State v. DavisState v. Davis
Defendant was charged with two counts of attempted first degree murder. A jury convicted him of one count of attempted second degree murder. He was adjudicated a third felony offender and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. Defendant now appeals his conviction and sentence, urging eleven assignments of error. We affirm the conviction, vacate the sentence and remand for resentencing.
Two probation and parole officers, Bob Phillips and Joe Evans, were injured by gunfire from the defendant, John Wesley Davis, after entering Davis‘s home to investigate a tip that he possessed narcotics in violation of his parole.1 Officer Phillips received two gunshot wounds in the leg during a scuffle and gunfight with the defendant on defendant‘s waterbed, while officer Evans received a minor injury to the head when a stray bullet traveled through the bedroom wall into the hall where Evans was located. Davis was also seriously injured in the gunfight from three bullets entering his body in the groin area. He was subsequently charged with two counts of attempted first degree murder pursuant to
After extensive deliberation marked by several requests for further clarification of the jury instructions from the court, the jury rendered a responsive verdict that Davis was guilty of attempted second degree murder of Bob Phillips, and acquitted Davis of the charge that he attempted to kill Joe Evans.
Defendant filed a motion for a post-verdict judgment of acquittal or for a new trial, claiming that the jury‘s verdict of attempted second degree murder indicated that they found that Davis did not know Phillips was a probation officer, in which case the defendant was entitled to an acquittal. Although attempted second degree murder is one of the enumerated responsive verdicts for attempted first degree murder under
Before sentencing, a multiple offender bill was filed by the district attorney. Finding that the defendant was a third felony offender under
Defendant raises eleven assignments of error in his appeal. We will consider each assignment in the order presented.
Assignment No. 1
Incorrect Jury Instruction on Justification
Defendant alleges that the trial court erred by failing to inform the jury that the defendant was only obliged to prove justification by a preponderance of the evidence rather than beyond a reasonable doubt. In support, defendant cites State v. Zeno, 469 So.2d 337 (La.App. 2d Cir.1985), writ denied, 474 So.2d 1303 (La.1985) wherein this court, citing the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), stated 469 So.2d at p. 340:
The relevant inquiry is whether, under the facts and circumstances of this case, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have concluded either that the defendant failed to prove by a preponderance of the evidence that he was justified in shooting ... or that the State proved beyond a reasonable doubt that the defendant did not shoot ... in self-defense. (emphasis in original)
In its initial instruction to the jury, the trial court read to the jury the provisions of
The State of Louisiana is required to prove beyond a reasonable doubt that the defendant‘s use of force or violence was not in response to a forcible offense or crime against the defendant or the person of another or to prevent a forcible offense or crime of trespass against property in the lawful possession of the defendant.... The State of Louisiana is required to prove beyond a reasonable doubt that the defendant brought on the difficulty if the defendant claims he was acting in self defense.
(Record, p. 365)
If anything, the defendant in this case received the benefit of the more stringent burden placed on the state to show beyond a reasonable doubt that the defendant did not act in self-defense. We also note that the defendant neither proposed nor objected to the trial court‘s jury instruction regarding the burden of proof of justification. Nor did the defendant object that the trial court did not enumerate the factors which the jury could consider in determining justification. As defendant made no objection or suggestion on either of these issues at trial, he may not raise them now after verdict has been rendered.
This assignment of error is without merit.
Assignment 2
Failure to Instruct Jury on Transferred Justification After Jury Request
As previously stated, after the jury began deliberation, it returned several times for further clarification of the law. On returning the first time, the jury presented the court with several questions from several members. They did not request a supplemental charge on transferred justification. The court then simply read the original charge on the elements of the crimes and the definitions of intent. Included in this repeated charge was a brief charge on transferred justification. The jury retired to deliberate
As previously indicated, justification was later explained to the jury in detail. Moreover, the defendant was acquitted of the charge pertaining to officer Evans, which is the only charge to which the instruction on transferred justification was relevant. We see no error, but if so, it was harmless.
This assignment of error is without merit.
Assignment 3
Failure to Declare a Mistrial
The jury‘s deliberations were volatile. Some jurors walked out of the jury room and refused to deliberate while other jurors reportedly were “yelling [and] screaming.” At one point, the court asked the jury foreperson about the possibility of a verdict; she said that chances were “extremely remote.” However, the foreperson later indicated that the problems were due to the jury‘s lack of understanding of the law and never said that the jury was hopelessly deadlocked.
Defendant now complains that the trial judge should have declared a mistrial because of the acrimonious deliberations. The defendant did not move for a mistrial. Because he did not so move at trial, he cannot complain of it here.
Assignments 4, 5, and 6
Failure to Exclude Inapplicable Responsive Verdicts; Insufficient Evidence
Assignments of error 4, 5, and 6 are related. In assignment 4, defendant asserts that the trial judge should not have read any of the responsive verdicts (which includes attempted second degree murder) set forth in
LSA-C.Cr.P. Art. 814 C states:Upon motion of the state or the defendant, or on its own motion, the court shall exclude a responsive verdict listed in Paragraph A if, after all the evidence has been submitted, the evidence, viewed in a light most favorable to the state, is not sufficient reasonably to permit a finding of guilty of the responsive offense.
