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State v. Bartholomew

Court of Appeals of Louisiana, Fifth Circuit

October 23, 2019

STATE OF LOUISIANA
v.
CORY BARTHOLOMEW

          ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 15, 514, DIVISION "B" HONORABLE E. JEFFREY PERILLOUX, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Bridget A. Dinvaut Geoffrey M. Michel

          COUNSEL FOR DEFENDANT/APPELLANT, CORY BARTHOLOMEW C. Gary Wainwright

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

          HANS J. LILJEBERG, JUDGE

         Defendant appeals his convictions and sentences for attempted second degree murder and aggravated criminal damage to property. For the following reasons, we affirm. We also remand for correction of an error patent.

         PROCEDURAL HISTORY

         Defendant, Cory Bartholomew, [1] was charged with three counts of aggravated assault with a firearm in violation of La. R.S. 14:37.4 (counts one, two, and three), attempted second degree murder in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count four), and aggravated criminal damage to property in violation of La. R.S. 14:55 (count five). On October 30 and 31, and November 2, 2017, trial was held on counts four and five only, and a twelve-person jury found defendant guilty as charged on both counts. On April 16, 2018, defendant was sentenced to imprisonment at hard labor for 40 years without benefit of parole, probation, or suspension of sentence on count four, attempted second degree murder, and imprisonment at hard labor for five years on count five, aggravated criminal damage to property, with the sentences to run concurrently with each other. [2]Defendant appeals.

         FACTS

         Darville Washington testified that on December 13, 2015, at approximately 4:00 p.m., his friends-Rickey Preston, Shawn Stipe, and Lee Eric Lockett-came to his house, after which they went to a parade in Gonzales. When the parade was over, they asked Mr. Washington to drop them off at Bozy's Lounge on Sixth Street in Edgard. Mr. Washington drove past Bozy's and then by a brown vehicle that he knew his cousin, Cory Bartholomew (defendant), was in. Mr. Washington subsequently "started burning rubbers," which he explained meant to apply the brake and gas pedals at the same time. Less than two seconds later, he saw defendant exit the driver's side of the brown vehicle, walk "straight up" behind the truck Mr. Washington was in, point something at him and "open fire" on the truck. Mr. Washington testified that although he was looking forward and was shot in the back of the neck, he was positive that defendant was the shooter. He explained that he was looking out of the back windshield and the side back windshield as defendant was exiting his vehicle and approaching the truck.

         Cameras around Bozy's captured the incident. Video of the incident was shown to the jury. While observing the video, Mr. Washington testified that he saw his truck pulling up, after which "Bosco," defendant's uncle, exited the brown vehicle and ran off. He testified that he then observed defendant "getting in the road," unloading his gun, and chasing after the truck. Mr. Washington testified that after the shooting, he drove back up Sixth Street to River Road away from defendant and Bozy's. As he was driving, he felt his body become weaker, and he thought he was going to pass out. Mr. Washington testified that he could not drive any further, so Mr. Preston began driving and brought him to Mr. Preston's sister's house on Teddy Lane in Edgard. The last thing Mr. Washington remembered before passing out was going down Sixth Street.

         Mr. Washington testified that he regained consciousness two days later at University Hospital. The police came and took his statement. They also showed him a six-man lineup, and he positively identified defendant as the shooter. Mr. Washington recalled writing on the lineup: "[b]eing in Edgard I used to hang with him, yes. He is the person that shot me."

         Mr. Washington stated that sometime after the incident, he was approached outside Bozy's one night by defendant's brother, Chris Bartholomew, and his mother, Simone Bartholomew. He testified that Chris asked how much money he would take to "sit down and let this go." He maintained that defendant's mother did not talk about money but said she hoped "this be gone [sic]" and that they could "work this out." Mr. Washington testified that when they approached him outside of Bozy's, he was alone, so he agreed to everything Chris said knowing that he was not going to go forward with it. He explained that he did not want to get caught in the same predicament as before and get shot again. Mr. Washington also asserted that Chris' "partner" came to him one time with $3, 000 and told him to take it, but he did not do so.

         Mr. Washington testified that when he was shot in the back of the neck, the bullet grazed his spinal cord and was still sitting in the center of his neck. He asserted that his doctors were afraid to take it out because it was "so close." Mr. Washington testified that his doctors told him that because he could still move his feet and "everything else," muscle tissue would grow around the bullet and hold it in the same spot.

         Detective Michael Pugh of the St. John Parish Sheriff's Office testified that he executed search warrants on a brown 2000 Ford Crown Victoria, which was the vehicle defendant was in, and a white 2015 Dodge Ram truck, which was the vehicle the victim was in. He took photographs of those vehicles during the search, which were later admitted at trial. Detective Pugh testified that he located a Louisiana State ID with defendant's name on it "in the dashboard" of the brown vehicle. He also recovered an unknown caliber projectile in the bed of the truck. Detective Pugh testified that he located a bullet hole on the back of the truck on the passenger side. He also noted that the rear glass of the truck on the driver's side had been shattered. Detective Pugh explained that there were bullet holes in the front and back of the rear seat headrest and bullet holes in the front and back of the driver-side seat headrest. He testified that the evidence indicated that one of the projectiles traveled from the rear shattered glass toward the driver's seat.

