Opinion
No. 2010 KA 1682.
March 25, 2011.
ON APPEAL FROM THE 19TH JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA TRIAL COURT NO. 03-07-1093 HONORABLE WILSON FIELDS, JUDGE PRESIDING.
Hillar C. Moore, III, D.A., Allison Miller Rutzen, Asst. D.A., Baton Rouge, LA, Attorneys for Plaintiff-Appellee, State of Louisiana.
Prentice L. White, Baton Rouge, LA, Attorney for Defendant-Appellant, Freddie Washington, Jr.
BEFORE: KUHN, PETTIGREW, AND HIGGINBOTHAM, JJ.
The defendant, Freddie Washington, Jr., was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. He pled not guilty. Following a jury trial, the defendant was found guilty as charged. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, urging two assignments of error as follows:
1. Did the district court commit manifest error when it denied defense counsel's Batson objection against the state considering that the alleged race-neutral reasoning offered by the state was simply a pretense to excluding African American jurors from the panel?
2. Was the district court's decision to accept the jury's guilty verdict against Washington reversible error when the record reveals that the state failed to override the overwhelming presence of reasonable doubt in its case-in-chief regarding whether Washington was the person responsible for the victim's death?
Finding no merit in the assigned errors, we affirm the defendant's conviction and sentence.
FACTS
At approximately 5:30 p.m., January 22, 2007, Jeptha Nelson and his eleven-year-old son arrived at Taco Bell restaurant on Greenwell Springs Road in Baton Rouge. Nelson parked his white pickup truck in the restaurant's parking lot, but did not immediately exit the vehicle. As Nelson and his son sat inside the truck discussing what they planned to eat, Nelson noticed a black male approach the truck from the passenger side of his vehicle and walk toward the rear of it. The man then walked up between Nelson's vehicle and the blue Pontiac Firebird that was parked directly next to it. He opened the passenger's door of the Firebird, and briefly engaged in an exchange with a black male, later determined to be Antonio Coleman (the victim), who was seated in the driver's seat. The man raised a handgun and opened fire directly into the vehicle. After firing several shots, the man turned and walked away. Shocked at what he witnessed, Nelson exited his vehicle and looked inside the Firebird. He noticed that the victim had sustained several gunshot wounds. Nelson went inside the restaurant and asked someone to call 911.
Shortly thereafter, Lieutenant Stephen Browning, with the Baton Rouge Police Department, arrived on the scene to investigate the shooting. Browning found the victim's lifeless body slumped over in the driver's seat of the Firebird. He immediately summoned homicide detectives to the scene. An autopsy later revealed the victim died as a result of a gunshot wound to the chest. The bullet lacerated the left and right ventricles and the right atrium. The victim also sustained other gunshot wounds to the chest, right cheek, arm and head. A bullet casing remained embedded beneath the skin on the victim's forehead. A homicide investigation was launched.
The victim was later pronounced dead at the scene.
Although Nelson and several other eyewitnesses observed the shooting, no one was able to provide a detailed identification of the shooter. Several witnesses advised that the shooter wore dark clothing and had his head covered. Nelson and his son assisted the police in preparing a composite sketch of the shooter.
Three days later, on January 25, 2007, the police received a Crime Stopper's tip identifying the defendant as the individual who shot the victim. Later, while incarcerated, the defendant informed the prison officials that he wished to speak to the police regarding the murder. On February 28, 2007, the defendant provided a tape-recorded statement wherein he confessed to shooting the victim and provided a detailed description of the events immediately preceding and following the shooting. The defendant admitted he was wearing a black jacket and a black and yellow hat on his head at the time of the shooting. The statement was introduced into evidence and played for the jury at the defendant's trial.
Defendant was arrested on February 8, 2007.
ASSIGNMENT OF ERROR 1 BATSON OBJECTION
In his first assignment of error, the defendant asserts the trial court erred in overruling his objection to the prosecutor's racially discriminatory use of peremptory challenges to exclude African American prospective jurors. More specifically, the defendant asserts that the purported race-neutral reasons provided by the prosecutor for excusing prospective jurors Joseph McNeely, Gregory Mingo, and Keith Powers were pretextual. He argues that the peremptory exclusion of these three (of a total of only four) African American prospective jurors on the third panel proves a pattern of racial discrimination by the state. In response, the state argues legitimate race-neutral reasons were provided for the exclusion of the prospective jurors in question, thus, the trial court correctly denied the defendant's Batson challenge.
