Opinion
No. 2009 KA 0720.
October 27, 2009.
ON APPEAL FROM THE 20TH JUDICIAL DISTRICT COURT PARISH OF EAST FELICIANA, STATE OF LOUISIANA SUIT NUMBER: 07-CR-481; DIVISION B THE HONORABLE WILLIAM G. CARMICHAEL, JUDGE PRESIDING.
Samuel D'Aquilla, District Attorney, Clinton, LA, Counsel for Appellee, State of Louisiana.
Kathryn Jones, Assistant District Attorney, Clinton, LA, Benn Hamilton, Baton Rouge, LA, Counsel for Appellant, Peter Webb, Jr.
BEFORE: DOWNING, GAIDRY AND McCLENDON, JJ.
The defendant, Peter Webb, Jr., was indicted with one count of second degree murder, a violation of La.R.S. 14:30.1. He pleaded not guilty. Following a jury trial, he was found guilty as charged. He moved to vacate the verdict, for a new trial, and for a post-verdict judgment of acquittal, but the motions were denied. He was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals, designating the following assignments of error:
1. The jury verdict is contrary to the law and the evidence.
2. The jury verdict is not supported by sufficient evidence to find the defendant guilty of second degree murder.
3. The trial court committed an error of law by not granting the defendant's motion for a post-verdict judgment of acquittal.
4. The trial court committed an error of law by not granting the defendant's motion to vacate the jury verdict and for a new trial.
5. The trial court committed an error of law when it excluded the testimony of Dr. Terry LeBourgeois.
6. The prosecution committed intentional acts of prosecutorial misconduct thereby depriving the defendant of a fair trial.
For the following reasons, we affirm the conviction and sentence.
FACTS
On May 16, 2007, the defendant shot the victim, Marcus Parker a/k/a Markeith Parker a/k/a Markeith Stinson, three times with a "45", killing him. The victim was shot in the back and the side. The shooting occurred on La. Highway 19 in Wilson, Louisiana. At the time of the shooting, the victim's vehicle was stopped in its lane, in between the defendant's mother's (Cassandra Webb's) vehicle, the defendant's vehicle, and the defendant's father's (Peter Webb, Sr.'s) vehicle. The defendant and his parents left the scene after the shooting, but returned while the police were still at the scene. The defendant's gun, a six-shot "45" revolver, was recovered containing only four spent rounds from woods behind the defendant's home. The victim's gun, a 9mm, was not recovered at the scene, but was later recovered with a full eight-round magazine and an empty chamber. No shell casings were recovered.
We reference the vehicle driven by the victim as the "victim's vehicle" only to distinguish it from the other vehicles present at the scene. Marcus Scott testified that the victim was driving his girlfriend Addison's car.
Marcus Scott, a passenger in the victim's vehicle at the time of the shooting, said he and the victim had ridden by Cassandra's house approximately two minutes before the shooting. He denied that he or the victim had held a gun out of the car's window as they passed the house. Scott indicated that the victim was forced to stop his vehicle in the lane because Cassandra passed them and stopped in front of them. The defendant then parked behind them, with the defendant's father's vehicle behind the defendant's vehicle. Cassandra was the first one to exit her car. She was "mad," approached the victim, and loudly spoke to him while he remained sitting in his car. He had a 9mm handgun in his lap. According to Scott, the victim exited his vehicle with the 9mm handgun, but placed it in his waistband without ever pointing it at Cassandra. "Loud talking" ensued between Cassandra and the victim. Thereafter, the defendant approached the victim from behind, the victim turned around, and the defendant shot him more than three times. Scott did not see the victim discharge his gun during the incident. When asked if the victim had enough room to reverse his vehicle and leave after the defendant parked behind him, Scott initially replied, "Not really." He later stated that the victim "probably had a little space that he could've squeezed out[.]" According to Scott, the Wilson grocery store was not visible from the scene.
Karen Denise Hopkins testified that she saw the defendant shoot the victim. She was driving down La. Highway 19 and saw the defendant and the victim facing each other. She saw the defendant with a gun "up over his head." She did not see the victim with a gun. She indicated that the cars were bumper-to-bumper, and the victim's vehicle did not have enough room to drive around Cassandra's vehicle.
