author: STEWART, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Avionest Leonest FULLER, Appellant.
    No. 42,211-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      English & Associates, by Larry English, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Edward M. Brossette, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   STEWART, J.

hThe defendant, Avionest Leonest Fuller, was convicted of manslaughter, a violation of La. R.S. 14:31. He was adjudicated a second felony offender and thereafter sentenced to twenty years at hard labor without the benefit of probation or suspension of sentence. The defendant now appeals. For the reasons that follow, we affirm his conviction and sentence.

FACTS

Avionest Fuller, and the victim, Deandre Welch, were at one time friends. The victim’s wife recounted that the defendant had been a guest in her home in the past. At some point, the relationship soured as Welch became upset with the defendant for reasons not entirely clear in the record. Some related the discord to a dispute concerning drugs while others related the matter to a dispute involving a woman. Although the exact matter of dispute was unknown, Fuller was convinced that Welch was intent on killing him.

The bad blood between the men continued. At some time prior to the shooting, Welch made known his intentions to “deal with” Fuller for “snitching.” After this declaration, Welch and his wife pulled guns on Fuller and threatened to shoot him. The evening before the fatal shooting, witnesses and Fuller alleged that Welch again pulled a gun and threatened to shoot him, but was deterred from this action.

The next day, on January 14, 2004, Fuller saw Welch walking a dog in the neighborhood where the defendant’s mother lived. The victim’s mother-in-law was also a resident of the area. After seeing Welch in the 12neighborhood, Fuller, armed with a AK-47 assault style weapon, drove to Welch’s mother-in-law’s home and confronted him about the previous threats. The men talked briefly before Fuller opened fire upon Welch. As Welch attempted to flee, Fuller chased him while firing a barrage of bullets. Welch eventually fell and Fuller stood over him shooting into his body. Twenty-two shell casings were recovered from the scene, and Welch had at least 14 gunshot wounds, at least one of which the autopsy revealed was inflicted to the back of his head.

Fuller was arrested on the day of the shooting, and charged with second degree murder. The defendant elected to be tried by judge and was found guilty of manslaughter. The trial judge thereafter sentenced the defendant to 20 years at hard labor.

DISCUSSION

Sufficiency of the Evidence

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821,- does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

^Manslaughter is a “homicide which would be 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.” La. R.S. 14:31 A(1); State v. Quiambao, 36,587 (La.App. 2d Cir.12/11/02), 833 So.2d 1103; State v. Hudson, 33,357 (La.App. 2d Cir.5/10/00), 760 So.2d 591.

A defendant is required to prove by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” for a verdict of manslaughter to be appropriate. State v. Robinson, 32,794 (La.App. 2d Cir.03/01/00), 754 So.2d 311, writ denied, 00-0989 (La.03/23/01), 787 So.2d 1008.

“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 which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986). A defendant who shows by a preponderance of the evidence that these mitigatory factors are present is entitled to the verdict of manslaughter. State v. Tompkins, 403 So.2d 644 (La.1981); State v. Lombard, supra; State v. Jackson, 34,076 (La.App. 2d Cir.12/6/00), 774 So.2d 1046. The defendant is not obligated to establish the factors affirmatively; instead, the jury may infer them from the overall evidence presented. State v. Jackson, supra.

Self-defense is justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his |Blife or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(1); State v. Cotton, 25,940 (La.App. 2d Cir.3/30/94), 634 So.2d 937; State v. Jones, 600 So.2d 875 (La.App. 1st Cir.1992), rev. denied, 92-2351 (La.5/12/95), 654 So.2d 346.

When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La.1985).

La. R.S. 14:20 provides, in pertinent part:

A homicide is justifiable:
(1) 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.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

When self-defense is raised as an issue by a defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Garner, 39,731 (La.App. 2d Cir.9/08/05), 913 So.2d 874, writ denied, 2005-2567 (La.5/26/06), 930 So.2d 19; State v. Cheatham, 38,413 (La.App. 2d Cir.6/23/04), 877 So.2d 164, writ denied, 2004-2224 (La.6/24/05), 904 So.2d 717. Factors to consideran determining whether a defendant had a reasonable belief that the killing was necessary include the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Spivey, 38,243 (La.App. 2d Cir.5/12/04), 874 So.2d 352; State v. Hardeman, 467 So.2d 1163 (La.App. 2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982); State v. Spivey, supra.

At the beginning of the trial, the state and defendant entered a joint stipulation as to the testimony of Dr. Elizabeth Miller, the coroner who performed the autopsy of the victim. The parties stipulated that the victim died of multiple gunshot wounds and that 14 projectiles or pieces of projectiles were recovered from the victim’s body. The autopsy report was entered into evidence as a part of the stipulation.

The state’s first witness was Sergeant Carolyn Deal. On the morning of the shooting, Sergeant Deal was working at Sunset Acres Elementary school approximately one block from the shooting scene. As she was leaving the school going to her vehicle, Sergeant Deal heard a “succession of gunshots” that appeared to be close to her location. Sergeant Deal testified the gunshots were extremely loud, and happened in rapid succession. Sergeant Deal opined that the shots all originated from the |7same weapon. Based on the “loudness” of the shots, Sergeant Deal did not believe the weapon being fired was a small caliber weapon or pistol.

After hearing the shots, Sergeant Deal radioed police headquarters of the shooting and ran to the location at West Canal and Grassmere streets. As she arrived on the scene approximately two minutes after hearing the shots, Sergeant Deal noticed a lot of people standing around screaming and pointing toward a house on the corner indicating where the victim was. Sergeant Deal testified that she approached the victim and attempted to determine if he had a pulse, which he did not. In an attempt to secure the scene, Sergeant Deal remained near the victim’s body until other assistance arrived. The witness indicated she did not see anyone remove anything from the victim or the immediate area.

Jimmy D. Woodall testified he lived at 2905 Grassmere which is next door to where the shooting occurred. At approximately 8:30 a.m., Mr. Woodall, who had been in bed, heard gunshots and went to his bedroom window. As he looked out of the window, Mr. Woodall was able to see a shooter firing a rifle in a “spraying motion.” Based on his familiarity with weapons, Mr. Woodall believed the weapon to be either an AK-47 or SKS-47. According to Mr. Woodall, there was no one else firing a weapon at the time of the shooting, and he believed another shooter would have been visible from his vantage point in his bedroom window. Mr. Woodall testified he only heard the sounds of one weapon firing because “I heard no deviation whatsoever in the sounds of the pops.”

| sAfter the shooting stopped and he heard a vehicle drive away, Mr. Woodall went outside to his neighbor’s yard to see if he could help. He went to the victim’s body and found out he could not do anything for him.

Mrs. Beverly Woodall testified she was also at home, next door to the shooting, when she heard someone outside of her home “fussing or yelling” then she heard shots being fired. Mrs. Woodall went to her front door and looked out to see a guy with a gun. Mrs. Woodall closed the door and then called 9-1-1. Mrs. Woodall testified she was not very familiar with guns, but she did recall that the shooter was holding a “medium gun” near his waist. Mrs. Woodall indicated she only saw one shooter and heard “quite a few shots” that sounded the same. After the shooting, Mrs. Woodall remained inside.

