[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 512-031, SECTION " I" . Honorable Karen K. Herman, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Chief of Appeals, Christopher J. Ponoroff, Assistant District Attorney, New Orleans, LA, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.
Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR APPELLANT/DEFENDANT.
(Court composed of Judge Roland L. Belsome, Judge Paul A. Bonin, Judge Sandra Cabrina Jenkins).
[2014-0406 La.App. 4 Cir. 1]
Paul A. Bonin, Judge.
David L. Miller appeals his conviction for the second degree murder of Curtis Timmons, a violation of La. R.S. 14:30.1. Mr. Miller assigns three errors. He first asserts that the evidence was insufficient to sustain the guilty verdict. Second, Mr. Miller argues that the trial judge erred when she permitted the prosecution to elicit testimony from a NOPD homicide detective concerning the detective's understanding of justifiable homicide. Third, Mr. Miller argues that the trial judge erred when she granted the prosecution's challenge for cause of a venireman, and in denying him the right to conduct further voir dire of the venireman in chambers during the jury selection conference.
We have reviewed Mr. Miller's first assignment under the well-known Jackson v. Virginia standard. Conceding that he shot Mr. Timmons, Mr. Miller does not argue that the essential elements of second degree murder were not proven beyond a reasonable doubt. Rather, Mr. Miller asserts that the prosecution failed to prove beyond a reasonable doubt that his actions were not justifiably taken in self-defense. We conclude, after viewing the facts in the light most [2014-0406 La.App. 4 Cir. 2] favorable to the prosecution, that any rational trier of fact could find that the prosecution proved each and every essential element of the offense of second degree murder beyond a reasonable doubt, and that Mr. Miller's killing of Mr. Timmons was not justifiable.
Alternatively, Mr. Miller argues that the jury erred in failing to return a verdict of the lesser offense of manslaughter because he showed by a preponderance of the evidence that his killing of Mr. Timmons was committed in a sudden heat of passion, or heat of blood, caused by provocation sufficient to deprive an average person of his self-control and cool reflection. After reviewing the judgment, we conclude that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that Mr. Miller did not prove the mitigating factors entitling him to a judgment of manslaughter by a preponderance of the evidence. See State v. Lombard, 486 So.2d 106, 110-111 (La. 1986); State v. Pernell, 13-0180, p. 9 (La.App. 4 Cir. 10/2/13); 127 So.3d 18, 26.
We have reviewed Mr. Miller's second assignment of error under an abuse of discretion standard and conclude that the trial judge erred when she allowed the prosecution to elicit testimony from an investigating detective which, in essence, conveyed to the jury his opinion on Mr. Miller's guilt. Despite this finding, we conclude, in light of the record, that this error was harmless, thus precluding our reversal of Mr. Miller's conviction and sentence on this basis.
[2014-0406 La.App. 4 Cir. 3] We have, likewise, reviewed Mr. Miller's third assignment of error under the abuse of discretion standard and conclude that the trial judge did not abuse her discretion in granting the prosecution's challenge for cause or in denying his request to conduct additional in chambers voir dire of the prospective juror. In addition, we have examined the entire record for errors patent and have detected none bearing upon the Mr. Miller's conviction. 
Accordingly, we affirm Mr. Miller's conviction and sentence. We explain our decision in greater detail below.
On June 7, 2012, an Orleans Parish Grand Jury indicted Mr. Miller for the second degree murder of Mr. Timmons, a violation of La. R.S. 14:30.1. Trial before a twelve-person jury was held on January 30-31, 2013, and Mr. Miller was found guilty as charged. Mr. Miller filed a motion for new trial on March 7, 2013, which was denied prior to sentencing on November 8, 2013. The trial judge subsequently sentenced Mr. Miller to life imprisonment at hard labor, without [2014-0406 La.App. 4 Cir. 4] benefit of parole, probation, or suspension of sentence. Mr. Miller then sought timely appellate review of his conviction.
David Miller shot and killed Curtis Timmons on June 23, 2010. The genesis of Mr. Timmons's killing was a dispute between neighbors over the inadvertent blowing of grass clippings into the yard of Shawne Proctor, Mr. Timmons's girlfriend. Mr. Miller, who resided at 5189 Basinview Drive in New Orleans, testified that he owned and operated, along with two employees, a lawn cutting business that serviced approximately twenty-two rental units and fifteen homes in the area. Mr. Miller had no contract for service, however, with the owner of Ms. Proctor's rental unit, which was located at 5181 Basinview Drive.
