State Of Louisiana VS Troy Batiste
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 2237 STATE OF LOUISIANA YM T 1114 TROY BATISTE O Judgment rendered June 10 2011 Appealed from the 22nd Judicial District Court 1 in and for the Parish of St Tammany Louisiana Trial Court No 338584 Honorable Allison H Penzato Judge HON WALTER P REED ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA ON COVINGT LA AND KATHRYN W LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE LA HOLLI HERRLE CASTILLO MARRERO LA ATTORNEY FOR DEFENDANT APPELLANT TROY BATISTE BEFORE KUHN PETTIGREW AND HIGGINBOTHAM 31 PETTIGREW J The defendant Troy Batiste was charged by bill of information with one count of second degree battery count I a violation of La R 14 and one count of S 34 1 aggravated criminal damage to property count II a violation of La R 14 He pled S 55 not guilty on both counts Following a jury trial the defendant was found guilty as charged on both counts Thereafter the State filed a habitual offender bill of information against the defendant alleging in regard to count I he was a fourth felony habitual offender On the original bill of information the defendant was sentenced on each count to five years at hard labor Following a hearing on the habitual offender bill of information he was adjudged a third felony habitual offender The trial court vacated the previously imposed sentence on count I sentencing him on that count to imprisonment at hard labor for the remainder of his natural life without the benefit of parole probation or suspension of sentence The defendant now appeals contending that he had ineffective assistance of counsel and that the State presented insufficient evidence on counts I and II For the following reasons we affirm the conviction habitual offender adjudication and sentence on count I and we affirm the conviction and sentence on count II FACTS The victim Scott Roy Sewell testified at trial On July 6 2001 at approximately 00 m 8 p or 9 p he was at the Chevron gas station on Highway 190 in Lacombe 00 m According to the victim he first noticed the defendant when the defendant almost sideswiped his vehicle while it was parked at the pump The defendant said something about cutting him off and stuff When asked if he said anything to the defendant the victim replied I guess I did probably whatever The victim claimed the defendant argued with him while the victim fueled his car and while the defendant girlfriend told s 1 Predicate 1 was set forth as the defendant September 23 1982 conviction under Twenty second s Judicial District Court Docket 102925 for illegal use of weapons The State however abandoned proof of s this predicate offense at the habitual offender hearing Predicate 2 was set forth as the defendant January 23 1987 conviction under Twentysecond Judicial District Court Docket 154069 for aggravated battery on an original charge of attempted second degree murder Predicate 3 was set forth as the s defendant August 1 1991 conviction under Twentysecond Judicial District Court Docket 198065 for second degree battery 2 the defendant to get in the car and leave Thereafter the defendant got into his car and left When the victim exited the building after paying for the gas however the defendant was standing outside the building According to the victim the defendant continued to argue with him while the victim walked to his car The victim got into his car revved it up a little and peal sic out a little He denied striking or trying to ed strike the defendant with the car According to the victim the defendant ran up to the vehicle smashed its side window with his fist and tried to climb into the moving vehicle The victim accidentally put the vehicle in reverse then put it in park and walked around to the back of the vehicle He conceded his vehicle tires might have run over the s s defendant feet while he was trying to put the vehicle in park The victim saw a hand coming at him and saw that the defendant was gushing out blood The victim blocked some of the defendant punches as he backed away from the defendant s The victim denied that he tried to hit the defendant The victim then tripped and fell down and the defendant jumped on him and punched him in the face until a clerk from the building jumped on the defendant The defendant then left the gas station The victim was unable to leave the gas station because he could barely see The victim suffered a collapsed cheekbone a gash on his face which required five stitches and a fractured jaw which prevented him from chewing At the time of trial as a result of the injuries he received in the incident he was suffering headaches problems with the nerves in his face and problems with his bite provoke the defendant to attack him He denied he did anything to He conceded that following the incident in an unrelated incident involving his wife he pled guilty to aggravated battery and simple battery On crossexamination the defense asked the victim if when the defendant was complaining about the victim driving the defendant had stated that the victim had s almost gotten him killed