Opinion
2013 KA 0543
01-22-2014
STATE OF LOUISIANA v. WENDELL COBY MATTHEWS
Joseph L. Waitz, Jr. District Attorney Ellen D. Doskey Assistant District Attorney Houma, LA Attorneys for Appellee State of Louisiana Bertha M. Hillman Louisiana Appellate Project Thibodaux, LA Attorney for Defendant-Appellant Wendell Coby Matthews
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 32nd Judicial District Court
Parish of Terrebonne, Louisiana
Docket No. 558,426, Division "E"
Honorable Randall L. Bethancourt, Judge Presiding
Joseph L. Waitz, Jr.
District Attorney
Ellen D. Doskey
Assistant District Attorney
Houma, LA
Attorneys for Appellee
State of Louisiana
Bertha M. Hillman
Louisiana Appellate Project
Thibodaux, LA
Attorney for
Defendant-Appellant
Wendell Coby Matthews
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
PARRO, J.
The defendant, Wendell Coby Matthews, was charged by bill of information with one count of attempted first degree murder (count 1), a violation of LSA-R.S. 14:27 and LSA-R.S. 14:30; one count of aggravated flight from an officer (count 2), a violation of LSA-R.S. 14:108.1(C); one count of illegal possession of a stolen firearm (count 3), a violation of LSA-R.S. 14:69.1; and one count of possession of a firearm by a convicted felon (count 4), a violation of LSA-R.S. 14:95.1. He pled not guilty on all counts. Following a jury trial, he was found guilty as charged on all counts. Thereafter, the state filed a habitual offender bill of information against him, alleging, in regard to count 1, he was a second-felony habitual offender. The defendant stipulated to his habitual offender status, and the trial court adjudged him a second-felony habitual offender on count 1. On count 1, he was sentenced to sixty years of imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. On counts 2 and 3, on each count, he was sentenced to two years of imprisonment at hard labor. On count 4, he was sentenced to ten years of imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Additionally, the trial court ordered that the sentences imposed on counts 2, 3, and 4 would run concurrently with the sentence imposed on count 1. The defendant now appeals, challenging the sufficiency of the evidence and challenging the trial court's refusal to suppress two recorded statements. For the following reasons, we affirm the convictions, habitual offender adjudication, and sentences.
The predicate offense was set forth as the defendant's June 19, 2007 guilty plea, under Thirty-second Judicial District Court Docket number 478858, to possession of a firearm while in possession of controlled dangerous substances.
FACTS
On November 4, 2009, between 2:00 a.m. and 3:00 a.m., Houma Police Department Officers Kelly Champagne and Keith Anthony Besson were parked parallel to each other in the Daniel Turner Trailer Court. The area was known for narcotics trafficking and consumption and had been the site of numerous murders, aggravated assaults with weapons, and fights. The driver of a Kia Sportage vehicle approached the trailer park, signaled it was turning, and started to turn into the trailer park. However, as soon as the vehicle came into the line of sight of the police officers, the driver suddenly changed direction and sped away. The police officers followed the vehicle to investigate the suspicious activity. Officer Besson was directly behind the Kia and activated his emergency lights and siren, but the driver of the vehicle refused to pull over. The driver of the Kia drove in excess of seventy miles per hour in thirty-five-mi le-per-hour speed zones and disregarded red lights. The driver eventually drove into a ditch in the Smithridge area of Chauvin, and the defendant "bailed out."
During the pursuit of the Kia, Officer Champagne saw only the defendant in the vehicle and saw only one person exit the vehicle. He chased the defendant into the woods, and used a Taser to force him to the ground. The Taser had a range of twenty-one feet, and the defendant was "well within" that range. Officer Champagne gave the defendant loud verbal commands of "Don't move," but the defendant turned up toward him, putting his right hand in front of his face. Officer Champagne determined the defendant was not going to surrender and attempted to use the Taser on him again. Before he could do so, however, he heard a shot, felt the muzzle blast crossing over his body, and realized he had been shot in the chest. He later determined he had also been shot in the arm. Officer Champagne drew his Glock firearm and "fought for [his] life." He testified, "If I was going to die, I was going to die with an empty gun, so my son would know that his dad fought, and not knowing if I hit the suspect or not, I wasn't going to leave a full gun for anybody." Officer Champagne had been trained in "light and noise discipline," and, in keeping with that training, remained as still and quiet as possible in order not to reveal his position. He heard the sound of someone "clearing their jam," and fired his own weapon again. Thereafter, Officer Besson arrived to assist him.
