96-1043 La.App. 3 Cir. 2/5/97, State v. Taylor

• Decision Date: 05 February 1997
• Citation: 688 So.2d 1262
• Parties: 96-1043 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1262

688 So.2d 1262

96-1043 La.App. 3 Cir. 2/5/97

STATE of Louisiana, Appellee, v. Anthony L. TAYLOR, Defendant-Appellant.

No. CR96-1043.

Court of Appeal of Louisiana, Third Circuit.

Feb. 5, 1997.

David Wayne Burton, De Ridder, for State of Louisiana.

Charles A. "Sam" Jones, III, De Ridder, for Anthony L. Taylor.

Before SAUNDERS, PETERS and AMY, JJ.

[96-1043 La.App. 3 Cir. 1] AMY, Judge.

This appeal arises from a case in which Defendant, Anthony L. Taylor, was convicted of aggravated battery, a violation of La.R.S. 14:34, and conspiracy to commit aggravated battery, a violation La.R.S. 14:26. Defendant appeals his convictions and sentences. We affirm.

DISCUSSION OF THE RECORD

On April 9, 1995, Winston Sheppard, a resident of Houston, Texas, was visiting his fiancee, Eurica Johnson, and their son in DeRidder, Louisiana. At approximately 5:00 p.m. on that day, they went to a local park, where Sheppard began playing basketball with a group of local men, including the defendant. During the basketball game, Defendant played on the opposing team, but he and the victim did not argue. However, Sheppard did have verbal exchanges with a spectator, Timothy "Peabody" Bradford. One of Johnson's brothers, Leonard, warned Sheppard not to argue. Leonard Johnson testified that he subsequently heard the defendant tell Peabody they would "get" Sheppard later.

[96-1043 La.App. 3 Cir. 2] After the game was over, Sheppard sat on a bench next to Peabody. At this time, Sheppard testified that the defendant ran in front of where he and Peabody were sitting and told Peabody, "It's on," while grabbing at his own front pocket.

Sheppard rose and crossed to where his fiancee and son were standing. While he was playing with his son, Peabody approached him from the rear, wielding a tree branch. Sheppard evaded Peabody, who was then restrained by another man, Chris Husband. Leonard Johnson then advised his sister and Sheppard to leave the park. They got in their car but apparently were unable to leave immediately because they were blocked by people or another car. A hostile crowd quickly gathered at the car; Peabody attacked again with the stick and broke it on the car. Sheppard was in the car, but had not closed the door. Peabody then threw a beer bottle into the vehicle and struck Ms. Johnson in the ribs. Sheppard exited the car. Although the victim tried to defuse the situation, Peabody launched a kick. Deciding the mob was a danger to Ms. Johnson and his son, the victim ran from the car, pursued by approximately fifteen people. The mob caught up with Sheppard at the edge of the park and continued punching and kicking him from all directions. Sheppard testified that, in the midst of the chaos, Defendant was hitting him in the chest where he was wounded.

At some point Chris Husband, who is a large man, intervened physically, and the mob subsided. However, there was one final attack, as yet another man threw a forty-ounce beer bottle into Sheppard's face, lacerating it and permanently blinding his right eye. Ms. Johnson pulled up, calling for him to get in the car, which he did. They left and sought medical and police assistance.

Defendant was charged by bill of information with aggravated battery, a violation of La.R.S. 14:34, and with conspiracy to commit aggravated battery, a violation of La.R.S. 14:26 and La.R.S. 14:34. On March 20, 1996, after a trial by jury, [96-1043 La.App. 3 Cir. 3] Defendant was found guilty of aggravated battery and conspiracy to commit aggravated battery.

On May 10, 1996, the district court sentenced Taylor to seventy-eight months at hard labor on the aggravated battery conviction, and thirty-nine months at hard labor on the conspiracy conviction. The sentences are concurrent, but consecutive with any sentence previously imposed.

Defendant now appeals his convictions and sentences. On appeal, defense counsel contends the trial court erred in: (1) refusing the defense's request for a mistrial due to a reference by the State, in opening statements, to the victim being attacked by a "gang of ... criminals, young hoodlums ..."; ¹ (2) allowing photographs of injuries to the victim caused by someone other than the defendant to be admitted into evidence; (3) allowing the State to supplement its discovery with photographs one day prior to trial; (4) refusing the defendant's request for production and submission into evidence of two statements used by the victim to refresh his memory during trial; (5) failing to disclose for review by defense counsel, statements from co-defendants which may be exculpatory for Defendant; (6) refusing defense counsel's request for a mistrial because of the State's failure to disclose exculpatory evidence believed to be in the transcript from State v. Johnson, No. Cr-249-95; (7) allowing into evidence certain hearsay statements of co-defendants; (8) failing to require disclosure and/or production by the State of statements made by a witness and the victim which were inconsistent with their testimony at trial; and, (9) denying the defendant's request for post-conviction bail. Defense also requests that this court review the record to [96-1043 La.App. 3 Cir. 4] determine if the evidence presented by the State was sufficient to prove Defendant's guilt to the crimes charged beyond a reasonable doubt, and, for errors patent.

ANALYSIS

ERRORS PATENT

La.Code Crim.P. art. 920 provides the scope of review on appeal, as follows:

The following matters and no others shall be considered on appeal:

(1) An error designated in the assignment of errors; and

(2) An error that is discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence.

In accordance with this article, all appeals are reviewed for errors patent on the face of the record. After a review of the record, we find no errors patent. ²

SUFFICIENCY OF EVIDENCE

Defendant contends that the evidence presented by the State was insufficient to support a conviction for the crimes charged. In the interest of justice, because insufficiency is a structural error that would result in the defendant's acquittal, it must be addressed before the trial errors alleged in the other assignments. State v. Hearold, 603 So.2d 731 (La.1992).

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 [96-1043 La.App. 3 Cir. 5] La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact-finder to weigh the respective credibility of the witness, and therefore the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt.

A determination of the weight of evidence presented is a question of fact. The resolution of a matter where conflicting testimony exists requires a determination of credibility of the witnesses and is a matter of weight of the evidence and not sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. State v. Nolan, 503 So.2d 1186 (La.App. 3 Cir.), writ denied, 507 So.2d 226 (La.1987).

A fact-finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Where rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all evidence most favorable to the prosecution must be adopted on review. Only irrational decisions to convict by the trier of fact will be overturned. See State v. Mussall, 523 So.2d 1305 (La.1988).

The defendant was convicted under La.R.S. 14:34 which states:

Aggravated battery is a battery committed with a dangerous weapon.

Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.

"Battery" is defined by La.R.S. 14:33:

[96-1043 La.App. 3 Cir. 6] Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.

Defendant was also convicted of conspiracy to commit aggravated battery. Conspiracy offenses are governed, in pertinent part, by La.R.S. 14:26(A):

Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.

If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other.

We will first address the aggravated battery charge. On this charge, the record is replete with evidence. The victim, Winston Sheppard, testified that the defendant hit him in the chest where he was wounded. Although no weapon was produced, a photograph of the chest wound, depicting apparent cuts, was introduced at trial. Furthermore, medical testimony...