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State v. Burks

Court of Appeals of Louisiana, First Circuit

May 31, 2019

STATE OF LOUISIANA
v.
DARRION O. BURKS

          Appealed from the Eighteenth Judicial District Court In and for the Parish of Pointe Coupee State of Louisiana Docket Number 79, 93 IF Honorable Kevin Kimball, Judge Presiding

          Richard J. Ward, Jr. District Attorney Terri Russo Lacy Chad A. Aguillard Assistant District Attorneys Port Allen, Louisiana Counsel for Appellee State of Louisiana

          Gwendolyn K. Brown Baton Rouge, Louisiana Counsel for Defendant/Appellant Darrion O. Burks

          BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

          GUIDRY, J.

         The defendant, Darrion O. Burks, was charged by bill of information with one count of attempted second degree murder (count I), a violation of La. R.S. 14:27 and La. R.S. 14:30.1, and one count of aggravated criminal damage to property (count II), a violation of La. R.S. 14:55. He pled not guilty to both counts. Following a trial by jury, the defendant was found guilty as charged on both counts. On count I, the trial court sentenced the defendant to fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence. On count II, the trial court sentenced the defendant to five years at hard labor and a $2, 500 fine, but suspended the sentence, placed the defendant on supervised probation for a period of five years subject to certain conditions, including paying the fine, and ordered this sentence to run consecutively with the sentence for count I. The defendant now appeals, raising four assignments of error. For the following reasons, we affirm the conviction and sentence on count I, affirm the conviction, amend the sentence, and affirm as amended on count II, and remand to the Eighteenth Judicial District Court with instructions.

         STATEMENT OF FACTS

         On the morning of September 28, 2014, Stanley Brue and Jonathan Nelson drove up to Brue's trailer in New Roads. The defendant's grandmother lived across the street, and as Brue and Nelson approached Brue's trailer, Brue noticed the gold Chevrolet Trailblazer the defendant usually drove parked on the side of his grandmother's house. Brue exited the vehicle and leaned back into the vehicle to continue talking to Nelson. He then heard someone approach him and say, "Come off it. Come off it. Let me get it. Let me get it," and a gun went off, and he began "scuffling" with the defendant. The defendant fired about seven times and shot Brue twice before running away. By the time Brue was placed into Nelson's vehicle to go to the hospital, the Trailblazer was gone. Dr. Admir Seferobic, Brue's treating physician in the emergency room, testified that Brue's injuries were life-threatening.

         Felicia Powell, Brue's fiancee, saw the fight and saw the defendant flee into a gold Trailblazer after the last shot was fired. Another witness, Desarell Lacour, testified that she saw the fight and stated it "looked like a drug deal gone bad." Powell later saw the gold Trailblazer on the adjacent street and informed police that the defendant had gotten into that vehicle after the shooting. The police traced the vehicle in question to Brittany Hill, the defendant's cousin. Police then located the defendant and arrested him only several streets away from the crime scene.

         Phondal Guyton, Brue and Powell's neighbor, reported to police that two bullets "whip[ped] through her trailer" while she was sleeping; police also observed bullet holes from the fight between Brue and the defendant in Guyton's trailer, in addition to finding bullets on Guyton's bed. Although police did not find any DNA evidence from the shell casings found at the crime scene, police found evidence of only one gun for the shots recovered from Brue's body and the shots fired into Guyton's trailer. Shell casings recovered at the scene indicated they were from a forty caliber gun. The State and the defense also stipulated that the casings came from the same gun.

         ASSIGNMENTS OF ERROR

         In his first assignment of error, the defendant claims the trial court "erred by considering improper factors when tailoring a sentence for this young defendant." In his second assignment of error, the defendant claims the trial court erred by imposing an excessive sentence. In his third assignment of error, the defendant claims the trial court erred by imposing the sentences consecutively. In his fourth assignment of error, the defendant claims he was denied effective assistance of counsel because his counsel failed to file timely a motion to reconsider sentence.

         EXCESSIVE SENTENCE

         We will address the defendant's excessive sentence claim, even though no timely motion to reconsider the sentence imposed or contemporaneous objection was made before the trial court, since it would be a necessary part of his assigned error as to ineffective assistance of counsel, and to do so is in the interest of judicial economy. ...


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