Opinion
NO. 2012-KA-0929
03-13-2013
STATE OF LOUISIANA v. KARL A. PETERS
Leon A. Cannizzaro, Jr. District Attorney Felicity Strachan Assistant District Attorney COUNSEL FOR APPELLEE, STATE OF LOUISIANA Holli Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 491-939, SECTION "L"
Honorable Franz Zibilich, Judge
PAUL A. BONIN
JUDGE
(Court composed of Judge Edwin A. Lombard, Judge Paul A. Bonin, Judge Daniel L. Dysart) Leon A. Cannizzaro, Jr.
District Attorney
Felicity Strachan
Assistant District Attorney
COUNSEL FOR APPELLEE, STATE OF LOUISIANA Holli Herrle-Castillo
LOUISIANA APPELLATE PROJECT
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
A unanimous jury found Karl Peters guilty of second degree murder in the killing of Terrel Bart. Mr. Peters assigns three errors which he argues would result in a reversal of his conviction: the insufficiency of the evidence to support a guilty verdict; the denial of his pretrial motion to suppress his identification, and the denial of his motion in limine to exclude from evidence his recorded "jailhouse" telephone conversations.
The trial judge sentenced Mr. Peters to the mandatory sentence of life imprisonment, without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:30.1 B.
After a review of all the evidence under the well-known Jackson v. Virginia standard, we conclude that any rational trier of fact viewing the evidence in the light most favorable to the prosecution could find beyond a reasonable doubt that all the elements of second degree murder have been proven beyond a reasonable doubt, including the identity of Mr. Peters. We have reviewed the other assignments under an abuse-of-discretion standard and find no basis to reverse the conviction. Accordingly, we affirm Mr. Peters' conviction and sentence.
We have, as we always do, reviewed the record for errors patent and have detected none. See La. C.Cr.P. art. 920(2).
I
In this Part we first address the constitutional standard of review for claims of insufficiency of evidence, and then turn to consider the evidence presented to the jury as the fact-finder. Finally, we explain why we find from the record that there was sufficient evidence to prove beyond a reasonable doubt every element of the offense of second degree murder, including the identity of Mr. Peters.
A
The standard of review for sufficiency of evidence applicable to criminal convictions in state courts is set out in Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Id. "But this inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Id. quoting Woodby v. INS, 385 U.S. 276, 282 (1966). (emphasis added by Jackson)."Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (bold emphasis in original); see also Johnson v. Louisiana, 406 U.S. 356, 362 (1972), (stating: "Jury verdicts finding guilty beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt.").
In discharging our review function, we consider "all of the evidence" before the actual fact-finder. Jackson, 443 U.S. at 319 (emphasis in original). The United States Supreme Court has explained that the standard of review for sufficiency of evidence is highly deferential to the fact-finder because it "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. "The criterion thus impinges upon 'jury' discretion only to the extent necessary to guarantee the fundamental protection of due process of law." Id.
Similarly, "[a] reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review." State v. Macon, 06-481, p. 8 (La. 6/1/07), 957 So. 2d 1280, 1285-1286. "It is not the function of an appellate court to assess credibility or re-weigh the evidence." Id. "Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness's testimony, if believed by the fact finder, is sufficient to support a factual conclusion." State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So. 2d 362, 369; see also State v. Robinson, 10-0885, pp. 7-8 (La. App. 4 Cir. 12/21/10), 54 So. 3d 1208, 1213.
The Due Process Clause of the Fourteenth Amendment, the source of the Jackson standard, does not countenance, much less require, that we re-weigh testimony and witness credibility. And "[i]n criminal cases [a court of appeal's] appellate jurisdiction extends only to questions of law." La. Const. art. V, § 10 (B). See also State v. Barthelemy, 09-0391, p. 24 (La. App. 4 Cir. 2/24/10), 32 So. 3d 999, 1015.
