Defendant, Clifford Williams ("Defendant") appeals his conviction by a jury of second degree murder, a violation of La. R.S. 14:30.1, and his resulting life sentence without benefit of parole, probation or suspension of sentence. Finding no merit to his assignments of error on appeal, we affirm his conviction and sentence.
Procedural Background
On July 18, 2013, the State indicted Defendant for the March 25, 2013 second degree murder of fifteen-year-old Ralphmon Green ("victim"). Defendant pled not guilty at his arraignment on July 26, 2013. On August 26, 2014, the trial court denied Defendant's motions to suppress identification and statement.
Following numerous continuances, trial commenced on January 24, 2017, and concluded January 26, 2017, with the jury returning a verdict finding Defendant guilty of second degree murder. Defendant filed motions for post-verdict judgment of acquittal, new trial, and to reconsider sentence on March 28, 2017, all of which were denied on May 17, 2017. Immediatеly after denying those motions, the trial court sentenced Defendant to life imprisonment without benefit of parole, probation or suspension of sentence.
Defendant's motion for appeal was granted on May 17, 2017 and his appeal was timely filed.
Evidence at Trial
At trial, Officer Juan Lopez ("Officer Lopez") testified that he was the responding officer to a report of aggravated battery
Sheryl Green ("Ms. Green"), the victim's mother, testified that on the day her son was killed, her son had left home on his bicycle to go to her niece and nephew's house a short distance away. She reported that she learned her son had been shot when she received a phone call from Durrell Williams ("Durrell"), a friend of the victim's. Later that evening, she was visited by Durrell's mother, Tina Williams ("Ms. Williams") and Carl "Monster" Moore ("Mr. Moore"), who were both acquainted with her son. Both Ms. Williams and Mr. Moore stated that they witnessed her son get killed. Ms. Green identified an Instagram photograph that she provided to New Orleans Police Detective Travis Ward ("Det. Ward"). She had suggested Det. Ward use the photograph to investigate the man depicted in the middle of the photograph. She told Det. Ward the man in the photograph attended Clark High School.
Det. Ward, the lead detective on this case, recalled that the shooting occurred on March 25, 2013, at approximately 6:15 p.m. By the time Det. Ward arrived on the scene, the victim's body had been removed to University Hospital. Det. Ward identified photographs of the crime scene. Eight 9-millimeter shell casings were located at the scene, along with four bullets, three of which had been fired into the ground and the fourth, which was located and removed from a car parked near the scene. Additional bullets were later retrieved from the body of the victim. Det. Ward explained that the location of the bullets on the scene was important because they indicated that the shooter was firing down at the victim multiple times and at a distance.
Det. Ward separately interviewed Ms. Williams, Durrell, and Mr. Moore. Ms. Williams confirmed that she had witnessed the shooting. Ms. Williams, Mr. Moore and Durrell all described the shooter as having a medium build, "bright" skin with a small or thin beard. Det. Ward reported that none of these witnesses could provide him with the suspect's name. All three denied that the victim was armed at the time of shooting or that the victim did anything to indicate that he was armed at the time of the shooting. Det. Ward also testified that none of the witnesses on the scene reported that the victim had been armed with a firearm when he was killed. Det. Ward was unable to retrieve surveillance video of the area.
Further investigation revealed that the suspect was known as "Cliff" and that he attended Clark High School. School personnel identified the image of the suspect from the Instagram photo as Clifford Williams (Defendant). School personnel gave Det. Ward a high school picture of Defendant along with a biographical information sheet.
Det. Ward compiled a six-person photo lineup, which included Defendant's high school picture, and he showed the photo line-up to Ms. Williams. Ms. Williams identified Defendant as the shooter. Det. Ward
According to Det. Ward, Defendant was transported to police headquarters, where he was given his rights per Miranda .
