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State v. Neal

Court of Appeals of Louisiana, Second Circuit

May 2, 2017

STATE OF LOUISIANA Appellee
v.
RASHARD NEAL Appellant

         Appealed from the Sixth Judicial District Court for the Parish of Madison, Louisiana Lower Court Case No. 170161 Honorable Michael E. Lancaster, Judge

          LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel for Appellant

          ANGELA L. CLAXTON RASHARD NEAL Pro Se

          JAMES EDWARD PAXTON District Attorney, Counsel for Appellee

          ANITA TENNANT MACK EDWIN MOBERLEY Assistant District Attorneys

          Before Brown, Garrett, and Cox, JJ.

          COX, J.

         Following a trial by jury, Rashard Neal was unanimously convicted as charged of second degree murder, in violation of La. R.S. 14:30.1. Neal was sentenced to the mandatory term of life imprisonment at hard labor without benefit of parole, probation, or suspension. Neal appeals only his conviction. For the following reasons, we affirm his conviction and sentence.

         FACTS

         At 8:32 p.m. on the evening of September 4, 2014, the Madison Parish Sheriff's Office in Tallulah, Louisiana, received a report of a shooting at a local carwash. When deputies arrived at the scene, they discovered that Lapatrick Mitchell[1] had been shot and killed. Shortly before the shooting, several witnesses saw Mitchell and Neal engaged in a heated argument at the carwash over money. Neal conceded that the argument had occurred, but denied killing Mitchell. At trial, two eyewitnesses claimed that they saw Neal return to the carwash and shoot Mitchell.

         A 9mm handgun was found on the rear passenger floorboard of Mitchell's vehicle, but it had not been fired. Three spent .40 caliber shell casings were also found at the scene. No physical evidence connected Neal to the crime, and no weapon was recovered. Neal's cellphone had little text message activity from 6:53 p.m. until 8:28 p.m. No witness could pinpoint the timing of the events. Based upon the eyewitness accounts, however, Neal was arrested the day after the shooting.

         On December 8, 2014, Neal was charged by a grand jury indictment with the second degree murder of Mitchell. Neal's five-day trial ended on June 11, 2016, when a unanimous jury found him guilty as charged of second degree murder.

         On June 16, 2016, Neal was sentenced to the mandatory term of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This appeal followed.

         DISCUSSION

         On appeal, Neal argues that the evidence was insufficient to prove beyond a reasonable doubt that he was the person who shot Mitchell. Although he admits that he had an argument with Mitchell, Neal contends that the two eyewitnesses who claimed they saw him shoot Mitchell gave inconsistent versions of the event to police and were not credible witnesses. Additionally, Neal argues that no evidence linked him to the crime. Specifically, no murder weapon was ever found and no gun recovered matched the spent casings found at the crime scene. Finally, Neal argues that detectives failed to investigate another possible suspect.

         The state argues that the testimony of the two eyewitnesses identifying Neal as the shooter was sufficient to prove the elements of second degree murder. The state contends that investigations conducted by law enforcement corroborated the testimony of the two eyewitnesses and also provided a supporting timeline of the events. Ultimately, the state argues that witness credibility issues are reserved for the trier of fact. The state submits that, when viewed in the light most favorable to the state, the evidence would lead any rational factfinder to find that the elements of second degree murder were proven beyond a reasonable doubt.

         Law

         Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), appellate courts review the record in the light most favorable to the prosecution to determine whether the evidence was sufficient to convince any rational trier of fact that all the essential elements of a crime had been proven beyond a reasonable doubt. State v. Tate, 01-1658 (La. 5/20/03), 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 factfinder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So.2d 517; State v. Dotie, 43, 819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/6/09), 21 So.3d 297.