and the victim had told the defendant not to worry about it because the victim had insurance The victim answered p When asked if he robably shot the bird at the defendant the victim answered c have ould 3 t Don really remember anymore The victim denied he was armed with a knife or a screwdriver during the incident and denied calling the defendant a n Amber Larkin Tabiner also testified at trial was working as a gas station attendant for L r On the evening of the incident she M Chevron in Lacombe She remembered selling the victim some gasoline and indicated he was calm not arrogant and not angry According to Tabiner somebody punched in the window of the victim car as he was s driving out of the parking lot When the victim exited his car the attacker grabbed him by his ponytail and started beating him in the face Tabiner indicated the defendant started the physical violence She did not see the victim strike the defendant or try to hit him with the victim vehicle s She also did not hear anyone squealing or spinning tires She did however see the police taking measurements of skid marks after the incident Felicia Jarvis also testified at trial The defendant was her estranged husband She claimed on the evening of the incident she and the defendant were run off the road by the victim She claimed the defendant pulled alongside the victim car and s complained and the victim stated he had insurance and started digging in the glove box She claimed the defendant pulled up to the building at the gas station to allow her to get some cigarettes She claimed the victim exited the building got into his car and hit the defendant with the vehicle but she did not know if he intentionally struck the defendant She claimed the victim hit his brakes so hard they squealed and his vehicle skidded She claimed the defendant did not punch the victim window but the victim exited his car s and rushed at the defendant with something in his hands She claimed the defendant did not try to run from it but left to get treatment from his brother who was a nurse She conceded her statement given to the police on the night of the incident did not allege that she and the defendant had been run off the road by the victim or that the victim had anything in his hands The defendant also testified at trial He stated that on the evening of the incident he was driving his wife to the store to buy beer and rent movies when he was forced off the road by a white Ford Mustang that crossed into his lane of travel He claimed he was forced off the road through some bushes and into a roadside shrimp stand I The Mustang pulled into a nearby Chevron gas station The defendant indicated he pulled alongside the Mustang and told the driver Man you almost killed me and my wife According to the defendant the victim replied Killed you and your wife I got insurance I got insurance Did I hit you Did I hit you Did I hit you The defendant claimed he then returned to his vehicle and proceeded to the video store but it was closed As he was coming back he passed in front of the Chevron He claimed a friend of his Reginald Dickson pulled into the Chevron so he pulled in behind him to talk to him The defendant said the victim came out of the building at the Chevron station walked by him without saying anything and got into his car He claimed the victim revved up his motor began spinning his tires and there was nothing but smoke smoke burning tires burning tires The defendant indicated he tried to walk around the victim vehicle but s the victim drove at him and struck him with the vehicle injuring his feet and throwing him inside the vehicle through the passengerside window The defendant claimed he told the victim Boy you in trouble and the victim replied It on it on it on According to s s s the defendant the victim then jumped out of the car and attacked him with a screwdriver He claimed he punched the victim because the victim was sticking him with the screwdriver SUFFICIENCY OF THE EVIDENCE In assignment of error number 2 the defendant argues the evidence was insufficient to support the second degree battery conviction because the State failed to prove he did not act in selfdefense The defendant concedes that he used force upon the victim and that the victim suffered serious bodily injury However he disputes he had the specific intent to cause serious bodily injury and claims he was only defending himself He also claims the evidence was insufficient to support the aggravated criminal damage to property conviction arguing even if he intentionally broke the window of the car it was not foreseeable that human life could be endangered from that act The standard of review for 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 the State proved the essential elements of the crime and the 5 s defendant identity as the perpetrator of that crime beyond a reasonable doubt In conducting this review we also must be expressly mindful of Louisiana circumstantial s evidence test which states in part assuming every fact to be proved that the evidence tends to prove in order to convict every reasonable