Opinion
2012 KA 1995
06-07-2013
STATE OF LOUISIANA v. HENNESSY RICHARD CHRISTOF
Hillar C. Moore, III Adam Haney Jessica Jarreau Allison Miller Rutzen Baton Rouge, LA Counsel for Appellee, State of Louisiana Bertha M. Hillman Thibodaux, LA Counsel for Defendant/Appellant, Hennessy Richard Christof
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 07-10-0287
Honorable Donald R. Johnson, Judge Presiding
Hillar C. Moore, III
Adam Haney
Jessica Jarreau
Allison Miller Rutzen
Baton Rouge, LA
Counsel for Appellee,
State of Louisiana
Bertha M. Hillman
Thibodaux, LA
Counsel for Defendant/Appellant,
Hennessy Richard Christof
BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
WHIPPLE , C.J.,
The defendant, Hennessy Richard Christof, was charged by grand jury indictment with one count of second degree murder (count 1), a violation of LSA-R.S. 14:30.1, and two counts of attempted second degree murder (counts 2 and 3), violations of LSA-R.S. 14:27 and 14:30.1. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed motions for postverdict judgment of acquittal and new trial, both of which were denied. On count one, the defendant was sentenced to the mandatory term of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On counts two and three, he was sentenced on each count to ten years at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant's sentences were ordered to be served concurrently. The defendant now appeals, challenging the sufficiency of the evidence in support of his convictions. For the following reasons, we affirm the defendant's convictions and sentences.
FACTS
On May 17, 2010, Officer Chad Montgomery with the Baton Rouge City Police Department was dispatched to the corner of Tennessee and East Grant Streets around 1:45 p.m. to respond to a shooting. Upon arrival, he observed several people screaming and running around. He also observed one victim, seventeen-year-old Demarcus Woods, lying on the sidewalk, bleeding from his head. Detective John Dauthier was called to investigate the shooting. He spoke with three witnesses, Jasmine Bowers, Adrienne Harris, and Christopher Slaughter, whose accounts of the event were fairly consistent. According to the witnesses, Demarcus and some other men were standing in front of a home on Tennessee Street, when two vehicles pulled up. A gray or silver colored Chevrolet Caprice with large custom rims was driven by the defendant, and a white Nissan Maxima with one spare tire was driven by the defendant's girlfriend, Chiffonda Hampton. The witnesses stated that Hampton exited the vehicle and began an altercation with Demarcus. Hampton was pointing her finger in Demarcus's face and accusing him of spreading rumors that he had slept with her. Demarcus turned to the defendant and asked, "why don't you get your girl?" Hampton pushed Demarcus, and he either "nudged" or pushed her back. When he did so, the defendant pulled out his gun from the back of his pants, aimed at Demarcus's forehead, and shot him. The defendant then began "wild firing" at the crowd of people as they ran away, hitting Antonio Switzer in his back and Derek Hughes in the back of his leg.
Jasmine Bowers gave a similar account of the event, but stated that Demarcus did not push Hampton.
The defendant left the scene and went to shower at the apartment where he had been staying. The man that the defendant was staying with at the time said that the defendant appeared "jumpy" and "on edge" and that the defendant told him that he "did something bad."
None of the witnesses had seen the defendant before the day of the shooting, but an anonymous source provided the license plate number for the Maxima. Investigating officers determined that both vehicles were registered to Hampton. Hampton was listed with the defendant in police reports, and the two were apparently in a relationship. The defendant's physical appearance matched that described by witnesses as the shooter, and a witness identified the defendant in a six-person photograph lineup. Based on this information, officers set up surveillance at Hampton's apartment, where they saw the white Maxima and arrested the defendant when he arrived there in the gray Caprice.
After his arrest, the defendant signed a Miranda rights form and participated in a recorded interview with Detective Dauthier. The defendant initially denied shooting. Minutes after the interview concluded, the defendant called Dauthier back into the room and said he wanted to tell him the truth because he had been praying and felt that the truth would "set him free." He explained that Hampton argued with Demarcus and pushed him. When Demarcus pushed Hampton, the defendant intervened. He stated that he was outnumbered and did not know if the other people standing around would shoot at him. He told Dauthier that he shot three times, not aiming at anyone. However, seven shell casings were collected from the scene. The defendant explained that if he had shot in the air instead, someone may have shot at him. Although he admitted that he was shooting while people were running, he insisted that he shot in self-defense and was protecting his "old lady."
