State Of Louisiana VS Michael Jerome Thompson

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 KA 1805 STATE OF LOUISIANA VERSUS MICHAEL JEROME THOMPSON Judgment Rendered: j_ W C X : F% jC X * ) C MAY 0 2 2014 i Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, State of Louisiana Trial Court Number 07- 09- 1025 Honorable Donald Johnson, Judge Presiding X fF % i C ][ : F JC X X Hillar C. Moore, III, D. A. Counsel for Appellee, Christopher J. M. Casler, Asst. D. A. Sate of Louisiana Baton Rouge, LA Prentice L. White Counsel for Defendant/Appellant, Louisiana Appellate Project Michael Jerome Thompson Baton Rouge, LA t * x BEFORE: WHIPPLE, C. J., WELCH, AND CRAIN, JJ. WHIPPLE, C.J. Defendant, Michael Jerome Thompson, was charged by grand jury indictment with second degree murder, a violation of LSA-R. S. 14: 30. 1. not guilty and, after a jury trial, was found guilty as charged. He pled The trial court subsequently sentenced defendane tc the mandatnry term of life imprisonment at hard labor, without benefit of parole, probati n, or suspension of sentence. Defendant now appeals, alleging one counseled assignment of enor, and several pro se assignments of error. For the following reasons, we affirm defendant' s conviction and sentence. FACTS On June 5, 2009, at approximately 6: 00 a.m., Frank Reynolds encountered his neighbor, Quincy Gibson ( the victim), on Dan Iarive in Baton Rouge. The two men went together to a nearby convenience store and reiurned to Dan Drive shortly thereafter. Reynolds They and stood outside Reynolds' Gibson talked, they neighbarhood as " Peterman" walking s home noticed and talked for awhile. As defendant known around the down the street. Reynolds and Gibson told him good morning and defendant continued walking down the street. Thereafter, Gibson walked across the street to another neighbor' s house to wake him so that they would not miss their ride to work. After doing so, he returned and continued to talk to Reynolds. A few minutes later, Gibson again walked across the street to check on his neighbor. Reynolds saw that as Gibson was walking back in his direction, Gibson and defendant made contact with each other. Soon thereafter, Reynolds saw defendant begin to shoot at Gibson. After being shot several times, Gibson fell to the ground in the middle of Dan Drive. Defendant' s gun jammed for a brief time, but he eventually succeeded in unjamming it. At that time, he walked into the 2 street, stood over the victim, and shat him onc.e more. Defendant then fled the scene. After the shooting, Reyn lds ran intc his ho, ise and told his wife that Gibson had been shot. Gibson' s wife called 911 ara3 th.en rarl down the street to Gibson' s home to tell Gibson' s mother t1- at Gibson nad bean shot. Maggie Doty, the victim' s mother, ran into the street to lher sc n' s side and asked him what happened. The victim told her that " Peterman" shot him. Uabsan aater died from his wounds. Pursuant to a tip rega, ding kzis loc.atiun, defendant vN°as arrested the following day. r DEF'ENDANT' S STAT'E M1iENTS Tv ' HE P011ICE T In his sole counseled assignr: ent of ezxor defendant alle s that the trial court erred in allowing the siate te introdu e eviderac of defendant' s statement regarding the circumstances ef his shaoting of the vxct? m. Spe ifically, defendant argues that he madE this statement during an interrogaiivr only after he was denied opportunities to eat and sleep b3 the ir terrogating deteciive and after he requested to be taken to prison In his pro e brief, defendant alleges that his statements should be excluded because he sirnply told polPCe what hey wanted to hear after he was interrogated for over five hours. When any person has een arrested or detained in cqnnection with the investigation or commission of any offexi e, he sh ll be advised fully of the reason for his arrest ar detention, his right ta rernain silent, his right against self- incrimination, his raght to the assistance of counsel, and, if indigent, his right to court- appointed counsel. See