State Of Louisiana VS Ervin J. Allen, Sr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 1995 STATE OF LOUISIANA VERSUS ERVIN J ALLEN SR Judgment Rendered June 8 2012 APPEALED FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF IBERVILLE STATE OF LOUISIANA DOCKET NUMBER 1083 07 THE HONORABLE ALVIN BATISTE JUDGE swwwwaEWa Richard Ward Attorneys for Appellee District Attorney State of Louisiana and Tony Clayton Dana Larpenteur Elizabeth Engolio Assistant District Attorneys Plaquemine Louisiana Margaret Sollars Attorney for DefendantAppellant Thibodeaux Louisiana Ervin J Allen Sr BEFORE GAIDRY MCDONALD AND HUGHES JJ McDONALD I The defendant Ervin J Allen Sr was charged by grand jury indictment with two counts of first degree murder in violation of La R 14 S 30 The defendant originally pled not guilty but subsequently changed his plea to not guilty by reason of insanity and the trial court granted the defendant sapplication for appointment of a sanity commission to determine his mental capacity at the time of the offenses and to proceed to trial The State amended the charges to two counts of second degree murder violations of La R 14 The defendant was found S 30 1 competent to stand trial and following a trial by jury was unanimously found guilty as charged on both The counts defendant was sentenced to life imprisonment at hard labor without the benefit of parole probation or suspension of sentence on both counts to be served concurrently The defendant now appeals challenging the trial court admission of other crimes evidence and the sufficiency s of the evidence to support the convictions For the following reasons we affirm the convictions and sentences STATEMENT OF FACTS On June 12 2007 officers of the White Castle Police Department were dispatched to the scene of a shooting When Chief Mario Brown arrived at the scene the defendant residence the defendant was outside s familiar with the defendant and his family Chief Brown was The defendant walked toward one of the police units that responded to the scene with his hands out and asked Chief Brown whom he referred to on a first name basis if he was there to arrest him further stating that he just killed his wife Lorna Allen and his twenty seven year old stepdaughter Herkeisha Young Chief Brown observed blood s defendant attire As he handcuffed and escorted him to a police vehicle and began reading him his 2 on the Miranda warnings the defendant informed the officer of the location of the gun and knife he used in committing the instant offenses After securing the defendant the officer entered the home Mrs Allen mother Earline Jackson was present at s the scene and was looking for Young and Chief Brown instructed her to exit the home Chief Brown observed Mrs Allen on the floor in a pool of blood motionless with a telephone in her left hand and a gunshot wound to the head Chief Brown saw a case that contained two BB guns and CO 2 cartridges on a chair in the room that adjoined the garage and located another gun and a hunting knife in the back of the house hidden under cinder blocks as the defendant had indicated Chief Brown located Young body in one of the bedrooms on the second s floor of the home There were bullet casings leading to the room where Young was located and there were bullet holes in the door of the room As Chief Brown entered the room he could hear Young making sounds that he described as gargling or regurgitating or a gasp for air There was blood all over the room and it was in disarray Chief Brown used his radio to announce that one of the victims was still alive stepped out when EMS arrived and turned the investigation over to the Iberville Parish Sheriff Office s Mrs Allen suffered lacerations nonfatal gunshot wounds to the neck and shoulder and a fatal gunshot wound to the skull Young suffered many nonfatal stab wounds and superficial cuts a deep stab wound in the left thorax gunshot wounds in her left hand and right breast and a fatal gunshot wound in her neck that lacerated her left jugular vein and caused profuse bleeding ASSIGNMENT OF ERROR NUMBER ONE In the first assignment of error the defendant contends that the trial court erred in allowing the State to introduce a tape recording of his divorce proceeding Miranda v Arizona 384 U 436 86 St 1602 16 L 694 1966 S 2d Ed 3 in Plaquemine that included evidence of alleged acts of sexual misconduct by the defendant The defendant argues that the admission of the other crimes evidence prevented the jury from properly considering the evidence of the offenses charged The defendant contends the jury was provided a sordid story about his lustful nature founded on hearsay that did not meet the admission standard of clear and convincing evidence The defendant notes that he was not represented by counsel when he was accused by the victims during the hearing in the divorce proceeding of sexual misconduct and that his stepdaughter was not cross examined during the divorce hearing The defendant also notes that during the trial the prosecutor asserted that the unproven allegations were truthful and implied that he deserved to be convicted because of the unsubstantiated evidence The defendant argues that the tape recording was introduced to portray him as a person of criminal character not insane who was responsible