text:
    STATE of Louisiana v. Larry THOMPSON
    NO. 18-KA-273
    Court of Appeal of Louisiana, Fifth Circuit.
    November 28, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Jeffrey M. Landry, Terri R. Lacy, Matthew B. Derbes, Molly K. Lancaster
    COUNSEL FOR DEFENDANT/APPELLANT, LARRY THOMPSON, Prentice L. White
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.
   JOHNSON, J.

Defendant/Appellant, Larry Thompson, appeals his conviction for second degree murder and life sentence without the benefit of probation, parole, or suspension of sentence from the 29th Judicial District Court, Division "E". For the following reasons, we affirm Defendant's conviction and sentence for second degree murder, affirm, as amended, his sentence for obstruction of justice, and remand the matter to the trial court with instructions.

FACTS AND PROCEDURAL HISTORY

On August 1, 2016, a St. Charles Parish Grand Jury indicted Defendant, charging him with the second degree murder of David Scott, in violation of La. R.S. 14:30.1 (count one); with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count two); with aggravated battery, in violation of La. R.S. 14:34 (count three); and with obstruction of justice, in violation of La. R.S. 14:130.1 (count four). Defendant pleaded not guilty to the charged offenses at his arraignment on August 5, 2016. On October 19, 2016, Defendant's motion to sever offenses was granted, and count two of the indictment was severed.

Trial commenced on July 17, 2017 before a 12-person jury for the second degree murder and obstruction of justice charges. At trial, Deputy Steven Mahan of the St. Charles Parish Sheriff's Office testified that he was on patrol in the early morning hours of December 26, 2014. While on patrol, he received a call that shots were fired at the "Butt Cuts Bar" on Joe Louis Lane in Hahnville. He described that, when he arrived, the scene was very chaotic with people trying to exit the bar. When he got inside the bar, Deputy Mahan observed the victim, David Scott, lying on the floor in medical distress after being shot; and, he then started CPR on the victim. He testified that he did not observe the victim with a weapon, there was no weapon nearby, and no one at the scene informed him that the victim was seen with a weapon. Later, Deputy Mahan was sent to the hospital to take a statement from a witness, Rollan Martin. Mr. Martin advised Deputy Mahan that he was shot in the foot while dancing in the bar. At that time, Mr. Martin did not tell Deputy Mahan that he saw the victim with a weapon in his hands.

Detective Don Murray with the St. Charles Parish Sheriff's Office testified that he and Defendant are cousins. As an assisting detective, he reviewed the surveillance video from the bar from the night of the shooting. He identified the victim in the footage with the victim's cousin, Jermaine Scott. As some point in the footage, Detective Murray was able to identify Defendant in the video. The video depicted Defendant exiting the bar but returning approximately two minutes later. Approximately a minute after Defendant re-enters the bar, the crowd disperses due to shots being fired, and Defendant was seen exiting the bar.

Jermaine Scott, the victim's cousin, testified that on the evening of December 25, 2014, he, the victim, Kasheena Pierre, and Keman Jacobs decided to go to "Butt Cuts Bar" to hang out. He recalled that they were just there having fun when he noticed Defendant. As he was returning from the bathroom, he noticed an altercation began between David Scott and Defendant. Defendant and Ms. Pierre were in a previous relationship and had a child together; however, the victim was Ms. Pierre's new boyfriend. While Mr. Scott described the encounter as "rowdy," he did not see the victim throw a punch at Defendant or either of them actually hit each other. Mr. Scott further testified that the victim did not have a gun, baseball bat, sword or knife on him that night. He described the bar as very crowded, loud and dark, and that he was not sure exactly what happened between the two men. Mr. Scott stated that he heard a gunshot and saw that Defendant "had his hands down" but did not recognize what was in his hand. He described that he saw Defendant shooting toward someone on the ground. Mr. Scott ran over to the victim, and the victim subsequently died in his arms. Mr. Scott testified that he did not see the victim do anything to Defendant that warranted being shot. On cross-examination, Mr. Scott testified that he told the police that he attempted to calm down the victim and diffuse the altercation between Defendant and the victim, but the victim resisted his attempts.

Kasheena Pierre testified that she had been dating the victim for a few months and spent Christmas evening with him. She testified that she had neither known him to carry a weapon nor was she aware if he had a gun or weapon on his person on the evening of the shooting. She described that around 10:30 p.m. that evening, she, the victim, and Mr. Scott went to "Butt Cuts Bar," which happened to be very crowded. She recognized many people in the bar, including Defendant, her ex-boyfriend. Ms. Pierre testified that she did not see the victim threaten, punch, provoke, or fight with Defendant. She described that, at some point in the evening, she saw Defendant leave the dance floor, but then later saw him return into the bar. She recounted that she was dancing with the victim when she heard the first gunshot, the victim pushed her out of the way, and she fell to the ground. Ms. Pierre heard more gunshots, and when she made it back to the victim, she did not see a gun in his hand or anywhere near him.

On cross-examination, Ms. Pierre testified that she told police that she was trying to calm the victim, so they could leave the bar. She described that, as she was dancing with the victim, she could feel the tension between Defendant and the victim. When asked if it was her impression that the victim was becoming aggressive with Defendant, she responded that she "just felt a vibe" and insisted that they leave.

Detective Thomas Plaisance was one of the crime scene technicians who processed the scene at "Butt Cuts Bar." He described that, a few days after he initially processed the scene, he obtained a warrant to further search the bar. During that search, he discovered a bullet hole in the dance floor. He was able to remove that section of the flooring and recover a lead projectile. He testified that other than this projectile, he found no other projectiles or shell casings at the scene that indicated the use of a revolver. Detective Plaisance testified that he found no evidence that a second weapon was used. At the victim's autopsy the morning following the shooting, Detective Plaisance recovered three additional projectiles from the victim's body, specifically from his chest cavity, rear neck, and back spine area. On cross-examination, Detective Plaisance admitted that it was not impossible for another projectile to be somewhere unknown in the building, as the police report reflected that the security guard heard approximately five gunshots, but he also noted that it was also not impossible that a witness would mistake four gunshots for five gunshots. He further testified that he believed the victim's hands were bagged for gunshot residue testing, but to his knowledge, no such testing was requested.

Dr. Samantha Huber, the chief forensic pathologist in Orleans Parish, was qualified as an expert in the field of forensic pathology. She performed the autopsy in this case. She stated that the gunshot wound the victim sustained to the back of his neck had a lack of stippling, which indicated to her that the gun was at least 18 inches away from the victim's head when fired. She opined that this wound was not lethal. When discussing the gunshot wound the victim sustained to his chest, she described that the bullet traveled backwards toward the spinal cord and transected it. She stated the entry wound sustained to the victim's back lodged itself in his lung, as the bullet was moving from his back to the front. Dr. Huber concluded that the victim's cause of death was multiple gunshot wounds.

Defendant called Rollan Martin as a witness. He testified that he arrived at "Butt Cuts Bar" on December 25, 2014, at approximately 9:00 p.m. He described that he saw Defendant, his uncle, at the bar. He also observed Ms. Pierre at the bar with someone he was unfamiliar with but knew of his family. He testified that he was shot in his foot that evening, as he was standing on the right side of the dance floor, and that the victim was standing by the bar. After he was shot, Mr. Martin stated he ran to the bathroom where he stayed for about 10 minutes, until the crowd died down. Mr. Martin testified that he saw the victim with a gun and believed that the victim shot him. While he indicated he was "a hundred percent sure" he saw the victim with a gun, he did not know what happened to that gun after the shooting. Mr. Martin also testified that he did not see Defendant with a gun.

Mr. Martin recalled that the police spoke with him at the hospital, but that he was so intoxicated that he could not give any information. He conveyed that, although Defendant was related to him, he did not have a motive to lie on Defendant's behalf. On cross-examination, Mr. Martin admitted that he had been drinking Hennessey and beer from the time he arrived at the bar at 9:00 p.m. until the shooting at about 12:30 a.m., but he could not remember how many drinks he had. He also admitted that he was under the age of 21 years old at the time of the incident.

At the conclusion of the trial, on July 19, 2017, the jury found Defendant guilty as charged on both counts. On September 6, 2017, Defendant filed a motion for new trial and motion for post-verdict judgment of acquittal, arguing, inter alia , that the judgment of acquittal should be granted, finding Defendant guilty of the lesser and included offense of manslaughter. On September 14, 2017, the trial court denied both of the motions.

On September 22, 2017, the trial court sentenced Defendant on count one-second degree murder-to life imprisonment without the benefit of probation, parole, or suspension of sentence, and on count two-obstruction of justice-to 40 years imprisonment without the benefit of probation, parole, or suspension of sentence. The trial court further ordered that these sentences run consecutively to each other. On the same date, Defendant filed a motion to reconsider sentence, which was denied by the trial court after a hearing on December 12, 2017. Subsequently, Defendant filed a motion for appeal, which was granted on December 20, 2017.

ASSIGNMENTS OF ERROR

On appeal, Defendant alleges the trial court erred in denying his motion for post-verdict judgment of acquittal because the evidence presented at trial was insufficient to support a conviction of second degree murder, and the trial court erred in sentencing him to an excessive sentence of life imprisonment.