Corporal T.W. Adgate of the Shreveport Police Department (SPD) testified he was responsible for transporting the defendant after he was apprehended. According to Corporal Adgate, when he arrived at the Diamond Shamrock gas station on Bert Kouns and Baird, the defendant was placed in the back of his unit. While the defendant was in Corporal Adgate’s vehicle, he began a spontaneous statement which was captured on the video recording equipment of the police vehicle. The videotape was admitted into evidence and played for the court. Corporal Adgate testified the video was an accurate representation of the statements the defendant made during transport. Corporal Adgate testified he was unaware of any prior reports the defendant may have made regarding threats against his life. 19Puring his statement, the defendant did not indicate that the person he shot was armed.

In the statement to Corporal Adgate, the defendant related that he was fearful that the victim was planning to kill him and that the night prior to the shooting, the victim had threatened to shoot the defendant as he sat in his truck near Long and Theo streets. The defendant stated that the victim “cleared the block” by shouting for everyone to leave the area because he was going to kill the victim. When this did not happen, the defendant left the area. Early the next morning, the defendant saw the victim walking a dog near the defendant’s mother’s home, and the defendant stated he feared the victim was planning to shoot into his mother’s home or ambush him as he drove in the area. The defendant stated he went to confront the victim, and began shooting after the victim made an attempt to shoot him.

Detective Chris Ray, an investigator with the SPD, testified he was involved in the investigation of the shooting. Det. Ray was on the scene when the defendant was arrested. The defendant was advised of his Miranda rights when placed into custody, and again prior to being interviewed by the detective. The defendant made two statements one of which was recorded the day after the incident. According to Det. Ray, the defendant was initially interviewed without any recording being made. Prior to taking the recorded statement, the defendant indicated he was tired and wanted to sleep, but the officers were able to get the statement prior to the defendant being booked.

|inDuring the unrecorded statement, Fuller reported that the night before the shooting, Welch threatened him, and on the morning of the shooting, he saw Welch walking a dog near his (defendant’s) mother’s home. Fuller indicated that he feared Welch was planning to shoot up his mother’s house, and he didn’t want to be the first homicide victim of 2004. When the officers indicated the statement needed to be taped, the defendant indicated he was tired and needed to rest.

Later, Fuller gave a recorded statement that was introduced into evidence and played for the court. In the audio recording, Fuller admitted arming himself with an AK-47 or “chopper.” He also admitted to killing Welch. In Fuller’s statement, he admits he approached the victim prior to the shooting. He indicated he was fearful of Welch and his wife, but he allowed Welch’s wife to move away from the scene before he began shooting at him. During the interview, the defendant also indicated he had been threatened by Welch. Det. Ray went to the location where the incident the night before the shooting took place, but was unable to find any cooperating witnesses. Additionally, as a part of his investigation, Det. Ray searched police records and was unable to find any reports filed by the defendant regarding threats made by the victim.

Det. Ray had an opportunity to visit the crime scene after the shooting. Det. Ray testified when he arrived on the scene, there were patrol cars on the scene, and the victim’s body had been covered by a fire department sheet. Once the sheet was removed, Det. Ray was able to see |nthe victim’s body, and he noted that the victim was face down and injuries were visible to his back as well as his head and neck.

On cross-examination, Det. Ray testified the defendant maintained he shot the victim in self-defense and that he saw the victim with a gun. He also mentioned that Fuller indicated he went to talk to Welch to determine why he was trying to kill him. Det. Ray also testified he learned just prior to the trial that Harvis White provided the D.A.’s office with a letter indicating that a gun had been taken from the crime scene. Det. Ray had not investigated this claim prior to the trial.

Corporal David Walls of the SPD crime scene investigation unit processed the crime scene for evidence. On the second day of the trial, the state and the defendant entered a stipulation regarding the crime lab report. According to the stipulation, the casings recovered and examined were consistent with being fired from the same weapon.

Sergeant Mark Davis of the SPD testified he was involved in the apprehension of the defendant. Sergeant Davis was one of the first officers to come in contact with Fuller when he was arrested. After taking Fuller into custody, Sergeant Davis recognized him from his previous encounters. Sergeant Davis testified the defendant cooperated with him on another investigation. According to Sergeant Davis, Fuller had his contact information, but that he had not reported any threats being made by Welch.

Sergeant Davis testified that Fuller had been providing information regarding individuals who may have been dealing narcotics; however, he did not recall him providing Welch’s name as one of the possible drug 1 ^dealers. Sergeant Davis later elaborated on the defendant’s cooperation with the narcotics investigation. He stated that Fuller apparently did not provide much useful information, and he was to secure an arrest warrant for Fuller prior to the murder investigation.

The victim’s wife, Lunshundia K Welch, testified on behalf of the state. At the time of the trial, the witness was incarcerated. According to Mrs. Welch, she and the victim were waiting outside her mother’s home just prior to the shooting. As they waited outside, Fuller pulled up in his truck, and began talking. He then got out of the vehicle, ran up the driveway and started shooting an AK-47. She further testified that when Fuller pulled up, the victim told her to run, which she did. As she ran, Mrs. Welch saw Fuller chasing her husband, so she hollered telling him not to shoot. Mrs. Welch heard the defendant say “Now what’s up punk-a* * ni* * *r” and “This is going to be your [,sic ] last time you breathe.” Fuller chased the victim while shooting at him in the driveway. Mrs. Welch indicated the defendant was shooting the gun during the entirety of the chase, and fired approximately 14 or 15 shots.

According to Mrs. Welch, after the victim fell between the two cars parked in the driveway, the defendant stood over the victim and fired more shots at him. While the victim did not have a weapon at the time of the shooting, Mrs. Welch indicated that she had one that day. After her husband was shot, she ran into her mother’s house and asked her to call the police. After doing so, Mrs. Welch went back outside to her husband and picked up his head and found him dead.

|1sMrs. Welch indicated she knew Fuller prior to the shooting as he had been introduced to her by her husband. Mrs. Welch acknowledged that Fuller and the victim argued prior to the incident, but stated, “I seen them argue, and every time when I asked him what was going on it was like he wouldn’t put me in it, he say it’s between them. You know, other than that, you know, Avionest, they was cool.” Later, Mrs. Welch testified that Fuller and the victim had an argument approximately one month prior to the shooting, which ended when she, fearing for her husband’s safety, pulled an AK-47 on the defendant.

During cross-examination, Mrs. Welch denied any knowledge of the victim being angry with the defendant because the defendant had furnished the victim’s name to the narcotics agents. Mrs. Welch also denied that her husband sold narcotics, but she admitted that she did so. Regarding the argument which ended when she pulled the weapon on the defendant, Mrs. Welch testified she did not know why the argument started or whether it was drug related. Mrs. Welch did not see the defendant with a weapon on that day, and denied asking her husband if she should shoot the defendant, saying “No, because I could have shot all of them even if he didn’t say nothing.”

When questioned about the night before the shooting, Mrs. Welch acknowledged she and her husband were in the area of Theo and Long Streets when they saw the defendant sitting in his truck. Mrs. Welch testified when she saw Fuller she told her husband it was time to leave, but | uthere was never an argument between the men on that night. Mrs. Welch stated Fuller remained in his truck and Welch did not approach the truck.