for the victims deaths The defendant further argues that the prosecution deliberately introduced the evidence for its prejudicial effect and reminded the jury of the sordid details throughout the trial The defendant contends that the evidence was not relevant to any genuinely contested issue that the probative value of the evidence was outweighed by its prejudicial impact and that there was no independent basis for the admission of the evidence The defendant concludes that the admission of the other crimes evidence denied him a fair trial and made the outcome of the trial questionable Relevant evidence is any evidence tending to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence evidence is admissible La C art 401 E La C art 402 E Generally all relevant It may be excluded however if its probative value is substantially outweighed by the danger of unfair prejudice La E C art 403 Further a trial judge determination regarding the relevancy and s admissibility of evidence will not be overturned on appeal absent a clear abuse of C discretion State v Freeman 2007 0470 La App 1 st Cir 9 970 So 07 14 2d 621 625 writ denied 20072129 La 3 977 So 930 08 14 2d evidence of other crimes wrongs or acts Generally committed by the defendant inadmissible due to the substantial risk of grave prejudice to the defendant is State v Williams 96 1023 La 1 708 So 703 725 cert denied 525 U 98 21 2d S 838 119 S 99 1 L Ed 79 1998 Ct 42 2d However such evidence may be admitted for the purpose of showing motive opportunity intent preparation plan E 1 B knowledge identity or absence of mistake or accident La C art 404 Evidence of other bad acts is not admissible simply to prove the bad character of the accused Furthermore the other crimes evidence must tend to prove a material fact genuinely at issue and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect State v Williams 96 1023 708 So at 725 2d citing La C art 404 13 E 1 Under Louisiana Code of Evidence Article 404 other crimes evidence 1 B is also admissible when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding For other crimes evidence to be admissible under this exception the evidence must bear such a close relationship with the charged crime that the indictment or information as to the charged crime can fairly be said to have given notice of the other crime evidence as well State v Odenbaugh 2010 0268 La 12 82 So 215 11 6 3d citing 251 State v Schwartz 354 So 1332 1334 La 1978 2d Thus other crimes evidence forms part of the r es gestae when the evidence is related and intertwined with the charged offense to such an extent that the State could not have accurately presented its case without reference to it In such cases the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man but rather to complete the story of the crime on trial by proving its 5 immediate context of happenings near in time and place State v Brewington 601 So 656 657 La 1992 per curiam 2d The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime but also testimony of witnesses and police officers pertaining to what they heard or observed before during or after the commission of the crime if a continuous chain of events is evident under the circumstances State v Kimble 407 So 693 698 La 1981 Integral act evidence in Louisiana incorporates a 2d rule of narrative completeness without which the State case would lose its s narrative momentum and cohesiveness with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences whatever they may be necessary to reach an honest verdict State v Colomb 982813 La 10 99 747 So 1074 1076 per curiam quoting Old Chief v 1 2d United States 519 U 172 187 117 S 644 653 136 L574 1997 S Ct 2d Ed During the pretrial hearing regarding the admission of the audio recording of the divorce proceeding in question the State noted that the defendant committed the instant offenses within two hours of the divorce proceeding The State further noted that during the divorce proceeding the defendant was accused by the victims of sexual misconduct involving Young stepdaughter and the s defendant other The State argued that the accusations that took place during the divorce proceeding made the evidence independently relevant and factually peculiar to the victims and the instant crime and the plea of insanity The State further argued that it should be allowed to present the moral force of its case including the defendant motive for the instant offenses s The State further noted that the evidence was not being introduced for the truth of the matter asserted and that the evidence was an exception to the hearsay rule under La C art E 1 B 804 as it consists of a prior proceeding wherein the subjects were under oath and subject to cross examination and the declarants the victims are unavailable because they were killed by the defendant The State further indicated that the evidence is part of the res gestae of the offenses The defendant noted that he was not represented by counsel at the proceeding and did not cross examine Young The defendant further argued that the evidence clearly contained hearsay that the allegations contained therein were not proven by clear and convincing evidence and that there was no similarity between the instant offenses and the allegations raised during the divorce proceeding