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State v. Mosley

Court of Appeals of Louisiana, Second Circuit

June 21, 2017

STATE OF LOUISIANA Appellee
v.
RICHARD WAYNE MOSLEY Appellant

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Lower Court Case No. 320658 Honorable Brady D. O'Callaghan, Judge

          LOUISIANA APPELLATE PROJECT By: Annette Fuller Roach Counsel for Appellant.

          JAMES E. STEWART, SR. District Attorney TOMMY JAN JOHNSON Assistant District Attorney Counsel for Appellee.

          Before MOORE, GARRETT, and STONE, JJ.

          STONE, J.

         The defendant, Richard Wayne Mosely, was charged by bill of information with attempted first-degree murder in violation of La. R.S. 14:27 and 14:30. Following a jury trial, Mosely was found guilty as charged. The trial court adjudicated Mosely a fourth-felony offender and sentenced him to life imprisonment without the benefit of probation or suspension of sentence. For the following reasons, we affirm Mosely's conviction and amend his life sentence at hard labor to be served without benefit of probation, parole, or suspension of sentence.

         FACTUAL AND PROCEDURAL HISTORY

         On January 11, 2014, at approximately 2:00 a.m., Nekedra Mosely ("Nekedra") returned home to her apartment at Southern Oaks Apartments in Shreveport, Louisiana. Before exiting her vehicle to go inside, Nekedra called Shreveport Police and asked if an officer could come canvass the apartment complex to see if her estranged husband, Richard Mosely ("Mosely"), was waiting for her in the parking lot. Nekedra was informed that an officer would arrive shortly and she preceded to her apartment.

         Once inside, Nekedra heard knocking on her window and saw Mosely standing outside. He asked her to let him in, but Nekedra refused and called 911. Mosely then kicked in Nekedra's front door. The door frame was splintered with the door chain still intact. As Nekedra struggled to push the door shut, Mosely reached inside and slashed Nekedra's throat with a box cutter. Mosely then entered her apartment and proceeded to use the box cutter to continue to inflict numerous deep lacerations to Nekedra's face, ear, arms, upper torso, and hands. Nekedra was able to escape her apartment and seek refuge in the apartment of her downstairs neighbor until police arrived. Nekedra was transported to the hospital and, despite suffering massive blood loss, survived the attack.

         Mosely was charged by bill of information with the attempted first-degree murder of Nekedra. Following a two-day jury trial, Mosely was found guilty as charged. The state subsequently filed a habitual offender bill of information charging Mosely as a fourth-felony habitual offender. In turn, Mosely moved to quash the habitual offender bill, arguing the state had not proved his commission of the predicate offenses.

         Additionally, Mosely filed a motion for new trial and a motion for post-verdict judgment of acquittal. The trial court denied Mosely's motions and adjudicated him a fourth-felony habitual offender. Mosely was sentenced to life imprisonment without the benefit of probation or suspension of sentence. Mosely subsequently filed a motion to reconsider the sentence, arguing it was unconstitutionally harsh and excessive. The trial court denied the motion. Mosely now appeals.

         DISCUSSION

         Motion for New Trial

         In his first assignment of error, Mosely argues the trial court erroneously denied his motion for new trial. In particular, he asserts three reasons why the motion should have been granted: (1) the trial court improperly denied his request for five jury instructions related to eyewitness identification; (2) the trial court improperly allowed the state to elicit hearsay evidence during trial; and (3) the trial court improperly allowed testimony from Nekedra that constituted inadmissible other crimes evidence against Mosely.

La. C. Cr. P. art. 851 sets forth the grounds for granting a new trial:
A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(1) The verdict is contrary to the law and the evidence;
(2) The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

         The trial judge has much discretion in ruling on a motion for a new trial and, upon review, an appellate court may only set aside the judgment upon a finding that the trial judge exercised his discretion in an arbitrary manner. State v. Hammons, 597 So.2d 990 (La. 1992); State v. Lewis, 2005-0973 (La.App. 4 Cir. 05/24/06), 943 So.2d 1100, writ denied, 2006-1621 (La. 03/09/07), 949 So.2d 437.

         Jury Instructions

         Mosely claims the trial court should have included his special jury charges concerning eyewitness identification in the jury instructions because the evidence presented at trial was inadequate to prove he was the individual who assaulted Nekedra. Mosely asserts Nekedra's statement that he was the person who attacked her, was unreliable given her intoxication at the time of the attack.

         Prior to trial, Mosely proposed the following special jury charges regarding identification:

PROPOSED JURY INSTRUCTION NUMBER 1:
When the key issue in the case is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Bright, ...

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