Opinion
2022 KA 1317
12-27-2023
STATE OF LOUISIANA v. THOMAS GREEN
Hillar C. Moore, III District Attorney Jerri Ann Lee Assistant District Attorney Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana Jane L. Beebe Louisiana Appellate Project Addis, Louisiana Attorney for Defendant/Appellant Thomas Green
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. 03-18-0222, Section 8 The Honorable Tiffany Foxworth-Roberts, Judge Presiding
Hillar C. Moore, III District Attorney Jerri Ann Lee Assistant District Attorney Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana
Jane L. Beebe Louisiana Appellate Project Addis, Louisiana Attorney for Defendant/Appellant Thomas Green
BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.
The Honorable Guy Holdridge, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
HOLDRIDGE, J.
The defendant, Thomas Green, was charged by bill of information with attempted second degree murder (count I), a violation of La. R.S. 14:27 and La. R.S. 14:30.1, and communicating of false information of planned arson (count II), a violation of La. R.S. 14:54.1. He pled not guilty on both counts. Following a jury trial, he was found guilty as charged on count I and not guilty on count II by unanimous verdicts. Thereafter, the State filed a habitual offender bill of information against the defendant, alleging he was a third-felony habitual offender. The defendant denied the allegation. Following a hearing, he was adjudged a third-felony habitual offender and sentenced to imprisonment for the remainder of his natural life without benefit of parole, probation, or suspension of sentence. See La. R.S. 15:529.1(A)(3)(b). The defendant now appeals contending the evidence was insufficient to support the jury's verdict of attempted second degree murder. For the following reasons, we affirm the conviction and sentence.
Predicate number 1 was set forth as the defendant's October 10, 1990 conviction for armed robbery (count IV of six counts of armed robbery) under 19th Judicial District Court Docket number 05-90-573. Predicate number 2 was set forth as the defendant's February 11, 2008 conviction for aggravated flight from an officer under 19th Judicial District Court Docket number 06-07-0437.
The sentencing minutes indicate the defendant was sentenced to 999 years at hard labor "WITHOUT BENEFITS." The sentencing transcript, however, reflects the defendant was sentenced to life imprisonment for the remainder of his natural life without benefit of parole, probation, or suspension of sentence. When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
FACTS
On January 9, 2018, the victim, Kathy McCarty was attacked by an assailant who struck her in the head with a lock attached to a bicycle chain. McCarty did not look at the assailant's face, but recognized the defendant's voice when he told her prior to the attack, "B***h, I'm fixing to kill you." Prior to the incident, McCarty dated the defendant for approximately two years, during which time they lived together. McCarty left the defendant after he refused to contribute to rent or bills for their shared residence. Thereafter, the defendant threatened to kill McCarty.
On January 10, 2018, arrest warrants were issued for the defendant for stalking, simple assault, simple criminal damage to property, communicating of false information of planned arson, attempted second degree murder, and "Stalking [Gwen's] Law Applicable." Later that day, the Louisiana State Police Fugitive Task Force apprehended the defendant.
SUFFICIENCY OF THE EVIDENCE
In his sole assignment of error, the defendant contends the evidence was insufficient to support the jury's verdict. The defendant argues the State failed to prove his identity as the assailant and, even assuming identity was proven, failed to prove specific intent.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV, § 1; La. Const, art. I, § 2. The standard of review for sufficiency of the evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime and the defendant's identity as the perpetrator of the crime beyond a reasonable doubt. See La. C.Cr.P. art. 821(B); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Williams, 2019-0077 (La.App. 1 Cir. 5/31/19), 2019 WL 2315340, *2 (unpublished), writ denied, 2019-01060 (La. 10/1/19), 280 So.3d 158. The Jacksonstandard 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 fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Bessie, 2021-1117 (La.App. 1 Cir. 4/8/22), 342 So.3d 17, 22, writ denied. 2022-00846 (La. 9/20/22), 346 So.3d 802.
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[.]" La. R.S. 14:30.1(A)(1). Under La. R.S. 14:27(A), a person is guilty of an attempt to commit an offense when he has a 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." Specific intent is that state of mind that 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).
