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State v. Thomas

Court of Appeals of Louisiana, Third Circuit

December 13, 2017



          Richard A. Spears, Taylor Street New Iberia, COUNSEL FOR DEFENDANT/APPELLANT: Reokenski Vodise Thomas a/k/a Reokenski Thomas.

          Trent Brignac District Attorney Timmy J. Fontenot Marcus L. Fontenot Nicole F. Gil. Assistant District Attorneys Thirteenth Judicial District P. O. Drawer, COUNSEL FOR APPELLEE: State of Louisiana.

          Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.

          VAN H. KYZAR JUDGE.

         The defendant, Reokenski Vodise Thomas, appeals his convictions for first degree murder, a violation of La.R.S. 14:30(A)(3), and attempted first degree murder, violations of La.R.S. 14:27 and La.R.S. 14:30(A)(3). For the reasons herein, we affirm the defendant's convictions but set aside his sentences and remand the matter for resentencing.


         The defendant was indicted by a grand jury for the first degree murder of Joseph John, in violation of La.R.S. 14:30(A)(3), when he had the specific intent to kill or inflict great bodily harm upon more than one person, namely the victim and his brother, Derricke John, and for the attempted first degree murder of the victim's brother, in violation of La.R.S. 14:27 and 14:30(A)(3), when he had the specific intent to kill or inflict great bodily harm upon the same two persons. The State then moved to consolidate the trial of the defendant with that of the co-defendant, Hilton Wilson, who was indicted on the same day as the defendant on the same charges.

         Following an eight-day jury trial, the jury returned guilty verdicts as to each defendant, finding both guilty of the first degree murder and attempted first degree murder of the victim and his brother, respectively. Thereafter, the defendant was sentenced to serve life in prison for the first degree murder conviction and twenty-five years for the attempted first degree murder conviction, with each sentence to be served without the benefit of parole, probation, or suspension of sentence and the sentences to run concurrently. [1] On appeal, the defendant raises two assignments of error: (1) The trial court erred in failing to grant a mistrial for two statements made by a witness regarding other crimes committed by the codefendant in contravention of La.Code Crim.P. art 770(2); and (2) Based on the evidence produced at the trial, the jurors could not reasonably have concluded that the defendant was guilty beyond a reasonable doubt.


         Sufficiency of Evidence

         In his second assignment of error, the defendant asserts that the evidence presented at trial was insufficient for the jury to conclude that he was guilty of the crimes of first degree murder and attempted first degree murder beyond a reasonable doubt. Thus, we will address this assignment of error first.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.

State v. Hearold, 603 So.2d 731, 734 (La. 1992) (footnote omitted).

         In applying the sufficiency standard set out in Jackson v. Virginia, AA3 U.S. 307, 99 S.Ct. 2781 (1979), we also recognize the following:

A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Siiman, 95-0154 (La.l 1/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20, It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86.

         "First degree murder is the killing of a human being . . . [w]hen the offender has a specific intent to kill or to inflict great bodily harm upon more than one person." La.R.S. 14:30(A)(3).

Specific criminal intent is defined as "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La.Rev.Stat. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the defendant's actions and the circumstances of the transaction. State v. Maxie, 93-2158, (La.4/10/95), 653 So.2d 526, 532. Deliberately pointing and firing a deadly weapon at close range are circumstances which will support a finding of specific intent to kill. State v. Seals, 684 So.2d 368, 373 (La. 1996) (citing State v. Williams, 383 So.2d 369 (La. 1980); State v. Procell, 365 So.2d 484 (La. 1978)).

State v. Robinson, 02-1869, p. 8 (La. 4/14/04), 874 So.2d 66, 74, cert, denied, 543 U.S. 1023, 125 S.Ct. 658 (2004).

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

La.R.S. 14:27(A).

         During this eight-day trial, the jury heard extensive testimony and was presented with much physical, photographic, and documentary evidence. Derricke John testified that he and his two brothers were at their home at 120 East Washington Street in Ville Platte on the night of the shooting. He stated that he and Joseph, who he referred to as "Smoke, " were outside under the carport, while his other brother, Erricke, was asleep inside the home. Derricke testified that suddenly he and Joseph were being shot at as multiple gunshots rang out and that they both began to run. He stated that Joseph fell as he ran and that he began to run the other way into an alley adjacent to the house. He said that he could hear and feel the bullets fired in his direction. He further stated that shortly prior to the shooting he saw a green Ford Taurus pass in front of the house. Derricke testified that after the shooting stopped he located his brother in the ally and found him bleeding from a gunshot to his abdomen. He stated that he ran into the house to wake Erricke, telling him that "Smoke" was shot. He said that he then ran to the Ville Platte Police station to report the shooting rather than call 911, stating that he thought it would be quicker since the station was only about a minute away if he hurried.

