State Of Louisiana VS Joshua Phillip Dean
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2010 KA 1020
STATE OF LOUISIANA
VERSUS
JOSHUA PHILLIP DEAN
Judgment Rendered December 22 2010
Appealed from the
Thirty Second Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Case Number 507
564
Honorable David W Arceneaux Presiding
Joseph L Waitz Jr
District Attorney
Counsel for Appellee
State of Louisiana
Houma LA
Ellen Daigle Doskey
Assistant District Attorney
Houma LA
Bertha M Hillman
Louisiana Appellate Project
Counsel for Defendant
Appellant
Joshua Phillip Dean
Thibodaux LA
Joshua Phillip Dean
Appellant
Defendant
Jackson LA
Pro Se
BEFORE PARRO GUIDRY AND HUGHES JJ
GUIDRY J
The defendant Joshua Phillip Dean was charged by bill of information with
two counts of attempted first degree murder in violation of La R 14
S 30
1
A
and 14
27
He pled not guilty
Following a trial by jury the defendant was
convicted as charged The defendant moved for post verdict judgment of acquittal
and for a new trial
The trial court denied both motions
The defendant was
sentenced to imprisonment at hard labor for fifty years without the benefit of
probation parole or suspension of sentence on each count The court ordered that
the sentences be served consecutively The defendant moved for reconsideration
of the sentences The trial court denied the motion The defendant now appeals
urging the following assignments of error by counseled and pro se briefs
t ni
od
vo
L The trial court erred in denying the defendant motion for a new trial
s
2 The trial court erred in denying the defendant motion to reconsider
s
sentences
Prn ro
1 The trial court committed reversible error patent on the face of the
record when it allowed the state to amend the substance of the bill of
information to charge a new offense after the start of trial
2 The evidence at trial was insufficient to identify the defendant as the
perpetrator of the crimes for which he was convicted
3 The trial court erred in admitting over the defendant objection
s
testimony regarding a photograph depicting the defendant with guns
in his hand and waistband
Finding no merit in any of the assigned errors we affirm the defendant
s
convictions and sentences
FACTS
On June S 2008 at approximately 11 p Shannon Brunet left the High
00 m
Tides Bar in Houma Louisiana with his friends and went to a cafe where he
stayed until 1 a Thereafter Brunet left the cafe deciding that he would walk
30 m
2
to the nearby residence of his exgirlfriend
Boulevard Brunet heard a vehicle approach
As he walked down New Orleans
The vehicle drove up alongside
Brunet and the passenger pointed a gun out of the widow Aiming directly at
Brunet the passenger fired a single shot Brunet fell to the ground and the vehicle
immediately sped away According to Brunet there was no confrontation andor
dialog between him and the occupants of the vehicle prior to the shooting
Later that same morning Freddie Kelly was also shot by the passenger of a
vehicle
Kelly an offshore worker routinely rode his bicycle for exercise on his
off days He preferred riding in the early morning hours because the traffic was
minimal and his family was asleep At approximately 3 a Kelly was riding
30 m
in the area near Legion Avenue when a vehicle approached him The passenger in
the vehicle asked Kelly for directions to Williams Avenue
As Kelly turned
around to gesture in response the passenger pointed a gun directly at Kelly heart
s
and fired a single gunshot Kelly attempted to jump off of his bicycle to avoid
being hit but he was unsuccessful Kelly sustained a single gunshot wound that
left him paralyzed from his waist down The vehicle immediately left the scene
Both shootings were immediately reported to the police
Meanwhile at
approximately 3 a the defendant contacted his exgirlfriend Brittany
30 m
Breaux and asked her to pick him up
Breaux picked up the defendant and
Dwayne Lee by Maple Park According to Breaux the defendant told her he had
just shot two people and asked her to drive over to the area where one of the
s
shootings occurred The defendant told Breaux he wanted to see if the victim
bicycle was still out there Breaux complied Next Breaux drove the defendant
and Lee over to New Orleans Boulevard
At some point thereafter Breaux
dropped Dwayne Lee off and she and the defendant continued to ride around
Eventually Breaux and the defendant became involved in a verbal altercation
which ended with the defendant throwing Breaux cellular telephone out of the
s
3
vehicle The defendant also threw a beer bottle towards Breaux vehicle after he
s
exited it
Breaux eventually went to the police and advised them of the
information the defendant had relayed to her regarding the shootings
In connection with the police investigations the defendant and Dwayne Lee
were developed as suspects in both shootings
Both men were arrested
The
Dwayne Lee on the other
defendant denied any participation in the shootings
hand confessed to his participation in the incidents and identified the defendant as
the shooter
Lee admitted that he was the driver and the defendant was the
passenger in the vehicle that approached each of the victims
Kristy Aleman the defendant livein girlfriend was also questioned
s
following the defendant arrest Aleman provided two different statements
s
At
approximately 8 a Aleman provided her first statement In this statement
14 m
