Opinion
2016 KA 0203
09-16-2016
STATE OF LOUISIANA v. RICHARD LAGARRIGUE
Scott M. Perilloux District Attorney Patricia Parker Amos Assistant District Attorney Amite, Louisiana Counsel Plaintiff-Appellee State of Louisiana Gwendolyn K. Brown Baton Rouge, Louisiana Counsel for Defendant-Appellant Richard LaGarrigue
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT
NUMBER 1302597, DIVISION B, PARISH OF TANGIPAHOA
STATE OF LOUISIANA HONORABLE CHARLOTTE H. FOSTER, JUDGE Scott M. Perilloux
District Attorney
Patricia Parker Amos
Assistant District Attorney
Amite, Louisiana Counsel Plaintiff-Appellee
State of Louisiana Gwendolyn K. Brown
Baton Rouge, Louisiana Counsel for Defendant-Appellant
Richard LaGarrigue BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
The defendant, Richard Lagarrigue, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and not guilty by reason of insanity and, following a jury trial, was found guilty as charged. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating three assignments of error. We affirm the conviction and sentence.
FACTS
The defendant and Heather Rizan had been in a relationship for about twelve years and had been married for seven years. They had two boys, one before the marriage and one during. They had a troubled marriage and repeatedly broke up and got back together. In 2013, they were living in a house in Loranger. As their marriage disintegrated beyond repair, they separated and Heather began seeing other men. The defendant knew Heather was dating other people. By mid-2013, Heather had moved out of the recently foreclosed Loranger house with her children and went to live with her parents in Covington. The defendant had moved out of the house and went to live with his sister in Slidell.
On July 23, 2013, the defendant and Heather went back to their Loranger house in Heather's car. According to the defendant, who testified at trial, he had to get his clothes that were left at the house; and also, they (including the children) were going on a fishing trip. The defendant had purchased a .45 caliber Taurus semi-automatic pistol the day before (July 22) and placed it in Heather's car under her passenger seat without her knowledge. While the defendant and Heather were inside talking, their children were playing outside. According to the defendant, he began looking at Heather's cell phone without her knowledge. The defendant was informed by Jason Stacey (someone who dated Heather years prior) that Jason and Heather had slept together three or four times. The defendant also claimed that he had seen pictures of another man's genitals on her cell phone. They began arguing over the texts and pictures. The defendant was upset that Heather had lied about Jason, whom Heather had said was just a friend. The defendant went outside, retrieved the gun from Heather's car, and placed it in his pants under his shirt. He watched his children play for a few minutes. The defendant then went inside and spoke to Heather. After confirming with her that the relationship was over and they were not getting back together, the defendant withdrew his gun and shot Heather as she sat on the couch. The bullet perforated Heather's lungs and heart and she died a short time later on the kitchen floor.
The defendant fled the scene and was finally stopped in St. Martin Parish. The defendant gave a recorded interview to the police on July 26, 2013. He admitted that he shot and killed Heather. The gun the defendant used to kill Heather was retrieved by the police from the center console of his vehicle.
ASSIGNMENTS OF ERROR NOS. 1 and 2
In these related assignments of error, argued together by the defendant, the defendant argues, respectively, that the trial court erred in allowing other crimes evidence at trial and that the trial court, in failing to exclude this evidence, erred in denying the motion for new trial.
The other crimes evidence at issue was a shooting at Brad's Bar on Paris Road in Chalmette on December 30, 2007. Several witnesses testified at the pretrial Prieur hearing. See State v. Prieur , 277 So.2d 126, 130 (La. 1973). Jason, who worked security at the bar, testified that he had been in a two-month relationship with Heather. In December of 2007, the defendant went to the bar and told Jason that he was Heather's boyfriend, that they had a child together, and that Heather was pregnant. Jason told the defendant nothing happened between him and Heather, and the defendant left the bar. About two weeks later, on December 30, 2007, Jason was standing outside of the bar talking to a patron. Someone fired a shot at Jason and the bullet, according to Jason, went past his head, within five feet of him. The bullet went through the front door window and lodged in the bar. Shantel, the defendant's sister, was dating Travis Davis, Jason's good friend. According to Jason, the defendant told his sister that he shot at Jason; Shantel told this to Travis, and Travis in turn told Jason. Jason was told that the defendant shot at him with a rifle, but that he missed Jason because of the scope on the rifle. Jason was also told the defendant threw the rifle in a canal. Jason went to the police with this information.
