Opinion
NUMBER 2016 KA 0553
10-31-2016
STATE OF LOUISIANA v. JERRY JUNIOR PINESTRAW
Scott M. Perrilloux, D.A. Patricia Amos, A.D.A. Amite, LA Attorneys for Appellee State of Louisiana Lieu T. Vo Clark Louisiana Appellate Project Mandeville, LA Attorney for Appellant Defendant - Jerry Junior Pinestraw
NOT DESIGNATED FOR PUBLICATION
Appealed from the 21st Judicial District Court In and for the Parish of Livingston, Louisiana
Trial Court Number 31093 Honorable Elizabeth P. Wolfe, Judge Scott M. Perrilloux, D.A.
Patricia Amos, A.D.A.
Amite, LA Attorneys for Appellee
State of Louisiana Lieu T. Vo Clark
Louisiana Appellate Project
Mandeville, LA Attorney for Appellant
Defendant - Jerry Junior Pinestraw BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. WELCH, J.
The defendant, Jerry Junior Pinestraw, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. The defendant pled not guilty. Following a jury trial, he was found guilty as charged. The defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating one assignment of error. We affirm the conviction and sentence.
FACTS
The defendant lived with his girlfriend, Nicole Ozment, and her three young daughters in a trailer in Denham Springs on Chickasaw Avenue. On June 17, 2014, the defendant and Nicole became involved in an argument that turned physical. The defendant severely beat Nicole over much of her body, killing her. During the altercation, the defendant used a piece of metal tubing to strike Nicole.
The defendant left Nicole on the bedroom floor, walked around outside with two of Nicole's daughters, then went to a neighbor's trailer with the two girls. The defendant lied to the neighbor and stated that he had spent the night at his mother's house in Hammond and that when he got home, the back door was kicked open. The defendant asked his neighbor to go with him to his trailer. The neighbor walked back to the defendant's trailer with him, saw Nicole on the floor, and called 911. Nicole's third daughter, who was disabled and confined to a hospital bed, was still in the bedroom with her dead mother when the police arrived. The defendant was taken in for questioning and, after initially lying about what had occurred, admitted that he killed Nicole.
An investigation revealed that the defendant pushed open the back door to make it appear that someone had broken in to their trailer and attacked Nicole. The defendant had also told the girls that if they were questioned to lie and say they were at their grandmother's (the defendant's mother) house. The defendant also took off his bloody clothes and placed them in a plastic trash bag. He also put the metal tubing (two pieces of a single piece of tubing that had broken) in the bag. The defendant then placed the bag underneath an abandoned trailer nearby.
The defendant did not testify at trial.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues the evidence was insufficient to support the conviction of second degree murder. Specifically, the defendant contends that he is guilty of manslaughter because he established that he killed Nicole in sudden passion or heat of blood because he was provoked by her infidelity.
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 also La. 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, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. See La. R.S. 14:30.1(A)(1). Guilty of manslaughter is a proper responsive verdict for a charge of second degree murder. See La. C.Cr.P. art. 814(A)(3). La. R.S. 14:31(A)(1) defines manslaughter as a homicide which would be either first degree murder 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 factfinder finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed. The existence of "sudden passion" and "heat of blood" are not elements of the offense but, rather, are factors in the nature of mitigating circumstances that may reduce the grade of homicide. State v. Maddox, 522 So.2d 579, 582 (La. App. 1st Cir. 1988). Manslaughter requires the presence of specific intent to kill or inflict great bodily harm. See State v. Hilburn, 512 So.2d 497, 504 (La. App. 1st Cir.), writ denied, 515 So.2d 444 (La. 1987).
Specific 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.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, 390. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So.2d 889, 892 (La. App. 1st Cir. 1986).
It is the defendant who must establish by a preponderance of the evidence the mitigating factors of sudden passion or heat of blood to reduce a homicide to manslaughter. See State v. LeBoeuf, 2006-0153 (La. App. 1st Cir. 9/15/06), 943 So.2d 1134, 1138, writ denied, 2006-2621 (La. 8/15/07), 961 So.2d 1158. See also Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977).