Therefore, in discharging our review function for sufficiency of evidence, we cannot re-weigh or re-consider reasonable inferences drawn from basic facts to ultimate facts. We must confine ourselves to questions of law except to the extent, and only to the extent, that Jackson mandates otherwise. State v. Gilmore, 10-0059, p. 5 (La. App. 4 Cir. 10/6/10), 50 So.3d 208, 212.
Second-degree murder is defined as "the killing of a human being ...when the offender has the specific intent to kill or to inflict great bodily harm." LA. R.S. 14:30.1 A(1).
B
We turn now to a consideration of the record facts. We explain why we find from our review that the evidence is sufficient to convict Mr. Peters of Mr. Bart's murder.
1
According to Raven Roach, the live-in girlfriend of the decedent, Mr. Peters was one of a company of six men who approached Mr. Bart at his home to purchase marijuana from him. They asked Mr. Bart whether they could purchase two bags of marijuana for five dollars; the going rate apparently was one bag for that price. Mr. Bart declined to let the group buy one and get one free. After some additional, brief negotiations, it was agreed to buy one bag for the standard price. After delivery of the bag by Mr. Bart to the group and the exchange of the payment, Ms. Roach upon counting the money realized Mr. Bart, the dealer, had been shortchanged two dollars. In anger Mr. Bart chased after the group, words were exchanged, and Mr. Bart told them never to return to him to buy their marijuana. According to Ms. Roach, the defendant told Mr. Bart words to the effect that they would be back.
A short while later, when Ms. Roach returned from a nearby neighborhood store, she encountered Mr. Bart and an unknown man on the front porch of Mr. Bart's home. While she was urging Mr. Bart into the house, Mr. Peters approached. Although she did not actually see a gun in his hand, she testified that the gunfire came from his direction. The unknown man was hit with a bullet and ran through the shotgun house and out the backdoor; he has never been identified or located. Because no one else ever saw this man, Mr. Peters questions whether he even existed.
Mr. Bart also ran into the house. He had been shot four times. The forensic medical examiner stated that the location of his wounds was consistent with being shot first in the chest, then of Mr. Bart turning away and shot toward the side, and then two shots, one in the back and one in the heel. Mr. Bart collapsed under the kitchen table. Ms. Roach, too, unwounded ran into the house. Gunfire entered the house, causing two visitors who were playing video games, to also seek safety in the back of the house. The two visitors, Jesus Arce and Stephen Thornsberry, did not witness the shooting of Mr. Bart.
Ms. Roach, Mr. Arce, and Mr. Thornsberry all testified that they were in the kitchen, Mr. Bart was still alive, and that he repeatedly said that "Karl" had shot him. Mr. Bart was pronounced dead at the hospital shortly after the shooting.
Apparently, Ms. Roach had testified at a previous trial that the decedent had said "Karl Peters." During this trial she admitted that he had not and she now claimed that she learned Karl's last name later that day at the hospital. Mr. Arce testified that he knew exactly to whom Mr. Bart was referring because they knew Karl from the neighborhood. It was established at trial that Mr. Peters lived just a few blocks away from the decedent's home. Mr. Thornsberry did not know to whom Mr. Bart was referring, did not see him, and did not know him. Mr. Thornsberry, however, did select the defendant in a photographic line-up, but testified that he had been prompted by the actions of Detective Richard Chambers. (See Part II, post, for a more detailed discussion.) Ms. Roach and Mr. Arce both testified that they selected Mr. Peters in the photographic line-ups; there was no indication from either that their selections were prompted by the investigator.
That trial ended in a mistrial.
Several days later Detective Chambers obtained a warrant for Mr. Peters. Following his cautioning with Miranda, Mr. Peters told the detective that he had an alibi; he was at Disney World with his auntie. When the detective was executing a search warrant at Mr. Peters' home, he encountered Tonja Crawford, who identified herself as Mr. Peters' aunt. She told the investigator that she had been to Disney World at that time, but that the defendant was not with her; she repeated this to the jury.