Cassandra Webb indicated that on the day of the shooting, she told the defendant to assist her and his father in salvaging items from her son's, (Demarcus), home. After the defendant left, Cassandra and Angelica Whitfield went out to the front porch of Cassandra's home. While the women were outside, the victim and Scott drove by, playing loud music. According to Cassandra, the victim pointed a black handgun in her direction and the direction of her house. Cassandra claimed she became worried about the safety of the defendant, and left for Demarcus's house, taking Whitfield with her. Cassandra claimed on her way to Demarcus's house, the victim's vehicle appeared behind her, and so she pulled over to the side of the road to talk to him about the incident with the hand gun. She explained the victim was not a stranger to her and had eaten as a guest at her house before. She claimed that after she pulled her vehicle over, the victim stopped in the middle of the road. She claimed the victim met her as she was exiting her vehicle.
According to Cassandra, the victim put a black handgun to her chest and stated, "y'all went around saying this and saying blah, blah, blah, blah, and that." Cassandra claimed she told the victim that she was for "peace and not war". Cassandra claimed that the defendant then arrived and stated, "What's going on?" She claimed that the victim stopped pointing the gun at her, and approached the defendant with the gun. She claimed she began running and heard shots. She claimed she looked back and saw the victim and the defendant with guns. She claimed she had no idea that the defendant was armed with a gun and denied planning to ambush the victim with the defendant. She also denied forcing the victim to stop by blocking the road. She claimed that, following the shooting, a crowd gathered and threatened the defendant, so she told him to leave. She claimed she then left to "get the police," and went to Ravencraft's house.
East Feliciana Parish Sheriff's Office part-time Reserve Deputy Jewell A. Ravencraft testified that Cassandra stopped at his residence on the day of the shooting after he had been notified of a shooting in Wilson. She told him that the victim and the defendant were "arguing and fighting." Deputy Ravencraft told Cassandra to go to the town hall in Wilson and someone would take care of her there.
Angelica Whitfield was a passenger in Cassandra's vehicle at the time of the shooting. She indicated she was the defendant's girlfriend. According to Whitfield, Cassandra pulled over on the shoulder in front of the victim's vehicle and was always in front of him. She claimed that the victim and Scott had driven by Cassandra's house approximately five minutes before the shooting, and the victim had waved a black handgun out of the window. According to Whitfield, prior to the shooting, the victim told Cassandra, "Yeah, I heard y'all's side burnt down. Look, Hoss, I heard this, and I heard that[;]" and Cassandra replied, "I'm, I'm for peace." Whitfield claimed the victim pointed a gun at Cassandra's chest during their conversation. Whitfield claimed that the defendant arrived while the victim and Cassandra were talking, and asked what was going on. She claimed the victim then approached the defendant, and she saw fire come from the victim's gun and heard shots.
At trial, Mr. Webb claimed he did not remember anything about the incident. He denied that he, Cassandra, and the defendant planned to do anything to the victim. The State played his recorded statement given on the day of the shooting. In the statement, he claimed the victim had threatened Cassandra with a gun after she tried to explain to him "not to be coming through there, raising his gun up, and acting the fool." Mr. Webb claimed that the defendant then drove up, and the victim "got nervous." Mr. claimed that the victim's gun fired as he moved it in the direction of the defendant, and the defendant returned fire. Mr. also claimed that Cassandra had initially stopped in front of the defendant because another vehicle (not the defendant's vehicle and not his vehicle) stopped in front of her. In a second statement to the police, Mr. indicated he surrendered two guns, including the victim's gun, to the police after the defendant put them in his backyard.
Ronald Weatherspoon was a passenger in Mr. Webb's vehicle at the time of the shooting. He claimed the victim was already on the ground when Mr. Webb drove up. He claimed there were only four cars at the scene.
