State v. Freeman, No. 45,127-KA (La. App. 4/14/2010)
| Decision Date | 14 April 2010 |
| Docket Number | No. 45,127-KA.,45,127-KA. |
| Parties | STATE OF LOUISIANA, Appellee, v. JEMARIO Q. FREEMAN, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
W. JARRED FRANKLIN, LOUISIANA APPELLATE PROJECT, Counsel for Appellant.
CHARLES REX SCOTT, II, District Attorney, DAMON DANIEL KERVIN, TOMMY J. JOHNSON, Assistant District Attorney, Counsel for Appellee.
Before CARAWAY, MOORE and LOLLEY, JJ.
Jemario Freeman was charged by bill of information with armed robbery and attempted second degree murder arising from a robbery and shooting at a liquor store. After a bench trial, Freeman was found guilty on both counts and sentenced to 65 years at hard labor as a second felony offender on the armed robbery, and to a concurrent 45 years at hard labor on the attempted second degree murder. He now appeals his convictions and sentences; we affirm.
On the evening of October 6, 2004, two black men entered the Thrifty Liquor store on Hollywood Avenue at St. Vincent in Shreveport's Caddo Heights neighborhood. The shorter man, wearing a black hat or hood, pulled a handgun and fired a shot into the ceiling. One of the cashiers, Tracy Harrison, turned around and tried to run to the rear of the store, but the gunman fired a shot that ripped through her buttocks and groin; she immediately fell to the floor, bleeding profusely. The taller robber grabbed money from three of the cash registers; the men then fled toward Woodrow Street. Corporal Mason testified that officers searched the area but could not locate the suspects.
Arriving within minutes, Shreveport police officers and EMT personnel initially thought Ms. Harrison was dead, but they managed to revive her on the stretcher. She was driven to LSU Health Sciences Center and underwent emergency surgery to repair a severed femoral artery; without the operation she would have died. She testified that she spent eight days in the hospital and now walks with a limp.
Detective McConnell testified that Ms. Harrison apparently was popular with her customers; Shreveport Crime Stoppers was virtually inundated with calls, many of which implicated "Mario" and "Gregory" as the robbers. With this information, Det. McConnell captured Gregory Jenkins, who gave a statement implicating the defendant, Jemario Freeman.
Officers then located and arrested Freeman, who gave a recorded statement on October 9. In his statement he implicated himself and three associates, Gregory Jenkins, Kerry Colbert and Christopher "G Face" Kimble, in planning and executing the robbery and ultimately splitting the money.
The state initially charged Freeman, Colbert, Jenkins and Kimble with one count of armed robbery. The other three conspirators pled guilty and received sentences of 10 to 15 years with no multiple billing. The state then filed an amended bill charging Freeman with armed robbery and attempted second degree murder. Prior to trial in January 2007, the state rejected Freeman's pro se offer to plead guilty in exchange for a 15-year sentence, and Freeman elected a bench trial.
The shooting victim, Tracy Harrison, and three other eyewitnesses testified about the robbery and shooting; their accounts contained slight discrepancies as to minor details. Ms. Harrison described two men entering the store, the shorter of whom fired a shot into the ceiling and told her, "B****, I got you now — you can't leave." She tried to run because she recognized he was holding a large, military-style 9 mm handgun. She had no recollection of events after she was hit until EMTs revived her. Customer Joella West recalled that three men entered the store, firing a total of three shots; one of the men shouted, "Give me the money." Customer Randy Mayhorn recalled two men entering, the shorter of whom brandished a gun, fired five to eight shots and said, "Give me the money — I want all of it." Store employee Benjamin Donathan testified that he was in the rear of the store and heard about six gunshots; one of the robbers shouted, "I'm gonna kill every m***** f***** in here!"
Store manager Anthony Brewster, who was not present when the robbery occurred, testified that a total of $1,389 was taken from three cash registers that evening. Sergeant Danny Duddy of the CSI unit testified that no fingerprints were taken at the scene.