Demarcus died on May 21, 2010, due to the injuries he received on the day of the shooting, namely, a single gunshot wound to the head and a bullet lodged in his brain. When the defendant found out that Demarcus had died, he told Dauthier that he was lying before and that he did not shoot anyone. He stated that he only said that he fired the shots because he was scared in the interview. However, within minutes, the defendant recanted and admitted that he shot in self-defense.
SUFFICIENCY OF THE EVIDENCE
In his sole assignment of error, the defendant challenges the sufficiency of the evidence in support of his convictions. The defendant does not contest shooting the victims, but argues that he was acting in self-defense. He claims that he was surrounded by Demarcus's friends and that he believed that they had weapons. Alternatively, the defendant argues that the evidence was only sufficient to support a conviction of manslaughter. In support of this argument, the defendant states that "the crowd's threatening, aggressive and confrontational behavior" toward him and Hampton, who was pregnant, caused him to act with sudden passion and heat of blood to protect himself, Hampton, and their baby.
The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. LSA-C.Cr.P. art. 821. In conducting this review, the court 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. LSA-R.S. 15:438. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So. 2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So. 2d 1157, 2000-0895 (La. 11/17/00), 773 So. 2d 732.
The crime of second degree murder, in pertinent part, "is the killing of a human being: (1) [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]" LSA-R.S. 14:30.1A(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." LSA-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. State v. Buchanon, 95-0625 (La. App. 1st Cir. 5/10/96), 673 So. 2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So. 2d 923. The courts have long recognized that specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Hoffman, 98-3118 (La. 4/11/00), 768 So. 2d 542, 585, opinion supplemented by 2000-1609 (La. 6/14/00), 768 So. 2d 592 (per curiam), cert. denied, 531 U.S. 946, 121 S. Ct. 345, 148 L. Ed. 2d 277 (2000).
In accordance with LSA-R.S. 14:27A, a person is guilty of an attempt to commit an offense when he has specific intent to commit a crime and "does or omits an act for the purpose of and tending directly toward the accomplishing of his object." An attempt to commit second degree murder requires that the offender possess the specific intent to kill. State v. Herron, 2003-2304 (La. App. 1st Cir. 5/14/04), 879 So. 2d 778, 782. See also LSA-R.S. 14:27A& 14:30.1A(1).
When a defendant in a homicide prosecution claims self-defense, the state must prove beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Williams, 2001-0944 (La. App. 1st Cir. 12/28/01), 804 So. 2d 932, 939, writ denied, 2002-0399 (La. 2/14/03), 836 So. 2d 135. Louisiana Revised Statute 14:20A(1) provides that a homicide is justifiable 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. For appellate purposes, the standard of review of a claim of self-defense is whether a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could find beyond a reasonable doubt that the homicide was not committed in self-defense. Williams, 804 So. 2d at 939.
However, Louisiana law is unclear as to who has the burden of proving self-defense in a non-homicide case. In previous cases dealing with this issue, the court has analyzed the evidence under both standards of review, that is, whether the defendant proved self-defense by a preponderance of the evidence or whether the state proved beyond a reasonable doubt that the defendant did not act in self-defense. Similarly, we need not decide in this case who has the burden of proving (or disproving) self-defense, because under either standard, the evidence sufficiently established that the defendant did not act in self-defense. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So. 2d 929, 931.
In State v. Freeman, 427 So. 2d 1161, 1162-63 (La. 1983), the Louisiana Supreme Court, without resolving the issue, suggested that the defendant in a non-homicide case may have the burden of proving self-defense by a preponderance of the evidence. See State v. Barnes, 590 So. 2d 1298, 1300-01 (La. App. 1st Cir. 1991).
In accordance with LSA-R.S. 14:31A(1), manslaughter is a homicide which would be a first 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 jury 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. See LSA-R.S. 14:31A(1). "Sudden passion" or "heat of blood" are not elements of the offense of manslaughter; rather they are mitigatory factors in the nature of a defense, which tend to lessen the culpability. Because they are mitigatory factors, a defendant who establishes by a preponderance of the evidence that he acted in "sudden passion" or "heat of blood" is entitled to a verdict of manslaughter. State v. Rodriguez, 2001-2182 (La. App. 1st Cir. 6/21/02), 822 So. 2d 121, 134, writ denied, 2002-2049 (La. 2/14/03), 836 So. 2d 131.
