Opinion
No. 2008 KA 0817.
October 31, 2008.
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF ST. TAMMANY, STATE OF LOUISIANA TRIAL COURT NUMBER 396443 HONORABLE WILLIAM J. KNIGHT, JUDGE PRESIDING.
Walter P. Reed, Covington, LA, Attorneys for Appellee, State of Louisiana.
Kathryn W. Landry, Baton Rouge, LA, Holli Herrle-Castillo, Marrero, LA, Attorney for Defendant/Appellant, Carl England.
BEFORE: CARTER, C.J., WHIPPLE, AND DOWNING, JJ.
Defendant, Carl England, was charged by bill of information with one count of aggravated burglary, a violation of LSA-R.S. 14:60, and one count of attempted second degree murder, a violation of LSA-R.S. 14:27 and 30.1. Defendant entered a plea of not guilty and was tried before a jury. The jury returned a verdict of guilty on both counts.
The trial court sentenced defendant to a term of fifteen years at hard labor for his conviction for aggravated burglary, and thirty-five years at hard labor without benefit of parole, probation, or suspension of sentence for his conviction for attempted second degree murder. The trial court ordered the sentences to be served concurrently.
Defendant appeals, asserting the following assignments of error:
1. The trial court erred in failing to grant the motion for post verdict judgment of acquittal based upon insufficient evidence.
2. The trial court erred in failing to grant the mistrial motion. We affirm defendant's convictions and sentences.
FACTS
On February 13, 2005, Alexis Calcotes (the victim) was temporarily staying at a mobile home owned by her aunt, Ella Calcotes Warren. The mobile home was located at the Slidell Trailer Park at 1980 Gause Boulevard in Slidell. At the same time, Tameka Jones, and her boyfriend, Courtney Dufrene, who were friends of the victim, were also staying in the mobile home.
In the early morning hours of February 13, the victim, accompanied by two men, returned to the residence. When their vehicle approached the residence, the victim saw someone, whom she later identified as defendant, lying underneath the residence with a baseball bat in his hands. The victim recognized defendant as a former boyfriend of her mother. Defendant eventually came out from underneath the residence, approached the vehicle, and began striking the window of the vehicle with the baseball bat. According to the victim, she told the two men in the vehicle to leave defendant alone, exited the vehicle, and then walked into her residence. According to the victim, defendant walked away.
As the victim prepared for a bath, she heard defendant beating on a window vent and speaking to her. The victim called the police and complained about defendant. However, when the police responded to the dispatch at approximately 4:30 a.m., they could not locate defendant or anyone else in the vicinity of the residence. The information provided to the police indicated the suspect was a man dressed in dark blue clothing. Although the police records failed to indicate that the victim named the defendant as the person causing a disturbance, the victim testified at trial that she informed the police of defendant's identity.
The victim testified that following her bath, a friend identified only as Repper, stopped by the residence. According to the victim, Repper was going to take some friends to their homes, then return to her residence. The victim also testified that she heard Repper and defendant speak to each other as Repper was outside of the residence.
The victim testified that at the time of trial, Repper was deceased.
The victim fell asleep and awoke to find defendant on her back, attacking her and screaming at her for "calling the police on him." The defendant also was screaming about how the victim's mother had been unfaithful to him. According to the victim, the defendant began stabbing her with a knife, then hitting her with a hammer. He eventually fled the residence. At trial, the victim testified she was absolutely certain defendant was the person who attacked her.
After defendant fled, the victim contacted 911. Deputy Matthew Lewis of the St. Tammany Parish Sheriff's Office responded to the call at approximately 8:35 a.m. Deputy Lewis obtained information from Courtney Dufrene and Tameka Jones, who were in the residence at the time of the attack, identifying defendant as the person who stabbed the victim and fled. Because the trailer park was bordered by a wooded area on three sides, Deputy Lewis was able to relay this information to other police officers and a perimeter was set up in an attempt to apprehend defendant. Despite the use of a canine unit near the residence, the police were unable to apprehend the defendant.
Detective Steve Gaudet of the St. Tammany Parish Sheriff's Office was the lead investigator for this incident. According to Detective Gaudet, the rear door of the residence had been pried open in two different places, at the bottom and adjacent to the deadbolt lock. The deadbolt lock was hanging down from its original position. Based on the condition of the door, Detective Gaudet believed this was the point of entry used by the attacker. A large claw hammer was also recovered near the vicinity of the rear door along with a silver and blue baseball bat.
Detective Gaudet testified that Dufrene and Jones identified defendant as the person who fled the residence following the attack. Despite seizing several items from the residence, including a knife and a jacket that Dufrene thought he had previously seen defendant wearing, none of these items tested positive for the defendant's DNA.
