Opinion
2012 KA 1610
04-26-2013
STATE OF LOUISIANA v. DANTE LEON MILON
Joseph Waitz District Attorney And Sam Markus Elaine Daigle Doskey Assistant District Attorneys Houma, Louisiana Attorneys for Appellee State of Louisiana Bertha Hillman Thibodaux, Louisiana Attorney for Defendant/Appellant Dante Leon Milon
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT,
IN AND FOR THE PARISH OF TERREBONNE
STATE OF LOUISIANA
DOCKET NUMBER 585,739
HONORABLE JOHN WALKER, JUDGE
Joseph Waitz
District Attorney
And
Sam Markus
Elaine Daigle Doskey
Assistant District Attorneys
Houma, Louisiana
Attorneys for Appellee
State of Louisiana
Bertha Hillman
Thibodaux, Louisiana
Attorney for Defendant/Appellant
Dante Leon Milon
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
MCDONALD, J.
The defendant, Dante Leon Milon, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1, and entered a plea of not guilty. Following a trial by jury, the defendant was found guilty as charged. He was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant now appeals, claiming insufficiency of the evidence to support the conviction. For the following reasons, we affirm the conviction and sentence.
STATEMENT OF FACTS
On August 15, 2010, around 10:00 p.m., officers of the Houma Police Department were dispatched to the scene of a shooting that occurred at Bryson's Discount Mobile Mart, a local convenience store. The defendant had driven to the store along with two passengers, a male and a female. After the male passenger entered the store, Eric Thompson approached the defendant's vehicle and they began to converse. Moments later, Thompson summoned Brandon Washington, the victim, who then approached the defendant's vehicle and had a brief verbal exchange with the defendant. The defendant retrieved his gun and fired two shots, striking the victim, who died from a gunshot wound to his liver. After the shooting, the defendant fled from the scene and discarded the gun. The police investigation led to the defendant's identification as the shooter and arrest, and the defendant gave a recorded statement detailing his version of the events leading up to the shooting. Despite disclosures by the defendant as to the supposed location where it was discarded, the police were unable to recover the murder weapon.
The female passenger, Rasheka Winslow, gave a recorded statement after the incident and testified at the trial. During her police interview and at the trial, Winslow used both "Joseph" and "Jerome" in reference to her boyfriend, the male passenger who arrived at the store with Winslow and the defendant, and confirmed that his last name was Ross. Ross- did not testify at the trial, nor was any police statement by Ross admitted.
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant argues that the evidence is insufficient to support his conviction for second degree murder. The defendant contends that his statement to the police after the offense establishes that he shot the victim in fear and had no intent to kill him. The defendant notes that Detective Timothy Lucas of the Houma Police Department stated that information provided by the defendant was consistent with statements by other witnesses. As noted by the defendant, Winslow was under the impression that the victim was armed with a gun in his pocket and testified that the victim aggressively approached the defendant. The defendant contends that Winslow's testimony is consistent with his claim that the victim pulled a gun out on him and robbed him a week before the instant offense. The defendant further claims to have been shot by someone else a few weeks before the instant offense.
The defendant contends that the State failed to prove a specific intent to kill or that the victim was shot while retreating. The defendant argues that the homicide was committed in self-defense and, alternatively, that the evidence warranted only a conviction of manslaughter. The defendant specifically argues that he believed he was in imminent danger from the victim who had recently pulled a gun on him, who was approaching aggressively and appeared to have a gun in his pocket, and who had alcohol and drugs in his system at the time of the offense at issue. Finally, the defendant's specific alternative argument is that the victim's threatening, aggressive, and confrontational behavior caused him to act with sudden passion and heat of blood.
The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 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. See also La. Code Crim. P. art. 821. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; 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 & 2000-0895 (La. 11/17/00), 773 So.2d 732. 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 that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987).
The crime of second degree murder, in pertinent part, is the killing of a human being: "[w]hen the offender has a specific intent to kill or to inflict great bodily harm." La. R.S. 14:30.1(A)(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." La. 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 (La. App. 1st Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So.2d 923. Specific intent to kill, such as would support a conviction for second degree murder, may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Delco, 2006-0504 (La. App. 1st Cir. 9/15/06), 943 So.2d 1143, 1146, writ denied, 2006-2636 (La. 8/15/07), 961 So.2d 1160.
When the defendant in a homicide prosecution claims self-defense, the State must prove beyond a reasonable doubt that the homicide was not committed in self-defense. Louisiana Revised Statute 14:20(A)(1) provides that a homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. On appeal, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense. State v. Williams, 2001-0944 (La. App. 1st Cir. 12/28/01). 804 So.2d 932, 939, writ denied, 2002-0399 (La. 2/14/03), 836 So.2d 135. A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith. La. R.S.14:21.