When recalling the day of the shooting, Mrs. Welch testified that she went to her husband’s body before any emergency personnel arrived. After finding him dead, Mrs. Welch went back into her mother’s house. She denied taking any drugs or a gun off of her husband’s body, and she denied later giving a weapon to Harvis White. Mrs. Welch stated that Mr. White stole the weapon from her home and that the gun belonged to her and not her husband. In an effort to retrieve the stolen gun, Mrs. Welch stated she called Mr. White’s girlfriend telling him to the return the items or she would take care of them.

The defense called Mr. Harvis Ray White as its first witness. Mr. White testified he grew up with the defendant and had been best friends with the victim since 1995. Mr. White testified he met the victim through the Rolling 60’s gang that the victim brought to the area. According to Mr. White, the victim was known in the community as a killer.

Mr. White testified he knew of problems between the victim and the defendant which stemmed back several years relating to a female and possibly drugs. As a result of the animosity, the victim had threatened to kill the defendant on at least two occasions that the witness was aware of. In one instance, the victim and his wife pulled guns on the defendant when the witness was present, and the other instance occurred the day before the victim was killed. The victim apparently threatened the defendant with a “semi-rifle” telling him he would kill him.

11fiMr. White stated that Welch drove into the area where Fuller was sitting in his parked truck. He said that Welch threatened Fuller with the gun saying he was going to kill him if he kept playing games. Welch’s wife was also armed as she waited in the vehicle. Afterwards, both Welch and Fuller left the area. Mr. White followed closely behind Welch “so, we did not want him to do nothing stupid, you know what I’m saying.” When Mr. White first found Fuller he told him not do anything in retaliation. After Fuller acknowledged that he was all right, Mr. White found Welch who “caught attitude” because Mr. White was checking on the situation and he felt that Mr. White was siding with Fuller. Mr. White eventually returned to the Theo and Long area. Later that night, Mr. White went to Mrs. Welch’s mother’s house where he spent the night.

The next morning, Mr. White was sitting in the house when he heard 20-25 gunshots. Mr. White stated he heard what sounded like two people shooting at each other from different guns. After the shooting, the victim’s wife gave Mr. White a .357 magnum with three spent cartridges and told Mr. White to go home as she was getting ready to call the police. Mr. White complied with Mrs. Welch’s request. Mr. White testified he did not know what was going on or who was involved, but he did know that Welch was outside and had just finished walking the dog. Mr. White also stated that the victim owned a variety of weapons and was known to carry a weapon most of the time.

Later on the evening of the shooting, Mrs. Welch called Mr. White over to her house at which time she offered him $5000 and a shotgun to kill |1fithe defendant or “whoever come to the door.” Mr. White took both the money and the shotgun, but later decided not to go through with the planned hit. After Mrs. Welch found out Mr. White reneged on the deal, she threatened to kill him. Mr. White stated he sold both guns to a friend of his in the Illinois Project.

Mr. White was later arrested “about a theft charge [after] she claim I stole a watch out of her house.” Prior to being arrested, Mr. White stated the he was chased by “people from California” who threatened that he should return the guns and the money or things would get serious. Fearing for his safety, White turned himself in to police on the pending theft charges. While incarcerated in protective custody, Mr. White wrote a letter to the trial judge indicating that he had taken a weapon from the scene.

Lashunda Dukes, an ex-girlfriend of Mr. White’s, testified Welch and others were at her home one day when he inquired about Fuller. According to Ms. Dukes, Welch stated he was going to get Fuller when he saw him because he heard that Fuller had been doing a lot of snitching. After Welch was killed, Mrs. Welch contacted Ms. Dukes and told her Mr. White stole a watch from her. Ms. Dukes testified that Mrs. Welch threatened to kill her and her children if Mr. White did not return her watch. Ms. Dukes reported this information to the guards at her apartment. Later, Ms. Dukes saw two Suburbans parked outside of her home. The guards told Ms. Dukes they spoke with the individuals in the vehicles and informed them that Mr. White was not at the residence and that Ms. Dukes, who was uninvolved in the matter, had small children in her home.

Erin Robinson testified to being at Lashunda’s house, and hearing Welch say he was going “to deal with” Fuller once he saw him, because the defendant had been doing a lot of “snitching.” According to Ms. Robinson, the street term “deal with him” means to kill him. There was no time frame given as to when this conversation occurred.

Mr. Frederick Greer testified he was friends with both the victim and the defendant. According to Mr. Greer, the victim was known as “a high-powered individual from the streets” and known for pushing people around. Mr. Greer stated that Welch and his wife sold drugs and that Welch had a weapon each time Mr. Greer saw him.

On one occasion, three to four weeks prior to the shooting, Mr. Greer and a friend, San Juan, had Fuller take them to Welch’s home to purchase marijuana. Fuller went to Welch’s door, and upon seeing Fuller, Welch began cursing the defendant and asked Mr. Greer why Fuller was at the home. Mr. Greer testified that the victim pulled an AK-47 from behind his leg and pointed it at Fuller. Welch then accused Fuller of talking behind his back and possibly having some involvement in an attempted burglary of the victim’s home. Mr. Greer persuaded Welch to put the weapon away and talk about the situation.

After Welch put his weapon away, his wife came out of the house pointing a sawed-off shotgun at the group. Mrs. Welch inquired of her husband whom he was having a problem with and was told it was Fuller. Mrs. Welch then pointed the weapon at Fuller. Mr. Greer stated he again encouraged Welch to put away the weapons and settle the matter at a later | isdate. Welch then stated he would allow the group to leave. Sometime later, Mr. Greer saw Welch at a store and they discussed the incident. Mr. Greer stated that Welch apologized for his behavior and indicated that his problem was with Fuller and would be dealt with later

Jarell Theus, a sixteen-year old student, testified he was not in school on the day of the shooting, but was going to his cousin’s house in the neighborhood where the shooting occurred. While walking to his cousin’s house, the witness saw a man dressed in black walking a dog. Later, as he was walking to the store, the witness saw the man standing in a yard when a white SUV pulled up near the man. Jarell watched as the two men talked and the man dressed in black backed up into the yard between two cars. After seeing the man raise his jacket up and hearing two or three shots from a pistol, the witness and his cousin ran off. As he was running, the witness heard what sounded like automatic gunfire. While Jarell did not recognize the person who exited the vehicle, he later learned it was Fuller and Jarell knew the defendant as he was an acquaintance of Jarell’s brother. After the testimony of Jarell Theus, the defense concluded its case.

We find that the evidence presented by the state was sufficient to support the defendant’s conviction for manslaughter. By the defendant’s admission and the testimony of the state’s witnesses, the state established that the defendant did in fact shoot the victim. Establishing this fact is necessary to determine whether the shooting was done in sudden passion or heat of blood such to render it a manslaughter as opposed to the charged offense of second degree murder.

| Apparently, the trier of fact chose to believe Fuller’s testimony regarding the provocation by the victim which led to the shooting. Testimony established that Welch had threatened and pulled guns on Fuller in the past, and most recently, the day prior to the shooting. There was also testimony that the feud between the men was on going and fueled by rumors of snitching by the defendant. Moreover, the testimony was sufficient to establish that Fuller initiated the encounter between himself and Welch and that Fuller was possibly the aggressor in the situation. Considering all of the testimony and making certain credibility determinations, there was sufficient evidence to establish a guilty verdict of the responsive offense of manslaughter. Based on the record, it can be concluded that the trier of fact found that the shooting was committed in sudden passion or heat of blood. This determination is within the province of the trier of fact and should not be disturbed by this court.