         It is the function of the trier of fact to assess the credibility of witnesses and resolve conflicting testimony. State v. Washington, 50, 424 (La.App. 2 Cir. 3/16/16), 188 So.3d 350. The trier of fact hears the testimony firsthand and, unless the factfinder's assessment of believability is without any rational basis, it should not be disturbed by a reviewing court. State v. Mussall, 523 So.2d 1305 (La. 1988); State v. Price, 48, 986 (La.App. 2 Cir. 5/15/14), 140 So.3d 1212, writ denied, 14-1274 (La. 2/6/15), 158 So.3d 814. A factual determination concerning conflicting testimony will not be disturbed on review unless it is clearly contrary to the evidence. Mussall, supra; State v. Williams, 32, 631 (La.App. 2 Cir. 12/8/99), 747 So.2d 1256, writ denied, 00- 0734 (La. 11/27/00), 775 So.2d 441, and writs denied, 00-0358, 00-0360 (La. 1/5/01).

         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. Hill, 42, 025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529; State v. Gilliam, 36, 118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 02-3090 (La. 11/14/03), 858 So.2d 422. The appellate court does not assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442; State v. Eason, 43, 788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

         In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Brady, 414 So.2d 364 (La. 1982); State v. Brock, 37, 487 (La.App. 2 Cir. 9/26/03), 855 So.2d 939, writ denied, 04-1036 (La. 4/1/05), 897 So.2d 590; Williams, supra. Face-to-face transactions taking place during daylight hours and the length of time that transpires during the altercation are facts that reduce the likelihood of misidentification. State v. Ruano, 12-1517 (La.App. 4 Cir. 7/31/13), 120 So.3d 908, writ denied, 13-2068 (La. 3/14/14), 134 So.3d 1193; State v. Payne, 04-828 (La.App. 5 Cir. 12/14/04), 892 So.2d 51.

         Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La. 1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Wilhite, 40, 539 (La.App. 2 Cir. 12/30/05), 917 So.2d 1252, writ denied, 06-1078 (La. 11/9/06), 941 So.2d 35. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La. 1982); Wilhite, supra. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Seals, 95-0305 (La. 11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997).

         Positive identification by only one witness may be sufficient to support a defendant's conviction. State v. Davis, 27, 961 (La.App. 2 Cir. 4/8/96), 672 So.2d 428, writ denied, 97-0383 (La. 10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2 Cir. 1990), writ denied, 566 So.2d 983 (La. 1990). Additionally, a jury may consider flight and attempts to avoid apprehension as evidence of a guilty conscience. State v. Fuller, 418 So.2d 591 (La. 1982); State v. Wiggins, 44, 616 (La.App. 2 Cir. 9/23/09), 22 So.3d 1039, writ denied, 09-2329 (La. 4/23/10), 34 So.3d 271.

         Trial Testimony and Evidence

         Officer Ezell of the Madison Parish Sheriff's Office was the first to testify at trial. Officer Ezell testified that he assisted in the investigation on September 4, 2014, and was one of the first responders to the crime scene. He stated that he took two statements from Neal, who turned himself in one hour after the shooting. In Neal's first statement to Officer Ezell, Neal denied killing Mitchell, but admitted to having a heated argument with him. In a second statement, made on September 5, 2014, Neal again denied shooting Mitchell. Officer Ezell testified that Neal was arrested after giving the second statement because the investigation had disclosed two eyewitnesses who claimed they saw Neal shoot Mitchell. The two eyewitnesses were Lester Solomon and Mose Rone.

         Officer Ezell interviewed Lester Solomon and took his statement. According to Officer Ezell, Solomon stated that at the time of the shooting, he was seated on the driver's side of the vehicle, and Mitchell was standing on the passenger side at the rear door. Solomon stated that both the front and back passenger doors of the vehicle were open, as well as the back hatch. In his statement, Solomon stated that Mitchell was washing his vehicle when Solomon "heard a pop, like a gunshot." Solomon stated that he looked up and "saw Rashard Neal shoot Lapatrick Mitchell." On September 5, 2014, Solomon took Officer Ezell to the carwash and showed him how the crime took place. The vehicle was placed exactly where it had been at the time of the shooting. Officer Ezell testified that he stood where Solomon had been standing and looked through the window. Officer Ezell stated that he could clearly see through the window to where Lapatrick Mitchell would have been standing at the time of the shooting. Officer Ezell testified that he believed Solomon's statement was accurate.