At trial, Bowers, Harris, Slaughter, Switzer, and Hughes testified. Hughes testified that the defendant and Demarcus had an encounter that day prior to the shooting. According to Hughes, he was standing on Tennessee Street with Demarcus and some other men when the defendant drove up. Demarcus and the defendant began talking about a woman. Hughes heard Demarcus tell the defendant that he was "messing around with his girl" and opine that "you can't make a ho into a housewife." Before he drove off, the defendant responded, "I'm a real n*****--you know, you know. I don't cherish nothing like that." According to Hughes, everything was "cool" between the defendant and Demarcus after their first encounter that day. No threats were made, and the defendant drove off smiling. Shortly thereafter, the defendant returned. The five witnesses' accounts of what happened during the second encounter were fairly consistent and were at odds with the defendant's testimony regarding the incident.
According to the defendant, he was driving down the street when he was flagged down by Demarcus. According to the defendant, he stopped and spoke with Demarcus's older brother, Wayne Woods, the only person in the group of men standing outside that he knew. While the defendant was speaking with Wayne, Demarcus accused him of driving by without paying attention or speaking to him. The defendant testified that he and Demarcus had a small confrontation and argued a little. This occurred seconds before Hampton pulled up. When she got out of her vehicle, Hampton pointed to Demarcus and said that he was the person who had been lying about her. She told Demarcus to stop telling people that the two of them slept together, and she pushed him. The defendant stated that he was trying to calm down Hampton and that he instructed Wayne to calm down Demarcus. Demarcus pushed Hampton, and Hampton pushed him a second time. The defendant testified that he stepped in when Demarcus reached back to swing. He told Demarcus that Hampton was his girl and that she was pregnant. Demarcus asked the defendant what he wanted to do. Demarcus and the people standing around were hollering, and Demarcus stated, "[I]t ain't fixing to go down like this." Then, he and the defendant "squared off[,]" and the defendant saw one of the other individuals in the group flinch "like he was going for his [waistline]." The defendant became scared and reached for his gun. He testified that he was outnumbered, was protecting his "old lady" and that his first thought was to "shoot first, before getting shot."
The defendant admitted that he shot Demarcus, who did not have a gun, in the head from a close distance. He also admitted that he shot at Switzer and Hughes. He testified that he never saw another gun, no one shot at him, and everyone ran off after he shot. He said, "[a]fter I pulled the trigger, I just kept pulling. . . . [a]t the whole crowd." According to the defendant, he did not shoot because he was upset about what anyone had said about Hampton or because he was angry. Rather, the only reason he shot was because he thought the other people standing around were possibly armed. However, all five witnesses testified that they did not see anyone else standing around with a gun, nor did they hear anyone say that he or she had a gun. According to Bowers, Switzer, Hughes, and Slaughter, no threats were made against the defendant or Hampton. The defendant averred that the five witnesses were lying in their accounts of the incident because they did not like him due to the fact that he was making money. However, all five witnesses testified that they had never seen the defendant before the day of the shooting.
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). The guilty verdicts in this case indicate that the jury rejected the defendant's claim that he shot in self-defense. The defendant was not being attacked before he fired his weapon. In fact, much of the testimony indicated that Demarcus was encouraging the defendant to "get his girl" while Hampton continued to holler and push him. The defendant aimed his gun at Demarcus's head before shooting him and fired shots at Switzer and Hughes as they ran away. As reflected in the defendant's own testimony, he never saw any of the other people standing around armed with any weapon. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, where 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 is not subject to appellate review. Thus, an appellate court will not reweigh the evidence or overturn a fact finder's determination of guilt. Williams, 804 So. 2d at 939.
Viewing the evidence in the light most favorable to the prosecution, we find that the evidence excludes any reasonable hypothesis of innocence and supports the jury's verdicts. Considering the testimony presented, the evidence clearly negated the possibility that the defendant acted in self-defense with respect to all three victims (regardless of who had the burden of proof on the issue of self-defense regarding the charges of attempted second degree murder). Thus, we find no error in the jury's rejection of the defendant's claim of self-defense, which was not supported by the evidence.
We further conclude that a rational fact finder would have determined that there was insufficient evidence of provocation such that a reasonable person would have used deadly force. The defendant failed to establish by a preponderance of the evidence that he acted in sudden passion or heat of blood. Based on our review of the evidence, we conclude that the jury reasonably rejected the defendant's hypothesis of innocence. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654, 662. As the Supreme Court has recognized, 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 trier of fact. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam). Accordingly, the defendant's assignment of error lacks merit.
Finding no error herein, we affirm defendant's convictions and sentences.
CONVICTIONS AND SENTENCES AFFIRMED.