State v. Abdul

• Decision Date: 24 April 2012
• Docket Number: No. 11–KA–863.,11–KA–863.
• Citation: 94 So.3d 801
• Parties: STATE of Louisiana v. Hassan A. ABDUL.
• Court: Court of Appeal of Louisiana — District of US

94 So.3d 801

STATE of Louisiana

v.Hassan A. ABDUL.

No. 11–KA–863.

Court of Appeal of Louisiana, Fifth Circuit.

April 24, 2012.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Sunny Funk, Myles D. Ranier, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Hassan A. Abdul, Kinler, LA, Defendant/Appellant In Proper Person.

Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.

JUDE G. GRAVOIS, Judge.

[5 Cir. 3]Defendant, Hassan A. Abdul, appeals his conviction of attempted second degree murder, a violation of LSA–R.S. 14:27 and 14:30.1. On appeal, he argues four counseled assignments of error, and three pro se assignments of error. For the following reasons, we affirm defendant's conviction of attempted second degree murder, vacate defendant's adjudication as a multiple offender and the enhanced sentence imposed in connection therewith, reinstate and affirm the sentence originally imposed on defendant as of result of his conviction of attempted second degree murder, and remand for further proceedings.

PROCEDURAL HISTORY

On August 19, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Hassan A. Abdul, with attempted second degree murder (Count 1), in violation of LSA–R.S. 14:27 and 14:30.1, and possession of a firearm by a convicted felon (Count 2), in violation of LSA–R.S. 14:95.1. [5 Cir. 4]Defendant was arraigned the next day and pled not guilty. On April 4, 2011, the trial judge granted defendant's request to represent himself. On May 2, 2011, the trial judge granted defendant's motion to sever the two counts. Defendant's motion to suppress identification was denied on May 3, 2011. On May 3 and 4, 2011, the matter proceeded to trial on the attempted second degree murder charge only, and a twelve-person jury unanimously found defendant guilty as charged.

On May 16, 2011, defendant filed a motion for a new trial, which was denied that same day. The trial judge then sentenced defendant to imprisonment at hard labor for twenty-five years. The State then filed a multiple bill of information alleging defendant to be a second felony offender, and defendant denied these allegations. After a hearing on May 16, 2011, the trial judge found defendant to be a second felony offender. The trial judge then vacated defendant's original sentence and resentenced him under the multiple bill statute to imprisonment at hard labor for twenty-five years without the benefit of parole, probation, or suspension of sentence.

Also on May 16, 2011, defendant withdrew his not guilty plea as to Count 2 and pled guilty as charged. The trial judge then sentenced defendant to ten years imprisonment at hard labor on Count 2 without the benefit of parole, probation, or suspension of sentence, to run concurrently with the sentence on Count 1 and any other sentence being served by defendant. On May 18, 2011, defendant filed a timely motion for appeal that was granted. On May 20, 2011, defendant filed a timely motion to reconsider sentence that was denied. Defendant also filed a timely pro se motion for reconsideration of sentence on June 3, 2011 that was also denied.

[5 Cir. 5]FACTS

Christopher Young testified that on May 24, 2009, he was working at Knucklehedz,¹a bar he said was owned by him and defendant. After the bar closed about 2:45 a.m., Mr. Young went into the office and began “totaling out” the cash from the registers. Defendant was in the office as well. During that time, Mr. Young and defendant discovered that about $20.00 or $25.00 had been misplaced, and defendant became a little angry. Mr. Young then asked Jayven Tipado,² the bartender, to come into the office so that he could question her about the missing money. Ms. Tipado complied with that request, and the problem was subsequently resolved. Afterward, defendant rudely asked Ms. Tipado to leave the office.

After she left, Ms. Tipado sent a text message to Mr. Young saying that she did not mind assisting at the bar, but she was not going to let anybody talk to her that way. After Mr. Young explained to defendant that they needed all the help they could get, defendant had Ms. Tipado come back into the office, after which he apologized to her and paid her more money. Defendant and Ms. Tipado continued their conversation while Mr. Young continued “totaling out.” At approximately 3:00 a.m., Mr. Young said it was getting late, and he suggested that defendant and Ms. Tipado continue their conversation the next day. Defendant agreed and asked Ms. Tipado to leave the office and wait outside.