Miranda v. Arizona, 3& 4 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed, 2d 694 ( 1966 j. Before what purports to be a confession can be introduced into evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. LSA-R. S. 15: 451. Whether or not a showing of voluntariness has been made is analyzed on a case- by-case basis with regard to the 3 facts and circumstanc s c f' eac St case, Pl in; e s ,_ 9- 1112 ( La. App. lst Cir. 2/ 18/ 00), 752 So: 2d 337; 34ti. DefendanYs interro ati an l.aeted ap? rc i ax iy 12: 15 p.m, on tk e day he Rouge Parish Sheriff interrogat of the o 1, and as arrestzci.. S rgeunt S nia Har. en, c f fl e East Baton d Ot$ ice, defendant drink. She tca defen ldn* is? d- 02 hss Iirrsr c a ri? t a a °yva ti=4r o' r_ ats k orrci. l lsr rz, r i nt c enied I; i. l ar ag ci ictim. tlxe i d aa Near tk± t txr, ya. ivxi. ad ar retuz ad. s inte rrogatien, defend defendant kjegazi a e haurs. 3t began around rior to the initi.al part r. rc un i 1238 p. m., f Yi roqtrz tz g t defendant a cor deiendazit ir.. er ation_ but he . ntinued to deny that he had shot zhe vi:.tini. A c und 1: i5 p. rzx., d fendant tc> hlarden, " I said Id what I said, and ynu can tak me t;i k l[ e par pris n]." When Harder_began to get up and walk toward the da or, defendant aa9 Fd l er for a cagarette and thanked her for trying to himsel£ him. help Harden asked detendant if he antea to try to help D f ndant began o alk abou t the eviden e a ainst. hisr., and Harden that }se could no± hel k iirnself; c a a d e. n ft e euic a ce. e informed I ar ler. left the room around 1: I7 p.m. Hard n retucr d to ti ¢ ie defendant t hat lie looJced 1_ike Harden talked further, bu Harden again left the Harcten atzU , c c again m . re zn.d i:+Q m. She told a r ally " eat ng'° at 1hix7n. l eiendant and orr:ethun ciefendan rnaizaxai e room at . returxied interru tha he did n.uf, kill the victim. 1 S p_ rs, ai 2: 4L1 p, rn. Upon entering the roum, she asked defendant what was goin thr ugh i is head as he heard his uncle shouting not to shoot the victim. Defendant ciid not answer and instead hYd his head 3n his arms. At 2: 23 p.m., Harden asked clefendant if he v as a leep: De£endant replied that he was tired. Harden left the room again and eturned within a couple of ininutes. She told defendant to sit up, and he a ain told h r thaY. he was tired. Harden said that she was going to flnd a crime s ene technician to tak 4 photographs of defendant azid to it I)"'. ohtain 'i ae riinz zchnician entered the interrogation room, around 2: 3 p m. After the ini rro; reentered the forth discussion, help to Yau bcirig me, Harden laughed « grabbed ad n_ c? t iis d t.v fizr.i lleci zceur ant sa 2eti c ai n ation re< lirirups in photographi i tach s: Grirle v.h: ask her folcfers frc rn d ' tia l t;.b9e ii he t irelecl. 3e: ti ; r s be;+ aY i me tf he sur.; tu ; et ; ci A' efenu nt three t er trore back- and- 1 l n lzrst 2: 45 p. m.," u please ta1k can ; ef ra3ar r. Sh; s} xuti 2: 3$ .. und efe.,dant. Harden again t;:, n arcle. a a aaid n But reel. ri d you try tre pwrish [ prison]?" as zp to ] eave go. She room. As y to rea thE Harden began tc ie ve at 2; 8 . ar1., deYenda. 3 a.s, eu Yc r a e> wrette be are he left to m., gia der an l ciefeyid, uat ' eft the zc; on ? ovetfi, r, presumably jail. A t 2: 56 : go to so that defendant When they over houz, an ntere ra I tl e iefe ridanx At : 2. shooting. They could bo smoke. p. n.., rau r. contzzaaaed E returci ard; ti at - 19 p. t. gtd d frradant co fiirzE e: tc talk. For e; y his in.volverpaer t iz tc tha victim' s II c en t; lci aez; ndanx thai she wvz boarag to sliut the interview down sin.ce he, was gai a tica cc zatinu Yo sai t1 al h had not done anything. At 4: 7 p.m., Harden be an tp ralk oa t and cte ndant yelled, " Pm not Where finished, though. asked her zf she vas sur c+ t gu n a2 ar. i t?" h.ir. Iarden s back ivv?i ari i defendant tk l f her cc uld ondy h. ip hizn. Harden stated that she did not know w} t the restults c f';a. y fiir tre stazeznexits would be, but she was sure