The jury also heard recordings of three telephone conversations between Mr. Peters, who was incarcerated, and others, who were not fully identified. (See Part III, post, for a more complete discussion.) In one conversation that Mr. Peters was holding with Snake, there was considerable discussion between them about Mr. Peters' mother being his alibi witness to vouch that he was at home. Snake was warning Mr. Peters to make sure that that alibi would stand up to any other evidence and advising that the first step would be to speak with his mother to be certain that she would testify. And Snake pointed out to him that a new alibi would conflict with the one with the aunt.
In another telephone conversation, when Mr. Peters tells the other person that he has encouraging news that a "law man" in the jail read the police report and told Mr. Peters that he would beat the charge because they are not describing him in the report. The other person points out that although they are not describing him, they are giving his name. In the final conversation, the other person asks Mr. Peters if gun powder was found on his clothes to which he replies, "No. They don't got none of that."
The weapon used in the shooting was never recovered. Nothing of any prosecutorial value was obtained pursuant to the search warrant.
The defense noted several inconsistencies in the testimony of the witnesses. Most prominently, Ms. Roach had told the investigators that there were two shooters and even gave information for two sketches, but at trial she said there was only one shooter. Ms. Roach also admitted that she never furnished the investigators with Karl Peters full name, even though she claimed to have known it before the investigators gave her the name. No one but Ms. Roach saw a man at the back door, and no one but she saw the other man on the front porch.
2
Mr. Peters does not argue that the elements of second degree murder are not established. The shooting of Mr. Bart was intentional, not accidental. That the shooting was meant to kill him or do him great bodily harm is self-evident. See, e.g., State v. Harris, 02-2434, p. 4 (La. App. 4 Cir. 5/28/03), 859 So. 2d 690, 693. The only issue of insufficiency of evidence relates to whether Mr. Peters was the shooter and, in that regard, he correctly argues that there is no witness who actually states seeing him firing the weapon at Mr. Bart.
But there is considerable other evidence from which any rational fact-finder could find that Mr. Peters was the shooter. The trial judge admitted testimony of three witnesses, all of whom testified that Mr. Bart's dying declaration was that Karl shot him. There was no evidence offered to contradict these witnesses on this critical point. Ms. Roach testified that Mr. Peters was standing in the area from where the gunshots were being fired and she selected him from the photographic line-up; she had also seen him during the earlier confrontation. Moreover, Mr. Arce testified that both he and Mr. Bart knew Karl and that he knew exactly the person to whom Mr. Bart was referring in his identification.
See La. C.E. art. 804 B(2): "[a] statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death" is not excluded by the hearsay rule.
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The jury also had before it evidence that Mr. Peters lied to the investigator about an alibi with his auntie. And the jury could well infer from his telephone conversation with Snake that he was considering floating another false alibi.
Viewing the facts and reasonable inferences therefrom in the light most favorable to the prosecution, a rational trier of fact could find beyond a reasonable doubt that Mr. Peters was identified as the killer.
II
Mr. Peters' next assignment of error is that the pre-trial photographic identifications should have been excluded from evidence because the police used suggestive identification procedures. One of the witnesses who positively identified Mr. Peters in a photographic lineup, Stephen Thornsbery, testified at trial that Detective Chambers, the detective who executed the photographic lineup, suggested to him which photograph to choose. At trial, Mr. Thornsbery testified that Det. Chambers was tapping on both sides of the page of photographs and then stopped tapping on the picture of Mr. Peters. Mr. Thornsbery's trial testimony contradicted that of Det. Chambers. Mr. Peters' grounds for the exclusion of the other photographic identifications, made by Ms. Roach and Mr. Arce, are that because Det. Chambers used an improper procedure in obtaining Mr. Thornsbery's identification and then lied about it, he must have used the same procedure in obtaining the others and lied about them as well. All three identifications were made the same evening, six days after the murder.