The defendant in brief does not deny that he killed Nicole. He instead argues the State did not prove he committed second degree murder because he established Nicole's infidelity as a cause of provocation and heat of passion, so that his crime constituted manslaughter. Yet, the defendant made clear in his recorded confession that while others would believe that he had murdered Nicole because of her infidelities, the fuel for the altercation the night of Nicole's death was not the issue of infidelity. In fact, numerous times throughout the interview, the defendant told the detectives that Nicole was the best thing that had ever happened to him; and she had just recently come and gotten him out of jail (approximately two weeks prior to Nicole's death). Regarding what prompted the argument that led to Nicole's death, the defendant was vague throughout the interview. The defendant told the detectives, repeatedly, that he and Nicole fought often and that, during this last fight, he took things too far. The defendant told the detectives that during the fight, Nicole picked up things like sticks or pipes and swung them at him. The defendant would then take from Nicole whatever object she had in her hand and beat her with it.
The testimony adduced at trial established that the defendant severely physically beat Nicole over much of her body, thus, supporting a finding that he intended to kill her. He attacked her with his hands (and possibly his feet) and metal tubing. Dr. Cynthia Gardner, a forensic pathologist who performed the autopsy on Nicole, testified about the extensive external and internal injuries suffered by Nicole. Regarding the external injuries, Dr. Gardner stated Nicole had bruises and lacerations on her forehead and face. She had bruises on her chest and abdomen, bruises and scratches on both her arms, a cut on the back of her right hand, and bruises on her thighs, sides, and shins. Except for a brown bruise on Nicole's torso, all of the other bruises were red or purple, which indicated more recent injuries. Three of Nicole's fingernails were torn; Dr. Gardner noted specifically that part of her right thumbnail had been torn off, and the fingernail on the third finger of her right hand had been torn off.
Regarding internal injuries, Dr. Gardner testified that she found deep tissue hemorrhage of Nicole's entire scalp. Dr. Gardner also found maceration inside Nicole's head. The doctor explained that this meant that the fat inside the front and top portions of Nicole's head had been liquefied. The doctor found extensive bleeding into the soft tissue of Nicole's arms and legs. Dr. Gardner noted that the fat in the dorsal parts of Nicole's arms, and in her shins, was liquefied just as it was in her skull. The doctor explained that maceration can result from a single blow of great force or repetitive blows of force. When asked what type of blows might have caused the extensive subcutaneous hemorrhaging in Nicole's head, Dr. Gardner explained that one blow would cause a hemorrhage into a focal area, but what she observed in her examination was "consistent with numerous blows, more than I can count, because the hemorrhage overlaps." Nicole also had fractured nasal bones.
Dr. Gardner noted that Nicole also had cerebral edema (brain swelling) and fat embolism syndrome. Dr. Gardner had detected fat globules in the blood vessels of Nicole's lungs. The doctor noted that such globules were not supposed to be in the lungs, but they were in Nicole's lungs because of her extensive soft tissue injuries. She explained that the injuries to Nicole's soft tissue caused blood vessels to break and that fat (which became dislodged) got into her bloodstream and traveled to her lungs, and possibly her brain, which interfered with her ability to breathe. According to Dr. Gardner, the cause of death of Nicole was fat embolism syndrome and the extensive loss of blood.
As discussed above, the evidence overwhelmingly established that the defendant had the intent to kill Nicole, given the prolonged physical beating she underwent by the defendant's hand. Further, it appears the killing was also done in the absence of the mitigating factors of sudden passion or heat of blood. Even if Nicole had said something to the defendant that caused him to react or to become angry, the defendant would still be guilty of second degree murder. Mere words or gestures, no matter how insulting, will not reduce a homicide from murder to manslaughter. State v. Mitchell, 39,202 (La. App. 2nd Cir. 12/15/04), 889 So.2d 1257, 1263, writ denied, 2005-0132 (La. 4/29/05), 901 So.2d 1063. See State v. Charles, 2000-1611 (La. App. 3rd Cir. 5/9/01), 787 So.2d 516, 519, writ denied, 2001-1554 (La. 4/19/02), 813 So.2d 420 (an argument alone is not sufficient provocation to reduce murder charge to manslaughter). See also State v. Tran, 98-2812 (La. App. 1st Cir. 11/5/99), 743 So.2d 1275, 1292, writ denied, 99-3380 (La. 5/26/00), 762 So.2d 1101; State v. Hamilton, 99-523 (La. App. 3rd Cir. 11/3/99), 747 So.2d 164, 169; State v. Thorne, 93-859 (La. App. 5th Cir. 2/23/94), 633 So.2d 773, 777-78; State v. Quinn, 526 So.2d 322, 323-24 (La. App. 4th Cir. 1988), writ denied, 538 So.2d 586 (La. 1989).