LAW AND ANALYSIS

Sufficiency of Evidence

In this assignment of error, Defendant argues that the jury committed manifest error by returning a guilty verdict for second degree murder, when the facts at trial illustrated that the responsive verdict of manslaughter was more appropriate; and as a result, the trial court should have granted his motion for post-verdict judgment of acquittal. He contends that his blood had not cooled from the moment he engaged in a heated argument with the victim. Defendant requests that this Court vacate his conviction for second degree murder and enter a verdict of the lesser and included offense of manslaughter.

The State responds that there was sufficient evidence adduced at trial to support Defendant's conviction for second degree murder. The State contends evidence at trial proved that the victim was not the aggressor and there was no evidence that the victim possessed a gun. The State maintains that the facts of the case do not fit the requirements for a manslaughter conviction because Defendant left the bar and returned to shoot the victim, which was enough time for his blood to cool.

Defendant filed a motion for new trial and motion for post-verdict judgment of acquittal. In his motion for post-verdict judgment of acquittal, he argued that the court should have vacated the verdict of second degree murder and convicted him of the more appropriate verdict of manslaughter. He argued that the State's expert was not able to exclude the possibility that two guns were fired at the scene, and that the State had not refuted Defendant's claim of self-defense; therefore, the State failed to meet the burden of excluding every reasonable hypothesis of innocence. He maintained that the State did not eliminate the reasonable possibility that he acted in self-defense or that the victim was shot by a different gun fired by someone else in the crowded bar.

At the hearing on the motion, Defendant further pointed out that his witness, Mr. Martin, testified that the victim was armed with a gun prior to being shot. Defendant contended the State did not refute his self-defense claim beyond a reasonable doubt. He also argued that the court should have considered a verdict of manslaughter to be more appropriate. Defendant contended that he was intoxicated at the time, which could negate the specific intent to kill. He also argued that the victim was acting in an aggressive manner, and that the victim was the initial aggressor. The State responded that there was no evidence introduced that Defendant was intoxicated at the time of the incident, and no argument concerning the victim's intoxication raised at trial. The State further contended that there was no evidence that the victim provoked Defendant to such a degree that a reasonable person would have lost self-control or cool reflection.

In denying the motion for post-verdict judgment of acquittal, the trial court found:

based on the evidence presented, that the jury found that the State met its burden by presenting evidence which proved beyond a reasonable doubt that Mr. Thompson killed Mr. Scott with specific intent and specifically rejected Mr. Thompson's claim of self-defense. There was conflicting testimony presented by the State and the defense concerning what occurred that night as it related to his claim of self-defense. The jury made credibility determinations of the witnesses in reaching its verdict. This Court does not disagree with the jury's determination or evaluation of the witnesses' credibility.

The question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal. See La. C.Cr.P. art. 821 ; State v. Hooker , 05-251 (La. App. 5 Cir. 1/17/06), 921 So.2d 1066, 1074. Here, Defendant only raises the argument that the evidence supported a conviction for manslaughter, not second degree murder; as such, the trial court erred in denying Defendant's post-verdict judgment of acquittal. Unlike in his post-verdict motion, he does not argue on appeal that the State failed to negate his claim of self-defense beyond a reasonable doubt.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See State v. Ortiz , 96-1609 (La. 10/21/97), 701 So.2d 922, 930, cert. denied , 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998) ; State v. Smith , 12-247 (La. App. 5 Cir. 12/11/12), 106 So.3d 1048, writ denied , 13-0494 (La. 7/31/13), 118 So.3d 1120.

Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Smith at 1053 ; State v. Harrell , 01-841 (La. App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. "Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience." State v. Shapiro , 431 So.2d 372, 378 (La. 1982). In instances involving circumstantial evidence, La. R.S. 15:438 dictates that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." Smith at 1053,.

When the trier of fact is faced with conflicting testimony, the weight of the testimony lays solely with the jury or judge, who may accept or reject, in whole or in part, the testimony of any witness. State v. Williams , 05-59 (La. App. 5 Cir. 5/31/05), 904 So.2d 830, 833 ; State v. Bradley , 03-384 (La. App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writ denied , 03-2745 (La. 2/13/04), 867 So.2d 688. It is therefore, not the function of the appellate court to assess credibility or reweigh the evidence; rather, a reviewing court must consider the whole record, and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. State v. Williams , 98-1146 (La. App. 5 Cir. 6/1/99), 738 So.2d 640, 648, writ denied , 99-1984 (La. 1/7/00), 752 So.2d 176 ; State v. Juluke , 98-0341 (La. 1/8/99), 725 So.2d 1291. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by a defendant offers an exculpatory explanation of events. State v. Mitchell , 09-996 (La. App. 5 Cir. 5/25/10), 40 So.3d 1122, 1127, writ denied , 10-1557 (La. 10/21/11), 73 So.3d 370. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational trier of fact could not have found proof of guilt beyond a reasonable doubt. Id. ; See also State v. Mitchell , 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

Defendant was convicted of second degree murder of David Scott. Second degree murder is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). The determination of specific intent is a question of fact. State v. Durand , 07-4 (La. App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034, writ denied , 07-1545 (La. 1/25/08), 973 So.2d 753. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person, as well as the extent and severity of the victim's injuries. State v. Hoffman , 98-3118 (La. 4/11/00), 768 So.2d 542, 585, cert. denied , 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000) ; State v. Batiste , 06-869 (La. App. 5 Cir. 4/11/07), 958 So.2d 24, 27.

In order for Defendant to have been convicted of manslaughter, the evidence would have had to show that the homicide was 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. Hicks , 01-1064 (La. App. 5 Cir. 4/10/02), 817 So.2d 192, 197, writ denied , 02-1580 (La. 5/30/03), 845 So.2d 1068. Sudden passion and heat of blood distinguish manslaughter from murder, but they are not elements of the offense. Instead, they are mitigating factors that may reduce the grade of the offense. State v. Patterson , 10-415 (La. App. 5 Cir. 1/11/11), 63 So.3d 140, 150, writ denied , 11-338 (La. 6/17/11), 63 So.3d 1037. The defendant has the burden of proving those mitigating circumstances by a preponderance of the evidence. Id.

Whether sufficient provocation existed for the reduction of the offense to manslaughter is a question to be determined by the jury under the standard of the average or ordinary person, one with ordinary self-control. Patterson at 150. An argument alone does not constitute sufficient provocation to reduce murder to manslaughter. State v. Johnson , 06-623 (La. App. 3 Cir. 11/2/06), 941 So.2d 696, 702, writ denied , 06-3024 (La. 9/14/07), 963 So.2d 995. Provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person, one with ordinary self-control. The question for the court on review is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigating factors were not established by a preponderance of the evidence. State v. Arias-Chavarria , 10-116 (La. App. 5 Cir. 9/28/10), 49 So.3d 426, 432, writ denied , 10-2432 (La. 2/25/11), 58 So.3d 460.

In State v. Mills , 04-489 (La. App. 5 Cir. 3/29/05), 900 So.2d 953, 961, writ denied , 05-1470 (La. 1/13/06), 920 So.2d 235, the defendant similarly argued that the evidence only supported a conviction for manslaughter. This Court found that the jury could have reasonably concluded that the verbal argument was insufficient provocation to deprive an average person of his self-control. The victim had simply told the defendant to leave the recording studio that the victim owned. The record established no punches were thrown during the verbal altercation. Additionally, the shooting occurred only after the defendant left the room and returned with a gun. Given those circumstances, this Court found that the defendant failed to show by a preponderance of the evidence that the verbal argument constituted sufficient provocation so as to warrant only a verdict of manslaughter.

In the present case, the facts at trial showed that Defendant and the victim engaged in a verbal altercation while inside the bar. However, testimony also established that neither the victim nor Defendant threw a punch, or that their conflict became physical prior to the shooting. It has been held that mere words or gestures, however offensive or insulting, will not reduce a homicide from murder to manslaughter. Arias-Chavarria , supra ; State v. Mitchell , 39,202 (La. App. 2 Cir. 12/15/04), 889 So.2d 1257, 1263, writ denied , 05-0132 (La. 4/29/05), 901 So.2d 1063. Mere words or gestures, however offensive or insulting, will not reduce a homicide from murder to manslaughter. Id.

Multiple witnesses for the State testified to the fact that the victim was not armed with a gun at the time of the incident; however, Defendant's only witness testified contrarily that he saw the victim with a gun. We note that when Mr. Martin initially spoke with police, he did not mention that he saw the victim with a gun. Additionally, no gun was found at the scene at all, much less around or near the victim. When weighing the conflicting and inconsistent testimony, the jury obviously found the State's witnesses more credible than the witness for Defendant. Moreover, while the ballistics expert could not conclusively exclude the possibility that a second gun was used, it was opined that it would have been a "pretty interesting coincidence" to have a totally different firearm used. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. State v. Jones , 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240. The trier of fact shall evaluate the witnesses' credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id. It is not the function of the appellate court to second guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence. Id. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, this is a matter of the weight of the evidence, not its sufficiency. State v. Miller , 11-498 (La. App. 5 Cir. 12/13/11), 84 So.3d 611, 617, writ denied , 12-176 (La. 9/14/12), 97 So.3d 1012.

