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State v. White

Court of Appeals of Louisiana, First Circuit

September 15, 2017

STATE OF LOUISIANA
v.
BRIAN WHITE

         APPEALED FROM THE 19th JUDICIAL DISTRICT COURT EAST BATON ROUGE PARISH, LOUISIANA DOCKET NUMBER 03-14-0925, SECTION VII HONORABLE BEAU HIGGINBOTHAM, JUDGE

          Hillar C. Moore, III District Attorney and Dylan C. Alge Assistant District Attorney Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana

          Prentice L. White Baton Rouge, Louisiana Attorney for Defendant/ Appellant Brian White

          Brian White St. Gabriel, Louisiana Pro Se

          BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ.

          McDONALD, J.

         The State of Louisiana charged the defendant, Brian White, by bill of information with armed robbery, a violation of LSA-R.S. 14:64 (count one); aggravated flight from an officer, a violation of LSA-R.S. 14:108.1 (count two); hit-and-run driving involving bodily injury or death, a violation of LSA-R.S. 14:100 (count three); and manslaughter, a violation of LSA-R.S. 14:31 (count four). The defendant entered a plea of not guilty and, after a jury trial, was found guilty on count one. Because the jury was unable to reach a verdict on counts two, three, and four, the district court declared a mistrial as to those counts. The district court sentenced the defendant to twenty years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence on count one.[1] He appealed that conviction, challenging the sufficiency of the State's evidence against him. This court affirmed the defendant's conviction and sentence on count one in State v. White, 16-0611 (La.App. 1 Cir. 10/28/16), 206 So.3d 387, 392-93.

         The defendant was then retried on the remaining counts. After a jury trial, he was found guilty as charged on all three counts. The district court sentenced the defendant to two years imprisonment at hard labor on count two; ten years imprisonment at hard labor on count three; and forty years imprisonment at hard labor on count four. The district court ordered the sentences to run concurrently with each other and consecutively with that imposed on count one. The district court further ordered the defendant to pay $10, 500 in restitution to the victim's family to cover funeral expenses. The defendant now appeals, alleging two counseled and five pro se assignments of error. For the following reasons, we affirm the defendant's convictions and sentences.

         FACTS

         On January 20, 2014, Baton Rouge City Police Sergeant Dave Mays[2] was travelling on North Acadian Thruway near Choctaw Drive in his marked police unit when he observed what he thought to be a green Monte Carlo or Crown Victoria make a right turn onto North Acadian without signaling. He attempted to stop the vehicle by activating his overhead lights, but the driver of the vehicle continued to travel. The vehicle accelerated to a high rate of speed, ran through stop signs, and collided with an oncoming vehicle. The entire incident was captured on the police unit's dashboard camera. The driver of the oncoming vehicle, Elvin Dunn, Jr., was ejected from his car and died on the scene. Immediately after the collision, the occupants of the green vehicle fled. The investigation revealed that the green vehicle was a 1997 Mercury Marquis. The vehicle had no license plate, but a temporary license tag was located on the backseat. The temporary tag listed Antonio Veal as the registered owner and had the name "Melvin Morgan" written on the side. After speaking with Messrs. Veal and Morgan, and later with the occupants of the vehicle, the defendant was developed as the suspect driving the vehicle at the time of the incident.

         SUFFICIENCY OF THE EVIDENCE

         In his first counseled and third pro se assignment of error, the defendant contends that the evidence presented by the State was insufficient. Specifically, the defendant argues that he was not the driver of the vehicle at the time of the collision. In his pro se brief, the defendant argues that because the State could not "prove who was driving and who was not driving[, ]" that "this should have been a case of Tirst Degree Vehicular Negligent Injuring' and no other charge[.]"

         The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime, and the defendant's identity as the perpetrator of that crime, beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, assuming every fact to be proved that the evidence tends to prove, in order to convict, every reasonable hypothesis of innocence is excluded. LSA-R.S. 15:438; State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 00-0895 (La. 11/17/00), 773 So.2d 732.

         When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing it in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence, and the facts reasonably inferred from the circumstantial evidence, must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 730 So.2d at 487.

         When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Hughes, 05-0992 (La. 11/29/06), 943 So.2d 1047, 1051; State v. Davis, 01-3033 (La.App. 1 Cir. 6/21/02), 822 So.2d 161, 163-64.

         Sergeant Mays testified that the driver of the green vehicle failed to stop after he activated his lights. The driver continued to drive through stop signs and did not come to a stop until he collided with the victim's vehicle. Thereafter, Sergeant Mays saw three black males run from the vehicle.

         Mr. Morgan testified that the vehicle belonged to him, but was registered in Mr. Veal's name, because Mr. Morgan was not old enough to purchase the vehicle. At the time of the incident, Mr. Morgan was riding in the front seat on the passenger's side of the vehicle. Although the vehicle belonged to him, his cousin, the defendant, was driving. According to Mr. Morgan, there were two other passengers in the car, Gregory Gustave and Joshua Harris. Mr. Morgan explained that he never allowed Messrs. Gustave or Harris to drive his car, but he did sometimes allow the defendant to do so. After the collision, he exited the vehicle and fled. One of his shoes came off during the accident. Mr. Morgan testified that the shoe he lost was the red Nike tennis shoe located at the scene and introduced into evidence.

         Both Mr. Gustave and Mr. Harris were called to testify at trial, but both alleged that they could not remember the incident. Recorded statements previously given by each were played for the jury. In their statements, both Mr. Gustave and Mr. Harris ...


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