The defendant’s argument that the state failed to prove that the shooting was not committed in self defense is not supported by the record. The record is replete with sufficient evidence to establish that the defendant traveled to the victim’s mother-in-law’s home armed with an AK-47. The forensic evidence showed that only one weapon was fired, and that several of the shots were fired into the back of the victim’s body. Additionally, there was testimony presented by the victim’s wife and corroborated by the evidence obtained from the scene that the defendant fired at least one shot into the victim as he lay on the ground.

1 ?,nThe evidence established beyond a reasonable doubt that the defendant did not act in self defense. There was contradictory testimony of the several witnesses regarding whether or not the victim had in fact fired a gun during the incident. The trial judge was required to make an ultimate determination of this issue, and if he believed that the victim did not have a weapon, there was sufficient evidence to establish that the defendant had not acted in self defense. Even when presented with the argument that the witnesses were biased because of their relationships with either the defendant or the victim and his family, the trial judge chose to believe the testimony of the witnesses that there was not another weapon on the scene at the time, or that the weapon was not produced by the victim.

Considering the factors set forth in State v. Spivey, supra and State v. Harde-man, supra, the state established that the situation immediately before the defendant drove upon the scene was calm as the victim and his wife waited for a ride to their home. Additionally, the defendant, adopting a preemptive strike mentality, sought out the victim and engaged him in the situation. The defendant went to the scene armed with the AK-47 to “talk” with the victim. If the testimony regarding the other weapon is disregarded by the trial judge, then there were certainly other options available to the defendant other than using deadly force. The defendant also had an opportunity to retreat from the situation in his waiting vehicle. However, there was testimony presented that the victim was a bad actor known to carry a weapon, and had in the past threatened the defendant with death. The state presented sufficient evidence to prove that the defendant had not |21 acted in self-defense. The circumstances in no way support any argument that the defendant was in imminent fear of losing his life or receiving great bodily harm such that deadly force was necessary. Although there is no merit in the defendant’s contention that he acted in self defense, there was ample evidence to support a verdict of manslaughter.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.

BROWN, C.J., concurs with written reasons.

BROWN, Chief Judge,

concurring.

_jjl certainly agree with affirming this conviction and sentence. I disagree with the conflicting language in that portion of the majority opinion where it finds that the offense was committed in sudden passion and heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection, and then, in addressing self-defense, finds that there was no provocation and that defendant simply carried out a “preemptive strike.” A preemptive strike is a planned, intentional action and the antithesis of “sudden passion and heat of blood caused by immediate provocation.”

The legislature has provided a list of lesser and responsive verdicts. Our courts have recognized that a defendant has a statutory right for a jury, or in this ease, judge, to convict defendant of the lesser offense even though the evidence clearly and overwhelmingly supports a conviction as charged. State v. Porter, 93-1106 (La.07/05/94), 639 So.2d 1137. This is called “nullification.” I note that the trial judge did not refer to sudden passion or heat of blood in rendering his verdict. He did find that the victim was a man of ill repute. He obviously considered that both the victim and defendant were members of the Rolling 60’s gang and that one was destined to kill the other.

All this court needed to say is that the evidence clearly supported the charge of second degree murder and that manslaughter is a legislated responsive verdict to that charge.


source: Caselaw Access Project

author: GASKINS, J.,

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Monjeral Dewayne FOSTER, Appellant.
    No. 42,212-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Mary Constance Haynes, Louisiana Appellate Project, Robert S. Noel, II, Monroe, for Appellant.
    Robert W. Levy, District Attorney, A. Shawn Alford, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS, STEWART, GASKINS, CARAWAY, PEATROSS, DREW, MOORE and LOLLEY, JJ.
   GASKINS, J.,

for the Court En Banc.

LThe defendant, Monjeral Dewayne Foster, appeals his sentence to 30 years at hard labor without benefit of parole, probation, or suspension of sentence, following his plea of guilty to armed robbery. The defendant claims this court should review his sentence even though it fell within a sentencing cap which was part of his plea bargain agreement. He claims that the sentence is excessive. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

On January 22, 2003, the defendant and two other men went to the home of the victim, Freddizzio Ferguson. Mr. Ferguson was asleep at home with his girlfriend and his children. The defendant and his accomplices held the woman and children at gunpoint while they beat and robbed Mr. Ferguson of some money. Mr. Ferguson indicated that he could obtain more money and drugs at another location. The defendant and one accomplice took Mr. Ferguson from the residence. The other accomplice stayed behind and held the woman and children at gunpoint. A struggle ensued in the vehicle and Mr. Ferguson was killed. His body was left in the parking lot of a restaurant. The defendant and his accomplice returned to the victim’s residence, picked up the third man, and left the scene.

Law enforcement officials subsequently identified the defendant and his accomplices as being involved in the robbery, kidnapping, and murder of Mr. Ferguson. On March 24, 2003, the defendant was charged by grand jury indictment with the first degree murder of Mr. Ferguson.

|2On April 6, 2005, the defendant appeared in court. The prosecution stated that a plea bargain agreement had been offered whereby the defendant would be allowed to plead guilty to armed robbery with a 30-year sentencing cap. In exchange for the plea, the defendant was expected to cooperate with the prosecution and testify against one of his accomplices. The defendant agreed and entered a plea of guilty to armed robbery in accordance with the terms of the plea agreement. He later testified against his accomplice.

On July 15, 2005, the defendant filed a pro se motion to withdraw his guilty plea, claiming that he wanted to dismiss his court-appointed attorneys, and had he been allowed to do so, he would not have entered a guilty plea to armed robbery. The motion was denied the same day.

The defendant appeared before the court for sentencing on September 9, 2006. The trial court reviewed a presentence investigation report and heard statements made in court by the victim’s mother and by the defendant. The court sentenced the defendant to serve the maximum sentence available under the plea bargain agreement, 30 years at hard labor, without benefit of parole, probation, or suspension of sentence.

In October 2006, the defendant filed a motion to appeal his sentence and a motion to reconsider the sentence. The defendant argues that it is within the interest of justice for this court to review the sentence even though it falls within the sentencing cap. He also argues that the 30-year sentence is excessive because the trial court failed to give proper ^consideration to the fact that the defendant cooperated with the state by giving valuable testimony in a murder trial.

REVIEW OF SENTENCE

The defendant argues that he should be allowed to appeal his sentence even though he entered a guilty plea with a sentencing cap and his sentence was imposed in conformity with the cap. He claims that his case is an exception to the rule that sentences imposed pursuant to caps set forth in plea agreements are not appealable because, during the plea colloquy, the trial court informed him that, by pleading guilty, he was waiving his right of appeal “except as to the amount of the sentence.” This argument has merit.

The constitutional right to review of sentences is embodied in La. Constitution art. 1, § 19 which states:

No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.

La. C. Cr. P. art. 881.2(A)(2) provides:

The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

This provision applies both to agreed-upon sentences and to agreed ceilings, ranges, and caps. State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Burford, 39,801 (La.App. 2d Cir.6/29/05), 907 So.2d 873; State v. Rice, 26,478 (La.App. 2d Cir.12/7/94), 648 So.2d 426, writ denied, 95-0431 (La.6/16/95), 655 So.2d 340.