         On cross-examination, Officer Ezell testified that Solomon stated that he ran "out of his shoes at the time of the shooting, " and that there were "two shoes there where he said he was standing when the shooting took place." Officer Ezell also conceded that Solomon gave another conflicting statement to investigators.

         Detective Brandon Wilcher, an investigator with the Madison Parish Sheriff's Office, was the next to testify. Detective Wilcher testified that he arrived at the crime scene at 8:40 p.m. where he observed Mitchell's body, Mitchell's vehicle with the headlights on and the motor running, and both the front and rear passenger doors open, as well as the rear lift gate. Detective Wilcher could tell that Mitchell had been cleaning his car due to the cleaning supplies present at the scene. After Mitchell's body had been removed from the scene, Detective Wilcher began to process and preserve the crime scene. As a firearms instructor for over 16 years, he testified that Mitchell's wounds were considered "kill zone wounds."

         Detective Wilcher confirmed that a pair of flip flops were found at the scene. He identified photographs from the scene, which included a shell casing found near the body, a bloody footprint, a 9mm handgun found on the rear passenger side of Mitchell's vehicle, and a shell casing found near the cleaning supplies. Detective Wilcher testified that loud music was coming from Mitchell's vehicle when he arrived at the scene. Detective Wilcher stated that he collected Neal's clothing and cell phone as evidence to be tested.[2] However, Detective Wilcher testified that there was no indication that the collected clothes were the clothing worn by the assailant at the time of the shooting, as the assailant was not immediately detained at the crime scene.

         Detective Wilcher stated that witnesses described the vehicle Neal drove at the time the argument occurred between Neal and Mitchell prior to the shooting. Detective Wilcher testified that Neal's car, which had been towed, was processed, but no items were found in the vehicle besides a large amount of clothing in the trunk.

         The day after the shooting, Detective Wilcher testified that he and another deputy traveled to a hotel in Vicksburg, Mississippi, where they received information that Neal was staying with a woman. By the time they arrived and searched the hotel room, Neal had turned himself in to the police.[3]

         Detective James Rash of the Madison Parish Sheriff's Office testified that he was the designated case agent for Mitchell's murder on September 4, 2014. Detective Rash performed a walkthrough of the scene and corroborated Detective Wilcher's testimony regarding what was recovered. Although he retrieved a 9mm gun from Mitchell's vehicle located on the right rear floorboard, Detective Rash testified that the gun had not been fired.

         Detective Rash testified that Solomon did not initially identify the black male from the shooting. After learning that Solomon had gone to a local dollar store immediately after the shooting, Detective Rash had the manager pull up the video. Detective Rash testified that he saw Solomon "running into the store" and turning around "holding the door looking back towards the carwash." Detective Rash saw that Solomon was in his "sock feet."

         Detective Rash learned from other witnesses that there was a heated argument between Mitchell and Neal before the shooting. After Neal turned himself in, Detective Rash learned from him that a couple of years before the shooting, Neal was fronted approximately $1, 500.00 worth of drugs by Mitchell. Neal indicated that because someone stole the drugs from him, he was unable to pay Mitchell, which led to the argument. Neal told Detective Rash that he had been at an apartment earlier talking to Madarrel Miller who informed him that Mitchell had been saying things about Neal. Neal stated that he called Mitchell and the two argued over the phone. After Neal hung up, Mitchell called back and told Neal he was at the carwash. Neal admitted going to the carwash with Isaac Green. Neal stated that Mitchell kept telling him to get back. From this ...


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