Aleman claimed she and the defendant were together on the night before the
shootings
She stated the defendant left home at approximately 11 p and
00 m
returned approximately 30 to 45 minutes later
According to Aleman the
defendant was in bed with her when she went to sleep at approximately 12 a
30 m
She stated she did not wake up until the following morning when the police
arrived at the residence looking for the defendant Aleman stated that she did not
know if the defendant went anywhere else during the time she was asleep but he
was still in bed when she awoke the following morning
In her second statement at approximately 10 a Aleman provided the
30 m
same details leading up to her falling asleep around 12 a However this
30 m
time she stated that the defendant must have left after she fell asleep because he
In the trial transcript this witness name is spelled Cristy Alleman However in her statement to the
s
police the witness signed her name Kristy Aleman
rd
woke her up at around 4 a and told her he had shot two people She claimed
00 m
the defendant stated that he had shot one individual in the shoulder but he was
unsure where he hit the other individual
He explained that he had shot the
individuals because he was angry with Aleman
According to Aleman the
defendant advised that he had put the weapon he used in the shootings a small 9
millimeter handgun under the right corner of the shed located in the backyard of
their residence
The aforementioned information was placed in an affidavit for a search
warrant A warrant was issued allowing a search of the defendant residence and
s
any other detached structures on the Gouaux Avenue property Upon executing
the warrant the Houma Police Department officers recovered a small 9 millimeter
handgun from beneath the right corner of the storage shed behind the defendant
s
home
COUNSELED ASSIGNMENT OF ERROR 1
DENIAL OF MOTION FOR A NEW TRIAL
By this assignment of error the defendant contends the trial judge erred in
denying his motion for a new trial despite new evidence suggesting that Dwayne
Lee was actually the shooter In his motion the defendant alleged that a new trial
was warranted because there were two witnesses Andrew T Vargas and Malcolm
Smith who would testify that Dwayne Lee made a statement while incarcerated at
Angola confessing that he shot one or more of the victims in this case
The motion for new trial is based upon the supposition that injustice has
been done the defendant and unless such is shown to have been the case the
motion shall be denied no matter upon what allegations it is grounded
P
Cr
C art 851
La
In order to obtain a new trial based on newly discovered
evidence the defendant has the burden of showing 1 the new evidence was
discovered after trial 2 the failure to discover the evidence at the time of trial
61
was not caused by lack of diligence 3 the evidence is material to the issues at
trial and 4 the evidence is of such a nature that it probably would have produced
a different verdict
State v Smith 96 0961 p 7 La App 1st Cir 6 697
97
20
2d
So 39 43 see also La C art 851
P
Cr
3
At the hearing on the motion for a new trial counsel for the defendant
advised the court that while being housed at Angola Penitentiary Dwayne Lee had
a conversation with Andrew Vargas wherein he indicated that he was the person
who shot one of the individuals Counsel also noted that Malcolm Smith had been
in the same room and overheard the conversation between Lee and Vargas
Counsel advised that Vargas had been released from prison and could not be
located at the time of the hearing Counsel presented a written statement from
Vargas The statement was dated January 6 2009 and was witnessed by several
other inmates
Before ruling on whether the statement would be allowed into
evidence the court allowed defense counsel to question Dwayne Lee regarding the
alleged statement
In his testimony Lee admitted that he was acquainted with both Vargas and
Smith
Lee also admitted that he engaged in general discussions with Vargas
regarding his case but he denied ever stating that he was the shooter of either
victim
Lee testified he never discussed his case with Smith
When questioned
regarding how Vargas and Smith would know information regarding the details of
the case Lee advised that the defendant was also housed in the same area at
Angola as he Vargas and Smith Lee further explained that he previously had
provided a written affidavit which was introduced into evidence at the defendant
s
trial stating that the information provided to the police in connection with his
confession during interrogation was not true In the affidavit Lee stated that he
and the defendant had nothing to do with the shootings At the trial and again at
the hearing on the new trial motion Lee explained that this affidavit was prepared
by the defendant Lee claimed the defendant threatened him and pressured him to
sign the affidavit
Malcolm Smith testified he was acquainted with both the defendant and Lee
He met the men while housed at Angola Smith testified that he overheard Lee tell
Vargas that he shot one of the victims and the defendant shot the other
He
claimed Lee stated that the defendant shot one of the victims at a party and that
later that same day Lee shot the other while he was driving
Over the state objection the court allowed the written statement signed by
s
Andrew Vargas to be introduced into evidence In the statement Vargas claims