The gravamen of attempted second degree murder is the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Griner, 2019-0322 (La.App. 1 Cir. 9/27/19), 2019 WL 4731973, *3 (unpublished), writ denied. 2019-01984 (La. 7/24/20), 299 So.3d 68. Although the statute for the completed crime of second degree murder allows for a conviction based on "specific intent to kill or to inflict great bodily harm," La. R.S. 14:30.1(A)(1) (emphasis added), specific intent to kill is an essential element of the crime of attempted second degree murder. Griner, 2019 WL 4731973 at *3. The State bears the burden of proving those elements, along with the burden to prove the identity of the defendant as the perpetrator. State v. Coleman, 2017-1045 (La.App. 1 Cir. 4/13/18), 249 So.3d 872, 877, writ denied, 2018-0830 (La. 2/18/19), 263 So.3d 1155. 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. A positive identification by only one witness is sufficient to support a conviction. Bessie, 342 So.3d at 23.
In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion. State v. Dorsey, 2010-0216 (La. 9/7/11), 74 So.3d 603, 634, cert, denied. 566 U.S. 930, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012). Further, 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. Accordingly, on appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. Bessie, 342 So.3d at 23. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La.App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987).
On December 24, 2017, McCarty received a phone call about the alarm going off at the house she rented. At that time, she was living in a women's shelter because she was terrified of the defendant. According to McCarty, the defendant had broken into the home and discovered the address where she worked, i.e., the home of Monica and Henry Bradsher, and then telephoned Monica and told her that he had her address. McCarty and her daughter, Dekeydra Avery, went to McCarty's home. They alerted the police when they discovered that someone had thrown a rock or rocks through the front window. Avery testified she showed the responding officer, later identified as Baton Rouge Police Officer Marvin Smith, threatening text messages the defendant had sent to her cell phone. In the messages, the defendant stated, "Bitch done took everything from me," he would not stop until he "[took] her life[,]" and "when [the defendant] was done[,] the bitch won't be able to work or live no where she got me in the streets. She's a dead, she dead." Avery did not see the defendant break the window, but believed he had done so because he had been calling her cell phone. Avery passed her phone to Officer Smith when the defendant called her at the scene. Officer Smith testified, thereafter, the defendant stated, "I see you talking to them bitches and I'm going to make their life miserable like they made mine."
The caller ID of Avery's phone identified the defendant as the sender of the messages. Additionally, in his interview with the police, the defendant provided a contact number for himself that matched the telephone number listed for the sender of the messages threatening McCarty.
On January 9, 2018, McCarty was working for Monica and Henry Bradsher at their home in Baton Rouge. McCarty testified that after she cooked for the couple and their grandson, she attempted to walk out to her car to leave. However, before she reached her vehicle, someone stepped out in front of her from behind a big tree and said, "Bitch, I'm fixing to kill you." McCarty was afraid to look at the assailant's face, but "knew the voice" as that of the defendant. She testified, "I was scared to look in his face, but I know his voice anywhere." She screamed as the assailant beat her with a lock attached to a bicycle chain. According to McCarty, her head was "busted,.. open," she thought the attacker was trying to kill her, and she was going to die. Henry Bradsher and his grandson came out to investigate, and McCarty was able to escape into their home. She immediately stated that "Thomas Green" had hit her. When help arrived, McCarty reported that the defendant was the person that had hurt her. She was taken to the hospital, and was treated and released for a soft-tissue injury to her scalp.
Holli Jones was an EMT on January 9, 2018, and treated McCarty for her head injury. Jones testified McCarty stated her ex-boyfriend had assaulted her with a chain wrapped around his hand.
Janelle Duhon was a physician's assistant on January 9, 2018, and treated McCarty for her head injury. She placed two staples into McCarty's head to close a two-centimeter laceration. She also had a CT scan performed of McCarty's head and x-rays performed of McCarty's neck and one shoulder. McCarty's medical records indicated she reported "Thomas" had hit her with a chain.