In accordance with La. R.S. 14:31 (A)(1), manslaughter is a homicide which would be a first 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 jury 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. La. R.S. 14:31(A)(1). "Sudden passion" and "heat of blood" are not elements of the offense of manslaughter; rather they are mitigatory factors in the nature of a defense that tend to lessen the culpability. State v. Rodriguez, 2001-21.82 (La. App. 1st Cir. 6/21/02), 822 So.2d 121, 134, writ denied, 2002-2049 (La. 2/14/03), S36 So.2d 131. Because they are mitigatory factors, a defendant who establishes by a preponderance of the evidence that he acted in "sudden passion" or "heat of blood" is entitled to a verdict of manslaughter. Rodriguez, 822 So.2d at 134.
Detective Lucas responded to the scene of the shooting and interviewed the defendant after his arrest. In the interview, the defendant stated that when Thompson summoned the victim, he told Thompson not to call the victim over, indicating that he and the victim had animosity between them. However, the victim was already approaching and as he walked up, the defendant told him to back away. The defendant further explained that the victim had pulled a gun out on him and robbed him a week before the instant offense, when the defendant was attempting to make arrangements to purchase marijuana. The defendant stated that he did not report the armed robbery incident because he did not know the victim's name at the time. As a result of that incident, the defendant was in fear as the victim approached his vehicle moments before the instant offense. According to the defendant, the victim initially ignored his warning to back away and told the defendant that he was going to give him his money back. The defendant stated that when he exited his vehicle, he was scared and shot at the victim in an attempt to get him to walk away, not to kill him. The defendant admitted that he did not see the victim reach for a weapon. According to the defendant, when he initially pulled the trigger the gun just clicked since the chamber was empty and the victim turned to walk away. When the victim turned back toward the defendant, he pulled the trigger again, this tune striking the victim. Detective Lucas testified that the police were unable to verify the defendant's claim that he had been robbed at gunpoint by the victim a week before the instant offense. Further, the police did not find any evidence that the victim was armed with a weapon when he was killed, and the investigation led to evidence that was inconsistent with the defendant's claim that the victim was approaching the defendant when he shot him. Selective Lucas testified further, however, that the police were able to verify the defendant's claim that he had been shot in an unrelated incident that did not involve the victim approximately two weeks prior to the instant offense,
This individual was simply referred to as "e" by the defendant during the interview.
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Patrick Walker of the Terrebonne Parish Coroner's Office performed the autopsy. He testified that the victim had a puncture wound in his back and an indention in his chest where the bullet made contact but did not exit. Based on his examination, Walker concluded that the puncture wound on the victim's back (the left (lank region) was the point of entry. The bullet travelled diagonally to the right and punctured the back of the victim's liver, and exited through the front of the liver. Resulting from this bullet injury, the cause of death was hemorrhagic shock secondary to massive blood loss. The victim also had a possible bullet wound on his left ankle. A vitreous fluid sample was taken and tested and the victim tested positive for the presence of alcohol, benzodiazepines (also known as Zanbars), and cocaine.
Jana Adams, an employee who was present at the store at the time of the shooting, also testified as a State witness at the trial. Adams's shift ended just before the shooting. As she was exiting the store, she observed a vehicle parked at the gas pumps lacing the store door, and an individual standing in front of the vehicle pointing a gun towards another person who was turning away. She specifically stated, "He was like - like turning. Like to -- like to turn away and to run away ... then I heard a gunshot, and I ran back in the store." When asked for clarification, Adams indicated that the victim had completely turned away from the shooter before she heard the gunfire and was running toward the store. When asked how many gunshots she heard, she stated, "As I seen Mr. Washington turning to run away, I heard one. And then as I went into the store, I heard another one.' Adams did not observe the victim with a gun or observer any physical altercation before the shooting. The victim entered the store and collapsed face down. About five or six bystanders approached the victim when he collapsed in the store, Adams never lost sight of him and she observed one of the individuals turn him over to console him, while others stood around him also trying to talk to him and comfort him. During cross-examination, Adams agreed that there was lots of commotion in the store as a result of the incident. Adams was present when the ambulance arrived five or six minutes later, at her estimation, and saw EMTs remove the victim's shirt. She did not observe any weapon on or near the victim. Adams did not know the victim or the defendant prior to the shooting.