Finally the defendant argued that the evidence is not relevant since he confessed to the instant offenses The trial court noted that the evidence was connected to motive and ruled that the evidence was admissible as res gestae of the offenses and constituted an exception to the hearsay rule under La C art 804 Considering the E 1 B sconfession to the police the trial court further found that the evidence defendant would not be highly prejudicial Before admitting the evidence in question the trial court instructed the jury regarding the nature of the evidence specifically informing them that it consisted of an audio recording of a family court proceeding The trial court added that the evidence was not being offered to prove the allegations mentioned therein but for the sole purpose of providing a complete picture of what transpired on the date in question noting that the instant offenses took place shortly after the hearing During the divorce proceeding Mrs Allen stated that she wished to end her marriage to the defendant and she and Young made allegations pertaining to the defendant alleged misconduct and sexual s abuse of his stepdaughters The defendant also testified during the proceeding and denied the allegations After contemplating living arrangements for the children of the marriage the hearing officer took the matter under advisement After the divorce proceeding the victims went home The defendant arrived home shortly before Mrs Allen and the children arrived 7 Mrs Allen called her sister Emma Jean Rozier and told her that she had just gotten home after the hearing Mrs Allen was upset regarding the pending custody determination for the children of the marriage and stated that she could not continue to live with a man who molested her children The defendant gave his biological children of the marriage Erin and Ervin Allen Jr money and instructed them to go to a nearby snowball stand As Mrs Allen and Rozier were talking Rozier heard a gunshot and began calling out to her sister but did not hear a response Rozier disconnected the call with her sister and called her mother Earline Jackson and told her to call the police Young called 911 while being attacked by the defendant Jackson who resided about a mile away from the Allen residence also called for emergency assistance and went to the residence During the jury charge the trial court instructed the jury that evidence that the defendant was involved in the commission of offenses other than the offenses for which he was being tried is to be considered on a limited basis The trial court reiterated that the audio recording of the divorce proceeding was admitted for the purpose of showing motive and the events that led up to the instant offenses The trial court further instructed the jury that it may not find the defendant guilty of the instant offenses merely because he may have committed another offense We note that during his audio recorded interview with the police after his arrest the defendant talked about the divorce proceeding including the fact that he had been accused of child molestation Thus the challenged evidence was cumulative of additional evidence admitted during the trial that is not being contested on appeal At any rate the evidence at issue was necessary to give the jury a complete picture of the events that gave rise to the instant offenses The evidence forms an inseparable link in the continuous chain of events leading to the murders in this case It was used merely to complete the story of the crimes on V E trial and allow the State to accurately present its case The evidence at issue clearly constitutes an integral part of the transaction and was therefore properly admitted La C art 404 see also State v Sigur 578 So 1 1 La E 1 B 2d 43 46 App I st Cir 1990 writ denied 582 So 1303 La 1991 Assignment of error 2d number one lacks merit ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE In the second assignment of error the defendant argues that no rational trier of fact could have found that the defense failed to carry its burden of proving by a preponderance of the evidence that he was delusional and insane at the time he committed the instant offenses The defendant contends that within a reasonable medical certainty he was insane at the time of the killings The defendant contends that the overwhelming nature of the expert testimony fully supported by the lay testimony of his brother renders the jury verdicts unsupportable by the s record In the final assignment of error the defendant contends that should the first two assignments of error be found meritless the convictions should be reduced to manslaughter The defendant notes that while he does not contest killing the victims the offenses were committed under enormous provocation and rage The defendant contends that the State offered no evidence to rebut his evidence that his wife threatened to kill him The defendant claims that he believed his wife would 2 Previous jurisprudence held that when evidence of other bad acts is admissible as res gestac the probative value of the evidence need not be balanced against its prejudicial effect State v Brown 428 So 438 442 La 1983 overruled by State v Johnson 941379 La 11 2d 95 27 664 So 94 on unrelated grounds However current cases question whether the