Opinion
2012KA0266
09-21-2012
STATE OF LOUISIANA v. DENAKO DUHEART
Hiliar Moore, D.A. Allison Miller Rutzen Baton Rouge, Louisiana Counsel for Plaintiff-Appellee State of Louisiana Dayal S. Reddy New Orleans, Louisiana Counsel for Defendant-Appellant Denako Duheart
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 12-09-0103, SEC. 8, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
HONORABLE TRUDY M. WHITE, JUDGE
Hiliar Moore, D.A.
Allison Miller Rutzen
Baton Rouge, Louisiana
Counsel for Plaintiff-Appellee
State of Louisiana
Dayal S. Reddy
New Orleans, Louisiana
Counsel for Defendant-Appellant
Denako Duheart
BEFORE: KUHN, PETTIGREW, AND MCDONALD, JJ.
Disposition: CONVICTION AND SENTENCE AFFD3MED.
KUHN, J.
Defendant, Denako Duheart, was charged by bill of information with attempted second degree murder, a violation of La. R.S. 14:30.1 and 14:27. He pled not guilty and, following a bench trial, was found guilty as charged. Defendant filed a motion for new trial. A hearing was held on the matter, and the motion was denied. Defendant was sentenced to twenty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals, designating two assignments of error. We affirm the conviction and sentence.
FACTS
On November 20, 2009, Julius Carter was at his mother and stepfather's house on Tecumseh Street in Baton Rouge. Carter testified at trial that he left the house late that evening to walk to Fred's Store to get a beer. According to Carter, when he got to the corner of Chippewa Street and Osage Street, a white Crown Victoria passed by him slowly. A window rolled down and Carter saw defendant in the front passenger seat of the vehicle. Carter knew defendant and, earlier that day, they exchanged hostile words. Apparently, Carter owed defendant money for crack cocaine. When a police unit approached, the Crown Victoria continued past defendant. Carter continued walking and, when he got near the interstate, he heard about ten gunshots. He was struck by a bullet in the back of his right shoulder. When he turned, he saw defendant outside of the Crown Victoria standing near the 1-110 on-ramp with a gun in his hand. Carter ran and found some bushes nearby a duplex house on the side of a field. As he hid in the bushes, he saw defendant walk through the field looking for him. When defendant finally left, Carter went to the house of a friend, who walked with Carter back to his mother's house. Carter was taken by ambulance to Baton Rouge General Hospital, where the bullet was removed from his shoulder. When asked at trial about the identity of the shooter, Carter testified that he was "real certain" that defendant was the person who shot him.
Tarsheetka Thompson, Carter's cousin, was also at Carter's mother's house. Thompson testified at trial that after Carter left the house, she left the house with her nine-year-old daughter to get a cold drink. When she was near the Shell Station on Chippewa Street, she heard about nine gunshots. She then saw someone running, who unbeknown to her at the time, was Carter. Nearby, she saw a white Crown Victoria with four people in it, two of whom she recognized -- defendant and Sedrick Willis, who she used to date. She saw defendant get out of the vehicle with something in his hand and appeared to be looking for someone. Defendant then returned to the vehicle and left.
Defendant did not testify at trial.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, defendant urges the evidence was insufficient to prove that he was the person who shot Julius Carter.
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, 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 La. C.Cr.P. art. 821(B); State v. Ordodi , 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall , 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder 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 fact finder who weighs the respective credibility 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.
Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. See La. R.S. 14:30.1(A)(1). 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. La. 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. Butter , 322 So.2d 189 (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. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan , 94-2503 (La. 11/25/96), 684 So.2d 382, 390. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the 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). Specific intent to kill may be inferred from a defendant's act of deliberately pointing a gun and firing it at a person. State v. Freeman , 45,127 (La. App. 2nd Cir. 4/14/10), 34 So.3d 541, 545, writ denied, 2010-1043 (La. 11/24/10), 50 So.3d 827. See State v. Robinson , 20021869 (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).