         Detective Byron Smith of the St. John Parish Sheriff's Office testified that on December 13, 2015, he was dispatched to East 14th Street regarding a subject who had been shot. When he walked inside the door, he observed Mr. Washington on his knees with his upper torso and head on the sofa. Detective Smith searched Mr. Washington's body while talking to him and found a wound on the back of his neck. Mr. Washington subsequently told Detective Smith that Cory Bartholomew had shot him on East Sixth Street in front of Bozy's. Detective Smith testified that there were many individuals inside the residence. He spoke to several of them who said they were in the truck, but they would not provide any additional information.

         Gilbert Bartholomew III testified that his nickname is "Bosco," that he lives in Edgard, and that defendant is his nephew. He further testified that on December 13, 2015, he was inside Bozy's Lounge cleaning up. He got two drinks and left, after which he got into his father's vehicle, the brown Crown Victoria, and went to sleep. Gilbert III testified that a couple of hours later he heard a gunshot, but he did not know where it was coming from. He explained that he raised his head and saw an individual running, so he ran. He denied that anyone was in the vehicle with him that night. Gilbert III asserted that everyone used that vehicle, and he did not know who was using it that night. He viewed video of the incident and identified himself exiting the vehicle and then running, but he denied seeing an individual getting out of the vehicle on the driver's side. Gilbert III testified that he did not know who shot Mr. Washington. He stated that he heard more gunshots while he was running and did not look back.

         Gilbert Bartholomew Jr. testified that he lives in Edgard and that defendant is his grandson. He also testified that he owns the brown Crown Victoria and that he allows his family, including defendant, to use it. Gilbert Jr. could not recall who had it on the night of December 13, 2015.

         Anthony Goudia testified that at the time of the incident, he was working as a detective for the St. John Parish Sheriff's Office, and he investigated the shooting in this case. He viewed the video of the incident and stated that it showed a light-colored car parked in the parking lot. He observed the exhaust and brake lights on the car and opined that it was running. In the video, Mr. Goudia then saw a white truck start to pass in front of the light-colored car. Prior to the truck getting a few feet away from the car, a black male ("Bosco") exited the passenger side and ran toward Bozy's. Mr. Goudia testified that immediately thereafter, he saw a short black male with "dreads" or long hair get out of the driver's side of the car, walk toward the street where the white truck was passing, get in the street, and start firing at the white truck.

         Mr. Goudia also testified that the video showed "Bosco" looking back toward the street where the white truck was passing and where the black male was shooting. Mr. Goudia quickly developed defendant as a suspect based on the victim's statement. He added that he had known of defendant for 10 or 12 years because he is from that area. He also testified that Gilbert Jr. told him that his grandson, defendant, had his vehicle that evening. Mr. Goudia noted that the video showed that before the shooting, the white truck was spinning its tires and making smoke, and the windows of the truck were up. He testified that he saw four flashes in front of the Crown Victoria and that the police recovered four shell casings on the scene that correlated with what he saw on the video. Mr. Goudia stated that no gun was ever recovered.

         Following Mr. Goudia's testimony, the State introduced the victim's medical records from University Medical Center into evidence.

         After the State rested its case, Simone Bartholomew testified that defendant was her son and that she "knew of" Mr. Washington. Ms. Bartholomew also testified that Mr. Washington followed her home after they came to court the last time. She claimed that she stopped at a grocery store and that Mr. Washington pulled on the side of her and asked her for $15, 000 or $20, 000 to pay his doctor bill. She claimed that Mr. Washington said he did not know who shot him. Ms. Bartholomew stated that she then drove away and called her attorney. She testified that she did not give Mr. Washington any money.

         Chris Bartholomew testified that he had a felony drug conviction and that defendant was his younger brother. He was not at Bozy's on December 13, 2015, when the incident occurred. Chris claimed that Mr. Washington approached him one or two weeks after he got out of the hospital and asked Chris to "pay him off" so "this could go away." He explained that he was a professional gambler and that he and Mr. Washington gambled together in the past. Chris asserted that Mr. Washington knew he carried a lot of money and that he asked for $15, 000. Chris said he told Mr. Washington that he did not have that kind of money. He claimed that Mr. Washington asked him for money on more than one occasion. Chris noted that he and defendant are close in age, that they live together, and that they "hang out a lot." He stated that he would do anything for defendant.

         Mr. Washington testified for the State in rebuttal that after a prior court hearing, he went to Bozy's, and defendant's mother was there. He explained that defendant's mother approached him, but he never told her that he did not know who shot him. Mr. Washington insisted that defendant shot him on December 13, 2015.

         LAW AND DISCUSSION

         In his first assignment of error, defendant contends that his conviction for attempted second degree murder violates due process. He argues that the evidence was insufficient to support this conviction, because the State did not prove beyond a reasonable doubt that he had the specific intent to kill the victim. Rather, he claims the evidence showed that Mr. Washington was merely wounded by ballistic fragments during the offense of aggravated criminal damage to property when a bullet hit the truck and fragmented, causing the victim to suffer a "minor wound." Defendant also complains the victim was allowed to falsely testify that he still had a bullet in his neck, which the State knew was incorrect, producing the impression ...


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