ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 11-4939, DIVISION "O" HONORABLE ROSS P. LADART, JUDGE PRESIDING
PAUL D. CONNICK, JR. DISTRICT ATTORNEY Twenty-fourth Judicial District Parish of Jefferson TERRY M. BOUDREAUX MATTHEW CAPLAN VINCENT J. PACIERA, JR. ASSISTANT DISTRICT ATTORNEYS COUNSEL FOR PLAINTIFF/APPELLEE
SEAN GRIFFIN, DOC# 328651 IN PROPER PERSON Louisiana State Penitentiary Angola, Louisiana 70712 DEFENDANT/APPELLANT MARGARET S. SOLLARS ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLANT
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson and Stephen J. Windhorst
Defendant, Sean Griffin, was convicted of second degree murder of Douglas Crayton on count one, and of the responsive verdict of attempted possession of a firearm by a convicted felon on count two. Defendant was resentenced on count one, second degree murder, to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; and on count two, attempted possession of a firearm by a convicted felon to seven years and six months imprisonment at hard labor. The trial court ordered the sentences to run concurrently with one another and consecutively with any other sentence defendant was serving at the time of sentencing. Defendant was ordered to pay a fine of $500.00 on count two and all court costs. For the reasons that follow, defendant's convictions and sentences are affirmed, and this case is remanded for correction of commitment.
On August 28, 2011, Frederick Williams was living in an apartment located at 251 Barry Street, and the Kingfish Lounge was located in front of his residence. At about 12:30 A.M., Mr. Williams and Tiffany Noel were talking outside of Mr. Williams' residence when defendant walked up and asked Ms. Noel about Mr. Crayton's whereabouts. Ms. Noel turned around and attempted to walk away. Defendant grabbed Ms. Noel's shirt, pulled her hair, and "smacked" her. Ms. Noel fell down and defendant "smacked her a few more times." Mr. Williams picked Ms. Noel up.
Although Mr. Crayton was not present when the argument began, he subsequently ran out of a truck in the parking lot and began fighting with defendant. While Mr. Crayton and defendant were "tussling, " Mr. Williams heard defendant state, "I'm going to kill you." Defendant and Mr. Crayton were wrestling with a gun, when Mr. Crayton knocked the gun out of defendant's hand and into the parking lot. Defendant, Mr. Crayton, and Mr. Williams ran towards the gun. Mr. Williams and Mr. Crayton did not attempt to pick up the gun. Defendant picked up the gun, shot Mr. Crayton and fled.
COUNSELED ASSIGNMENTS OF ERROR
In his third counseled assignment of error, defendant contends that his conviction cannot stand because the State failed to prove beyond a reasonable doubt that he did not act in self-defense. Defendant claims that he shot the victim to prevent great bodily harm or even death to himself. Defendant argues that under the circumstances, retreat was not an option, especially when it was two individuals against one. Defendant asserts that any reasonable person would have feared for their safety and concluded that the force used was necessary to stop Mr. Crayton's advancement.
In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or as in this case, a mixture of both, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt when that evidence is viewed in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal. 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert, denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).
Defendant was convicted of second degree murder of Mr. Crayton. Second degree murder is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1A(1). Specific 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). The determination of specific intent is a question of fact. State v. Durand. 07-4 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034, writ denied, 07-1545 (La. 1/25/08), 973 So.2d 753. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Hoffman, 98-3118 (La. 4/11/00), 768 So.2d 542, 585, cert, denied. 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State v. Batiste, 06-869, (La.App. 5 Cir. 4/11/07), 958 So.2d 24, 27.
A positive identification by only one witness is sufficient to support a conviction. Neal, 796 So.2d at 658. Mr. Williams testified that defendant was the shooter, identified defendant as the shooter in the surveillance video, and identified defendant at trial as the shooter. The jury obviously accepted Mr. Williams's testimony in which he implicated and identified defendant as the perpetrator. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. Id. The evidence was legally sufficient to prove defendant's identity as the shooter.
