STATE of Louisiana, Appellee v. Shon P. SHAW, Appellant.
No. 41,233-KA
Court of Appeal of Louisiana, Second Circuit
August 23, 2006
939 So. 2d 519
Before CARAWAY, DREW and MOORE, JJ.
Indigent Defender Board by Mary L. Harried, Shreveport, Louisiana Appellate Project by Edward K. Bauman, Lake Charles, for Appellant.
Paul J. Carmouche, District Attorney, Lea R. Hall, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
Shon Shaw was charged by bill of information with one count of attempted second degree murder and two counts each of second degree kidnapping and aggravated criminal damage to property arising from an incident in which he used his mother‘s car to ram his former girlfriend off the road. A jury convicted him of attempted manslaughter, and found him guilty as charged on all other counts. Adjudicated a third felony offender, Shaw was sentenced to 40 years at hard labor for attempted manslaughter, 80 years at hard labor without benefits for the second degree kidnappings, and 30 years at hard labor on the aggravated criminal damage to property charges, with all sentences to run concurrently. He now appeals: through counsel he urges insufficient evidence to convict and an illegal sentence, and by pro se brief he urges ineffective assistance of counsel and other sentencing errors. We affirm.
Factual Background
The kidnappings and car chase occurred shortly before midnight on June 26, 2004, on Red Fox Trail in west Shreveport. The incident began, however, earlier in the evening at the IHOP on Pines Road, where Karen Harris and some girlfriends were having a birthday dinner for one of the women. Karen had just called off a yearlong relationship with Shaw some two weeks earlier, but on June 26 she allowed Shaw to drive her home from her job at Church‘s Fried Chicken and they talked about getting back together. Karen was also good friends with Shaw‘s sister, Sheryl Jeter, who was present at the birthday dinner at IHOP.
Karen and Sheryl, as well as two of the other women present, Marvette Jones and Danielle Adams, testified that during the course of the evening, Shaw kept calling on his sister Sheryl‘s cell phone and asking to speak to Karen. Karen refused to meet with him that night, and he got mad; the other women confirmed that he sounded angry and that Karen quit taking his calls. At one point Shaw actually drove to IHOP looking for her, but she hid in the restroom until the police were called and Shaw left the parking lot.
Shaw went straight to his mother Jessica Jeter‘s house and told her that she needed to phone Karen on Sheryl‘s cell. Mrs. Jeter complied, telling Sheryl they needed to bring Karen home (to Mrs. Jeter‘s house). Shaw suddenly snatched the phone from his mother, screamed at Sheryl and Karen, and started hitting his mother in the head with the phone. Hearing this, Sheryl asked the women to come home with her; perhaps imprudently, they agreed. Sheryl let Shana Taylor drive her (Sheryl‘s) Lexus, while Karen and Marvette followed in Danielle‘s Nissan Altima. Shana pulled in the driveway behind Mrs. Jeter‘s Lincoln Town Car; Danielle parked the Altima in the street, at the end of the driveway.
When the women arrived, they saw Mrs. Jeter come out of the house to speak to Karen. However, Shaw came out and began shouting at his mother to get into the car; there were also words between Shaw and Karen, who remained in the back seat of the Altima. When Mrs. Jeter refused to get into the Town Car, he physically pushed her in and then jumped into the driver‘s seat. Danielle suspected he was going to back out, so she started to drive off, going down Red Fox Trail. With his mother still in the front seat, Shaw backed the Town Car around the Lexus, pulled onto Red Fox Trail and started to follow the Altima.
He took her on foot between some houses and into a wooded area, intermittently dragging her by the arm and hitting her. He led her behind the fire station on West 70th Street and Turner Elementary School, until they could hear police sirens drawing near. At this point she convinced him to let her go, and she ran to the Diamond Shamrock gas station near the Inner Loop to call the police.
As noted, Karen sustained two broken bones in her neck and multiple leg injuries; she testified that she took 1½ months to recover. Mrs. Jeter sustained a broken pelvis and head injuries; she testified she could not walk for several months. Both Mrs. Jeter and Danielle testified that their cars were totaled in the collision.
Over the next few days, Detective Oster interviewed the three women in the Altima and Mrs. Jeter and, on June 29, obtained an arrest warrant charging Shaw with four counts of attempted first degree murder. Shaw turned himself in to police on July 14 and waived his Miranda rights. In a recorded statement, he insisted he was not mad at Karen and denied calling her multiple times at IHOP. He said the women had all been at his mother‘s house and they were leaving to eat at the Whataburger on Bert Kouns when he lost control of his mother‘s car and accidentally rear-ended the Altima. He denied dragging Karen into the woods or harming her in any way, and said he left the scene because he “panicked” and did not know she was hurt. He also denied forcing his mother into the Town Car; insisting she was unconscious “the whole time,” he had no idea why she would say he had dragged Karen into the woods and hit her with a tree branch.
Shaw was initially charged with four counts of attempted first degree murder. In July 2005, the state amended the bill of information to charge him with the attempted second degree murder of Karen; the second degree kidnapping of Karen and of Mrs. Jeter; and the aggravated criminal property damage of Mrs. Jeter‘s Town Car and of Danielle‘s Altima. After a two-day trial, the jury returned the responsive verdict of attempted manslaughter of Karen, and convicted him as charged on the remaining counts.
