Opinion
2012 KA 1976
12-27-2013
STATE OF LOUISIANA v. CURTIS A. KEIL
Walter P. Reed Lewis V. Murray, III Franklinton, LA Counsel for Appellee, State of Louisiana Kathryn W. Landry Baton Rouge, LA Prentice L. White Baton Rouge, LA Counsel for Defendant/Appellant, Curtis A. Keil Curtis A. Keil Tallulah, LA In Proper Person
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Second Judicial District Court
In and for the Parish of Washington, State of Louisiana
Trial Court Number 101008
Honorable August Hand, Judge Presiding
Walter P. Reed
Lewis V. Murray, III
Franklinton, LA
Counsel for Appellee,
State of Louisiana
Kathryn W. Landry
Baton Rouge, LA
Prentice L. White
Baton Rouge, LA
Counsel for Defendant/Appellant,
Curtis A. Keil
Curtis A. Keil
Tallulah, LA
In Proper Person
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WHIPPLE, C.J.
Defendant, Curtis A. Keil, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. He pled not guilty. Following a jury trial, defendant was found guilty of the responsive offense of manslaughter, a violation of LSA-R.S. 14:31. Defendant filed motions for new trial and postverdict judgment of acquittal, but the trial court denied the motions. The trial court sentenced defendant to serve thirty years at hard labor. Defendant filed a motion to reconsider sentence, but the trial court denied that motion as well.
Defendant now appeals, alleging two counseled and four pro se assignments of error. For the following reasons, we affirm the defendant's conviction and sentence.
FACTS
On the afternoon of October 6, 2008, the victim, Terrance Harris, was standing on Ann Street in Bogalusa, talking to some family members. A man, driving a vehicle described as a white Lincoln, pulled up in front of the victim and his family, exited the car and he and the victim began to argue. The man from the vehicle then pulled a handgun and shot at the victim, striking him four times in the head and neck. The man reentered his vehicle and drove away. The victim died as a result of his wounds.
Immediately after the incident, several eyewitnesses told the police that defendant was the shooter. At least one eyewitness also described the shooter's vehicle as a white Lincoln with Texas license plates. Shortly after receiving this information, Bogalusa police officers located defendant at his mother's home on City Limits Road. At the same location, they found the vehicle described by eyewitnesses as belonging to the shooter. However, they were unable to recover the; firearm used in the shooting.
SUFFICIENCY OF THE EVIDENCE
In both counseled and pro se assignments of error, defendant contends that the evidence presented at trial was insufficient to support the jury's verdict finding him guilty of manslaughter. Specifically, defendant contends that there was a lack of physical evidence and a lack of credible eyewitness testimony presented at trial to identify him as the shooter.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See LSA-C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654, 660; State v. Mussall, 523 So. 2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that in order to convict the factfinder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So. 2d 141, 144.
When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Hughes, 2005-0992 (La. 11/29/06), 943 So. 2d 1047, 1051; State v. Davis, 2001-3033 (La, App. 1st Cm 6/21/02), 822 So. 2d 161, 163-64.
Defendant did not testify at trial, On appeal, defendant argues that there was a lack of physical evidence tying him to the shooting. Specifically, defendant contends that the police failed to find the gun used in the shooting and failed to find any gunpowder on his hands or blood in his vehicle Because defendant challenges only his identification as the perpetrator of the instant offense, we need not determine whether the state carried its burden of proving the elements of manslaughter.
In the instant case, the state presented testimony from four eyewitnesses who identified defendant as the shooter. Katrina Hall testified that she lived on Ann Street at the time of the incident. On the day in question, she was standing outside her home and talking with her parents when she heard the victim and defendant yelling at each other. After hearing shots ring out, she observed defendant getting into his car and heard him say, "I want him to run from that." Katrina Hall testified that she had met defendant previously and that there was no doubt in her mind that he was the person she saw that day.
Emory Moses, who lived on Ann Street with Katrina Hall, also identified defendant as the shooter at trial. He testified that he was on his way back to his home after getting something to eat, when he saw defendant park his vehicle on the street, exit the vehicle, and begin running toward the victim. Moses saw the victim, who was his cousin, in a ditch as defendant stood over him and fired his weapon. Moses watched as defendant got into his white Lincoln and drove away.
