Opinion
2013 KA 0100
2013-09-13
STATE OF LOUISIANA v. KENDALL THOMPSON
Ricky L. Babin District Attorney Donald D. Candell Assistant District Attorney Gonzales, LA Attorneys for Appellee State of Louisiana Holli Herrle-Castillo Louisiana Appellate Project Marrero, LA Attorney for Defendant-Appellant Kendall Thompson Kendall Thompson Donaldsonville, LA Defendant-Appellant In Proper Person
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 23rd Judicial District Court
Parish of Ascension, Louisiana
Docket No. 26,643, Division "C"
Honorable Guy Holdridge, Judge Presiding
Ricky L. Babin
District Attorney
Donald D. Candell
Assistant District Attorney
Gonzales, LA
Attorneys for Appellee
State of Louisiana
Holli Herrle-Castillo
Louisiana Appellate Project
Marrero, LA
Attorney for
Defendant-Appellant
Kendall Thompson
Kendall Thompson
Donaldsonville, LA
Defendant-Appellant
In Proper Person
BEFORE: PARRO, GUI DRY, AND DRAKE, JJ.
PARRO, J.
The defendant, Kendall Thompson, was charged by bill of information with illegal use of weapons or dangerous instrumentalities, a violation of LSA-R.S. 14:94(F). The defendant pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for a post-verdict judgment of acquittal, which was denied. He was sentenced to ten years of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating two counseled assignments of error and two pro se assignments of error. We affirm the conviction and sentence.
FACTS
On the night of January 17, 2010, the twenty-three-year-old defendant drove to the Stars Entertainment Palace Teen Club (club) on Louisiana Highway 44 in Prairieville. While the defendant was outside of the club near his car, a large crowd in the club became rowdy. Anticipating trouble, the owner of the club called the police and began closing down early. The crowd moved outside of the club and fights broke out. Several gunshots were fired, including some from a gun in the possession of the defendant. One of the patrons was injured from gunfire. The defendant got into his car and drove to the Veillon's grocery parking lot. Many of the club's patrons had gone to this parking lot, including the person shot. When the police pulled into the grocery parking lot to investigate the shootings and speak to witnesses, the defendant sped away in his car. Several police officers gave chase. Deputy Clint Hebert, with the Ascension Parish Sheriff's Office, testified that the defendant refused to stop, drove at speeds of ninety to one hundred miles per hour, and ran a stop sign. Sergeant Teddy Gonzales, with the Ascension Parish Sheriff's Office, was also involved in the chase. After momentarily losing sight of Deputy Hebert, Sergeant Gonzales drove around looking for the defendant's vehicle, a Ford Taurus.
The defendant eventually lost control of his car, ran off the road, hit a tree, and came to rest in a ditch. Sergeant Gonzales found the crashed car, notified dispatch, and exited his police unit. Sergeant Gonzales then saw the defendant crawl from the ditch, stand up, and run. Sergeant Gonzales, aware that the defendant could be armed, drew his weapon and gave chase, ordering the defendant to stop. He finally chased the defendant down and apprehended him. When the sergeant asked the defendant where the gun was, the defendant said someone had thrown the gun into his car.
Deputy Terry Richard, with the Ascension Parish Sheriff's Office, arrived shortly thereafter and handcuffed the defendant. The deputy Mirandized the defendant, then searched the defendant. He found a clear plastic bag of marijuana in the defendant's coat pocket. The deputy also found "in excess of a thousand dollars" on the defendant.
Louisiana State Police Trooper Ronald Bordelon, also at the crash site, Mirandized the defendant and spoke to him before he was taken to the hospital for his injuries sustained in the wreck. Trooper Bordelon testified the defendant told him that some guy had jumped in his car and threw a gun in there. This scared the defendant, which is why he fled. Trooper Bordelon smelted a strong odor of marijuana while talking to the defendant. When asked about his marijuana use, the defendant told the trooper that he had smoked a lot of marijuana that night.
