Opinion
2015 KA 0006
09-18-2015
STATE OF LOUISIANA v. BRANDON SEALS
Hillar C. Moore, III Monisa L. Thompson Baton Rouge, LA Counsel for Appellee, State of Louisiana Frederick Kroenke Baton Rouge, LA Counsel for Defendant/Appellant, Brandon Seals
NOT DESIGNATED FOR PUBLICATION Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, State of Louisiana
Trial Court Number 07-11-0855
Honorable Richard D. Anderson, Judge Presiding
Hillar C. Moore, III
Monisa L. Thompson
Baton Rouge, LA
Counsel for Appellee,
State of Louisiana
Frederick Kroenke
Baton Rouge, LA
Counsel for Defendant/Appellant,
Brandon Seals
BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WHIPPLE, C.J.
The defendant, Brandon Seals, was charged by grand jury indictment with second degree murder (count 1), a violation of LSA-R.S. 14:30.1; armed robbery (count 2), a violation of LSA-R.S. 14:64; attempted second degree murder (count 3), a violation of LSA-R.S. 14:30.1 and 14:27; and attempted armed robbery (count 4), a violation of LSA-R.S. 14:64 and 14:27. The defendant pled not guilty and, following a jury trial, was found guilty as charged on all counts. For the conviction for second degree murder, the defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; for the conviction for armed robbery, the defendant was sentenced to ninety-nine years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; for the conviction for attempted second degree murder, the defendant was sentenced to fifty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; and for the conviction for attempted armed robbery, the defendant was sentenced to forty-nine and one-half years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently. The defendant now appeals, designating one assignment of error. We affirm the defendant's convictions and sentences.
FACTS
On the evening of December 23, 2010, Otis Taylor and his friend, Brandon Blunt, were driving around in Taylor's car in Baton Rouge. After Taylor had spoken with someone several times on his iPhone, an agreement apparently was reached that Taylor was going to buy some iPhones from the person on the phone.
Blunt is incorrectly referenced in the record as a juvenile. Blunt testified at trial that he was thirty-two years old; thus, at the time of the incident, he was in his late twenties. Blunt also testified at trial that Taylor was one of his best friends and was thirty-one years old at the time of the incident; however, Taylor's autopsy report indicated he was twenty-five years old.
Taylor drove to the gas station on the corner of 75th Street and Scenic Hwy. and met a friend, who gave Taylor several hundred dollars to purchase the iPhones. Taylor then drove down 75th Street to a house, where two males were standing in the front yard. They did not live at the house, but nonetheless told Taylor to pull into the driveway, which he did. Taylor got out, but Blunt remained in the car in the front passenger seat, with his window rolled down.
The two males in the yard pulled out guns. According to Blunt, one of them, whom Blunt later identified as the defendant, had a black semi-automatic handgun. The defendant's accomplice, who was never identified, had what Blunt described as a silver revolver. The defendant approached Blunt, put his gun to Blunt's head, and patted him down, asking Blunt what he had on him. When the defendant found nothing on Blunt, he returned to Taylor and took Taylor's iPhone from him. As Taylor began walking back to his car, Blunt heard Taylor tell the defendant that he knew him. Blunt then said something about the "Click Tight" boys. The defendant told Taylor that he did not know the defendant. Blunt then heard gunshots. Taylor was hit twice and fell to the ground, but Blunt did not see which of the two perpetrators shot Taylor. Taylor was shot in the right shoulder and right side of his chest and died before emergency personnel arrived. After the shooting, Blunt got out of the car and ran to a nearby house, and asked the person there to call 911. The defendant and his accomplice ran down the street. Shortly thereafter, Blunt saw a silver or dark car speeding away.
Ten cartridge cases, all fired from the same gun, were found at the scene. One bullet had gone through the back windshield of Taylor's car, and another bullet had gone through the wall of the house in whose yard they were standing. Both bullets were recovered. A spent bullet was also recovered from Taylor's shirt when he was moved. The gun used to kill Taylor was determined to be a Glock Model 21 .45 caliber pistol. About six weeks later, a Glock Model 21 .45 caliber pistol was recovered from Reginald Steve Taylor at a house on N. 18th Street in Baton Rouge. The defendant was friends with Reginald Steve Taylor, who was associated with the "Click Tights," a local music group.