Kenneth Hall, Sr., testified that he was visiting his daughter Katrina Hall on the day of the shooting. Shortly before he was about to leave, he heard a commotion and ran outside, where he observed the victim and defendant arguing. He then heard gunshots and looked up to see defendant shooting. He testified that he heard defendant say, "Let him run from that," before defendant jumped into his car and drove away.
Gregory Brown also testified that he was on Ann Street in the vicinity of the victim on the day of the shooting. Brown stated that defendant drove up, got out of his car, and asked the victim if he was going to give him a fair fight. Brown testified that the victim declined to fight defendant and that defendant exited his vehicle and fired a gunshot into the air, causing people to scatter. According to Brown, defendant then shot the victim several times, including at least twice when the victim was already on the ground. Defendant then got into his vehicle and left.
In addition to the above eyewitness testimony, the state presented the testimony of Sergeant Charles McDaniel of the Bogalusa Police Department to establish a possible motive for defendant's decision to shoot the victim. Sergeant McDaniel testified that in the days leading up to the shooting, he had informed defendant that he would not be arresting the victim or two other men in connection with a complaint defendant had made against them. Sergeant McDaniel noted that defendant was extremely upset to hear this news.
Further, the state presented testimony from Lieutenant Donald Ray Phelps of the Bogalusa Police Department regarding a statement that defendant made concerning the gun used in the shooting. Lieutenant Phelps testified that defendant had already been read his Miranda rights when, in response to questioning, he admitted that he had thrown the gun out of his car window as he drove away from the scene of the shooting. According to Lieutenant Phelps, defendant could not remember exactly where he had discarded the weapon. Lieutenant Phelps and Captain Joe Culpepper traced the most logical route from the crime scene to the place where defendant was arrested, but they were unable to locate the weapon.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L, Ed. 2d 694 (1966).
Former Captain Joe Culpepper is now Chief of the Bogalusa Police Department
Considering all of the above, we cannot say that the jury's determination that defendant was guilty of manslaughter was irrational under the facts and circumstances presented to them. See Ordodi, 946 So. 2d at 662. Despite the lack of physical evidence directly tying defendant to the offense, the jury's finding of guilt is strongly supported by the unequivocal eyewitness testimony identifying defendant as the perpetrator. To the extent defendant challenges the credibility of the eyewitness testimony presented at trial due to some witnesses' prior criminal history, we note that this court will not assess the credibility of witnesses or reweigh the evidence to overturn a factfinder's determination of guilt. See State v. Houston, 98-2658 (La. App. 1st Cir. 9/24/99), 754 So. 2d 256, 259. Here, the jury clearly was presented with evidence of certain witnesses' criminal backgrounds, and yet apparently still found at least some of these witnesses to be credible. That determination is not reviewable on appeal.
Viewing the evidence in the light most favorable to the prosecution, we find that there was sufficient evidence for the jury to conclude that defendant was the perpetrator of the instant offense. The state presented ample and uncontroverted eyewitness testimony to establish that defendant was the person who shot the victim.
These assignments of error are without merit.
STATE'S USE OF INADMISSIBLE EVIDENCE
In this counseled assignment of error, defendant argues that the state was allowed, over his objections, to present inadmissible evidence at his trial. Specifically, defendant contends that the trial court erred in allowing the state to introduce evidence regarding his statement concerning the location of the firearm and to introduce evidence regarding defendant's earlier altercation with the victim. He asserts that he was prejudiced by the state's late disclosure of its intent to introduce both of these facts.
Defendant's Statement
Defendant contends that the trial court erred in allowing the state to introduce at trial Lieutenant Phelps's testimony regarding defendant's statement that he had discarded the firearm. On appeal, defendant reiterates his argument to the trial court that the state should not have been allowed to introduce this evidence due to the state's late disclosure of its existence.
Defendant filed several generalized pretrial motions to suppress any evidence, confessions, and formal identifications. At a May 2, 2011 hearing, the state informed the trial court that the police had not seized evidence from defendant, taken any confession from him, nor secured any lineup identification of him. Therefore, the trial court ruled that these motions were moot.
