State v. Glover

• Decision Date: 08 November 2012
• Docket Number: No. 47,311–KA.,47,311–KA.
• Citation: 106 So.3d 129
• Parties: STATE of Louisiana, Appellee v. Orlando Maurice GLOVER, Appellant.
• Court: Court of Appeal of Louisiana — District of US

106 So.3d 129

STATE of Louisiana, Appellee

v.Orlando Maurice GLOVER, Appellant.

No. 47,311–KA.

Court of Appeal of Louisiana,Second Circuit.

Oct. 10, 2012.

Rehearing Denied Nov. 8, 2012.

Letty S. Di Giulio, for Appellant.

Charles Rex Scott, District Attorney, R. Bennett Langford, III, Suzanne M. Owen, Kodie K. Smith, Assistant District Attorneys, for Appellee.

Before WILLIAMS, STEWART and CARAWAY, JJ.

CARAWAY, J.

[2 Cir. 1]After a jury trial on two counts of attempted second degree murder, Orlando Maurice Glover was found guilty of two counts of attempted manslaughter in violation of La. R.S. 14:31 and 14:27. Following an adjudication as a second felony offender, Glover was sentenced to concurrent sentences of 35 years at hard labor without benefit of parole, probation, or suspension of sentence on each count and ordered to pay court costs through the inmate banking system. Glover appeals his conviction and sentence. We affirm the conviction and amend the sentences.

Facts

In the late summer of 2007, 17–year–old Orlando Glover drove his vehicle at an excessive speed through the parking lot of an apartment complex located at 4305 Illinois Street in Shreveport, Louisiana. After 19–year–old James Maiden thought that Glover was trying to run him over, the two men briefly argued. Nothing further happened that day between the parties but the following day, the two men again exchanged words.

In the early afternoon of September 14, 2007, Maiden and two friends, including 12–year–old A.M. and Lucas White Johnson, were at the apartment complex sitting outside Jareika White's apartment. At some point, Glover walked up and “said something” to the group. Maiden challenged Glover to a fight and the defendant pulled a gun out of his waistband and started shooting. White was exiting her apartment with her 4–month–old baby when the argument and shooting were taking place. At that time, the child was struck in the leg by a bullet. Those standing outside [2 Cir. 2]ran into White's apartment as Glover continued to shoot. A.M. was also hit by a bullet in his right upper arm. Five or six shots were fired by Glover who then ran away.

After developing Glover as a suspect in the case, police prepared a photographic lineup on the same day as the shootings. Maiden, A.M., Johnson and White positively identified Glover as the shooter. A Crime Stoppers tip eventually led police to Glover who was arrested and charged with two counts of attempted second degree murder. A jury convicted him of two counts of attempted manslaughter. Glover was adjudicated a second felony offender based upon a 2007 illegal use of a weapon conviction which involved Glover's negligent discharge of a firearm at a house. He was sentenced to concurrent sentences of 35 years at hard labor without benefit of parole, probation or suspension of sentence.¹

After sentencing, Glover moved for a new trial which was denied by the trial court. Glover also sought reconsideration of his sentence on the grounds that the court failed to consider mitigating factors and imposed excessive sentences. The court denied that motion on March 23, 2011. This appeal ensued.

On appeal, Glover argues that the state's evidence was insufficient to overcome his proof that he acted in self-defense. He also argues that the trial judge's failure to instruct the jury regarding the burden of proof in self-defense[2 Cir. 3]cases violated his due process rights and right to present a defense and that his trial counsel was ineffective in failing to object to the trial judge's decision. Finally, Glover argues his sentences were constitutionally excessive considering the mitigating circumstances of the offense and his status as a juvenile.

Discussion

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), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347,writ denied,97–1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim 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, supra;State v. Tate, 01–1658 (La.5/20/03), 851 So.2d 921,cert. denied,541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); [2 Cir. 4]State v.Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181,writ denied,08–0499 (La.11/14/08), 996 So.2d 1086. 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 fact finder. State v. Pigford, 05–0477 (La.2/22/06), 922 So.2d 517;State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833,writ denied,09–0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94–3116 (La.10/16/95), 661 So.2d 442. 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. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685,writ denied,09–0725 (La.12/11/09), 23 So.3d 913;State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758,writ denied,07–1209 (La.12/14/07), 970 So.2d 529.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582,writ denied,09–0372 (La.11/6/09), 21 So.3d 299;State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622,writs denied,02–2595 (La.3/28/03), 840 So.2d 566,02–2997 (La.6/27/03), 847 So.2d 1255,cert. denied,540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any [2 Cir. 5]witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99–0023 (La.1/26/00), 775 So.2d 1022,cert. denied,531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

The offense of manslaughter is defined as a homicide that would be second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31; State v. Miller, 36,003 (La.App.2d Cir.7/25/02), 824 So.2d 1208,writ denied,02–2480 (La.6/27/03), 847 So.2d 1253. Sudden passion and heat of blood are mitigatory factors in the nature of a defense which exhibits a degree of culpability less than present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986); State v. Williams, 44,977 (La.App.2d Cir.1/27/10), 32 So.3d 902,writ denied,10–0368 (La.9/24/10), 45 So.3d 1071.

To support a conviction for attempted manslaughter, the state must prove the defendant specifically intended to kill the victim and committed an overt act in furtherance of that goal. State v. Jackson, 42,960 (La.App.2d Cir.2/13/08), 976 So.2d 279;State v. Mitchell, 39,305 (La.App.2d Cir.2/17/05), 894 So.2d 1240,writ denied,05–0741 (La.6/3/05), 903 So.2d 457. See also State v. Williams, supra. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied,[2 Cir. 6]494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Jackson, supra. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Draughn, 05–1825 (La.01/17/07), 950 So.2d 583,cert. denied,552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Linnear, 44,830 (La.App.2d Cir.12/9/09), 26 So.3d 303;State v. Jackson, supra. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Jackson, supra.

In a given situation, a person may shoot at an intended victim with the specific intent to kill or inflict great bodily harm and accidentally kill or inflict great bodily harm upon another person. In such instance, if the killing or infliction of great bodily harm would have been unlawful against the intended victim, then it would be unlawful against the person actually shot. This is the doctrine of transferred intent. State v. Shivers, 43,731 (La.App.2d Cir.12/3/08), 998 So.2d 877,writ denied,09–0161 (La.10/30/09), 21 So.3d 274;State v. Strogen, 35,871 (La.App.2d Cir.4/3/02), 814 So.2d 725,writ denied,02–1513 (La.12/13/02), 831 So.2d 983;State v. Johnson, 29,629 (La.App.2d Cir.8/20/97), 698 So.2d 1051.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and review of that determination is to be guided by the standard of Jackson v. Virginia, supra.State v. Linnear, supra.

The use of force or violence upon the person of another is justifiable under La. R.S. 14:19 when committed for the purpose of preventing a [2 Cir. 7]forcible offense against the person or a...