East Feliciana Parish Sheriff's Office Deputy James Haynes, Sr., indicated that Wilson Grocery Store was visible from the crime scene. East Feliciana Parish Sheriff's Office Sgt. Kevin Garig, however, indicated it would be "very difficult" to see the store from the scene. Sgt. Garig indicated that while he was on the scene, he was unable to see a fight which occurred at the grocery store.
Janie Underwood worked at Wilson Grocery Store on the day of the shooting. She indicated the defendant came into the store that day, but she did not remember the time that he had come into the store. She claimed she heard a gunshot after the defendant left the store.
In a recorded statement given on the day of the shooting, the defendant claimed that after he finished work and went home on the day of the shooting, Cassandra asked him to help his father and "spoon" move some materials out of his brother's house that had burned. The defendant claimed that he had been driving behind the victim, with Cassandra driving behind him, and Mr. and "spoon" driving behind her, when the victim suddenly stopped his vehicle in the lane. He and Cassandra exited their vehicles, and the victim exited his vehicle with a gun. The victim pointed his gun at Cassandra's face and then pointed it at the defendant. The defendant claimed he "grabbed" the gun and then shot the victim with his own gun that he just happened to be carrying because he was able to take away the victim's gun. The defendant claimed the victim had no chance to get off a shot. He explained the victim was carrying a gun because he was "scared" since he, Marcus Scott, Darnell Scott, and Jeremy Thomas had been involved with the burning of the defendant's brother's house.
At trial, the defendant gave a different account of the shooting. He again claimed that after he came home from work on the day of the shooting, Cassandra asked him to help his father and "spoon" get some materials from the "house." He then claimed he went to his grandmother's house down the street, spent five minutes talking to her, and then went to Wilson Grocery to get something to eat. He claimed when he exited the store, he saw the victim holding a gun on Cassandra down the street. The defendant claimed he quickly drove down the street and exited and stood in front of his vehicle. The defendant claimed the victim then "took the gun off of Cassandra and started to walk toward the defendant, pointing his gun at the defendant's chest. The defendant claimed he "swung" at the gun, and then fired with his own weapon. The defendant claimed he then took the victim's weapon from him, to prevent Marcus Scott from getting the weapon, and went home. The defendant claimed he had no idea whether or not the victim fired his weapon. He denied that he and Cassandra discussed "doing something" to the victim on the day of the shooting. He claimed her vehicle was on the side of the road and that he did not block in the victim's car. He claimed Mr. Webb did not arrive on the scene until after the shooting. The defendant conceded that his statement to the police on the day of the shooting did not get him "out of trouble," and that he was saying something else at trial "in hopes that it [would] get [him] out of trouble."
SUFFICIENCY OF THE EVIDENCE
The defendant combines assignments of error numbers 1 and 2. He argues his account of the incident was "uncontroverted by the evidence." He argues Whitfield testified she saw the ball of fire from the victim's gun, Cassandra testified that the victim aimed his gun at the defendant and advanced on him, and Scott conceded that the victim was not blocked in, and exited his vehicle armed with a gun. He argues that Hopkins's testimony was unworthy of belief because her description of the shooting was inconsistent with the wounds received by the victim, and her testimony concerning the victim being blocked in by Cassandra and him was inconsistent with Underwood's testimony that he was inside Wilson Grocery Store when Cassandra and the victim stopped their vehicles. In assignment of error number 3, the defendant argues that the trial court erred in failing to grant a post-verdict judgment acquittal because the State produced no evidence to refute or negate the claim of self-defense.
The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove, in order to convict," every reasonable hypothesis of innocence is excluded. State v. Wright, 98-0601, p. 2 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486.
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. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at p. 3, 730 So.2d at 487.
SECOND DEGREE MURDER
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. La.R.S. 14:30.1(A)(1). 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.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Henderson, 99-1945, p. 3 (La. App. 1st Cir. 6/23/00), 762 So.2d 747, 751.
In State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, the La. Supreme Court set forth the following precepts for appellate review of circumstantial evidence in connection with review of the sufficiency of the evidence:
On appeal, the reviewing court "does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events." Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.
The jury is the ultimate factfinder of "whether a defendant proved his condition and whether the state negated that defense." The reviewing court "must not impinge on the jury's factfinding prerogative in a criminal case except to the extent necessary to guarantee constitutional due process."
