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State v. Hust

Court of Appeals of Louisiana, Second Circuit

January 11, 2017


         Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 15F13161 Honorable B. Scott Leehy, Judge

          PEGGY J. SULLIVAN Louisiana Appellate Project Counsel for Appellant

          STEPHEN TEW District Attorney Counsel for Appellee

          NEAL G. JOHNSON CYNTHIA F. LAVESPERE Assistant District Attorneys

          Before BROWN, DREW, and GARRETT, JJ.


         Following a jury trial, defendant, Luke Jarrod Hust, was convicted of two counts of attempted first degree murder, in violation of La. R.S. 14:27 and La. R.S. 14:30, and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. Hust was subsequently adjudicated a third felony offender as to the possession of a firearm by a convicted felon conviction and a fourth felony offender as to the two attempted first degree murder convictions. Three consecutive life sentences were imposed. Hust has appealed, assigning four errors. Hust's convictions and sentences are affirmed.


         The testimony at trial established that late in the afternoon of May 21, 2015, Louisiana Department of Wildlife and Fisheries Agents Josh Harris and Scott Bullitt were in the Russell Sage Wildlife Area in Ouachita Parish. Agents Harris and Bullitt observed a Dodge Durango backed up and parked on the levee at the Wham Brake boat launch. Agent Harris testified that as the agents drove toward the truck, the driver of the Durango started his vehicle and drove toward the agents as if he were going to exit the park. Agent Harris explained that all persons who enter the wildlife management area are required to check in at the entry point, and all persons and vehicles in the park are subject to search.

         The agents approached the brown truck and, through the open window, spoke to the driver, Toby Trichell. There was a male passenger in the Durango who identified himself as Clay Hust (he was later determined to be defendant, Luke Hust). Trichell and Hust got out of the vehicle to talk to the agents. Agent Bullitt testified that the area is known for drug activity; he walked to the levee where the Durango had been parked and found no evidence of illegal activity. Agent Harris conducted a field sobriety test on Trichell, but found no evidence of impairment. The agents explained to Trichell and Hust the park policy requiring that all persons to obtain a registration slip at the entry point into the wildlife management area.

         Neither Trichell nor Hust had a valid driver's license, and the truck's inspection sticker was expired. Both agents testified that they intended to allow the men to contact someone to come and get them. Agent Bullitt stated that when Trichell could not produce a license, he acted extremely nervous. Trichell consented to a search of the Durango. The agents found small plastic baggies and lithium batteries, but no contraband. Trichell further consented to a search of his person, which revealed no contraband. Agent Bullitt, after observing Trichell, noted no signs of impairment. Agent Bullitt asked Trichell whether he had someone with a driver's license who could come pick up his vehicle; at that time, Trichell was about to be let go by the agents.

         Agent Bullitt then walked to the back of Trichell's truck, where Agent Harris and Hust were standing. Agent Bullitt asked Hust whether he was in possession of anything illegal. According to the agent, Hust threw his hands up in the search position and turned to face the truck. Agent Bullitt testified that he conducted a patdown search of Hust and felt a hard metallic object in Hust's waistband which the agent believed was a pistol magazine. This caused Agent Bullitt some concern because where there is a magazine "it could be a weapon." Agent Bullitt looked at Agent Harris to signal that he had found something and began reaching for his handcuffs. Agents Harris and Bullitt both testified that when Agent Bullitt reached for the handcuffs, Hust took off running toward a nearby ditch, and they gave chase. While both agents pulled out Tasers, only Agent Harris deployed his Taser, which did not disable Hust. Agent Harris testified that just as Hust jumped the ditch and his feet hit the ground, Hust pulled out a black handgun. Agent Harris threw down his deployed Taser and "broke right" to run around the truck for cover. Agent Harris stated that he noticed two shots ricochet off the ground by his feet as he ran for cover, so he pulled out his gun and returned fire. Agent Harris testified that the first time he pulled his weapon was after he felt the ricochet shots. Agent Harris reloaded his weapon once he was behind the vehicles, and it was at that time that he saw Trichell in the ditch with Agent Bullitt. Agent Harris testified that Trichell yelled to him, "Hey, your buddy was shot, " and Agent Harris radioed for help. The radio recordings to dispatch and the Ouachita Parish Sheriff's Office were introduced into evidence and played for the jury.