At about 3:00 a.m. that morning, Sergeant Glenn Luna, with the Ascension Parish Sheriff's Office, spoke to the defendant at the hospital. After being Mirandized, the defendant told Sergeant Luna he did not have a gun, shoot a gun, or see anyone shoot a gun. The defendant consented to a gunshot residue (gsr) test. The test revealed a presumptive positive for gunshot residue, which meant the defendant shot a firearm or was around a firearm that had been shot.
A warrant was issued for the defendant's arrest, and two days later he turned himself in and was questioned. The defendant was advised of his rights and signed an advice-of-rights form. Among those present at the interview were Sergeant Gonzales, Sergeant Luna, and Detective Chris Hagan, with the Ascension Parish Sheriff's Office. Refusing to provide a taped statement, the defendant gave only a verbal statement. According to the defendant, he was driving to the club when he stopped at Moe's Discount, a convenience store on Louisiana Highway 44 in Gonzales. An unknown black male approached the defendant and asked for a ride to the club. The defendant obliged. At the club, the defendant parked near the front door. The unknown male went inside the club, while the defendant stayed outside. Shortly thereafter, there was a disturbance in the club. As patrons began exiting the club, the defendant heard shots and got into his car and fled. The defendant pulled into the Veillon's grocery parking lot, then saw police pull in and thought they were chasing him. The defendant took off at a high speed, attempting to elude arrest.
Following the defendant's statement, Sergeant Gonzales, believing little of what the defendant had said, asked the defendant how he would explain it if a gsr test showed gunshot residue, and if his DiMA or prints were found on the gun. The sergeant also suggested that the Moe's Discount video would show the truth. The defendant then asked to speak to his mother. The officers left the interview room, and the defendant spoke to his mother. When the officers returned, the defendant told them that what he had stated previously was a lie. According to the defendant, what actually happened was that he drove to the club alone. He was outside of the club when a fight erupted inside and poured outside. A friend of his was getting attacked by several people. The defendant saw a person standing by the club entrance with a gun in his hand. The defendant took the gun from this unknown person and fired four shots into the ground to get those people who were attacking his friend to disperse. The defendant then got into his car and left. He stated that there was a gun in his car because he put it there, and he admitted to possessing marijuana.
Detective Daniel Foulds, with the Ascension Parish Sheriff's Office, testified that he was dispatched to the club on the night of the shooting and interviewed witnesses. He procured a search warrant for the defendant's Ford Taurus and found a silver .357 caliber magnum revolver and about 21 loose .22 caliber cartridges scattered around the floorboard of the car. The gun, found on the front passenger seat of the car, had four spent .38 caliber rounds and two live .38 caliber rounds in the chamber. The gun was processed through NCIC, which indicated the gun was not stolen. Detective Hagan testified that the ATF trace form to determine the original purchaser of the gun had not been completed. Detective Hagan further testified that he had obtained the bullet from the victim who had been shot at the club. That bullet was shot possibly from a .32 caliber revolver. The defendant was never identified as the person who shot the victim. According to Detective Hagan, there were probably two sets of gunshots at the club, but it was never determined who the second shooter was.
The defendant testified he had heard about the club and thought he would check it out. According to the defendant, the club was being closed early because the situation became heated between patrons from Donaldsonville and patrons from Baton Rouge. The defendant knew the sister of a male patron from Baton Rouge. Many of the people began screaming "Donaldsonville." Then someone walked out the door of the club and hit someone. The person hit was then jumped by several others. Others were fighting, and others were running to avoid the fighting. The defendant moved out of the way of the fighting. As he ran along the sidewalk, he saw the barrel of a gun and heard a gunshot. He then saw another gun barrel being raised. He snatched the gun from the person's hand and fired several shots into the ground in order to get everyone to go home. The defendant then ran to his car and left. The defendant stated that the .357 caliber magnum was not his. He stated he took the gun from an unknown person, whom he could not describe. The defendant explained he grabbed the gun because "[t]hese guys were getting ready to shoot in the crowd" and the defendant was thinking someone was going to die. At the time of trial, the defendant had no prior convictions.