Mitchell, 99-3342 at p. 7, 772 So.2d at 83 (citations omitted).
Further, the Mitchell court cautioned:
"The actual trier of fact's rational credibility calls, evidence weighing, and inference drawing are preserved . . . by the admonition that the sufficiency inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt." The reviewing court is not called upon to determine whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. Rather, the court must assure that the jurors did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt. The reviewing court cannot substitute its idea of what the verdict should be for that of the jury. Finally, the "appellate court is constitutionally precluded from acting as a 'thirteenth juror' in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact."
Mitchell, 99-3342 at p. 8, 772 So.2d at 83 (citations omitted).
An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses 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, 2007-2306, pp. 1-2 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
SELF-DEFENSE AND THE AGGRESSOR DOCTRINE
When a defendant charged with a homicide claims self-defense, the State has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Rosiere, 488 So.2d 965,968 (La. 1986).
La.R.S. 14:20, provided in pertinent part:
(A). A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
However, La.R.S. 14:21 provides:
A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.
The relevant inquiry on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense. Rosiere, 488 So.2d at 968-69; State v. Wilson, 613 So.2d 234, 238 (La. App. 1st Cir. 1992).
After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant's identity as the perpetrator of that offense against the victim. In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207, p. 14 (La. 11/29/06), 946 So.2d 654, 662.
Contrary to the defendant's argument, his account of the incident was not "uncontroverted by the evidence." Scott and Hopkins both witnessed the shooting and gave a very different account of the incident than the defendant. The defendant's claim that the victim fired his weapon was also contradicted by the full magazine recovered with the victim's weapon and by the absence of any shell casings at the scene. The defendant's mother and his girlfriend testified in support of his self-defense theory, but the verdict rendered against the defendant indicates the jury accepted the testimony offered against the defendant and rejected the testimony offered in his favor. As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 99-0385, p. 9 (La. App. 1st Cir. 11/5/99), 745 So.2d 217, 223.
On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Glynn, 94-0332, p. 32 (La. App. 1st Cir. 4/7/95), 653 So.2d 1288, 1310. The defendant's claim that Hopkins's testimony should have been disbelieved because she indicated that he was standing over the victim when he shot the victim, mischaracterizes the record. Hopkins testified that the defendant shot the victim while they were both standing up, but that after shooting the victim, the defendant "was still standing there."
Further, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find that the evidence presented by the State established that the defendant was the aggressor in the conflict and, thus, was not entitled to claim self-defense. Moreover, even if it could be found that the defendant was not the aggressor, any rational trier of fact could find, beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant did not act in self-defense. Testimony at trial indicated that the defendant repeatedly shot the victim after Cassandra forced him to stop, and the defendant blocked him in on Highway 19. The defendant then fled from the scene with the victim's weapon and his own weapon, and attempted to dispose of the weapons. The defendant's flight from the scene after the incident was inconsistent with a theory of justifiable homicide. See State v. Wallace, 612 So.2d 183, 191 (La. App. 1st Cir. 1992).
Additionally, the verdict rendered against the defendant indicates that the jury rejected the defense theory that the victim, rather than the defendant, was the aggressor in this case. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984). No such hypothesis exists in the instant case.
These assignments of error are without merit.
MOTION TO VACATE JURY VERDICT
In his fourth assignment of error, defendant argues the trial court erred in denying his motion to vacate the jury verdict and grant a new trial due to juror misconduct.
La. Code Evid. art. 606(B), in pertinent part, provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury's attention.
The prohibition in La. Code Evid. art. 606(B) is intended to preserve the finality of jury verdicts and the confidentiality of discussions among jurors. However, the jurisprudence has established the prohibition against juror testimony is not absolute and must yield to a substantial showing that the defendant was deprived of his constitutional rights. Well-pleaded allegations of prejudicial juror misconduct violating a defendant's constitutional rights will require an evidentiary hearing at which jurors shall testify. State v. Smith, 2006-0820, pp. 22-23 (La. App. 1st Cir. 12/28/06), 952 So.2d 1,15, writ denied, 2007-0211 (La. 9/28/07), 964 So.2d 352.