Lee told him and Smith that he was incarcerated because he shot two people
Vargas claimed Lee described in detail the events that led up to the shootings
According to Vargas statement Lee stated that he and the defendant were in the
s
area where Brunet was shot when they observed a man urinating outside
The
defendant yelled at the man and a verbal altercation ensued During the argument
the man pulled a knife on the defendant and the defendant walked away
Later
when the defendant and Lee were driving on New Orleans Boulevard they
observed the man walking Lee claimed he shot at the man According to Vargas
Lee told him I was just joking when 1 shot at him I just wanted to scare him
Vargas also stated that Lee admitted to shooting the second victim as the victim
rode down Legion Avenue on a bicycle
Following argument by counsel the court denied the motion
The court
noted that this alleged newly discovered evidence would have been the only
evidence that pointed to Lee as the shooter All of the other evidence presented at
the trial pointed to the defendant The court noted that the first victim Brunet
although unable to identify any of the occupants of the vehicle specifically
indicated that he was shot by the passenger Kelly the second victim testified that
the driver of the vehicle was a white male and the shooter the passenger was an
VA
Indian male The court then noted that Lee was obviously a Caucasian male and
the defendant appeared to be of Indian descent
The court further noted that the
physical characteristics of these men were obviously apparent to the jury
The
court also noted that the evidence presented at the trial clearly established that the
defendant was the passenger in the vehicle driven by Lee
Finally the court
pointed out that according to Smith testimony Lee indicated that he shot the
s
second victim simply because the defendant had shot somebody so he wanted to
shoot somebody too This information the court noted is in direct contrast to the
evidence presented at the trial because Kelly the victim in the second shooting
identified the defendant the Indian male as the individual who shot him
Considering the foregoing the court concluded that the evidence presented
by the defendant at the hearing on the motion for a new trial was apparently
another effort by the defendant to fabricate evidence in an effort to thwart the
jury verdict and it absolutely would not have changed the verdict of guilt in
this case
After a careful review of the record we do not find that the defendant has
met all the requisites for the granting of his motion for new trial based upon newly
discovered evidence
We find no merit in the defendant argument that the
s
uncorroborated testimony of two inmates whose credibility is highly questionable
if presented would have produced different verdicts in this case As the trial court
noted this new evidence would have been the only evidence suggesting that
anyone other than the defendant was the shooter The evidence at the trial clearly
established that Lee was the driver of the vehicle at the time of each of the
shootings and that the shots were fired by the passenger
Also Breaux and
Aleman both told the police the defendant told them that he shot two people on the
night in question
Although Aleman later changed her story the recorded
telephone conversations between her and the defendant clearly show that the
8
defendant was the shooter and Aleman was aware of this fact Given this direct
evidence establishing the defendant identity as the shooter it is unlikely that the
s
uncorroborated inmate testimony claiming that Lee allegedly indicated that he did
one or both of the shootings would have produced a different verdict Therefore
considering the incredible nature of the testimony and evidence presented at the
hearing we find no abuse of discretion in the trial court denial of defendant
s
s
motion for new trial This assignment of error is meritless
COUNSELED ASSIGNMENT OF ERROR 2
DENIAL OF MOTION TO RECONSIDER SENTENCE
In this assignment of error the defendant contends the trial court erred in
imposing excessive sentences and in denying his motion for reconsideration of the
sentences
Specifically the defendant argues maximum sentences were not
warranted in this case because he is not the worst type of offender He asserts that
of the twenty aggravating circumstances listed in the sentencing guidelines of La
P
Cr
C art 894 twelve are inapplicable in this case Thus he contends there
1
were
not
sufficient
aggravating circumstances to justify the imposition
of
maximum sentences in this case The defendant further asserts the trial court failed
to give adequate mitigating consideration to the fact that he was only twenty years
old at the time of the offenses and there was no evidence that he had any prior
arrests or convictions
He argues that imposition of consecutive fiftyyear
sentences is equivalent to imposition of a life sentence and amounts to nothing
more than a needless imposition of pain and suffering
Article 1 Section 20 of the Louisiana Constitution prohibits the imposition
of excessive punishment
State v Lanieu 98 1260 p 12 La App 1st Cir
99
1
4 734 So 89 97 writ denied 991259 La 10 750 So 962
2d
99
8
2d
Although a sentence may be within statutory limits it may violate a defendant
s
constitutional right against excessive punishment and is subject to appellate
9
review