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 three of the convictions. Specifically, the defendant contends the State did not prove that he fired a weapon at anyone and did not prove that he had the intent to commit the armed robbery of Taylor. Thus, he contends there was insufficient evidence for the convictions of second degree murder, armed robbery, and attempted second degree murder. The defendant seemingly does not challenge the conviction for the attempted armed robbery of Blunt, as he states in his brief that the "only crime which appears to have been proven as to [the defendant] is the attempted armed robbery of Mr. Blunt."
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, 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 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. Furthermore, 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. See State v. Hughes, 2005-0992 (La. 11/29/06), 943 So. 2d 1047, 1051; State v. Davis, 2001-3033 (La. App. 1st Cir. 6/21/02), 822 So. 2d 161, 163-64.
Armed robbery is the taking of anything of value 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. LSA-R.S. 14:64(A).
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 LSA-R.S. 14:30.1(A)(1). 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. LSA-R.S. 14:27(A).
In order for an accused to be guilty of attempted murder, a specific intent to kill must be proven beyond a reasonable doubt. Although a specific intent to inflict great bodily harm may support a conviction of murder, the specific intent to inflict great bodily harm will not support a conviction of attempted murder. State in Interest of Hickerson, 411 So. 2d 585, 587 (La. App. 1st Cir.), writ denied, 413 So. 2d 508 (La. 1982). See State v. Butler, 322 So. 2d 189, 193 (La. 1975).
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. LSA-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).
In his brief, the defendant concedes that there was evidence that he was present at the scene and that he was in possession of a black gun. The defendant contends, however, that the only crime that "appears to have been proven as to [the defendant] is the attempted armed robbery" of Blunt. The thrust of the defendant's argument is that there is no substantive evidence that he fired a weapon at anyone. Accordingly, the defendant infers that his unknown accomplice, not the defendant, fired the weapon that killed Mr. Taylor. As such, the defendant contends, if he did not fire a weapon, he could not have killed or robbed Taylor, and he could not have attempted to kill Blunt. The defendant further suggests in his brief that if he did have possession of the black Glock handgun, "it is as much possible that [he] only fired into the air to frighten Mr. Taylor and Mr. Blunt and never intended to kill or rob anyone."
The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So. 2d 467, 469 (La. App. 1st Cir. 1987), writ denied, 519 So. 2d 113 (La. 1988). Blunt testified that after Taylor pulled into the driveway, Taylor got out the car to talk to the defendant and the other perpetrator. Blunt stayed in the car. Blunt identified the defendant at trial as the person who then approached him and put a gun to his head. According to Blunt, the defendant had a black semi-automatic handgun, while the other perpetrator, who stayed by Taylor, had a silver "I think, revolver." The defendant asked Blunt what he had on his person and then patted him down and checked his pockets. Finding nothing on Blunt, the defendant walked back to Taylor and took Taylor's iPhone from him. As Taylor began to walk back toward his car, a gunshot rang out. Blunt ducked down, then got out of the car and ran. He stopped for a moment, turned around, and saw Taylor fall to the ground. When Blunt turned to run again, he heard more gunshots. Blunt was not able to see who was firing the gun. Yolander Seals, the defendant's mother, testified that the defendant told her that although he was at the scene, he was not the shooter.
Based on the foregoing, a juror could have reasonably concluded that the defendant robbed and shot and killed Taylor. The defendant clearly committed armed robbery of Taylor when he approached Taylor at gunpoint and forced him to relinquish possession of his iPhone. Taylor kept his phone on a clip attached to his side. According to Blunt, when Taylor told the defendant, "Not my phone, not my phone," the defendant said, "Yeah, man, your phone," and "jerked" the phone off of him.
Forensic evidence established that the ten cartridge cases found at the scene were all fired from the same black .45 caliber Glock handgun. According to Charles Watson, Jr., an expert in firearm examination and identification, each of the bullets fired into the house, the car, and Taylor were .45 bullets very likely fired from a .45 caliber Glock; however, unlike the cartridge cases that came from the same gun, Watson could not determine if the three bullets were fired from that same gun. Watson did conclude, however, that none of these bullets could have been fired from a revolver. Also, according to Watson, the Glock used at the scene had an eleven or twelve-round magazine capacity. Detectives at the scene found a gun holster on the ground, apparently dropped by one of the perpetrators. The holster was identified as a size 2, Uncle Mike's Sidekick Holster, which is made for revolvers.