The crux of defendant‘s argument is that a verdict of guilty of attempted second degree murder constitutes an acquittal of the “greater” offense of attempted first degree murder.
We note that the defendant made no objection to the trial court‘s inclusion of the responsive verdicts at the time jury instructions were given. In State v. Schrader, 518 So.2d 1024, 1034 (La.1988), the supreme court stated that “absent a contemporary objection, a defendant may not complain if jurors return with a legislatively approved responsive verdict, whether or not that verdict is supported by the evidence.” The Schrader court stated that such a verdict recognizes both the legitimacy of a “compromise” verdict and comports with the responsive verdict scheme of
In the instant case, there was sufficient evidence to support the charge. Testimony was presented that would indicate that the defendant should have known the officers were peace officers. The officers announced that they were from probation and parole when they entered the house. They were wearing official jackets adorned with official insignia. Finally, testimony from Davis‘s girlfriend (now wife) and son regarding statements made by Davis to the effect that he would never go back to prison could be construed from their context to mean he would not be taken alive. In short, the evidence supports the charge. Accordingly, these assignments of error are without merit.
In Assignment 6 defendant contends the trial court erred in denying his motion for post-verdict judgment of acquittal or in denying him a new trial. Again, defendant contends that the verdict of attempted second degree murder constitutes an acquittal of the charge. Accordingly, defendant contends that he is entitled to a post-verdict motion of acquittal pursuant to
The evidence in this case when viewed in a light most favorable to the state, supports the verdict. Defendant contends that a verdict of attempted second degree murder is not supported by the evidence because the state only produced evidence of attempted murder of a peace officer, an element absent in attempted second degree murder.
The unstated proposition of the defendant is that an acquittal of the attempted first degree murder charge means that the jury found that the defendant was justified in shooting the officers or that he reasonably believed he was acting in self-defense. This conclusion, while appealing from a strictly conceptual standpoint, does not necessarily follow.
In this case, the distinction between attempted first degree murder and attempted second degree murder is that the victims of the first offense, i.e., peace officers, constitute a smaller class than the victims of the second offense, i.e., human beings. Stated differently, all peace officers are human beings, but not all human beings are peace officers. Likewise, specific intent to kill a peace officer includes the specific intent to kill a human being, while specific intent to kill a human being does not necessarily include the specific intent to kill a peace officer. Hence, it necessarily follows, that if there is sufficient evidence to establish the specific intent to attempt to kill a peace officer, then there must be sufficient evidence to establish the specific intent to kill a human being.
Defendant attempts to thwart this legislative scheme by equating the acquittal of the attempted first degree murder charge with a finding that the defendant acted in self defense. We believe, however, that had the jury believed the defendant acted in self-defense, they would have acquitted him. The jury verdict of attempted second degree murder appears to be a compromise. State v. Schrader, supra. Accordingly, this assignment is without merit.
Assignment 7
Motion for a New Trial
The motion for a new trial tests the weight of the evidence, a function for the
Assignment Nos. 8 and 9
Excessive Sentence/ Failure to Follow Felony Sentencing Guidelines
Defendant asserts that the trial court did not comply with the Sentencing Guidelines. This assertion is incorrect. The court considered Section 309 of the Guidelines, which specifies that the Habitual Offender Law controls sentencing whenever the district attorney establishes the offender‘s status as a multiple offender under
The trial judge imposed a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. The court found that Davis fit under
If the third felony and each of the two prior felonies involved a violation of
R.S. 14:34 ,R.S. 14:62.1 ,R.S. 14:65 ,R.S. 14:110(B) , or of any crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
Davis had a prior drug conviction for possession of methamphetamine with intent to distribute. It carried a maximum penalty of greater than 12 years and clearly may be used to enhance his sentence under this provision.
Davis‘s other predicate conviction, simple escape, raises an interesting question concerning the enhancement for a prior “violation of ...
Clearly the legislature did not intend that a conviction for simple escape be used to enhance a sentence in this fashion. Accordingly, we set aside the sentence and remand to the trial court for resentencing according to law.
Assignment 10
Failure to Produce Brady Material
Defendant filed a motion to examine the state‘s file on this case pursuant to
Assignment 11—Error Patent
The trial court gave the defendant improper notice of the time limits for post-conviction relief by failing to state that the three years to apply for post-conviction relief begins to run when his conviction is final. The court is directed to give the proper instruction upon resentencing.
Conclusion
For the foregoing reasons, the conviction of the defendant is affirmed. The sentence of the defendant is set aside, and the case is remanded to the trial court for resentencing.
CONVICTION AFFIRMED, SENTENCE REVERSED, REMANDED FOR RESENTENCING.