Defendant asserts that the identity of the shooter was not proven because of alleged contradictions in the testimony. For example, defendant notes that Thompson testified at a pretrial hearing that she saw defendant get out of the driver's side of the Crown Victoria, while Carter testified at a pretrial hearing that he saw defendant in the front passenger seat. But the record shows that Carter was referring to where defendant was in the vehicle the first time it passed. The driver drove away before returning sometime later, and it was at that point that defendant exited the vehicle and shot Carter.
Defendant also notes that Carter signed an "Affidavit of No-Prosecution" on April 22, 2010. The affidavit was handwritten by Shannon Battiste, defense counsel in this bench trial, and provides that Carter mistakenly identified defendant as the shooter, and that Carter "did attest that he knows who shot him & that person has a striking resemblance to" defendant. Carter testified at trial that he signed that affidavit to protect himself and his family. He stated that he did not want to get shot and killed, and that if he had not signed it, he probably would not be alive to testify at trial. Carter testified that the affidavit was a lie, and that he was positive it was defendant who shot him. Carter further testified that after signing the affidavit, he contacted District Attorney Hillar Moore and informed him that he signed the affidavit to save his family. In confirming Carter's testimony, Hillar Moore testified at trial that he had spoken to Carter, who informed him that "he had signed an affidavit at defense counsel's office and wanted to apprize me of that, and the reason that he did it was previously as he's discussed in testifying today."
Defendant also points out that Carter testified that, aside from defendant, there were two other people in the vehicle who Carter did not recognize. However, on cross-examination, Carter stated that he also recognized John Coleman as one of the passengers. Defendant suggests Coleman was a possible alternative to the identity of the shooter because Carter testified that his (Carter's) nephew had disagreements with Coleman in the past and that Coleman "shot up" his family's house. Defendant further maintains that Ronald Dunn was a possible alternative to the identity of the shooter because Thompson testified on cross-examination that she knew Dunn lived off of Plank Road and that Dunn and defendant looked alike; further, Thompson had spoken to defendant on the phone while he was in jail and told him that she knew he (defendant) did not do it, and that he and Dunn look alike. On redirect examination, Thompson testified that she did not see Dunn in the Crown Victoria the night Carter was shot. She further stated that she did not contact defendant, but he contacted her from jail, and that she wanted defendant to think she was trying to help him because she feared for her safety.
All of the aforementioned arguments regarding sufficiency set forth by defendant were based on credibility determinations. Despite any alleged or apparent inconsistencies in the testimony, Carter throughout the trial was unwavering in his certainty that it was defendant who shot him. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor , 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell , 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn , 479 So.2d 592, 596 (La. App. 1st Cir. 1985). 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). Further, 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).
The trial court heard all of the testimony and viewed all of the physical evidence presented to it at trial and, notwithstanding any conflicting testimony (including other alleged discrepancies asserted by defendant regarding lighting and distance at the scene of the shooting), found defendant guilty. The trial court's finding of guilt reflected the reasonable conclusion that, based on the physical evidence, eyewitness testimony, and other testimony, the defendant was the person who shot Carter. In finding the defendant guilty, the trial court clearly rejected defendant's theory of misidentification, which it was free to do. See State v. Moten , 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). See also State v. Andrews , 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 453.
After a thorough review of the record, we find the evidence negates any reasonable probability of misidentification and supports the trial court's finding of guilt. 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 defendant was guilty of attempted second degree murder. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, defendant contends the trial court erred in denying his motion for new trial. Specifically, defendant claims that he did not waive his right to a jury trial.
The punishment for attempted second degree murder is confinement at hard labor. La. R.S. 14:30.1(B) and La. R.S. 14:27(D)(l)(a). Accordingly, defendant was entitled to a jury trial. La. Const, art. I, § 17(A); La. C.Cr.P. art. 782(A). Louisiana Code of Criminal Procedure article 780 provides in pertinent part:
A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. At the time of arraignment, the defendant in such cases shall be informed by the court of his right to waive trial by jury.
B. The defendant shall exercise his right to waive trial by jury in accordance with the time limits set forth in Article 521....