State v Sepulvado 367 So 762 767 La 1979
2d
A sentence is
constitutionally excessive if it is grossly disproportionate to the severity of the
offense or is nothing more than a purposeless and needless infliction of pain and
suffering
State v Dorthey 623 So 1276 1280 La 1993 A sentence is
2d
grossly disproportionate if when the crime and punishment are considered in light
of the harm done to society it shocks the sense of justice State v Hogan 480
2d
So 288 291 La 1985 A trial court is given wide discretion in the imposition
of sentences within statutory limits and the sentence imposed by it should not be
set aside as excessive in the absence of manifest abuse of discretion
State v
Lobato 603 So 739 751 La 1992
2d
The Louisiana Code of Criminal Procedure sets forth items that must be
considered by the trial court before imposing sentence La C art 894 The
P
Cr
1
trial court need not cite the entire checklist of Article 894 but the record must
1
reflect that it adequately considered the guidelines State v Herrin 562 So 1
2d
1 La App 1st Cir writ denied 565 So 942 La 1990 In light of the
2d
criteria expressed by Article 894 a review for individual excessiveness must
1
consider the circumstances of the crime and the trial court stated reasons and
s
factual basis for its sentencing decision State v Watkins 532 So 1182 1186
2d
La App 1st Cir 1988
Remand for full compliance with Article 894 is
1
unnecessary when a sufficient factual basis for the sentence is shown
State v
Lanclos 41 So 475 478 La 1982
9 2d
A person convicted of attempted first degree murder faces a sentence at hard
labor for not less than ten nor more than fifty years without benefit of parole
probation or suspension of sentence See La R 14
S 27
a
1
D
C
30 As he
notes the defendant herein received the maximum sentence on each conviction
Generally maximum sentences are reserved for the worst offenders
State v
Easley 432 So 910 914 La App 1st Cir 1983 The Louisiana Supreme
2d
111
1
Court has emphasized that the only relevant question on review of a sentence is
whether the trial court abused its broad sentencing discretion and not whether the
sentence imposed may appear harsh or whether another sentence might be more
appropriate See State v Cook 95 p 3 La 5 674 So 957 959
2784
96
31
2d
per curiam cert denied 519 U 1043 117 S 615 136 L 539 1996
S
Ct
2d
Ed
Prior to imposing sentence the trial court reviewed the facts of the case
and noted
Particularly the court would note that the evidence in this case
indicated that these crimes for which Mr Dean was convicted were
about as random as criminal activity could get There was some very
slight indication by evidence that one victim Mr Brunet had had
words with Mr Dean earlier in the evening before he was shot by Mr
Dean
The evidence also indicated that there was absolutely no
connection between Mr Dean and the second victim who was shot
minutes later that same night that being Mr Kelly
There was absolutely no justification for either shooting and in
the case of Mr Kelly positively absolutely no indication of any
possible reason why he would have been shot but for the fact that he
was in the wrong place on Mr Dean time Mr Kelly is apparently
s
now confined to a wheelchair as a result of injuries suffered in the
shooting by Mr Dean
Fortunately Mr Brunet appears to have made a complete
recovery but as good as his recover sic was Mr Kelly recovery
s
was not
The court has also considered that these were two shootings in
the same night
Those factors are the principal reasons why the sentence which
the court has decided to impose the court feels is justified
The defendant now complains that the sentences are excessive because he is
not the worst offender nor did he commit the worst type of offenses
However
our review of the record and evidence contained therein indicates otherwise The
defendant engaged in a senseless unprovoked shooting spree which resulted in
serious injury to the two innocent victims
The consecutive sentences were
justified by the dangerous propensities exhibited by the defendant on this occasion
He clearly poses a risk to the safety of the public
Considering the circumstances of the offenses we find that the trial court
did not manifestly abuse its discretion in imposing the statutory maximum
sentences upon the defendant The maximum sentences are neither grossly
disproportionate to the severity of the offenses in light of the harm to the victims
nor so disproportionate as to shock our sense of justice The factual circumstances
and nature of the instant offenses shooting the unarmed victims without any
provocation are clearly among the worst attempted murder offenses found in the
jurisprudence The defendant who showed absolutely no regard for the law or for
human life is certainly the worst type of criminal offender and poses an unusual
risk to public safety Therefore considering the extremely violent nature of the
instant offenses and the extensive injuries suffered by the victims we do not find
the sentences to be unconstitutionally excessive Although the trial court did not
articulate all of the aggravating andor mitigating factors considered the sentences
are clearly supported by the record The trial court did not err in denying the
s
defendant motion for reconsideration of the sentences
This assignment of error is without merit
PRO SE ASSIGNMENT OF ERROR 1
AMENDMENT OF THE BILL OF INFORMATION