Freeman's associate, Kerry Colbert, testified that he was now serving 15 years for this crime. He testified that Freeman counted out the proceeds of the robbery, giving Colbert $250, and then burned his dark-colored jacket. Colbert claimed not to recall, however, that anyone got shot, and maintained that most of his statement to the police was false as officers pressured him to talk.
Detective Rod Demery testified that he interviewed all four suspects, including Freeman on October 9, some five days after the robbery. At a "free and voluntary" hearing held during trial, Det. Demery confirmed that he gave Freeman his Miranda warnings, that Freeman signed a waiver (which was introduced in evidence) and did not appear to be under the influence of drugs or alcohol, that he (Det. Demery) exerted no threats or coercion, and that the statement appeared to be free and voluntary. An audiotape of the statement was played in open court. In it, Freeman often mumbled and digressed, but he clearly admitted that he and three friends, Kimble, Colbert and Jenkins, planned to hit a "lick" on Thrifty Liquor: Colbert supplied two handguns, Freeman and Colbert walked into the store, Kimble stood watch outside and Jenkins drove the car. Freeman admitted firing one shot into the ceiling, one into a cigarette display and a final shot behind the counter where the cashiers were standing; he insisted he did not mean to shoot the cashier. He also admitted ordering the cashiers to give him the money, and getting about $800, which the four men divided. He maintained that he fired the gun only to get the money and get out, and he felt bad that somebody was hit.
The court found Freeman guilty as charged on both counts. The state then charged him as a second felony offender, based on a prior conviction for simple burglary in May 2004. On the armed robbery charge, the court adjudicated him a second felony offender and sentenced him to 65 years at hard labor without benefits. On the attempted second degree murder charge, the court sentenced him to a concurrent 45 years at hard labor without benefits. The court denied motions for new trial, post verdict judgment of acquittal or modification of judgment, and reconsideration of sentence. This appeal followed.
By his first assignment of error, Freeman urges the evidence was insufficient to prove beyond a reasonable doubt his guilt of either charge. He contends the state failed to prove a specific intent to kill Tracy Harrison, an essential element of attempted second degree murder. State v. Gatti, 39,833 (La. App. 2 Cir. 10/13/05), 914 So. 2d 74. In support, he cites his own statement to Det. Demery that he never intended to shoot anyone, as well as the testimony of the victim and the two customers, Mayhorn and West, none of whom heard him say he intended to kill anyone. He submits that the one store employee, Donathan, who heard the gunman threaten to kill everybody was far from the scene and did not see the shooting. He also argues that neither of the two bullets recovered from the scene was aimed in the victim's direction, and the liquor display between himself and the victim surely obstructed his view, negating any specific intent to hit her. Finally, he submits that the testimony of his former codefendant, Kerry Colbert, was equivocal and unreliable.
As to the armed robbery count, Freeman contends that the evidence established only that after the incident, some $1,389 was missing from the cash registers; the only witness to place him with the stolen money was Colbert, who again was not worthy of belief.
The state responds that Freeman's own statement to Det. Demery established that he planned a robbery, armed himself, entered the store and fired several shots, including one directly at Tracy Harrison, and later divided the proceeds with his codefendants. The state urges that the specific intent to kill may be inferred from the act of aiming and firing a weapon at another person. State v. Burns, 1998-0602 (La. App. 1 Cir. 2/19/99), 734 So. 2d 693, writ denied, 99-0829 (La. 9/24/99), 747 So. 2d 1114. The state suggests that just because he fired through a liquor display did not alter his intent to hit a cashier. The state concludes that the evidence was sufficient to support both convictions.
The standard of appellate review for sufficiency of the evidence 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." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Tate, 2001-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124 S. Ct. 1604 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La. 2/22/06), 922 So. 2d 517. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La. 1/19/06), 921 So. 2d 94. In the absence of internal contradiction or irreconcilable...
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