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State v. Spears

Court of Appeals of Louisiana, Fifth Circuit

December 11, 2019

STATE OF LOUISIANA
v.
JOHN SPEARS

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-119, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING.

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux, Juliet L. Clark.

          COUNSEL FOR DEFENDANT/APPELLANT, JOHN SPEARS, Cynthia K. Meyer.

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, DEPARTMENT OF JUSTICE, Jeffrey M. Landry, J. Taylor Gray.

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson.

          MARC E. JOHNSON JUDGE.

         Defendant/Appellant, John Spears, appeals his conviction and life sentence for second-degree murder from the 24th Judicial District Court, Division "C". For the following reasons, Defendant's conviction and sentence are affirmed.

         FACTS AND PROCEDURAL HISTORY

         On February 18, 2016, a Jefferson Parish Grand Jury returned an indictment charging Defendant with the second degree murder of Anthony Tardo, in violation of La. R.S. 14:30.1. Defendant pleaded not guilty at his arraignment on February 19, 2016. On May 17, 2016, Defendant withdrew his not guilty plea and entered a plea of not guilty and not guilty by reason of insanity. Trial commenced on June 13, 2017, before a 12-person jury.

         At trial, Officer Mark Stein of the Kenner Police Department testified that he responded to a shooting inside of Houston Marine, in Kenner, Louisiana, on December 4, 2015. Defendant was standing outside of the business next to his car with his hands above his head and an unloaded gun on top of the car. Officer Stein described Defendant as calm and cooperative. With the aid of Officer Gregory Alphonso, Defendant was detained and while being handcuffed, stated, "he's in the building . . . the man was messing with me."

         Officer Joshua Wilkerson, also of the Kenner Police Department, arrived at the scene shortly after Officer Stein and discovered that the victim, Anthony Tardo, had been shot and killed in his office.[1] Officer Wilkerson noted that a cartridge casing was in the hallway leading to the victim's office.

         Sergeant Herbert Hille was the lead detective on the case for the Kenner Police Department. He testified that after the shooting, Defendant exited the building and waited next to his vehicle for the police to arrive. He explained that Defendant had ejected the magazine and the round of ammunition from the gun and placed them on top of his vehicle. Sergeant Hille testified that a spent casing and a projectile were recovered inside the building where the victim was shot. After ballistics testing was performed, it was concluded that the cartridge casing found in the hallway outside the victim's office was fired by the gun located on top of Defendant's vehicle.

         Leonard Sampson, an employee and instructor at Houston Marine, testified that on the afternoon of the shooting, he passed Defendant in the parking lot and recalled telling Defendant that he was leaving early to pick up his son, to which Defendant replied, "I'm just going to go into the building and shoot everybody." Mr. Sampson described Defendant as a quiet employee but believed that there was "something going on." Mr. Sampson also described the victim as a superior supervisor, noting that he never personally knew of any disputes between Defendant and the victim.

         Andrew Plack, also an employee at Houston Marine, testified that he was in the file room near the front of the building when he heard the victim say, "what the f-k," and then heard a loud bang. When Mr. Plack went into the hallway to investigate, he observed Defendant standing outside the doorway to the victim's office. Mr. Plack testified that initially his attention was focused on the ground where he observed an object spinning in the middle of the hallway. Believing the noise he heard was a CO2 powered car they played with in the office, he asked Defendant if the noise was "the toy car," to which Defendant responded, it "wasn't the stupid car." Eventually Mr. Plack realized that the spinning object was a cartridge casing and that Defendant had a gun in his hand. Defendant, who was expressionless, then stated to Mr. Plack that the victim was "going to need some first aid," before leaving the building. When Mr. Plack entered the victim's office, he noted that the victim was lying face down. In his statement to the police, Mr. Plack indicated that Defendant "had something weird going on," testifying that Defendant had "some strange ways of doing things and he used to yawn a lot at inappropriate times."[2] Mr. Plack was also unaware of any work-related issues that might have been going on between the victim and Defendant.

         Patrick O'Carroll Jr. was also an employee at Houston Marine and had seen Defendant that morning. Mr. O'Carroll noted that it was out of the ordinary that Defendant had not shaved in a day or two. At the time of the shooting Mr. O'Carroll was not in the building but recalled receiving a phone call concerning the shooting later that afternoon. Mr. O'Carroll testified that he had a conversation with Defendant about "how crazy the world was getting," in reference to their discussion regarding a shooting that had just occurred in San Bernardino, California the day before the shooting.

