State v. SimsState v. Sims
Roosevelt Sims was charged by bill of information with attempted second degree murder. He was tried by a jury, which returned a verdict of guilty to the responsive offense of aggravated battery, a violation of
FACTS
Defendant was charged with the attempted murder of Benjamine Theriot. Defendant and the victim were acquaintances of long standing. Defendant testified that various sources told him the victim had publicly stated that defendant was a police informant and, as a result, defendant feared for his life. The incident from which these charges arose occurred in the
Defendant claimed that he walked over to the car to talk to Theriot and try to dissuade him from repeating the accusation that defendant was an informant. He testified the victim told him, “You‘re worse than it should be worse and he ought to be dead.” Defendant further testified that he fired a warning shot into the air as he saw the victim slide across the front seat with a shiny object in his hand. He fired at the victim‘s legs when Theriot attempted to get out of the car. Defendant further testified that, as he was leaving, he saw the victim get out of the car. Defendant returned and shot Theriot again to prevent the victim from pursuing him. Defendant then walked across the street to his house.
During the altercation, Lyons left the scene to call the police. Defendant was apprehended minutes later as he returned. He had gone back to his house to reload the gun.
After his arrest, defendant gave a statement to the police in which he admitted that he shot Theriot but stated that he believed the victim had a weapon and was about to pursue him. A pair of scissors, which belonged to Theriot, was found on the passenger seat of Lyons‘s car. The victim testified that he used the scissors to cut and clean his fingernails and that he carried them with him at all times.
DENIAL OF CHALLENGE FOR CAUSE
[Assignments of error one and two]
By these assignments of error, defendant argues that the trial court erred by denying his challenges of two prospective jurors. In assignment of error number one, defendant contends that the court erred by denying his challenge of Raoul Soignet, who stated during the voir dire that he felt it would be difficult to give defendant a fair and impartial trial if defendant did not testify. In assignment of error number two, defendant submits the trial court erred by denying his challenge of Katie Parfait, who testified that she believed defendant must be guilty because he had been charged with a crime. Both of the jurors were excluded by peremptory challenges. Defendant exercised all of his peremptory challenges.
An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges.
During questioning by the court, Mr. Soignet testified that he would be affected by defendant‘s failure to take the stand. He indicated that his feelings were based in part upon his opinion that, if accused of a crime, he would want to explain his side. Upon further questioning, Mr. Soignet related
Defense counsel also questioned Mr. Soignet, asking him whether or not he would presume defendant was guilty if he failed to take the stand. Mr. Soignet responded that he understood the court‘s explanation and that he would not find defendant guilty because he did not want to testify.
Defendant challenged Mr. Soignet on the grounds that he would be unable to recognize the presumption of innocence. The court denied the challenge, stating it was satisfied that Mr. Soignet‘s responses indicated that he could be a fair and impartial juror.
The second challenged juror, Mrs. Parfait, initially indicated that she believed defendant must be guilty simply because he was on trial for the offense. However, when defense counsel asked her if she actually felt defendant must be guilty, she responded, “Well, I feel like we don‘t know the whole story of what he did wrong or why he‘s actually here.” Mrs. Parfait then advised the court that she could put her opinion out of her mind and require the state to prove defendant guilty.
A juror who is incapable of recognizing the defendant‘s presumption of innocence is not competent to serve. State v. Davenport, 445 So.2d 1190 (La.1984). However, these cases are more analagous to those in which a juror has voiced an opinion seemingly prejudicial to the defense but subsequently, upon further inquiry or instruction by the court, has demonstrated willingness and ability to decide the case impartially, according to the law and evidence. See State v. Bates, 397 So.2d 1331 (La.1981). A juror who has testified that he will recognize the defendant‘s constitutional right to remain silent and not hold that silence against the defendant is not subject to disqualification for cause. See State v. Governor, 331 So.2d 443 (La.1976). Therefore, defendant‘s challenge for cause of Mr. Soignet was properly denied. Mrs. Parfait‘s responses indicated that she was able and willing to judge the case on the evidence presented. Accordingly, the trial court did not err by denying defendant‘s challenges for cause. These assignments of error have no merit.