Officer Champagne testified he saw the muzzle flash come from the defendant on the ground. Additionally, he indicated that if anyone else had been in the woods, they would either have had a light or they would have been running into trees and bushes. Officer Champagne did not see any lights in the woods or hear anyone running, other than the defendant.
The wounded defendant was found hiding under a house trailer near the area of the shooting. He had been shot in his legs, shoulder, and ear. A Springfield .40 caliber handgun was located near a tree near the trailer. The serial number of the handgun was subsequently entered into the NCIC computer, which indicated the gun had been stolen. Additionally, a bloody cigarette was in the area.
In a November 9, 2009 recorded statement, the defendant stated he was passing through Houma in one of his "podna['s] cars" when the police started chasing him. He was scared because he was on parole and had a gun and marijuana in the car. He indicated he "ran with all the stuff," including the gun in his pocket, and heard the police shoot a Taser at him. He claimed he kept running, and the police fired a pistol at him. He was shot in the shoulder. He stated, "they tried to shoot me[,] so I turned around, and I shot pow, I ain't know I had hit him though, but I kept running." He stated he fired two rounds. He also stated he was shot twice in the leg. When asked if he had obtained his weapon "off the street," he replied, "[everybody get their guns off the street, ma'am." He also indicated he had bought the weapon, refused to disclose whom he had purchased the weapon from, but stated, "[a] gun will always come through a neighborhood."
In a November 17, 2009 recorded statement, the defendant indicated he was not under the influence of medication when he gave his November 9, 2009 statement. When asked if, in giving his earlier statement, he spoke "with a clear head" and gave his version of the events as he recalled them, he replied, "Yes, ma'am, except for the point when I thought that the police had came up here." Additionally, the defendant was asked, "Okay. But everything else that you told me about how the vehicle pursuit, and the foot pursuit, and the events that transpired after that, you're not changing anything about that?" He answered, "No, ma'am." The defendant was then asked, "Okay. That's your story and you're sticking to it; correct?" He answered, "Yes, ma'am."
In his November 9, 2009 statement, the defendant claimed the police officer he had shot had come to his hospital room. Louisiana State Troopers were in the defendant's room to guard him, but Officer Champagne was on administrative leave while the defendant was hospitalized.
At trial, the defendant testified Quincy "Pops" Smith, who died prior to trial, called him during the early hours of November 4, 2009, and asked for a ride to Chauvin to visit one of his "baby mama[s]." The defendant borrowed "a sports Jeep" from a lady he knew and picked up Smith. The defendant claimed that, on the way to Chauvin, Smith asked him to drive to the Daniel Turner Trailer Park to visit a friend. According to the defendant, he turned into the trailer park, saw two police cars, and Smith told him to keep going because Smith had a weapon. The defendant stated he did not stop for the police because Smith had a firearm in the vehicle. The defendant conceded he ran "a few red lights." He claimed Smith jumped out of the vehicle and "took off" when it went into the ditch. The defendant denied having a weapon, denied shooting Officer Champagne, and claimed, after Officer Champagne used the Taser on him, he was trying to show his hands. The defendant claimed he heard two shots, but had no idea where they had come from. He stated he was shot twice in the legs in the ensuing gunfire, and suffered a third wound to his arm while hiding under a trailer. He conceded he was on parole at the time of the incident from a 2006 conviction for "having drugs around a firearm." Additionally, he had entered guilty pleas to resisting an officer, interfering with a police dog, and battery on a police officer. He claimed he lied in his recorded statements, because he was in serious pain and under the influence of strong medication.
The state introduced into evidence, without objection, a certified copy of the bill of information and minutes of Thirty-second Judicial District Court Docket number 478858, indicating that, on June 19, 2007, the defendant pled guilty to possession of a firearm while in possession of cocaine, and the defense stipulated the defendant was the same person referenced on the bill of information.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number 1, the defendant argues the evidence presented at trial in support of counts 1, 3, and 4 did not exclude the reasonable hypothesis that Quincy Smith had the Springfield firearm and shot the police officer. He also argues the evidence failed to prove the Springfield firearm was the subject of a robbery or theft or that he knew or should have known it was stolen. He does not challenge the sufficiency of the evidence to support his conviction on count 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 conclude that the state proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99, 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, and 00-0895 (La. 11/17/00), 773 So.2d 732. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove/' in order to convict, every reasonable hypothesis of innocence is excluded. Wright, 730 So.2d at 486 (quoting LSA-R.S. 15:438).
