Opinion
2016 KA 1294
04-12-2017
STATE OF LOUISIANA v. ROBERT CHOUEST
Camille A. Morvant, II District Attorney And Joseph S. Soignet Assistant District Attorney Thibodaux, Louisiana Attorneys for Appellee State of Louisiana Michael A. Fiser Baton Rouge, Louisiana Attorney for Defendant/Appellant Robert Chouest
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LAFOURCHE STATE OF LOUISIANA
DOCKET NUMBER 521,702, DIV. A HONORABLE JOHN E. LEBLANC, JUDGE Camille A. Morvant, II
District Attorney
And
Joseph S. Soignet
Assistant District Attorney
Thibodaux, Louisiana Attorneys for Appellee
State of Louisiana Michael A. Fiser
Baton Rouge, Louisiana Attorney for Defendant/Appellant
Robert Chouest BEFORE: PETTIGREW, McDONALD, AND CALLOWAY, JJ. McDONALD, J.
Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
Defendant, Robert Chouest, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and waived his right to a jury trial. Following a bench trial, defendant was found guilty as charged. The trial court subsequently sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant filed a motion to reconsider sentence, which the trial court denied. Defendant now appeals, alleging three assignments of error. For the following reasons, we affirm the conviction and sentence.
Defendant was initially tried before a jury, but that first proceeding ended in a mistrial when the jury could not reach a verdict. --------
FACTS
The facts of the offense are largely undisputed. Around 4:30 a.m. on May 22, 2013, defendant shot Shawn Galjour, who appeared to be crawling in the driveway of defendant's grandparents' residence on ABC Lane in Cut Off, Louisiana. Defendant fired the gunshot from the yard in front of his own residence, located next door to his grandparents. Galjour died instantly from a single gunshot wound to his head, with the bullet entering near his left ear.
Defendant initially told the police that he called out to the victim prior to shooting him, informing him that he was on private property. He described that the victim was crawling toward his grandparents' home. Defendant stated that the victim rolled toward him, at which point he shot from a kneeling position, using a scoped rifle. According to several detectives who testified at trial, defendant informed them that he had "stalked" the victim before he "scoped him in" and fired. In a second interview, defendant told the police that he smoked one hit of crack cocaine immediately prior to the incident and he aimed at the back of the victim's head when he shot.
Defendant testified at trial that he did not know the victim was a person when he shot at him. Defendant explained that he had been awake for about three days at the time of the incident. Defendant further testified that since approximately 9:00 a.m. on May 21, he had ingested crystal methamphetamine, taken approximately six or seven pain pills, drank about six beers, and smoked five rocks of crack cocaine, the latter of which he purchased immediately prior to the shooting. Defendant stated that when he shot the victim, he believed he had shot at an alligator. Defendant explained that he had lied to the police when he initially described the shooting because he did not want his family to know about his drug addiction.
The trial court ultimately found defendant guilty of second degree murder. While the trial court believed defendant's testimony that he was intoxicated at the time of the shooting, the court found that this intoxication did not negate the specific intent element of the charged offense. Further, the court did not accept defendant's testimony that he believed he was shooting at an alligator.
INSUFFICIENT EVIDENCE
In his first assignment of error, defendant contends that the evidence presented at trial was insufficient to support his conviction for second degree murder. Specifically, he argues that the state failed to prove the specific intent element of second degree murder, particularly in light of his level of intoxication at the time of the offense.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. 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, La. R.S. 15:438 provides that 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 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. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 and 2000-0895 (La. 11/17/00), 773 So.2d 732.
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 intent is defined as the 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).
Specific intent is a legal conclusion to be resolved ultimately by the trier of fact. State v. Gibson, 460 So.2d 689, 692 (La. App. 1st Cir. 1984), writ denied, 464 So.2d 1376 (La. 1985). Since specific criminal intent is a state of mind, it need not be proven as a fact, but it may be inferred from the circumstances present and the action of the defendant. Id. Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, 390.
Voluntary intoxication is a defense to a prosecution for second degree murder only if the circumstances indicate that it has precluded the presence of specific criminal intent. See La. R.S. 14:15(2). When defenses that defeat an essential element of an offense are raised by the evidence, such as intoxication, the state must overcome the defense by evidence which proves beyond a reasonable doubt that the mental element was present despite the alleged intoxication. State v. Lutcher, 96-2378 (La. App. 1st Cir. 9/19/97), 700 So.2d 961, 973, writ denied, 97-2537 (La. 2/6/98), 709 So.2d 731.