         Houston Marine instructor, William Klein, was in the building at the time of the shooting. He testified that he was sitting in the office next to the victim's office with his back to the door. While talking to another co-worker, Mr. Klein heard a loud pop. When Mr. Klein went into the hallway, he observed Defendant standing there with a gun in his hand. He recalled that Defendant calmly told him someone was hurt and to call 9-1-1. Upon entering the victim's office, Mr. Klein observed the victim lying on the floor under the desk. Mr. Klein testified that Defendant did not appear shocked but was calm and seemed almost dazed.

         Gretchen Vallon, another co-worker, testified Defendant was acting "a little different than usual" and noted that he did not look like himself on the day of the shooting. She testified that Defendant was unshaven and not dressed in his usual work attire.[3] When she heard the gunshot, Ms. Vallon testified that she ran to the victim's office where Defendant was standing in the doorway holding a gun. When she asked Defendant what was going on, he told her that the victim needed an ambulance.[4] Her co-worker, Vickie Twilbeck, corroborated Ms. Vallon's testimony and further noted that, after the shooting, it appeared that Defendant had no remorse. However, on cross-examination, Ms. Twilbeck testified that she told the police that it did not appear that Defendant wanted anything permanent to happen to the victim and that he appeared to be in "disbelief." Co-worker James Gilless also added that after the shooting, Defendant's face was stoic and expressionless.

         Shirley Andrews testified that she worked with Defendant, and that, on the morning of the shooting, she asked Defendant about his upcoming birthday. She recalled that Defendant did not respond at first but then told her, "it doesn't matter." Ms. Andrews testified that Defendant had a "blank stare" when talking to her; however, she did not find this strange as "that's the way he was all the time." She stated that Defendant was not a man of many words, but on that particular day, he appeared as though he was "confused almost." Ms. Andrews also testified Defendant was not a very social person and did not have a lot of motivation. Ms. Andrews further recalled a time when Defendant told her that the victim did not like him and that is why Defendant "just comes into the office, does his job, and then goes home."

         Mary Wooten confirmed that Defendant was always well-groomed but appeared "real rough" and "scruffy" on the day of the shooting. Ms. Wooten testified that on the day of the shooting, Defendant neglected to sign in as required for all instructors; thus, Ms. Wooten reported Defendant to her boss-the victim. Ms. Wooten also spoke to Defendant regarding the unsigned form and was told by Defendant he would get to it later. Later that day, Defendant went into Ms. Wooten's office and signed the form. Ms. Wooten confirmed that the victim often encouraged Defendant, as he did all of the employees at Houston Marine, to better themselves and to learn as much as possible. She testified that she assisted the victim with the scheduling of classes, and she occasionally requested that certain instructors "shadow" a class being taught by another instructor. Ms. Wooten recalled that, on a couple of occasions, Defendant would refuse to shadow the class to which he was assigned; so, she had to report Defendant to the victim.

         After the shooting, Defendant was transported to the Kenner Police Department, where a health and property screening was conducted. Pursuant to the health screening, Defendant was asked about any medical conditions he may have had, and Defendant indicated that he had diabetes, high cholesterol, kidney issues, and depression. He further indicated that he was on medication for his diabetes, cholesterol, and kidneys. It did not appear to the booking officer, Caitlin Wadsworth, that Defendant was down or depressed, hearing voices, reacting strangely, disoriented, or suicidal. Officer Wadsworth testified that Defendant was calm and polite during their interaction. Defendant had in his possession several different medications for his diabetes and high blood pressure, including Metformin, Pioglitazone, Lisinopril, Glipizide, Lantus, and NovoLog.

