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State v. Youngblood

Court of Appeals of Louisiana, Fifth Circuit

May 22, 2019

STATE OF LOUISIANA
v.
RON C. YOUNGBLOOD

          ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ST. JAMES, STATE OF LOUISIANA NO. 72, 64, DIVISION "C" HONORABLE KATHERINE TESS STROMBERG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Ricky L. Babin Lindsey D. Manda

          COUNSEL FOR DEFENDANT/APPELLANT, RON C. YOUNGBLOOD Ron C. Youngblood Lieu T. Vo Clark

          Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.

          MARC E. JOHNSON JUDGE

         Defendant appeals his convictions and sentences for attempted first degree murder and felon in possession of a firearm raising numerous issues, both through counsel and pro se, including the sufficiency of the evidence, alleged Batson[1]violations, police and prosecutorial misconduct, the incompleteness of the appellate record, the denial of a jury instruction regarding an alleged responsive verdict to the charge of felon in possession of a firearm, and the excessiveness of his consecutive maximum sentences. For the reasons that follow, we affirm Defendant's convictions and sentences.

         STATEMENT OF THE CASE

         Defendant, Ron Youngblood, was indicted by a grand jury on August 11, 2015 and charged with two counts of attempted first degree murder of Deputy Michael Dufresne and Sergeant Dustin Jenkins, in violation of La. R.S. 14:27 and La. R.S. 14:30 (counts one and two), and one count of felon in possession of a firearm, in violation of La. R.S. 14:95.1 (count three). He pled not guilty and proceeded to trial on September 25, 2017. After a five-day trial, the jury found Defendant guilty on counts one and three and not guilty on count two (attempted first degree murder of Sergeant Jenkins). On January 22, 2018, the trial court sentenced Defendant to 50 years at hard labor on count one and 20 years at hard labor on count three, both without benefit of parole, probation or suspension of sentence, to run consecutively to each other. This appeal follows.

         FACTS

         On May 24, 2015, the St. James Parish Sheriff's Office ("SJPSO") received a 911 call regarding a suspicious male, described as a bald-headed "bright skinned male" wearing a suit, who was walking up and down Legion Street with a gun. Officers Michael Dufresne and Dustin Jenkins with the SJPSO responded separately to the call. Upon their arrival, the officers observed four African-American males standing near two cars parked on the side of the roadway, one of whom appeared to match the description provided to the 911 dispatcher. Officer Jenkins testified that the dash-cam video from his police unit depicted the subject matching the description given by the 911 caller holding a shiny object in one of his hands. Both officers were driving fully marked patrol units and were dressed in SJPSO department issued uniforms.

         As the officers exited their police units, which they strategically parked near the four individuals so as to block them in, and began their approach, one of the men began firing a pistol at Officer Dufresne who was approximately twenty feet away.[2] Officer Jenkins explained that when he exited his vehicle he could hear that Officer Dufresne had already exited his vehicle, and as he turned around to close his door, he heard a loud "pop." Officer Jenkins recalled that he then heard three to four subsequent "pops," which drew his attention towards the four subjects where he saw the "tall, slender, light-skinned" male subject in a tan jumpsuit with his hand outstretched and "an object in his hand with a flash coming from it." It was then that Officer Jenkins registered that the subject was firing a gun pointed in Officer Dufresne's vicinity. Officer Jenkins testified that it was at that time that he returned fire.

         Meanwhile, Officer Dufresne testified that when he exited his vehicle, he observed one of the male subjects dressed in red run towards a trailer. As he was ordering the subject to stop, shots were fired. He indicated that he did not immediately know which direction the shots were fired from but knew they were coming from his left side. When he turned toward his left, the muzzle flash from a gun drew his attention, at which time he saw the suspect matching the description provided by the 911 caller shooting at him. Officer Dufresne testified that the gun was directed straight at him, so he returned fire. The individual who fired the shots at Officer Dufresne was later identified as Defendant.

         The officers' return fire struck Defendant who attempted to flee while continuing to fire his weapon. Defendant was subsequently apprehended, and a silver handgun was recovered approximately ten feet from where he was arrested. A DNA analysis of the recovered firearm indicated that Defendant's DNA was on the weapon and that the weapon had, in fact, been fired at the scene of the shooting.[3] While Defendant was being detained, a subsequent shot was fired near the original location of the shooting.[4]

         The other three males that were present at the scene with Defendant were identified as Roderick Bourgeois, Quindell Jones, and Tavish Milton.[5] While all three individuals provided statements to the police, Bourgeois was the only one of the three to testify at trial. Bourgeois testified that he was standing next to Defendant when he observed Defendant fire the first gunshot towards the police car prompting the police to return fire. He could not recall the exact number of times Defendant fired his gun after the initial shot was fired but stated that it was multiple times. Bourgeois further explained that he did not see the officer holding a weapon at the time the officer exited his vehicle.