Following advice of his Miranda[ rights, in an interview with Baton Rouge Police Department Detective Brandon Woods and Detective J. Weber, the defendant denied any involvement in either the December 24, 2017 or January 9, 2018 incidents. The defendant indicated he was homeless and used a bicycle for transportation. He further indicated he was left-handed, and the police noticed his left hand was swollen. The defendant stated the swelling was due to his high blood pressure.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The defendant argues McCarty never saw her assailant and identified him only by his voice. He further argues the evidence failed to establish his specific intent to kill McCarty because she suffered a two centimeter laceration on her head that required two staples and was treated and released on the same day.
The evidence in this case negates any reasonable probability of misidentification and supports the jury's finding of guilt. In finding the defendant guilty, the jury clearly rejected the defense's theory of misidentification. See Moten, 510 So.2d at 61; State v. Warren, 2013-1724 (La.App. 1 Cir. 3/24/14), 2014 WL 1177926, *3 (unpublished). We cannot say that determination was irrational under the facts and circumstances presented. See Ordodi, 946 So.2d at 662. Considering the evidence presented at trial, the jury could have rationally concluded that the defendant was the assailant who attacked McCarty. McCarty's recognition of the defendant's voice during the attack and her testimony establishing her familiarity with his voice established his identity as her assailant. See State v. Folse, 2016-0808 (La.App. 1 Cir. 12/22/16), 2016 WL 7407412, *1-*4 (unpublished), writ denied, 2017-0162 (La. 9/29/17), 227 So.3d 283 (evidence sufficient to support attempted armed robbery conviction where robbers used hoodies and bandanas to attempt to hide their identity, but the victim was familiar with the defendant's voice prior to the offense and recognized his voice as he demanded money); State v. Mitchell, 2009-0596 (La.App. 1 Cir. 9/11/09), 2009 WL 3162237, *3-5 (unpublished) (evidence sufficient to support armed robbery conviction where robber covered his face with bandana, but victim recognized his "droopy" eyes and voice); State v. Woods, 2007-1281 (La.App. 1 Cir. 12/21/07), 2007 WL 4480679, *1-3 (unpublished) (evidence sufficient to support first degree robbery conviction where the robber covered the top of his face with a T-shirt, lighting was "not very good at all[,]" but victim recognized the defendant's voice). Additionally, the defendant was identified as the sender of the threatening text messages to Avery's phone.
Further, although the defendant characterizes McCarty's injuries as non-life threatening, the jury was not irrational in finding that the defendant's striking McCarty in the head with a lock attached to a bicycle chain was an overt act tending toward the accomplishment of his stated intent to kill her. The defendant not only told McCarty he was going to kill her immediately before assaulting her, he also threatened to kill her in text messages sent to Avery's cell phone weeks prior to the incident. The attack was also consistent with the defendant carrying out his threat to prevent McCarty from being able to work. McCarty's injuries required medical attention and would have been more severe had no one come to her rescue. See State v. Barnett, 96-2050 (La. App, 1 Cir. 9/23/97), 700 So.2d 1005, 1009-12 (evidence sufficient to support attempted second degree murder conviction where the defendant beat his wife with his fists and hit her head against a headboard while stating, "I'm going to kill you, Bitch.").
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. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). 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 in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 703 (per curiam). 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 State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of attempted second degree murder, and the defendant's identity as the perpetrator. Therefore, this assignment of error is without merit.
TRIAL EXHIBITS
We now turn to the defendant's claim in his supplement brief that the trial record is incomplete to such a degree that reversal of his conviction is necessary due to our inability to provide the full judicial review to which he is entitled by law. The defendant contends that because the appellate record is missing all of the exhibits introduced into evidence at trial, he is unable to obtain a complete appellate review.
We note that the evidence filed during the trial is missing from the appellate record. This Court ordered the Clerk of Court for the Nineteenth Judicial District Court to supplement the record with the exhibits, but the Clerk of Court notified this Court that despite a diligent and exhaustive search, the evidence could not be located.