Continuing his testimony, Det. Ward said his investigation revealed that a person named Ernest Cloud was present at the shooting and had encouraged Defendant to shoot the victim. Det. Ward learned that Ernest Cloud was on probation and was wearing an ankle monitor at the time of the shooting. Further, Det. Ward lеarned that the ankle monitor indicated Ernest Cloud was present in the area at the time the victim was shot. Det. Ward identified Ernest Cloud as the individual wearing white in the Instagram photo. When he gave his statement, however, Defendant denied that anyone named Ernest was with him at the time of the shooting.
On cross-examination, Det. Ward testified he learned the victim had been on the scene for a period of time prior to the shooting and that the shooting resulted from a dispute between the victim and Defendant that had begun about a month and a half prior to the victim's murder. Det. Ward learned during his investigation that, just before the shooting, six black males arrived in response to a phone call made by "Dominique." Among those six males were Mr. Moore, "Tigger," "Jermaine" and "Ruger," who were the victim's friends and who were believed to be members of the "Money Over Everything" gang. On redirect, Det. Ward indicated that gang members often denote their loyalty to a gang by getting tattoos on their hands, similar to those on Defendant's hands. Det. Ward further explained that gang members generally wage disputes with other gang members but the victim in this case was not known to be a member of any gang.
The State called Mr. Moore, who acknowledged currently being in jail for home invasion and having prior convictions of burglary and theft. Mr. Moore stated that he did not want to appear in court for fear of being labeled a "rat" and possibly
Mr. Moore acknowledged that he knew Ms. Williams and her son Durrell; however, Mr. Moore knew Durrell by the name of "Ruger." Just prior to the shooting, Ms. Williams received a telephone call asking her to drive to the 2100 block of Allen Street because, "Durrell was about to get into it with someone." Mr. Moore accompanied Ms. Williams to Allen Street where they saw the Defendant pointing a gun at the victim, with whom he was arguing. Mr. Moore positioned himself between the victim and Defendant, urging Defendant to put the gun down because "... it's not worth it... That's a little boy (referencing the victim) right there, man." According to Mr. Moore, the victim was unarmed when the gun was pointed at him, and he made no gesture or movement to indicate that he was armed. Defendant lowered his weapon, momentarily pointing it at the ground. At that point, someone with Defendant said: "Get at him [the victim]. You need to get at him." Defendant then started shooting at the victim. After the first shot, the victim fell down. Defendant continued to fire multiple shots at the victim and then ran away. Later that evening, Mr. Moore visited the victim's mother and told her he was present when the victim was shot. Thе next day, Mr. Moore gave a full recorded statement to the police.
The State called Durrell, who emphatically stated he did not want to testify in this matter. However, Durrell testified that he and the victim were friends and attended school together. On the day of the shooting, Durrell was with "Tigger" and "Nice" in the Seventh Ward when the victim told him that he (the victim) was "mean mugging" (making facial expressions) with somebody at the apartment complex. Durrell returned to the apartment complex pursuant to the victim's request. When Durrell arrived at the complex, he saw the victim arguing with Defendant. Shortly after, Durrell's mother, Ms. Williams, drove up to the complex with Mr. Moore and ordered Durrell to get into the car. He refused to comply. Defendant retrieved a gun from a car and pointed it at the victim. Durrell testified that Mr. Moore stepped in front of the victim to defuse the situation and Defendаnt lowered his gun. The victim said: "He brought that whole gun out here but he's not going to use it." One of Defendant's friends urged Defendant to "get at the [victim]." Defendant began shooting the victim and continued to shoot as the victim fell to the ground. Defendant then ran away. Durrell said that neither he, the victim nor Mr. Moore were armed at the time of the shooting. A few days after the shooting, he gave a statement to the police.