         ISSUES

         On appeal, appellate counsel raises two assignments of error, both relating to the excessiveness of Defendant's consecutive maximum sentences. Additionally, Defendant filed a pro se brief raising 21 assignments of error, all of which were not properly briefed.[6] Of the assignments of error that were properly briefed, many overlapped and relate to the following six issues: sufficiency of the evidence of both convictions, prosecutorial misconduct, police misconduct, Batson violation, an incomplete appellate record, and failure to charge the jury with a responsive verdict.

         DISCUSSION

         Sufficiency of Evidence

         The standard of review for determining the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt but rather whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. State v. Flores, 10-651 (La.App. 5 Cir. 5/24/11); 66 So.3d 1118, 1122.

         Attempted First Degree Murder

         Defendant argues that the State failed to prove beyond a reasonable doubt that he had specific intent to kill Officer Dufresne. He asserts that the officers' testimonies should not be considered because they are perjured and that eyewitness Bourgeois' testimony is insufficient to meet the State's burden. Defendant also contends the State failed to prove that he fired the first shot and was not acting in self-defense when he returned fire. He further avers that the interviews of Quindell Jones and Tavish Milton establish that the police started the "gun battle" without provocation and that the audio recording from Officer Jenkins' police unit's dash-cam further aids in proving the police shot first based upon the recorded sounds establishing the proximity of the gunfire.

         Defendant was convicted of attempted first degree murder of Officer Dufresne in violation of La. R.S. 14:27 and La. R.S. 14:30. La. R.S. 14:30(A)(2) defines first degree murder as the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm upon a peace officer.[7] The crime of attempted first degree murder requires proof of the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. La. R.S. 14:27(A); State v. Girod, 94-853 (La.App. 5 Cir. 3/15/95); 653 So.2d 664. Specific intent is "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. R.S. 14:10(1). Because specific intent is a state of mind, it need not be proven as a fact but may be inferred from the circumstances and actions of the accused. Girod, supra.

         Specific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun. State v. Knight, 09-359 (La.App. 5 Cir. 2/9/10); 34 So.3d 307, 317, writ denied, 10-2444 (La. 10/21/11); 73 So.3d 376. It may also be inferred from the act of pointing a gun and firing it at a person. State v. Alsay, 11-562 (La.App. 5 Cir. 12/13/11); 81 So.3d 145, 149, writ denied, 12-1041 (La. 9/21/12); 98 So.3d 335; State v. Gonzalez, 07-449 (La.App. 5 Cir. 12/27/07); 975 So.2d 3, 8, writ denied, 08-0228 (La. 9/19/08); 992 So.2d 949. Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Deweese, 13-293 (La.App. 5 Cir. 10/30/13); 128 So.3d 1186, 1192.

         The evidence at trial established that Defendant pointed and fired his gun at Officer Dufresne multiple times while the officer was engaged in the performance of his lawful duty as a peace officer.[8] Defendant does not contest that he fired a weapon, only that the State failed to prove he fired the first shot. Defendant maintains he did not fire the first shot and, thus, was justified in his actions; however, the evidence proves otherwise.

         Although neither Officer Dufresne nor Officer Jenkins observed Defendant fire the initial gunshot, their attention was drawn toward the shooter because of the initial firing, at which time they observed Defendant fire the remaining gunshots directed at Officer Dufresne who was standing approximately 20 feet away.[9] As noted above, specific intent may be inferred from the act of pointing a gun and firing it at a person. See Alsay, supra.

         Additionally, eyewitness Bourgeois testified that he was standing next to Defendant and personally observed Defendant fire the first gunshot in the direction of the officer's car. Whether anyone else in the group may have also fired a weapon, as alluded to by Defendant, is irrelevant because the officers' testimonies established that they observed Defendant shoot at Officer Dufresne before they returned fire. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to convict. See State v. Addison, 00-1730 (La.App. 5 Cir. 5/16/01); 788 So.2d 608, 613, writ denied, 01-1660 (La. 4/26/02); 814 So.2d 549.