         While in jail, Defendant placed a phone call to his wife. During the phone call, he told his wife that he "f--ked up. Mother f--ker just kept aggravatin' me and aggravatin' me, and aggravatin' me." When his wife questioned him as to why he did not "just walk away," Defendant responded, "[w]ell that's what I say now, that's what I say. I say, I say that every day. I say f--k, I say I bring my coun . . . my son to counselin' to handle, to . . . to be able to deal with his anger and yet I go off and do sumpin it . . . an . . . and this happens." He further told his wife that the victim kept "f--kin" with him. During the phone call, Defendant also spoke to his children, informing them that he had "made a terrible mistake" and should have "just walked away." He cautioned his children about letting their anger get the best of them and warned them not to let "somebody aggravate you, push you to that point." Defendant further acknowledged that he should have quit or just "walked away from this motha f--ka." Before ending the phone call, Defendant informed his wife of his upcoming bail hearing, stating, "only thing that can help me maybe, maybe is uh is my VA medical records where I got an . . . and stress with depression and uh you know stuff like that." At the end of the call, his wife stated that she would do all she could to help him.

         After the State rested, the defense called Emmett Spears, Defendant's brother. Emmett, a registered nurse, testified to the history of mental illness in their family. He explained that his mother suffered from depression, and his three uncles and one aunt have paranoid schizophrenia. He stated that because of his family's history, he choose to work as a psychiatric mental health nurse. Emmett testified regarding changes he saw in his brother that were of concern to him. He explained that in 2012, Defendant disclosed to him that he believed a Caucasian male was following him. Emmett found this odd, as he did not observe any such activity. He also testified about Defendant's paranoia regarding his wife's alleged infidelity. Emmett further stated that he had knowledge of Defendant hearing voices and testified that Defendant was prescribed psychotropic medication, which he was unable to take because they were prohibited at Houston Marine due to Coast Guard regulations.

         Defendant's wife, Sabrina Spears, also a registered nurse, testified that sometime around 2010-2012, Defendant was diagnosed with schizophrenia and depression. As a result, Defendant was prescribed medications for these conditions, which she stated helped him initially but that he stopped taking his medication because they interfered with his ability to work. She explained that when Defendant did not take his medications, he became paranoid, irritable, and irrational.

         Mrs. Spears described an instance when Defendant purchased a device to search their house for any recording devices that might have been hidden in their home. She also recalled that Defendant removed some mirrors from their home and kept the curtains drawn because he felt someone was watching them. Another time, she stated she awoke in the middle of the night to find Defendant standing in the street looking around. Mrs. Spears further discussed Defendant's suspicion regarding her own activities. On one occasion, Mrs. Spears stated that she received a phone call from Defendant warning her not to go home because someone was at the house. There was another instance when the FBI called her because her husband reported that her life was in danger. With respect to his job, Mrs. Spears testified that Defendant would complain that "they [were] sabotaging his computer," and that they had cameras watching him at work.

         On the morning of the shooting, Mrs. Spears recalled that Defendant was fidgety, irritated, unshaven, and was wearing wrinkled clothing. Mrs. Spears testified that she only learned of the shooting the evening after it happened, when she received a phone call from her sister informing her about it. She further testified that Defendant only carried a gun with him when he would check on their rental properties. Mrs. Spears admitted that she spoke to Defendant after the shooting, and he explained to her the bills that needed to be paid, doctors' appointments for their children that needed to be taken care of, and medical records from the VA medical facility that he needed her to obtain.

         Defendant testified on his own behalf that he received his GED when he was 16 years old and that he went to college but never graduated. He testified that he served in the army for two years but was honorably discharged for being "unable to adapt to military life." He then worked offshore for a number of years before he started working at Houston Marine as a maritime instructor. According to Defendant, he has suffered from depression and schizophrenia while working at Houston Marine, for which he was receiving treatment at the VA medical center. Defendant identified notations in his medical records, which referenced diagnoses made in 2012 regarding his "delusional disorder" and "depressive disorder." He also identified a progress note from an office visit with endocrinology regarding his diabetes in December of 2014, which identified his past medical history, depression and paranoid schizophrenia. Defendant explained that the medications he was prescribed for those conditions made him drowsy and incapable of performing normal functions; thus, he admitted he was not always compliant in taking them. He further testified that, during his work as a merchant marine, he was required to obtain a waiver from the Coast Guard to take certain medications, which he was not able to obtain with respect to his psychotropic medications.

