State Of Louisiana VS Darryl Winfrey
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 0940 STATE OF LOUISIANA VERSUS DARRYL WINFREY DATE OF JUDGMENT EB 1 5 2013 ON APPEAL FROM TI NINETEENTH NDICIAL DISTRICT COURT JMBER 07 NI 03 SECTION 8 PARISH OF EAST BATON ROUGE 1095 STATE OF LOUISIANA HONORABLE TRUDY M WHITE JUDGE I Hillar C Moore III DA Baton Rouge Louisiana Counsel for Appellee State of Louisiana Ronald Gathe ADA Sonia Washington ADA Stacy L Wright ADA Baton Rouge Louisiana Kevin V Boshea Counsel for Defendant Appellant Metairie Louisiana Darryl Winfrey BEFORE KUHN PETTIGREW AND McDONALD JJ Disposition CONVICTION AND SENTENCE AFFIRMED KI JHN J The defendant Darryl Winfrey was charged by grand jury indictment with one count of second degree murder a violation of La R 14 S 30 1and pled not guilty Following a jury trial he was found guilty as charged by unanimous verdict and was sentenced to life imprisonment at hard labor without benefit of parole probation or suspension of sentence He now appeals contending 1 the verdict is contrary to the law and the evidence 2 the trial court erred in denying the motion for new trial and 3 the trial court erred in denying the motion to suppress his oral statement For the following reasons we affirm the conviction and sentence FACTS On 7anuary 25 2007 the Baton Rouge Police Department investigated a homicide at 1900 Blount Road Scotland Square Apartments Apartment 222 where the victim Traneka Tezano was lying dead in the kitchen She had suffered forty stab wounds including a fatal wound to her heart Most of the three other wounds had been inflicted after the fatal wound The victim was also shot in the head but the bullet did not penetrate all the way through the victim skull s There was no sign of forced entry nor was there any indication that the apartment had been ransacked In one bedroom two knives were found on the bed In another bedroom a pistol handle was found behind the bedroom door A kitchen fork was located behind the front door and a meat cleaver without a handle was on the living room floar Additionally a butter knife was laying on the kitchen floor by the victim feet s The defendant failed to present any azgument in support of assignment of ettor number two Assignments of error not briefed on appeal are considered abandoned Louisiana Courts of Appeal Rule 2 4 12 2 Uniform Rules of The victim diary and a day planner calendar were on her dresser A s January 24 2007 entry in the day planner stated No more Poppa Darryl b ack in the picture The victim also indicated she thought she was pregnant by Poppa Subsequent investigation revealed the victim referred to Johnny Read as Poppa Stacey Veal lived across from the victim apartment at the time of the s offense When Veal walked out of her apartment at approximately 7 a on 00 m January 25 2007 she saw a tall skinny black man come out of the victim s apartment running real fast Veal testified that h ran out like he was e scared The man watched Veal as she proceeded to her truck She saw no one else exit the victim apartment s Tiffany Ware also lived at Scotland Square Apartments at the time of the offense After the police arrived to investigate the homicide she thought about the night before that the defendant had called Ware house for the victim s Ware called the defendant and asked when he had left the victim apartment The s defendant replied Oh it was about the time the children go to school Ware told the defendant the victim had just been found dead in her apartment and he stated Why it sounds like you laughing and playing Ware notified a police re officer at the scene about her conversation with the defendant but when they attempted to call him back the lady said that she had just dropped him off Miranda Deemer lived above the victim apartment at the time of the s offense On January 25 2007 at approximately 7 a she heard arguing 00 m dishes breaking and approximately three gunshots After the gunshots she heard a scream and someone say Oh Fuck Thereafter she looked out the window and saw a car leaving the apartment complex 3 On January 25 2007 at approximately 3 p the defendant went to a OU m hospital emergency room claiming he had been assaulted He had three lacerations on the palm of his left hand which the physician who treated him opined were fairly new On February 1 2007 the defendant gave a recorded oral statement to the police in which he claimed he had watched the victim murder Ie indicated he s had earlier introduced the victim to Black a drug dealer from the Magnolia Housing Project in New Orleans The defendant claimed the victim had robbed Black who had come looking far all of us According to the defendant in the early morning between dark and light Black arrived at the victim apartment s