         While Defendant argues eyewitness Bourgeois' testimony does not provide support for the element of specific intent to kill as he testified that Defendant was shooting towards the officer's car and not the officer himself, Officer Dufresne testified that he was standing next to his car when Defendant was shooting at him. Thus, Bourgeois' testimony corroborates the officers' testimonies that Defendant was shooting in the direction of Officer Dufresne.

         Defendant also attempts to rely on the statements given by Quindell Jones and Tavish Milton, who were also present on the scene at the time of the shooting, to prove that the officers "started the gun battle without provocation"; however, neither Jones nor Milton testified at trial, and their statements were not introduced into evidence or considered by the jury. Thus, we do not consider them.

         Defendant further avers that the dash-cam video establishes that the first shot fired is "loud and can easily be distinguished as being right in the immediate vicinity of the recording device, and the subsequent three to four shots are easily distinguished as being fired from a distance," thus, proving the initial shot was fired by one of the officers and not him. In conjunction with the witnesses' testimonies, the jury listened to the audio from the dash-cam video and apparently rejected Defendant's theory. It is not the function of the appellate court to assess the credibility of witnesses or re-weigh the evidence. State v. Smith, 94-3116 (La. 10/16/95); 661 So.2d 442, 443.

         Finally, Defendant argues that his actions were done in self-defense. However, Defendant presented no such evidence or theory at trial nor was there a jury instruction given by the trial court as to self-defense. An appellate court need not consider a claim of self-defense raised for the first time on appeal. State v. Jackson, 06-565 (La.App. 5 Cir. 12/27/06); 948 So.2d 269, 273.

         Based on the evidence, we find a rationale trier of fact could have found beyond a reasonable doubt that Defendant had specific intent to kill Officer Dufresne. Accordingly, we find the evidence sufficient to sustain Defendant's conviction for attempted first degree murder.

         Felon in Possession of a Firearm

         Regarding his conviction for possession of a firearm by a convicted felon, Defendant asserts the evidence was insufficient because the State failed to prove that the ten-year cleansing period under La. R.S. 14:95.1(C) had not lapsed. Specifically, he claims the State erroneously computed the ten-year cleansing period as to his prior attempted manslaughter conviction, which was used to charge him with a violation of La. R.S. 14:95.1. He acknowledges that a stipulation was agreed upon regarding his prior conviction, but he maintains the stipulation did not include the satisfaction of the ten-year cleansing period.

         To obtain a conviction for possession of a firearm by a convicted felon, the State was required to prove beyond a reasonable doubt that Defendant had: (1) possession of a firearm; (2) a prior conviction for an enumerated felony; (3) absence of the ten-year statutory period of limitation; and (4) the general intent to commit the offense. State v. Chairs, 12-363 (La.App. 5 Cir. 12/27/12); 106 So.3d 1232, 1250, writ denied, 13-0306 (La. 6/21/13); 118 So.3d 413.

         On appeal, Defendant only challenges the evidence regarding the absence of the ten-year cleansing period. However, Defendant stipulated to the fact that he had been previously convicted of an enumerated felony and that his conviction was within the statutory ten-year cleansing period. This stipulation was reduced to writing and signed by Defendant, his two defense attorneys, and the State. The jury was advised by the trial court of the stipulation - that on March 5, 1992, Defendant was convicted of a felony enumerated in La. R.S. 14:2(B)[10] and that the ten-year cleansing period as provided in La. R.S. 14:95.1(C) had not passed since the date of Defendant's parole on December 7, 2012. Thereafter, the trial court instructed the jury that in order to convict Defendant of the offense of possession of a firearm by a convicted felon, it must find Defendant possessed a Bryco Arms, semi-automatic 9 mm pistol on May 24, 2015.

         Despite the language of the stipulation, Defendant argues it did not incorporate the ten-year cleansing period. He contends the stipulation was ambiguous and, thus, should be construed against the State and in accordance with his reasonable understanding of the agreement. He further asserts the stipulation was not properly filed into the record and, therefore, should not have been considered as evidence.