         On cross-examination, Agent Harris restated that Hust was "at the ditch" when he pulled out his gun and began firing haphazardly in the direction of the agents. Agent Harris testified, "[Hust] was just on the other side of the ditch and that's when I realized he had a firearm. … He was pulling it out and turning over his right shoulder looking back towards the direction of Sgt. Bullitt. … He fired."

         Toby Trichell's testimony corroborated that of Agent Harris. Trichell stated that as he was trying to call someone to come pick up him and Hust up, Hust came running around the corner and grabbed at his shirt, which caused Trichell to fall down. It was then that he saw the agents pursuing Hust. Trichell also saw the gun in Hust's hand before Hust jumped over the ditch. Trichell testified that although Hust was running away, he stopped and turned to shoot at the agents. "After [Hust] had went across the ditch is when he turned and started firing rounds." Trichell explained that he was in the line of fire, so he was "laying low." After the shooting stopped and Hust ran further into the woods, Trichell saw that Agent Bullitt had spun and fallen in the ditch where he was lying in deep water. Trichell ran to assist Agent Bullitt. Trichell yelled to Agent Harris that his partner had been hit and to call for help. He then reassured Agent Bullitt that he was trying to help, not hurt him, and Trichell held Agent Bullitt's head above the water in the ditch until first responders arrived.

         Agent Bullitt corroborated Agent Harris's testimony and explained that when Hust started running, Bullitt pulled his Taser out, but when he saw that Hust had a gun, the agent dropped his Taser without deploying it and sought cover in the area of the ditch. Agent Bullitt testified that he recalled that Hust jumped the ditch before turning and firing, but he could not specifically remember Hust's body position as he fired. Agent Bullitt stated that "I just remember falling in the ditch." He knew he had been hit and felt numbness begin at his waist and move downward. Trichell came over to him and reassured him that help was on the way. Agent Bullitt underwent several surgeries and is paralyzed from the waist down. Agent Bullitt will be confined to a wheelchair and require ongoing medical treatment for the remainder of his life.

         Deputy Mark Palmer testified that he responded to the call for assistance that evening. He arrived to find Trichell holding Agent Bullitt's head and providing cover for him. Deputy Jared Benjamin testified that he also responded to the call for assistance and located Hust later that night hiding behind a brick column on the porch of his parents' home. Hust, who was disheveled, coughing and throwing up, had in his possession a .40 caliber handgun. A firearms expert testified that bullet jackets found at the scene were consistent with a .40 caliber bullet.

         The jury convicted Hust of two counts of attempted first degree murder and possession of a firearm by a convicted felon. He was subsequently adjudicated a habitual offender as noted above and was sentenced to three consecutive life sentences. Hust now appeals.


         Sufficiency of the Evidence

         The defense argues that the evidence was insufficient to convict Hust of attempted first degree murder because the state failed to prove that defendant had the specific intent to kill.

         The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La. 02/22/06), 922 So.2d 517; State v. Dotie, 43, 819 (La.App. 2d Cir. 01/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/06/09), 21 So.3d 297. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43, 788 (La.App. 2d Cir. 02/25/09), 3 So.3d 685, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

         The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43, 786 (La.App. 2d Cir. 01/14/09), 2 So.3d 582, writ denied, 09-0372 (La. 11/06/09), 21 So.3d 299.

         In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43, 032 (La.App. 2d Cir. 02/13/08), 975 So.2d 753; State v. Burd, 40, 480 (La.App. 2d Cir. 01/27/06), 921 So.2d 219, writ denied, 06-1083 (La. 11/09/06), 941 So.2d 35. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 05-0213 (La. 01/19/06), 921 So.2d 94.

         La. R.S. 14:30 provides, in pertinent part, that first degree murder ...

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