The testimony at trial established that Defendant discharged a firearm several times at the victim-notably, with some shots fired while the victim was on the ground, as testified to by Mr. Scott. Witnesses' identifications of Defendant as the shooter and their accounts of the events, which are corroborated by surveillance footage, supported a finding beyond a reasonable doubt that Defendant was the individual who aimed a gun and discharged it at the victim. Surveillance video depicted Defendant exiting the bar but then returning and shooting the victim. Furthermore, at trial, Defendant argued he shot the victim in self-defense. Accordingly, in viewing the evidence in a light most favorable to the prosecution, we find that the evidence sufficiently supported Defendant's conviction for second degree murder. We further conclude that Defendant failed to carry his burden of proving by a preponderance of the evidence that the mitigating factors necessary to reduce his conviction to manslaughter were present.

Therefore, we find that the trial court did not err in denying Defendant's post-verdict judgment of acquittal.

Excessive Sentence

In this assignment of error, Defendant argues that his life sentence for his second degree murder conviction is excessive. He argues that during the hearing on the motion to reconsider, he presented evidence to show that he suffered from a mental disability that made him prone to committing criminal acts. Defendant avers that a life sentence for an offense, which the evidence dictated to be a manslaughter conviction, is excessive and an Eighth Amendment violation. He contends that, although life imprisonment is mandated by the statute, his sentence may still be unconstitutionally excessive because the court is not bound by statute when the facts and circumstances of the conviction indicate that a lower sentence would be more appropriate under State v. Dorthey .

The State responds that Defendant's sentence for second degree murder is within the sentencing guidelines and is not excessive. The State notes that mandatory sentences are presumed constitutional, and in order for a departure from the mandatory sentence to be warranted, Defendant must show that he is somehow exceptional. The State also avers that when the sentence is mandatory, the trial court need not justify its sentence using the factors iterated in La. C.Cr.P. art. 894.1. The State points out that Defendant did not present evidence that he was exceptional, for purposes of sentencing, and there is no merit to his claim. The State notes that contrary to Defendant's assertions, there was no testimony that Defendant had difficulty with controlling his anger due to mental instability or that such a condition made him susceptible to committing criminal acts. The State avers that intoxication is not a mental instability, and that any such state did not make him susceptible to committing criminal acts, as Defendant fled from the scene and concealed the gun used in the shooting. The State further notes that this argument was never presented at trial.

Defendant was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence for his second degree murder conviction and 40 years without the benefit of probation, parole, or suspension of sentence to run consecutively with each other. During the sentencing hearing, the trial court noted:

Over the past two-and-a-half years, I've observed Mr. Thompson come into my courtroom for various pre-trial proceedings, and I observed him during the two-day trial. And after the jury reached its verdict, my first thoughts were for two children that are going to grow up without a father and his son, a boy, who's going to grow up without his father because on Christmas night Mr. Thompson made a decision to take the life of another human being. And the conclusion, having observed the same evidence that the jury viewed, that I came to was that Mr. Thompson felt disrespected and that he left the bar to go to his vehicle to retrieve a weapon, and he used that weapon to get respect.
And during the course of the trial, I would glance at Mr. Thompson, and at times I'd look into his eyes and I'd see someone who was indifferent to human life, the person who pulled the trigger that night. And other times I looked at Mr. Thompson in his eyes and I saw a frightened boy.
To the family, the Scott family and the Thompson family, this is a tragedy, and it's a tragedy that happens far too often in our world. Please, please, spread your experience. Share your experience with your family, your friends, and your community that-not to allow anger and fear become a motivation or any reason to cause violence on another person.
Mr. Thompson, I hope you'll have the opportunity to share your experience with your son and that he will learn that a split-second decision made out of anger and rage can alter his life.
The primary purpose of this Court is to ensure that the public is safe.

Defendant filed a motion to reconsider sentencing, arguing that his consecutively imposed life sentence and 40-year sentence were constitutionally excessive. He contended that there were mitigating factors that the court "may wish to consider with respect to [his] sentence."

At the hearing on the motion to reconsider, Defendant called his sister, Kawanda Thompson, as a witness. She testified that she took Defendant for mental health treatment when he was approximately 22 years old. She also described that Defendant has an issue in school. She elaborated that Defendant was on Social Security because of his mental health issues. Ms. Thompson testified regarding the circumstances surrounding Defendant's previous conviction for carjacking. She explained that "something strange" was going on with Defendant, and "they laced him up with PCP." She described that Defendant "flagged a man down" to ask to take him to the hospital and ended up taking the car himself. She testified that Defendant was suffering from an overdose from a drug that had been given to him without his consent.

After Ms. Thompson's testimony, Defendant argued that his 40-year maximum sentence on his conviction for obstruction of justice was excessive. He also admitted that the sentence on the murder case is a mandatory sentence, but he noted that "in the event that that sentence might be overturned on appeal," he "ask[ed] the Court to reconsider the sentence on the obstruction." The court ruled that it:

appreciates the testimony of Ms. Thompson to provide a little information about her brother, because when I imposed sentence, I recognized that I was imposing a consequence for conduct that Mr. Thompson committed but that I was not here to judge him as a person or his life.
The Court was deeply troubled by the execution-style killing of Mr. Scott that night, and that the public absolutely has to be protected from Mr. Thompson's ability to engage in that conduct. Given the circumstances surrounding the killing, I'm going to deny the request for reconsideration of the sentence.

On appeal, Defendant only challenges the constitutional excessiveness of his life sentence for his second degree murder conviction, not his 40-year sentence for his obstruction of justice conviction. Also, for the first time on appeal, Defendant argues for a downward departure in his mandatory life sentence for his second degree murder conviction.

Defendant failed to argue for a downward departure under Dorthey , supra , in his motion to reconsider sentence. "Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude ... the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review." La. C.Cr.P. art. 881.1(E). By failing to raise these arguments in a motion to reconsider sentence, Defendant is limited to a bare review of his sentence for constitutional excessiveness. See , State v. Francois , 17-471 (La. App. 5 Cir. 3/14/18), 242 So.3d 806, 819.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622, writ denied , 05-0244 (La. 12/9/05), 916 So.2d 1048. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

The penalty for second degree murder is life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. La. R.S. 14.30.1(B). A mandatory minimum sentence is presumed constitutional.

State v. Royal , 03-439 (La. App. 5 Cir. 9/30/03), 857 So.2d 1167, 1174, writ denied , 03-3172 (La. 3/19/04), 869 So.2d 849. Further, Louisiana courts have consistently held that a mandatory sentence of life imprisonment for second degree murder does not constitute cruel and unusual punishment. State v. Graham , 422 So.2d 123 (La. 1982) ; State v. Lovick , 00-1833 (La. App. 5 Cir. 5/16/01), 788 So.2d 565, 573, writ denied , 01-1836 (La. 5/10/02), 815 So.2d 833.

In Dorthey , supra , the Louisiana Supreme Court recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. In Johnson , supra , the Louisiana Supreme Court re-examined Dorthey and outlined the criteria a defendant must meet in order to show that a mandatory minimum sentence under the Habitual Offender Law is constitutionally excessive. Although Dorthey involved a mandatory enhanced sentence, this Court has applied the principles set out in Dorthey to the review of mandatory life sentences other than those imposed under the Habitual Offender Law. See State v. Temple , 01-655 (La. App. 5 Cir. 12/12/01), 806 So.2d 697, 707, writ denied , 02-234 (La. 1/31/03), 836 So.2d 58.

In order to rebut the presumption that a mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is "exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case." Johnson , supra . A sentencing court should exercise its authority to declare excessive a mandatory minimum sentence only under rare circumstances. State v. Lindsey , 99-3256 c/w 99-3302 (La. 10/17/00), 770 So.2d 339, 345.

In State v. Boyer , 10-693 c/w 10-694 (La. App. 3 Cir. 2/2/11), 56 So.3d 1119, 1160, the defendant argued that his sentences were constitutionally excessive. The defendant was sentenced to life imprisonment without benefits for his second degree murder conviction. Following sentencing, the defendant objected on the basis of information raised in his pre-sentencing memorandum. In the memorandum, defense counsel gave a detailed account of the defendant's upbringing leading to the time of the shooting. He pointed out the defendant's documented mental health problems. He argued that the defendant suffered a violent and abusive childhood to such a degree that Child Protection Services had to intervene. The defendant was raised in a very dysfunctional family and had only a fifth-grade education. The appellate court found that the defendant failed to meet his burden of proving by clear and convincing evidence that the mandatory life sentence was constitutionally excessive in his case. The court noted that the evidence supported the conclusion that the defendant knew right from wrong when he intentionally killed the victim. The court found that the defendant did not prove himself exceptional by substantially clear and convincing evidence. Therefore, it found no merit to the allegation that he received a constitutionally excessive sentence.