Winslow also testified as a State witness. Winslow knew the defendant since her friend Dawn Ross was the defendant's girlfriend at the time, and her boyfriend (Joseph or Jerome) was Dawn Ross's uncle. Winslow and her boyfriend visited Dawn Ross on the night of the instant offense. The defendant agreed to take Winslow and her boyfriend home, and they stopped at the convenience store. Winslow's boyfriend went into the store to purchase cigarettes and a drink, and after his return, the victim approached while Winslow was sitting in the vehicle. Winslow's boyfriend returned to the vehicle and told Winslow to get out of the vehicle as he presumably noticed a conflict. As to the moments before she heard the gunfire, Winslow added, "I didn't see anything, but I just panic [sic] and ran. 1 panic [sic] -- after I panicked and noticed -- you know. I heard a gunshot. 1 don't know where it came from. But 1 just ran." She confirmed that she did not want to be involved in the situation, and had been "in the family for a while" because of her friendship with Dawn Ross and her relationship with Dawn Ross's uncle.
When asked if she witnessed the defendant reach for his gun, Winslow stated, "No. I haven't saw [sic] him digging for a gun because I jump out the -- I panic, and then after that my boyfriend told me to run." When asked if the defendant shot once from inside the vehicle, she stated, "I heard a gun, but I was laid back [in the seat;].'' She added that at that point her boyfriend told her to get out. of the vehicle. When asked if she saw the victim with a weapon, she stated, "I know somebody took something off him, but I didn't really see because I ran. Because I got paranoid and scared. I just panic. 1 got scared." She subsequently stated that the victim was "fussing," which she clarified as "passing a few words," and "coming" at the defendant when the shooting occurred. Winslow testified that a portion of her police statement, particularly her indication that the defendant killed the victim because the victim had previously tried to kill him, was based on "mouth of a word" or what she heard someone else say. She did not recall some of the details of her statement. After Winslow denied specifically stating that the defendant murdered the victim, her recorded police statement was played before the jury,
During her recorded statement, Winslow stated that when they arrived at the store the victim approached the defendant, "all brave and stuff" and had a gun on him at the time. The defendant had been conversing with another individual who she was unfamiliar with and identified as the defendant's "homeboy," when the victim jumped out of a vehicle and approached. She admitted that she did not actually see the victim with a gun but saw him grabbing at his waist for something that she assumed was a gun. Before the gunshots, she heard the defendant tell his "homeboy" that he was going to kill the victim because the victim previously tried to kill him. She further stated that the defendant was in his vehicle when he first shot the victim, the victim fell, and when the victim got up and started running to the store, the defendant got out of his vehicle and shot the victim again. The victim fell again when he got into the store. She specifically confirmed that the defendant shot the victim twice. After he fired the shots, the defendant got in the vehicle and fled, leaving Winslow and her boyfriend at the scene. During cross-examination, after the recorded statement was played, Winslow stated that she may have told the police some things that were not true because she was nervous and may have repeated statements that someone else made in reference to the defendant wanting to kill the victim. She also confirmed that the victim was coming toward the defendant in an aggressive manner before the defendant shot him. Winslow further testified that she thought the defendant was scared of the victim and did not want the victim to kill him first. The defendant did not testify nor were there any witnesses called by the defense.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. Thus, an appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. Williams, 804 So.2d at 939. The guilty verdict in this case indicates the jury rejected the defendant's claim that he shot the victim in self-defense or that the killing constituted manslaughter. Much of the evidence presented during the trial indicated that the defendant was the aggressor in the incident, and wanted to kill the victim in retaliation for an alleged previous incident. Accordingly, the jury could have reasonably concluded that the victim did not pose an imminent threat. There was no evidence that the victim was attacking the defendant before the defendant shot him, and the defendant and Winslow admitted they did not see the victim with a weapon at that time. The witnesses indicated that the victim was trying to run away from the defendant when one or both of the shots were fired. Moreover, the defendant's omissions and actions after the shooting (of failing to report the shooting, fleeing from the scene, and discarding his gun) are inconsistent with a theory of self-defense. See State v. Emanuel-Dunn, 2003-0550 (La. App. 1st Cir. 11/7/03), 868 So.2d 75, 80, writ denied, 2004-0339 (La, 6/25/04), 876 So.2d 829; State v. Wallace, 612 So.2d 183, 191 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1253 (La. 1993). Flight Ibl lowing an offense reasonably raises the inference of a "guilty mind." State v. Captville, 448 So.2d 676, 680 n.4 (La. 1.984).
A rational juror could have found that the State established beyond a reasonable doubt that the defendant did not act in self-defense. Thus, we find no error in the jury's rejection of the defendant's claim of self-defense. Further, a rational juror could have found insufficient evidence of provocation such that a reasonable person would have used deadly force. The defendant failed to establish by a preponderance of the evidence that he acted in "sudden passion" or "heat of blood." See State v. Maddox, 522 So.2d 579, 582 (La. App. 1st Cir. 1988). Accordingly, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. Furthermore, 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, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). We are convinced that any rational trier of fact, viewing the evidence presented at trial in the light most favorable to the State, could have found the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder. Due to the foregoing conclusions, the sole assignment of error lacks merit.
CONVICTION AND SENTENCE AFFIRMED.