In the instant case, there is no dispute that defendant is the individual who shot and killed Shawn Galjour. Rather, the sole issue is whether defendant's level of voluntary intoxication at the time of the incident prevented him from forming the specific intent to commit a second degree murder.
The record indicates that there is no apparent connection between defendant and the victim. Defendant and his family members who testified at trial all denied any prior interactions with the victim. Further, the victim's father testified that the victim had no reason to be in the area of ABC Lane, given that he did not live in the area. However, the victim generally went out drinking when he got paid, as he had the day before the shooting, and he often walked home.
The evidence regarding defendant's actions on the day before and night of the shooting is not in question. By defendant's own account, he went to work from around 9:00 a.m. to around 3:30 p.m., went to AutoZone afterward, and then went home to work on his personal vehicle in a shed located between his own home and his father's home. Defendant worked on his vehicle from approximately 5:00 p.m. until 3:30 a.m. Defendant testified that during that day he had consumed crystal methamphetamine, taken approximately six or seven pain pills, and drank about six beers. Additionally, defendant stated that he had been awake for three days, and he did not eat dinner on the evening of May 21, 2013. Around 3:30 a.m., defendant purchased $50 worth of crack cocaine from an acquaintance. When defendant first told the police about smoking the crack cocaine, he stated that he only smoked "one hit." When defendant testified at trial, he stated that he smoked all five rocks of the crack cocaine. After smoking the crack cocaine, defendant drove his work truck a short distance from the shed to his home.
Defendant's versions of the events diverge at this point. Defendant made five main statements to the police after the incident: (1) an initial unrecorded "preinterview;" (2) his first recorded interview; (3) a narrated "walk through" of the crime scene; (4) a brief statement made during a smoke break; and (5) a second recorded interview. Defendant's explanations in these statements were largely consistent, with some small discrepancies.
In his first recorded interview, defendant explained to the police that after he drove his work truck home, he got out and noticed something in his grandparents' driveway. He walked along the front of his house, to its northeast corner, and noticed that it was a person. Defendant first stated that the victim was face down on his belly, but then stated that he was on his knees and elbows. According to defendant, the victim was "moving kinda slow" towards his grandparents' carport. Defendant said that he addressed the victim by telling him it was private property, and that he was going to call the police if the victim did not identify himself. The victim did not reply. By this time, defendant had entered a kneeling position just off the walkway in front of his house. Defendant admitted that he looked through the scope on his rifle and could see the victim's silhouette. Defendant said that when he aimed, he did not look for any specific portion of the body, just the silhouette itself. Defendant then told the police that he was still in the kneeling position when the victim began to roll toward him. At that point, he shot the victim. Defendant told the police in this interview that he believed the victim was rolling over to shoot at him. When the police specifically asked defendant about drugs during this interview, he denied any such use, admitting only to drinking "a couple of beers."
In their investigation of the shooting, the police became suspicious of defendant's story. Notably, the victim's body was positioned face up in the driveway. As a result, defendant was asked to return to the scene and perform a "walk-through" with the police. During the walk-through, defendant described the incident largely consistent with his statements made in the recorded interview. Multiple officers testified at trial that defendant "duck walked" along the front of his house to show how he approached the victim. Several officers also heard defendant describe that he "stalked" the victim and announced himself before he "scoped him in" and fired.
After the walk-through, defendant was returned to the police substation, where he was allowed to eat, drink, use the restroom, and take a smoke break. While he was out on a smoke break with three detectives, defendant admitted that the victim was not moving at all when he shot him.
A second recorded interview occurred immediately after the smoke break. In this interview, defendant first admitted to using drugs on the night of the incident, but he described his use as one hit of crack cocaine. He again described the shooting, saying that when he got closer to the thing in his grandparents' driveway, he realized it was a "person laying down looking at his at, you know, towards his house." Defendant said that he yelled to inform the person that he was on private property and waited about five or six seconds, but received no response. When he received no response, defendant aimed at the "back of [the victim's] head" and took a shot. Defendant confirmed that the victim did not move from the time he originally saw him until the shot. Defendant stated that the victim rolled over following the shot.
Defendant's story at trial differed greatly from his version of the events told to the police. At trial, defendant testified that when he exited his work truck he saw something in his grandparents' driveway and believed it to be an alligator, so he grabbed his rifle. Defendant confirmed that he walked to the end of his walkway and took a shot at what he thought was an alligator. Because of the darkness and a shadow created by a nearby streetlight and bush, defendant stated he did not realize he had shot a person until he got closer. In addition to describing his drug use throughout the day, defendant also stated that his vision was blurry because he had been wearing the same pair of contacts for three days. Defendant denied ever seeing a human being in his rifle's scope. He described his recorded statements to the police as being full of lies concocted by him to keep his family from knowing about his drug addiction.