In Batson v. Kentucky, 476 U.S. 79, 96,106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986), the United States Supreme Court outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. State v. Mitchell, 99-0283 (La. App. 1st Cir. 6/22/01), 808 So.2d 664, 669. Under Batson, a defendant must first establish a prima facie case of discrimination by showing facts and relevant circumstances which raise an inference that the prosecutor used his peremptory challenges to exclude potential jurors on account of their race. State v. Tilley, 99-0569 (La. 7/6/00), 767 So.2d 6, 12, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001). The combination of factors needed to establish a prima facie case are: (1) the defendant must demonstrate that the prosecutor's challenge was directed at a member of a cognizable group; (2) the defendant must then show the challenge was peremptory rather than for cause; and (3) finally, the defendant must show circumstances sufficient to raise an inference that the prosecutor struck the prospective juror on account of race. State v. Myers, 99-1803 (La. 4/11/00), 761 So.2d 498, 501.
The defendant may offer any facts relevant to the question of the prosecutor's discriminatory intent. Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor during voir dire that support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury finally empaneled, and any other disparate impact upon the suspect class that is alleged to be the victim of purposeful discrimination. State v. Rodriguez, 01-2182 (La. App. 1st Cir. 6/21/02), 822 So.2d 121, 128, writ denied, 02-2049 (La. 2/14/03), 836 So.2d 131.
No formula exists for determining whether the defense has established a prima facie case of purposeful discrimination. A trial judge may take into account not only whether a pattern of strikes against African American prospective jurors has emerged during voir dire, but also whether the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. State v. Rodriguez, 822 So.2d at 128.
If the requisite showing has been made by the defendant, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. The second step of this process does not demand an explanation that is persuasive, or even plausible. At the second step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral. State v. Mitchell, 808 So.2d at 669-70. This is a burden of production, not one of persuasion. State v. Harris, 01-0408 (La. 6/21/02), 820 So.2d 471, 473.
Faced with a race-neutral explanation, the defendant then must prove to the trial court purposeful discrimination. The proper inquiry in this final stage of the Batson analysis is whether the defendant's proof, when weighed against the prosecutor's proffered race-neutral reasons, is sufficient to persuade the trial court that such discriminatory intent is present. Thus, the focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. State v. Tilley, 767 So.2d at 12. The ultimate burden of persuasion is on the defendant. State v. Young, 551 So.2d 695, 698 (La. App. 1st Cir. 1989). The trial court should examine all of the available evidence in an effort to discern patterns of strikes and other statements or actions by the prosecutor during voir dire that support or reject a finding of discriminatory intent. State v. Tilley, 767 So.2d at 12-13.
In the instant case, before the Batson objection was urged, three panels of prospective jurors were questioned. Each panel consisted of thirteen prospective jurors. A total of twelve African Americans were examined. There were four African Americans on the first panel, four on the second panel, and four on the third. The first two African Americans on the first panel (Wicks and Sims) were excluded in response to a cause challenge by the state. Jimmy Harris and Andea Brown, the remaining African Americans on the first panel, were accepted as jurors by the state and the defense.
Andea Brown, Devin Wicks, Willie Sims, Jr., and Jimmy Harris were on the first panel.
Songre Battley, Darryl Monroe, Melina Labat, and Oberian Thigpen were on the second panel.
Gregory Mingo, Joseph McNeely, Keith Powers, and Shaneka Sterling were questioned with the third panel.
On the second panel, the state exercised peremptory challenges against three of the four African Americans (Monroe, Labat, and Thigpen). The defense used a backstrike to dismiss Battley, the fourth, and final, African American on that panel. There was no Batson objection at this time.
