State v. Gay
| Decision Date | 23 October 2002 |
| Docket Number | No. 358-KA., No. 357-KA, No. 36 |
| Citation | 830 So.2d 356 |
| Parties | STATE of Louisiana, Appellee v. William Lamar GAY, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Louisiana Appellate Project, by Amy C. Ellender, for Appellant.
Indigent Defender Board, by Jack W. "Buddy" Slaid, Minden, Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, C. Sherburne Sentell, III, L. Charles Minifield, Assistant District Attorneys, for Appellee.
Before GASKINS, KOSTELKA and DREW, JJ.
William Lamar Gay, Jr. ("Gay") was charged by bill of indictment with the crime of attempted first degree murder while engaged in the perpetration of an armed robbery1 and by bill of information with armed robbery. After a consolidated trial on the charges, a jury convicted Gay of attempted second degree murder, La. R.S. 14:30.1, 14:27 and armed robbery, La. R.S. 14:64. The trial court sentenced Gay to consecutive hard labor sentences of ninety-nine years for the armed robbery and fifty years for the attempted murder, each to be served without benefit of parole, probation or suspension of sentence. After the denial of a timely motion for reconsideration of sentence, Gay appeals the convictions and sentences. We affirm.
At approximately 2:00 p.m. on the afternoon of February 4, 2000, Connie Hill ("Hill") was alone in her Springhill, Louisiana home when the back doorbell rang. Thinking it might be her husband returning home early from a meeting, Hill, a sixty-seven year-old retiree, opened the door to find Gay standing outside. She recognized him as one of a group of men that she and her husband, Johnny Hill ("Johnny"), occasionally paid to do yard work and odd jobs. It was not unusual for Gay to come to the Hill home to solicit work. Normally, when Johnny was not at home, Hill would inform Gay of that fact and he would leave. On the day in question, Hill informed Gay that Johnny was not at home. She then heard him say something that she did not understand, so she opened the door a second time. Gay asked her when Johnny would be back and she told him she was not sure. Remembering that Gay lived some distance away, Hill suggested that he later call her husband. Hill left the doorway to look for something with which to write her phone number for Gay. With her back to Gay, Hill walked into the next room. When she turned around, Gay was standing inside her home and pointing a black gun at her. Gay told Hill to "come here." She ran at him "hollering" and asked him why he was doing this to her. Gay became nervous and agitated and told Hill to shut up or he would shoot her. Gay then told Hill he wanted money and Hill offered him the $100 she had in her purse in the bedroom. Gay then told Hill to get some "silver" duct tape. He accompanied Hill to the storage room in the carport, but Hill could not find any tape. Gay ordered Hill to get an extension cord he saw on the carport floor. Hill attempted to walk away, but Gay threatened to shoot Hill if she did not come back. She decided not to try to run, went back into the house with Gay, and handed him the hundred-dollar bill from her purse. Gay demanded more money, but Hill told him that the hundred-dollar bill was all she had in the house and explained to him that she and her husband kept their money in a bank. Gay told Hill to call the bank and handed Hill the phone and they made the phone call. However, when a recording answered, they decided that the bank must be closed. Gay then tied Hill's hands tightly in front of her using the extension cord and asked for the keys to the Hill's 1977 Lincoln automobile located in the carport. Hill told him where the keys were kept. Gay retrieved the keys, took them to Hill and asked which key fit the car. When Hill showed him the key, Gay noticed that Hill had loosened the cord from around her hands and arms. Hill explained that the cord cut her skin and hurt her hands and arms, and that she could not stand it. Gay did not retie Hill but told her again that he wanted more money. Gay mentioned a bank branch in Springhill and asked Hill if she thought that bank would cash a check. Hill said she did not know but offered to try. Gay asked Hill how much money she would give him if he would "let her go." Hill said, "Five thousand dollars," got a checkbook out of her purse, and began to write out the check. Gay indicated that they would go to the bank.
As she walked in front of Gay, Hill explained that she did not know if the bank would cash a check, but told Gay, "We'll see." Gay told her, "I'll tell you what, you don't worry about it." Then Hill perceived Gay was about to shoot her. Gay then shot Hill from behind, striking her shoulder and neck. Stunned, Hill immediately fell to the floor and pretended to be dead. A few seconds later, Hill heard the gun click, but not fire. Gay left Hill lying in the hallway and walked past her.
From the floor, Hill saw Gay walk around in the front part of her house two or three times. Then Gay went outside and Hill heard him try to start her car. When Hill was sure of Gay's location, she managed to get up and escape her house through a sliding door into her backyard. She hid behind a metal storage building where she could not be seen by Gay and attempted to push through her fence. On her third push, the fence broke. Hill went through the fence, injuring her legs, walked into her neighbors' back door and told them she had been shot. She could still hear Gay attempting to start her car, so she asked her neighbors to lock the door and call 911.
When the police arrived at Hill's neighbors' house, Hill mistakenly gave the name of the perpetrator as "Washington." Hill was taken to a local hospital by ambulance, and her husband, Johnny, was notified. In the emergency room, Hill realized that she had mistakenly given the police the name "Washington."
Hill's physical exam revealed that Gay's bullet missed severing Hill's carotid artery by only a millimeter, and her legs were badly damaged. After emergency surgery for her wounds, Hill suffered a severe heart attack that was caused by the stress of her ordeal. She was treated in the critical care unit of a Shreveport hospital and hospitalized for a considerable time.
On the day of the crime, Gay was located at a residence on Boucher Circle in Cullen, Louisiana, where he was hiding under a pile of clothes. According to police testimony, Gay subsequently confessed that he went to Springhill and shot the victim. Gay led police to the exact location of a gold bicycle that he allegedly rode to the crime scene and that was located approximately one block from his residence. On April 14, 2000, police recovered a 9 mm. spent shell casing from the Hill home. The blood-stained check written by Hill, and the electrical cord that was used to tie her hands, were also recovered from the scene.
In his first assignment of error, Gay argues that the evidence was insufficient to identify him as the perpetrator of the offenses.
The record reflects that Gay failed to file a motion for post-verdict judgment of acquittal. Of course, a sufficiency of the evidence complaint is appropriately raised by such a motion. La.C.Cr.P. art. 821. Nevertheless, this court will consider sufficiency-of-the-evidence arguments raised by assignment of error. State v. Green, 28,994 (La.App.2d Cir.02/26/97), 691 So.2d 1273.
When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.
The criterion for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational fact-trier could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard, initially enunciated in Jackson and now legislatively embodied within La. C.Cr.P. art. 821, is applicable in cases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La. 1983).
An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that a defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Owens, 30,903 (La.App.2d Cir.09/25/98), 719 So.2d 610, writ denied, 98-2723 (La.02/05/99), 737 So.2d 747.
This court's authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. Bosley, supra.
In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.04/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.02/21/97), 688 So.2d 520.
Armed robbery is the taking of...
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