Faren Rizan, Heather's sister, testified at the Prieur hearing that in December of 2007, she went to Academy Sporting Goods with her husband at the time, Lawrence Schaeffer, and the defendant, who was Lawrence's cousin. The defendant bought a rifle at the store. Several days later, the defendant went to Faren's house. According to Faren, the defendant showed her shell casings and told her that he had tried to shoot Jason at the bar. The defendant said he had shot at Jason from atop a school; he then changed his story and said he was in his car when he shot at Jason. Faren further testified the defendant told her he had thrown the rifle in the 40 Arpent Lake Canal. When asked on cross-examination why the defendant would tell her this, given that she and the defendant were not close, Faren testified she thought the defendant was coming to the house to talk to Lawrence, his cousin. Faren testified on redirect examination that after the shooting, the defendant stayed in Mandeville because he was in hiding from the police. According to Faren, the defendant's mother forced Heather to marry the defendant shortly after the shooting so that Heather could not testify against the defendant, because of spousal privilege.
Detective Dale Athmann, with the St. Bernard Parish Sheriff's Department, testified at the Prieur hearing about the contents of the Department's police report that was prepared with regard to the 2007 shooting. Attached to the report was documentation confirming that the defendant purchased a rifle from the sporting goods store on December 23, 2007. The report also indicated that statements were taken from Travis, Faren, Shantel, and Lawrence. An arrest warrant was issued that charged the defendant with second degree murder. Finally, Detective Athmann testified that the police report indicated the defendant confessed to attempting to kill Jason.
Based on the foregoing, the trial court denied the defendant's motion in limine to exclude evidence of other criminal acts, and granted the State's La. Code Evid. art. 404(B)(1) motion to introduce other crimes evidence.
At trial, Sergeant Donald Johnson, with the St. Bernard Parish Sheriff's Office, testified that the defendant was arrested for attempted murder, and that his case initially went to court, but there was no trial and no conviction. Captain Mark Jackson, with the St. Bernard Parish Sheriff's Department, testified that the defendant had purchased a Remington .30-06 caliber rifle with a scope from Academy Sporting Goods. He further stated that the District Attorney charged the defendant with attempted first degree murder, but the charge was ultimately nol-prossed.
According to the defendant, this other crimes evidence should not have been ruled admissible at trial. The defendant argues in brief that there was not "clear and convincing" evidence that he committed the 2007 shooting. See State v. Blank , 2004-0204 (La. 4/11/07), 955 So.2d 90, 123, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007). The defendant also argues in brief that the 2007 shooting was "too dissimilar" to the instant shooting to be considered proper other crimes evidence. According to the defendant, the "insufficient similarity" between the two cases is as follows: Heather was not the target of the 2007 shooting; the weapon in the prior shooting was a rifle used at a long distance, whereas the weapon in the instant shooting was a pistol used at close range; the 2007 shooting was at a public place, whereas the instant shooting was at a home; the shots in 2007 were fired from a moving vehicle; and unlike the instant shooting, there was no immediate provocation for the 2007 shooting. Thus, according to the defendant, without sufficient similarity, "the probative value of the evidence for its purported intended purpose - to prove intent - is substantially reduced."
Louisiana Code of Evidence article 404(B)(1) provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett , 99-0917 (La. App. 1st Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So.2d 115.
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. Code Evid. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403.
The trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. See State v. Galliano , 2002-2849 (La. 1/10/03), 839 So.2d 932, 934 (per curiam). We find no abuse of discretion in the trial court's ruling. We note at the outset that, despite the defendant's assertion that this other crimes evidence was improperly used by the State to establish intent, intent was never at issue in this case. The defendant has at all times admitted that he shot and killed Heather. The primary defense theory is that the killing was a result of manslaughter, rather than second degree murder. But in either scenario, under the defendant's own admission, intent has been proven, since both types of killing require specific intent to kill.