Later, at the conclusion of the questioning of the third panel, the state challenged prospective juror Keith Powers (an African American) for cause, noting that his voir dire responses indicated that his wife worked at the same state agency where the defense attorney's mother worked. The trial court denied this cause challenge. Thereafter, when the state used peremptory challenges against Powers and two other African American prospective jurors on the panel (Mingo and McNeely), the defense urged the Batson objection alleging that the state was utilizing its peremptory challenges in a discriminatory manner to exclude African Americans from the jury. Defense counsel specified that she had a problem with the exclusion of these particular prospective jurors. Counsel did not mention any of the previously excluded African American prospective jurors.
Without a ruling on whether a pattern of racial discrimination had been established, the trial court asked the prosecutor to provide explanations for the peremptory challenges against Mingo, McNeely, and Powers. The prosecutor explained that Mingo was excluded based upon his response to a question posed by the defense counsel regarding the reason people tell lies. He noted that Mingo and several other prospective jurors indicated that people often told lies when they are being "boastful" and/or attempting to "make themselves look good." The prosecutor explained that since he was aware an important defense theory at the trial was going to be that the defendant fabricated his confession to make himself look good in the drug community, every prospective juror who stated that people lied to be boastful was peremptorily challenged.
The prosecutor further explained that prospective juror McNeely had been excluded because he indicated he was previously a victim of an armed robbery and he was not satisfied with the way the police handled the matter. He stated he felt as if the police were investigating him as a participant in a drug transaction, rather than actually investigating the robbery. The prosecutor further explained that he did not believe McNeely was honest in his voir dire responses. Specifically, he noted that although McNeely indicated that he did not know anyone with a drug problem, he also indicated that he had family members who had been charged with marijuana, heroin, and cocaine-related offenses. Finally, the prosecutor explained that prospective juror Powers was peremptorily challenged because he indicated during voir dire that he is very well acquainted with several inmates at Angola (many of whom called him by the nickname, "Mr. Gerry Lane") and because his wife works for the same state agency where the defense counsel's mother worked (the same reason previously urged in a cause challenge). The trial court accepted the state's reasons as race-neutral justifications for all three challenges and denied the Batson challenge. The court noted the defendant's objection to the ruling and proceeded with voir dire. No further Batson objections were urged.
The defendant now argues that because the state peremptorily challenged these three African American prospective jurors and failed to exclude other prospective jurors who gave similar responses, the trial court erred in concluding that a pattern of race-based exclusions did not exist. Our careful review of the entire record of the voir dire proceedings fails to disclose any error in the trial court's ruling as to the Batson objection. Since the preliminary issue of whether the defendant made a prima facie showing is moot as the prosecutor offered race-neutral reasons for the peremptory challenges, and the trial court ruled on the ultimate question of intentional discrimination, we will begin with the second step under the Batson analysis. See State v. Woods, 97-0800 (La. App. 1st Cir. 6/29/98), 713 So.2d 1231, 1235, writ denied, 98-3041 (La. 4/1/99), 741 So.2d 1281.
The reasons given by the state for exercising the peremptory challenges of the prospective jurors in question are facially race-neutral. Thus, we find that the state sustained its burden of articulating race-neutral reasons for the exercise of the peremptory strikes at issue. In the third step of the Batson analysis, we must determine whether the reasons are substantial and whether they are substantiated by the record. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 289. The proper inquiry in this final stage of the Batson analysis is not whether the state has disproved the existence of purposeful discrimination suggested by a defendant's prima facie case; rather, the question is whether a defendant's proof, when weighed against the prosecutor's offered race-neutral reasons, is strong enough to persuade the trier-of-fact that such discriminatory intent is present. State v. Woods, 713 So.2d at 1235.