In State v. Francois , 13-616 (La. App. 5 Cir. 1/31/14), 134 So.3d 42, 57, writ denied , 14-0431 (La. 9/26/14), 149 So.3d 261, the defendant similarly argued that his sentence of life imprisonment at hard labor without benefits was excessive since the evidence only established the lesser offense of manslaughter and not second degree murder. This Court, having already found that a rational trier of fact could have found that the defendant failed to establish the mitigating factors of manslaughter and that the evidence was sufficient for the jury to have found that the defendant was guilty of second degree murder beyond reasonable doubt in earlier assignments of error, found no merit to the defendant's claim. However, in the interest of justice, this Court still reviewed whether the defendant's sentence of life imprisonment at hard labor without benefits for his conviction of second degree murder was excessive. This Court found that the defendant failed to offer any argument or evidence establishing that he was exceptional. It was noted that his argument was limited to the contention that his sentence was excessive solely because he should have been convicted of manslaughter and not second degree murder. Accordingly, this Court found that the trial court did not abuse its discretion in sentencing the defendant to the mandatory minimum sentence of life imprisonment at hard labor without benefits for his conviction of second degree murder.

In the instant case, we find that Defendant fails to show by clear and convincing evidence that his particular circumstances are an exception to the constitutional application of the mandatory sentence. Defendant offered the testimony of his sister at the motion to reconsider hearing, indicating that he had mental health issues, but he did not specify what these issues were. Contrary to Defendant's assertions, Ms. Thompson did not testify that his mental health issues made him prone to committing criminal acts. Rather, she testified regarding a singular instance surrounding his previous carjacking conviction where he was on the influence of drugs without his consent that she alleged was the reason he took the car and committed the crime-to go to the hospital. He did not introduce any concrete evidence of any specific mental illness, such as medical records or social security disability records; instead, he merely introduced anecdotal, non-specific testimony from his sister. This evidence falls even short of the evidence presented in Boyer , which this Court still found insufficient to prove the defendant exceptional by substantially clear and convincing evidence.

Further, Defendant does not cite a single case where a mandatory life sentence imposed on a defendant convicted of second degree murder was found to be unconstitutionally excessive on appellate review. As previously discussed, a rational trier of fact could have found that Defendant failed to establish the mitigating factors of manslaughter, and that the evidence was sufficient for the jury to have found that Defendant was guilty of second degree murder beyond reasonable doubt. Sufficient evidence is present in the record to find that Defendant intentionally shot an unarmed man in close proximity to a large crowd of people. Defendant did not present any convincing evidence to support a downward departure from the mandatory life sentence.

Accordingly, considering the totality of the facts and circumstances of this case, we find that the trial court did not abuse its discretion in sentencing Defendant to the mandatory sentence of life imprisonment at hard labor without benefits for his conviction of second degree murder.

Errors Patent Review

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990), and the following errors were discovered.

First, Defendant was sentenced to 40 years imprisonment without the benefit of probation, parole, or suspension of sentence for his obstruction of justice conviction. However, La. R.S. 14:130.1 does not provide for the restriction of benefits. Thus, Defendant received an illegal sentence due to the restriction of benefits imposed.

When a sentencing error involves the imposition of restrictions beyond what the legislature has authorized in the sentencing statute, the Louisiana Supreme Court has ruled that the appellate courts "should not rely on La. R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own authority under La. C.Cr.P. art. 882 to correct an illegal sentence 'at any time.' " State v. Sanders , 04-17 (La. 5/14/04), 876 So.2d 42 (per curiam ).

Accordingly, we amend Defendant's sentence to eliminate the restriction of probation, parole, or suspension of sentence for the entire 40-year sentence for obstruction of justice and affirm the sentence as amended. We also order the 29th Judicial District Court Clerk of Court to transmit notice of this amended sentence to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department. See State v. Richard , 12-310 (La. App. 5 Cir. 4/24/13), 115 So.3d 86, 94, writ denied , 13-1220 (La. 12/2/13), 126 So.3d 497.

Additionally, the Louisiana Code of Criminal Procedure designates that certain crimes will always be designated in the minutes as crimes of violence. Among the crimes that "shall always be designated by the court in the minutes as crimes of violence are: "(3) second degree murder." See La. C.Cr.P. art. 890.3(C). Therefore, one of Defendant's convictions must be designated as a crime of violence in the district court minutes. See State v. Parnell , 17-550 (La. App. 5 Cir. 5/16/18), 247 So.3d 1116 (citing State v. Holloway , 15-1233 (La. 10/19/16), 217 So.3d 343, 346 n.3 ). However, the minute entry does not reflect that this crime was designated as a crime of violence; therefore, on remand, we order the correction of the minute entry.

DECREE

For the foregoing reasons, we affirm Defendant's conviction and sentence for second degree murder. We affirm, as amended, Defendant's sentence for obstruction of justice. Additionally, we remand the matter to the trial court with instructions.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED, AS AMENDED; REMANDED WITH INSTRUCTIONS

      During trial, on July 19, 2017, the State entered a nolle prosequi on count three.

      Amanda Pertuis with the St. Charles Parish Sheriff's Office Communications Division testified that she oversees the daily functions for the 9-1-1 Center. During her testimony, the 9-1-1 calls from December 26, 2014, were admitted and published to the jury.

      Detective Murray was able to identify the victim because of his clothing, a long-sleeve black shirt with some white writing and a hat with a fleur de lis, at approximately 4:22:27 in file 20000400, or camera four. Detective Murray pointed out the victim at 4:25:48, as the "tall individual" with a "white towel" on his head.

      In his appeal, Defendant does not contest the sufficiency of the evidence regarding his obstruction of justice conviction. Thus, the sufficiency of the evidence on the obstruction of justice conviction is not before this Court for review.

      In his motion for new trial, Defendant argued that the trial court erred in admitting the 9-1-1 call in violation of Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), an issue not raised on appeal.

      Nevertheless, when a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Reed , 11-507 (La. App. 5 Cir. 2/14/12), 88 So.3d 601, 607, writ denied , 12-644 (La. 9/14/12), 97 So.3d 1014. The relevant inquiry on appeal is whether a rational fact-finder, after viewing the evidence in the light most favorable to the prosecution, could have found, beyond a reasonable doubt, that the homicide was not committed in self-defense. State v. Cassard , 01-931 (La. App. 5 Cir. 2/26/02), 811 So.2d 1071, 1076, writ denied , 02-0917 (La. 12/19/02), 833 So.2d 327.
      A homicide is justifiable "[w]hen 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." La. R.S. 14:20(A)(1). The fact that an offender's conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. La. R.S. 14:18 ; State v. Sparkman , 13-640 (La. App. 5 Cir. 2/12/14), 136 So.3d 98, 106, writ denied , 14-0477 (La. 11/26/14), 152 So.3d 897.
      The determination of a defendant's culpability rests on a two-fold test: 1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and 2) whether deadly force was necessary to prevent the danger. State v. Sinceno , 12-118 (La. App. 5 Cir. 7/31/12), 99 So.3d 712, 720, writ denied , 12-2024 (La. 1/25/13), 105 So.3d 713. The fact-finder determines whether the State negated self-defense beyond a reasonable doubt. State v. Griffin , 14-450 (La. App. 5 Cir. 12/16/14), 167 So.3d 31, 38-39, writ denied , 15-0148 (La. 11/20/15), 180 So.3d 315. Here, based upon the discussion, infra , we find that the State adequately negated the defense of justification beyond a reasonable doubt in this case.

      The trial court instructed the jury that, in order to find Defendant guilty of second degree murder, it was required to find that Defendant killed Mr. Scott, and that Defendant acted with specific intent to kill or inflict great bodily harm.

      This was the defendant's alternative argument in that matter. He primarily challenged the sufficiency of the evidence used to convict him of second degree murder. Specifically, he argued that the State failed to prove beyond a reasonable doubt that he did not act in self-defense.

      State v. Dorthey , 623 So.2d 1276, 1280-81 (La. 1993).

      Neither at trial nor on appeal did Defendant challenge the consecutive nature of his sentences.

      Nonetheless, a trial court may reduce a presumptively constitutional sentence if it determines the sentence makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounts to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime" as applied to a particular defendant. Dorthey , supra . A court may only depart from the mandatory sentence if it finds clear and convincing evidence that would rebut the presumption of constitutionality. State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, 676. Downward departures from mandatory sentences should only occur in rare cases. State v. Berniard , 03-484 (La. App. 5 Cir. 10/15/03), 860 So.2d 66, 75, writ denied , 03-3210 (La. 3/26/04), 871 So.2d 345. When a defendant seeks a downward deviation from the mandatory sentence, he has the burden to rebut the presumption of constitutionality by showing by clear and convincing evidence that he is exceptional, namely that he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. Id.

      The defendant was also sentenced to a maximum 99-year sentence plus the five-year enhancement for his armed robbery with a firearm conviction; however, in his memorandum, only the excessiveness of the anticipated mandatory life sentence for the second degree murder was addressed, and he argued that whatever sentence the trial court imposed on the armed robbery with a firearm should be imposed concurrently.