On October 18, 2011, the state filed a notice of intent to use statements, informing defendant that the prosecution would introduce evidence of the statement defendant made to Lieutenant Phelps. On the morning of October 25, 2011, the day defendant's trial was set to begin, the trial court first held a hearing on the defendant's motion to suppress his statement to Lieutenant Phelps. During arguments following that hearing, the state indicated that it had first learned of defendant's statement to Lieutenant Phelps in August 2011. The prosecutor explained that she had brought up the existence of the statement in the presence of both defense counsel and the trial judge during an August pretrial conference. She fur;her argued that she had explained in August that she would not have used the statement if the case went to trial at that time. However, she contended that in light of the three months between her informal notice to the defense and defendant's October trial, defendant was not prejudiced by her filing of a formal notice of intent to use his statement on October 18, 2011. In response, defense counsel argued that while they might have been informed of the existence of such a statement back in August, the prosecution's late disclosure of its actual intent to use such a statement was prejudicial to their ability to prepare a defense.
The trial court ultimately denied defendant's motion to suppress and rejected his argument that the late notice about the statement was prejudicial. The trial court specifically noted that it was aware of both the existence and the nature of the statement from the August pretrial conference where at least one of the defense counsel were present.
Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state's opening statement. If it fails to do so, a confession or inculpatory statement shall not be admissible in evidence. LSA-C.Cr.P. art. 768.
On appeal, defendant does not challenge the trial court's ruling denying his motion to suppress. Instead, he only challenges the trial court's decision to allow the state to introduce evidence of an inculpatory statement in the face of what he characterizes as late notice. However, the state's written notice of its intent to use defendant's statement was clearly provided within the time required by Article 768. Further, defendant does not allege, nor does the record reflect, any specific prejudice regarding the prosecution's supposed late disclosure. Here, defense counsel were clearly able to challenge the admissibility of this statement through a pretrial motion to suppress. Moreover, at trial they also vigorously challenged the credibility of Lieutenant Phelps and the circumstances surrounding the inculpatory statement.
After reviewing the record as a whole, we find that the trial court did not err or abuse its discretion in allowing the state to introduce defendant's statement over his objection of late disclosure.
This portion of defendant's assignment of error is without merit.
Prior Altercation
Defendant also contends in this assignment of error that the trial court erred in allowing the state to introduce evidence of his earlier altercation with the victim. Again, defendant argues that the state's timing of its notice to introduce such evidence was insufficient.
On October 24, 2011, the day prior to the beginning of trial, the state filed a notice of intent to introduce evidence of other offenses under LSA-C.E. art. 404(B)(1). In this notice, the state described the anticipated testimony of Sergeant McDaniel. The state noted that Sergeant McDaniel would testify that defendant sought to have the victim arrested for an incident which had occurred at the victim's home several weeks prior to the instant offense. The state further noted that defendant had been told several days prior to this incident that he would not be arresting the victim for the earlier altercation. The state contended that this testimony was admissible and would prove defendant's motive, intent, identity, plan, and lack of mistake.
On the morning of trial, the trial court heard arguments regarding the admissibility of the testimony of the officer who investigated the earlier incident. The state noted that it did not seek to introduce details concerning the actual altercation between the victim and defendant. Rather, the state sought to introduce Sergeant McDaniel's testimony as a means of demonstrating that defendant had some motive to shoot the victim. Defense counsel argued that the state's notice of intent to introduce this evidence was untimely under LSA-CE. art. 404(B)(1) because it was not given in a reasonable amount of time in advance of trial.
In allowing the state to introduce Sergeant McDaniel's testimony, the trial court specifically noted that the defense was well aware of the prior altercation, as demonstrated by its earlier request for photographs from that incident. Therefore, the trial court found that defendant was not surprised by this evidence. The trial court further found that the evidence the state sought to introduce was not a true Article 404(B) act subject to reasonable notice. In light of these considerations, the trial court found that the probative value of Sergeant McDaniel's testimony would outweigh any prejudicial effect.
Except as provided in Louisiana Code of Evidence Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. LSA-C.E. art. 404(B)(1).