Detective Zanotelli testified that Mr. Williams, Ms. Noel, and Tiffany Frey stated that defendant shot Mr. Crayton. Mr. Williams testified that he heard defendant threaten Mr. Crayton by stating, "I'm going to kill you." Mr. Williams also testified that he saw defendant with a gun and did not see Mr. Crayton with a gun. Dr. Garcia testified that Mr. Crayton's cause of death was two gunshot wounds, one gunshot to the wrist and the other to the abdomen. She testified that both wounds could have been caused by a single projectile. Further, defendant testified that he picked up the gun and fired one shot at Mr. Crayton. Considering the foregoing, a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to find that defendant had the specific intent to kill or inflict great bodily harm.
La. R.S. 14:20A(1) provides that a homicide is justifiable "When 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." When a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Reed, 11-507 (La.App. 5 Cir. 2/14/12), 88 So.3d 601, 607, writ denied, 12-644 (La. 9/14/12), 97 So.3d 1014. The fact that an offender's conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. La. R.S. 14:18; State v. Sparkman, 13-640 (La.App. 5 Cir. 2/12/14), 136 So.3d 98, 106.
La. R.S. 14:21 provides, "A person who is the aggressor or who brings on a difficulty cannot claim self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know his desire is to withdraw and discontinue the conflict." While there is no unqualified duty to retreat, the possibility of escape from an altercation is a recognized factor in determining whether the defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. Sparkman, 136 So.3d at 107; State v. King, 11-767 (La.App. 5 Cir. 2/28/12), 88 So.3d 1147, 1153, writ denied, 12-660 (La. 9/14/12), 99 So.3d 35.
The determination of a defendant's culpability rests on a two-fold test: 1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and 2) whether deadly force was necessary to prevent the danger. State v. Sinceno, 12-118 (La.App. 5 Cir. 7/31/12), 99 So.3d 712, 720, writ denied, 12-2024 (La. 1/25/13), 105 So.3d 713. The jury is the ultimate fact-finder in determining whether the State negated self-defense beyond a reasonable doubt. Id.
The State presented evidence to negate defendant's claim of self-defense beyond a reasonable doubt. Mr. Williams testified that he did not observe Mr. Crayton threaten defendant and he did not observe him with a gun. Mr. Williams also testified that Mr. Crayton did not attempt to pick up the gun after it was knocked from defendant's hand. The surveillance video also shows that Mr. Crayton did not attempt to pick up the gun, and that Mr. Crayton appeared to be backing away from defendant at the time defendant shot him.
On the other hand, defendant testified Mr. Crayton struck him with a gun and threatened to kill him. Defendant also testified that he fired one gunshot to defend himself because Mr. Crayton said he was going to kill him. Defendant testified that he fled the scene because Ms. Frey stated that the police were going to kill him.
The jury heard defendant's conflicting testimony and obviously believed the version of events established by the State's witnesses. The trial court properly instructed the jury regarding self-defense. The jury is the ultimate fact-finder in determining whether the State negated self-defense beyond a reasonable doubt. Sinceno, supra. Moreover, the credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Credibility of witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. We find that the evidence presented was sufficient for the jury to conclude that the State had negated defendant's claim of self-defense beyond a reasonable doubt regarding the second degree murder of Mr. Crayton.
Accordingly, we find defendant's third counseled assignment of error to be without merit.
In his first counseled assignment of error, defendant contends that the trial court erred by failing to quash the indictment because the recent amendment to the Louisiana Constitution rendered La. R.S. 14:95.1 unconstitutional.
Defendant argues that La. R.S. 14:95.1 is unconstitutional after the ratification of the recent constitutional amendment in 2012 because the statute restricts a felon's right to carry a handgun without a sufficient State interest to infringe upon that right. Defendant asserts that the statute exempts various classes from its application and thereby denies defendant due process and equal protection under the law. Defendant further asserts that it is unclear whether he was under State supervision at the time of the Mr. Crayton's death and, therefore, he had the right to carry a firearm.
Before its recent amendment, Article 1, § 11 of the Louisiana Constitution provided: "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." State v. Draughter, 13-914 (La. 12/10/13), 130 So.3d 855, 862. After the 2012 amendment, this section of the Louisiana Constitution now requires a strict scrutiny standard. The 2012 amendment provides that: "The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny." The effective date of this new amendment was December 10, 2012. Draughted 130 So.3d at 862; State v. Williams, 13-732 (La.App. 5 Cir. 3/26/14), 138So.3d 727, 730.