A
The district court is given great discretion in determining the admissibility of evidence, and such a decision will not be upset absent an abuse of discretion. See State v. Holmes, 05-1248 (La. App. 4 Cir. 5/10/06), 931 So. 2d 1157.
The burden of proof in showing that an identification was improperly admitted into evidence is on the defendant, see La. C.Cr.P. art. 703 D, to show both that the identification procedure was suggestive and that the procedure likely resulted in misidentification. See State v. Taylor, 09-2781, p. 2 (La. 3/12/10), 29 So. 3d 481, 482, citing State v. Prudholm, 446 So. 2d 729 (La. 1984). "An identification procedure is suggestive if, during the procedure, the witness' attention is unduly focused on the defendant." State v. Thibodeaux, 98-1673, p. 21 (La. 9/8/99), 750 So. 2d 916, 932. Even though suggestive, however, an identification should not necessarily be excluded unless it likely resulted in misidentification, which we determine using the five-factor test espoused in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977). The factors are "[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of his prior description of the criminal, [4] the level of certainty demonstrated at the confrontation, and [5] the time between the crime and the confrontation." Manson, 432 U.S. at 114.
The next inquiry, if we find that the identification was improperly admitted into evidence, is whether the error was harmless. "The question raised by erroneous admission of evidence is whether the trial court's error in admitting it was harmless beyond a reasonable doubt." State v. Cosey, 97-2020, p. 5 (La. 11/28/00), 779 So. 2d 675, 679, citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967). "To be harmless, the improperly admitted evidence must not have contributed to the verdict." Id., p. 6, 779 So. 2d at 679. "The inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." State v. Buckley, 08-0777, p. 7 (La. App. 4 Cir. 1/14/09), 4 So. 3d 885, 889.
B
On our review of whether the procedure itself was suggestive, we find that the detective's tapping on the picture of Mr. Peters drew undue focus onto the picture of the defendant, thus resulting in a suggestive identification procedure. Because we find the procedure suggestive, we next turn our attention to whether the procedure likely resulted in misidentification. Applying the Manson factors, we need not inquire past the first because Mr. Thornsbery did not actually see the shooting. There is, therefore, a substantial likelihood of misidentification as to Mr. Thornsbery. There is no evidence before us, however, that there was a suggestive identification procedure used in obtaining the identifications of the other two witnesses.
The admission of Mr. Thornsbery's identification evidence, however, does not justify a new trial because such admission was harmless error. The jury heard Mr. Thornsbery's testimony regarding the suggestive identification procedure and also heard that Mr. Thornsbery did not see the actual shooting. The erroneous admission of Mr. Thornsbery's identification surely did not affect the verdict because the jury was able to account for the irregularities in its origin.
III
Mr. Peters' final assignment of error is that the district court erred in allowing the introduction of the recordings of three of Mr. Peters' jailhouse telephone conversations. The three telephone calls in question were made while Mr. Peters was incarcerated awaiting trial. Mr. Peters argues that the conversations are not relevant and were prejudicial. See La. C.E. arts. 401, 403. Mr. Peters raised the objection in a motion in limine, which had been urged in the first trial and was urged again in this trial after a mistrial had been declared in the first.
A
The standard of review over a district court's ruling on the introduction of evidence, as stated in Part II-A, ante, is abuse of discretion. "The district court is accorded great discretion in determining whether evidence is relevant and, absent a clear abuse of discretion, rulings on relevancy will not be disturbed on appeal." State v. Magee, 11-0574, p. 52 (La. 9/28/12), 103 So. 3d 285, 321.
The relevancy of evidence is defined by La. C.E. art. 401: "'Relevant evidence' means 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." "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible." La. C.E. art. 402.
The pertinent exception to the general acceptability of relevant evidence is that "[a]though relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." La. C.E. art. 403.
Our finding that evidence was improperly admitted, however, is not the culmination of our inquiry. After determining that evidence was improperly admitted, we determine if that admission was harmless error. See Part II-A regarding harmless error.