The state presented evidence at trial from the coroner, Dr. Patrick Walker, who performed the victim's autopsy. Dr. Walker described the trajectory of the bullet that killed the victim as entering at the left ear and traveling diagonally to the right posterior thoracic chest, where a small exit wound was located. Based on the trajectory, Dr. Walker opined that at the time the victim was shot, he was lying on his back, mostly face up, with his head slightly upright as if he were looking at the sky. Dr. Walker also stated that the victim's arms were likely flat at the time he was shot and that he died immediately. This description of the victim's positioning clearly contradicts the two separate positions described by defendant in his recorded statements.
In finding defendant guilty of second degree murder, the trial court gave extensive oral reasons. The trial court noted the inconsistencies in defendant's own recorded statements and in his description of the victim's positioning versus that given by Dr. Walker. The court stated that the question it had to resolve was whether the state proved defendant was shooting at the victim, or whether defendant believed he was shooting at an alligator. The court found it compelling that it never heard any description of the alligator defendant would have seen through the scope of his rifle. While the court did believe that defendant was intoxicated to some extent on the night of the incident, the court found that the state adequately proved defendant fired his rifle with the specific intent to kill the victim. The trial court noted "the act, the circumstance, [and] the purity of the shot" as proof of intent. The trial court ultimately determined that defendant did not act negligently and that he intended to point his rifle at a man's head and pull the trigger.
Deliberately pointing and firing a deadly weapon at close range are circumstances which will support a finding of specific intent to kill. State v. Broaden, 99-2124 (La. 2/21/01), 780 So.2d 349, 362, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001). The evidence presented at trial indicates that defendant was approximately 132 feet away from the victim when he fired the fatal shot with a fully functioning scoped rifle. The choice of weapon and relatively close distance, combined with defendant's actions in "stalking" and "scoping him in," evince an intent to kill.
Additionally, contrary to defendant's claim that his intoxication was so severe as to preclude the formation of specific intent, the state presented evidence showing that he had the ability to reason and make decisions. See State v. Bland, 2015-1662 (La. App. 1st Cir. 4/20/16), 194 So.3d 679, 686-87; see also State v. Guess, 47,370 (La. App. 2d Cir. 8/8/12), 104 So.3d 41, 47, writ denied, 2012-1987 (La. 3/8/13), 109 So.3d 357. Particularly, the state thoroughly cross-examined defendant concerning his ability to perform his job, operate a vehicle, recall details of his purchases, and conduct maintenance on his truck, all despite the amount of drugs and alcohol he consumed. Defendant even stated that for his system, the amount he consumed "is not a lot of drugs." Defendant confirmed that he can make decisions and determine right from wrong while he is on drugs. Thus, the state presented sufficient evidence to demonstrate that defendant could form specific intent, even despite his level of intoxication.
Furthermore, viewed in the light most favorable to the prosecution, the evidence demonstrated that defendant did not shoot the victim with the mistaken belief that he was an alligator. Unless there is a provision to the contrary in the definition of a crime, reasonable ignorance or mistake of fact which precludes the presence of any mental element required in that crime is a defense to any prosecution for that crime. La. R.S. 14:16. While reasonable ignorance can be a defense under this provision, "unreasonable ignorance" cannot. See State v. Godbolt, 2006-0609 (La. App. 1st Cir. 11/3/06), 950 So.2d 727, 731. Defendant's own recorded statements indicated that he recognized the figure to be a man before he shot. Therefore, there is no mistake of fact in this case.
Finally, the defendant's varying statements in the aftermath of the shooting could be considered as indicative of his knowledge that he committed a criminal act. Defendant's story evolved from having seen the victim crawl toward his grandparents' home, to shooting the victim even after he never moved, and ultimately to mistaking the victim for an alligator. Defendant also gave the police information about the position of the victim's body that conflicted with the coroner's findings. While defendant attempted to explain that his recorded statements to the police were lies designed to keep his family from finding out about his drug addiction, the trial court noted defendant's untruthfulness in its reasons for finding defendant guilty. A finding of purposeful misrepresentation reasonably raises the inference of a "guilty mind." See State v. Captville, 448 So.2d 676, 680 n.4 (La. 1984).
In the instant case, any 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. An appellate court is constitutionally precluded from acting as a "thirteenth juror" in assessing the weight of the evidence. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.