      La. R.S. 14:130.1(B)(2) provides that "[w]hen the obstruction of justice involves a criminal proceeding in which a sentence of death or life imprisonment may be imposed, the offender shall be fined not more than one hundred thousand dollars, imprisoned for not more than forty years at hard labor, or both."


source: Caselaw Access Project

author: CARLTON, J., FOR THE COURT:

license: Public Domain

text:
    Justin BOOKER, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01303-COA
    Court of Appeals of Mississippi.
    December 4, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT, Jackson
    BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. A Coahoma County grand jury returned a two-count indictment charging Justin Booker with one count of conspiracy to commit the crime of robbery and one count of capital murder stemming from the death of Davis Goon. After a trial held in September 2017, the trial court declared a mistrial as to the capital murder charge because the jury could not reach a unanimous verdict, but the jury did find Booker guilty of conspiracy to commit robbery. The trial court sentenced Booker to serve five years in the custody of the Mississippi Department of Corrections (MDOC).

¶ 2. Booker now appeals his conviction and sentence. Booker's counsel has filed a brief pursuant to Lindsey v. State , 939 So.2d 743 (Miss. 2005). His counsel states he has searched the record but was unable to find any arguable issues for appellate review. Booker was provided the opportunity to file a pro se brief, but he failed to do so. Finding no error, we affirm the trial court's judgment.

FACTS

¶ 3. On the night of December 26, 2013, Davis was shot and killed during a robbery in the grocery store he owned, Goon's Grocery. The grand jury jointly charged Booker, Cedric Collins, and DeSean Shields with one count of conspiracy to commit the crime of robbery and one count of capital murder in relation to Davis's death. Booker filed a pretrial motion for severance of his trial from that of his codefendants, and the trial court granted the motion.

¶ 4. At Booker's trial, which was held in September 2017, the jury heard testimony from Luther Lampkin, who testified that at about 6:45 p.m. on December 26, 2013, he was grilling food outside of his restaurant when he heard a door slam at Goon's Grocery. Luther explained that the grocery store was located nearby and within eyesight. Luther saw an individual wearing a hat come out of the grocery store and run east toward the railroad tracks. Luther heard a second slam and saw two more individuals exit the grocery store, followed by Davis. Luther testified that he could not tell what kind of clothing any of the men were wearing. Luther stated that right after the two individuals exited the store, he heard gunshots and he saw Davis fall. Luther testified that when he heard the gun shots, he observed that the second of the two individuals had his arm "extended back toward [Davis]." Luther stated that like the first person who ran out of the store, the other two individuals also ran east toward the railroad tracks and around the corner.

¶ 5. Luther told the jury that he ran over to Davis, who was lying on his back, unresponsive. Davis's sister and father came outside from the package store next door, and Luther told them to call 911. Luther testified that he saw a gun laying on the ground beside Davis.

¶ 6. Davis's sister, Debbie Goon, testified that on the evening of December 26, 2013, she and her father were in Goon's Package Store, which was located next to the grocery store. Debbie testified that she and her father heard gunshots, and they went outside to check on Davis. Debbie testified that as she prepared to walk out of the package store, she saw someone wearing a "grayish white hood[ie]" walk past the store. Once outside, Debbie saw Luther kneeling down by Davis, who was lying unresponsive on the sidewalk outside of the front door of the grocery store. Debbie saw a gun on the ground next to Davis, and she testified that her father picked up the gun and placed it on the counter of the grocery store. Debbie identified the gun found on the ground next to Davis as Davis's gun. According to Debbie, Luther instructed her to call 911. Debbie entered the grocery store and called 911, and she noticed at that time that the cash register was missing from the counter. Debbie testified that she later saw the cash register outside on the ground by the railroad, around the intersection of West Tallahatchie Street and Martin Luther King Boulevard.

¶ 7. Investigator Charles Sledge of the Clarksdale Police Department responded to the 911 call on December 26, 2013. When Investigator Sledge arrived at the grocery store, he saw Officer Rip Woodard performing CPR on Davis outside of the grocery store. Investigator Sledge walked east down the sidewalk and found a black hat with a Mountain Dew logo, which he collected as evidence and later submitted to the crime lab for DNA testing. On the east corner of the grocery store near the railroad tracks, Investigator Sledge also discovered a cash register that was "busted up" but still containing money, as well as a broken piece of the register. Investigator Sledge testified that the cash register and the broken piece from the register were dusted for fingerprints. Investigator Sledge also photographed and searched Davis's truck, which was parked in front of the grocery. He testified that there were bullet holes in the windshield and front passenger window of the truck.

¶ 8. Sergeant Norman Starks arrived on the scene after Investigator Sledge. Sergeant Starks testified that he and Officer Kendrick Walker photographed the crime scene and collected evidence. Sergeant Starks testified that he discovered and collected two projectile fragments from inside the truck, one on the dashboard area and another in the middle of the front seat, which were sent to the crime lab for testing. After processing the scene, Sergeant Starks returned to the police department. Sergeant Starks stated that Booker was already at the police station, and he learned that Booker was a person of interest in the shooting. Sergeant Starks testified that he performed a gunshot-residue test on Booker's hands at 11:05 p.m. Sergeant Starks stated that he did not personally perform a gunshot-residue test on any other suspects.

¶ 9. The officers testified that on the counter inside the grocery store, they discovered and collected a five-shot .38 caliber revolver that contained three spent shell casings and two live rounds. Investigator Sledge testified that the revolver belonged to Davis. Sergeant Starks also found one spent projectile on the floor inside the store near a potato chip rack in front of the counter. Sergeant Starks testified that he and another officer dusted the entire counter and the inner and outer parts of the front door in an attempt to lift fingerprints, but no prints were recovered.

¶ 10. Sheriff Charles Jones testified that at the time of the shooting, he was off duty working on a car in a garage he owned, which was located about a block from Goon's Grocery. Sheriff Jones testified that on the night in question, he heard a few gunshots. Sheriff Jones stepped outside of the garage and saw a couple of individuals running behind the grocery store. Sheriff Jones then got in his personal vehicle and tried to follow the individuals, and he saw two men run inside a house on Sixth Street and Ashton Avenue. Sheriff Jones called the sheriff's office and the police department to tell them what he observed. He then drove his car down Baird Street and saw another man walking between some houses. Sheriff Jones testified that the man ended up on the corner of Baird Street and Seventh Street. Sheriff Jones testified that he was only fifteen or twenty feet away from this man, and he later identified the man as Collins in a photo lineup presented to him by Officer Walker.

¶ 11. Officer Walker testified that once he was at the police station, he took DNA swab samples from Booker, Collins, and Shields after obtaining signed consent forms. He packaged and secured the samples for testing at the crime lab.

¶ 12. Officer Walker testified that he took two recorded statements from Booker. He took Booker's first statement the day after the shooting. In his first statement, Booker denied going to Goon's Grocery on the evening in question. Booker stated that he was at his home from 4:00 p.m. through the time of the incident. Booker denied any knowledge of the robbery and murder, but he admitted that he heard gunshots. Booker told Officer Walker that he saw Collins walking down the street on the day in question, and he said that Collins was wearing a black and green hat.

¶ 13. Officer Walker took Booker's second statement on December 30, 2013. Officer Walker testified that in Booker's second recorded statement, Booker stated that until around 1:00 or 2:00 p.m. on December 26, 2013, he was with Sammy Sharrod. Booker stated that after Sammy went home, Booker went to Beverly Scott's house, where he met up with several people, including Collins and Shields. According to Booker, at about 4:00 p.m., Collins told Booker that he "had a lick that he wanted to hit." Officer Walker explained that a lick is "something monetary." Collins asked Booker if he wanted to participate, and Booker responded, "Nah, I'm good." Booker again denied being present in the grocery store.

¶ 14. Officer Walker advised Booker to tell him the truth, and Booker eventually admitted that he, Shields, and Collins went to the grocery store. Booker told Officer Walker that he did not enter the grocery store; instead, he stood on the corner while Collins, who was carrying a gun, went in. Booker stated to Officer Walker that Collins exited the store with the cash register and then Davis followed him with a gun. Booker said that he heard two gunshots, followed by another round of shots, and everybody started running. Booker told Officer Walker that he and Shields ran to a church around the corner behind the store, and they walked to their respective houses. Booker told Officer Walker that Collins was the one who shot Davis.

¶ 15. The jury also heard testimony from the State's expert witnesses. Mark LeVaughn, the State's expert witness in forensic/anatomic pathology testified that Davis's cause of death was a gunshot wound to the chest, and the manner of death was homicide. Chad Suggs, the State's expert witness in trace evidence testified that he examined Booker's gunshot residue kit and found one particle indicative of gunshot residue on the sample taken from the back of Booker's left hand. Felicia McIntire, the State's expert witness in tool marking and firearms examination testified that the projectile recovered from the floor in Goon's Grocery was not fired from Davis's revolver. McIntire also testified that she was unable to determine whether the two bullet fragments recovered from the truck were part of projectiles fired from Davis's revolver.