integral act 2d evidence under La C art 404 remains subject to the balancing test of La C art 403 E B E See Colomb 747 So at 1076 2d In this case the prejudicial effect of the evidence admitted does not substantially outweigh its probative value Thus we need not decide here whether integral act evidence presented under the authority of La C art 404 must invariably pass E B the balancing test of La C art 403 E 9 kill him based on her threat to do so rather than allow him to have his children especially considering his war experiences and mental illness and his wife s history According to the defendant after being threatened by his wife he was not thinking rationally and was deprived of any self control and the offenses were committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of cool reflection The defendant contends his loss of self control and state of rage is consistent with the injuries he inflicted upon the victims The defendant argues that the homicides were not calculated and that the mitigating factors negated any claim for the specific intent element necessary for second degree murder convictions The defendant concludes that he established by a preponderance of the evidence that he was insane at the tirne of the offenses As indicated the defendant confessed and is not disputing the fact that he killed the two victims The remaining evidentiary issues are whether the defendant proved by a preponderance of the evidence that he was insane at the time of the offenses and whether the jury should have convicted him of manslaughter as opposed to second degree murder The constitutional standard for testing the sufficiency of the evidence as enunciated in Jackson v Virginia 443 U 307 S 99 S 2781 61 L 560 1979 requires that a conviction be based on proof Ct 2d Ed sufficient for any rational trier of fact viewing the evidence in the light most favorable to the prosecution to find the essential elements of the crime beyond a reasonable doubt La C art 821 In conducting this review we also must be P Cr expressly mindful of Louisiana scircumstantial evidence test which states in part assuming every fact to be proved that the evidence tends to prove every reasonable hypothesis of innocence is excluded La R S 438 5 1 State v Wright 98 0601 La App 1st Cir 2 730 So 485 486 writs denied 99 19 2d 10 99 0802 La 10 748 So 1157 2000 0895 La 11 17 773 So 99 29 2d 00 2d 732 In Louisiana a defendant is presumed sane at the time of the offense the State is not required to prove sanity La R 15 State v Weber 364 So S 432 2d 952 956 La 1978 State v Thames 95 2105 La App 1st Cir 9 681 96 27 2d So 480 486 writ denied 96 2563 La 3 691 So 80 97 21 2d A defendant who wishes to negate the presumption must put forth an affirmative defense of insanity and prove his insanity by a preponderance of the evidence To be exempt from criminal responsibility on the ground of insanity a defendant must persuade the jury that he had a mental disease or defect which rendered him incapable of distinguishing right from wrong with reference to the conduct which forms the 2d basis for the criminal charge against him State v Roy 395 So 664 665 66 La 1981 citing La C art 652 and La R 14 The determination of P Cr S sanity is a factual matter reserved to the jury or other fact finder State v Claibon 395 So 770 772 La 1981 The standard of review when a defendant pleads 2d the affirmative defense of insanity and claims the record does not support a finding of guilty beyond a reasonable doubt is whether under the facts and circumstances of the case any rational fact finder viewing the evidence in a light most favorable to the prosecution could conclude the defendant did not prove by a preponderance of the evidence that he was insane at the time of the offense a S I R 14 432 5 1 La C art 652 Roy 395 So at 667 68 extending the standard of P Cr 2d review set forth in Jackson v Virginia to cases in which the defendant claims insanity The crime of second degree murder in pertinent part is the killing of a human being 1the offender has a specific intent to kill or to inflict great hen w bodily harm La R 14 Specific criminal intent is that state of S 30 A 1 mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act La RS 14 10 l fact Though intent is a question of fact it need not be proven as a It may be inferred from the circumstances of the transaction Specific intent may be proven by direct evidence such as statements by a defendant or by inference from circumstantial evidence such as a defendant actions or facts s depicting the circumstances Specific intent is an ultimate legal conclusion to be resolved by the fact finder State v Buchanon 95 0625 La App I st Cir 96 10 5 673 So 663 665 writ denied 96 1411 La 12 684 So 923 2d 96 6 2d Specific intent to kill may be inferred from a defendant act of pointing a gun and s firing at a person State v Delco 2006 0504 La App 1 st Cir 9 943 06 15 2d So 1 143 1146 writ denied 2006 2636 La 8961 So 1160 07 15 2d Manslaughter is a homicide which would be a first or second degree murder but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive 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 had actually cooled or that an average s s person blood would have cooled at the time the offense was committed La S 31 R 14 Sudden passion or