The discussions about the evidence sought to be introduced by the state support the trial court's conclusion that the state did not seek to introduce evidence of other crimes, wrongs, or acts committed by defendant. The prosecutor was careful not to delve too deeply into the details of the incident, but she did relate via her argument to the trial court that defendant was the one who attempted to pursue a charge against the victim for whatever events took place in the altercation. Sergeant McDaniel's testimony at trial revealed that defendant also filed complaints related to the incident against at least two other men.
In State v. Grady, 47, 622 (La. App 2d Cir. 1/16/13), 108 So. 3d 845, 856, the Second Circuit found that the trial court properly allowed evidence that the defendant was severely beaten by the victim several months prior to the defendant's offense. The court reasoned that the wrongful actor in the earlier incident was apparently the victim from the defendant's current offense. The court noted that this evidence was highly relevant to proof of the defendant's motive to commit his crimes.
From the limited information provided in the record regarding the prior altercation involving the victim and defendant, it appears that the facts from Grady are very similar to the circumstances in the instant case. Like the Second Circuit in Grady, we find in this case that the wrongful actor in the earlier incident was the victim, not defendant. Similarly, we find that the introduction of this evidence was relevant to prove defendant's motive in committing the instant offense. Therefore, we find no error or abuse of discretion by the trial court in allowing the state to introduce Sergeant McDaniel's testimony.
This portion of defendant's assignment of error also lacks merit.
FALSE/PERJURED TESTIMONY
In this pro se assignment of error, defendant asserts that two police officers who testified at his trial gave false or perjured testimony when they testified that defendant gave a confession. Defendant cites another police officer's testimony as support for this contention.
At trial, Lieutenant Phelps testified that defendant made his statement regarding the location of his gun while he was being handcuffed, and after he had been read his Miranda rights, by Officer Paris Smith of the Washington Parish Sheriffs Office. Captain Culpepper testified that he knew defendant made a statement to Lieutenant Phelps. During defendant's case-m-chief, Officer Smith testified that he never saw Lieutenant Phelps at the scene of defendant's arrest and that defendant requested a lawyer after being advised of his Miranda rights.
At the time of defendant's trial, Officer Smith was employed as a police officer for the Department of Veterans Affairs.
During cross-examination, Officer Smith testified that Lieutenant Phelps had attempted to get him fired. He related details of being subject to a departmental investigation, for which he partially blamed Lieutenant Phelps. During the state's rebuttal, Lieutenant Phelps again testified that he had not lied during his earlier testimony and that he indeed was present when Officer Smith read defendant his Miranda rights.
Outside of pointing out this conflicting testimony, defendant cites no specific claims for relief that are supported by the record. With respect to the conflicting testimony itself, the resolution and effect of that testimony was a matter for the jury alone to decide. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a factfinder's determination of guilt. See Houston, 754 So. 2d at 259.
This assignment of error also lacks merit.
UNLAWFUL/ILLEGAL VERDICT
In this pro se assignment of error, defendant contends that the jury's verdict finding him guilty of manslaughter was unlawful or illegal because it did not conform to the evidence presented at trial.
We first note that guilty of manslaughter is a responsive verdict for a defendant indicted for second degree murder. See LSA-C.Cr.P. art. 814(A)(3). Upon motion of the state or the defendant, or on its own motion, the court shall exclude a responsive verdict listed in Paragraph A if, after all the evidence has been submitted, the evidence, viewed in a light most favorable to the state, is not sufficient reasonably to permit a finding of guilty of the responsive offense. LSA-C.Cr.P. art. 814(C).
Following trial, the trial court clearly instructed the jury on the elements of second degree murder and on the elements of its responsive offenses, manslaughter and negligent homicide. Neither the state nor the defense made a motion to exclude any of the responsive verdicts, and the trial court apparently did not see fit to do so either. Therefore, because he did not object to the responsive verdict, defendant is procedurally barred from raising this issue on appeal. See LSA-C.Cr.P. art. 841(A); see also LSA-C.Cr.P. art. 814(C).