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 730 So.2d at 487.
First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm upon a peace officer engaged in the performance of his lawful duties. LSA-R.S. 14:30(A)(2). 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. LSA-R.S. 14:27(A).
Illegal possession of stolen firearms is the intentional possessing, procuring, receiving, or concealing of a firearm which has been the subject of any robbery or theft under circumstances which indicate that the offender knew or should have known that the firearm was the subject of a robbery or theft. LSA-R.S. 14:69.1(A). In Louisiana, the mere possession of stolen property does not create a presumption that the person in possession of the property received it with knowledge that it was stolen by someone else. The state must therefore prove the defendant's guilty knowledge as "it must every other essential element of the offense. Nevertheless, jurors may infer the defendant's guilty knowledge from the circumstances of the offense. The inference of guilty knowledge arising from the possession of stolen property is generally a much stronger one than the inference the possessor committed the theft. State v. Chester, 97-1001 (La. 12/19/97), 707 So.2d 973, 974 (per curiam).
It is unlawful for any person who has been convicted of possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance to possess a firearm or carry a concealed weapon. LSA-R.S. 14:95.1(A).
Any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the state, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of attempted first degree murder, illegal possession of a stolen firearm, and possession of a firearm by a convicted feion, and the defendant's identity as the perpetrator of those offenses. The verdicts rendered indicate the jury rejected the defendant's theory that Smith possessed the stolen Springfield handgun and fired the weapon at Officer Champagne. When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984). No such hypothesis exists in the instant case. Further, in regard to counts 1 and 4, the verdicts rendered indicate the jury accepted the victim's testimony and rejected the defendant's testimony. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. The testimony of the victim 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 (La. App. 1st Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331.
Additionally, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodr, 06-0207 (La. 11/29/06), 946 So.2d 654, 662. 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. State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). In regard to count 3, the jury was not irrational in finding the defendant knew or should have known that the Springfield handgun was the subject of a robbery or theft. A search of the NCIC computer using the serial number of the handgun revealed that the gun had been stolen. Additionally, in his November 9, 2009 statement, the defendant, a convicted felon who could not legally purchase a firearm, indicated he had bought the Springfield firearm "off the street." He also refused to disclose from whom he had purchased the weapon, and indicated he fled from the police partially because he had the gun in the car.
This assignment of error is without merit.
MOTION TO SUPPRESS STATEMENTS
In assignment of error number 2, the defendant argues his November 9, 2009 statement was not free and voluntary because it was made when he was weakened from surgery and on a morphine drip. He further argues his November 17, 2009 statement was too vague to confirm the earlier statement.
It is well settled that for a confession or inculpatory statement to be admissible, the state must affirmatively show it was freely and voluntarily given without influence of fear, duress, intimidation, menaces, threats, inducements, or promises. See LSA-R.S. 15:451; LSA-C.Cr.P. art. 703(D). Further, if the statement was elicited during custodial interrogation, the state must show that the defendant was advised of his constitutional rights. Whether or not a showing of voluntariness has been made is analyzed on a case-by-case basis with regard to the facts and circumstances of each case. The trial court must consider the totality of the circumstances in deciding whether a confession is admissible. Moreover, where conflicting testimony is offered, credibility determinations lie within the sound discretion of the trial judge, and his ruling will not be disturbed unless clearly contrary to the evidence. Unless the evidence does not support its findings, an appellate court will defer to the trial court's determination as to whether a confession was made knowingly, intelligently, and voluntarily. State v. Williams, 01-0944 (La. App. 1st Cir. 12/28/01), 804 So.2d 932, 944, writ denied, 02-0399 (La. 2/14/03), 836 So.2d 135.
The fact that a defendant is suffering from a medical condition does not mean that he is incapable of giving a voluntary statement. One who has suffered a physical injury and is experiencing pain can still be competent to give a free and voluntary confession. As in other cases, the critical inquiry is whether the defendant was able to understand the rights explained to him and voluntarily give a statement. Williams, 804 So.2d at 944-45.
When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 09-1589 (La. 12/1/09), 25 So.3d 746, 751.