Due to the severity of her wounds, which included stabbing wounds and a punctured lung, the victim was transported to the Medical Center of Louisiana (Charity Hospital) in New Orleans. Later that morning, Detective Gaudet traveled to Charity Hospital to speak with the victim. The victim was in stable condition and able to identify defendant as her attacker. The victim also told Detective Gaudet that defendant was the person she had seen earlier that morning outside of the residence.
Douglas Boos, who resided at the adjacent trailer from the victim and was familiar with the Calcotes family and defendant, testified at trial. Boos stated that at approximately 8:00 a.m. on the day of this incident he saw defendant sitting on the side porch of the Calcotes' residence. Boos testified he walked outside and spoke to defendant for about twenty minutes. During this conversation, Boos told him that he was sitting on the side of the residence because he did not want anyone inside to know he was there. Despite this statement, Boos testified that nothing seemed to be out of the ordinary with defendant.
Boos returned to his residence to get another cup of coffee and was inside for "less than five minutes" before he again went outside. When he stepped outside, Boos heard screaming from the victim's residence. Boos saw Dufrene exit the trailer and thought he saw someone in the nearby wooded area. According to Boos, Dufrene told him that defendant had just stabbed and beaten the victim. Boos then observed the victim, covered in blood, walk out of the trailer. Boos later described defendant as 5'5", approximately 220 pounds, missing a tooth, and wearing a T-shirt and blue pants. The description provided by the victim in her earlier call to the police also stated defendant was wearing blue pants.
On February 15, 2005, Detective Gaudet relayed information to Detective Gary Ponthieux of the Gulfport Police Department, regarding defendant's suspected whereabouts in Gulfport, Mississippi. Detective Ponthieux obtained an arrest warrant and, along with Gulfport Detectives Loprosser and Koewes, proceeded to 1832 41st Avenue in Gulfport at approximately 4:00 p.m. The detectives exited their vehicle and approached three men standing in the backyard of the residence. The detectives explained they were following up on an investigation and needed some information. One of the men in the backyard was identified as defendant. After a short time, Detective Ponthieux observed defendant become very nervous, then attempt to flee. In order to apprehend defendant, the detectives became involved in a "very violent" struggle to subdue defendant. After the police handcuffed defendant and began escorting him from the backyard, defendant attempted to gain access to a sweatshirt hanging from a fence. Detective Ponthieux later discovered a knife in the pocket of the sweatshirt. Due to the severity of the injuries defendant sustained while resisting arrest, he was taken to Gulfport Memorial Hospital for treatment before being booked into the Harrison County Mississippi Jail.
Defendant testified on his own behalf. According to defendant, on the morning of February 13, he woke up at his nephew's home around 5:45 a.m. and was supposed to perform a "job" with his nephew. Because the job was cancelled, he asked his nephew to drop him off at the Slidell Trailer Park. Defendant testified he arrived at the trailer park at approximately 6:30 a.m. and spoke with Boos and Repper outside of the Calcotes' trailer. After Repper entered the Calcotes' residence, defendant knocked on the window and called out, "You out that bed"? Defendant stated that Repper then came out of the residence and began fighting with him. According to defendant, other people got involved in the fight and he admitted to striking the victim in the face during the ensuing brawl.
Defendant stated that the next thing he knew, he was running out of the residence, toward the highway. An acquaintance of defendant, identified only as "Bird," happened to be driving by the trailer park and offered defendant a ride. According to defendant, Bird wanted to bring him to the hospital, but he declined. Instead Bird gave defendant some pain pills and offered to take defendant to Gulfport. Defendant testified he gave Bird $100.00, and Bird drove him to Mississippi.
Defendant denied he fought with the Gulfport police detectives who were trying to arrest him. Defendant claimed the police began beating him first. Defendant further denied that he attacked the victim in her residence. Defendant acknowledged his prior criminal history, including convictions for trespassing, aggravated battery, and simple burglary. Defendant admitted he never told the police about the fight he claimed had occurred in the Slidell Trailer Park on the morning of February 13, 2005. Finally, defendant denied he was angry at the victim's mother, Lexie Calcotes, for being unfaithful to him.
Defendant's wife, Judy England, testified that she was aware of defendant's relationship with Lexie Calcotes.
SUFFICIENCY OF THE EVIDENCE
In defendant's first assignment of error, he contends the trial court erred in failing to grant his post-verdict judgment of acquittal. Specifically, defendant argues the physical evidence fails to link him to the crimes, and the only evidence of his involvement to the crimes is the testimony of the victim, which is contradicted by Boos's testimony that indicated defendant forced his way into the trailer, attacked the victim, and fled in the span of five minutes.