Ms. Williams testified that, on the day of the shooting, Durrell and the victim were together on Allen Street. Ms. Williams received a telephone call from her friend informing her that Durrell and "others" were arguing at the apartment complex in the 2100 block of Allen Street. Ms. Williams and Mr. Moore drove to the complex. Ms. Williams told Durrell and the victim to get into her car; however, they did not do so. Someone drove up and handed something to the person the victim had been arguing with. That person walked back to the victim and pointed a gun at him. At that point, Mr. Moore stood in front of the victim and convinced the gunman to lower his weapon. As Mr. Moore and Durrell had testified before her, Ms. Williams stated that someone urged the gunman to shoot, he shot the victim multiple times, even after the victim fell to the ground, and then the gunman ran away. Ms. Williams called 911. She testified that
Dr. Michael Defatta, the State's expert in forensic pathology, performed an autopsy on the victim's body and rendered a report of his findings. Dr. Defatta noted that the victim suffered four gunshot wounds - one each to his right arm, head, right chest and left leg. The fatal wounds were to the victim's head and chest.
Sgt. Mark Boudreaux, the State's firearm expert, testified he received a 9-millimeter weapon and eight 9-millimeter casings for testing. Boudreaux test fired the 9-millimeter weapon. He compared the rounds he test-fired to the eight 9-millimeter casings obtained from the crime scene and the victim's autopsy. He concluded that the all of the 9-millimeter casings he received were fired by the same gun, and that the gun was the same 9-millimeter weapon confiscated from Defendant.
The defense recalled Det. Ward, who confirmed that he took a statement from Durrell on March 29, 2013, during which Durrell said his nickname was "Ruger." Det. Ward stated that a "Ruger" was, to his knowledge, a type of firearm. He also remembered Durrell referring to guns as "burners." On cross-examination, Det. Ward clarified that Durrell's statement indicated three guns were on the scene of the shooting - the weapon used by Defendant, and the guns Durrell believed were in the possession of two of Defendant's associates. Det. Ward reaffirmed that Durrell never stated that he, Mr. Moore, or the victim were armed at the time of the shooting.
The next defense witness was Lamont Anderson ("Mr. Anderson"), who admitted to currently being incarcerated. Mr. Anderson recounted the events of March 23, 2013, stating that when he came home from school that afternoon, he and someone named "Dominique" got into an argument. Defendant stepped in to de-escalate the argument. Dominique and Defendant then walked away. Dominique then called the victim who arrived on the scene and began arguing with Defendant because he thought Defendаnt was the person who had argued with Dominique. The victim threatened Defendant and called him names. The victim then "went to reach - went to get a gun from Dominique." The victim clutched the gun in the waistband of his pants. When the shooting started, Mr. Anderson ran inside. He admitted he did not witness the actual shooting. Mr. Anderson also conceded that his sister and Defendant were involved in a dating relationship.
On cross-examination, Mr. Anderson stated that he was currently in jail with Defendant. Mr. Anderson said he lied when he told the district attorney on multiple occasions and told the detective right after the shooting that he did not see the victim at all on the day of the shooting. He also admitted he never told the detective that he saw the victim clutching a gun. Mr. Anderson stated that he was inside for some minutes "talking, fussing" with his mother before he heard the gunshots. He stated that he never saw any firearms on the day of the shooting. Insteаd, he said he only saw the victim holding the waistband of his pants. However, during further questioning, Mr. Anderson once again stated he saw "Dominique" give the victim a gun. However, Mr. Anderson stated Dominique
Errors Patent
A review of the record reveals one patent error. Defendant's motion for new trial was denied on May 17, 2017, after which the trial judge immediately sentenced Defendant.