B
The first call is between an unknown individual and Mr. Peters. During that call, Mr. Peters asks the caller to contact his mother and ask her to contact his "paw paw" to ask him to put up his house as collateral on a bond so that he can get out of jail. The two then engage in what appears to be small talk until a second caller enters the conversation. Mr. Peters tells the second caller that he needs either his "momma" or his "auntie" to put up their houses as collateral. The second caller then asks, "They found the gun powder on your clothes?" to which Mr. Peters replies, "No. They don't got none of that."
The probative value of the first call, the State argues, is that Mr. Peters intends to intimidate or kill witnesses while out on bail. This allegation is simply not supported by the conversation or other evidence. The fact that Mr. Peters wished to leave jail and asked family members to put up their houses as collateral is not relevant to the inquiry of whether he may have killed Mr. Bart. Nor, however, is the introduction of such evidence especially prejudicial to Mr. Peters because evidence that he wished to leave jail would not be held against Mr. Peters.
Mr. Peters' statement that gunpowder was not found on his clothes is vague. It could mean that there were clothes with gunpowder on them that the police did not find; or it could mean that he was never around gunpowder, so there was none to be found in the first place. The second caller's use of the phrase "the gun powder" instead of simply "gun powder," however suggests that Mr. Peters was around gun powder. The exchange regarding the gunpowder, therefore, tends to make the fact that Mr. Peters fired a gun that evening slightly more probable. See La. C.E. art. 401. The evidence is, therefore, relevant. There is no potential unfair prejudicial information to be discernable from the statement. The district court did not abuse its discretion in admitting the statement.
C
In the second call Mr. Peters wakes up the other caller and asks for Dominique. Dominique and Mr. Peters' mother had apparently been to court with the caller to see Mr. Peters, but Mr. Peters was not brought to court that day. Mr. Peters then said that he had spoken with a "law man" while in jail, and that man looked at his police report and told him that he would beat the charge because Mr. Peters was not described in the report. The caller responded that although he may not be described in the report, Mr. Peters' name was in the report. The caller then said that he didn't want to talk about it on the phone.
Nothing in this second call is indicative of Mr. Peters' guilt or innocence; it is just Mr. Peters' hopeful speculation. The second call, therefore, is not relevant and should not have been admitted to trial. Reviewing the admission of the second conversation under the harmless error standard, we find, because the evidence is completely irrelevant to Mr. Peters' guilt or innocence, that Mr. Peters' guilty verdict rendered in this trial was surely unattributable to the error. See Buckley, supra.
D
In the third call, "Snake" gives legal advice to Mr. Peters. Snake and Mr. Peters discuss what would be Mr. Peters' alibi now that Mr. Peters' first alibi, that he had been on a trip to Disney World in Florida, had fallen through. Mr. Peters said that he was at his mother's house during the shooting and that he was sure his mother would vouch for him. Snake insisted that Mr. Peters talk to his mother to make sure that she would be taking the stand. The tone of the conversation along with Snake's questioning of whether Mr. Peters' mother would be testifying on his behalf suggest that Mr. Peters' alibi that he was with his mother may have been fabricated.
Evidence tending to prove that Mr. Peters' alibi was fabricated is extremely relevant to the central issue in the case. Irregularities with Mr. Peters' alibi cast doubt on his claim that he could not have been the person who murdered Mr. Bart. This evidence, while it is substantially relevant to the merits of the case, is also substantially prejudicial to Mr. Peters because it makes him appear dishonest. But because this prejudicial effect does not outweigh the probative value of the relevant evidence, it is not unduly prejudicial and thus not inadmissible. The district court, therefore, did not err in admitting the third conversation.
DECREE
The conviction of Karl Peters for the second degree murder of Terrel Bart is affirmed. His sentence to life imprisonment without the benefit of parole, probation, or suspension of sentence is also affirmed.
AFFIRMED