In this assignment of error the defendant contends that the trial court erred
in allowing the state to substantively amend the bill of information during the trial
The record reflects that the original bill of information filed July 18 2008
charged the defendant and Dwayne Lee with two counts of attempted first degree
murder and provided as follows
DID THEN AND THERE unlawfully and intentionally attempt to kill
one Freddie Kelly and the said defendants were engaged in the
perpetration or attempted perpetration of an assault by driveby
shooting when the said defendant and Dwayne Cody Lee had a
specific intent to kill or to inflict great bodily harm to the said
Freddie Kelly in violation of La R 14 14
S 27 30A
1
12
COUNT
TWO
DID
THEN
AND
THERE
unlawfully
and
intentionally attempt to kill one Shannon Brunet and the said
defendants were engaged in the perpetration or attempted perpetration
of an assault by driveby shooting when the said defendant and
Dwayne Cody Lee had a specific intent to kill or to inflict great
bodily harm to the said Shannon Brunet in violation of La R
S
27 30A
14 14
I
Emphasis added
On December 2 2008 after the jury was selected but prior to opening
statements on the urging of the trial judge the state filed an amended bill of
information that deleted the language or to inflict great bodily harm 2 Counsel
for defendant indicated he had no objections to the amendment The amended bill
of information was filed and the defendant was rearraigned
On appeal the
defendant now argues that such a substantive change in the bill constituted a defect
and warrants reversal of his conviction
Louisiana Code of Criminal Procedure article 487 provides
A
An indictment that charges an offense in accordance with the
provisions of this Title shall not be invalid or insufficient because of
any defect or imperfection in or omission of any matter of form
only or because of any miswriting misspelling or improper English
or because of the use of any sign symbol figure or abbreviation or
because any similar defect imperfection omission or uncertainty
exists therein The court may at any time cause the indictment to be
amended in respect to any such formal defect imperfection omission
or uncertainty
Before the trial begins the court may order an indictment
amended with respect to a defect of substance After the trial begins a
mistrial shall be ordered on the ground of a defect of substance
In a jury trial trial begins when the first prospective juror is called for
examination La C art 761
P
Cr
A defect of substance as contemplated by Article 487 of the Code of
Criminal Procedure is intended to mean a defect which will work to the prejudice
of the party accused City of Baton Roue v Norman 290 So 865 870 La
2d
z
Although specific intent to inflict great bodily harm may support a conviction for murder such intent is
insufficient to support a conviction for attempted murder See State y 14ongo 962060 pp 23 La
97
2
12 706 So 419 420
2d
13
1974 see also State v Harris 478 So 229 231 La App 3 Cir 1985 writ
2d
denied 481 So 1331 La 1986 The purpose of requiring the state to file an
2d
amendment to the indictment before trial is to provide the defendant with adequate
notice of the charge so that he may properly prepare his defense
When the
indictment against him provides sufficient notice of the crime with which he is
charged a defendant suffers no prejudice See State v Young 615 So 948 951
2d
La App 1st Cir writ denied 620 So 873 La 1993
2d
At the outset we note that the defendant did not object to the amendment of
the bill of information In fact the record reflects that the counsel for the defendant
specifically indicated that the defense had no objection to the amendment
La
P
Cr
C art 841 provides in pertinent part that a irregularity or error
A
n
cannot be availed of after verdict unless it was objected to at the time of
occurrence
The defendant failure to object to the amendment of the bill of
s
information or to request a continuance or to move for a mistrial precludes relief
on this claim
See State v Johnson 20081156 pp 11 12 La App 5th Cir
09
28 3d
4 9 So 1084 1092 writ denied 20091394 La 2 28 So 268
10
26
3d
Moreover under the particular facts of this case the defendant failed to prove any
prejudice flowing from the amendment of the bill of information
Our review of
the record in this case reflects that the amendment to the bill of information was
merely to clarify the charges While the amendment deleted a portion of the
description of the actions constituting the offenses it did not change the offenses
charged The original bill of information informed the defendant of the nature and
cause of the accusations against him in sufficient detail to allow him to prepare for
trial
Such an amendment even if considered erroneous was harmless beyond a
reasonable doubt State v Leonard 051382 p 12 La 6 932 So 2d 660
06
16
667 668 see also La C art 921
P
Cr
14
Therefore the trial court committed no error in allowing the amendment
after the commencement of trial Thus this assignment of error is without merit
PRO SE ASSIGNMENT OF ERROR 2
SUFFICIENCY OF THE EVIDENCE
In this assignment of error the defendant challenges the sufficiency of the
evidence used to convict him of attempted first degree murder He specifically
argues that the state evidence which consisted of uncredible witnesses and
s
unreliable
identification
testimony
failed
to
negate
the
possibility
of