When a case involves circumstantial evidence and the fact finder 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. Captville, 448 So.2d at 680. We find no such hypothesis exists in the instant case. The trial court's verdict indicates it rejected defendant's theory of innocence based on intoxication and found defendant to have acted with the specific intent to kill Shawn Galjour. In accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder, a court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. See State v. Mire, 2014-2295 (La. 1/27/16), ___ So.3d ___, ___, 2016 WL 314814 (per curiam).
The record clearly supports the trial court's findings. Further, in reviewing the evidence, we are unable to say that the trial court's determination was irrational under the facts and circumstances presented to it. See Ordodi, 946 So.2d at 662. A court errs by substituting its own 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 fact finder. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
This assignment of error is without merit.
EXCLUSION OF STATEMENTS
In his second assignment of error, defendant argues that the trial court erroneously denied defendant permission to elicit a statement from defendant's grandfather regarding what defendant allegedly told him after the shooting.
Initially, we note that defendant did not proffer the substance of his grandfather's testimony. Error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected, and when the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel. See La. Code Evid. art. 103(A)(2). The purpose of a proffer is to preserve evidence excluded by the trial court so that the evidence is available for appellate review. McLean v. Hunter, 495 So.2d 1298, 1305 (La. 1986). Because defendant failed to make a proffer, we would be entitled to conclude that he is procedurally barred from advancing this error on appeal. See State v. Lynch, 94-0543 (La. App. 1st Cir. 5/5/95), 655 So.2d 470, 480, writ denied, 95-1441 (La. 11/13/95), 662 So.2d 466.
Nonetheless, we recognize that the procedural posture of defendant's case might have led to the failure of defense counsel to proffer the testimony. Most notably, the testimony appears to have been the subject of the trial court's evidentiary ruling in the prior jury trial. As a result, we elect to address defendant's assignment of error, wherein he describes the statement he allegedly made to his grandfather following the shooting as: "Paw, I didn't know it was a man. I thought it was an alligator, Paw."
Generally, any out-of-court statement of the accused constitutes hearsay if it is offered to prove the truth of the matter asserted. See La. Code Evid. art. 801(C). Thus, the defendant may not introduce his own self-serving exculpatory statements unless they are subject to an exception to the hearsay rule. See State v. Day, 468 So.2d 1336, 1339 (La. App. 1st Cir. 1985).
On appeal, defendant argues that his statement was not hearsay because it was not offered to prove the truth of the matter asserted, but to show that his statements at trial were consistent with his statement to his grandfather. Despite this contention, the excluded statement was only relevant to the extent it spoke to the truth of the matter asserted, namely defendant's alleged belief that he shot an alligator. Defendant sought to introduce this statement only to bolster his credibility in the face of multiple statements that conflicted with his version of the events. Thus, the mere fact that such a statement was allegedly made only becomes relevant if that statement is evaluated for its truth, rendering it hearsay. Additionally, defendant's alleged statement does not qualify as res gestae because it would have been more of a post hoc narration of the events than it was impulsive and spontaneous words, a present sense impression, or an excited utterance. See La. Code Evid. arts. 801(D)(4), 803(1), and 803(2). Moreover, even if the statement should have been allowed into evidence, the exclusion of this evidence did not affect defendant's substantial rights because he also later testified that he also told members of his family in the immediate aftermath of the shooting that he believed he had shot an alligator. See La. Code Crim. P. art. 921.
This assignment of error is without merit.
EXCESSIVE SENTENCE
In his final assignment of error, defendant argues that the sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence is unconstitutionally excessive. He cites the lack of motive and his drug addiction as factors which make the mandatory sentence unconstitutionally excessive.
Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La. 1985). A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it will not be set aside as excessive absent a manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992).
Defendant argues that his sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, is excessive. We note, however, that the sentence imposed is the mandatory sentence for the offense of second degree murder. See La. R.S. 14:30.1(B). Even though a sentence is the mandatory minimum sentence, it may still be excessive if it makes no "measurable contribution to acceptable goals of punishment" or amounts to nothing more than the "purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime." State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993). In order for a defendant to rebut the presumption that a mandatory minimum sentence is constitutional, he must "clearly and convincingly" show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676. Departures downward from the minimum sentence should only occur in rare situations. See Id. at 677.
Based on our review of the record, we cannot say that the trial court erred or abused its discretion in imposing defendant's sentence in accordance with the mandatory penalty provided for in La. R.S. 14:30.1(B). At his sentencing hearing, defendant did not attempt to make any clear and convincing showing to the trial court that he is exceptional and that he is a victim of the legislature's failure to assign a sentence that was meaningfully tailored to his culpability, to the gravity of the offense, and to the circumstances of the case. On these facts, the trial court had no reason to deviate downward from the mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence.
This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.