The state then charged Shaw as a third felony offender. After an adjudication hearing, the court found him guilty as charged and sentenced him to 40 years at hard labor for the attempted manslaughter. The court also sentenced him to 80 years at hard labor, without benefits, for each count of second degree kidnapping, and 30 years at hard labor for each count of aggravated criminal damage to property. All sentences were to be served concurrently. After the court denied Shaw‘s motions for post verdict judgment of acquittal, new trial and reconsideration of sentence, Shaw took this appeal.
Discussion: Sufficiency of the Evidence
The state responds that Shaw‘s use of a speeding car and then a tree branch proved his specific intent to kill Karen. The state argues that photographs of the wrecked Altima, showing its rear end crushed all the way to the back seat where Karen was sitting, undermine any claim that the accident was minor and the damage mostly the result of hitting a tree. Further, the state cites Mrs. Jeter‘s testimony (that Shaw struck her first with a telephone and then with his fists, and then shoved her into the Town Car) and that of the women in the Altima (that Shaw dragged the injured and protesting Karen into the woods) supplied every essential element of the kidnapping charges. Finally, the state cites testimony of Ms. Jeter and Marvette Jones that the Town Car accelerated before ramming the Altima as sufficient to refute any claim of an accident.
The standard of appellate review 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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-3176 (La.5/20/03), 851 So.2d 921. This standard, now legislatively embodied in
To support a conviction for attempted manslaughter, the state must prove the defendant specifically intended to kill the victim and committed an overt act in furtherance of that goal. State v. Mitchell, 39,905 (La.App. 2 Cir. 2/17/05), 894 So.2d 1240, writ denied, 2005-0741 (La.6/3/05), 903 So.2d 457. Specific intent is a state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow from his acts or omissions.
In State v. Mitchell, supra, this court found that accelerating an automobile in the direction of a pedestrian was sufficient to prove a specific intent to kill. In the instant case, Karen was not a pedestrian, but she was a backseat passenger in the Altima that Shaw rammed from behind. Detective Oster testified, and the crime scene photos showed, that the rear bumper of the Altima was pushed almost into the back seat. This evidence is sufficient to show a specific intent to kill Karen, as well as an overt act in furtherance of that goal.
To prove second degree kidnapping under the facts of this case, the state must prove that the defendant forcibly seized and carried a person from one place to another, and that the victim was physically injured or sexually abused.
Similarly, Shaw told Det. Parker that he never laid a hand on Karen; however, he could not explain how she wound up at the Diamond Shamrock station. Notably, Karen, Mrs. Jeter, Danielle and Marvette uniformly testified that Shaw dragged Karen from the scene of the crash and, despite her obvious injuries, repeatedly thrashed her with a pine bough. This evidence is sufficient to prove the second degree kidnapping of Karen.
Aggravated criminal damage to property is defined as the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.
This assignment of error lacks merit.
Illegal Sentence
By his third assignment of error, Shaw urges his sentences under the habitual offender statute are illegal. Citing State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991), he contends that multiple counts arising out of a single criminal act or episode cannot be enhanced under the statute,
The state‘s position has merit. In State v. Johnson, supra, the court held that its earlier interpretation of the 1982 version of
Supplemental Assignments of Error
By pro se brief, Shaw has raised four supplemental assignments of error. The first urges that the trial judge erred in inquiring into Shaw‘s right to testify, and defense counsel frustrated that right, after he “unequivocally made known his desire that he will testify.” He contends that the judge‘s questioning violated his constitutional rights under State v. Hampton, 2000-0522 (La.3/22/02), 818 So.2d 720. His second assignment urges that this error is “not amenable to harmless error analysis.” Id.; State v. Dauzart, 99-3471 (La.10/30/2000), 769 So.2d 1206.
Shaw‘s argument lacks factual basis, as he stated on the record that he chose not to testify. Notably, both State v. Hampton and State v. Dauzart, supra, were applications for post conviction relief (“PCR“). Claims of ineffective assistance of counsel are more properly raised by application for PCR, as that procedure creates the opportunity for a full evidentiary hearing under
By his third supplemental assignment, Shaw urges the district court erred in sentencing him as a habitual offender. He contends, without elaboration, that the court “did not state for the record * * * what prior conviction or convictions will be used for sentencing enhancement.” The habitual offender bill of information, however, alleged that Shaw pled guilty to possession of a Schedule II controlled dangerous substance in June 1994 and to unauthorized use of a movable in January 1998, thus making him a third felony offender. At the habitual offender hearing in August 2005, the state introduced copies
By his final supplemental assignment of error, Shaw urges the district court erred in designating a particular place of commitment. He shows that at sentencing, the court ordered him “remanded to the Deputy Sheriff for transfer to Department of Corrections, Angola.” He contends this violated
In the recent case of State v. King, 41,083 (La.App. 2 Cir. 6/28/06), 935 So.2d 354, the district court sentenced the defendant as a second felony offender and remanded him “to the custody of the sheriff for transfer to the Department of Corrections, Angola.” On appeal, the defendant contended the reference to Angola was error, citing
Conclusion
On error patent review, we notice that the sentence for attempted manslaughter is illegally lenient in that it does not deny the benefits of probation, parole or suspension of sentence, as are the sentences for aggravated criminal damage to property in that they do not deny the benefit or probation or suspension of sentence. However, these omissions are automatically corrected by the operation of
We have reviewed the entire record and find nothing else we consider to be error patent. For the reasons expressed, the convictions, third felony adjudication and sentences are affirmed.
AFFIRMED.