Further, despite the defendant's assertion regarding lack of proof, the testimonial evidence at the Prieur hearing was sufficient to satisfy the requisite burden of proof. The defendant had depressive issues, had been diagnosed with major depression, and was obsessed with Heather. Jason had been dating Heather. The defendant confronted Jason in the bar he worked at and informed Jason that Heather was pregnant. A few weeks later, Jason was shot at while standing outside the bar. Faren, whose husband was the defendant's cousin, testified at the Prieur hearing that the defendant admitted to her that he had taken a shot at Jason with a rifle, but missed him because the scope was "off (not removed, but rather not sighted properly). The defendant also said he threw the rifle in a canal. The rifle was never found.
The evidence of the 2007 shooting had independent relevance to the issues of motive, plan, preparation, and state of mind. In the 2007 shooting, the defendant, upset that his pregnant girlfriend was dating another man, bought a rifle .30-06 rifle with a scope one week before the shooting. The defendant drove to the bar Jason was working at and shot at Jason's head, missing him, it appeared, by inches. Similarly, in the instant matter, even though the defendant and Heather were separated, the defendant still hoped for reconciliation. The defendant knew that Heather had been with three different men. He followed Heather around and would ask people who knew Heather what she was doing and who she had been with. The day before Heather was killed, the defendant bought a .45 caliber Taurus semi-automatic pistol from a private seller. He hid the gun under the car seat of Heather's car. When they got to their home in Loranger (the day following the defendant's purchase of the pistol), they went inside and talked. After Heather made clear to the defendant that there was no chance for reconciliation, he went outside to Heather's car and got the gun. He walked back inside, while his children were outside playing. As Heather sat on the couch, writing out a bill of sale (or exchange) to the person who cut her grass, the defendant drew his pistol and shot and killed Heather.
Heather was giving her van that no longer ran (but that could generate cash as scrap metal) to the person who cut her grass as payment for his work. --------
The defendant suggests in brief the crimes are dissimilar because the 2007 victim was someone other than Heather, whereas Heather was the victim in the instant shooting. There is no merit to this contention. There is no requirement in the law that the victim of the instant offense and the victim of the other crimes evidence or acts be the same person. In both cases, driven by jealousy and the inability to control a life he felt was spiraling out of control, the defendant bought a gun and sought to destroy the source of some perceived wrongdoing directed at him.
In State v. Colbert , 2007-0947 (La. App. 4th Cir. 7/23/08), 990 So.2d 76, 81-82, 88, writ denied, 2008-2098 (La. 5/15/09), 8 So.3d 579, the defendant killed Jonathan Jefferson, who was involved with the defendant's ex-girlfriend, but the admissible other crimes evidence all pertained to his ex-girlfriend, Jennifer Alexander. In finding the other crimes evidence proper, the Fourth Circuit, Id. at 88, stated:
It is true that the prior bad acts by the appellant all involved Ms. Alexander and did not pertain to Jefferson. However, they were all part of a pattern of the appellant's obsession with Ms. Alexander. The evidence of his prior bad acts showed his continuing intent to keep her from leaving him and from seeing other men; in most of these incidents, the appellant threatened to harm both Ms. Alexander and any man with whom he caught her. Jefferson's murder and Ms. Alexander's attempted kidnapping were the last incidents in the appellant's escalating attacks on Ms. Alexander. As such, evidence of the prior incidents was relevant to show the appellant's intent to murder Jefferson as well as his motive for doing so. The probative value of evidence of these prior offenses far outweighs its prejudicial effect. Thus, the trial court did not err by allowing the introduction of this evidence.
Further, the other crimes evidence in this case served to rebut the defendant's argument, suggested for the first time by the defendant at trial, that he may have killed Heather by accident. On direct examination, the defendant was asked what he did after he got the gun from Heather's car. He replied as follows:
I put it in my pants. I didn't want my kids to see me so I walked in the house, I shut the door. You know, I probably took a few steps. I was crying; I couldn't see straight. I started hearing things and I was yelling out to Heather, I was like, 'This is how you wanted it to end.' I said, 'It's death do us part.' I said, 'I'm not doing it any longer.' So I though [sic] about committing suicides so I just closed my eyes and when I was doing -- holding the gun, I was hearing voices like my daughter crying and -- I don't know, I just was flinging the gun around and it went off. I didn't face Heather; I didn't aimed [sic] it at Heather. I didn't think I aimed it at my head. I thought I just shot randomly.