tha sh could p c ve ha was lyin.g zri his are iaus state'rnents. After almost another thirty mitautes of hypothetical discussions, Harden stood up to leave the room at 4: 52 p,tn. At that pai; t, aerendant immeciiately said, We a got lalife ain' into .., an argument. I [ Ieft], come t never get a chance to I wanted io baek, draw it ighi, fight. He d'adn' r the 1 off, xake - He didn' t 5 u aY t to wan_ to t ife f ght." an fight ... pulled out hit him up .., We Defendant and Harden talked for approximatel} thirty more rninutes a<> ut the exact. detaiis and his remarse. Defendant was then transferred to parish prison. Prior to trial, defendant fled a m.oYior to su press his comfession. The trial court granted that n tio ur t laasis i that Tt ard n' cor. ina d qu stic ning of Y defendant, a er he expressed that F e was tired araci asked tr be iaken po parish prison, was a vro: dati n of his right t zek air. si4enf. Th state filed a writ application with this cour, w ich w s granted, r su: ing in xhe reversal of the trial court' s ruling grantin defendant' metaon t su. pr;, ss. See State v, Thompson, 2010- 1244 ( La. App. lst l",ix. 91 711? j unpublisY ed rit act on). When an appellate sourt consid rs q aesr.ion of admissiY iiity of evidence in a supervisory wcit app?ication in advance of trral, t: e conclusions iby th writ panel h are not bindin on the jud as vho 1sYer consider. Yhe case on appeal, at which time the issues may have been more cl arl5r fran e by the evidence adduced at trial. See State v. Humphrev, 412 So. 2d 5 ti7, 523 ( La. I982) ( on rehearing). Nevertheless, judicial efficiency cierr.iand that this ccu t accord reai deference to its pretrial subsequent decisic trial ns dnniss on record, t at the i iry, ur.le s it is apparer t, iz dezerir inatic> a was produced an unju t r sult. See F um hr v, 4l? Sa 2d a In granting the state' s earliez pa ently light of the Trvneous and 23, vrat appli ation, YY_ds court found that defendant' s assertion that he was tired arid his request go be taken to g arish prison were not invocations of his rig it tv : emain silent. The v gt panel cited State v. Prosper, 2008- 0839 ( I,a.. 5/ 14,i08), 9$2 Soo 2d 764, and State v_ B1ank, 2004- 0204 La. 4/ ll/U7); 95S S'o. 2d 90, csrt. denied, S52 L.S. 994, 12 S. Ct. 494, 169 L. Ed. 2d 346 ( 2007), as, support for these findings, See State v. Thompson, 201U- 1244 La. App. l st Cir. 9127/ 10) ( unpublished writ action). . In Prosp r, the Louiszaaia Supr me Court auied that ttie defend nt did not invoke his right to remain silent by saying, " I don' t have nothirg else to say sir 6 cause I'm telling the trnzth. I' zia te lir g tt e 4ruth_. I dc r' t have utl ing eLse to say," because that stat nient did not r. asona Iy su e Pros er, despite the deterician° eold ex. r r s havin-_ back and to ic the int terminate his Tizzess ; ar? tae i 7e Speci involuntazy. requested d s pai., confession accommodated dn F, ianlc, the I. ocaisYax a Supreme Go rt ruled that 2d at ? 6. 982 S. e, t a des r t end all questioning. requests a>,. l7y; j-view for d r£# i tin o aa tfl_ ; , r Ljis stt,temezais rrgarding being a z s did u c ih;ng tcs render his foa. d that. the d fendant never rhe Yha interrogating officers resEroom. br aks, and cigarettes when n1, possible. Blank, 955 So. 2d at 106- i?fs. In the instai t show or case, in Yi l, t ion that the introduc± that it produced of of tk°, s absea e d fer c rc ur. ust result. t trial r cc r, thare ; s nothing to t' s taped stat n.ent was patently erroneous The a ordin , f defendaxit' s interrogation reveals that while he did in fact re a e t ttivbce tc he taken to arish prison, these statements alone did not reasonably a gest a desJre tc end aIl questioning. In fact, defendant continued to er. gage z HarderA i ; ten nv ; onv sati n, even after he made these statements. Further, u kiile defen.dant did express at least twice that he was tired, he never specifically r qu siea to eern gnate the i: tec ie4 due to his fatigue. Moreover, s in B dnk, Harden art mpted to a con amodate