La. C.Cr.P. art. 873 stаtes, in pertinent part, that if a motion for new trial is filed, sentence shall not be imposed until at least twenty-four hours after the motion is denied, unless the defendant expressly waives the delay. "[T]he failure to observe the twenty-four-hour delay mandated by Article 873 is harmless where the defendant does not complain of his sentence on appeal." State v. Duncan, 2011-0563, p. 8 (La. App. 4 Cir. 5/2/12),
In the instant case, the record does not indicate that Defendant waived the twenty-four-hour delay, and, Defendant does raise, in his fourth assignment of error, the claim that his sentence is unconstitutionally excessive. Nevertheless, "[a]bsent a showing that prejudice resulted from the failure to afford the statutory delay, reversal of the prematurely imposed sentence is not required." State v. Hutsell , 2017-0112 (La. App. 4 Cir. 4/18/18),
In the case sub judice , Defendant was convicted of second degree murder which mandates a sentence of life imprisonment without benefit of parole, probation or suspension of sentence. See La. R.S. 14:30.1. Because Defendant received the mandatory minimum under La. R.S. 14:30.1, the court's failure to observe the statutory delay is harmless error. State v. Green , 2010-1355, p. 12 (La. App. 4 Cir. 6/22/11),
Sufficiency of the Evidence
In his first assignment of error, Defendant argues the evidence is insufficient to support his conviction for second degree murder.
When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts apply the standard enunciated in Jackson v. Virginia ,
"The principal criterion of a Jackson v. Virginia review is rationality." State v. Mussall ,
State v. Egana , 1997-0318, p. 6 (La. App. 4 Cir. 12/3/97),
Second degree murder, as applicable in this case, requires evidentiary proof beyond a reasonable doubt to establish the killing of a human being "when the offender has specific intent to kill or to inflict great bodily harm." La. R.S. 14:30.1A(1). "Specific criminal 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). "Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant." State v. Bishop , 2001-2548, p. 4 (La. 1/14/03),
In this case, Defendant concedes that he killed the victim. However, he claims that he was justified in committing the killing as he allegedly shot the victim in self-defense. La. R.S. 14:20 defines a justifiable homicide, in pertinent part, as one "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." In a homicide case, when the defendant asserts he acted in self-defense, the State bears the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense. State v. Taylor , 2003-1834, p. 7 (La. 5/25/04),
Thus, the issue we must address is whether the State presented sufficient evidence beyond a reasonable doubt that the homicide was not justified.
At trial, the jury was presented with two versions of the circumstances leading up to the victim's shooting death. The State presented the testimony of Mr. Mоore, Durrell and Ms. Williams, each of whom testified that Defendant was the aggressor in the altercation. Although both the victim and Defendant were involved in a verbal confrontation, Ms. Williams testified that it was Defendant who escalated the conflict by retrieving a firearm from a nearby vehicle and returning to the scene to continue the argument with the victim. All three of the State's witnesses reported that Defendant was armed and the victim was not. Additionally, these witnesses reported that Defendant pointed the gun at the victim while the victim was unarmed, that the victim made no threatening gestures or physical contact toward Defendant, and the victim never physically behaved as if he was reaching for a weapon. Mr. Moore testified that, although he attempted to quell the dispute by standing between the victim and Defendant, Defendant raised his weapon and began shoоting after being urged to do so by one of his associates. Mr. Moore's testimony was corroborated by both Durrell and Ms. Williams.
The jury also heard testimony from the State's witnesses to indicate that Defendant fired multiple shots, including shots fired after the victim had fallen. Also, instead of reporting that he acted in self-defense at the time of the shooting, Defendant ran away from the scene of the crime.
Defendant argues, as evidence that he acted in self-defense, that he never denied shooting the victim but claimed self-defense immediately. Defendant's claim is belied by the record, however, as he initially denied being at the scene of the crime and denied that he even knew the victim. The jury heard and read his recorded statement and made its own credibility determinations. Defendant was heard admitting to the shooting of the victim, allegedly in self-defense, only after he was confronted by law enforcement with the significant evidence against him, including witnesses who placed him at the scene.
The defense's version of the shooting, on the other hand, centered on the theory that the victim, Mr. Moore and Durrell were affiliated with a gang named "Money Over Everything" but no definitive evidence supported this claim and, specifically, no evidence was offered to show the victim was a gang member. Although the defense attempts to attack the credibility of Mr. Moore and Durrell based on the fact they were both serving time for violent crimes, the jury was made aware of the witnesses' incarceration and crimes and made its own assessment of the weight to be given to their testimony. Also, the testimony of Ms. Williams corroborated Mr. Moore's and Durrell's accounts and the defense did not discredit her testimony.