The 2007 shooting, thus, had independent relevance to the issues of absence of mistake or accident. See La. Code Evid. art. 404(B)(1). The defendant's planning and actions at the time of the 2007 shooting were also relevant for state of mind. Cf. State v. Taylor , 2001-1638 (La. 1/14/03), 838 So.2d 729, 746, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004) (the defendant's "bad thoughts" evidence that he wanted to kill somebody allowed into evidence because the statements constituted direct assertions of the defendant's state of mind and were relevant to the defendant's motive and intent). For these reasons, any prejudicial effect was outweighed by the probative value of such other crimes evidence. See State v. Scales , 93-2003 (La. 5/22/95), 655 So.2d 1326, 1330-31, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996).
We find, further, that even had the other crimes evidence been inadmissible, the admission of such evidence would have been harmless error. See La. Code Crim. P. art. 921. The erroneous admission of other crimes evidence is a trial error subject to harmless error analysis on appeal. State v. Johnson , 94-1379 (La. 11/27/95), 664 So.2d 94, 102. The test for determining whether an error is harmless is whether the verdict actually rendered in this case "was surely unattributable to the error." Sullivan v. Louisiana , 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); Johnson , 664 So.2d at 100. The State's evidence clearly established the defendant's guilt. In particular, the State proved beyond a reasonable doubt that the defendant committed second degree murder, rather than manslaughter as argued by the defendant in brief.
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). Louisiana Revised Statute 14:31(A)(1) defines manslaughter as a homicide which would be either first degree murder 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 factfinder 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. The existence of "sudden passion" and "heat of blood" are not elements of the offense but, rather, are factors in the nature of mitigating circumstances that may reduce the grade of homicide. State v. Maddox , 522 So.2d 579, 582 (La. App. 1st Cir. 1988). Manslaughter requires the presence of specific intent to kill or inflict great bodily harm. See State v. Hilburn , 512 So.2d 497, 504 (La. App. 1st Cir.), writ denied, 515 So.2d 444 (La. 1987).
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 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).
It is the defendant who must establish by a preponderance of the evidence the mitigating factors of sudden passion or heat of blood to reduce a homicide to manslaughter. See State ex rel. Lawrence v. Smith , 571 So.2d 133, 136 (La. 1990); State v. LeBoeuf , 2006-0153 (La. App. 1st Cir. 9/15/06), 943 So.2d 1134, 1138, writ denied, 2006-2621 (La. 8/15/07), 961 So.2d 1158. See also Patterson v. New York , 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977). Further, the killing committed in sudden passion or heat of blood must be immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. See La. R.S. 14:31(A)(1). Thus, the evidence at trial had to establish that the provocation was such that it would have deprived an average person of his self-control and cool reflection.
There was no testimony or physical evidence that Heather physically provoked the defendant in any way. The testimony at trial established, instead, the defendant set into action a plan to kill his estranged wife. The defendant bought a gun from a stranger and the following day, shot and killed Heather as she sat on the couch. The defendant then dragged her body to the kitchen. He changed his pants because Heather's blood had soaked into a pant leg. The defendant never called for help or the police. The defendant left Heather to die on the kitchen floor, and left the house with Heather's purse and his two boys, who were kept unaware about what the defendant had just done to their mother. The defendant drove himself and his children in Heather's car to the Wal-Mart parking lot in Covington, where the defendant had left his vehicle. The defendant and his boys got in his vehicle and began driving. The defendant called several people to let them know he killed Heather. The defendant then brought his children to his mother in Slidell. He then stopped in Chalmette at the house of his friend, Damian Daigle, to tell him he had killed Heather and to tell Damian goodbye. The defendant got back in his vehicle and began traveling westward on I-10. According to his testimony, his mother called him several times, telling him to turn himself in. The defendant stated he called the police, but could not remember the name of the detective to ask for. By this time, the defendant was stopped by law enforcement in St. Martin Parish, and was turned over to the State Police to be taken back to Tangipahoa Parish.
