32 La App 1st Cir 4 653 So 1288 1310 writ denied 95 1153 La 10 95 7 2d 95 6 661 So 464 A reviewing court is not called upon to decide whether it believes 2d the witnesses or whether the conviction is contrary to the weight of the evidence State v Smith 600 So 1319 1324 La 1992 The credibility of a witness is a 2d matter of the weight of the evidence not sufficiency See State v Johnson 446 10 2d So 1371 1375 La App 1st Cir writ denied 449 So 1347 La 1984 The 2d fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient State v Azema 633 So 723 727 La App 1st Cir 1993 writ 2d denied 94 0141 La 4637 So 460 94 29 2d Having found the elements of second degree murder the jury was then required to determine whether the circumstances indicated that the crime was actually manslaughter La R 14 defines manslaughter in pertinent part as S 31 A 1 A homicide which would be murder under either Article 30 first degree murder or Article 30 second degree murder but the 1 offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender blood s had actually cooled or that an average person blood would have s cooled at the time the offense was committed The existence of sudden passion and heat of blood under La R S 1 A 31 14 are not elements of the offense but rather are factors in the nature of mitigating circumstances to be proven by the defendant which may reduce the grade of homicide See State v Crochet 96 1666 pp 9 10 La App 1st Cir 97 9 5 693 So 1300 1307 writ denied 97 1547 La 11 703 So 2d 97 21 2d 1305 Provocation is a question of fact to be determined by the trier of fact Thus the issue remaining is whether any rational trier of fact viewing the evidence in the light most favorable to the prosecution could have found that the mitigating factors were not established by a preponderance of the evidence State v Harris 97 0537 p 11 La App 1st Cir 2 708 So 1169 1176 writ denied 98 98 20 2d 0758 La 9 723 So 434 The defendant has the burden of proving these 98 4 2d mitigating factors by a preponderance of the evidence State v Riley 91 2132 p 11 La App 1st Cir 5 637 So 758 763 94 20 2d 11 In his brief the defendant argues that he shot Johnson only after he lost self control because Johnson was behaving so violently towards Ms Davis He claims he acted out of fear that Ms Davis was about to suffer violence at the hands of Johnson again As previously stated in order to reduce second degree murder to manslaughter the defendant is required to prove by a preponderance of the evidence sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of self control and cool reflection The guilty verdict in this case indicates that the jury who was aware of the defendant s version of the events concluded this was a case of second degree murder and rejected the possibility of a manslaughter verdict The jury obviously concluded that any argument between Johnson and Ms Davis andor the defendant and Johnson did not equate to provocation sufficient to deprive an average person of self control and cool reflection We find that under the facts and circumstances of this case any rational trier of fact could have concluded that the mitigating factors which reduce the degree of homicide from murder to manslaughter were not present herein Based upon the aforementioned evidence we find that the record in this case clearly demonstrates that the State carried its burden of proving beyond a reasonable doubt that the defendant was guilty of the offense of second degree murder and that the homicide was not committed in defense of Ms Davis Further in reviewing the evidence we cannot say that the jury determination was irrational s under the facts and circumstances presented to them See State v Ordodi 2006 0207 p 14 La 11 946 So 654 662 This assignment of error is without 06 29 2d merit For the foregoing reasons we affirm the defendant conviction and s sentence CONVICTION AND SENTENCE AFFIRMED 12
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