Thus, if a defendant is tried and convicted by a judge when he is entitled to a trial by jury, the record must show that a jury trial was knowingly and intelligently waived. See State v. Cappel , 525 So.2d 335, 336-37 (La. App. 1st Cir.), writ denied, 531 So.2d 468 (La. 1988). While the record does not contain any objections by defendant regarding his trial by judge, it does not reflect that defendant waived his right to trial by jury. Initially defendant's case was allotted to Judge Wilson Fields, who presided over the arraignment and several pretrial hearings. Ultimately, the case was re-allotted to Judge Trudy White, who conducted defendant's bench trial. There is nothing in the record transcript or minute entries before us that indicates either trial judge discussed with defendant his right to a jury trial.
It is clear that the trial court did not comply with the Article 780 requirement that it inform defendant of his right to waive trial by jury. However, in State v. Sharp , 338 So.2d 654, 660 (La. 1976), the Louisiana Supreme Court held that when a defendant is not informed by the trial judge at arraignment of his option to waive his right to a jury trial, as required by Article 780, the defendant's conviction will not be reversed absent a showing of prejudice. See Cappel , 525 So.2d at 336.
The Louisiana Supreme Court, in State v. Nanlal , 97-0786 (La. 9/26/97), 701 So.2d 963, set forth a procedure whereby a case may be remanded to the trial court for an evidentiary hearing on whether the defendant validly waived the right to a jury trial. The Nanlal court instructed that if the evidence shows that the defendant did not make a valid waiver, the trial court must set aside the conviction and sentence and grant the defendant a new trial. Nanlal , 701 So.2d at 964. See State v. Dominguez , 2010-1868 (La. App. 1st Cir. 12/8/10), 52 So.3d 1117 (per curiam), writ denied, 2010-2781 (La. 1/28/11), 56 So.3d 956.
In the instant matter, defendant filed a motion for new trial on the grounds that he was not informed of his right to a jury trial and, as such, did not knowingly and intelligently waive that right. No remand in this case is necessary because, pursuant to the directive of Nanlal , the trial court conducted an evidentiary hearing, based on defendant's new trial motion, to determine if defendant knew about his right to a jury and if he knowingly and intelligently waived that right.
In denying the motion for new trial, the trial court made the following findings:
The court is ready to rule. At a contradictory hearing on the particular issue, credibility is a concern of the court in trying to assess the truth or what was deduced at the hearing itself. So while it's not conclusive to determine whether there was a waiver of his rights, it is important for the Court to make a judgment call. There was a lot of publicity associated with this case. The trial attorney, Shannon Battiste, said that it was the way he operated, that he advised his clients of the pros and cons of a jury versus a bench trial. Apparently, there was some discussion about Trudy White being fair. I guess people in the streets don't put the Judge in front of it, but I'm okay with that. I like the part that the fair was after the Trudy White. So some discussion and some weighing is there a jury or is there a bench trial was had. That's what I discerned from Mr. Denako's testimony, and that's what I discerned from Shannon Battiste's testimony. No, the record does not reflect at arraignment that the defendant was advised of his right to a jury trial. No, there was no colloquy of this Court advising him in open court, but it was apparent that no one forced a jury trial and I never forced a bench trial. It is always the decision of the defendant. In fact, we schedule to accommodate jury trial because it takes longer. If we have to work through the weekend, we will work through the weekend, because the following week we may have another jury trial that's coming. So whatever we do, this Court is most accommodating. We did not force Mr. Denako to have a bench trial against his will. It is corroborated by the arguments of counsel, that's why we didn't go to jury trial, speaking about the publicity, and we chose to have a bench trial. The only we was the attorney and the defendant. The motion for new trial is denied.
We agree with the trial court's ruling. It appears the pretrial publicity played an important role in defendant and defense counsel electing a bench trial. In his closing argument, defense counsel, Shannon Battiste, stated in pertinent part:
He [prosecutor] made a reference to that we chose to go a judge trial, and maybe, just maybe that was because if I go in the post office across the river and someone says, hey, you got that case, you
represent that horrible dude. So let's not try to pretend and act like we don't know. That's why we didn't go jury trial. We didn't go jury trial because my brother was in his office in Zachary and he looks at the newspaper right after we had the preliminary exam, you know — channel 2 was here, I didn't call them, and I believe channel 9. I get a phone call, it's his secretary. She said, your brother wants to speak to you, and he says, are you insane? Our parents are 74 years old, are you trying to give them a heart attack? The State said that the victim was shot at seven or eight times.