The evidence overwhelmingly established that the defendant had the intent to kill Heather and, in fact, shot and killed her in complete absence of the mitigating factors of sudden passion or heat of blood. Deliberately pointing and firing a deadly weapon at close range indicates specific intent to kill. See State v. Robinson , 2002-1869 (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). There was no evidence that Heather was arguing or fighting with the defendant just before the shooting. Even if Heather had said something to the defendant that "set him off" or caused him to react, he would still be guilty of second degree murder. Mere words or gestures, no matter how insulting, will not reduce a homicide from murder to manslaughter. State v. Mitchell , 39,202 (La. App. 2nd Cir. 12/15/04), 889 So.2d 1257, 1263, writ denied, 2005-0132 (La. 4/29/05), 901 So.2d 1063. See State v. Charles , 2000-1611 (La. App. 3rd Cir. 5/9/01), 787 So.2d 516, 519, writ denied, 2001-1554 (La. 4/19/02), 813 So.2d 420 (an argument alone will not be sufficient provocation to reduce murder charge to manslaughter). See also State v. Tran , 98-2812 (La. App. 1st Cir. 11/5/99), 743 So.2d 1275, 1292, writ denied, 99-3380 (La. 5/26/00), 762 So.2d 1101; State v. Hamilton , 747 So.2d at 169; State v. Thorne , 93-859 (La. App. 5th Cir. 2/23/94), 633 So.2d 773, 777-78; State v. Quinn , 526 So.2d 322, 323-24 (La. App. 4th Cir. 1988), writ denied, 538 So.2d 586 (La. 1989).
Provocation and time for cooling are questions for the jury to be determined under the standard of the average or ordinary person, one with ordinary self-control. "If a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act." State v. Leger , 2005-0011 (La. 7/10/06), 936 So.2d 108, 171, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (quoting Reporter's Comment to La. R.S. 14:31). Whatever provocation there may have been, the defendant's killing of Heather was in no way caused by any immediate provocation by Heather. See La. R.S. 14:31; State v. Hamilton , 99-523 (La. App. 3rd Cir. 11/3/99), 747 So.2d 164, 169 (neither the defendant seeing his estranged wife with a boyfriend, nor disputes between spouses over their impending divorce are sufficient provocation to reduce first degree murder to manslaughter).
In his own words, the defendant testified that he felt his marriage to Heather was until "death do us part." Aaron Wetzel, the husband of Faren (Heather's sister) in 2013, testified that two days before Heather was shot, the defendant was at his house. Aaron stated that the defendant told him that if he (the defendant) could not have Heather, then "no one will." When Aaron assumed the defendant was joking, the defendant said, "No, I'm not joking."
The defendant and Heather had been physically separated for weeks prior to the shooting. The defendant was aware Heather had been seeing other men. All of the defendant's actions leading up to Heather's killing suggested anything but a loss of cool reflection or self-control; rather, they indicated planning and calculation. Heather had moved to her parents' house in Covington and the defendant had moved to his sister's house in Slidell. Heather, in no uncertain terms, had moved on with her life, and the defendant simply could not move on with his. He knew he could never get Heather back and, true to his word that if he could not have her then no one else could, he killed her. See Leger , 936 So.2d at 172 (the record shows that the defendant's actions in the weeks preceding the shooting demonstrate a pattern of menacing behavior and threats directed toward Zimmerman, such that his actions on the night of December 10, 2001 were more a culmination of a slow and steadily increasing anger rather than a sudden passion or heat of blood). See also Maddox , 522 So.2d at 580-82 (the defendant who bought a gun, then drove to his wife and shot and killed her was guilty of second degree murder, not manslaughter); State v. Lutcher , 96-2378 (La. App. 1st Cir. 9/19/97), 700 So.2d 961, 974-75, writ denied, 97-2537 (La. 2/6/98), 709 So.2d 731.
Based on the foregoing, the guilty verdict rendered was surely unattributable to any evidence that the defendant attempted to shoot a man whom Heather was seeing in 2007. Any error in allowing such evidence to be presented to the jury was harmless beyond a reasonable doubt. See La. Code Crim. P. art. 921; Sullivan , 508 U.S. at 279, 113 S.Ct. at 2081.
The trial court did not abuse its discretion in denying the defendant's motion in limine to preclude at trial other crimes evidence of a 2007 shooting by the defendant. As such, there was no abuse of discretion in the trial court's denial of the motion for new trial. Accordingly, these assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 3
In his third assignment of error, the defendant argues the trial court erred in denying the motion to reconsider sentence.
While the defendant has listed this assignment of error in brief, he has provided no argument for it. Accordingly, it is considered abandoned. See Uniform Rules - Courts of Appeal, Rule 2-12.4.
CONVICTION AND SENTENCE AFFIRMED.