State Of Louisiana VS Dedrick Leonard
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NOT DESIGNATED FOR PUBI ICATION STATE OP LOUISIANA COURT OF APPEAL FIRST CiRCUI T NO 2Q13 A 056 STATE OF LOUISIANA VERSUS DEDRICK LEONARD Judgment Rendered v N 13 2 On Appeal from 19 7udicial District Court In and for East Baton Rouge Parish State of Louisiana Trial Court No 11 Sec 7 0140 10 1 The Honorable Don Jolulson Judge Presiding Hillar Attorneys for Plaintiff Appellee Moore District Attorney Leila Braswell Assistant District Attorney Baton Rouge Louisiana Sherry New Watters Orleans Louisiana State of Louisiana Attorney for DefendanUAppellant Dedrick Leonard BEFORE WHIPPLE C WELCH AND CRAIN J JJ CRAIN J The defendant Dedrick Leonard was charged by bill of information with attempted armed robbery a violation of Louisiana Revised Statutes 1427 and 64 14 count 1 and attempted second degree murder a violation of Louisiana Revised Statutes 14 and 1430 count 2 Following a bench trial he was 27 1 found guilty as charged and received concurrent hard labar sentences of fifteen years without benefit of probation parole or suspension of sentence for attempted armed robbery and fifteen years for attempted murder On appeal the defendant asserts that the trial court erred in finding that he knowingly and voluntarily waived his right to a jury trial and that the evidence was insufficient to support the convictions We affirm FACTS AND PROCEDURAL HISTORY Herman Jardan an employee of the United States Postal Service was delivering mail on Maple Street in Baton Rouge when he heard the sound that a shotgun makes when you rack it to chamber it He turned around and saw a young man pointing a shotgun at his chest he T assailant stated Give it up Jordan pushed the weapon down and away from his chest with his right hand but the assailant fired the weapon striking Jordads leg street with the weapon The assailant then ran down the Jordan was later able to identify the weapon used by the assailant but was unable to identify the assailant Eric Pickett a resident of Maple Street testified that he saw the shooting but could only describe the assailant as a young black male who ran to the last house on the end after the shooting Baton Rouge Police Department Detective Ira Roberts investigated the incident and learned that the property where the assailant ran after the shooting was Keriakus Smith residence s Detective Roberts went to the Smith residence and spoke to Smith girlfriend Teifa Collins who advised that no one was s present in the home and consented to a search 2 While guarding the rear of the residence Detective Roberts saw a shotgun underneath the house The gun would later be identified as the weapon used in the crime After interviewing Smith and Collins Detective Roberts developed a suspect lrnown by the nickname Nu Nu While Detective Roberts was inside the Smith residence Smith mother received a telephone call that was audible to the detective s because the telephone was on speakerphone The caller identified himself as Nu Nu The caller told Smith mother to have Smith or someone else get the gun s from underneath the house At trial Detective Roberts testified that the caller s voice sounded like the defendant The defendant did not testify at trial but made statements in a videotaped interview that was played During the interview the defendant told Detective Roberts that he was Nu Nu but without prompting denied shooting anyone Detective Roberts testified that prior to the interview neither he nor anyone else to his knowledge had told the defendant that the incident involved a shooting The defendant also conceded he knew Smith and Collins but claimed he had never been on Maple Street Smith testified and confirmed that he and the defendant were friends Smith lived on Maple Street at the time of the offense and saw the defendant at the house on that day In contrast to statements he made during the investigation Smith testified at trial that the defendant did not have a gun with him He claimed not to remember what he told detectives or the prosecutor prior to trial and stated I ain seen the t defendant pull no trigger I ain seen him shoot nobody Smith acknowledged that t he had spoken to the prosecutor in the presence of an investigator only hours before giving his testimony Mike Vicari an investigator with the East Baton Rouge Parish District s Attorney Office testified that he was present when Smith was interviewed 3 I According to Vicari Smith stated that the defendant rode to Smith house on a s bicycle and had a gun When asked what he intended to do with the gun the defendant told Smith that he intended to get a lick Smith then stated that after hearing shots the defendant returned to his house and asked to come inside but Smith refused to let him in JURY TRIAL WAIVER The defendant argues that the trial court erred in finding that he knowingly and voluntarily waived his right to a jury trial The right to trial by jury in felony and certain misdemeanor cases is protected by both the federal and state constitutions See U Const amend S VI La Const art I 16 17 Except in capital cases a defendant may lrnowingly and intelligently waive his right to a trial by jury but no later than forty days prior to the trial date and the waiver shall be inevocable five La Const art I A 17 see also La Code Crim Pro art 780A A waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly See State v Kahey 436 So 2d 475 486 La 1983 waiver of this right is never presumed State v Brooks 01 La App 1 Cir 3 814 So 2d 72 76 writ denied 1138 02 28 1215 02 La 11 829 So 2d 1037 However no special form is required for a 02 22 defendant to waive his right to a jury trial State v Coleman 09 La App 1388 1 