A criminal defendant has a right to a complete transcript of the trial proceedings, particularly, whereas here, appellate counsel was not counsel at trial. See Hardy v. United States, 375 U.S. 277, 282, 84 S.Ct. 424, 428, 11 L.Ed.2d 331 (1964); State v. Robinson, 387 So.2d 1143, 1144 (La. 1980); State v. Quinn, 2018-0664 (La.App. 1 Cir. 3/27/19), 275 So.3d 360, 373-74, affd, 2019-00647 (La. 9/9/20), 340 So.3d 829, cert, denied, 141 S.Ct. 1406, 209 L.Ed.2d 139 (2021). Further, in Louisiana, a defendant is constitutionally guaranteed the right of appeal "based upon a complete record of all the evidence upon which the judgment is based." La. Const, art. I, § 19. Thus, material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal. On the other hand, inconsequential omissions or slight inaccuracies do not require reversal, as an incomplete record may nonetheless be adequate for appellate review. See State v. Castleberry, 1998-1388 (La. 4/13/99), 758 So.2d 749, 773, cert, denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999); Quinn, 275 So.3d at 374. Finally, a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts. See La. C.Cr.P. art. 843; State v. Deruise, 1998-0541 (La. 4/3/01), 802 So.2d 1224, 1234, cert, denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001); Quinn, 275 So.3d at 374; State v. Small, 2013-1334 (La.App. 4 Cir. 8/27/14), 147 So.3d 1274, 1285-88, writ denied, 2014-1930 (La. 4/24/15), 169 So.3d354.
The evidence in the trial consisted of text messages between Avery and defendant concerning McCarty; a DVD containing bodycam footage from Officer Smith, who investigated the 2017 incident; a photograph of the defendant); a photograph of the broken window at McCarty's home taken after the 2017 incident; a protective order filed by McCarty against the defendant; the EMT report from the 2018 incident; a photograph police officer took of the victim's injuries; Baton Rouge police Miranda rights form for the 2018 incident; and a DVD containing a record of a threatening voicemail received from Ms. Bradsher which the investigating officer recorded.
The defendant contends that identity was a main issue and that much of the witnesses' testimony was based upon identification provided by the photographs, reports, and bodycam footage. However, the witnesses' identification of the defendant was not based upon these items. McCarty testified several times that she knew the defendant was the person who attacked her because she recognized his voice. Avery testified that she knew the defendant from when McCarty was dating him, and she identified him in court. As stated earlier, the caller ID for her phone identified the defendant as the sender of the text messages about which Avery testified.
The defendant also contends that the text messages introduced as evidence at trial were necessary to prove he had the specific intent to kill. However, during her testimony, Avery read the threatening text messages into the record. Moreover, McCarty testified that before she was attacked, the defendant stepped out in front of her from behind a tree and said, "Bitch, I'm fixing to kill you."
The defendant contends that his conviction cannot be sufficiently reviewed based only on the testimony of those introducing and explaining the documentary evidence because the primary form of evidence proving his guilt must be present.We disagree because in this case, these exhibits are not the primary form of evidence proving his guilt, and the defendant has not demonstrated that he is prejudiced by their omission from the record. After our review of the record, we find that we can render complete judicial review and decline to reverse Mr. Green's conviction and to order a new trial.
Defendant contends that this case is not materially different from State v. Walker, 2002-1350 (La.App. 4 Cir. 4/9/03), 844 So.2d 1060, 1066-67, writ denied, 2003-1335 (La. 12/19/03), 861 So.2d 553, where the Fourth Circuit reversed the defendant's convictions and sentences because it found that the defendant was clearly prejudiced by not having missing evidentiary exhibits on appeal. The Fourth Circuit held that the missing security videotapes of the crimes and photo lineups were very significant items of evidence the state used to identify the defendant at trial. However, in the instant case, the witnesses' testimony identified the defendant and provided the defendant's threatening statements demonstrating his specific intent to kill.
CONCLUSION
For the foregoing reasons, we affirm the defendant's conviction, habitual offender adjudication, and sentence.
CONVICTION AND SENTENCE AFFIRMED.