Mr. Miller testified at trial that, on June 23, 2010, he and his employees were working on lawns at the opposite ends of the street, when he observed one of his employees walk across the street to his truck which was parked in the driveway of a customer who also resided on Basinview. Mr. Miller testified that he saw the employee take a blower from the truck. Mr. Miller tried, unsuccessfully, to let the employee know that it was not time to use the blower. Mr. Miller testified that he then got onto his riding mower and began to drive down the street so as to speak with his employee. According to Mr. Miller, as he approached the scene he could hear nothing, although he saw Ms. Proctor standing and throwing a hand up in the air. When he arrived at the scene, Mr. Miller asked Ms. Proctor what was going on. According to Mr. Miller, Ms. Proctor then began to curse and verbally attack [2014-0406 La.App. 4 Cir. 5] him. Mr. Miller testified that Ms. Proctor stated: " You all want to cut some, some mother f ing grass around here, you all are going to cut it all. . . . You all putting grass all over my door and everywhere." Mr. Miller testified that he told Ms. Proctor that he could get his men to clean the grass clippings and leave. Ms. Proctor, according to Mr. Miller, declined the offer and instead continued to curse him. Mr. Miller testified that he then told his men to take their equipment and leave.
Mr. Miller also testified to noticing an unknown male, identified at trial as Ms. Proctor and Mr. Timmons's friend, Jermain Cole, open Ms. Proctor's front door wider with his hand behind his back. At this point, Mr. Miller testified, he became fearful and began to walk away, telling Ms. Proctor, who was still cursing, to call the police if they could not solve the problem by themselves.
Mr. Miller noted that Mr. Cole had now walked outside to join Ms. Proctor. Mr. Miller then called 911, reported Ms. Proctor's threats, and asked for the police to come out and " see what's going on with her." 911 call records, which were introduced into evidence at trial by the prosecution, indicate that Mr. Miller first called 911 at approximately 2:28 PM. In the call, which was recorded and played for the jury, Mr. Miller characterizes the incident accordingly: " Uh, yeah, I need a police officer over here on, on 5189 Basinview. I got a stinking-ass whore over here trying to mess with me but I will kill her, I'm telling you now." After informing the operator that the woman was someone who lived next door, Mr. [2014-0406 La.App. 4 Cir. 6] Miller stated that Ms. Proctor came out of her apartment cursing at him and his workers and " acting crazy." In response to the operator's questioning, Mr. Miller described Ms. Procter and added gratuitously that Ms. Proctor wasn't going to " threaten him."
Before the police arrived, Mr. Cole approached Mr. Miller and, according to Mr. Miller, asked him why he and his men were " f ing with my auntie?"  Mr. Miller testified that he told Mr. Cole that he did not know him and that he had better ask Ms. Proctor about what was going on. Mr. Miller stated that before he walked away, Mr. Cole told him that he would be back. Mr. Miller then went and sat on his lawnmower for a moment. Testifying that he did not know what was going to happen, Mr. Miller then went into his house and retrieved his .22 caliber handgun for protection and again called 911.
In this second call to 911, which occurred at 2:39 PM, Mr. Miller states: " Uh, I ain't taking nothing off nobody. Yeah, they got a guy down here trying to f with me in my neighborhood." After again telling the operator his address, Mr. Miller told the operator that he was armed with a gun and that " they tried to jump me." Mr. Miller then described what he was wearing and told the operator that he was outside in the street.
After calling 911, Mr. Miller testified that Mr. Cole and Ms. Proctor remained outside on the opposite side of the street and that Ms. Proctor kept coming to the edge of her driveway asking: " You going to shoot somebody? You [2014-0406 La.App. 4 Cir. 7] know, you mother f ing, you going to do this to me? Shoot me if you're going to shoot somebody. You shoot me." Mr. Miller also testified that Ms. Proctor kept jumping up and down in the street and saying " Shoot me. Shoot me."
Mr. Miller stated that at this point he told Ms. Proctor that he did not want to speak with her. Mr. Miller testified that he then raised his hand in the air, told her to go back across the street and asked her to tell Mr. Cole to come out and talk to him. Ms. Proctor refused Mr. Miller's orders. According to Mr. Miller, he then told Ms. Proctor that if Mr. Cole did not come out into the street and speak with
him, he was going to come and get him. Mr. Miller testified that the police arrived as he began to walk towards Ms. Proctor and Mr. Cole.