In State v. Washington, 557 So.2d 368 (La.App. 4th Cir.1990), writ denied, 561 So.2d 114 (La.1990), a defendant entered a guilty plea to manslaughter and was sentenced to the maximum period of incarceration. At the guilty plea colloquy, the trial court informed the defendant that it would impose the maximum sentence. Defense counsel orally objected to the sentence as excessive and the trial court signed the defendant’s motion for appeal of the sentence. The fourth circuit noted that the defendant did not have a right to appeal a sentence under a guilty plea; however, both defense counsel and the trial court apparently thought that the sentence could be appealed. The fourth circuit held that under those circumstances, the sentence would be reviewed.

In State v. Rice, supra, a defendant pled guilty with a sentencing cap. After sentencing within the limits of the cap, the trial court stated that there was an explicit understanding that the defendant would be allowed to appeal any sentence imposed. Contrary to the holding in State v. Washington, supra, this court recognized that such an agreement was contrary to the provisions of La. C. Cr. P. art. 881.2, vacated the plea and sentence, and remanded to the trial court for further proceedings. Two members of this court dissented from that opinion, opining that the state constitution grants a right to a criminal defendant to have his sentence reviewed for excessiveness and that right cannot be supplanted by a legislative act such as La. C. Cr. P. art. 881.2. Further, the dissent reasoned that La. C. Cr. P. art. 881.2 applies to a specific sentence, but not one with a sentencing cap. See and compare concurrences in State v. Bailey, 40,098 (La.App. 2d Cir.10/26/05) 914 So.2d 116, writ denied, 2006-0462 (La.9/22/06), 937 So.2d 377, and State v. Oliver, 32,226 (La.App. 2d Cir.6/16/99), 741 So.2d 181.

The reasoning by the majority in State v. Rice, supra, was rejected by the third circuit in State v. Planco, 96-812 (La.App. 3d Cir.3/26/97), 692 So.2d 666, and the first circuit in State v. Shipp, 1998-2670 (La.App. 1st Cir.9/24/99), 754 So.2d 1068. Those circuits concluded that where the right to appeal a sentence is specifically reserved as part of the plea agreement, La. C. Cr. P. art. 881.2 does not serve as a bar to appellate review of the sentence.

In this case, during the guilty plea colloquy, the trial court fully apprised the defendant that by pleading guilty, he would be waiving his right to trial by jury, his right of confrontation, and his right against compulsory self-incrimination. The court then explicitly made sure that the defendant understood that a sentencing cap would be applicable in this case:

Q. Are you willing to accept the plea offer as offered to you? In other words, do you think that being allowed to plead guilty to armed robbery with a cap of 30 years at hard labor, under the obligation that you cooperate with law enforcement in the prosecution of your co-defendants is a good, reasonable way to terminate this case in your favor?
A. Yes.
Q. And in fact do you think that this is a plea bargain that you should accept?
A. Yes.
I f;Q. All right. And I’ll be able to sentence you to anything I want to sentence you to?
A. No.
Q. No? Well, what is the deal then?
A. Ten to thirty years with a cap.
Q. All right. And are you obligated to do anything else?
A. Will I be doing anything else?
Q. Are you promising to do anything. ...
A. Yes.
Q. What is that?
A. Testify against my co-defendant.
Q. And testify truthfully?
A. Truthfully.
Q. Okay. And are you willing to do that?
A. Yes.
Q. And you’re willing to accept that as a condition of this plea agreement?
A. Yes.
Q. All right. You understand under the plea agreement that you may very well get a 30 year hard labor sentence?
A. Yes.
Q. And you’re willing to accept this plea even though you know that’s a possibility?
A. Yes.

With respect to the right of appeal, the following colloquy is particularly important:

Q. You have the right of appeal or judicial review of a verdict of guilty. Do you understand that you give this up by pleading guilty except as to the amount of the sentence?
A. Yes.
Q. Do you give up this right also?
A. Yes.

Considering the statement of the trial court concerning the defendant’s waiver of the right to appeal “except as to the amount of the sentence,” the defendant did not contemplate that by pleading guilty he waived his right to appeal his sentence for excessiveness. We overrule State v. Rice, supra, finding that the defendant has a constitutional right of review under La. Const. Art. 1, § 19, which has not been “intelligently waived.” We will therefore, review the sentence for excessiveness.

EXCESSIVE SENTENCE

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. The |simportant elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App. 2d Cir.1/24/07), 948 So.2d 379.

At the beginning of the sentencing hearing, the victim’s mother testified concerning the harm done to the family as a result of the defendant’s crime. The defendant made a statement seeking mercy from the court and making an apology to the victim’s family. The defendant’s counsel noted for the record that the defendant participated in the trial of the person who shot the victim and that his testimony helped lead to a ^conviction for second degree murder. The district attorney confirmed the defendant’s cooperation.

After reviewing the facts of the case, the court noted that the defendant had an extensive criminal history and found that the present offense was the defendant’s fourth felony. His adult history included an arrest in March 1996 for possession of a weapon during the sale of a controlled dangerous substance (CDS), distribution of counterfeit CDS, and possession of a Schedule I CDS. In May 1997, he was arrested for possession of stolen things, and he pled guilty in November 1997 to unauthorized use of a movable. He was arrested in September 1998 for simple burglary, and upon conviction was ordered to serve eight years at hard labor. He was released in September 2002 on good time, but that was revoked after he was arrested on the instant offense.

His criminal history also included an arrest in January 1996 for simple battery. He also was arrested in June 1998 for resisting, interfering, and/or obstructing an officer and for simple battery.

The trial court next discussed the defendant’s personal history, noting that he was not married and had no children. The trial court then reviewed the plea bargain agreement, stating that the defendant had already received some leniency. The court considered the sentencing factors listed in La. C. Cr. P. art. 894.1, and determined that there was an undue risk that the defendant would commit another crime, that he was in need of correctional treatment in a custodial environment, and that a lesser sentence would deprecate the seriousness of the crime. According to the court, the | indefendant’s conduct during the commission of the offense manifested deliberate cruelty to the victims, the decedent’s children “had no way to resist and were particularly vulnerable,” and the defendant knowingly created a risk of death or great bodily harm to more than one person. The court noted that the defendant was a co-conspirator who could have been prosecuted for either first or second degree murder even though he didn’t fire the fatal shots. The court stated that on the night in question the defendant “facilitated multiple different offenses, all of which would be felonies, not to mention innumerable misdemeanors.” The court also pointed out that this offense caused significant personal injury and economic loss to the victim and his family.

Finally, after again noting that the defendant received some leniency in the plea bargain agreement and that the defendant upheld his part of the plea bargain agreement, the court sentenced Foster to serve 30 years at hard labor without benefits.

The defendant’s sentence is not excessive. The maximum sentence for armed robbery under La. R.S. 14:64 is 99 years at hard labor without benefit of parole, probation, or suspension of sentence. In this case, as part of his plea agreement, the defendant’s sentence was limited to a cap of 30 years at hard labor without benefit of parole, probation, or suspension of sentence. Even though the defendant received the maximum sentence possible under his plea agreement, he obtained a significant reduction in potential exposure from the originally charged crime of first degree murder. Far more than an armed robbery, this is a case in which the defendant was a 11T principal to both kidnapping and murder. Further, as part of the plea agreement, the state did not charge the defendant as a fourth felony offender.