The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. The court, on motion of the defendant, shall grant a new trial whenever the defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment. La. Code Crim. P. art. 851(4).
Approximately three weeks after the return of the verdict, the defense moved to vacate the verdict and for a new trial. The motion alleged that a juror had contacted defense counsel on the day of the verdict and informed him that "certain misconduct" may have occurred during deliberations, and that two jurors had not answered certain questions truthfully during voir dire.
The defense called juror Linda Moriarty to testify at the hearing on the motion. She indicated she contacted defense counsel because she was concerned about "a couple of things that were said in the jury room[.]" She indicated that juror Nanci Gayle had divulged that she had a child that was deceased due to a criminal act. Moriarty also indicated that juror Marcia Taylor divulged that two members of her family were in law enforcement.
The defense also called juror Nanci Gayle to testify. She indicated she had thoroughly and folly answered questions posed to her by the State and defense at voir dire, including whether or not she had been the victim of a crime. She indicated that thirty-one years earlier, her thirteen-month old child had died after being run over. Gayle indicated that, "It was not a criminal thing. It was a total accident." She also indicated that no criminal charges were filed as a result of the incident.
The defense also called juror Marcia Taylor to testify. She indicated she had a daughter-in-law who was a dispatcher and a son-in-law who was a deputy in another parish. The defense asked if she recalled the panel having been asked if any of them had relatives or family members in law enforcement. Taylor answered that the panel was never asked that question, and if she would have been asked that question, she would have answered affirmatively. The defense then referenced the following "question" by the State during voir dire:
Okay. And if some of the detectives, you know, my main concern, initially, is if you have a reason that you may know a detective or a police officer, I didn't call a lot of them that came up here, but if you do know a reason . . . but if you do know a police officer that may influence your testimony, please let us know.
Taylor indicated that the State was referring to the police officers that were being introduced to the court, and although she knew them, her knowledge of them would not have influenced her serving on the jury with an open mind. Taylor indicated that from the inception of voir dire until the conclusion of the deliberations, she had conducted herself consistently with her oath as a juror.
The defense also called juror Lorraine Gibbs Davis to testify. She indicated there was nothing on her mind during deliberations other than the evidence and the facts of the case. She also indicated that her eighteen-year-old son had never been charged with a crime, and until the hearing, she had not discussed anything about her performance as a juror with anyone.
The last witness called by the defense was jury foreperson Janice Bergeron. She indicated she did not observe any activity or conduct as jury foreperson which could be construed as misconduct or "impartiality (sic)."
The trial court denied the motion to vacate the jury verdict. The court found that the defense had not established its allegations that two jurors had been untruthful during jury selection. Additionally, the court found no showing that the jurors had not been impartial during their jury service.
The trial court correctly denied the motion to vacate the jury verdict and grant a new trial. The defense failed to establish any basis for granting the motion.
This assignment of error is without merit.
DIMINISHED CAPACITY
In assignment of error number 5, the defendant argues the trial court erred in disallowing the testimony of Dr. Terry LeBourgeois under La. Code Crim. P. art. 651, because the testimony was admissible under La. Code Crim. P. art. 643 and La. Code Evid. art. 704.
Insanity at the time of the offense requires a showing that because of mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question. See La.R.S. 14:14.
The law presumes a defendant is sane and responsible for his actions. La.R.S. 15:432. The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence. La. Code Crim. P. art. 652. When a defendant is tried upon a plea of "not guilty," evidence of insanity or mental defect at the time of the offense shall not be admissible. La. Code Crim. P. art. 651. Louisiana does not recognize the defense of diminished capacity. A mental disease or defect short of insanity cannot serve to negate an element of the crime. State v. Pitre, 2004-0545, p. 24 (La. App. 1st Cir. 12/17/04).
