State v. Brown

• Decision Date: 03 October 2007
• Docket Number: No. 2007-388.,2007-388.
• Citation: 966 So.2d 1138
• Parties: STATE of Louisiana v. Robert Wayne BROWN.
• Court: Court of Appeal of Louisiana — District of US

966 So.2d 1138

STATE of Louisiana v. Robert Wayne BROWN.

No. 2007-388.

Court of Appeal of Louisiana, Third Circuit.

October 3, 2007.

Rehearing Denied November 21, 2007.

James C. Downs, District Attorney, Alexandria, LA, for Plaintiff/Appellee State of Louisiana.

Annette Fuller Roach, Louisiana Appellate Project, Charles, LA, for Defendant/Applicant Robert Wayne Brown.

Robert Wayne Brown, Kinder, LA, In Proper Person Robert Wayne Brown.

Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.

GREMILLION, Judge.

The defendant, Robert Wayne Brown, was convicted of attempted first degree murder, a violation of La.R.S. 14:27 & 30; terrorizing, a violation of La.R.S. 14:40.1; and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. The trial court sentenced him to ten years at hard labor for terrorizing, twenty years at hard labor for attempted murder, and ten years at hard labor for possession of a firearm by a convicted felon, with all three sentences to run concurrently.

Defendant now appeals his convictions and sentences, assigning eleven errors through counsel, and another four errors pro se. For the following reasons, Defendant's conviction and sentence for attempted first degree murder is affirmed; his conviction for terrorizing is reversed and the sentence is vacated; his conviction for possession of a firearm by a convicted felon is reversed and the sentence is vacated, and the matter is remanded for further proceedings.

FACTS

On July 30 and 31, 2005, Defendant made several telephone calls to the Alexandria Police Department threatening to shoot any officers who patrolled in his neighborhood. He also claimed to have explosives in his house and threatened some police officers by name. On the morning of August 1, he called for the chief of police and left an apologetic voice-mail. However, in a subsequent voice message he renewed the threats. Later that day, Defendant became embroiled in an argument with his next-door neighbors. He armed himself with a rifle and began firing. The victims retreated inside their home. Defendant shot through a box fan mounted into their kitchen window and wounded one of the victims, Jerry Harrell, in the shoulder.

Police responded to the scene and laid siege to Defendant's house. Attempts to force him out with teargas were unsuccessful, so the authorities had his utilities cut off. Shortly after midnight, he emerged from his house, and police took him into custody.

SUFFICIENCY OF EVIDENCE

In his first three assignments of error, Defendant argues that the evidence that was submitted against him at trial was insufficient to support each of his three convictions. Because each of these assignments of error involve the same or similar issues, we shall examine them together. The analysis for such claims is well-settled:

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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (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 witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers 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 this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

First Degree Murder

Defendant's most serious conviction was for attempted first degree murder. First degree murder is defined by La.R.S. 14:30, which states, in pertinent part:

A. First degree murder is the killing of a human being:

. . . .

(3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.

Attempt is defined by La.R.S. 14:27, which states, in relevant part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Defendant argues that the State failed to prove that he had the intent to kill any of the victims. In response, the State asserts that specific intent to kill may be inferred from a defendant's act of aiming and firing a weapon at another person. State v. Burns, 98-602 (La.App. 1 Cir. 2/19/99), 734 So.2d 693, writ denied, 99-0829 (La.9/24/99), 747 So.2d 1114.

Defendant's neighbor, Emma Harrell, one of the victims in this case, testified that Defendant aimed a .22-caliber rifle directly at her son, Jerry, and fired. Mrs. Harrell testified that the shots came so close to her that she "could feel the heat." When Mrs. Harrell and Jerry, and Jerry's girlfriend (his wife at the time of trial), Adrian, got inside their house, Jerry moved toward his mother, and a bullet hit him in the upper arm.

As we have noted, on direct examination, Mrs. Harrell testified that Defendant shot at her son, but the bullets came close to her. However, at the beginning of cross-examination, she stated that Defendant aimed at her and her son. Jerry testified that it was difficult to state exactly at whom Defendant was aiming because Jerry, his mother, and his girlfriend were less than an arm's length from one another. Adrian testified that Defendant shot at Jerry and also at Mrs. Harrell. Further, Mrs. Harrell testified that at one point Defendant told her, "Emma, if you don't get out of the way, the next bullet is going to be yours."

Based on that evidence, we look to the case of State v. Smith, 31,955, pp. 10-11 (La.App. 2 Cir. 5/5/99), 740 So.2d 675, 682, writ denied, 00-1404 (La.2/16/01), 785 So.2d 840, which has a similar scenario to the instant case:

Finally, the defendant contends that the state did not prove specific intent. Specific criminal 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). Specific criminal intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Williamson, 27,871 (La.App. 2d Cir.4/3/96), 671 So.2d 1208, writ denied, 96-1143 (La.10/4/96), 679 So.2d 1380; State v. Maxie, 93-2158 (La.4/10/95), 653 So.2d 526; State v. Johnson, 27,522 (La. App. 2d Cir.12/6/95), 665 So.2d 1237.

It is clear that the specific intent that is needed to support the defendant's conviction for first degree murder was established by the defendant taking a loaded assault rifle and shooting it multiple times into a house full of children, killing miraculously only one person. The defendant told the police he knew that the Cadillac containing the individuals who had shot at him earlier left the premises of the Johnson residence before he and Pickrom arrived with a loaded gun. The defendant admitted that he knew several children between the ages of 10 to 17 lived in that house. He also conceded that when he and Pickrom arrived at the house, no one was in the front yard, but he saw a light on inside of the house. The defendant clearly had specific intent. State v. Butler, 618 So.2d 572 (La.App. 2d Cir.1993), writ denied, 624 So.2d 1226 (La.1993).

The reasoning of Smith applies to this case. Defendant aimed and fired at three people who were close together and continued to fire as they fled into the house. Although Defendant's comment to Mrs. Harrell that she should get out of the way suggests he initially intended to shoot only Jerry, the same comment, combined with Mrs. Harrell's refusal to step aside, and Defendant's act of continuing to shoot, demonstrated that he had the specific intent to kill or inflict great bodily harm upon multiple victims.¹ Therefore, we find that there was sufficient evidence presented by the State to prove attempted first degree murder and that any rational trier of fact could have found that the essential elements of that crime were proven beyond a reasonable doubt. Accordingly, this assignment of error has no merit.

Terrorizing

La.R.S. 14:40.1 defines terrorizing as:

[T]he intentional communication of information that the commission of a crime of violence is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; or causing evacuation of a building, a public structure, or a facility of transportation; or causing other serious disruption to the general public.

(Emphasis added).

James Hay, the assistant chief of police, testified that on July 30, 2005, other officers consulted him regarding threatening calls from Defendant. Hay further testified that he was informed that Defendant called the Alexandria Police Department and threatened to kill any officer that patrolled in his neighborhood and also told police that he had explosives in his house. Officers consulted Hay again the next day due to continued threatening calls made by Defendant, and Hay advised the shift commander to suspend normal patrols on Defendant's street. Hay also advised the head of the...