Taylor was shot twice from a short distance, and the defendant was the only person identified as having a black semi-automatic handgun (which Blunt thought might have been a 9 mm). Deliberately pointing and firing a deadly weapon at close range are circumstances which will support a finding of specific intent to kill. See State v. Robinson, 2002-1869 (La. 4/14/04), 874 So. 2d 66, 74, cert. denied, 543 U.S. 1023, 125 S. Ct. 658, 160 L. Ed. 2d 499 (2004). Accordingly, a juror could have reasonably concluded that the defendant had the specific intent to kill Taylor when he shot him twice and killed him. See LSA-R.S. 14:30.1(A)(1).
Moreover, even if the defendant's accomplice shot Taylor, under principles of accessorial liability, the defendant would have still been guilty of the second degree murder of Taylor. The parties to crimes are classified as principals and accessories after the fact. LSA-R.S. 14:23. Principals are all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime. LSA-R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals. An individual may be convicted as a principal only for those crimes for which he personally has the requisite mental state. See State v. Pierre, 93-0893 (La. 2/3/94), 631 So. 2d 427, 428 (per curiam). The State may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. State v. Arnold, 2007-0362 (La. App. 1st Cir. 9/19/07), 970 So. 2d 1067, 1072, writ denied, 2007-2088 (La. 3/7/08), 977 So. 2d 904. Thus, a general principle of accessorial liability is that when two or more persons embark on a concerted course of action, each person becomes responsible for not only his own acts, but also for the acts of the other. State v. Smith, 2007-2028 (La. 10/20/09), 23 So. 3d 291, 296-98 (per curiam). See State v. Wiley, 2003-884 (La. App. 5th Cir. 4/27/04), 880 So. 2d 854, 862-66, 869, writ denied, 2004-1298 (La. 10/29/04), 885 So. 2d 585 (where the defendant's co-defendant shot and killed the victim during an armed robbery, the court found that under the principle of assessorial liability, it was reasonable to conclude the defendant was guilty of murder since the risk that unauthorized entry of an inhabited dwelling may escalate into violence and death is clearly a foreseeable consequence which every party to the offense must accept no matter the intent).
Similarly, based on the foregoing, although the evidence strongly suggests the defendant was the person who fired the gun, the defendant was responsible for the attempted second degree murder of Blunt whether he fired his weapon or not, under the principal of accessorial liability. According to Blunt, the person with the gun kept firing after Taylor fell. Detective Scott Blake, with the Baton Rouge Police Department, testified that he spoke to Blunt the same night of the shooting, and that Blunt told him that he and Taylor had gone to buy iPhones and that some subjects "had robbed them and shot at them." Evidence established that the ten cartridge cases were spread out from the driveway to some distance down the street. Thus, the evidence shows that the defendant (or his accomplice) walked down the street shooting at Blunt as Blunt was running away. As indicated by the bullet through the back windshield of Taylor's car and the bullet that went through the wall of the house the defendant was standing in front of, it can be reasonably inferred that these shots from the Glock were aimed low and level rather than in the air as mere warning shots.
Regarding all four convictions, the jury heard the testimony and viewed the physical evidence presented to it at trial and found the defendant guilty on all counts. 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 re weigh 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. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So. 2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S. Ct. 182, 163 L. Ed. 2d 187 (2005). 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).
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 which raises a reasonable doubt. See State v. Moten, 510 So. 2d 55, 61 (La. App. 1st Cir. 1987), writ denied, 514 So. 2d 126 (La. 1987). The jury's verdicts reflect the reasonable conclusion that the defendant, armed with a black .45 caliber Glock semi-automatic pistol, attempted to rob Blunt; the only reason the armed robbery was not completed was because Blunt had nothing of value on his person. The defendant then robbed Taylor at gunpoint by taking his cellphone from him. Moments later, the defendant shot and killed Taylor and tried to shoot and kill Blunt, but failed. The defendant did not testify and presented no rebuttal testimony. See Moten, 510 So. 2d at 61-62. In finding the defendant guilty, the jury clearly rejected the defense theory of misidentification and/or that he lacked the specific intent to commit the armed robbery and second degree murder of Taylor and the attempted second degree murder of Blunt.
After a thorough review of the record, we find that the evidence negates any reasonable probability of misidentification and supports the jury's unanimous guilty verdicts on all four counts. 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 the armed robbery and second degree murder of Otis Taylor and the attempted armed robbery and attempted second murder of Brandon Blunt. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So. 3d 417, 422 (per curiam).
The assignment of error is without merit.
CONVICTIONS AND SENTENCES AFFIRMED.