We also note that the transcript clearly shows that the defendant knew that he could be sentenced to a maximum 30-year sentence under the plea agreement. Under the facts of this case, the sentence was tailored to the offender and the offense and does not shock the sense of justice.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Monjeral Dewayne Foster.

AFFIRMED.

      . The victim’s name is spelled “Freddizzio” in the indictment and "Verdessio” at various points in the transcript. In this matter, we choose to use the spelling in the indictment.

      . This opinion was approved by the court en banc in accord with an internal court rule dealing with overruling prior opinions of this court.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana, Appellee v. Carlton BROOKS, Appellant.
    No. 42,226-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Angela M. Smith, for Appellant.
    Paul J. Carmouche, District Attorney, Dale G. Cox, Scott Chafin, Jr., Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   WILLIAMS, Judge.

pThe defendant, Carlton Brooks, was charged by grand jury indictment with two counts of second degree murder, violations of LSA-R.S. 14:30.1. After a jury trial, the defendant was found guilty as charged. The defendant’s motion for post-verdict judgment of acquittal or modification of verdict was denied. The district court imposed the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for each count, with the sentences to run concurrently. The defendant appeals his convictions. For the following reasons, we affirm.

FACTS

On October 10, 2002, during a pep rally at Woodlawn High School (“Woodlawn”), there was an exchange of threats between members of two gangs, one from the Hollywood Heights area of Shreveport and the other from the Cedar Grove area. Those involved were removed from the rally by school officials.

The following Monday, October 14, 2002, a fight broke out between members of the two gangs at Woodlawn as the school day ended. The defendant, a Woodlawn student associated with the Cedar Grove gang, was seen among a group that was chased away from the school campus by the assistant principal. Then multiple gunshots were fired from a vehicle driving past the school and a student, Phillip Gui-den, was shot in the leg. Marquell Chambers was later identified as the shooter and arrested.

Later that afternoon, the defendant and some other individuals from the Cedar Grove area, including Courtney Beaner, Phillip Brown, Aaron | aWallpool and Jem-arcus Monroe, were gathered outside Wall-pool’s home located at Wallace and West 76th Street. When a Lincoln automobile containing some of the Hollywood group, including Tony Taylor and Jermichael Lewis, drove past there was an exchange of gunfire between the vehicle occupants and the group standing in front of the West 76th Street house. No one was injured in the shooting.

At approximately 5:30 p.m. that evening, LaDonna Austin returned from work to the Lexington Street home she shared with her sister, LaDorothy Austin, who was there with the defendant, her live-in boyfriend. Also present were Phillip Brown, Beaner, Wallpool, Shamichael Tillman, Arethea Brown (Phillip’s brother) and Monroe. Defendant and the others were heard discussing the fight at Wood-lawn and making a plan to retaliate against Randy Wilson, who they said was a member of the Hollywood group which had fired shots at them earlier at West 76th Street. Some of the group dressed in black clothing and drove away in a white Honda vehicle.

At approximately 9:00 p.m., Ronnie Chambers drove to a house located at the corner of Oakdale and Ledbetter Streets in Shreveport to pick up his 15-year-old sister, Chiquita Chambers. Their brother Marquell had been arrested earlier for the shooting at Woodlawn. Members of the Hollywood group typically gathered at the house, which was approximately one block away from Hattie Perry Park. At the time, several individuals were standing in the yard, including Randy Wilson and Jermi-chael Lewis.

A short time later, a white Honda sedan with a sunroof and tinted windows drove by the house. Chiquita was standing in the street behind |sRonnie’s car when occupants of the Honda began firing numerous shots from the sunroof and rear windows of the car toward those gathered in the yard. Chiquita and Lewis both suffered fatal gunshot wounds and Randy Wilson was shot in the left arm.

Police later recovered the white Honda sedan, which had been stolen the night before the shooting and burned afterward. After interviewing a number of witnesses who named defendant as the driver of the vehicle used in the drive-by shooting, police sought to contact him at the Lexington Street house. Defendant was apprehended while attempting to escape out of a back window of the residence and taken into custody. After a search of the home, police seized ammunition, a Lorcin .380 caliber semiautomatic pistol and a Bryco .380 semiautomatic pistol that were found in the bedroom shared by LaDorothy and the defendant.

The crime scene investigation yielded numerous .380 and .40 caliber shell casings. Richard Beighley, a firearms expert with the Northwest Louisiana Criminalis-tics Laboratory, tested the bullets recovered from the bodies of the victims and bullets fired from the two handguns seized from the Lexington Street home. Beigh-ley concluded that the bullet recovered from Chiquita’s body was fired from the Bryco .380 and determined that five of the .380 caliber casings recovered from the crime scene were fired from the .380 Lor-cin pistol. Beighley further concluded that the bullet recovered from Lewis’ body was fired by a .40 caliber semiautomatic pistol, as were six .40 caliber shell casings found at the scene.

Subsequently, the defendant was charged with two counts of second | ¿degree murder. A jury found defendant guilty as charged. The district court imposed concurrent life sentences at hard labor without benefit of parole, probation or suspension of sentence. Defendant appeals.

DISCUSSION

The defendant contends the evidence was insufficient to support the convictions of second degree murder. Defendant argues that the jury verdict should be reversed because the state failed to prove that he was the driver at the time of the shooting, that he planned the attack or that he was aware the participants intended to carry out their retaliation with weapons.

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Where 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. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2d Cir.5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, 98-0282 (La.6/26/98), 719 So.2d 1048. An accomplice is a competent witness to testify against his co-perpetrator even if the prosecution offers him inducements to testify; those inducements only affect the witness’s credibility. State v. Jetton, 32,893 (La.App. 2d Cir.4/5/00), 756 So.2d 1206, writ denied, 2000-1568 (La.3/16/01), 787 So.2d 299. The credibility evaluation of an accomplice’s testimony is within the province of the trier of fact. Id.

Second degree murder is the killing of a human being (1) when the offender has a specific intent to kill or to inflict great bodily harm; or (2) when the offender is engaged in the “perpetration or attempted perpetration of ... [a] drive-by shooting ..., even though he has no intent to kill or to inflict great bodily harm.” LSA-R.S. 14:30.1. A “drive-by shooting” means the discharge of a firearm from a motor vehicle on a public street or highway with the intent either to kill, cause harm to, or frighten another person. LSA-R.S. 14:37.1; State v. Gipson, 28,113 (La.App. 2d Cir.6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402.

LSA-R.S. 14:24 regarding principals provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

Under the doctrine of transferred intent, when a person shoots at an intended victim with the specific intent to kill or inflict great bodily harm and accidentally kills or inflicts great bodily harm upon another person, if the killing or infliction of great bodily harm would have been unlawful 17against the intended victim, then it would be unlawful against the person actually shot even though that person was not the intended victim. State v. Gilliam, supra. A person may be convicted of an offense even if he has not personally fired the fatal shot. The law of principals states that all persons involved in the commission of a crime are equally culpable. A principal may be connected to those crimes for which he has the requisite mental state. State v. Gilliam, supra.