Furthermore, '[t]he determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence." State v. Richards , 2011-0349, p. 9 (La. App. 4 Cir. 12/1/11),
Based upon the evidence the State presented at trial, we find a rational trier of fact could have found, beyond a reasonable doubt, that the killing carried out by Defendant was not justified. Moreover, under the standard of Jackson v. Virginia,
Right to Present a Defense
In his second assignment of error, Defendant maintains he was prevented from presenting a defense because the trial court precluded the introduction of the following evidence: 1) a photograph that allegedly depicted thе victim holding a gun; 2) evidence that the victim had a previous adjudication for a weapons offense; 3) evidence that the victim made threats on social media against Defendant; and 4) the testimony of defense witness, Torrey Lewis, purported to support that the victim had previously threatened Defendant. Defendant asserts that this evidence would have shown the bad character of the victim and prior threats made by the victim, and by ruling the evidence inadmissible, the trial court unfairly restricted his ability to present his self-defense claim.
In State v. Van Winkle , 1994-0947, p. 5 (La. 6/30/95),
A criminal defendant has the constitutional right to present a defense. U.S. Const. amend. 6 ; La. Const. Art. 1 § 16 ; Washington v. Texas ,, 388 U.S. 14 , 87 S.Ct. 1920 (1967) ; State v. Gremillion , 18 L.Ed.2d 1019 (La. 1989) ; State v. Vigee , 542 So.2d 1074 (La. 1988). Due process affords the defendant the right of full confrontation and cross examination of the State's witnesses. Chambers v. Mississippi , 518 So.2d 501 , 410 U.S. 284 , 93 S.Ct. 1038 (1973) ; State v. Mosby , 35 L.Ed.2d 297 (La. 1992). It is difficult to imagine rights more inextricably linkеd to our concept of a fair trial. 595 So.2d 1135
Evidentiary rules may not supersede the fundamental right to present a defense. Id. at p. 5,
In the instant case, Defendant submits that evidence of the victim's bad character or his threats supported a plea of self-defense,
A. Character evidence generally . Evidence of a person's character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
* * *
(2) Character of victim.
(a) Except as provided in Article 412,4 evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible ...
La. C.E. art. 404 (A)(2)(a) (emphasis added.)
In State v. Williams, 1996-1587, pp. 7-8 (La. App. 4 Cir. 4/16/97),
When a defendant pleads self-defense, evidence of the victim's dangerous character or of threats against the defendant is relevant to show the victim was the aggressor and that the defendant's fear of danger was reasonable. State v. Edwards,, 669 (La.1982) ; State v. Montz, 92-2073 (La. App. 4th Cir.2/11/94), 420 So.2d 663 , 824-825, writ denied, 94-0605 (La. 6/3/94), 632 So.2d 822 . 637 So.2d 499
For such evidence to be admissible, the defendant must first produce evidence that at the time of the incident the victim made a hostile demonstration or committed an overt act against him of such character that would have created in the mind of a reasonable person the fear that he was in the immediate danger of losing his life or suffering great bodily harm. State v. Gantt,, 1304 (La. App. 2nd Cir.1993), writ denied, 616 So.2d 1300 (La.1993). An overt act is any act which manifests to the mind of a reasonable person a present intention to kill or inflict great bodily harm. Edwards, 623 So.2d 1302 supra at 669 .
Once evidence of an overt act is established, evidence of the victim's threats to the defendant and of the victim's dangerous character are admissible: (1) to show the defendant's reasonable apprehension of danger justifying his conduct and (2) to help determine who was the aggressor. Edwards,supra at 670 .