heat of blood are not elements of the 1 A offense of manslaughter rather they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than present when the homicide is committed without them State v Rodriguez 2001 2182 La App 1st Cir 02 21 6 822 So 121 134 writ denied 2002 2049 La 2 836 So 2d 03 14 2d 131 Because they are mitigatory factors a defendant who establishes by a preponderance of the evidence that he acted in sudden passion or heat of blood is entitled to a verdict of manslaughter Rodriguez 822 So at 134 2d The defendant biological children Erin Allen and Ervin Allen Jr testified s during the trial According to the children their father was a normal person and 12 did not complain of effects or dreams from his service in Vietnam The children stated that after they arrived home from the divorce proceeding on the day in question the defendant gave them money and instructed them to go to the snowball stand While they were at the snowball stand but before they could get their snowballs the shootings occurred and they were taken to the police station Deputy Sheriff Christopher Couty of the lberville Parish Sheriff Office s was dispatched to the scene to transport the defendant to the Sheriff Office s Criminal Investigation Department CID Chief Brown transferred the defendant to Deputy Couty custody and as Deputy Couty was performing a patdown s search the defendant stated that he did not have any weapons on him but informed him of the locations of the murder weapons as he had also informed Chief Brown The defendant appeared to be agitated but responded appropriately to directions and instructions and was very cooperative While being transported the defendant frustratingly stated She just wouldn quit t I couldn take it anymore t The defendant and Deputy Couty arrived at the CID and met with Detective Eric Ponson When the defendant removed a peppermint from his pocket Deputy Couty realized that he had not cleared the defendant spockets during the pat down search As Deputy Couty conducted a more thorough search of the defendant s person a round of handgun ammunition fell from his pocket to the floor Without prompting the defendant stated that it was a 32 caliber and attempted to retrieve it from the floor but Deputy Couty prevented him from doing so Detectives Blair Favaron and Ponson interviewed the defendant after According to Detective Favaron the advising him of his Miranda rights defendant appeared to understand his rights and indicated that he wished to give a voluntary statement During his audio recorded statement the defendant indicated he completed high school and that he had been married to Mrs Allen for nineteen years He indicated that he had just left the courthouse after a divorce proceeding 13 wherein his wife indicated that she wanted the children the home and everything and the defendant told her that he could not afford it because of a previous bankruptcy The defendant also stated that his wife indicated that she did not want him to have contact with the children and accused him of child molestation which he classified as a fabrication to persuade the hearing officer The defendant and Mrs Allen were still living together at the time along with the two children of the marriage The defendant stated that the children told the hearing officer that they wanted to live with him The defendant indicated that he arrived home first after the proceeding and Mrs Allen arrived shortly thereafter and started talking trash and was angry because he did not agree to her request for alimony the home a restraining order and no visitation rights The defendant told his wife to shut up and she did not comply Mrs Allen called her sister and started relaying her side of the story and in doing so called the defendant a pervert stated that he was no good and that she would have him put in jail The defendant stated that he told his biological children to go to the nearby snowball stand and they left According to the defendant his wife continued to make offensive statements including a statement that she would kill the defendant before allowing her children to stay with him The defendant snapped and retrieved his pistol and knife He repeatedly instructed his wife to shut up she ignored his commands and the defendant started shooting her Young heard the gunshots and came to the stairway The defendant attempted to shoot her while she was at the stairway but the gun misfired Young began hollering and ran to her brother bedroom and locked the door s The defendant did not have any more bullets but he retrieved more reloaded the gun placed some of the bullets in his pocket and went upstairs The defendant told Young that it was too late for her to holler as she and her mom did not comply with his previous commands to leave him alone and thought he was afraid of them The 14 defendant shot through the bedroom door and busted through the door and began shooting Young He removed his new knife from its packaging and began stabbing Young The defendant stated he wanted to kill them because they were setting him up and deliberately schemed and misled the hearing officer at the divorce proceeding The defendant further complained that the victims would talk about him like trash over the years and eat all of his food noting that he worked every day of