         Derricke testified at trial that he was able to identify the defendant as one of the shooters, although he admitted not telling the authorities this on two other occasions. He also testified as to an incident earlier in the evening on Laran Street in Ville Platte, where the defendant fired a handgun at him and his brothers as they drove away from the location of a verbal altercation with the defendant. He was cross-examined extensively by counsel for both defendants as to these prior inconsistent statements and other potentially impeaching factors.

         Erricke John, the brother of the victims, testified that he was home with his brothers at the time of the shooting. He stated that he was inside asleep at the time, but was awakened by Derricke telling him that "they" had shot Smoke. He stated that he went outside, saw his brother, and then waited until the authorities arrived. He said that he did not witness any of the events of the shooting because he was sleeping. He further testified about the Laran Street incident and stated that the defendant shot at them earlier as they pulled away in their vehicle following a verbal altercation.

         Latasha Thomas testified that earlier on the night of the murder she arrived at her home on Laran Street, at approximately 7:00 p.m., and observed two vehicles partially blocking the driveway of her home. She stated that she saw Joseph John, who she also referred to as "Smoke, " along with his brother Erricke. She said that she asked them to move their vehicles and they acknowledged her. Ms. Thomas testified that she then saw the defendant walk out toward the street with a handgun. She stated that she asked him not to shoot because her daughter was at home, but he fired the gun anyway in the direction of the Johns' vehicle as they drove away. She said that she called the police to report the shooting and retrieved a shell casing discharged from the defendant's gun, which she gave to an officer upon his arrival.

         Officer Lucas Griffen, of the Ville Platte Police Department, testified that he responded to the Laran Street shooting incident and recovered a shell casing from Ms. Thomas that she retrieved after the defendant fired it in the direction of the Johns' vehicle. That casing was later turned over to Detective Pat Hall, the lead Detective on the murder investigation.

         Officer Cody Savoy, formerly of the Ville Platte Police Department, responded to the shooting on East Washington Street at approximately 11:30 p.m. and assisted with securing the crime scene He testified that he also responded to the scene of the reported 7:00 p.m. shooting incident on Laran Street. He reported that a shell casing was recovered by Officer Griffen from Ms. Thomas from that crime scene.

         Officer Kyeishia Evans, of the Ville Platte Police Department, testified that she and Officer Griffen arrived at the scene on East Washington Street just after Officer Savoy. She stated that she stayed with the victim in the ally, where he was found bleeding from the gunshot wound to his abdomen. She said that he was alive but unresponsive. She stated that she held him and prayed for him until emergency medical personnel arrived to transport him to the hospital, where he later died from his wounds.

         Dr. Terry Welke, a forensic pathologist, testified that he performed the autopsy on the victim and that the cause of death was a gunshot wound to the abdomen. He stated that he removed a bullet fragment from the victim's fatal wound, which he thought was a nine millimeter caliber slug, and turned it over to Detective Pat Hall. He stated that he also discovered a bullet fragment in the victim's forearm, which was later identified as a .25 caliber bullet, but concluded that this was not recent or related to the victim's death.

         Bernadine Arvie, who lives in the area of the shooting on East Washington Street, testified that she and Lunel Robinson were at her home on the night of the shooting and that they heard multiple gunshots outside at approximately 11:30 p.m. She stated that they went outside onto her porch and observed two persons running away from the direction of the shooting. Ms. Arvie testified that she could not identify the persons running. Mr. Lunel Robinson also testified that he saw two men running away from the scene shortly after they heard multiple shots fired. He stated that one of the men was taller than the other. However he said that he was unable to identify the men as it was dark outside.

         Joshua Joseph testified that after 10:30 p.m., on the night of the shooting, he saw the defendants get out of a Green Taurus automobile in an area close to the scene of the shooting on East Washington Street. He stated that he saw the two men walk away from the vehicle and, as he walked on, he heard gunshots coming from East Washington Street. Mr. Joseph testified that when he looked in the direction of the gunfire, he saw two men shooting towards a house, and he specifically identified the defendant as one of the shooters. Although he saw both men shooting in the direction of the murder scene, he was unable to identify the other shooter.

         Lashaine Semien, the former girlfriend of the co-defendant, testified that she was with the co-defendant at their home on the night of the shooting, until he left just after 10:00 p.m. She testified that when he returned he told her he had been with the defendant and that he had probably shot someone he referred to as "Smoke, " ...

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