In the present case, the state presented the testimony of Jemareus Monroe, who was an occupant of the car during the drive-by shooting. Monroe testified that on October 14, 2002, he went to the house on Lexington Avenue, where he heard defendant talking with Phillip Brown and Courtney Beaner about retaliating against those who had shot at them earlier on West 76lh Street. Monroe stated that defendant had driven a white Honda to the house and that the group left in that car. Monroe testified that defendant was driving and Brown sat in the front passenger seat. Monroe stated that he sat in the back seat along with Marlon Washington, Tillman, who was behind the driver, and Beaner, who sat in the rear passenger side. Monroe testified that Brown, Tillman and Beaner were all armed with handguns and that he observed those three shoot their guns as the defendant drove past the group of people standing on the corner of Oakdale and Ledbetter. Monroe specifically stated that Brown fired his gun from the sunroof and that Tillman and Beaner fired shots from the rear passenger windows. According to Monroe, the defendant drove the group back to the Lexington Street house and then defendant and Tillman left in the Honda.

| sLaDorothy Austin testified that on October 14, 2002, she resided with her sister at the house on Lexington Avenue and that defendant was her boyfriend at the time. She stated that defendant was at the house that night with Brown, Tillman and Beaner. LaDorothy testified that defendant and the others were mad about the shooting at West 76th Street and wanted revenge. LaDorothy stated that defendant and the others left in a white car, but returned because their first drive-by attempt had been deterred by the presence of police at Hattie Perry Park. She testified that defendant was driving the Honda when the group left the second time, but that Tillman was driving the Honda when they returned. LaDorothy stated that after watching the news on television that night, the men said that the person they meant to kill was Wilson, not the girl. LaDorothy acknowledged that she had lied to police in her previous statement when she said defendant did not go with the others. However, she testified she was telling the truth in court.

LaDonna Austin testified that on the night of the shooting she heard defendant talk with Brown and Beaner about retaliating against those who had shot at them earlier, that they changed into black clothing and left the Lexington Street house in a white vehicle. LaDonna stated that when the group returned they told her they had done a drive-by shooting.

Tony Taylor testified that on October 14, 2002, he was present at the house located on the corner of Oakdale and Ledbetter. Taylor stated that he was standing in the yard by the gate when a white car drove past and the occupants started shooting. Taylor identified the defendant as the driver of the white vehicle, which passed directly in front of the gate where he was | astanding. Taylor testified that he had known defendant for approximately seven years and that he observed defendant’s face in the car window.

Contrary to defendant’s contentions, the witness testimony demonstrated that defendant participated in the discussion and planning of the retaliatory drive-by shooting. In addition, several witnesses identified defendant as the driver of the vehicle from which other occupants fired handguns into a crowd with the intent to kill or harm another person. Thus, the evidence adduced, viewed in the light most favorable to the prosecution, was sufficient for a reasonable trier of fact to conclude that the defendant was guilty of second degree murder as a principal in a drive-by shooting that resulted in the death of the two victims.

Moreover, the jury could reasonably have found that defendant possessed the requisite knowledge and criminal intent to establish his culpability as a principal who aided and abetted the commission of the murders. Consequently, we conclude that the evidence presented was sufficient to support the defendant’s convictions of second degree murder. The assignment of error lacks merit.

We have reviewed the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


author: STEWART, J. DREW, J.,

text:
    STATE of Louisiana, Appellee, v. Mark Stephen COZZETTO, Appellant.
    No. 42,259-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.
    Rehearing Denied Sept. 13, 2007.
    Opinion Dissenting from Denial of Rehearing Sept. 13, 2007.

      Louisiana Appellate Project by G. Paul Marx, for Appellant.

      Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Assistant District Attorney, for Appellee.
    Before STEWART, PEATROSS and MOORE, JJ.
   STEWART, J.

|,The defendant, Mark Stephen Cozzet-to, was sentenced to five years at hard labor after he pled guilty to one count of first degree vehicular negligent injuring. His appeal asserts that the maximum sentence is excessive. For the reasons explained in this opinion, we reverse the maximum sentence of imprisonment and remand with instructions for re-sentencing.

FACTS

A hit-and-run vehicular accident involving the defendant occurred on January 5, 2006, at the corner of 67th Street and Fairfield Avenue in Shreveport, Louisiana. Although the details of how the accident occurred were not specified, the record establishes that the defendant’s vehicle collided with another vehicle driven by 52-year old Emma Taylor, causing her significant injuries, including a broken leg.

Officer John Stratton of the Shreveport Police Department testified at the preliminary hearing that witnesses observed the at-fault driver flee the scene of the accident on foot after pushing away a concerned witness who tried to help him. Officer Stratton obtained a description of the driver, searched the area, and found the defendant less than a block away from where the accident occurred. The witnesses identified the defendant as the driver who fled the scene. Officer Stratton detected alcohol on his breath and conducted the horizontal gaze nystagmus test. Though the defendant refused the Intoxi-lyzer, he later submitted to a blood test when taken to the hospital. Officer Strat-ton did not recall the exact result of the blood test, but he testified that the result showed a blood alcohol level above .08 percent. _[¿The transcripts of the plea and sentencing refer to his blood alcohol level both as “.23 over the legal limit” and .30. Regardless, it was above the legal limit.

The defendant was charged with one count of first degree vehicular negligent injuring and one count of hit-and-run driving. He was also issued traffic citations for lack of insurance and failure to yield the right of way. On July 18, 2006, the defendant pled guilty as charged to the first degree vehicular negligent injuring and hit-and-run charges. The state dropped the traffic citations.

On August 9, 2006, the trial court sentenced the defendant to the maximum prison term of five years at hard labor for first degree vehicular negligent injuring and a concurrent six months in the parish jail on the misdemeanor hit-and-run violation. He was given credit for time served and recommended for substance abuse treatment. The defendant’s motion to reconsider the sentence was denied, and his appeal alleging excessive sentence is now before us.

DISCUSSION

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for the sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. There is no requirement that specific matters be given any ^particular weight at sentencing. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writ denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452; State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). In reviewing a sentence for excessiveness, the appellate court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992).

The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Shaw, 37,168 (La.App.2d Cir.6/25/03), 850 So.2d 868; State v. Shipp, 30,562 (La.App.2d Cir.4/8/98), 712 So.2d 230, writ denied, 98-1199 (La.9/25/98), 724 So.2d 775. A sentence within statutory limits will not be set aside as excessive absent manifest abuse of discretion. State v. Square, 433 So.2d 104 (La.1983); State v. Wilson, 38,219 (La.App.2d Cir.3/5/04), 867 So.2d 988. Where a defendant has pled guilty to an offense which does not adequately |4describe his conduct or has received a significant reduction in sentencing exposure through a plea bargain, the trial court has great discretion to impose even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430.