hypothesis of innocence is excluded State v Wright 980601 p 2 La App 1 Cir 2 730 So 485 486 99 19 2d writs denied 990802 La 10 748 So 1157 20000895 La 11 773 99 29 2d 00 17 2d So 732 quoting La R 15 S 438 When a conviction is based on both direct and circumstantial evidence the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution When the direct evidence is thus viewed the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime Wright 980601 at 3 730 So at 487 2d As is pertinent here battery is the intentional use of force or violence upon the person of another La R 14 Second degree battery is a battery committed without S 33 the consent of the victim when the offender intentionally inflicts serious bodily injury Serious bodily injury means bodily injury that involves unconsciousness extreme physical pain or protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member organ or mental faculty or a substantial risk of death La S 34 R 14 prior to amendment by 2009 La Acts No 264 1 is a specific intent offense 1 Second degree battery Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act La R 14 Specific intent may be proved by S 10 1 direct evidence such as statements by a defendant or by inference from circumstantial evidence such as a defendant actions or facts depicting the circumstances s Druilhet 971717 p 3 La App 1 Cir 6 716 So 422 423 98 29 2d z State v Aggravated criminal damage to property is the intentional damaging of any movable wherein it is foreseeable that human life might be endangered by any means other than fire or explosion La R 14 S 55 Prior to amendment by 2006 La Acts No 141 1 La R 14 in pertinent S 19 part provided The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person provided that the force or violence used must be reasonable and apparently necessary to prevent such offense and that this article shall not apply where the force or violence results in a homicide However La R 14 provides S 21 A person who is the aggressor or who brings on a difficulty cannot claim the right of selfdefense 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 In a non homicide situation a claim of selfdefense requires a dual inquiry first an objective inquiry into whether the force used was reasonable under the circumstances and second a subjective inquiry into whether the force used was apparently necessary In a homicide case the State must prove beyond a reasonable doubt that the homicide was not perpetrated in selfdefense However Louisiana law is unclear as to who has the burden of proving self defense in a non homicide case In previous cases dealing with this issue this court has analyzed the evidence under both standards of review that is whether the defendant proved self defense by a preponderance of the evidence or whether the State proved beyond a reasonable doubt that the defendant did not act in selfdefense Similarly we need not decide in this case who has the burden of proving or disproving self defense because under either standard the evidence sufficiently established that defendant did not act in self defense State v Taylor 972261 p 4 La App 1 Cir 9 721 So 929 931 98 25 2d Any rational trier of fact viewing the evidence presented in this case in the light most favorable to the State could find that the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence all of the elements of second degree battery and aggravated criminal damage to property the 7 s defendant identity as the perpetrator of those offenses and that the defendant attack s on the victim was not justified The verdict rendered against the defendant indicates the jury rejected the defense theory that the victim was the aggressor in this case When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant own testimony that hypothesis falls and the s defendant is guilty unless there is another hypothesis which raises a reasonable doubt State v Captville 448 So 676 680 La 1984 2d instant case No such hypothesis exists in the Additionally the verdict rendered against the defendant indicates the jury accepted the testimony offered against him and rejected the testimony offered in his favor This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder determination of guilt s The testimony of the victim alone is sufficient to prove the elements of the offense The trier of fact may 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 Lofton 961429 p S La App 1 Cir 3 691 So 1365 97 27 2d 1368 writ denied 971124 La 10 701 So 1331 97 17 2d Further in reviewing the evidence 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 So 654 662 An appellate court errs by substituting its appreciation of 2d 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 20072306 pp 1 2 La 09 21 3d 1 1 So 417 418 per curiam Additionally any rational trier of fact viewing the evidence in the light most favorable to the prosecution could find that the evidence presented by the State established that the defendant was the aggressor in the conflict and thus was not entitled to claim self defense Moreover even if it could be found that the defendant was not the