his life and he just could not take anymore The defendant also stated that his wife was at the brink of a nervous breakdown at the time and would constantly nag him The defendant indicated that he had taken a rifle to his brother home s about three weeks before the incident because his wife often talked too much trash and he did not want to hurt anyone However the defendant still had possession of his loaded 32 caliber pistol and a knife that he stored in the shed located past the garage The defendant initially indicated that he had handled or retrieved the gun and knife just before the confrontation with his wife occurred The defendant stated that he had recently purchased the knife for emergencies The defendant confirmed that he used the knife to stab his stepdaughter but did not stab his wife After committing the offenses the defendant took the gun and knife to his backyard and placed them under a stack of bricks adding that at that moment he was expecting his biological children to return from the snowball stand The defendant tried to call 911 to report the incident but did not get an answer so he called his twin brother and told him about the shootings The 911 operator called the defendant back and he reported the incident By that time the police were already arriving and the defendant met them in front of his home The defendant gave the police his brother telephone number s normal during the interview 15 The defendant demeanor was s Dr Ron Taravella a psychiatrist and member of the Sanity Commission appointed to examine the defendant before the trial regarding his competency to stand trial and subsequently examined him regarding his sanity at the time of the offenses was initially called as a State witness Dr Taravella testified that his evaluations were based on information provided by the patient and noted that he diagnosed the defendant with Post Traumatic Stress Disorder PTSD on May 1 2011 after visiting the defendant twice while he was incarcerated after the instant offenses Dr Taravella noted that the defendant served in the Vietnam War and received shrapnel wounds and a Purple Heart award and concluded that the scombat in the war left him with a severe case of PTSD After his first defendant meeting with the defendant in 2008 Dr Taravella did not diagnose the defendant with PTSD but entertained it as a possibility and determined that the defendant was competent to stand trial However Dr Taravella testified that in his opinion the defendant was in a dissociated state at the time of the commission of the murders and not in touch with reality The doctor specified that he believed the defendant entered the disassociated state after his wife stated that she would kill him before she would allow him to have custody of their children The second interview lasted for approximately fortyfive minutes Dr Taravella believed that the difficulties in the marriage led to stress but not to the murders Dr Taravella further added that the defendant wife was provoking him to s hit her and his training taught him that there was a critical three to five minute period to break an ambush or be killed Dr Taravella admitted that malingering was a possibility in every case Dr Taravella further admitted that notwithstanding his determination there were some indications in this case that the defendant was thinking logically during the offenses Dr Taravella provided consistent testimony when called as a defense witness Dr Taravella added that he had experience treating veterans at the outpatient clinic and inpatient alcoholism unit 16 The defendant informed the doctor of his alcohol abuse and suicidal actions after his service in the war The defendant indicated that he did not like to talk about the war experience and would avoid loud noises or anything that would remind him of bombs Dr Tnoted that the fact that the defendant was able to relay the aravella incident to the police in detail did not impact his determination further noting that amnesia can be impennanent Dr Donald Hoppe a clinical psychologist and expert in that field also evaluated the defendant to determine whether he was sane or not at the time of the offenses Dr Hoppe interviewed the defendant during a two hour period on June 15 2010 about a year before the trial and reviewed the records that Dr Taravella also reviewed He concluded that the interview and records did not provide a sufficient basis for him to make a PTSD diagnosis Dr Hoppe took the defendant at his word that he had been exposed to lifethreatening situations while in the war but was unable to establish that he met the other criteria for such a diagnosis Specifically he could not determine that the defendant experienced recurrent or intrusive distressing recollections of a traumatic event recurrent dreams of the event acting or feeling as if the event was recurring intense psychological distress at exposure to internal or external cues that represent an aspect of the event and psychological reactivity on exposure to cues that symbolize or resemble an aspect of the traumatic event Dr Hoppe testified that such a diagnosis cannot be based on one incident and that the symptoms should be present for at least one month which was clearly not demonstrated in this case Dr Hoppe was unaware of the allegations of sexual