The extent to which the defendant was provoked (if at all) by Nicole, and whether the defendant had calmed down, or should have calmed down, before he beat her to death, was for the factfinder to resolve. Provocation and time for cooling are questions for the jury to be determined under the standard of the average or ordinary person, one with ordinary self-control. State v. Allen, 41,548 (La. App. 2nd Cir. 11/15/06), 942 So.2d 1244, 1251, writ denied, 2007-0530 (La. 12/07/07), 969 So.2d 619. "If a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act." See Reporter's Comment to La. R.S. 14:31. State v. Leger, 2005-0011 (La. 7/10/06), 936 So.2d 108, 171-72 (La. 2006), cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).
The defendant's sole argument in brief for why his killing of Nicole constituted manslaughter was that he was provoked by her infidelity. However, given the defendant's statements that he had already known about the alleged infidelity and that the instant argument had nothing to do with infidelity (and clearly had nothing to do with Nicole having been caught cheating "in the act" the day she was killed), whatever provocation there may have been at the outset of the altercation, the defendant has not shown how the killing of Nicole was caused by any immediate provocation by Nicole. See La. R.S. 14:30.1; State v. Richardson, 2008-2086 (La. App. 1st Cir. 3/27/09), 2009 WL 839519 (unpublished), writ denied, 2009-1109 (La. 1/8/10), 24 So.3d 861.
After killing Nicole, the defendant left the scene. He did not call for help. He did not call 911 or for an ambulance. Instead the defendant left a battered Nicole on the bedroom floor and went to a neighbor's trailer and concocted a fabrication about someone breaking into the trailer. Further, the defendant removed incriminating evidence (clothes and metal tubing) from the scene and hid it. The defendant told Nicole's daughters to lie for him, and the defendant initially lied to the detectives who interviewed him in order to deflect guilt from himself. A finding of purposeful misrepresentation reasonably raises the inference of a "guilty mind," as in the case of flight following an offense or the case of material misrepresentation of facts by the defendant following an offense. See State v. Davenport, 445 So.2d 1190, 1196 (La. 1984). Lying has been recognized as indicative of an awareness of wrongdoing. See State v. Rault, 445 So.2d 1203, 1212-14 (La. 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 225, 83 L.Ed.2d 154 (1984).
The defendant in this case, as noted, did not testify. The jury was presented with the theory by the defense that the defendant was provoked by Nicole to the extent to where he lost his self-control and cool reflection and beat her to death. In finding the defendant guilty of second degree murder, it is clear the jury rejected the claim that there were mitigating factors of sudden passion or heat of blood at the time of the killing. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of mitigation presented by the defense, that hypothesis fails, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). While it was not clear what prompted the altercation, the guilty verdict indicates the jury concluded either: (1) the argument and/or scuffle was not sufficient provocation to deprive an average person of his self-control and cool reflection; or (2) that an average person's blood would have cooled before the defendant beat his victim to death. See Maddox, 522 So.2d at 582.
The jury heard all of the testimony and viewed all of the evidence presented to it at trial and found the defendant guilty as charged. 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's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). Having called no witnesses to testify on his behalf, the defendant failed to establish by a preponderance of the evidence the mitigating factors of sudden passion or heat of blood. The guilty verdict in this case indicates the jury concluded this was a case of second degree murder and rejected the possibility of a manslaughter verdict. See State v. Ducre, 596 So.2d 1372, 1382-84 (La. App. 1st Cir.), writ denied, 600 So.2d 637 (La. 1992).
After a thorough review of the record, we find that the evidence supports the guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of second degree murder, and that the mitigatory factors of manslaughter were not established by a preponderance of the evidence. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam); Ducre, 596 So.2d at 1384.
The assignment of error is without merit.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.