If the purpose is to show the defendant's rеasonable apprehension of danger, it must be shown that the defendant knew of the victim's prior threats or reputation. Edwards,supra, at 670 ; State v. Eishtadt,, 1135 (La. App. 4th Cir.1988). Once this knowledge is established, evidence of the victim's character, both general reputation and specific threats or acts of violence against the defendant are admissible. Edwards, 531 So.2d 1133 supra, at 670 .
If the purpose is to show that the victim was the aggressor, there is no requirement that the defendant know of the victim's prior acts or reputation. Eishtadt,supra at 1135 .
(Emphasis in original).
Based upon the foregoing, before the trial court could admit character evidence
The evidence tending to establish an overt act must be "appreсiable." State v. Lee ,
In this case, the testimony of eyewitnesses presented by the State proved the victim was unarmed and did not make a hostile demonstration or commit an overt act against Defendant of such character that would have created in the mind of a reasonable person the fear that he was in the immediate danger of losing his life or suffering great bodily harm. The defense presented the testimony of Mr. Anderson, who reported for the first time at trial, having given contradictory statements to law enforсement and the district attorney on several occasions prior to trial, that the victim threatened to kill Defendant and that he witnessed the victim clutching a weapon during the verbal dispute between Defendant and the victim. However, Mr. Anderson's trial testimony was not given until after the defense had moved to admit and been precluded from admitting character evidence of the victim. The defense did not re-urge its argument that the evidence should be admitted after Mr. Anderson had testified. Thus, at the time the trial court's ruling was made, the only evidence before the court was the eyewitness testimony establishing that the victim was both unarmed and did not behave in a threatening manner toward Defendant and no overt act showing aggression on the part of the victim was presented. Based on the record before this Court, the trial court did not err by excluding character evidence of the victim at trial as there was no appreciable evidence of an overt act by the victim. This assignment of error has no merit.
Incomplete Record on Appeal
In his third assignment of error, Defendant claims his rights under the Fifth and Fourteenth Amendments to the United States Constitution were abridged by an incomplete record on appeal. Specifically, he complains the record does not contain a transcription of the bench conferences which occurred during trial,
Louisiana Constitution Article I § 19 guarantees a defendant a right of appeal "based upon a complete record of all evidence upon which the judgment is based." Additionally, La. C.Cr.P. art. 843 provides in pertinent part:
In felony cases, ... the clerk or court stenographer shall record all of the proceedings, inсluding the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.
"The trial judge is duty-bound to see that the court reporter makes a true, complete, and accurate record of the trial." State v. Higginbotham , 2011-0564, p. 6 (La. 5/6/11),
An incomplete record, however, is not in and of itself a reason for reversal, and an incomplete record may be adequate for full appellate review. State v. Bright , 2000-1255, p. 7 (La. App. 4 Cir. 2/6/02),
The Louisiana Supreme Court has enunciated a three-part standard for reviewing incomplete record claims. State v. Frank, 99-0553, pp. 20-21 (La. 1/17/01),
Defendant complains that the record lacks transcriptions of the bench conferences which occurred during trial. Specifically, Defendant lists the following instances where bench conferences were not transcribed: 1) a motion in limine handled on January 23, 2017, concerning evidence that the victim had a prior weapons conviction;
The Louisiana Supreme Court noted in State v. Deruise , 1998-0541, p. 14-15 (La. 4/3/01),
This court has never articulated a per se rule either requiring the recording of bench conferences or exempting them from the scope of La.C.Cr. P. art. 843 ; State v. Hoffman , 98-3118, (La.4/11/00),, 586. However, in Hoffman , we interpreted Article 843's requirement that "objections" and "arguments" be recorded as normally applying only to objections made in open court and the arguments of counsel in closing, because only these objections and arguments rise to a level of materiality sufficient to invoke Article 843. 768 So.2d 542 Id. We further determined in that сase that, similarly, Art. I., § 19's mandate that "evidence" be recorded does not encompass bench conferences; at least, not ones that do not satisfy the materiality requirements of La. Code Crim. Proc. art. 843.Id. at 587 .
