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State v. Gary

Court of Appeals of Louisiana, Fourth Circuit

May 3, 2017

STATE OF LOUISIANA
v.
OCTAVIA T GARY

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 516-466, SECTION "C" Honorable Benedict J. Willard, Judge

          Leon A. Cannizzaro, Jr. District Attorney, Orleans Parish Scott G. Vincent Assistant District Attorney COUNSEL FOR APPELLEE/STATE OF LOUISIANA.

          Michael H. Idoyaga COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Rosemary Ledet.

          ROLAND L. BELSOME JUDGE.

         The defendant, Octavia Gary, was convicted of second degree murder and obstruction of justice. For the reasons that follow, we affirm the convictions.

         Facts

         The defendant, Octavia Gary, and Anderson Soco dated and lived together off and on for five years. At the time of the incident, the couple resided at 8531 Green Street in New Orleans.

         On April 7, 2013, a 911 dispatcher received a call from the defendant at 5:04 am. During that call, the defendant told the dispatcher that her boyfriend had been stabbed and that someone had "dropped him off from the club, " but she did not know the person or persons. When asked to identify the nightclub, the defendant responded that she did not know. The dispatcher asked how many times the victim had been stabbed, and the defendant can then be heard asking the victim to show her; then, the defendant responded that the victim had been stabbed once. In the background of the recording, the defendant can be heard telling the victim to apply pressure to his wound, asking him where his pants were and if he wanted his clothes changed. Then the defendant can be heard telling the victim that help was on the way and then telling herself, "I need to clean, I need to change, I need to get my purse…" The recording was terminated several seconds later.

         Subsequently, the defendant was arrested for the murder of Mr. Soco. She was charged with second degree murder and obstruction of justice. After trial and deliberations, the jury returned verdicts of guilty on both counts. Thereafter, the defendant filed a motion for a new trial and a motion for post-verdict judgment of acquittal, both of which were denied by the trial court. The trial court imposed the mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on the count of second degree murder, and 20 years imprisonment at hard labor on the count of obstruction of justice, to run concurrently. This appeal followed.

         Assignments of Error

         On appeal the defendant challenges the sufficiency of the evidence to sustain her conviction of second degree murder, and she also maintains that the trial court erroneously allowed questioning on inadmissible evidence.

         Sufficiency of the Evidence

         The defendant was convicted of violating La. R.S. 14:30.1, second degree murder. The statute provides that second degree murder applies to the killing of a human being by an offender who "has a specific intent to kill or to inflict great bodily harm."[1] Specific intent is the state of mind which exists when circumstances indicate the offender actively desires prescribed criminal consequences to follow his act.[2] Specific intent need not be proven as fact, but may be inferred from the circumstances of the transaction ...


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