282 So.3d 374
La. Ct. App.2019Background
- On December 13, 2015, a white pickup truck spun its tires near Bozy's Lounge in Edgard; a brown 2000 Ford Crown Victoria pulled up nearby and a short black male exited and fired multiple shots at the truck.
- Victim Darville Washington was shot in the back of the neck, later identified Bartholomew in a six-person lineup, and video surveillance captured the shooter exiting the Crown Victoria and firing at the truck.
- Police recovered shell casings, vehicle damage consistent with gunfire through the rear and side seats, and a Louisiana ID bearing Cory Bartholomew’s name in the Crown Victoria; no firearm was recovered.
- Bartholomew was tried on attempted second degree murder and aggravated criminal damage to property; a jury convicted him on both counts and the court sentenced him to 40 years hard labor (attempted second degree murder) and 5 years concurrent (aggravated criminal damage).
- On appeal Bartholomew challenged: (1) sufficiency of evidence/specific intent to kill; (2) excessiveness of the 40-year sentence; (3) ineffective assistance for failing to object to an allegedly erroneous jury instruction; and (4) noted an error patent in the Uniform Commitment Order.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bartholomew) | Held |
|---|---|---|---|
| Sufficiency of evidence for attempted second degree murder | Evidence (victim ID, video, vehicle damage, shell casings, medical records) proves Bartholomew specifically intended to kill and committed overt acts | Only ballistic fragments hit the victim via truck damage; no proof of specific intent to kill; victim’s testimony about a lodged bullet was misleading/false | Conviction affirmed: viewed in light most favorable to State, jury rationally inferred specific intent to kill from conduct and evidence |
| Sentence excessive (40 years) | Sentence within statutory range; court considered PSI, nature of offense, danger to multiple occupants; judge properly exercised discretion | Sentence disproportionate given minor wounds; PSI overstated injuries; harsher sentence punished exercise of right to jury trial | Sentence affirmed: not constitutionally excessive given circumstances, danger to occupants, and comparable jurisprudence |
| Ineffective assistance for failure to object to jury instruction on intent | Jury ultimately was instructed the State must prove specific intent to kill; any earlier erroneous wording was harmless; overwhelming evidence of intent | Trial counsel should have objected when instruction improperly included intent to inflict great bodily harm as alternative to intent to kill | No ineffective assistance: error was harmless under controlling precedents and evidence of intent to kill was overwhelming |
| Error patent: Uniform Commitment Order (UCO) date error | N/A | UCO listed disposition and sentencing dates as same; transcript shows conviction date earlier | Remanded for correction of UCO disposition date to reflect correct conviction date (ministerial correction) |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (establishes standard for reviewing sufficiency of the evidence)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- State v. Hongo, 706 So.2d 419 (La. 1997) (erroneous jury instruction conflating intent to kill with intent to inflict great bodily harm subject to harmless-error analysis)
- State v. Bishop, 835 So.2d 434 (La. 2003) (specific intent to kill may be inferred from pointing and firing a gun at a person; erroneous intent instruction held harmless when evidence of intent to kill is overwhelming)
- State v. Raymo, 419 So.2d 858 (La. 1982) (sufficiency review can be applied to unchallenged counts to confirm statutory elements)
- State v. Bradstreet, 196 So.3d 876 (La. App. 5 Cir. 2016) (upholding 40-year sentences for attempted second degree murder where multiple shots endangered others)