Prior to trial, the defendant moved to suppress from use as evidence his November 9, 2009 and November 17, 2009 statements, arguing: they were given while he was heavily sedated and under the influence of various medications; they were the product of promises, inducements, intimidation, menaces, threats, fear, and/or duress; and, they were given without his being advised of his right to remain silent, right to counsel, and "other constitutional guarantees afforded to him."
At the hearing on the motion to suppress, the state introduced a November 9,2009 advice of rights/waiver of rights form, signed by the defendant and Louisiana State Police Trooper Charity Knoblock. The form set forth the Miranda rights. The recording of the November 9, 2009 interview also reflected advice and waiver of the Miranda rights. Boxes on the form indicating the defendant understood his rights, was willing to answer questions, and no threats or promises or pressure of any kind had been used against him to force him to answer questions or waive his rights, were checked.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Trooper Knoblock testified the defendant was not under the influence of any medication when she spoke to him on November 9, 2009. On cross-examination, she stated the defendant's speech may have been a little slurred. She also agreed, in street slang, the defendant claimed he had obtained the vehicle he was driving from a male (his "podna"), but he had actually obtained it from a female.
With the permission of the state and the defense, the trial court engaged in the following colloquy with Trooper Knoblock:
[Court]: Officer, did the defendant give you any reason to believe that he was III use the word groggy, or speaking out of his head, not making sense? You understand my question?
[Knoblock]: Yes, I understand your question, and he didn't give me any reason to believe any of that.
[Court]: All right. If he had appeared to you to be sedated, or under the influence of I think [defense] [c]ounsel said perhaps morphine, which
would have clued you to perhaps he didn't know what he was doing, what would you have done?
[Knoblock]: Taken the statement at a later date.
[Court]: Okay. And you yourself witnessed the defendant actually sign this document that's introduced as State - well, it says State 1?
[Knoblock]: Yes, I witnessed him sign it.
[Court]: All right. Did he have any problem signing it?
[Knoblock]: No, he signed it.
On redirect examination, Trooper Knoblock indicated that, when the defendant gave his November 17, 2009 statement, he was at "Ashland" and not in a hospital bed or on a morphine drip.
"Ashland" was the local jail.
The defendant also testified at the suppression hearing. He stated he was in a hospital bed and had an IV drip with morphine when he was questioned on November 9, 2009. He claimed he did not understand the waiver of rights form when he checked boxes on the form and signed the form. He also claimed he did not understand: that he had the right not to incriminate himself; that he had the right to have an attorney assist him; and that anything he said might be used and played at his trial. The defendant stated he hallucinated about Officer Champagne coming to his hospital room. The defendant claimed he did not remember subsequently being asked if he wanted to change anything in his November 9, 2009 statement. When he was questioned on November 17, 2009, he conceded he was not on any medication, and when asked if he completely understood and waived his rights, he answered, "Yes, sir."
The trial court denied the motion to suppress, noting: it had heard the defendant's voice on both of his recorded statements and in court and "[t]hey all sound the same to me"; there were two interviews with the defendant and two signed waiver of rights forms; and on November 17, 2009, the defendant was given the opportunity to recant his November 9, 2009 statement, but failed to do so.
There was no error or clear abuse of discretion in denying the motion to suppress the defendant's statements. The trial court made a credibility determination in rejecting the defendant's self-serving testimony and crediting the testimony of Trooper Knoblock that the defendant, although recovering from gunshot wounds and being medicated, understood the rights explained to him and voluntarily gave two statements. That determination was not clearly contrary to the evidence.
This assignment of error is without merit.
REVIEW FOR ERROR
Initially, we note that our review for error is pursuant to LSA-C.Cr.P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." LSA-C.Cr.P. art. 920(2).
On count 4, the trial court failed to impose the mandatory fine of not less than one thousand dollars nor more than five thousand dollars. See LSA-R.S. 14:95.1(B). Although the failure to impose the fine is error under LSA-C.Cr.P. art. 920(2), it certainly is not inherently prejudicial to the defendant. Because the trial court's failure to impose the fine was not raised by the state in either the trial court or on appeal, we are not required to take any action. As such, we decline to correct the illegally lenient sentence. See State v. Price, 05-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So.2d 1277.
CONVICTIONS ON COUNTS 1, 2, 3, AND 4 AFFIRMED; HABITUAL OFFENDER ADJUDICATION ON COUNT 1 AFFIRMED; AND SENTENCES ON ALL COUNTS AFFIRMED.