misidentification In support of his argument the defendant points out that Brunet
was unable to positively identify him as the shooter Kelly initially selected
someone other than the defendant from a photographic lineup there was no
ballistics evidence to connect the gun recovered from the defendant residence to
s
the offenses at issue Aleman and Breaux were not credible witnesses and the
recorded conversations should not have been considered because they were not
properly introduced
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 2781 2789 61 L 560 1979 see also La Code
S
Ct
2d
Ed
P
Cr art 821 State v Mussall 523 So 1305 130809 La 1988
B
2d
When
analyzing circumstantial evidence
La
S
R
438
15
provides
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
On appeal the reviewing court does not determine whether another
possible hypothesis suggested by a defendant could afford an exculpatory
15
explanation of the events Rather the court must evaluate the evidence in a light
most favorable to the state and determine whether the possible alternative is
sufficiently reasonable that a rational juror could not have found proof of guilt
beyond a reasonable doubt State v Mitchell 993342 p 7 La 10 772
00
17
2d
So 78 83
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 971885 pp 3 4 La App 1st Cir 6
98
29
715 So 157 1 Specific criminal intent is that state of mind which exists
2d
59
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 a
defendant or by inference from circumstantial evidence such as defendant
s
actions or facts depicting the circumstances State v Cummings 99 3000 p 3
La App 1st Cir 11 771 So 874 876
00
3
2d
In the instant case the defendant was convicted of attempted first degree
murder Louisiana Revised Statute 14 provides as follows
1
A
30
First degree murder is the killing of a human being
1 When the offender has specific intent to kill or to inflict great
bodily
harm
and
is
engaged
in
the
perpetration or attempted
perpetration of aggravated kidnapping second degree kidnapping
aggravated escape aggravated arson aggravated rape forcible rape
aggravated burglary armed robbery assault by driveby shooting
first
degree robbery
second
degree robbery
simple robbery
terrorism cruelty to juveniles or second degree cruelty to juveniles
Under La R 14 a person is guilty of an attempt to commit an
S 27
A
offense when he has a specific intent to commit a crime and does or omits an act
for the purpose of and tending directly toward the accomplishing of his object
The gravamen of the crime of attempted murder whether first or second
degree is the specific intent to kill and the commission of an overt act tending
1011
toward the accomplishment of that goal State v Huizar 414 So 741 746 La
2d
1982
Although specific intent to inflict great bodily harm may support a
conviction for murder such intent is insufficient to support a conviction for
attempted murder See State v Hon o 962060 pp 23 La 12 706 So
97
2
2d
419 420
Where the key issue in a case is the defendant identity as the perpetrator
s
rather than whether or not the crime was committed the state is required to negate
any reasonable probability of misidentification in order to meet its burden of proof
State v Millien 20021006 pp 23 La App 1st Cir 2 845 So 506
03
14
2d
509
However positive identification by only one witness may be sufficient to
support a defendant conviction State v Coates 2000 p 3 La App 1 st
s
1013
Cir 12 774 So 1223 1225
00
22
2d
In the instant case the facts and circumstances surrounding the commission
of the offenses are essentially undisputed The defendant does not contest that the
offenses were committed
identity as the shooter
Rather he only challenges the state evidence of his
s
Our review of the record in this case reveals that the
evidence of the defendant identity as the shooter was overwhelming Dwayne
s
Lee testified he was with the defendant on the morning of the shootings and
provided a detailed description of their activities before and after the shootings
Lee testified that he and the defendant were riding around in Lee vehicle when
s
they saw an unidentified man urinating on the side of the road Lee was driving
and the defendant was the passenger
The defendant and the man eventually
became engaged in a verbal altercation The defendant and Lee left the area and
went to the defendant house The defendant armed himself with a gun which he
s
showed to Lee Lee and the defendant drove back towards the area where they had
encountered the man Upon seeing a man walking down the street the defendant
fired a single gunshot out of the passenger window of the vehicle
17
Lee drove
away According to Lee he was not aware that the defendant was going to shoot
the man and the defendant never discussed why he shot him
Lee testified that he and the defendant went back to the defendant house
s
got into the defendant vehicle and left again They drove back toward the scene
s
of the shooting Later as the men drove to the east side of town the defendant
s
vehicle stopped working The men got a ride back to the defendant residence to
s
get Lee vehicle
s
Lee explained that he and the defendant did not discuss the
previous shooting incident at all
Lee claimed he was afraid
Lee and the
defendant were riding back towards the defendant house when they observed an
s
older man riding a bicycle
According to Lee the defendant shot out of the
passenger window again as Lee continued to drive