Cir 12 35 So 3d 1096 1098 writdenied 10 La 4 62 So 3d 10 0894 11 29 103 Prior to accepting a waiver the trial court is not obligated to conduct a personal colloquy inquiring into the defendant educational background literacy and work s history State v flllen OS La App 1 Cir 3 934 So 2d 146 154 1622 0 29 At a preliminary examination hearing on May 25 2011 and after defense counsel advised that her client had made his determination as to his mode oftrial the trial court engaged in the following colloquy with the defendant Court You you graduated from high school Smith was in custody for burglary at the time of his testimony 4 Defendant Yes sir Court Have any kind of disability Not that you aware of re Defendant ot Iv that I m avvare of Court Your lawyer tel me Yhat ou don twant to have a jury of your peers come in fron the c and listen to what the State anity rn tr has t presez at t h that c wuuld prefer ie havz one juror u and that wuu d r iz tthe benefit and the righ to have ave twelve jurors Defense counsel Judge I don tmean to nterrupt you I believe that he wants a jury triaL Court Very well Defense counsel But I have explained to him that if he changes his mind we re going to pick a status date in early August which would be forty five days prior to his trial date in case he changes his mind Court Very well He have untii that date and then he select his ll ll mode of trial All right So what else we need to to accomplish here Defense counsel We need to pick a status date in early August to do discovery and as to make a final determination as to mode of tnal The minutes for a status conference on February 6 2012 indicate t he efense d waived right to jury trial for bench trial The transcript from that conference reflects the following Minute clerk Is it going to be a jury trial or State s It a waive jury trial Defense counsel you Thank The record on appeal was supplemented with a transcript of a status conference held on August 11 20ll At that time defense counsel advised the trial court that the defendant had made a decision regarding his mode of trial The defendant was sworn and the following exchange toQk place Court You want to have a jury trial or you want me to try your case Defendant A judge trial 5 Court You understana yuu dodt liav to have a judge trial Defendant Yes sir Court What are tl charges A twelve jury s required huh e person State Yes your tionor It attempt second murder as well s ed degree as an atterra aarmed re pt bhery Court Ten of thosa i urors c have to vote to find you not guilty or uld guilty If yoix give up your right to your jury trial then you re only going to have one juror and that going to be me And s s State going to have to present evidence at your trial to prove beyond a reasonable doubt that you committed these crimes If they are successful at that Pm going to find you guilty If however they fail at that responsibility I going to find you not m guilty Knowing what your rights are you want to give up your right to your jury trial and have me hear your case Defendant Yes sir Court And how old are you Defendant 18 Court You graduated from high school Defendant Yes sir Court You read and write and understand You confused about are you confused about anything Defendant The rights Got thie feeling inaudible Court Did I confuse you about your right to your jury trial Defendant No sir Court All right I set it out for bench trial ll We find that the defendant knowingly intelligently and voluntarily waived his right to a trial by jury in this matter At the preliminary examination hearing the trial court questioned the defendant about his educational background inquired as to whether he had any disability and explained the right to jury trial At a subsequent status conference the defendant stated he wanted a judge trial The trial court asked the defendant if he understood that he did not have to waive his right to a jury trial and the defendant answered affirmatively 6 The court further explained that the defendant had a choice between ten jurors having to find him guilty or the trial court having to find him guilty and that the State would have to present evidence at trial to prove beyond a reasonable doubt that he committed the charged crimes The court then again asked the defendant if wanted to give up his right to a jury trial and have the court hear his case and the defendant answered affirmatively This assignment of error is without merit SUFFICIENCY OF THE EVIDENCE In his second assignment of error the defendant contends that the evidence presented was insufficient to support the convictions because the State failed to prove he was the assailant who shot the victim during an attempted anned robbery In reviewing claims challenging the sufficiency of the evidence this court must consider whether after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt Iackson v Virginia 443 U 307 319 99 S Ct S 2781 2789 61 L Ed 2d 560 1979 See also La Code Crim Pro Art 821B State v Mussall 523 So 2d 1305 09 1308 La 1988 The 7ackson standard incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt State v Petitto 12 La 1670 App 1 Cir 4 116 So 3d 761 766 State v Patorno 01 La App 1 Cir 13 26 2585 02 21 6 822 So 2d 141 144 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 State v Wright 98 La App 1 Cir 2 730 So 2d 485 487 writ denied 0601 99 19 0802 99 La 10 748 So 2d 1157 and writ denied sub nom State ex rel 99 29 WNight v State 00 La 11 773 So 2d 732 When analyzing 0895 00 17 We also recognize that the waiver complied with the 45 pretrial deadline set forth in day Article I 17 of the Louisiana Constitution The waiver occurred on August 11 2011 A several months prior to the commencement of the trial on May 16 2012 7 I circumstantial