COUNSELED AND PRO SE ASSIGNMENTS OF ERROR NO. 1
In his first counseled assignment of error and first pro se assignment of error, the defendant argues that the trial court erred in denying his request for a special jury charge. Specifically, the defendant contends the jury charge pertaining to defense of others should have been provided to the jury.
The court shall charge the jury as to the law applicable to the case. LSA-C.Cr.P. art. 802(1). Louisiana Code of Criminal Procedure article 807 provides:
The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.
Following closing arguments, defense counsel requested that the special jury charge on the law of defense of others be provided to the jury. The trial court denied the request. Defense counsel objected to the ruling.
Initially we note it is not clear from the record whether defense counsel provided his requested special jury charge in writing, as required by LSA-C.Cr.P. art. 807. See State v. Ford, 608 So.2d 1058, 1061 (La. App. 1st Cir. 1992). However, in considering and then denying the jury charge, neither the trial court nor the prosecutor made any mention of Article 807 not being complied with. Moreover, the defendant argues in his brief that if the issue is not addressed by this court because of defense counsel's failure to reduce the request for the jury charge to writing, then such deficiency should be considered ineffective assistance of counsel. Accordingly, we address the assignment of error.
We see no reason to disturb the trial court's denial of the defendant's request to include a jury charge regarding defense of others in its jury instructions. Louisiana Revised Statute 14:19(A) provides:
The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.It is also justifiable to use force or violence in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person. LSA-R.S. 14:22.
The defendant's version of events, wherein he claimed he snatched a magnum revolver from someone's hand and shot several rounds into the ground to defend someone from getting beaten up, strains the limits of plausibility. According to the defendant's own testimony and other evidence adduced at trial, the defendant took the gun from someone he did not know; the person from whom he took the gun did nothing to take back possession of the gun; the defendant fired several shots into the ground, kept the gun, got into his car, and led police on a high-speed chase until he crashed. The defendant scrambled from his wrecked car and continued to evade the police. When he was apprehended, the defendant provided several different accounts to the police about events that had transpired at the club. After speaking to his mother, the defendant told the police he had come to the club alone and, when the fighting broke out, he grabbed a gun from someone's hand and fired the weapon into the ground to scare off a group of people who were beating up someone. When asked at trial why he ran from the police, having allegedly done nothing wrong, the defendant testified that he was scared. According to Sergeant Gonzales, Sergeant Luna, and Detective Hagan, the defendant claimed he was defending a "friend"; however, when he testified, the defendant stated that the person he was defending was not a friend, but "was an associate I knew of." While the defendant claimed the shots were fired into the ground, Detective Foulds testified he went back to the scene with another detective to look for evidence of gunshots having been fired into the dirt or pavement, and found no indication that bullets were fired into the ground. Also, Detective Hagan testified that he and Lieutenant Gerald Wheaiton went back to the club a day or so later with a metal detector to find any kind of metal projectile in the ground, but found nothing. Accordingly, the evidence did not suggest that the defendant was defending anyone. Also, it was never made clear if the crowd even dispersed upon hearing the gunfire.
Moreover, even assuming the defendant's final version (after speaking to his mother) of events was true, his acts would not have constituted a valid defense of others. Other than the defendant's testimony that someone was getting hit by a group of people, there was no testimony or other evidence at trial to suggest that someone was getting so beat up and was so outnumbered that he needed someone to defend him. Moreover, even if that person was engaged in a fight and may have needed help, it surely would not follow that the defendant had a right to grab a stranger's gun and fire it multiple times, ostensibly to scare off people. The dangerous actions the defendant engaged in were so fraught with recklessness and the potential of someone getting injured or killed that such force used by the defendant under these circumstances was neither reasonable nor necessary to protect an alleged stranger. See LSA-R.S. 14:19(A) and 14:22. If anything, the defendant's highly irresponsible behavior could have started a gunfight among himself and others in the crowd that were armed, placing the safety of many other people at risk.