¶ 16. Steven Little of the Mississippi Crime Laboratory testified as an expert in the field of forensic serology. Little preserved the known DNA samples of Booker, Shields and Collins; he also obtained and preserved a DNA sample from the black Mountain Dew hat that police recovered outside of the grocery store. The State then called Joseph Heflin of the Mississippi Crime Laboratory, who testified as an expert in the field of forensic biology, specializing in DNA analysis. Heflin testified that he compared the DNA sample from the Mountain Dew hat with the known DNA samples from Booker, Collins, and Shields. Heflin testified that "DNA from a couple of individuals" was present on the hat, and the dominant DNA profile he obtained from the hat was a partial DNA profile that "was consistent with the reference sample of Justin Booker." Heflin explained that he could not exclude Booker as the contributor of the dominant DNA profile on the hat, but he could exclude Shields and Collins as the contributor.

¶ 17. After the trial, the jury was unable to reach a unanimous verdict on the capital murder charge, and the trial court declared a mistrial as to that count. However, the jury returned a verdict finding Booker guilty of conspiracy to commit robbery. The trial court sentenced him to serve five years in the custody of the MDOC. Booker now appeals.

DISCUSSION

¶ 18. Booker's appointed appellate counsel filed a Lindsey brief, certifying that he has scoured the record and that the case presents no "arguable issues" for appeal. Lindsey , 939 So.2d at 748 (¶ 18). Appellate counsel complied with Lindsey by sending Booker a copy of the brief and advising him of his right to file a pro se brief. See id. This Court also entered an order giving Booker an opportunity to file a pro se brief, but Booker did not file one.

¶ 19. Pursuant to Lindsey , we have "conducted an independent and thorough review of the record, and we conclude that there are no issues that warrant reversal." Taylor v. State , 162 So.3d 780, 787 (¶ 18) (Miss. 2015). The State presented sufficient evidence to sustain Booker's conviction. We recognize that the jury's role is to assess the witnesses' credibility and resolve conflicts in the evidence. Little v. State , 233 So.3d 288, 289 (¶ 1) (Miss. 2017). Keeping the jury's role in mind, we find that no basis exists for us to disturb the jury's verdict on appeal. Therefore, Booker's conviction and sentence are affirmed.

¶ 20. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Davis and his father, Charles Goon, owned and operated three businesses in Clarksdale, Mississippi: Goon's Grocery, Goon's Package Store, and Goon's Furniture.

      Prior to his trial, Booker filed a motion for a psychiatric examination to determine his competency to stand trial and his mental condition at the time of the offense, which the trial court granted. The trial court conducted a competency hearing and heard testimony from Dr. Criss Lott, who performed Booker's examination. Dr. Lott concluded that Booker was competent to stand trial and that he was not suffering from a severe mental disorder at the time of the offense. The trial court ruled that Booker was competent to stand trial.

      Officer Walker testified that he obtained Miranda -waiver forms signed by Booker and his father prior to taking each statement. Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      The State played both of Booker's recorded statements for the jury.


author: LEE, C.J., FOR THE COURT:

text:
    Richard ESKRIDGE ON BEHALF OF MEMBERS OF JACOB CHAPEL MISSIONARY BAPTIST CHURCH, Appellant v. Louella PEACOCK, Secretary ON BEHALF OF MEMBERS OF JACOB CHAPEL MISSIONARY BAPTIST CHURCH, Rev. Kenneth Wraggs and Betty Quinn, Treasurer, Appellees
    NO. 2017-CA-00650-COA
    Court of Appeals of Mississippi.
    December 4, 2018
    ATTORNEY FOR APPELLANT: DEBRA MICHELLE GILES, RIDGELAND
    ATTORNEY FOR APPELLEES: HOWARD Q. DAVIS JR.
    BEFORE LEE, C.J., GREENLEE AND TINDELL, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this dispute between conflicting groups within a church over electing the new pastor, we must decide whether the chancellor erred by appointing mediators and adopting their findings.

FACTS AND PROCEDURAL HISTORY

¶ 2. Reverend James White, the pastor of the Jacob Chapel Missionary Baptist Church in Sunflower County, Mississippi, died in December 2015. Two groups from the church claimed authority to act on the church's behalf and over the church's three bank accounts. One group was led by Richard Eskridge, a deacon in the church. The other group was led by Louella Peacock, the church secretary/treasurer. The church's accounts were at Community Bank, North Mississippi, and totaled $8,348.94. As a result, the bank filed an action for interpleader against the church in Sunflower County Chancery Court. Peacock, on behalf of her group, answered the complaint for interpleader, claiming that the other group had no authority to act on behalf of the church. The chancellor granted the bank's request, and the funds were deposited in the court registry. Several months later, the other group, through Eskridge, filed an answer to the interpleader action, claiming that Brenda Bowie was the newly-elected pastor of Jacob Chapel. Bowie had been installed as the new pastor in March 2016, although Peacock alleged that the election to install Bowie was not conducted according to the church's by-laws. Peacock states that the church members met shortly thereafter and voted to remove both Bowie and Eskridge from any leadership roles.

¶ 3. The chancellor ordered the two groups and any other church members to undergo mediation conducted by the Sunflower County Baptist Association (SCBA) in order to resolve the dispute. Ultimately, a new pastor was elected, and the SCBA submitted its findings to the chancellor. The chancellor adopted these findings and ordered the chancery clerk to pay the funds jointly to the newly elected pastor Kenneth Wraggs and the treasurer Betty Quinn.

¶ 4. Eskridge now appeals, asserting the chancellor erred by: (1) ordering mediation; (2) basing its ruling solely on the SCBA's findings; and (3) failing to make findings of facts and conclusions of law.

STANDARD OF REVIEW

¶ 5. An appellate court "will not interfere with or disturb a chancellor's findings of fact unless those findings are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Pilgrim Rest Missionary Baptist Church ex rel. Bd. of Deacons v. Wallace , 835 So.2d 67, 71 (¶ 7) (Miss. 2003).

DISCUSSION

I. Appointment of Mediators

¶ 6. Eskridge first argues that the chancellor's decision to appoint mediators was premature. Eskridge claims that the church had established by-laws for selecting a new pastor and had the by-laws been followed, the chancellor would not have needed to appoint mediators. Eskridge also alleges that the "mediators had their own agenda and had no direction from the Court."

¶ 7. As our supreme court has stated, the "court's jurisdiction is limited to purely secular issues, and the court must not be involved in ecclesiastical issues." Id. at 72 (¶ 11) (citation omitted). In Pilgrim Rest , the church did not have clear by-laws, so the chancellor established a procedure for the church members to vote on whether to retain the current pastor. Id. The supreme court later stated that " Pilgrim Rest represents a narrow exception to the longstanding practice of this Court to refuse to involve itself in ecclesiastical matters." Greater Fairview Missionary Baptist Church v. Hollins , 160 So.3d 223, 231 (¶ 29) (Miss. 2015). Unlike this case, Hollins involved a pastor who sought a temporary restraining order (TRO) after his congregation voted to terminate his employment. Id. at 233 (¶ 33). There, the chancellor issued the TRO, vacated the church's vote of termination, and ordered the church to hold another vote. Id. The supreme court reversed, holding that "a pastor who is unhappy about being terminated by a church simply does not present a secular controversy." Id.

¶ 8. This case is similar to Pilgrim Rest , not Hollins . The chancellor did not rule on who was entitled to be the new pastor. Instead, because the two groups were at odds and arguing over the interpled funds, the chancellor appointed mediators to oversee the election of the new pastor. At a hearing on the matter, the chancellor stated that "whatever [your] rules and regulations and by-laws are, they're going to be followed." And according to the church's minutes from the business meeting, the "election was carried out in a fair and proper way and in accordance with the [church's] by-laws as well as in accordance with the policies and procedures of the [SCBA] as indicated by" the moderators.

¶ 9. In this instance, we cannot find the "chancellor overstepped her bounds of jurisdiction in ordering an election when doing so was secular in purpose and sanctioned by other jurisdictions." Pilgrim Rest , 835 So.2d at 72 (¶ 11) (citations omitted). This issue is without merit.

II. Mediators' Findings

¶ 10. Eskridge next argues that the chancellor's "ruling was based solely on the decision of the court-selected mediators who failed to follow the by-laws of the church." Eskridge further contends that the mediators failed to determine whether the members who voted during mediation were members of the church at the time of Reverend White's death.

¶ 11. Eskridge, however, has failed to show that the by-laws were not followed. In fact, as previously stated, the church minutes indicated that the by-laws were followed during the election process. The supreme court's conclusion in Pilgrim Rest is applicable here: "There is absolutely no indication of [the chancellor] imposing an ecclesiastical dictate on the congregation of Pilgrim Rest. On the contrary, she merely sought to establish a procedure in which the majority of the Church could be heard thereby preserving the peace." Id. at 73-74 (¶ 14). This issue is without merit.

III. Findings of Facts

¶ 12. Eskridge finally contends that the chancellor failed to make findings of fact and conclusions of law. Here, much of Eskridge's argument is simply a reiteration of his previous arguments, which we found meritless. Eskridge does argue that the "the court also opines that the election was fair, but there is no indication of the method of the voting or the results." The chancellor relied upon the findings presented by the SCBA and the minutes of the church's business meeting-the meeting at which the election occurred.