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(B). In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which requires that 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, p. 2 (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.
Louisiana Revised Statute 14:60 defines aggravated burglary, in pertinent part, as follows:
Aggravated burglary is the unauthorized entering of any inhabited dwelling . . . where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.
The crime of second degree murder, in pertinent part, is the killing of a human being when 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. Thus, 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, p. 4 (La.App. 1st Cir. 5/10/96), 673 So. 2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So. 2d 923.
In accordance with LSA-R.S. 14:27(A), 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. It shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. An attempt to commit second degree murder requires that the offender possess the specific intent to kill and commit an overt act tending toward the accomplishment of that goal. State v. Herron, 2003-2304, p. 5 (La.App. 1st Cir. 5/14/04), 879 So. 2d 778, 783. See also LSA-R.S. 14:27(A) 14:30.1(A)(1).
In finding defendant guilty of these offenses, the jury clearly accepted the victim's version of events. Although defendant argues that he could not have forced open the door of the residence, attacked the victim, and fled within the time of "less than five minutes" established by Boos's testimony, clearly the jury was aware that this time frame was an estimate and could have been incorrect. Moreover, the failure of any of the physical evidence to test positive for defendant's DNA does not warrant reversal of his convictions. The victim clearly and consistently identified defendant as her attacker from her first interview while in the hospital until she testified at trial. Victim testimony alone is sufficient to prove the elements of the offense. The trier of fact may 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. State v. Lofton, 96-1429, p. 5 (La.App. 1st Cir. 3/27/97), 691 So. 2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So. 2d 1331. In reviewing the evidence, we cannot say the jury's determinations were 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.
This assignment of error is without merit.
DENIAL OF MOTION FOR MISTRIAL
In his second assignment of error, defendant argues the trial court erred in denying his motion for mistrial. During direct examination by the prosecutor, the victim testified that defendant had stalked her and her mother and had taken her mother's keys from her at a hotel so she could not leave him. The defense requested a mistrial, which was denied by the trial court.
Defendant argues this testimony was inadmissible evidence of another crime and indicated a history of violence against the victim's mother. Defendant argues that because the only evidence supporting the verdicts was the victim's testimony, this inadmissible evidence played a role in the jury's determination of guilt. Finally, defendant contends the trial court's admission that it was unaware of what was said prior to its ruling, prevented it from effectively ruling on the motion for mistrial.
The record reflects that in denying the motion for mistrial, the trial court commented that although it had not been specifically listening to the objectionable testimony, at times, the witness exhibited a desire to volunteer information. The trial court reminded the prosecutor to direct her carefully and then admonished the jury to disregard any evidence of any other incident in their determination of guilt of these offenses.
Remarks by witnesses fall under the discretionary mistrial provisions of LSA-C.Cr.P. art 771, which, in pertinent part, provides as follows:
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
* * *
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
A mistrial under the provisions of Article 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. A mistrial is warranted when certain remarks are considered so prejudicial and potentially damaging to the defendant's rights that even a jury admonition could not provide a cure. Mistrial is a drastic remedy that is authorized only where substantial prejudice will otherwise result to the accused. A trial court's ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Johnson, 2006-1235, pp. 8-9 (La.App. 1st Cir. 12/28/06), 951 So. 2d 294, 300.
Although the record does not reflect any reference to a history of violence on the part of defendant toward the victim or her mother, the witness's response did volunteer information regarding the history of the relationship between defendant and her mother. However, the trial court promptly and properly admonished the jury to disregard such evidence.
Further, we are not persuaded that the victim's unsolicited statement prejudiced defendant to the extent that he was denied a fair trial. The jury was already aware of testimony indicating that defendant had been hiding outside of the victim's residence when she arrived home in the early morning hours of February 13, and that defendant was seen shortly before the attack lurking on the side of the residence, because he did not want anyone to know he was outside. Under the circumstances, we cannot say the victim's brief reference to defendant's actions toward her and her mother at some unsubstantiated point in the past went so far as to be an error that the trial court's admonition could not cure. Accordingly, we find no error by the trial court in refusing to grant a mistrial.
This assignment of error is without merit.
REVIEW FOR ERROR
Defendant also requests that this Court examine the record for error under LSA-C.Cr.P. art. 920(2). We routinely review the record for such error, whether or not such a request is made by the defendant. Under LSA-C.Cr.P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings, without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 2005-2514, pp. 18-22 (La.App. 1st Cir. 12/28/06), 952 So. 2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So. 2d 1277.