defendant as much as possible by offErir him drflnks, as well as . igarette ar.d restrot m breaks. Based on these fac:ts, and on the record as a who1, we cannot say that defendant' s statement was unlawfully intrAduced at krial. This assignment of error lacks merit ALLEGATION OF PERJL"RED TESTIMONY , In his pro se brief, defendant alleges that ttivo Reynolds and Ivlaggie f the state' s witnesses Frank Doty c mmitted perjury at his trial. Fie asserts that the allegedly perjured testimony from each of these witnesses had direct bear;ng upon the jury' s verdict, In his testimony by se pro fet3 brref, Frank Reynolds. ant all s anulxzple instances of perjured Defendant coritends that Rey-nolds, the actual eyewitness to the shooting, in these respects, lied: when he said that there was no fight between che victim and defendant in the moments before the shoota g; when he stated thmt ha tcald the p li; e tihar he and the vis:tinn had visated a cc nvenience store prior to the was < trsd shot; shoUtin; vs when he aid that he never l ft tt e -vi.cum' s side after he hen $ e sazd ithat the v w irri pl c c his faad items £rom the convenience store a4op Rev olds' tra ck. 1jefEn ant Alleges that: a 91 call proved there was a s uffle betwee a the vze,tirn and defendant p_ rior to the shooting; the poliee denied h aring frotn Zeinol is tl-at he and he vi, xim had gone to a convenience stor on the moa-r in ¬ of Yhe i icid nt; Rey= aolds wer t iuside his house to call 911; and the poliae d nc t fiz ci the victim' s food items r Reynolds' s truck upon their investigation of the scen. At trial, the jury had the apportunity to consider aIl of the noints defendant now raises in his pro se brief. Whila Reynolds drd tesYify at triaY that there was no fight between th victim and defendant recordings of the 411 calls fr r Reynolds statea h tc tk e Id the p lzce prbar ta t rr ing thwx he and hooLi_ ri, tki i[ tl? inci ent e L t1^.e ury also heard I urther, although ctirri went tU tl e convenience store to etl-er; the juary also heard r sYirtaurny from iF,ast Baton Rouge Sheriff' s i Office Detsatzve To d Morris, who statec th,at Re no ds did no inform him about the trip tc the convenience stc re. With re peci tc cefendant' s allegation that Reynolds stated he never left the vzct: n' s side after ihe shooting; Reynolds himself testified that he. ran inside his home to intorm his wife of the shooting. Finally, while Reynolds asserted that the vrctim left his food items on top of his truck, defense counsel thoroughly cross- examined Reynolds on this statement and ar ued to the jury that the crime scene photographs depicted neither Reynolds' s truck nor the victim' s food items. 8 On all points uf allegedperjury by Raync ids that def'er dant now raises in his pro se brief, the jury heard cozitra iicYo y evide;nee througtiont he course of the trial. Despite the' e istence of ti as conix dzctory evi accepted, at leasi in f credibilitv determination in whole or - ztn_ esses of gaili. in Reyriolda' part; i h the °, ew r. or As the trier he te timon- art, of of ' I'hzc court wFll test? mony. s ot assess the iaen e to qvertu-n a fact finder' s fact, the ju. any nce, he jnry apparently w s entitleu v accepi ar reject, S e State v. Lofton, 96- 1429 witr_ ec. lst Cir. 3i27/97), 691 S a. 2,d 1365, 13a8, writ denied, 97- 1124 ( La. 10/ 17/ 97), 701 So. 2d 1331. Fu Yher, an appellat court errs by substituting its La. App. appreciation of the evidence and credabil Yy e f itr,esses for that of the fact finder and thereby overturning a verdret or the basis o' an excu?pat.ory hypothesis of innocence preser_ ted to, and rationaily 2007- 2306 ( La. 1i21;`09), Z So. 3d rejacted 17, 418 ( hy, per the jury. aurbazn). State v. Callowav, Th jury' s decision to accept, at least partially, the tesgimany by° Re} nolds, is a ?n:atter regarding his credibility, which court wil jured tes purportedly pe alleges that Doty shot is ith R, ynolds' As who tk her and Ye tiTnory; defendant imony b;= testified son, s ot overturn. ai that d d several