We reject the defendant's claim that the state's reasons for striking the jurors in question were pretextual because the state did not exclude every other juror who possessed characteristics similar to those cited as reasons for the challenges. It is well-settled that the fact that a prosecutor excuses one person with a particular characteristic and not another similarly situated person, does not in itself show that the prosecutor's explanation was a mere pretext for discrimination. The accepted jurors may have exhibited traits which the prosecutor reasonably could have believed would make these individuals desirable as jurors. See State v. Leagea, 95-1210 (La. App. 1st Cir. 5/10/96), 673 So.2d 646, 649-50, writ denied, 96-1507 (La. 11/22/96), 683 So.2d 287. The trial judge was in the best position to observe the entire voir dire and thus, to make the most informed decision as to whether the state used its peremptory challenges in a discriminatory manner. It is apparent from the record before us that the trial court weighed the defendant's Batson claims against the state's race-neutral reasons for excluding each of the prospective jurors in question and concluded that the peremptory challenges exercised against these jurors were not motivated by race. A trial judge's determination pertaining to purposeful discrimination rests largely on credibility evaluations and so his or her findings are entitled to great deference by the reviewing court. Batson v. Kentucky, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21; State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 654, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). Furthermore, we note that the state did not exhaust all of the available peremptory challenges, and four African American jurors (three jurors and one alternate) served on the jury in this case. Based on the entire voir dire, we find that the trial court did not err in denying defendant's Batson challenge as to Mingo, McNeely, and Powers. This assignment of error lacks merit.
Jimmy Harris, Sheneka Sterling, and Andea Brown served as jurors. Brandon Williams served as the alternate.
ASSIGNMENT OF ERROR 2 SUFFICIENCY OF THE EVIDENCE
In this assignment of error, the defendant challenges the sufficiency of the evidence used to convict him of second degree murder. He specifically argues that the state's evidence, which was largely circumstantial, failed to negate the possibility of misidentification. In support of his argument, the defendant points out that although there were several eyewitnesses to the shooting, no one positively identified him as the shooter.
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 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. Mussall, 523 So.2d 1305, 1308-09 (La. 1988).
When analyzing circumstantial evidence, LSA-R.S. 15:438 provides, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." This statutory test is not a purely separate one from the Jackson constitutional sufficiency standard. On appeal, the reviewing court "does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt." State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. (Citation omitted).
Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Shanks, 97-1885 (La. App. 1st Cir. 6/29/98), 715 So.2d 157, 159. Specific criminal intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1). Specific intent may be proved 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. State v. Cummings, 99-3000 (La. App. 1st Cir. 11/3/00), 771 So.2d 874, 876.
To support a conviction for second degree murder, the state is required to show: 1) the killing of a human being; and 2) that defendant had the specific intent to kill or inflict great bodily harm. See LSA-R.S. 14:30.1A(1); State v. Morris, 99-3075 (La. App. 1st Cir. 11/3/00), 770 So.2d 908, 918, writ denied, 00-3293 (La. 10/12/01), 799 So.2d 496, cert. denied, 535 U.S. 934, 122 S.Ct. 1311, 152 L.Ed.2d 220 (2002).
Where the key issue in a case is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification in order to meet its burden of proof. State v. Millien, 02-1006 (La. App. 1st Cir. 2/14/03), 845 So.2d 506, 509. However, positive identification by only one witness may be sufficient to support a defendant's conviction. State v. Coates, 00-1013 (La. App. 1st Cir. 12/22/00), 774 So.2d 1223, 1225.
In the instant case, the facts and circumstances surrounding the commission of the offense are essentially undisputed. The defendant does not contest that the killing occurred. Rather, he only challenges the state's evidence of his identity as the shooter. Our review of the record in this case reveals that the evidence presented by the state in this matter was sufficient to prove the defendant's identity as the shooter.
At the trial, the most critical piece of evidence presented by the state was the defendant's taped confession to the police. The confession was introduced into evidence and played for the jury. In the statement, the defendant admitted that he is a crack cocaine user. He also admitted that he shot the victim. The defendant claimed the murder was the result of some conflict between drug dealers. He explained that Jessie Harris, a drug dealer for whom the defendant performed various odd jobs and sometimes ran drugs, asked him to kill the victim. The defendant said he was going to be paid approximately ten thousand dollars for the murder. He stated the victim, another drug dealer, had recently robbed Troy and Travis James, two of Harris's acquaintances and fellow drug dealers. The defendant agreed to carry out the murder.