Lee denied any dialog
between the defendant and the man on the bicycle Lee claimed he drove back to
the defendant residence and dropped him off Lee claimed he was at home when
s
the defendant called him and told him to come back
Lee complied because he
was afraid of the defendant This time Lee did not drive he walked back towards
the defendant residence The defendant met Lee along the way The defendant
s
then called Brittany Breaux and asked her to pick him up The defendant Lee and
Breaux rode around for a little while before eventually returning Lee to his
residence
On cross examination Lee testified that he assumed that the first man the
defendant shot was the same man who had been urinating in the street Lee denied
that he and the defendant ever orchestrated a plan to shoot either of the individuals
He claimed that he was not aware that the defendant was going to shoot either
man
Lee testified that he provided a full confession regarding the shootings to the
police upon his arrest
He also acknowledged that on November S 2008 he
signed an affidavit indicating that his confession was a result of police coercion
18
In the affidavit Lee claimed he was under the influence of drugs and alcohol when
initially questioned by the police He claimed that a hours of denying the
fter
evidence the detectives claimed they had against him I finally told them what
they wanted me to say so that they would let me get some sleep
On re direct
examination Lee testified that the affidavit was prepared at the defendant request
s
when the two men were housed together in Angola According to Lee he signed
the affidavit because he was afraid of the defendant
Kristy Aleman the defendant then fiancde also testified at the trial
s
Aleman admitted that she previously provided several inconsistent statements to
the police regarding the defendant actions on the morning in question Aleman
s
agreed that she initially indicated that the defendant was in bed with her and that
she was unsure if he ever left the residence after
30
12
m
a
She
also
acknowledged that she later told the police the defendant woke her up at 4 a
00 m
and
told
her
he
shot
two
people
During her testimony
Aleman
even
acknowledged that she once told the police that she was responsible for the
shooting
Aleman claimed that her initial statement was truthful and that the
subsequent statements were not When asked how she knew the defendant was
suspected of shooting two people in order to include this information in her
allegedly
fabricated
statement
Aleman
claimed
the
police
told
her
this
information Aleman further explained that she fabricated the statements about the
s
defendant confession to her because she wanted to get the defendant in trouble
She claimed she also made up her claim that the defendant told her he put the gun
under the shed
She claimed the defendant never told her anything about hiding a
gun
To impeach Aleman testimony the state introduced various recorded
s
conversations that took place between Aleman and the defendant while he was in
jail awaiting trial In one of the conversations the defendant can be heard telling
IM
Aleman that they found the gun When Aleman denied that the defendant ever
told her he shot the victims another conversation was played wherein the
defendant told Aleman that he was going to say he acted in self During
defense
another call when Aleman questioned the defendant about being with his ex
girlfriend on the morning of the shooting the defendant admitted Brittney sic
was a mess up Just like I messed up and shot those people At another time the
defendant told Aleman I don know what I was thinking
t
I damn near took
s
somebody life During one of the recorded conversations Aleman advises the
defendant that she provided the police with two different statements
When the
defendant expresses frustration with Aleman for making the second statement she
stated I could just tell them that I made that statement cause I was pissed at you
for being with Brittney sic
Brittany Breaux testified that when she picked up the defendant and Lee on
the morning in question the defendant told her he had shot two people
She
further testified that as they rode around Lee repeatedly stated that the defendant
was crazy
Both victims provided detailed descriptions of the gun the shooter pointed at
them
Detective Travis Theriot of the Houma Police Department testified that
Aleman also provided a description of the gun in her statement
Theriot further
testified that the gun recovered from beneath the defendant shed fit the
s
descriptions provided by Aleman and the victims as the weapon used in the
shootings
Detective Jude McElroy of the Houma Police Department testified that he
was responsible for recording the statements Aleman provided in connection with
the investigation McElroy denied ever threatening and coercing Aleman
or
He
also denied advising Aleman of the information contained in the statements
20
Aleman freely provided the information and he typed it After she provided her
statements McElroy allowed Aleman to review and sign the statements
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 determination of the credibility of
the witnesses the matter is one of the weight of the evidence not its sufficiency
State v Taylor 97 2261 pp 5 La App 1st Cir 9 721 So 929 932
6
98
25
2d
The reviewing court is not permitted to decide whether it believes the witnesses