Ms. Proctor, however, relayed a very different version of events to the jury. Ms. Proctor testified that she was not working on June 23, 2010, and was home the entire day. Mr. Timmons, her boyfriend of twelve years and with whom she resided, was at work. Ms. Proctor stated that on that morning Mr. Miller and his workers were cutting grass, something she had seen them do before in the neighborhood. Although Mr. Miller and his workers had never before cut grass for her, they inadvertently cut part of her lawn on that day. Ms. Proctor testified that she then went outside and asked one of Mr. Miller's workers if she could pay him to cut the rest of her grass. Ms. Proctor stated that Mr. Miller then approached her and began to curse with profane language. Noting that Mr. Miller " went on and on," Ms. Proctor testified to cursing Mr. Miller back as well. Ms. Proctor stated [2014-0406 La.App. 4 Cir. 8] that she then called Mr. Timmons and told him that she had gotten " into it" with Mr. Miller.
According to Mr. Cole, he subsequently received a call from Mr. Timmons about the incident. Mr. Cole testified that he then rode his son's bicycle from his home, which was approximately two blocks away, to Ms. Proctor's home. Mr. Cole testified that when he arrived at Ms. Proctor's house " she was talking loud and crazy." After speaking with Ms. Procter, Mr. Cole approached Mr. Miller, who was cutting grass. According to Mr. Cole, Mr. Miller told him: " If you know if God love you, you know, you're going to go back by your people." Realizing that he could not speak with Mr. Miller, Mr. Cole walked back toward Ms. Proctor. Mr. Cole then testified that he watched Mr. Miller ride on a lawn mower over to his pick-up truck, which Mr. Cole estimated was parked two residences past Ms. Proctor's residence. According to Mr. Cole, Mr. Miller then came back with a gun, which he waived around, saying: " You all come here, you know, come outside, I'm going I'm going to show you all." Mr. Cole also testified that Mr. Miller called him a " bitch ass," and said " I'll kill one of y'all, and all that like." Mr. Cole testified that, at this point, he believed that Mr. Miller was going to kill him.
Similarly, Ms. Proctor testified that at this point Mr. Miller was " wagging" the gun and " talking about what he was going to do." When asked what he was saying, Ms. Proctor testified: " [He was c]ursing and saying, like, you know, I know I'll kill you all, I'll -- it was just on and on. He was just going off." Ms. [2014-0406 La.App. 4 Cir. 9] Proctor also testified that Mr. Miller came all the way into her driveway with the gun before she and Mr. Cole retreated into her residence. Ms. Proctor called the police at this time.
The prosecution introduced evidence which indicates that Ms. Proctor called 911 to report the disturbance at approximately 2:37 PM, two minutes prior to Mr. Miller's second call. On the call, which was played for the jury, Ms. Proctor initially states to the operator: " How you doing ma'am? We have an incident over here with a man, he's cutting the grass outside in front of everybody's yard and he done pulled a gun. Went to his truck ma'am and pulled a gun and pointed it at everybody's face so then everybody then ran in my house. He's got the gun in his hand in the middle of the street." Ms. Proctor also noted that Mr. Miller was " pointing a gun around" in front of children and that the argument started over grass cutting.
Mr. Miller testified that when the two police officers arrived - one male, the other female - he told them that Ms. Proctor had been giving him and his workers problems
and had " threatened us with those other guys." Mr. Miller testified that, in response to the male officer's questions, he told them that he had a gun in his pocket. Mr. Miller stated that the officer then removed the bullets from the gun. Mr. Miller then observed the male officer walk across the street and speak with Ms. Proctor. The male officer returned and told Mr. Miller to have his men finish blowing the cut grass off of Ms. Proctor's lawn. Mr. Miller testified that the female officer then told him that everything was going to be taken care of. Mr. [2014-0406 La.App. 4 Cir. 10] Miller asked the officer about " the nephew that threatened" him and was told that Mr. Cole was ordered to leave the neighborhood. Before leaving, the officers put Mr. Miller's now unloaded gun back into his truck.
Ms. Proctor, likewise, testified about her discussions with the police officers. Specifically, Ms. Proctor testified that after telling her to " get along as neighbors," one officer asked her to identify the person with the gun. After telling the officer that Mr. Miller was armed, Ms. Procter testified to watching the police approach Mr. Miller, retrieve the gun, remove the cartridges and return the gun to him. The officers then told Ms. Proctor to go inside and ordered Mr. Cole to go home.
After the police left, according to Mr. Miller, he and his men went back to work on the various lawns on Basinview that they had yet to finish. According to Mr. Miller, Ms. Proctor and her friends stayed outside, cursing at him and his workers whenever they would pass by. Also, Mr. Miller stated that, as Mr. Cole rode away on his son's bicycle, he pointed at Mr. Miller and said, " I'll be back for you." Mr. Miller responded, " Don't leave. Come on back now."