In the case sub judice , Defendant does not establish that the lack of transcriptions of the bench conferences held by the trial court constitute material omissions nor does he show how the alleged omissions from the record have affected his substantive rights. The record evidence does not indicate that Defendant was prevented from presenting any relevant evidence or that the failure to record bench conferences had a discernible impact on the proceedings. Further, Defendant fails to allege or prove any specific prejudice suffered by him as a result of not having the bench conferences transcribed. The trial proceedings which led to the un-transcribed bench conferences were transcribed in their entirety, and the rulings on those objections are evident from the record. Inasmuch as Defendant has failed to articulate any prejudice, the failure to transcribe the bench conferences is, at most, harmless error. This claim lacks merit.
Unconstitutionally Excessive Sentence
Defendant's fourth assignment of error challenges the excessiveness of Defendant's sentence to life imprisonment without benefit of parole, probation or suspension of sentence under both the U.S. Constitution as well as the Louisiana Constitution. Defendant was found guilty of second degree murder and received the statutory mandatory minimum sentence for his crime.
The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment, while Article I, § 20 of the Louisiana Constitution of 1974 also prohibits the imposition of excessive рunishment. State v. Wilson , 2014-1267, p. 24 (La. App. 4 Cir. 4/29/15),
Defendant was eighteen years old at the time he committed the offense of second degree murder. He asserts, without legal support, that sincе he had only recently turned eighteen years of age, he is entitled to have his sentence imposed in consideration of Miller v. Alabama,
In Miller,
First, neither Miller nor the statutes enacted in light of Miller by the Louisiana Legislature authorize this Court to apply the leniency granted to juveniles to Defendant, who was an adult at the time of his offense. Additionally, review of Defendant's sentencing held on May 17, 2017 shows that the trial court did not enumerate reasons for the sentence imposed; however, the failure of the trial court to enumerate specifically for the record the factors considered and the basis for the sentence as required by Article 894.1 does not render the sentence invalid. Wilson , 2014-1267, p. 24,
The evidence in this case supports the sentence of life imprisonment. The testimony of the State's eyewitnesses established that the victim was unarmed at the time of the shooting, and further, that the victim made no threatening gesture to suggest he had a gun in his waistband. This testimony was unrefuted by any credible evidence.
Further, Defendant's action just prior to the shooting belies his argument that he was in fear for his life at the time he encountered the victim. The testimony offered at trial shows Defendant walked away from the argument with the victim and retrieved the weapon that he used to kill the victim. Although a third party tried to diffuse the conflict and was able to get Defendant to lower his wеapon, Defendant began shooting the victim after he was encouraged to do so by one of his associates. Defendant then stood over the victim and continued to fire the weapon even
For all of the foregoing reasons, we affirm Defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED
Notes
Det. Ward subsequently discovered that the high school picture given to him by school personnel was, in fact, a picture of Defendant, but that the biographical information sheet accompanying that photo belonged to a second "Clifford Williams," who was also a student attending Clark High School. Det. Ward discovеred the error when he interviewed the second "Clifford Williams."
Miranda v. Arizona ,
Det. Ward's investigation established that Defendant did not have a permit to carry a concealed weapon.
La. C.E. art. 412 applies to sexual assault cases, inapplicable here.
On September 18, 2018, this Court ordered the court reporter in this case to prepare and file the transcripts of the in-chambers arguments heard on the State's motion in limine conducted on January 23, 2017, and all bench conferences held during this trial, or certificates of unavailability within thirty days of the order. On October 24, 2018, the court reporter filed a transcript of the motion in limine at which the court excluded the juvenile victim's arrest record. The court reporter also included a certificate of unavailability concerning the bench conferences.
As previously stated, a transcription of the January 23, 2017 motion hearing was subsequently provided by the court reporter.