At the motion for new trial hearing, Battiste testified that he met with defendant maybe seven times before the case went to trial. He did not remember having a specific conversation about his right to a jury trial, but it is his practice to always inform any of his clients of that right. He testified, for example, "1 don't independently recall, but it's something I do in all my cases. I never have had a criminal case that I can recall where I haven't informed somebody of their right to a judge or jury trial." Battiste later testified, "Again, like I said, I know he would have had to have been advised, because that's something I always do." Battiste further testified that he had discussed the possibility of a bench trial with a member of defendant's family:
It was someone from the defendant's family. It wasn't the defendant himself, which is why I'm pretty certain that I would have had to discuss the option of a jury trial with my client. But if you ask me do I recall, and I don't recall every detail, but as general practice -- 1 mean, I represent dozens of criminal clients a year, and that's something that's always done. I can only tell you what I recall.Battiste explained how defendant's family was happy that the case was before Judge Trudy White:
I just remember them being happy, because they felt like, I guess, procedurally-wise, that you would be fair. I'm just telling you the best that I can recall. If you ask me how many times I visited with them, I don't remember, but I know it was a lot. I'm just telling you what I recall. I guess it was the general consensus in the family that, you know, Judge White was fair. When it got moved from Wilson Fields, I remember there being a general consensus, okay, it's
fairness. I don't remember if that was an ultimate factor or not, but like T explained, that wouldn't have been my choice to decide to go judge or jury. It's been like ten or eleven months ago, I actually don't remember, but I know that it's something that I would have done.
Battiste testified that, after speaking with defendant's family member, he contacted the office of one of the prosecutors of defendant's case and said that they should have a bench trial. Mark Pethke, a prosecutor in the case, testified at the hearing that he and Battiste had a number of discussions in the six to eight weeks leading up to the trial. In the weeks before, and specifically in the week before the trial, Pethke stated he discussed with Battiste whether they were going to be needing a jury. When asked how the case became a bench trial, Pethke explained:
I spoke to Mr. Battiste, like I said, in the weeks before the trial, and Mr. Battiste indicated to me that they were on the fence about whether they were going to be opting for a jury trial or for a bench trial. He indicated that he needed to speak to his client. On the Wednesday or Thursday of the week before the trial, he telephoned me in my office at the District Attorney's office. He indicated that he had spoken to his client and that they had opted for a bench trial. At that time, I informed -- I believe it was Yodie or it could have been Courtney Honore, the minute clerk, but I believe it was Yodie, that I had spoken to Mr. Battiste and he had indicated that they were going to be opting for a bench trial. I suppose she passed that information on to the judge.
Defendant testified at the hearing that he had never been to trial before, and that he and Battiste never discussed his right to a jury trial, or that he had the option of either a jury or bench trial. Defendant also stated, "I didn't know the difference between a judge or jury trial. I thought a trial is a trial."
The totality of the evidence adduced at the motion for new trial hearing convinces us that defendant knew from a number of discussions with his counsel that he had a right to a jury trial, and that he knowingly and intelligently chose to waive that right, preferring instead to have his case decided by Judge White. We note as well defendant's familiarity with the criminal justice system. During sentencing, the trial court noted it had ordered a presentence investigation report and that the report indicated defendant had been involved with the criminal justice system "as early as eleven years old" and that he "had several arrests and convictions [sic] as a juvenile." The trial court continued:
From 2004 through 2009 you were arrested for a number of charges. On July 21, 2004, you were charged with resisting an officer, but the probation officer was unable to determine how it was resolved. On February 1, 2008, you were arrested for first degree murder, criminal conspiracy to commit first degree murder and aggravated kidnapping. You were subsequently billed by the District Attorney for attempted second degree murder, which was later dismissed.
The trial court did not err in denying the motion for new trial. Accordingly, this assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.