A jury instruction not supported by the evidence is properly refused. See State v. Craig, 95-2499 (La. 5/20/97), 699 So.2d 865, 869, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). The defense of others theory was not fairly supported by the evidence and, thus, the defendant's special jury charge was not pertinent. See State v. Henderson, 99-1945 (La. App. 1st Cir. 6/23/00), 762 So.2d 747, 757, writ denied, 00-2223 (La. 6/15/01), 793 So.2d 1235. See also State v. Telford, 384 So.2d 347, 350 (La. 1980). Further, to the extent the defendant's version of events was substantially impeached by other evidence, the instruction was inapplicable. See State v. Rodriguez, 01-2182 (La. App. 1st Cir. 6/21/02), 822 So.2d 121, 135-37, writ denied, 02-2049 (La. 2/14/03), 836 So.2d 131. Accordingly, there was no error in the trial court's refusal to give the special jury charge.
Moreover, even assuming arguendo, that the trial court erred in refusing to give the proposed special jury charge, such refusal does not warrant the reversal of a conviction unless it prejudices substantial rights of the accused. See LSA-C.Cr.P. art. 921; State v. Domino, 97-0261 (La. App. 1st Cir. 2/20/98), 708 So.2d 1143, 1147. The jury instructions given by the trial court in this case protected the substantial rights of the defendant. See Rodriguez, 822 So.2d at 135-38. Furthermore, the defense of others theory was argued by defense counsel in both opening statement and closing argument. Because he was able to present his argument about defense of others to the jury, there was no showing that he was prejudiced by the refusal of the trial court to give the requested special jury charge. See State v. Lawson, 08-123 (La. App. 5th Cir. 11/12/08), 1 So.3d 516, 527-28.
These counseled and pro se assignments of error are without merit.
COUNSELED AND PRO SE ASSIGNMENTS OF ERROR NO. 2
In his second counseled assignment of error and second pro se assignment of error, the defendant argues the evidence was insufficient to support the conviction. Specifically, the defendant contends he proved his actions were in defense of another. Further, in his second counseled assignment of error, the defendant argues that the state failed to prove he was in possession of marijuana at the time he discharged the firearm.
A conviction based on insufficient evidence cannot stand as it violates due process. See U.S. Const. amend. XIV; LSA-Const. art. I, § 2. The standard for appellate review of 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 have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also LSA-C.Cr.P. art. 821(B); State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that, in order to convict, the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 01-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm where it is foreseeable that it may result in death or great bodily harm to a human being. LSA-R.S. 14:94(A). The defendant's sentence for the conviction was enhanced under LSA-R.S. 14:94(F), which provides, in pertinent part, that "[w]hoever commits the crime of illegal use of weapons or dangerous instrumentalities by discharging a firearm while committing . . . [a] violation of the Uniform Controlled Dangerous Substances Law, shall be imprisoned at hard labor for not less th[a]n ten years nor more than twenty years, without benefit of parole, probation, or suspension of sentence."
In a homicide case, the state must prove, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense (or defense of others). See State v. Spears, 504 So.2d 974, 978 (La. App. 1st Cir.), writ denied, 507 So.2d 225 (La. 1987). However, Louisiana law is unclear as to who has the burden of proving self-defense (or defense of others) in a non-homicide case, and what the burden is. See State v. Barnes, 590 So.2d 1298, 1300-01 (La. App. 1st Cir. 1991). In previous cases dealing with this issue, this court has analyzed the evidence under both standards of review, that is, whether the defendant proved self-defense (or defense of others) by a preponderance of the evidence or whether the state proved beyond a reasonable doubt that the defendant did not act in self-defense (or defense of others). See State v. Pizzalato, 93-1415 (La. App. 1st Cir. 10/7/94), 644 So.2d 712, 714, writ denied, 94-2755 (La. 3/10/95), 650 So.2d 1174. In this case, we need not and do not decide the issue of who has the burden of proving (or disproving) defense of others because, under either standard, the evidence sufficiently established that the defendant did not justifiably act in defense of others. Id. at 714.