aggressor any rational trier of fact could find beyond a reasonable doubt and to 8 the exclusion of every reasonable hypothesis of innocence that the defendant did not act in self defense Testimony at trial indicated the defendant ran up to the victim vehicle s as he was trying to leave the gas station smashed one of its windows with his fist tried to climb into the moving vehicle attacked the victim after he exited the vehicle and repeatedly punched him in the face after he fell down This assignment of error is without merit INEFFECTIVE ASSISTANCE OF COUNSEL In assignment of error number 1 the defendant argues trial counsel rendered ineffective assistance by requesting a multitude of unnecessary continuances which resulted in the unavailability of two witnesses who could have testified for the defense A claim of ineffective assistance of counsel is generally relegated to post conviction proceedings unless the record permits definitive resolution on appeal State v Miller 990192 p 24 La 9 776 So 396 411 cert denied 531 U 1194 121 S 00 6 2d S Ct 1196 149 L 111 2001 2d Ed A claim of ineffectiveness of counsel is analyzed under the two pronged test developed by the United States Supreme Court in Strickland v Washington 466 U S 668 104 S 2052 80 L 674 1984 In order to establish that his trial attorney Ct 2d Ed was ineffective the defendant must first show that the attorney performance was s deficient which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment Secondly the defendant must prove that the deficient performance prejudiced the defense This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial the defendant must prove actual prejudice before relief will be granted It is not sufficient for defendant to show that the error had some conceivable effect on the outcome of the proceeding Rather he must show that but for the counsel unprofessional errors there s is a reasonable probability the outcome of the trial would have been different Further it is unnecessary to address the issues of both counsel performance and prejudice to the s defendant if the defendant makes an inadequate showing on one of the components 0 State v Serigny 610 So 857 859860 La App 1 Cir 1992 writ denied 614 So 2d 2d 1263 La 1993 The record indicates the defendant was represented by Kevin D Linder at arraignment October 3 2001 and John J McGuckin Jr thereafter Following continuances on motion of the court November 12 2001 and the State February 6 2002 between February 19 2002 and the commencement of trial on July 30 2008 the matter was continued over forty times on motion of the defense A defense motion to suppress and a State motion for discovery were pending before the court during that time At the beginning of the third day of trial the defendant argued he was being denied the opportunity to question the arresting officer Deputy O Neal The State indicated Deputy O was unavailable because he was now a member of the Federal Neal Border Patrol in Arizona The court indicated Deputy O was not subject to subpoena Neal The defendant claimed Deputy O had come to his house after the incident and told Neal the defendant sisters and wife that he had made a big mistake and was going to s straighten this up The defendant estranged wife Felicia Jarvis testified at trial that s the day following the incident the cop came back and indicated he had gone back to the Chevron and seen skid marks Additionally defense counsel stated the defendant was unable to call Reginald Dickson because he was incarcerated in the federal penitentiary The court indicated it had no subpoena power over someone in the federal penitentiary Thereafter the defendant testified at trial that Reginald Dickson and Lester were at the gas station at the time of the incident He indicated Lester was in court but did not call him to the stand This assignment of error is not subject to appellate review The record does not indicate defense counsel reasons for requesting that the matter be continued and thus s we are unable to definitively conclude the requests for continuance were unnecessary Z Defense counsel did not set forth the substance of Reginald Dickson anticipated testimony s 10 Defense counsel may have had strategic reasons for his requests The investigation of strategy decisions requires an evidentiary hearing and therefore cannot possibly be reviewed on appeal State v Allen 941941 p 8 La App 1 Cir 11 664 So 95 9 2d 1264 1271 writ denied 952946 La 3 669 So 433 96 15 2d Further under our adversary system once a defendant has the assistance of counsel the vast array of trial decisions strategic and tactical which must be made before and during trial rest with an accused and his attorney The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel State v Folse 623 So 59 71 La App 1 2d Cir 1993 CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE ON COUNT I AFFIRMED CONVICTION AND SENTENCE ON COUNT II AFFIRMED 3 The defendant would have to satisfy the requirements of La Code Crim P art 924 et seq in order to receive such a hearing 11
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