However, maximum sentences are generally reserved for the “most egregious and blameworthy offenders in a class.” State v. Telsee, 425 So.2d 1251, 1253 (La.1983); State v. Jones, 398 So.2d 1049 (La.1981). In addition to the factors enumerated in La. C. Cr. P. art. 894.1, a comparison of the sentence imposed on the defendant with sentences imposed for similar crimes may be helpful in assessing a sentence for excessiveness. State v. Tel-see, supra. While such a comparison may help us ensure that the maximum sentences are reserved for the worst offenders, variances in sentences do not alone establish excessiveness. We must be mindful that the trial court has broad discretion in sentencing, because it is in the best position to assess the aggravating and mitigating circumstances in a particular case. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

The defendant was convicted of first degree vehicular negligent injuring, a violation of La. R.S. 14:39.2. The penalty provision of the statute is as follows:

D. Whoever commits the crime of first degree vehicular negligent injuring shall be fined not more than two thousand dollars or imprisoned with or without hard labor for not more than five years, or both.

| ¡/The trial court imposed the maximum term of imprisonment. In doing so, the trial court referred to the defendant’s pri- or criminal history, which included only a DUI 2nd ticket pled down to a careless and reckless operation charge; the defendant’s level of intoxication; the seriousness of injury to the victim; and “all other relevant factors.” The trial court also noted that a lesser sentence would deprecate the seriousness of the offense.

In arguing that his sentence is excessive, the defendant asserts that he is not the worst of offenders for whom the maximum sentence should be reserved. He notes that he has had only one prior reckless operation citation and that the record is unclear as to his exact level of intoxication. He also argues that the record does not establish causation, either as to whether his intoxication caused the accident or whether the victim’s own actions may have contributed to the cause.

We find no merit in the argument regarding lack of causation. A validly entered guilty plea waives the defendant’s right to question the merits of the state’s case and the factual basis underlying the conviction, and it dispenses with appellate review of the state’s case against the defendant. State v. Wynne, 40,921 (La.App.2d Cir.4/12/06), 926 So.2d 789; State v. Hardy, 39,233 (La.App.2d Cir.01/26/05), 892 So.2d 710. Therefore, the defendant’s guilty plea admitted the causal connection between his conduct and the injury suffered by the victim.

However, we are troubled by the imposition of the maximum sentence. The defendant was noted to have only one prior — a DUI 2nd that was pled down to a reckless operation ticket, after which the conviction was |fiset aside and the prosecution dismissed under La. C. Cr. P. art. 894. This record does not show the defendant to be the worst of offenders. Moreover, he received little, if any, reduction in sentencing exposure from his plea.

In support of his argument, the defendant cites State v. Pelt, 448 So.2d 1294 (La.1984), wherein the defendant was sentenced to concurrent terms of five years on two counts of negligent homicide. This maximum sentence was affirmed. The defendant was involved in a prior accident that involved the death of a child, and he had a history of traffic citations, including some for driving while intoxicated. The court cited five priors.

Other cases show that the maximum prison sentence has been affirmed under similar circumstances. The defendant in State v. Crenshaw, 39,586 (La.App.2d Cir.4/6/05), 899 So.2d 751, writ denied, 2005-1531 (La.1/27/06), 922 So.2d 544, received maximum sentences for vehicular homicide and first degree vehicular negligent injury. He had three prior convictions for driving while intoxicated, and there was evidence of his excessive speed. The accident involved multiple victims and caused permanent injuries and economic loss. In State v. Price, 31,368 (La.App.2d Cir.10/28/98), 721 So.2d 511, the defendant received concurrent maximum prison terms for vehicular homicide, two counts of first degree vehicular negligent injury, and one count of vehicular negligent injury. He appealed his 15-year sentence for vehicular homicide, but it was affirmed. The defendant had been on probation for a prior DUI offense at the time of the accident, and there was dramatic victim impact evidence.

|7See also State v. Feaster, 36,868 (La.App.2d Cir.3/5/03), 840 So.2d 675, affirming consecutive five-year sentences for two counts of first degree vehicular negligent injury for a defendant with a history of alcohol-related offenses and no valid license at the time of the offense; State v. Raffray, 2001-0088 (La.App. 3d Cir.6/6/01), 787 So.2d 606, affirming the maximum term of ten years for a hit-and-run driving conviction where the defendant had an extensive history of prior violations for driving while intoxicated, including a prior hit- and-run conviction, and where there was substantial victim impact testimony; and State v. Blanchard, 2003-0612 (La.App. 5th Cir.11/12/03), 861 So.2d 657, affirming the maximum five-year sentence due to defendant’s six prior convictions for driving while intoxicated, extensive criminal history, prior unsuccessful treatment attempts, and permanent, disabling injury to the victim.

Review of the cases cited above shows that the maximum sentence has been imposed in cases where the defendant had a significant history of similar prior offenses and where there was evidence of life-altering, serious or disabling injury to the victims. In this instance, the defendant had a minimal criminal history, with only one prior ticket noted by the trial court. Although the victim was said to have a serious injury to her leg, there was no victim impact evidence to show that she suffered a permanent, disabling injury or any significant economic loss due to the accident. The record was not clear as to what the victim’s exact injuries even were. By pleading guilty, the defendant admitted to his blood alcohol level being above the legal limit. The “other relevant factors” referred to by the trial court as a | Sbasis for the harsh sentence imposed were not commented upon and are not apparent from the record.

The penalty provision of La. R.S. 14:39.2 provides a range of up to five years and an optional fine of not more than two thousand dollars. The range allows the penalty to be tailored to individual defendants taking into account the circumstances of each case. It is presumed that the worst offenders will receive the harshest penalties and that other penalties within the range will be imposed on the less egregious offenders so that the goals of deterring similar crimes and punishing offenders in proportion to their crimes can be achieved within the bounds permitted by our constitutional laws.

Upon our review of this record, we are constrained to conclude that the harsh penalty imposed by the trial court is excessive for this first-time felony offender under the circumstances of this case as shown by the record. The reasons recited by the trial court do not support the maximum term of imprisonment imposed. Rather, a lesser term of imprisonment, particularly some term not exceeding three years, would not deprecate the seriousness of the crime.

CONCLUSION

For these reasons, we reverse the maximum sentence of imprisonment imposed by the trial court. The matter is remanded for re-sentencing with instructions that an appropriate term should not exceed three years imprisonment under the facts of this record.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before STEWART, PEATROSS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

DISSENT FROM THE DENIAL OF REHEARING

DREW, J.,

dissenting from the denial of rehearing.

| [The sentences of the learned trial court should be upheld, for these reasons:

• Defendant’s combined sentencing exposure on the two charges was imprisonment up to five and one-half years and aggregate fines totaling $2,500. His sentence was five years with no fine. Accordingly, he did not receive the maximum sentence.

• Neither the state nor the defendant requested a sentencing hearing, but it is apparent from the record that the victim suffered a broken femur near the hip bone, and a shattered knee.

• After being helped out of his car, defendant shoved his rescuers aside and fled the scene, never checking on his seriously-injured victim.

• Defendant’s BAC was three to four times the legal limit.

• Defendant has a college degree, so he certainly knew better.

• Even though the prior arrest was pled down to reckless operation, it is hard to imagine a DUI 2nd charge, without a previous DUI being involved.

• To characterize either DUI 2nd matter or reckless operation as a “ticket” certainly deprecates the seriousness of those crimes, each of which is listed in Title 14’s LA Criminal Code, not in Title 32.

• If we are, indeed, supposed to give the sentencing court great discretion, this case would be a good place to start.

The record adequately supports the trial court’s sentences, so I must respectfully dissent to the denial of the rehearing application.