¶ 13. Uniform Chancery Court Rule 4.01 states that "[i]n all actions where it is required or requested, pursuant to M.R.C.P. 52, the Chancellor shall find the facts specially and state separately his conclusions of law thereon." Eskridge never asked the chancellor to make findings of facts and conclusions of law. And he has not shown that the chancellor was required to do so in this instance. This issue is without merit.

¶ 14. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      According to Eskridge, the church was not a member of the SCBA and as a result, the mediators lacked authority over the church. During the hearing, however, two people testified that the church was a member of the SCBA.

      Mississippi Rule of Civil Procedure 52(a) states that: "In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly."


text:
    Thaxter T. BAKER a/k/a Thaxter Baker, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01354-COA
    Court of Appeals of Mississippi.
    December 4, 2018
    ATTORNEY FOR APPELLANT: ROBERT SNEED LAHER, TUPELO
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, JACKSON
    DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE
    BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. A Chickasaw County jury convicted Thaxter T. Baker of burglary of a dwelling. The trial court sentenced Baker to serve twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended. The trial court also ordered Baker to pay approximately $2,833.50 in restitution and costs. Baker filed posttrial motions, which the trial court denied.

¶ 2. Baker now appeals his conviction and sentence, arguing that: (1) the evidence presented was insufficient to sustain the conviction and (2) the trial court erred in refusing Baker's circumstantial-evidence jury instruction.

¶ 3. Finding no error, we affirm the trial court's judgment.

FACTS

¶ 4. On August 15, 2014, officers with the Okolona Police Department responded to a 911 call about a suspicious vehicle parked across from the "city barn," a facility that the City of Okolona used for water, sewer, and sanitation services. Upon arriving at the scene, the officers encountered Baker, who possessed items that linked him to a house burglary a block away. Baker was arrested and later indicted for burglary of a dwelling, in violation of Mississippi Code Annotated section 97-17-23 (Rev. 2014).

¶ 5. At a trial held on January 25, 2017, the jury heard testimony from Officers Joey Miller, Tomeka Betts, and Dwight Parker of the Okolona Police Department, as well as Cassidy Edwards, the house-burglary victim. Baker also testified in his own defense. The jury ultimately returned a guilty verdict, and the trial court sentenced Baker to serve twenty-five years in the custody of the MDOC, with ten years suspended and fifteen years to serve. The trial court also ordered Baker to pay $1,000 in full restitution to the victims, $433.50 in court costs, $1,000 for the court-appointed counsel fee, a $200 bond fee, $100 to the Victim's Compensation fund, and $100 in investigative expenses, for a total of $2,833.50.

¶ 6. Baker filed a motion for a judgment notwithstanding the verdict (JNOV), or, in the alternative, for a new trial. The record reflects that Baker's posttrial motions were untimely. However, the trial court entered an order denying Baker's posttrial motions and reopening the time for Baker to perfect his appeal. Baker subsequently filed his notice appealing his conviction and sentence.

DISCUSSION

I. Sufficiency of the Evidence

¶ 7. Baker argues that the evidence presented at trial was insufficient to support the conviction of burglary of a dwelling. Baker asserts that the State failed to present any scientific evidence, including fingerprint or DNA evidence. Baker also argues that the State failed to present any witnesses who could place him at the scene of the crime or who saw him carry property away from the residence. Baker further maintains that he never admitted to breaking into Cassidy's house and committing a crime.

¶ 8. We apply a de novo review to challenges to the sufficiency of the evidence. Johnson v. State , 235 So.3d 1404, 1410 (¶ 12) (Miss. 2017). "In applying de novo review, we determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Warren v. State , 187 So.3d 616, 627 (Miss. 2016) (internal quotation mark omitted) ). We recognize that "[w]here the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable jurors could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is to reverse and render." Jackson v. State , 247 So.3d 335, 337 (¶ 6) (Miss. Ct. App. 2018) (internal quotation marks omitted). Evidence will be deemed sufficient if "reasonable fair-minded jurors in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient." Id. The State receives "the benefit of all reasonable inferences that may be drawn from the evidence." Johnson , 235 So.3d at 1410 (¶ 12) (internal quotation mark omitted).

¶ 9. Mississippi Code Annotated section 97-17-23(1) sets out the elements the State must prove to convict a defendant of burglary: (1) the unlawful "breaking and entering into the dwelling house ... of another" (2) "with [the] intent to commit some crime therein. ..." Id. ; Johnson , 235 So.3d at 1410 (¶ 13).

¶ 10. Our review of the transcript reflects that the jury heard testimony from several officers with the Okolona Police Department, testimony from the victim, as well as testimony from Baker. Felix Randle testified that on the evening of August 15, 2014, he called 911 to report a suspicious vehicle parked near his house, across from the city barn. Randle explained that at that time, several burglaries had occurred at the city barn. After placing the 911 call, Randle observed two men-one short, one tall-exit the vehicle and run down the street. Randle testified that the shorter man was wearing a backpack.

¶ 11. Officer Joey Miller of the Okolona Police Department responded to the 911 call. When Officer Miller arrived at the scene, he located the vehicle parked across from the city barn and ran the vehicle's tag. Officer Miller testified that he discovered that the vehicle was registered to Thaxter Baker. Officer Miller then approached Randle's house, where Randle was waiting for him on the porch. Randle informed Officer Miller that he observed two men get out of the vehicle and walk down the street. Officer Miller testified that he walked to the house across the street from Randle and spoke to the people who lived there. Randle's neighbors informed Officer Miller that they also saw two men exit the vehicle and walk down the street.

¶ 12. Officer Miller then returned to Randle's house. According to Officer Miller, as he and Randle were talking, a man wearing a backpack walked up the street toward the parked vehicle. Randle informed Officer Miller that the man looked like one of the men who had exited the vehicle earlier. Officer Miller "hollered" at the man to hang on and shined his flashlight on him. Officer Miller testified that he thought the man was going to run off, but he eventually stopped.

¶ 13. Officer Miller testified that he approached the man, whom Office Miller later identified as Baker, and he started talking. As they talked, Officer Miller noticed a "big bulge" in Baker's pants pocket. Officer Miller instructed Baker to remove his hand from his pocket, and he asked Baker what he had in his backpack and pocket. Baker responded that he did not know. Officer Miller informed Baker that he was going to pat him down and search him for a weapon. During the pat down, Officer Miller discovered a prescription medicine bottle full of hydrocodone in Baker's pants pocket. Officer Miller observed the name Cassidy Edwards on the medicine bottle. Officer Miller testified that he knew Cassidy and her family. Officer Miller stated that Baker informed him that he obtained the bottle and the backpack from "a white guy named Jay on the corner."

¶ 14. After finding the prescription drug bottle, Officer Miller placed Baker under arrest and handcuffed him. Officer Miller testified that he then searched Baker's backpack to see if it contained any other controlled substances. During his search of Baker's backpack, Officer Miller discovered a Wii, a playstation, a television remote, and a tablet.

¶ 15. Less than five minutes after placing Baker under arrest, Officer Miller heard a call from dispatch reporting a break-in at a nearby house. Officer Miller soon discovered that the break-in occurred at Cassidy's home.

¶ 16. Officer Tomeka Betts of the Okolona Police Department testified that on the evening of August 15, 2014, she responded to Randle's 911 call shortly after Officer Miller. Officer Betts stated that once she arrived on the scene, she read Baker his Miranda rights and put him in the back seat of Officer Miller's patrol car. Officer Betts testified that "maybe one or two minutes" after she arrived at the scene, the officers received another 911 call regarding a break-in a block away.

¶ 17. Officer Betts testified that she went to the house where the break in occurred and spoke to Cassidy. She informed Officer Betts that items were stolen from her house, and she provided Officer Betts with a list of the stolen items. Officer Betts testified that Officer Dwight Parker later arrived at the house, and the two of them searched the area around the house.

¶ 18. Cassidy testified at trial that on the evening of August 15, 2014, she returned to her house and saw that someone had broken in. Cassidy explained that the air conditioning unit in the kitchen window "was totally turned sideways ... enough where somebody could get through on one side." Cassidy also observed that the sliding glass doors leading to the patio were open; she explained that the family used her grandmother's cane to lock the sliding glass doors, but the cane had been moved and thrown into the living room. Cassidy also testified that the following items were stolen from her home: a TV, a tablet, headphones, a playstation, a Wii, a pocketknife, and her prescription cough medicine.

¶ 19. Officer Miller testified that while Baker was in custody, he learned that some of the items reported missing from Cassidy's house were the same items contained in Baker's backpack and pants pocket. According to Officer Miller, Baker eventually agreed to show him where he put Cassidy's TV. Officer Miller and Baker walked to the location that Baker specified, but they did not find a TV. Baker told Officer Miller that he "guess[ed] his boy got it." Officer Miller testified that Baker never revealed the name of his "boy."