         Defendant testified that when he began working at Houston Marine as an instructor, he felt as though he was being undermined at work. He stated that he felt as if his work was being sabotaged. He also testified that, on a few occasions, he left work to find his car with flat tires from holes that had been punctured in their sides. Defendant believed he was being ridiculed at his workplace, stating that on one occasion, he overheard the victim and another employee call him a "stupid ass ni--er." From that point forward, he testified that he tried to keep his distance from the victim as much as possible. He admitted that, while he reported his delusions to his family members, he did not report them to his physicians because he did not "think about it at the time of the appointment."

         Defendant explained that on the date of the shooting, he planned on going to his rental property after work, so he brought his gun with him. He testified that when he arrived at his office, it was another normal day at work. But later in the day, he overheard the victim say something to another co-worker in the hallway, and noticed the two of them look at him and laugh. The next thing Defendant remembered, he was outside in the parking lot, unloading the gun, and placing it on top of his car. It was at that time that he saw the police come towards him. He did not recall firing the gun or speaking to any co-workers while in the building.

         On cross-examination, Defendant was questioned extensively regarding his medical history. Defendant confirmed that on May 11, 2015, as part of his employment requirements, he filled out an application for renewal of license and medical waiver on which he indicated he was taking a low dose of the medication Seroquel (a.k.a. Quetiapine) "as needed." According to a letter dated May 28, 2015, his physician, a staff psychiatrist at the VA medical center, explained that Defendant was prescribed the Seroquel for sleep and that the medication had not been refilled since May of 2014. In the letter from his physician, she also indicated that Defendant was last seen at the VA medical center on April 20, 2015, and was not currently prescribed any psychotropic medication. It was also noted on his license renewal application that Defendant answered "no" regarding any history of schizophrenia. Defendant explained that while he signed the application, a medical professional filled out the answers for him.

         Defendant was then questioned regarding various medical records obtained from his visits to the VA medical center. Specifically, on June 27, 2013, Defendant's medical records indicated that his mood was within normal limits, that he had been looking for a steady job, "and that he has reactive mood changes, which he considers normal." He further reported to his physician on that date that he was taking 50 milligrams of Quetiapine to help with irritability and sleep. Defendant denied any suicidal or homicidal thoughts and denied any auditory hallucinations, visual hallucinations, delusions, or paranoia. On January 30, 2013, while Defendant reported his anxiety, there remained no mention of any delusions or schizophrenia. Also, on February 25, 2013, Defendant reported to his physician that he was taking Quetiapine at bedtime but denied any side effects from his medication, and stated that his mood was variable. His physician noted that he continued to have difficulty trusting his wife and that they were going to start going to couples therapy. On the same visit, Defendant again denied auditory hallucinations, visual hallucinations, delusions, or paranoia. Defendant's progress note from December 15, 2014, indicated Defendant presented with no evidence of anxiety or depressed mood.

         Defendant also admitted at trial that in a progress note dated May 19, 2015, his physician indicated there was "no evidence of anxiety or depressed mood." He also did not report to his physician on May 19, 2015, that he had a family history of mental illness. Also, in another progress note dated April 20, 2015, the note read "he is no longer requiring the use of psychotropic. He is not interested in therapy or scheduled MH f/u[5] at this time." The note also indicated that Defendant denied any auditory hallucinations, visual hallucinations, delusions, or paranoia. Then on January 26, 2015, his physician noted there to be no evidence of anxiety or depressed mood. In sum, between 2012 and the date of the shooting on December 4, 2015, Defendant was not prescribed any other psychotropic medications other than Quetiapine, which his physician indicated was for sleep.

         In rebuttal, the State called Dr. Richard Richoux, expert in forensic psychiatry, who testified that he was ordered by the court, along with Dr. Rafael Salcedo, a forensic psychologist, to conduct a competency evaluation of Defendant to determine his sanity at the time of the offense.[6] Dr. Richoux testified that in conducting his examination, the first step was to determine whether Defendant suffers, or may have previously suffered, from an identifiable mental disease or defect. Next, if a mental disease or defect is identified, it must then be determined whether that mental disease or defect prevented Defendant from being able to appreciate the wrongfulness of the criminal actions he engaged in at the time of the offense. In order to make this determination, Dr. Richoux stated that he interviewed Defendant, reviewed the police reports and the statements given to the police, and read Defendant's medical records.