misconduct at the time ofhis evaluation and was not informed of such by the defendant Dr Iioppe further indicated Dr Taravella diagnosis was inconsistent with s Dr Hoppe evaluation of the defendant Dr Hoppe stated that the fact that the s defendant hid the weapons after the offenses and other facts regarding the offenses 17 increase the doubt that he was insane at the time of the offenses but were not conclusive The doctor further noted indicators that the offenses were planned including the fact that the defendant sent away his biological children before killing the victims Dr Hoppe further testified that the defendant sdescription of his state of mind at the time of the offenses that he went blank was not consistent with the evidence and his statement to the police and added that during his interview of the defendant he considered the possibility that the defendant had been coached or instructed but did not have the opportunity to further explore that possibility Dr Lynn Simon a psychiatrist and expert in that field examined the defendant on June 15 2007 three days after the offenses to determine his capacity to stand trial At that time the defendant appeared to have an atypical psychotic disorder but no evidence of frank psychosis phobias obsessions or out and out psychotic thinking His reality testing was intact Dr Simon further ruled out a major depressive disorder and determined that the defendant was competent to stand trial noting that he had no difficulty in assisting could understand normal conversation convey and receive information adequately and had no memory gaps The defendant was alert and aware and there were several indications that he was able to distinguish right from wrong There were no glaring symptoms of or apparent disturbances referable to PTSD The defendant twin brother Mervin Allen testified as a defense witness s Mr Allen was also a war veteran and stated that after he and the defendant got out of the war the defendant had problems adjusting and started drinking alcohol and was suicidal According to Mr Allen the defendant sought assistance from the s Veteran Administration but did not receive any He further testified that the defendant was afraid of noises like fireworks because it sounded like the bombs that went offwhile they were in the military 18 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 The trier of fact determination of the weight to be given evidence is not subject to s appellate review Thus an appellate court will not reweigh the evidence to overturn a fact finder determination of guilt State v Taylor 97 2261 La App s 1st Cir 9 721 So 929 932 98 25 2d Lay testimony concerning defendant s actions both before and after the crime may provide the jury with a rational basis for rejecting even unanimous medical opinion that a defendant was legally insane at the time of the offense Thames 681 So at 486 2d Considering the totality of the evidence herein in a light most favorable to the prosecution we find that a rational trier of fact could have found that the defendant did not prove his insanity by a preponderance of the evidence In this case the jury properly made its own credibility determinations and accorded the weight it deemed appropriate to each witness testimony The expert testimony s presented by the State was fully sufficient to support the jury unanimous guilty s verdicts Before the shootings the defendant had the sagacity to send his biological children to the snowball stand so they would not be in harm way The s defendant also removed the more dangerous gun from the case the 32 caliber as opposed to one of the BB guns further evidencing clarity and his intent to kill the victims In order to reload his pistol the defendant had to remove the cylinder from the frame and carefully insert the cartridge After the killings the defendant hid the gun and knife because he expected his biological children would soon return home During his interview following the offenses the defendant stated why he killed the victims spoke clearly recalled all of the events of the incident with great detail and did not mention that he had any mental or emotional 19 condition We conclude the jury did not err in rejecting the defendant insanity s defense In returning two guilty verdicts the jury obviously found insufficient evidence of provocation such that a reasonable person would have used deadly force Before the defendant retrieved his weapons he could have left the home as It was clear that the he indicated he had done in the past during arguments defendant was the aggressor and initiated the violence A rational trier of fact could have concluded the defendant failed to establish by a preponderance of the evidence that he acted in sudden passion or heat of blood See State v Maddox 522 So 579 582 La App 1 st Cir 1988 2d Viewing the evidence in the light most favorable to the prosecution we find that it supports the jury unanimous verdicts Furthermore an appellate court errs s by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the trier of fact See State v Calloway 2007 2306 La 1 1 So 417 418 per curiam 09 21 3d Based on the foregoing conclusions assignments of error numbers two and three lack merit CONVICTIONS AND SENTENCES AFFIRMED K11
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