REPETITIVE QUESTIONS
[Assignments of error 3 and 4-A]
By these assignments of error, defendant submits that the trial court erred by overruling his objections to questions asked by the state during its cross-examination of defendant. In assignment of error three, defendant contends the court erred by overruling his objection to the state‘s inquiry concerning the reason defendant returned to his house and reloaded the gun. In assignment of error number four, defendant claims the trial court erred by overruling his objection to the state‘s questioning of defendant to ascertain why he did not retreat.
The state initially asked defendant why he reloaded the gun and returned to the scene. Defendant responded by claiming that he reloaded the gun as a precautionary measure, apparently fearing crowd violence. He did not explain why he returned, in light of his fear for his personal safety. The state then asked defendant whether or not he had reloaded the gun and was returning to the car when the police arrived. Defendant denied that he intended to approach the car. When asked
We find no abuse of discretion. Considering defendant‘s claims of self-defense and fear of injury to himself, the state‘s questions, designed to reveal why defendant reloaded his gun and returned to the scene, were relevant. The court correctly found that defendant had not answered the questions as to why he returned to the scene with a loaded gun. The question was not repetitive, but harmless error.
Defendant further claims the court erred by overruling his objection to the state‘s questions concerning his ability to retreat from the situation. Defendant readily admitted that he was aware that the victim did not have a firearm. He also admitted that he could have stepped back inside the fenced yard, where he would have been protected by various dogs that belonged to his friends, including a pit bull. Defendant further admitted that he could have used the gun to keep the victim at bay during his retreat. The state then attempted to determine why defendant shot the victim, who was seated in the car; then shot him again when the victim attempted to get out of the car; and left the safety of his home to return to the scene with a reloaded weapon. Defendant again claimed the question was repetitive. The court overruled the objection. We find no abuse of discretion. Despite the state‘s questions (which were somewhat indirect), defendant‘s failure to retreat was never explained. This assignment of error has no merit.
SUFFICIENCY OF THE EVIDENCE
[Assignment of error 4-b]
By this assignment of error, defendant submits the evidence is not sufficient to support the verdict. Defendant does not set forth any manner in which he claims the evidence was deficient.
Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.
The standard of review for the sufficiency of the evidence is whether or not, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state presented evidence supporting each element of the offense beyond a reasonable doubt. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). We find the evidence herein to be sufficient.
Defendant testified that he shot the victim three or four times with a firearm. He repeatedly claimed that he had no intention to kill the victim, evidenced by the fact that he shot the victim in the legs. However, defendant also testified that, as he was walking away from the car, he saw the victim open the door and slide out of the car. Defendant admitted that he returned to the car and shot the victim again. We find, therefore, that any rational trier of fact could have found that the state presented evidence of each element of the offense beyond a reasonable doubt.
DENIAL OF MOTION FOR A NEW TRIAL
[Assignment of error number 5-a]
By this assignment of error, defendant submits that the trial court erred by denying
EXCESSIVE SENTENCE
[Assignment of error number 5-c]
By this assignment of error, defendant submits that the trial court imposed an excessive sentence. After finding that defendant was a habitual offender, the court imposed the maximum sentence of twenty years at hard labor. However, finding error patent on the face of the multiple offender proceedings, this court is required to remand this matter for resentencing.
The record reflects that, on the date of the multiple offender hearing, defense counsel advised the court that the defendant intended to waive the hearing and intended to confess that he was the same person who had been convicted of a prior felony. The trial court advised defendant that he had a right to a hearing in which the state was required to prove that he was the same person who had previously been convicted. However, the court did not advise defendant that he had a right to remain silent during the proceedings. This failure of the trial court constitutes error patent on the record and requires that the habitual offender sentence be vacated. State v. Johnson, 432 So.2d at 817; State v. Lapworth, 517 So.2d 485 (La.App. 1st Cir.1987).
CONVICTION AFFIRMED; HABITUAL OFFENDER ADJUDICATION VACATED AND CASE REMANDED FOR RESENTENCING.
SHORTESS, J., concurs because of the majority treatment of assignment of error # 3 but feels it was harmless error.