         Dr. Richoux testified that he, along with psychologist Dr. Rafael Salcedo, co-authored a report dated September 28, 2016, summarizing the findings of their evaluation of Defendant regarding his state of mind at the time of the December 4, 2015 offense. After review of Defendant's medical records, Drs. Richoux and Salcedo noted that Defendant was receiving treatment for depression and sleep difficulties at the Veterans Administration Hospital and being treated with low doses of Seroquel (a.k.a. Quetiapine), often prescribed for individuals with sleep difficulties. They noted that, while the records did make mention of a distant diagnosis of delusional disorder dating back to 2012, subsequent progress notes in the record made no mention of delusional disorder, [7] but rather, the ongoing diagnoses listed included depression, insulin dependent diabetes mellitus, and problems associated with his diabetes, including chronic pain.

         Dr. Richoux testified that it is only when Quetiapine is prescribed in doses of 1000 milligrams or more a day is it being used for anti-psychotic purposes. Defendant testified that his dosing was between 50 and 100 milligrams, which Dr. Richoux stated is often used to combat sleep difficulties. Dr. Richoux explained that Quetiapine is not a "first-line anti-psychotic," meaning that it is not the first drug that is prescribed to treat paranoid schizophrenia but rather is only typically prescribed as a "second-line" drug when the first-line drug has failed to produce the desired effect or because of adverse side effects from the first-line drug.

         Dr. Richoux also testified that when interviewing Defendant about his recollection of his thoughts and actions at the time of the offense, he indicated that his memory was hazy. However, Dr. Richoux believed Defendant demonstrated an adequate understanding as to why the police were on the way to the scene of the crime, seeming to suggest that he was capable of appreciating the wrongfulness of his actions and the illegality of them. Specifically, Dr. Richoux recalled that Defendant told him "[o]f course I was expecting the police to come. When you're sitting on the car and realizing what you just did, you figure, of course, they're coming." He also agreed that when someone tells another person to call 9-1-1 for help, it means they are aware that something bad has happened. Dr. Richoux then testified that "blackouts," as testified to by Defendant at trial regarding his recollection of the shooting, are not usually a symptom of paranoid schizophrenia or delusional disorder. However, Dr. Richoux admitted that there is no medical testing that can be performed to determine whether someone is telling the truth as to whether they remember the events that occurred during a certain period of time. Nevertheless, Dr. Richoux went on to testify that there is no direct relationship between blacking out and being unable to distinguish right from wrong while one is in a blackout state.

         Based on their assessment, Drs. Richoux and Salcedo failed to find evidence that Defendant

has ever suffered from a major psychiatric disorder, i.e., depression is a fairly common psychiatric disorder, which even in severe forms does not typically lead to such a level of behavioral and psychological disorganization as to so grossly impair an individual that they are incapable of distinguishing right from wrong, as opposed to more serious diagnoses such as schizophrenia or bipolar disorder. Otherwise, there was no indication of any other psychiatric problems or treatment for any other psychiatric issues.[8]

         Dr. Richoux testified that they determined, based on Defendant's description of his behavior at the time of the offense, Defendant "did not appear to have been manifesting symptoms of a psychiatric disorder, per se, and certainly not one which would have so gravely impaired him as to limit his capacity to distinguish right from wrong." Thus, Drs. Richoux and Salcedo concluded that Defendant was able to distinguish right from wrong at the time of the offense and recommended he be found to have been legally sane at that time.[9]

         At the conclusion of the trial, the jury returned a verdict of guilty as charged on June 15, 2017. On July 24, 2017, the trial court denied Defendant's oral motions for new trial and post-verdict judgment of acquittal and then sentenced Defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.[10] On May 22, 2018, Defendant filed a pro se letter inquiring into the status of an appeal, which the trial court construed as a request for an out-of-time appeal; thus, on June 1, 2018, the trial court granted Defendant an out-of-time appeal.[11] The instant appeal followed.

         ASSIGNMENTS OF ERROR

         On appeal, Defendant alleges six assignments of error, namely: 1) a verdict of not guilty by reason of insanity was required in this case; 2) the evidence was insufficient to support the verdict of second degree murder; 3) he was denied his right to a fair trial and an impartial, attentive, and alert jury; 4) the jury verdict should be declared invalid because it was not unanimous; 5) his life sentence is unconstitutionally excessive; and 6) the record on appeal is incomplete and inaccurate.