         The appellate record contains a written stipulation that was filed into the lower court record on the last day of trial, which states:

STATE OF LOUISIANA and the defendant, Ron C. Youngblood (BM, DOB: 08/14/69), SID: 0001421912, through his undersigned counsel herein stipulate to the following:
I.
Defendant Ron C. Youngblood (BM, DOB: 08/14/69), charged with R.S. 14:95.1 Possession of a Firearm by a Person Convicted of Certain Felonies, arrested on June 12, 2015, and charged by formal Bill of Indictment on August 11, 2015 is in fact one in the same person as the Ron C. Youngblood (BM, DOB: 08/14/69), who was arrested on March 5, 1992 by the St. James Parish Sheriff's Office and convicted of R.S. 14:27(31) Attempted Manslaughter on September 3, 1992, in the Parish of St. James.
II.
And that the ten (10) year cleansing period as provide [sic] in R.S.14:95.19 © [sic] has not passed since the date of his parole on December 7, 2012 and that the current charge complies with the provisions of R.S. 14:95.1 as evidenced by the exhibit attached hereto from.

         Attached to the stipulation, which as noted above was signed by Defendant, his defense attorneys, and the State, was documentation which established the existence of the prior conviction and Defendant's discharge from custody as proof that ten years had not passed since completion of his sentence for his 1992 conviction and the commission of the offense of possession of a firearm by a convicted felon. We find this stipulation is clear, was properly filed into the record, and directly contradicts Defendant's allegation that the satisfaction of the ten-year cleansing period was not incorporated into the stipulation.

         A stipulation has the effect of withdrawing a fact from issue and disposing with the need for proof of that fact. State v. Seals, 09-1089 (La.App. 5 Cir. 12/29/11); 83 So.3d 285, 320-21, writ denied, 12-293 (La. 10/26/12); 99 So.3d 53, cert. denied, 569 U.S. 1031, 133 S.Ct. 2796, 186 L.Ed.2d 863 (2013). "A stipulation has the effect of binding all parties and the court . . . . Such agreements are the law of the case." Id., quoting State v. Smith, 39, 698 (La.App. 2 Cir. 6/29/05), 907 So.2d 192, 199. Accordingly, the State only needed to prove possession and general intent at trial. The State accomplished this through the testimonies of Officer Dufresne, Officer Jenkins, and eyewitness Bourgeois who all testified that they observed Defendant firing a handgun, as well as through the DNA evidence linking Defendant to the Bryco Arms semi-automatic 9 mm pistol found near him at the time of his arrest.[11]

         Considering the stipulation and the evidence presented, [12] we find any rational trier of fact could have found all of the essential elements of the offense of possession of a firearm by a convicted felon were proven beyond a reasonable doubt. Therefore, we find the evidence sufficient to support his conviction. Prosecutorial Misconduct

         In several assignments of error, Defendant maintains that the State through the testimony of Detective Barry Ward, knowingly relied upon false testimony to obtain a conviction for attempted first degree murder. In particular, Defendant avers that the State had access to Detective Ward's investigative report in which he found that none of the witnesses were able to state that they observed Defendant fire the first shot. Thus, he contends that when the State solicited contrary testimony from Officers Dufresne and Jenkins at trial, it knowingly solicited the witnesses to perjure their testimonies.

         If a prosecutor allows a state witness to give false testimony without correcting it, a reviewing court must reverse the conviction gained as a result of the perjured testimony, even if the testimony was only relevant to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); State v. Reed, 14-1980 (La. 9/7/16); 200 So.3d 291, 321, rehearing granted in part on other grounds, 14-1980 (La. 10/19/16); 213 So.3d 384, cert. denied, 137 S.Ct. 787, 197 L.Ed.2d 787, 85 USLW 3407 (2017). To prove a Napue claim, [13]the defendant must show that the prosecutor acted in collusion with the witness to facilitate false testimony. State v. Broadway, 96-2659 (La. 10/19/99); 753 So.2d 801, 814, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

         When false testimony has been given under such circumstances, the defendant is entitled to a new trial unless there is no reasonable likelihood that the alleged false testimony could have affected the outcome of the trial. State v. Ventris, 10-889 (La.App. 5 Cir. 11/15/11); 79 So.3d 1108, 1126, citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). However, the grant of a new trial based upon a Napue violation is proper only if: (1) the statements at issue are shown to be actually false; (2) the prosecution knew they were false; and (3) the statements were material. Ventris, supra at 1126.

         Defendant claims that both Officer Jenkins and Officer Dufresne offered perjured testimony when they both initially indicated that they did not see the first shots fired but later stated, through prompting by the State, that Defendant fired the first shot. During Officer Jenkins' direct examination by the State, he testified that he heard a loud pop as he was closing the door to his vehicle after exiting. After registering that the sound he heard was gunfire, Officer Jenkins stated that he heard three to four more pops, turned his attention ...


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