In State v. Freeman, 427 So.2d 1161, 1162-63 (La. 1983), the Louisiana Supreme Court, without resolving the issue, suggested that the defendant in a non-homicide case may have the burden of proving self-defense by a preponderance of the evidence.
By his own testimony and statements to the police, the defendant admitted that he intentionally discharged a firearm. As discussed in the first assignments of error, given his fabrications during his initial encounters with law enforcement officers, and then settling on a story that vexed reason and common sense, any rational juror could have concluded the defendant was lying about trying to protect someone he did not know from allegedly getting beaten up. Moreover, the defendant's actions of leaving the scene after firing the weapon, and then engaging in a high-speed chase with the police in an attempt to escape apprehension, are inconsistent with a theory of defense of others. See State v. Emanuel-Dunn, 03-0550 (La. App. 1st Cir. 11/7/03), 868 So.2d 75, 80, writ denied, 04-0339 (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 following an offense reasonably raises the inference of a "guilty mind." State v. Captville, 448 So.2d 676, 680 n.4 (La. 1984). Accordingly, the jury's rejection of the defense of others theory was supported by these circumstances.
The jury heard all of the testimony and viewed all of the physical evidence presented to it at trial and, notwithstanding any conflicting testimony or perhaps because of conflicting testimony, found the defendant guilty. The guilty verdict reflected the reasonable conclusion that, based on the self-serving testimony of the defendant, the testimony of the police officers, and the physical evidence, or lack thereof (no spent bullets found in the ground), the defendant's use of the handgun was illegal and not In defense of others. See Spears, 504 So.2d at 978. 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. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). See State v. Johnson, 99-0385 (La. App. 1st Cir. 11/5/99), 745 So.2d 217, 223, writ denied, 00-0829 (La. 11/13/00), 774 So.2d 971.
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. Captville, 448 So.2d at 680. The jurors apparently concluded that the defendant's version of the events about why he discharged the firearm was a fabrication designed to deflect blame from him. The apparent conclusion by the jurors that the defendant did not testify truthfully could reasonably support an inference that the "truth," if told by him, would have been unfavorable to his defense of others theory. As such, the hypotheses of innocence presented by the defendant must fall. See Captville, 448 So.2d at 680.
Regarding the marijuana possession, the defendant argues (in counseled brief) that, while he admitted to the police he had marijuana in his pocket when they searched him, there was no testimony at trial to establish he was wearing the jacket when he discharged the firearm. The defendant suggests the jacket could have been in the car when he fired the gun, and that he put it on to drive away.
The defendant was found by the police wearing a jacket with marijuana in one of the pockets. There is nothing in the evidence to suggest the defendant was not wearing his jacket when he was at the club. The incident happened at night, during the month of January, and the jurors couid have reasonably concluded the defendant was wearing his jacket as he stood outside the club firing the weapon. Moreover, for the defendant to have possessed the marijuana, actual possession need not be proven; constructive possession is sufficient. A person may be in constructive possession of a controlled dangerous substance if it is subject to his dominion and control regardless of whether or not it is in his physical possession. See State v. Gallow, 452 So.2d 227, 234 (La. App. 1st Cir.), writ denied, 456 So.2d 1016 (La. 1984). Thus, even assuming the defendant had not been wearing his jacket at the time he fired the weapon, the marijuana, which was in his jacket inside his car, was still under his dominion and control and he, therefore, constructively possessed the drugs.
After a thorough review of the record, we find the evidence supports the jury's unanimous verdict. We are convinced that, viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was in possession of marijuana and did not discharge the firearm in defense of others. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
These counseled and pro se assignments of error are without merit.
CONVICTION AND SENTENCE AFFIRMED.