When defendant turned around, he said, “Chris, you don't think I'll shoot you, huh.” When Mr. Young asked defendant what he meant, defendant pulled a gun out from his waistband. Mr. Young did not know if defendant was joking. He asked him to put the gun away. Afterwards, defendant shot Mr. Young. [5 Cir. 6]Defendant then ran out the door, got on his motorcycle, and left. Mr. Young walked out of the office into the bar area and screamed for somebody to call the police because he had been shot by defendant. EMS came and took Mr. Young to the hospital. Later on, Mr. Young gave a statement to the police. He also positively identified defendant in a photographic lineup and in open court.

Ms. Tipado testified that she did not remember too much about the night in question, and she did not remember when Mr. Young got shot. She further testified that she had a young child and was reluctant to come to court. Ms. Tipado gave two statements to the police, but she only recalled the second one. Both statements were played for the jury. In her first statement, taken on May 24, 2009 at 4:26 a.m., Ms. Tipado said that when she went into the office, Mr. Young, defendant, and a third person ³ were arguing about money and the way defendant spoke to Ms. Tipado. Defendant, whom she testified was drunk, asked her to step out, and as soon as she did, she heard four shots. Afterwards, Ms. Tipado saw defendant run out of the office with a gun in his hand and then run out the door of the bar. She subsequently heard defendant's motorcycle pull off.

In her second statement taken on July 23, 2009, Ms. Tipado stated that defendant shot Mr. Young at approximately 3:30 a.m. on May 24, 2009. She explained that defendant and Mr. Young had an argument about a receipt and about the rude way defendant spoke to her. Afterwards, defendant asked her to step out of the office, and once she did, she heard at least four shots. Defendant then walked out with a gun, and defendant's wife brought the motorcycle “behind them.” Ms. Tipado further stated that she positively identified defendant as the [5 Cir. 7]perpetrator in a photographic lineup. She also positively identified defendant in open court.

Dr. Peter Meade, an expert emergency room trauma surgeon, testified that Mr. Young was shot seven times in his lower arm, left leg, abdomen, and buttocks. He further testified that no bullets perforated any organs or major blood vessels, but that all of the victim's injuries were potentially fatal and could have caused permanent injury. Dr. Meade asserted that the victim tested positive for alcohol.⁴ Sergeant Michael Goodwin of the Jefferson Parish Sheriff's Office testified that he recovered three fired cartridge casings from the office. Jené Rauch, an expert firearms and toolmark examiner, testified that all three casings were fired from the same weapon.

After the State rested its case, Hassan Alli–Abdul, defendant's father, testified that he was the owner of Knucklehedz, and that Mr. Young was a bartender and not an owner. Deputy Demyrus Coffie testified for the defense that although he had testified during the State's case that Mr. Young's condition after the shooting was very severe, he testified at a preliminary examination that Mr. Young's injuries were not life-threatening.

COUNSELED ASSIGNMENT OF ERROR NUMBER ONE

The evidence was insufficient to support the verdict in that it failed to prove beyond a reasonable doubt that the shooting was done with specific intent to kill given the abundant evidence of appellant's intoxicated state.

In his first counseled assignment of error, defendant argues that the evidence was insufficient to support the verdict in that the State failed to prove beyond a reasonable doubt that the shooting was done with the specific intent to kill, given [5 Cir. 8]the evidence of his intoxicated state.⁵ The State responds that defendant did not raise an intoxication defense at trial, and he cannot raise it for the first time on appeal. Alternatively, the State contends that there was nothing to indicate that defendant's state of intoxication was so great that it precluded the formation of specific intent.

The provisions of LSA–C.Cr.P. art. 726(A) require advance notice of intent to use the defense of voluntary intoxication. State v. Quinn, 479 So.2d 592, 596–97 (La.App. 1 Cir.1985). The record herein does not indicate that defendant filed a notice of intent to use intoxication as a defense as required by LSA–C.Cr.P. art. 726. In fact, defendant indicated at a hearing the day before trial and again after closing arguments that he was not going to raise such a defense.

Evidence of defendant's alleged intoxication did come out at trial, however. In her first statement, Ms. Tipado said that defendant was “very drunk as usual,” and that “he just was drunk on that liquor as usual and once he gets drunk, he doesn't think and this was the outcome.” The State did not object to evidence of defendant's intoxication at trial. Therefore, we will address the merits of this claim.⁶

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was...