         LAW AND ANALYSIS

         Sufficiency of Evidence and Verdict of Not Guilty by Reason of Insanity

         In these interrelated assignments, Defendant argues he carried his burden of proving his insanity by a preponderance of the evidence through the testimony of his co-workers, his family, and his medical records. He contends the evidence presented showed he suffered from schizophrenia and delusional paranoia. Defendant avers that his mental illness deluded him into believing the victim was sabotaging his work, and that while under this delusion, he was unable to distinguish right from wrong at the time of the shooting. He maintains that the expert testimony presented by the State failed to rebut the evidence of insanity he presented. Defendant also argues the evidence is insufficient to support the verdict of second degree murder because he "blacked out" at the time of the shooting and thus was unable to form the requisite specific intent. Alternatively, he contends that due to his belief that the victim was sabotaging his work and directing racial slurs and ridicule toward him, at most, the evidence supports a verdict of manslaughter.

         The State responds that the jury heard from all witnesses and reviewed all the evidence and ultimately arrived at the conclusion that, despite Defendant's allegations of mental illness, Defendant was able to distinguish right from wrong at the time of the offense. Thus, viewing the evidence in the light most favorable to the prosecution, the State avers that any rational trier of fact could have concluded Defendant failed to prove by a preponderance of the evidence that Defendant suffered from a mental disease or defect which prevented him from distinguishing right from wrong at the time of the offense. It also maintains that Defendant's actions of pointing a loaded gun at the victim and shooting him in the chest support a finding by the trier of fact that Defendant acted with the specific intent to kill. The State further maintains that Defendant possessed the mental capacity to form specific intent and that he acted with such intent when he shot and killed the victim. Finally, the State contends the evidence does not support the lesser offense of manslaughter, and the evidence was sufficient to support the jury's second degree murder finding.

         Defendant was charged with second degree murder in violation of La. R.S. 14:30.1, which is defined as the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. Defendant changed his initial plea of "not guilty" to the plea of "not guilty and not guilty by reason of insanity." The jury rejected Defendant's insanity defense, finding him guilty as charged. Defendant argues that he met his burden of proving by a preponderance of the evidence that he did not know right from wrong at the time of the offense and, therefore, should be exempt from criminal responsibility. Defendant further argues that the State failed to carry its burden of proving he had specific intent to kill the victim, and alternatively, that the evidence presented by the State only supports a verdict of manslaughter.

         Defendant's argument regarding the sufficiency of the evidence will be addressed first. In considering an accused's plea of not guilty and not guilty by reason of insanity, the trier of fact must first determine whether the State has proven the essential elements of the charged offense beyond a reasonable doubt. State v. Abbott, 11-1162 (La.App. 5 Cir. 5/31/12); 97 So.3d 1066, 1068-69. The trier of fact may then proceed to the determination of whether the defendant was incapable of distinguishing between right and wrong at the time of the offense. Id., 97 So.3d at 1069.

         The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, the standard 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. Id. 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. State v. Flores, 10-651 (La.App. 5 Cir. 5/24/11); 66 So.3d 1118, 1122.

         Rather, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.; Jackson, 443 U.S. at 319; see also State v. Ortiz, 96-1609 (La. 10/21/97); 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Holmes, 98-490 (La.App. 5 Cir. 3/10/99); 735 So.2d 687, 690. It is not the function of the appellate court to assess credibility or re-weigh the evidence. State v. Smith, 94-3116 (La. 10/16/95); 661 So.2d 442, 443. The trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Bradley, 03-384 (La.App. 5 Cir. 9/16/03); 858 So.2d 80, 84, writs denied, 03-2745 (La. 2/13/04); 867 So.2d 688 and 08-1951 (La. 1/30/09); 999 So.2d 750.

         Defendant argues the State failed to prove he possessed the requisite specific intent to kill the victim, as nearly every witness who was present during the shooting testified that he requested help be called for the victim after he shot him. He also argues that the testimony at trial established he was not acting like himself on the day of the shooting and that he had no recollection of the shooting, which he maintains the State failed to refute as a reasonable hypothesis that he did not have the capacity to form specific intent. Alternatively, he argues, the State's evidence only supports a verdict of manslaughter.[12]

         Specific 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. R.S. 14:10(1). 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. Spears, 05-0964 (La. 4/4/06); 929 So.2d 1219, 1224; State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06); 942 So.2d 1099, 1111, writ denied, 06-2529 (La. 5/4/07); 956 So.2d 599. Specific intent may be inferred from the circumstances and from the defendant's actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim's injuries. Id.