with his posse The defendant initially claimed that he walked up and they were there Later he stated that he was on the bed with the victim when Black and two of his accomplices entered the bedroom The defendant claimed he heard a shot and thought Black might have killed the victim The defendant also claimed he heard additional shots He indicated the victim started calling his name but he could not help her because he was being held by Black s accomplices The defendant claimed one of Black accomplices cut the defendant s s hand while asking him Where the shit at The defendant indicated Black told him You get my shit You don get my shit Pm gonna kill this bitch The t defendant stated Black repeatedly slung the victim against the wall The defendant indicated that Black and his accomplices had one gun which they passed between them The defendant also claimed Black and his accomplices dropped the weapon during the incident and the defendant tripped over or grabbed the weapon The defendant indicated Black poked the victim with a knife telling her I want my shit The defendant further indicated the assailants 4 ransacked the victim apartment According to the defendant when they finally s let go ofhim he quickly exited the apartment In response to questioning the defendant claimed that he failed to call anyone to check on the victim because he did not have anyone stelephone number and failed to call 911 because he did not have a phone When asked why he had not reported the attack to security personnel at the hospital emergency room the defendant responded I wanted to seeing all that shit fucked with me When asked if his DNA would be found on any items at the crime scene he stated he had grabbed a butter knife and may have grabbed a fark SUFFICIENCY OF THE EVIDENCE In assignment of error number one the defendant argues the jury did not act rationally in convicting him because there was no direct evidence of his participarion in the murder of the victim The standard ofreview 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 could conclude the State proved the essential elements of the fact of crime and the defendant identity as the perpetrator of that crime beyond a s reasonable doubt Jackson u Virginia 443 U 307 319 99 S 2781 2789 61 S Ct 2d Ed L 560 1979 see also La C art 821 In conducting this review a P Cr court also must be expressly mindful of Louisiana circumstantial evidence test s 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 98 La App lst Cir 2 730 So 485 486 writs 0601 99 19 2d denied 99 La 10 748 So 1157 00 La 11 7 773 0802 99 29 2d 0895 00 2d So 732 uotin La R 15 S 438 5 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 jurar to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime Wright 730 So at 487 Moreover once the crime itseif 2d has been established a confession alone may be used to identify the accused as the perpetrator State u Carter 521 So 553 555 La App lst Cir 1988 2d As applicable here second degree murder is the killing of a human being hen w the offender has a specific intent to kill ar to inflict great bodily harm La S 1 R 1430 Specific criminal intent is that state of mind which exists when A the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act La R 14 Though intent S 10 1 is a question of fact it need not be proven as a fact 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 sactions or facts depicting the circumstances Specific intent is an ultimate legal conclusion to be resolved by the factfinder State v Henderson 1945 99 La App lst Cir 6 762 So 747 751 writ denied 00 00 23 2d 2223 La 6793 So 1235 O1 15 2d In State v Mitchell 99 La 10 772 So 78 the Louisiana 3342 00 17 2d Supreme Court set forth the following precepts for appellate review of circumstantial evidence in connection with review of the sufficiency of the evidence On appeal the reviewing court does not determine whether 6 another possible hypothesis suggested by a defendant could afford an exculpatory 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 hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt The jury is the ultimate factfinder of whether a defendant proved his condition and whether the state negated that defense The reviewing court must not impinge on the jury factfinding s prerogative in a criminal case except to the extent necessary to guarantee constitutional due process The actual trier of fact rational credibility calls evidence s weighing and inference drawing are preserved by the admonition that the sufficiency inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt The reviewing court is not called upon to determine whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence Rather the court must assure that the jurors did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt The reviewing court cannot substitute its idea of what the verdict should be for that of the jury Finally the appellate court is constitutionally precluded from acting as ajuror in assessing what weight to give thirteentk evidence ui criminal cases that determinatioYi rests solely on the sound discrerion of the trier of fact Midchell 772 So at 83 citations omitted 2d After a thorough review of the record we are convinced that any rational fact of trier 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 essential elements of second degree murder and the defendant identity as the s perpetrator of that offense against the victim The defendant admitted that he was present in the victim apartment at the time of her murder s The verdict retumed in this case indicates the jury rejected the defendant theory that Black and his s posse killed the victim The jury obviously concluded that the defendant s account of the murder was a fabrication designed to deflect blame from himself When a case involves circumstantial evidence and the jury reasonably rejects the 7 hypothesis of innocence presentad by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State u Moten 510 So 55 61 La App lst Cir writ denied 514 2d 2d So 126 La 1987 No such hypothesis exists in the instant case Further in reviewing the evidence we cannot say that the jury deterniination was irrational s under the facts and circumstances presented to them See State v Ordodi 06 0207 La 11 946 So 654 662 An appellate court errs by substituting its 06 29 2d 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 Ca 07 loway 2306 La 1 1 So3d 417 418 per curiam 09 21 This assignment oferror is without merit MOTION TO SUPPRESS In assignment of error number two the defendant argues the trial court ened in denying the motion to suppress his statement on the basis of a violation of his right to counsel under Michigan v Jackson 475 U 625 106 S 1404 89 S Ct 2d Ed L 631 1986 overruled Montejo u Louisiana 556 U 778 129 S S Ct 2079 173 L955 2009 2d Ed When a trial court denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial s court discretion i unless such ruling is not supported by the evidence See e State v Green 94 La 5 655 So 272 280 However a trial 0887 95 22 2d 8L s court legal findings are subject to a de novo standard of review See State v Hunt 1589 09 La 12 25 So3d 746 751 09 1 In Miranda v Arizana 384 U 436 444 86 S 1602 1612 16 S 45 Ct 2d Ed L 694 196 the Supreme Court found that if a suspect indicates in any 8 manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning Edwards u Arizona 451 U 477 S 85 481 101 S 1880 1883 68 L 378 1981 reconfirmed these views Ct 85 2d Ed and to lend them substance held that when an accused either before or during interrogation asks for counsel a valid waiver of that right cannot be established by showing only that he responded to further police custodial interrogation initiated even if he has been advised of is rights The accused is not subject to further interrogation by the authorities until counsel is present unless the accused himself initiates further communication exchanges or conversations with the police Edwards 451 U at 484 101 S at 1885 see Maryland v Shatzer 559 U S 85 Ct S 98 130 S 1213 1219 175 L 1045 2010 Ct 2d Ed When a defendant invokes his Miranda right to counsel the admissibility of his subsequent confessions under federal law is to be determined by a two step analysis it first must be asked whether the defendant initiated further conversation and if the answer is yes it must be inquired whether the defendant waived his right to counsel and to silence that is whether the purported waiver was knowing and intelligent under the totality of the circumstances including the necessary fact that the accused not the police reopened the dialogue with the authorities State u Abadie 612 So 1 5 1993 cert denied 510 U 816 2d La S 114 S 66 126 L 35 1993 See also La R 15 No arrestee shall Ct 2d Ed S 452 be subjected to any treatment designed by effect on body or mind to compel a confession of crime The Sixth Amendment right to counsel does not attach prior to the initiation of adversary judicial criminal proceedings whether by way of formal charge preliminary hearing indictment information or arraignment State u Carter 94 2859 La 11 664 So 367 372 Further the right to counsel exists only 95 27 2d 9 during those post pretrial confrontations which can be considered attaclunent critical stages A critical stage has been described as a critical pretrial confrontation where the results might well settle the accused fute and reduce the s trial to a mere formality It has also been described as a pretrial proceeding where the accused is confronted just as at trial by the procedural system or by his