To the extent that this pro se argument is sufficient to raise an issue of sufficiency of the evidence relating to the elements of manslaughter, we note that the evidence viewed in the light most favorable to the prosecution could have established that defendant was guilty of the charged offense of second degree murder. To support a conviction for second degree murder, the state was required to show: 1) the killing of a human being; and 2) that the defendant had the specific intent to kill or inflict great bodily harm. See LSA-R.S. 14:30.1(A)(1). Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Delco, 2006-0504 (La. App, 1st Cir. 9/15/06), 943 So. 2d 1143, 1146, writ denied, 2006-2636 (La. 8/15/07), 961 So. 2d 1160. Despite the introduction of evidence which clearly supported a second degree murder conviction, the jury returned a verdict of guilty of manslaughter. We recognize that the jury's manslaughter verdict may have simply reflected a compromise verdict. A compromise verdict is a legislatively approved responsive verdict that jurors, for whatever reason, deem to be fair as long as the evidence is sufficient to sustain a conviction for the charged offense. See State ex rel. Elaire v. Blackburn, 424 So. 2d 246, 251 (La. 1982), cert. denied, 461 U.S. 959, 103 S. Ct. 2432, 77 L. Ed. 2d 1318 (1983). Absent a contemporaneous objection, a defendant cannot complain if the jury returns a legislatively approved responsive verdict, provided that the evidence is sufficient to support the charged offense. See State v. Schrader, 518 So. 2d 1024, 1034 (La. 1988). The evidence presented at trial was sufficient to prove defendant's guilt on the charged offense, and he made no contemporaneous objection to the responsive verdict.
This assignment of error is without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his final pro se assignment of error, defendant argues that the ineffective assistance of his trial counsel "prejudiced [and] biased the outcome of the trial." Specifically, defendant contends that he was "passed around like a musical chair session," and that the lawyers who actually tried his case were not familiar enough with the facts to mount a proper defense.
Defendant represents in his brief that he was represented by at least four different defense attorneys throughout his proceedings. He names attorney Marion B. Farmer as counsel that he retained from approximately October 23, 2008, to sometime in February 2009. After Mr. Farmer, defendant was apparently represented by Pamela Hershey, but he represents that she was taken off of his case. At trial, John Almerico and John Lindner represented defendant. However, defendant asserts that he had only met with Mr. Lindner for less than one hour on one occasion prior to his trial.
Among the deficiencies defendant alleges are: the lack of time Mr. Lindner spent with him; Mr. Lindner's failure to tell the jurors that defendant's face was on the front page of the paper; Mr. Lindner's and Mr. Almerico's failure to subpoena certain witnesses identified by defendant; Mr. Lindner's and Mr. Almerico's failure to raise the issue of perjured testimony during trial; Mr. Almerico's failure to argue the motions submitted at defendant's sentencing; Mr. Lindner's and Mr. Almerico's failure to interview the state's eyewitnesses; and Mr. Lindner's and Mr. Almerico's failure to investigate and prepare a proper defense.
A claim of ineffective assistance of counsel is generally relegated to postconviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192 (La. 9/6/00), 776 So. 2d 396, 411, cert. denied, 531 U.S. 1194, 121 S. Ct. 1196, 149 L. Ed. 2d 111 (2001). However, where the claim is raised as an assignment of error on direct review and where the record on appeal is adequate to resolve the matter, the claims should be addressed in the interest of judicial economy. State v. Calhoun, 96-0786 (La. 5/20/97), 694 So. 2d 909, 914.
All of the deficiencies alleged by defendant in his pro se brief address matters of trial preparation and strategy. The investigation of strategy decisions requires an evidentiary hearing and, therefore, cannot possibly be reviewed on appeal. State v. Allen, 94-1941 (La. App. 1st Cir. 11/9/95), 664 So. 2d 1264, 1271, writ denied, 95-2946 (La. 3/15/96), 669 So 2d 433. Further, under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rest with an accused and his attorney. The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. State v. Folse, 623 So. 2d 59, 71 (La. App. 1st Cir. 1993).
The defendant would have to satisfy the requirements of LSA-C.Cr.P. art. 924, et seq., to receive such a hearing.
Thus, this assignment of error presents nothing for appellate review herein.
CONVICTION AND SENTENCE AFFIRMED.