Mr. Miller stated that while he and his men were finishing up their work he received a call from another client, who did not live on Basinview, asking him to come and pick up a check. Mr. Miller, accordingly, left area to pick up the check and used the opportunity to stop at his house on the way back and reload his pistol, which he placed in one of his pants pockets.
[2014-0406 La.App. 4 Cir. 11] Upon returning, he began to help his men collect and bag grass clippings. As he was operating a blower, Mr. Miller noticed a white car with two occupants slowly drive the wrong way down Basinview past he and his men. Mr. Miller became concerned that they were about to become the victims of a drive-by shooting. The white car stopped in front of Ms. Proctor's residence. No one, according to Mr. Miller, got out of the car for three or four minutes. Still thinking that he was about to be the victim of a shooting, Mr. Miller kept constant watch on the white car while he pretended to blow grass clippings. Eventually, Mr. Miller saw an individual, later identified as Mr. Timmons, exit the vehicle wearing a hard hat and a uniform. Although Ms. Proctor was still outside, Mr. Timmons did not speak with her. As he stood in a client's driveway and pretended to blow grass clippings, Mr. Miller watched Mr. Timmons begin to walk in his direction. Mr. Miller testified to thinking that Mr. Timmons might be going to a community mail kiosk, which was situated at a point between the two men. Mr. Timmons, however, did not stop at the mailbox but instead continued walking towards Mr. Miller.
As he pretended to operate the blower and keep an eye on Mr. Timmons's approach,
Mr. Miller turned and began to walk up a driveway towards a client's front door. When Mr. Timmons had reached the driveway, he shouted at Mr. Miller, whose blower was still on, to get his attention. According to Mr. Miller, Mr. Timmons asked to speak with him. Mr. Miller responded, " Yeah, Yeah, man. What's going on? What can I do for you?" Mr. Timmons then asked Mr. Miller [2014-0406 La.App. 4 Cir. 12] about what had happened between him and Ms. Proctor. According to Mr. Miller, he told Mr. Timmons that nothing had happened between him and Ms. Proctor. He also told Mr. Timmons that the police had been there and resolved the issue and that, " if you got anything to say, you need to go down the street and talk to your old lady." Mr. Timmons, however, insisted that he wanted to speak with Mr. Miller about it. Mr. Miller replied, " Man, please do me a favor. Would you please turn around and leave me alone, and go about your business, because the police done been there." Mr. Miller testified that he repeated this request to Mr. Timmons three times even though Mr. Timmons had begun to yell and curse at him. Mr. Miller stated that he then told Mr. Timmons that he could stand outside and talk all day but that he had a job to finish.
Mr. Miller then turned the blower up and his back to Mr. Timmons. According to Mr. Miller, Mr. Timmons then struck him in the head with the hardhat, knocking him to the ground. Mr. Timmons, according to Mr. Miller, also started to beat and hit him in the chest and face. Mr. Miller also testified that Mr. Timmons grabbed the straps to his leaf blower, which he wore over his shoulder, and dragged him out into the street. Mr. Miller testified that, because the leaf blower was still strapped to his back, he could not get up or reach his pistol, which was in a back pocket of his pants. Mr. Miller claimed that, as a result of the beating, he was unable to see with one of his eyes because it was full of sweat and blood from a cut above the eye. Mr. Miller testified that eventually he looked up [2014-0406 La.App. 4 Cir. 13] and saw Ms. Proctor standing over him holding a knife. At this point he was able to get himself free of the blower and get his gun out of his pocket. Mr. Miller testified that when Ms. Proctor first saw his gun, she yelled, " He's got a gun," and then ran away. Mr. Miller stated that he started firing his gun rapidly as Mr. Timmons was " backing up." On cross-examination, however, Mr. Miller insisted that he did not know whether or not Mr. Timmons was facing him. Elsewhere, Mr. Miller insisted that, unlike Ms. Proctor, Mr. Timmons did not run but was instead getting up off the ground when he began to shoot. Mr. Miller testified that although he had once been a security guard, who received firearms training, he did not know where his shots struck Mr. Miller.
Mr. Miller further noted: " After the shooting, I was standing there, and the
gentleman, he was standing up. He was standing up against the car. And he told me, 'Man, you done shot me.'" Mr. Miller testified that he then told Mr. Timmons to " be still," because Mr. Timmons kept coming towards him even after he was shot and ...