instances of Caggi_ lloty, tb_ vflctim' s rnother. Defendant e e kri. e,- trial that she she ailege not znake yvh- tier on got shot, that she knew a call t 9I l. Ho ever, he also alleges that: Doty had informed a 91-1 operator she did not know why her son got shot; Doty had told a 911 opsrator she did not know who shot her son; and Doty was clearly recorded making a 911 calle Starting with defendant' s last alla ation first, we note that Do'ry did not deny calling 911 when she leamed her son was shot, Ind ed, she adrnitted that sh did call 911. She simply contended that the 911 r cordi ig played during h r cross- examination was not her vc ice. Further, there appears to be no evidence in the record, one way or the other, about ivhether poty rep arted knowing why her son 9 had gotten The closest reference in t? record regarding s reason far the ie shot. victim' s shooting involved 1Joty' s testixnora.y regarding her sen asking her why he had been shot. Duri ng cross- exa ination, d fense counsel questioned Doty about this testimony, whieh ilhe had app renEly ehax d for ti e first tim during her direct examination. F'i ially, Dotv vas adamant tha? the victim clearly stated that Peterman" had shot him as soo as she found hir a ying in th street. Defendant alleges that Doty never i rela} ed aaafoz at on tc the di patcher, but Doty testified that she made three 91Y ca?ls on, t he morn ng of the shc ting and that the call played for the jury was not Yaer voice. Again, despite def ndanYs allegations of p rjury in I) oty' s tesrimony, the jury was provided evidun.ce th t, at least rn part, contradicted tr.at testimony. Despite the existence of thi carptradi r ry evidenee, the j ry' s that it might ha t least part all erdict indicates believe T oty' s version of the events. Once again, this decision was c ne regarding D ty` s credibility, and thi court will not review that determination. This assignment of err r also ack znerit. EVIDENCE T; VIPF,RI: G In his final pro se assi nzt ent of error, defendant a lz es that a " Jamie Thomas" contami lated tite crime scene when. she r moved the victim' s hat and Gatorade b ttle prior to the arrival rf law ez foz° cementi. Bec use defendant' s theory of the case suggested that xhe ictim first attacked him by drawing a knife, he alleges that this same person could have removed the kniie from the scene, The only testimony at trial regarding the possible removal of evidence from the crime scene came from East Bat n Rouge Sheriff' s Office Deputy Russell Rose. Deputy Rose was one of the first officers to respond to the crime scene. At the time he arrived; several people were crowded around the victim as $ e lay in the street. Deputy Rose testified at trial that he observed some hell casings, a hat, and 10 a Gatorade bottle in the street. He alled for a ambulance and attempted to keep individuals out of the crime scene. Depu ty Rose testified that at the time he was able to turn the crime scene over to his sup rvisor, the bat and Gatorade bottle were no longer present. However, he stated that he raever saw a knife or a gun at the crime scene. Defendant' s assertion that a " Jamie Th mas" was the person to remove the hat and Gatorade bottle frc m the crime scene is unsupported in the record. Clearly, these items went missing between the time of Deputy Rose' s arrical and his turning over of the crime scene to his supervisor. However, there is no evidence that any knife or other weapon was ever preaent at the scene. Further, the only eyewitness to the shooting - Frank Reynolds - testified that the victim never possessed a weapon. After a thorou h review of the ecidence presented at trial, we cannot conclude that defendant has shown a s abstantial likelihood that any individual removed a weapon frorai the crime scene. This assignment of enor is w° ithaut znexit or otherwise unreviewable on appeaL Accardingly, the defendant' s conviction and sentence are hereby affirmed. CONVICTION AND SENTENCE AFFIRi1 IED. 11

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