On the day in question, two females, Brittany Taylor and Sarah Freeman, were riding around with the victim. The ladies, apparently aware of the conflict between Harris and the victim, contacted Harris and told him that they were with the victim. Harris contacted the defendant, picked him up, and told him it was time to carry out the murder. As Taylor and Freeman provided information regarding the victim's location, Harris, Travis James, and the defendant attempted to coordinate a location for the murder to take place. Taylor and Freeman tried to get the victim to stop at a store for milk, and later at a daiquiri shop. The victim did not stop. Shortly thereafter, the ladies were successful in getting the victim to stop at Taco Bell. They advised Harris, via cellular phone, that they would be stopping at the Taco Bell on Greenwell Springs Road. They were instructed to exit the vehicle and leave the passenger-side door open. Meanwhile, the defendant was dropped off in a subdivision near Taco Bell.
According to the defendant, he walked over to Taco Bell and immediately approached the victim's vehicle. After he asked the driver if he was "Hound" and the driver responded affirmatively, the defendant shot him in the head. The defendant claimed he watched the victim's body drop after he shot him. The defendant explained that he used a nine-millimeter handgun, provided by Harris, to carry out the murder.
The defendant explained that Harris and Travis James then picked up the females from a nearby parking lot. Later, after the murder was complete, Troy James picked the defendant up in a brown Chevy Trailblazer and gave him some drugs to "chill with." Troy then drove to a nearby Circle K store for gas. The defendant claimed he remained inside the vehicle while Troy got the gas. Troy later dropped the defendant off at another Circle K. The defendant explained he then took a taxicab from the Circle K to his girlfriend's home in Denham Springs.
Further, the testimonial evidence presented at the trial established that, during their investigation of the shooting, the police learned that there were several individuals who actually witnessed the shooting. Tobbie Vavasseur testified that he was visiting Baskin Robbins, which is located next to Taco Bell, on the day in question when he heard five or six gunshots. Immediately thereafter, he saw an individual wearing dark clothing jog past him. Vavasseur used the camera on his cellular phone and attempted to capture a photograph of the individual. At trial, Vavasseur explained that the first shot he took was unclear and fuzzy, and in the second shot he took, the subject was too far away for the photograph to be of any value. Vavasseur testified he was later shown some photographs at the police station, but he was unable to identify anyone as the shooter.
Willie Windsor testified she was driving down Greenwell Springs Road at approximately 5:45 p.m. on the day of the shooting. Windsor lives in the subdivision behind Taco Bell. She was preparing to turn right onto Platt Drive, the street adjacent to Taco Bell, when her niece, who was a passenger in the vehicle, said, "he is shooting him." Windsor then observed someone jogging down the street. She turned onto Platt Drive and immediately called 911. Windsor did not follow the individual. Instead, she turned around and returned to Taco Bell and parked. Windsor did not see the individual's face, and she was unable to provide a description.
Willie Gordon testified he was at the Subway restaurant on Greenwell Springs Road, approximately 200 yards away from Taco Bell, when he heard the gunshots. He turned and witnessed a guy who he saw in the area earlier walking briskly and then trotting around the corner of the Taco Bell restaurant. The guy was wearing a dark cap. Gordon testified he did not actually see who did the shooting, he only heard the shots. He was never shown a line-up by the police.
Jeptha Nelson testified that when he pulled up in the parking lot, he parked his truck next to the passenger side of the victim's vehicle. He further testified that the shooter was wearing a dark jacket and had his head covered. Nelson was later shown some photographs at the police station, but he could not positively identify the shooter. Nelson further explained that the composite sketch that he and his son assisted the police with was "close" but not "exact."
Tad Aycock, an employee with Enterprise Rent-A-Car, testified that an individual named Ebony Flemming rented the 2006 Chevy Trailblazer seen in the surveillance footage. Aycock explained that Flemming rented the vehicle for Troy James, who was on a "do-not-rent" status with the company.
Keith Wykoff, the owner and manager of Baton Rouge Yellow Cab, testified that on January 22, 2007, his company received two calls from the defendant. The first call was placed at approximately 2:09 a.m. The defendant requested a cab to take him to a residence in Denham Springs. This request was later cancelled. Later that day, at approximately 6:08 p.m., the defendant called and requested a cab to be sent to Circle K on O'Neal Lane in Baton Rouge. The defendant was picked up by Yellow Cab #8 and transported to a residence on 4-H Club Road in Denham Springs. According to police testimony, the driver of the cab, Chris Bossier, identified that either number two or three out of a six-person photographic line-up was the defendant. The defendant was number two. Mr. Bossier transported defendant to Denham Springs on the evening in question.