Generally, legislation has prospective effect from its effective date. The Draughter court found that the amendment to Article 1, § 11 of the Louisiana Constitution has retroactive effect to cases pending direct review or not yet final on the date the amendment became effective. Draughter, 130 So.3d at 864; See also, Williams, 138 So.3d at 730-31.
Defendant violated La. R.S. 14:95.1 on August 28, 2011, prior to the effective date of the constitutional amendment. Defendant's case was still pending on direct review at the time the amendment became effective. Thus, under Draughter, the amendment has retroactive effect in this case. See Williams, 138 So.3dat731.
The Louisiana Supreme Court recently held in State v. Eberhardt, 13-2306 (La. 7/1/14), 145 So.3d 377 that La. R.S. 14:95.1 is not unconstitutional as violative of La. Const, art. I, § 11. The Court found that the 2012 amendment of the La. Const, art. I, § 11 did not have an effect of a change in the nature of the right to bear arms by adding the term "fundamental" to its description. Eberhardt, 145 So.3d at 383 (citing State v. Webb, 13-1681 (La. 5/7/14), 144 So.3d 971, 977 n.3). The Court also recognized that the right to keep and bear arms, like other rights guaranteed by the Louisiana Constitution, is not absolute. Id. at 383.
The Court found that La. R.S. 14:95.1 serves a compelling governmental interest that has long been jurisprudential^ recognized and is grounded in the legislature's intent to protect the safety of the general public from felons convicted of specified serious crimes, who have demonstrated a dangerous disregard for the law and the safety of others, and who present a potential threat for further or future criminal activity. Id. at 386. The Court further found that the law is narrowly tailored in its application to the possession of firearms or the carrying of concealed weapons for a period of only ten years from the date of completion of sentence, probation, parole, or suspension of sentence, and to only those convicted of the enumerated felonies determined by the legislature to be offenses having the actual or potential danger of harm to other members of the general public. Id. at 385.
In Eberhardt, the Court noted that the defendants reoffended within a relatively short period of time following the completion of previously imposed State supervision. The Court found that the defendants illustrated the principles of La. R.S. 14:95.1, that certain convicted felons have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity and are more likely than non-felons to engage illegal and violent firearm use. The Court found that the defendants' challenges to the constitutionality of La. R.S. 14:95.1 had no merit. Eberhardt, 145 So.3d at 386.
The record reflects that defendant pled guilty to possession of cocaine in Orleans Parish on March 18, 2008, his four-year sentence was suspended, and he received drug court probation. On May 7, 2009, his probation was revoked, and defendant was ordered to serve his original sentence of four years at hard labor. At the time of the offense in the present case, on August 28, 2011, defendant was under State supervision. La. R.S. 14:95.1, as applied to a convicted felon still under State supervision, does not unconstitutionally infringe upon the right to bear arms secured by Article 1, § 11 of the Louisiana Constitution. Draughter, 130 So.3d at 868; see also, Williams, 138 So.3d at 731.
Even if defendant was not under State supervision at the time of the offense, defendant reoffended within a relatively short period of time following the completion of his previously imposed State supervision. Defendant's probation was revoked on May 7, 2009, regarding his prior conviction of possession of cocaine, and he was charged with committing a violation of La. R.S. 14:95.1 on December 29, 2011, approximately two-and-a-half years later. Therefore, defendant illustrated the principles of La. R.S. 14:95.1, that certain convicted felons have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity and are more likely than non-felons to engage in illegal and violent firearm use.
Accordingly, we find that defendant's challenge to the constitutionality of La. R.S. 14:95.1 is without merit. The trial court did not err in denying defendant's motion to quash the indictment. Defendant's first counseled assignment of error number is therefore without merit.
In defendant's second counseled assignment of error, defendant contends that the trial court erred in failing to grant the defense's challenge for cause to Allen Dyess. Defendant argues that the trial court committed reversible error when prospective juror, Allen Dyess, was allowed to remain in the jury venire although his father at one time supervised the lead detective in this case, Detective Zanotelli. Defendant asserts that Mr. Dyess' responses and relationship with law enforcement rendered him incapable of being fair and impartial despite his protestations to the ...