         While Defendant is correct in his assertion that nearly all of his co-workers who were present at the time of the shooting testified that he stated to them that they should call 9-1-1, they also testified that Defendant was expressionless, calm, and appeared to have no remorse. Also, after the shooting, when asked by his wife what had happened, Defendant informed her that the victim just kept "aggravating" him. Moreover, the evidence presented at trial concerning Defendant's actions prior to the shooting established that he armed himself with a gun, entered his office building, walked down the hallway into the victim's office, shot the victim in the chest, and then walked back to the parking lot where he waited for the police. A defendant's act of aiming a lethal weapon and discharging it in the direction of his victim supports a finding by the trier of fact that the defendant acted with specific intent to kill. See State v. Hidalgo, 95-319 (La.App. 5 Cir. 1/17/96); 668 So.2d 1188, 1197. Mr. Sampson, an employee and instructor at Houston Marine, also testified that he passed Defendant in the parking lot and recalled telling Defendant that he was leaving early to pick up his son, to which Defendant replied, "I'm just going to go into the building and shoot everybody."

         Finally, although Defendant argues he had no recollection of the shooting, thereby lacking the capacity to form specific intent, the jury chose to reject Defendant's theory as to his specific intent in this regard and accept the evidence presented by the State that established Defendant's actions after the shooting contradicted his assertion that he "blacked out" and could not remember what happened. Specifically, Defendant told the arresting officer on the scene that the victim was in the building and that he "was messing with" him. Defendant also placed a recorded phone call to his wife while in jail where he told her that the victim "just kept aggravating" him and that in hindsight he should have just walked away. As previously noted, specific criminal intent may be inferred from the circumstances present in the case and the actions of the defendant. See Gant, supra. Further, there was no testimony presented that, even if the event could not be remembered, specific intent could not have been formed.[13] (See generally State v. Leroux, 641 So.2d 656 (La.App. 5th Cir. 1994), where evidence of the defendant's alcoholic blackout did not preclude a murder conviction).

         For these reasons, we find the evidence, when viewed in the light most favorable to the State, was sufficient to convince a rational trier of fact, beyond a reasonable doubt, that Defendant had the specific intent to kill the victim, thus, supporting the verdict of second degree murder.

         Defendant also argues he bore his burden of proving by a preponderance of the evidence that he was insane at the time of the offense through the testimony of his co-workers, his family members, and his medical records and, therefore, should be exempt from criminal responsibility.

         In Louisiana, the law presumes a criminal defendant is sane. Abbott, 97 So.3d at 1068 (citing La. R.S. 15:432). To rebut this presumption of sanity and avoid criminal responsibility, the defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. Id. (citing La. C.Cr.P. art. 652). This burden is not borne by proving the mere existence of a mental disease or defect. Rather, to be exempted from criminal responsibility, the defendant must show he suffered a mental disease or defect which prevented him from distinguishing between right and wrong at the time he committed the conduct in question. Id. (citing La. R.S. 14:14). The determination of sanity is a factual matter. Abbott, 97 So.3d at 1068.

         All evidence, including both expert and lay testimony, along with the defendant's conduct and actions before and after the crime, may be considered in determining whether the defendant has met his burden of proof. Abbott, 97 So.3d at 1069. A determination of the weight of the evidence is a question of fact that rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and if rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all of the evidence most favorable to the prosecution must be adopted. State v. Williams, 07-1407 (La. 10/20/09); 22 So.3d 867, 875-76, cert. denied, 560 U.S. 905, 130 S.Ct. 3278, 176 L.Ed.2d 1184 (2010).

         On review of a claim for sufficiency of evidence in an action where an insanity defense has been raised, the appellate court, applying the standard outlined in Jackson v. Virginia, supra, must determine whether under the facts and circumstances of the case, any rational fact-finder, viewing the evidence in a light most favorable to the prosecution, could conclude, beyond a reasonable doubt, that the ...


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