During the presentation of the defense's case, the court indicated it would sustain an objection to Dr. LeBourgeois's expert testimony if his testimony was offered to negate the presence of the defendant's specific intent. The court noted that in State v. Leather*ood, 411 So.2d 29 (La. 1982), the supreme court rejected the argument that psychological testimony was necessary to prove that the defendant lacked the necessary criminal intent and held that La. Code Crim. P. art. 651 precluded the introduction of evidence of mental disease or defect where the defendant proceeded to trial on a plea of not guilty and did not place his sanity at the time of the offense at issue. The defense proffered testimony from Dr. LeBourgeois.
The court recognized Dr. Herbert W. LeBourgeois, III, as an expert in the field of forensic psychiatry. He indicated he had conducted a forensic mental health evaluation of the defendant and, at his request, Dr. Vosberg, psychologist, had performed intelligence testing on the defendant. The intelligence testing indicated that the defendant had an IQ of 70 and functioned on the cusp between mental retardation and borderline intellectual functioning. In the area of social judgment, the defendant functioned in the range of someone with mental retardation.
Additionally, Dr. LeBourgeois opined that the defendant met the criteria for post-traumatic stress disorder during his lifetime. Dr. LeBourgeois indicated that assuming the defendant and Cassandra had accurately reported the traumatic events witnessed by the defendant, and assuming the defendant and Cassandra had accurately reported what occurred at the crime scene, the incident would have triggered an enormous emotional reaction by the defendant which would have diminished his ability to engage in any kind of cool reflection and would have diminished his ability to exercise control over his actions.
On cross-examination, Dr. LeBourgeois indicated that if he had thought the defendant's insanity presented a significant issue, he would have recommended evaluation of that issue by the standard procedure, and he had made no such recommendation. He also indicated that his conclusion that the defendant could have a diminished capacity to specifically intend to kill the victim was contingent on the account of the incident reported by the defendant and Cassandra, and whether a jury found that to be a more reliable account of the events.
The trial court correctly excluded the testimony of Dr. LeBourgeois. La. Code Crim. P. art. 643, provides that the court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant's mental capacity to proceed. The Article does not allow expert testimony concerning diminished capacity to form specific intent on a plea of not guilty. La. Code Evid. art. 704, provides that testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. Dr. LeBourgeois's testimony was not "otherwise admissible."
The defendant also cites State v. Birdsong, 452 So.2d 1236 (La. App. 2d Cir. 1984), for the proposition that expert testimony is admissible on the issue of whether the defendant can distinguish between right and wrong at the time of the crime. The case, however, is distinguishable. Birdsong involved a plea of not guilty and not guilty by reason of insanity, and thus, La. Code Crim. P. art. 651 did not prohibit the testimony at issue. Further, in Birdsong, the testimony concerned the defendant's sanity at the time of the offense, which was at issue due to his plea, rather than diminished capacity.
This assignment of error is without merit.
PROSECUTORIAL MISCONDUCT
In assignment of error number 6, the defendant argues the prosecution intentionally cast the defense as under-handed, stealthy, and not to be trusted by commenting at voir dire that the defense might confuse the jury, that the defense had "probably worked a little bit on the case too," by referring to self-defense as "taking the law into your own hands," by stating the defense would not show the jury the law that the aggressor cannot claim self-defense, and by trying to elicit testimony relating to the burning of Demarcus's house. He claims the jury "may have become prejudiced against the defense" as a result of the prosecutorial antics.
Even when the prosecutor's statements and actions are excessive and improper, credit should be accorded to the good sense and fair-mindedness of the jurors who have seen the evidence and heard the arguments. State v. Bridgewater, 2000-1529, pp. 31-32 (La. 1/15/02), 823 So.2d 877, 902, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). Further, misstatements of law by the district attorney do not give rise to reversible error when the trial court properly instructs the jury at the close of the case. Bridgewater, 2000-1529 at p. 33, 823 So.2d at 903.
After according credit to the good sense and fair mindedness of the jurors, and considering the fact that the defendant does not claim that the trial court improperly instructed the jury on the law, we find no reversible error due to prosecutorial misconduct, if any, in this case. This assignment of error is without merit.
DECREE
For the above reasons, we affirm the conviction and sentence.