evidence Louisiana Revised Statute 15 provides that the fact 438 finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence Petitto 116 So 3d at 766 Patornq 822 So 2d at 144 The facts then established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime Wright 730 So 2d at 487 Any person who having a specific intent to commit a crime does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended and it shall be immaterial whether under the circumstances he would have actually accomplished his purpose La R 14 Second degree murder is the killing of S 27A a human being when the offender has a specific intent to kill ar to inflict great bodily harm La R 1430 The offense is also committed by the killing of a S 1A 1 human being when the offender is engaged in the perpetration or attempted perpetration of armed robbery La R 1430 Armed robbery is the taking S 1A 2 of anything ofvalue belonging to another from the person of another or that is in the immediate control of another by use of force or intimidation while armed with a dangerous weapon La R 14 3 64A Specific criminal intent is that state of 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 R 14 Though intent is S 10 1 a question of fact it need not be proved as a fact It may be inferred from the circumstances of the transaction State v HendeNSOn 99 La App 1 Cir 1945 00 23 6 762 So 2d 747 751 writ denied 00 La 6 793 So 2d 1235 2223 O1 15 Specific intent is an ultimate legal conclusion to be resolved by the fact finder and 8 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 Henderson 762 So 2d at 751 Specific intent to kill may be inferred from a defendant act of pointing a gun and firing at a person Henderson 762 So s 2dat75L s trial Smith pre statements described the defendant arriving at Smith s house on Maple Street on the day of the offense with a gun that he intended to use to get a lick The victim described the shooting and witnesses saw the assailant run into tbe yard at the Smith residence Smith advised the State that he heard the shot and the defendant then asked to come inside the house but Smith refused to let him The weapon used in the offense was discovered under the Smith residence by a detective and was identified by the victim While Detective Roberts was inside the Smith residence he listened to a telephone call from Nu Nu the snickname who requested that someone get the gun from underneath defendant the house During questioning the defendant claimed that he never shot nobody although he had not previously been informed that the incident involved a shooting The defendant argues that the evidence suggested that Smith may have been the perpetrator because a neighbor Pickett described the event as occurring when the young guy that lived down the street come running behind the victim with a shotgun However Pickett later explained that he did not know Smith or the shooter and that he just figured that the shooter lived down the street but he did not know Smith denied that he was the assailant during his testimony 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 See State v Moten 510 So 2d 55 61 La App 1 Cir writ denied 514 So 9 2d 126 La 1987 The trial cc reasc rejected the defendant hypothesis of urt nably s innocence This court will not assess the r of witnesses or reweigh the evidence redibilit to overturn a fact fi deterr of guilt St v Lofton 96 La App s nation der l te 1429 lst Gir i27197j 691 Sc 2 1365 136 e rai 97 La 1Q 701 d rir 24 1 J 97 1 So 2d 1331 The trie offaet mtay accept oc rej t in whole or in art tYie testimony ofany witness Petitto 116 So 3d at 770 State v Young 99 La App 1 Cir 1264 00 31 3 764 So 2d 998 1006 VVhere 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 weigl tof the evidence not its sufficiency Petitto ll6 So 3d at 770 Young 764 So 2d at 1006 An appellate court errs by substituting its appreciation of the evidence and credibility ofwitnesses 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 07 La 1 1 So 3d 417 418 per curiam 2306 09 21 After a careful review ofthe record and evaluatin gthe evidence in a light most favorable to the State we conclude that a rational trier of fact could have concluded that the State proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the deiendant was guilty of attempted armed robbery and attempted second degree murder This assignment of error is without merit REVIEW FOR ERROR The defendant requests that this court examine the record for error under Louisiana Cada Criminal Procedure article 920 This court routinely reviews 2j the record for such errors whether or not such a request is made by a defendant Under Louisiana Code Crimin Procedr artrcle 920 we are limited in our al u e 2 v revie to errors discoverable by a mere inspection of the pleadings and 10 proceedings without inspection uf the evidence After a careful review of the rec r finsl that the trial court erred in rd e failing to specify that the fifteen hard sentence for attempted murder year labor was imposed without benefit of probation parole or suspension of sentence See La R 14 j A minute ntry indicatss xhat the sentences on both counts S 27 a 1 D were without benefit of prc parole or st of sentence but the n bati spension sentencing transeript reveals that he attem murder sentence did not specify 2eci those restrictions However the failure of the trial court to specifically state those restrictions in no way affects the statutory requirement that the sentence for the attempted murder conviction must be served without benefit of probation parole or suspension of sentence See La R 15 We find no further errors S 301 1A CONVICTIONS AND SENTENCES ON BOTH COUNTS AFFIRMED 11
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