or whether the conviction is contrary to the weight of the evidence
State v
Marcantel 20001629 p 9 La 4 815 So 50 56 It is not the function of
02
3
2d
an appellate court to assess the credibility of witnesses or reweigh the evidence to
overturn a factfinder determination of guilt See State v Houston 98 2658 p 5
s
La App 1st Cir 9 754 So 256 259
99
24
2d
When a case involves
circumstantial evidence and the trier of fact reasonably rejects the 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
Smith 2003 0917 p 5 La App 1st Cir 12 868 So 794 799
03
31
2d
After reviewing the trial testimony and evidence we conclude that the
identification of the defendant as the person who fired the shots at the victims was
established beyond a reasonable doubt It is the function of the jury to determine
which witnesses are credible It is obvious from the verdicts rendered that the jury
found Lee to be credible and accepted his unequivocal identification of the
defendant
as
the
shooter
Considering the
other evidence
introduced
as
corroboration for Lee testimony most importantly the defendant own words
s
s
on the recorded telephone conversations we find the jury verdicts were
s
reasonable Faced with the overwhelming evidence of the defendant identity the
s
jury obviously rejected any theory of mistaken identity In reviewing the evidence
21
we cannot say that the jury determination was irrational under the facts and
s
circumstances presented to them See State v Ordodi 20060207 p 14 La
06
29
11
946
2d
So 654 662
Furthermore an appellate court errs by
substituting its appreciation of the evidence and credibility of witnesses for that of
the factfinder 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 072306 pp 11 12 La 1 1 So 417 422423 per curiam
09
21 3d
Considering the foregoing we find that there was sufficient evidence to
support the attempted first degree murder convictions and to establish the
s
defendant identity as the shooter Therefore viewing all the evidence in the light
most favorable to the state and giving deference to the credibility determinations
of the jurors a rational trier of fact could have concluded beyond a reasonable
doubt and to the exclusion of any reasonable hypothesis of innocence that the
defendant was guilty of the charged offenses
The evidence was sufficient to
negate any reasonable probability of misidentification This assignment of error
lacks merit
PRO SE ASSIGNMENT OF ERROR 3
ADMISSION OF TESTIMONY REGARDING PREJUDICIAL
PHOTOGRAPH
In his final pro se assignment of error the defendant argues the trial court
erred in allowing the prosecutor to question Kristy Aleman regarding a photograph
that was displayed on the wall of her bedroom depicting the defendant with one
gun in his hand and one in his waistband He maintains any evidence relating to
his possession of a weapon was irrelevant and violated La C art 404 which
E
B
prohibits the use of evidence of other crimes or bad acts to show bad character of
the defendant or that he acted in conformity therewith
The defendant further
argues that the probative value of this testimony was outweighed by its prejudicial
effect
22
Although Kristy Aleman initially told the police exactly where the defendant
hid his handgun at the trial Aleman denied ever observing the defendant in
possession of a gun She testified that she did not even know the defendant owned
a gun
In response the prosecutor asked Aleman about the picture in question
Counsel for the defendant objected The trial court overruled the objection and
allowed the line of questioning Aleman then admitted that there was a picture of
the defendant with two guns in his possession on the bedroom wall
Except under certain statutory or jurisprudential exceptions evidence of
other crimes or bad acts committed by the defendant is inadmissible at trial See
State v
Jackson
1
B
404
625
2d
So
146 148 49 La
1993 citing La
E
C
art
The erroneous admission of other crimes evidence is subject to
harmlesserror analysis See State v Morgan 991895 p 5 La 6 791
01
29
2d
So 1 001 104 per curiam The test for determining harmless error is whether the
verdict actually rendered in the case was surely unattributable to the error
Sullivan v Louisian
508 U 275 279 113 S 2078 2081 124 L 182
S
Ct
2d
Ed
1993 see also Morgan 991895 at p 6 791 So at 104
2d
Even if we were to conclude that Aleman testimony regarding the
s
photograph of the defendant with the possession of guns was an inadmissible
reference to other bad acts by the defendant in this case any error in allowing the
evidence was clearly harmless beyond
a reasonable doubt
See State v Leonard
05 1382 at p 12 932 So 2d at 667 see also La C art 921 Even absent
668
P
Cr
evidence that the defendant was previously in possession of multiple guns the
s
defendant participation in the shootings in this
case was clear
The evidence
presented at the trial established that the defendant shot the unarmed victims told
several others what he had done hid the gun behind his house and later strategized
that he would urge a claim of self defense Thus it is clear that the defendant
s
convictions were unattributable to the introduction of any other crimes or bad acts
23
evidence
This assignment of error lacks merit For the foregoing reasons we
affirm the defendant convictions and sentences
s
CONVICTIONS AND SENTENCES AFFIRMED
24
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