¶ 20. Officer Dwight Parker testified that on the evening of August 15, 2014, he received a call from patrol officers stating that Baker was in their custody. Officer Parker drove to the scene, where he was briefed about the evening's events. Officer Parker testified that he drove Baker to the police department that evening where he then read Baker his Miranda rights. Officer Parker stated that Baker waived his rights, so Officer Parker proceeded to interview him.

¶ 21. Officer Parker testified that during the interview, Baker admitted that he entered Cassidy's house and helped his cousin steal a TV. Officer Parker returned the next morning to interview Baker again. Officer Parker stated that during this time, Baker refused to provide him with a written statement or with his cousin's name because he did not want to "tell on" his cousin. Officer Parker testified that Baker told him, however, that when he got out of jail, he would help Officer Parker get the TV back.

¶ 22. Officer Parker also testified that on the day after the burglary, he returned to Cassidy's house and took pictures of the entry point of the break-in. Officer Parker stated that the air conditioning unit in the kitchen window was pushed all of the way through, and the perpetrator entered the house through that window. Officer Parker testified that he did not dust for fingerprints or test for DNA because Baker had already confessed to him that he was inside of the house.

¶ 23. Baker testified that on the evening of August 15, 2014, he went to a store where he was approached by a man named Jay. Baker testified that Jay offered to sell him a bottle of prescription drugs, and Jay instructed Baker to meet him at a specific location at a specific time. Baker drove to the location Jay described and parked near the city barn, where he then met Jay. According to Baker, Jay offered to sell him the bottle of prescription drugs as well as a backpack containing a gaming system. Baker testified that he paid Jay $180 for the items and then proceeded to walk back to his vehicle. While returning to his vehicle, Baker encountered Officer Miller, who then searched Baker and discovered the prescription drugs and gaming system. Baker denied breaking into Cassidy's house and stealing from her. Baker denied ever telling Officer Miller that he knew where the stolen TV was located. Baker also denied telling Officer Parker that he participated in the burglary or helped his cousin break into Cassidy's house.

¶ 24. The record shows that the jury heard conflicting testimony regarding Baker's admission of guilt: Officer Parker testified that Baker confessed to the burglary during two interviews; however, Baker denied confessing to Officer Parker. We recognize that "[t]he jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness." Johnson v. State , 242 So.3d 145, 155 (¶ 20) (Miss. Ct. App. 2017).

¶ 25. After reviewing the record and viewing the evidence in the light most favorable to the State, we hold that a rational juror could have certainly found beyond a reasonable doubt that the State proved all of the elements of burglary. As stated, "[t]he elements proving the offense of burglary are a breaking and entering of a building with the intent to commit a crime after entering." Sykes v. State , 749 So.2d 239, 242 (¶ 5) (Miss. Ct. App. 1999). Both Officer Parker and Cassidy testified that the air conditioning unit in the kitchen window was turned to make a large enough opening for a person to fit through it. Cassidy testified that several items were stolen from her house, and officers found Baker in possession of the stolen items approximately one block away from Cassidy's house. This issue lacks merit.

II. Jury Instruction

¶ 26. Baker next argues that the trial court erred by not giving a circumstantial-evidence jury instruction. Baker contends that he was entitled to a circumstantial-evidence jury instruction because the State failed to present direct evidence that Baker committed burglary; therefore, the case against him was based entirely on circumstantial evidence.

¶ 27. We review a trial court's decision to give or refuse a jury instruction for abuse of discretion. Burleson v. State , 166 So.3d 499, 509 (¶ 28) (Miss. 2015). "Jury instructions must be read as a whole to determine if they fairly announce the law." Id. We recognize that "[t]he trial court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Id.

¶ 28. In the case before us, the defense requested that the trial court give the following circumstantial-evidence instruction:

INSTRUCTION D-4
The [c]ourt instructs the jury that "direct evidence" is direct proof of fact, such as testimony by a witness about what the witness personally saw, heard, or did. "Direct evidence" is the testimony of someone who claims to have personal knowledge of the commission of the crime for which he has been charged. "Direct evidence" is evidence which, if you believe it, directly proves a fact.
An example is if a witness testified that he saw it raining outside and you believed him that would be direct evidence that it is raining.
The [c]ourt instructs you that "circumstantial evidence" is proof of a fact of facts from which you could conclude, by your reason and common sense that another fact exists even though it is has not been proved directly. "Circumstantial evidence" is proof of one or more facts from which you could find another fact. "Circumstantial evidence" is simply a chain of circumstances that indirectly proves a fact. An example is if someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella that would be circumstantial evidence from which you could conclude that it was raining.
The law makes no distinction between the weight to be given to either direct or circumstantial evidence. You, as the jury, should decide who much weight to give to any evidence.

¶ 29. During the jury-instruction conference, the defense maintained that Baker was entitled to a circumstantial-evidence instruction because the State failed to present direct evidence placing Baker at the scene or provide any DNA or fingerprint evidence. The State argued that Officer Parker testified that Baker admitted his involvement in the burglary; therefore, the case was not based entirely on circumstantial evidence. The trial court agreed and refused to give Instruction D-4, explaining that "it's not a circumstantial case."

¶ 30. In Burleson , 166 So.3d at 509 (¶ 29), the Mississippi Supreme Court held that circumstantial evidence is "evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist." The supreme court explained that "[d]irect evidence, on the other hand, must directly and not by inference implicate the accused and not just show that there has been a crime." Id. (internal quotation mark omitted). "While evidence does not always fall neatly into one category, examples of direct evidence include an admission or confession by the defendant to 'a significant element of the offense,' or eyewitness testimony 'to the gravamen of the offense charged.' " Id. (quoting Kirkwood v. State , 52 So.3d 1184, 1187 (¶ 10) (Miss. 2011) ). The supreme court further explained that "[t]he term gravamen is defined as the substantial point or essence of a claim, grievance, or complaint." Id. (internal quotation marks omitted). We recognize that "[w]here the State is without a confession and wholly without eyewitness testimony to the gravamen of the offense charged, the defendant is entitled to an instruction requiring the jury to exclude every other reasonable hypothesis other than that of guilt before a conviction can be had." Id. (internal quotation marks omitted).

¶ 31. In the recent case of Moore v. State , 247 So.3d 1198, 1202 (¶ 20) (Miss. 2018), the supreme court held although an inference of guilt arose from the evidence presented at trial, the State failed to adduce direct evidence of the defendant's guilt. Accordingly, the supreme court found that the trial court abused its discretion in refusing the defendant's circumstantial evidence instruction, explaining that the State "produced neither [a] confession nor an eyewitness to the gravamen of the offense charged." Id. at (¶ 17).

¶ 32. However, "a circumstantial evidence instruction is not required when there is both direct and circumstantial evidence of the guilt of the accused." Smith v. State , 897 So.2d 1002, 1009 (¶ 30) (Miss. Ct. App. 2004). The supreme court has held that a confession made to a law enforcement officer "constitutes direct evidence of a crime." Moore v. State , 787 So.2d 1282, 1288 (¶ 18) (Miss. 2001) (quoting Ladner v. State , 584 So.2d 743, 750 (Miss.1991) ). The supreme court has also clarified "that confession takes the case out of a circumstantial context" and "makes a circumstantial evidence instruction inapplicable." Taylor v. State , 672 So.2d 1246, 1270 (Miss. 1996) (holding that a circumstantial evidence instruction was inapplicable where a witness testified at trial that the defendant confessed to her that he killed his stepdaughter); see also Mack v. State , 481 So.2d 793, 795 (Miss. 1985) (holding that an admission by a defendant to his girlfriend of an alleged burglary was a "confession," and constituted direct evidence of the crime; therefore, a circumstantial evidence instruction was not required).

¶ 33. In the case before us, the jury heard Officer Parker's testimony stating that Baker confessed to him during two interviews that he participated in the burglary. Officer Parker testified that Baker implicated his cousin as an accomplice in the burglary, but Baker refused to provide a written statement regarding the events because he did not want to "tell on" his cousin. At trial, Baker denied confessing to Officer Parker that he participated in the burglary. Baker also denied telling Officer Miller that he knew where Cassidy's stolen TV was located.

¶ 34. After our review, we find that Baker's confession to Officer Parker "takes the case out of a circumstantial context," and we therefore find that no circumstantial evidence instruction was required. Taylor , 672 So.2d at 1270. Accordingly, we find that the trial court did not abuse its discretion by denying Baker's circumstantial jury instruction.

¶ 35. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Baker's indictment charged that Baker "did ... unlawfully, willfully, feloniously and burglariously break and enter the dwelling of Cheryl Edwards, located at 405 Silver Street, Okolona, in Chickasaw County, Mississippi, there situated in which dwelling there were, then and there, goods, wares, chattels or merchandise kept for use, sale, deposit or transportation, with the felonious intent to unlawfully, willfully and feloniously take, steal and carry away the goods, wares, chattels or merchandise in said dwelling ...."

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: PER CURIAM.

text:
    Pedro BLANCO, Appellant, v. The State of FLORIDA, Appellee.
    No. 3D07-155.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.
    Pedro Blanco, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, C.J., and SUAREZ and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. RApp. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.