expert adversary Louisiana ar by both Carter 664 So at 373 2d Constitution Article I The right to counsel under 13 and the right to counsel under the Sixth Amendment are coeatensive in scope operation and application Carter 664 So 2d at 382 Prior to trial the defendant moved to suppress his statement arguing that the statement was involuntary because he had not been adequately informed of his rights prior to giving the statement and had not been allowed to contact his attorney prior to giving the statement denied Following a hearing the motion was The trial court found the totality of the circumstances indicated the defendant freely knowingly and voluntarily waived his right to counsel prior to giving the statement Baton Rouge Police Department Detective Ross Williams testified at the hearing Following the homicide of the victim he tried to contact the defendant Thereafter aof days prior to February 1 2007 the defendant contacted couple Detective Williams from California and told him he was coming back to Baton Rouge On February 1 2007 the defendant came to the police station with Counsei Lennie Perez Detective Williams advised the defendant of his Miranda rights and he and Perez agreed to waive those rights Pursuant to a search warrant for the sDNA a crime scene technician took an oral swab of DNA from the defendant 10 defendant and photographed his hands Thereafter the defendant left with Perez without making a statement Approximately twenty to thirty minutes later the defendant returned without counsel The subsequent audio recording reveals that before the defendant gave his statement Detective Williams asked him You want Mr Perez here or you just want The defendant to talk responded me You don want Mr Perez back in here t Vah bro The only reason why I really brought him to was because I ain tknow how y were going to handle the situation when I got all down here The defendant then gave a recorded statement to the police concerning the victim death s Detective Williams testified he made no threats or promises to the defendant to coerce his statement He indicated the defendant did not appear to be under the influence of drugs or alcohol He stated that when the defendant first appeared with counsel probable cause did not exist to place him under arrest and he was not under arrest at that time Additionally Detective Williams stated the defendant was not under arrest either before or while giving his statement In Michigan v Jackson 475 U at 636 106 S at 1411 the Supreme S Ct Court held that if police initiate interrogation after a defendant assertion at an s arraignment or similar proceeding of his right to counsel any waiver of the s defendant right to counsel far that police interrogation is invalid initiated However as previously noted Michigan u Jackson has been overruled Moreover even under that case the defendant decision to speak to the police without s counsel was not prohibited The police in this case did not initiate interrogation of the defendant Moreover even if appearing with counsel prior to the statement was an assertion of the right to counsel that assertion was made prior to the initiation of adversary judicial criminal proceedings 11 I We find no error or abuse of discretion in the trial court s denial of the mOtlOri to suppress s the defendant oral statement The defendant reinitiated the conversarion with Detective Williams The totality of the circumstances indicate the defendant knowingly and intelligently waived his right to counsel and to silence after he was advised of his rights This assignment oferror is without merit REVIEW FOR ERROR Initially we note that our review for error is pursuant to La C art 920 P Cr which provides that the only matters to be considered on appeal are errors designated in the assignments of enor and error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence The trial court did not wait twenty hours after denying the defendant four s motion for new trial before imposing sentence See La C art 873 P Cr However defendant neither contests his sentence complains about the absence of the 24 delay nor cites any prejudice resulting from the trial court failure to hour s delay sentencing Additionally Louisiana jurisprudence has recognized that the trial court failure to observe the 24 delay is harmless in situations where s hour the sentence is mandatory in nature See State v Bishop 10 La App lst 1840 Cir 668 So3d 1197 1208 writ denied ll La 12 76 So3d 11 10 1530 11 16 1203 Thus since the life sentence imposed in the instant case was mandatory under La R 1430 the trial court failure to observe the statutory 24 S1 B s hour delay was harmless error Bishop 68 So3d at 1208 CONVICTION AND SENTENCE AFFIRMED 12
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