Officer Christopher Johnson, of the Baton Rouge Police Department Homicide Division, testified that during the investigation of this case, he learned that all of the individuals allegedly involved in the murder, with the exception of the defendant, went to Embassy Suites Hotel after the killing. Surveillance footage from Embassy Suites showed the group (Troy James, Travis James, Jessie Harris, Sarah Freeman, and Brittany Taylor) arrive at the hotel at approximately 7:59 p.m. Officer Johnson further testified that surveillance footage from Circle K on Flannery Road in Baton Rouge corroborated the defendant's claim that he and Troy went to get gas immediately after the shooting. In the Circle K footage, Troy James can be observed at the gas pump with the Chevy Trailblazer. Officer Johnson later learned that the vehicle had been rented from Enterprise Rent-A-Car by Ebony Flemming, Troy James's girlfriend. In the Embassy Suites footage, Troy James is wearing the same clothes he was observed wearing in the Circle K footage.
Henry Givens also testified for the state at the trial. Givens testified that he and the defendant are friends. He further testified that he and the defendant were together on January 22, 2007, at a residence in Denham Springs. According to Givens, while they were both under the influence of crack cocaine, the defendant stated that the gun that he had in his possession "had a murder on it." The defendant admitted that he had committed a murder on Greenwell Springs Road. Givens testified he advised the Baton Rouge Police Department of the defendant's admission.
The defendant testified on his own behalf at the trial. He denied participating in the shooting. He stated that his confession was motivated out of fear for his family and was not true. He explained that he and his family had received various threats while he was incarcerated. Specifically, he claimed someone named "Jeff" came to see him and told him that Jesse said if he did not take the charge, something was going to happen to his daughters, Breann and Brandy. He further testified that his wife advised him that a stranger approached one of his daughters in a public place and asked if she was the defendant's daughter. After receiving this information, the defendant claimed he decided to speak to the police. He claimed that once he confessed to the murder, all threats against his family stopped. When questioned as to how he was able to provide specific details of the killing if he was not involved, the defendant testified that he overheard people talking about the killing and he learned other facts about the crime scene from the news.
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. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. The reviewing court is not permitted "to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Marcantel, 00-1629 (La. 4/3/02), 815 So.2d 50, 56. It is not the function of an appellate court to assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. See State v. Houston, 98-2658 (La. App. 1st Cir. 9/24/99), 754 So.2d 256, 259. When a case involves circumstantial evidence and the trier of fact 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 that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984).
After reviewing the trial testimony and evidence, we conclude that the defendant's identification as the person who shot the victim was established beyond a reasonable doubt. It is the function of the jury to determine which witnesses are credible. It is obvious from the verdict rendered that the jury found the defendant's very detailed confession to be truthful and rejected any claim of fabrication based upon threats. Considering all of the evidence introduced as corroboration for the details provided in the defendant's confession (i.e., surveillance footage from the Circle K and Embassy Suites, Givens's testimony, and the taxi cab records), we find the verdict rendered in this case to be reasonable. Taking into account the very detailed nature of the confession, which also explained the motive for the murder and the defendant's motivation for confessing (to try to get a more lenient sentence), the jury obviously rejected any theory of mistaken identity. 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. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 662-63. Furthermore, an appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the jury 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, 422 (per curiam).
Considering the foregoing, we find that there is sufficient evidence to support the second degree murder conviction and to establish the defendant's identity as the shooter. Therefore, viewing all the evidence in the light most favorable to the state, and giving deference to the credibility determinations of the jurors, a rational trier of fact could have concluded beyond a reasonable doubt, and to the exclusion of any reasonable hypothesis of innocence, that the defendant was guilty of the charged offense. The evidence was sufficient to negate any reasonable probability of misidentification. This assignment of error lacks merit.
REVIEW FOR ERROR
The defendant asks that this court examine the record for error under LSA-C.Cr.P. art. 920(2). This court routinely reviews the record for such errors, whether or not such a request is made by a defendant. Under LSA-C.Cr.P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. 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.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.