State v. Hailey

• Decision Date: 28 February 2007
• Docket Number: No. 41,897-KA.,41,897-KA.
• Citation: 953 So.2d 979
• Parties: STATE of Louisiana, Appellee v. Michael Kevin HAILEY, Appellant.
• Court: Court of Appeal of Louisiana — District of US

953 So.2d 979

STATE of Louisiana, Appellee v. Michael Kevin HAILEY, Appellant.

No. 41,897-KA.

Court of Appeal of Louisiana, Second Circuit.

February 28, 2007.

Rehearing Denied March 29, 2007.

Anita D. McKeithen, Shreveport, for Appellant.

Paul J. Carmouche, District Attorney, Dale G. Cox, William J. Edwards, Jonathan Thompson, Assistant District Attorneys, for Appellee.

Before BROWN, WILLIAMS, and SEXTON (Pro Tempore), JJ.

BROWN, Chief Judge.

Defendant, Michael Kevin Hailey, was tried and convicted of the attempted second degree murder of Jeremy Craig and sentenced as a fourth felony habitual offender to 87 years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now appeals, urging three assignments of error. For the reasons set forth below, defendant's conviction and sentence are affirmed.

Discussion

Sufficiency of the Evidence

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, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132.

To be guilty of attempted murder, a defendant must have the specific intent to kill; the mere intent to inflict great bodily harm is insufficient to convict a defendant of attempted first or second degree murder. State v. Davis, 41,245 (La. App. 2d Cir.08/09/06), 937 So.2d 5; State v. Mitchell, 39,305 (La.App. 2d Cir.02/17/05), 894 So.2d 1240, writ denied, 05-0741 (La.06/03/05), 903 So.2d 457.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed 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, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Ellis, 28,282 (La.App. 2d Cir.06/26/96), 677 So.2d 617, writ denied, 96-1991 (La.02/21/97), 688 So.2d 521.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. It is for the factfinder to weigh the credibility of the witnesses and a reviewing court should not second guess those determinations. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975); State v. Dean, 528 So.2d 679 (La.App. 2d Cir.1988).

The incident occurred close to 2:00 a.m. on March 28, 2004, in the parking lot at Tony's Hilltop Bar in Vivian, Louisiana. The victim, Jeremy Craig, testified that he, his wife, Shannon, and a few of their friends were in the bar relaxing. Also at the bar were defendant, Michael Hailey, his brother, Chad Weaver, their mother, Kathy Weaver, and Chad's girlfriend, Donna Williamson. Neither Craig nor any of his friends were acquainted with defendant, a resident of Atlanta, Texas, prior to this incident.

Defendant got into an argument with a man named Rodney and they went outside and fought. The owner of the bar, Tony Gardner, went outside to monitor the situation, and, according to Jeremy Craig, a female bartender asked him to go outside and help the bar owner. The fight between defendant and Rodney stopped soon thereafter, and defendant and his brother, Chad Weaver, got into their car to leave. However, another bar patron known as "Scooby" reached into the vehicle and slapped Chad. At that point, defendant and Chad got out of the car to fight with Scooby.

In an effort to break up the fight, several patrons grabbed Scooby while Jeremy Craig grabbed Chad. Craig described what happened next:

I was holding Chad back. I just turned around. I seen his brother [the defendant] heading my way. I took my eyes back off of him and looked back that way. You know, the second time I looked around, I seen him swinging at me.... I tried to dodge away from him.... That's when I noticed I was cut .... [on] my right arm.... It felt like somebody had thrown a drink on me. I felt my arm go numb, and I looked down and blood was shooting out . . . of my arm.

Craig's friend, Angela Polite, and another witness, Teresa Rogers, testified that Craig had been trying to break up the fight between Chad and Scooby when they saw that defendant had something in his hand. They saw defendant pick Craig up then slam him to the ground. Ms. Polite saw blood "gushing" or "spurting" out of Craig's arm "like somebody had turned on a faucet." Afterwards, Ms. Polite saw defendant wipe his hands down the front of his pants before putting them both in his pockets. Ms. Rogers described defendant's look as "raging" or "cold."

After Gardner pulled defendant off of Craig, a volunteer fireman arrived and began caring for the victim. Shortly thereafter, Caddo Parish Sheriff's Office ("CPSO") Deputy Eric Lawrence arrived. When Dy. Lawrence saw how badly Craig was injured, the deputy called for the air ambulance. Craig was flown to LSU Medical Center by helicopter ambulance.

Detective Stacy Cowgill interviewed defendant the day after the incident. According to defendant, he threw the first punch at Jeremy Craig but said that it was done in self-defense. Defendant admitted that he slammed Craig to the ground, but denied stabbing him. According to defendant, he did not even have a knife. Defendant stated that at the time of his confrontation with Craig, his brother Chad was fighting with two or three other people. Defendant's mother came into the CPSO the next day and told Detective Cowgill that Jeremy Craig had stabbed her son Chad, so Chad must have been the one who stabbed Jeremy. According to Ms. Weaver, Dy. Cowgill had arrested the wrong person and if anyone should have been arrested, it was Chad.

Both Craig and Angela Polite identified defendant at trial as the man who had cut and stabbed Craig. Teresa Rogers was not able to positively identify defendant. Ms. Rogers said that defendant resembled the Kevin Hailey that she knew.

Defendant's only witness, Russell Green, who was a friend of defendant's father, testified that he was running the karaoke machine at Tony's Hilltop Bar the night of the altercation and witnessed part of the fight between Craig and defendant. Green stated that he helped break up the fight. He said that he helped pull defendant out of the fight, and when he did so, defendant basically "pulled back" and stopped fighting. Green testified that he did not see defendant with a knife.

The victim, Jeremy Craig, testified that he was able to move or dodge out of the way of the first blow that defendant struck with his knife. This first and strongest blow was a thrust, rather than a slash, and was directed toward the victim's chest. Apparently because the victim was able to move, defendant only struck the victim's elbow rather than a more vital location. However, witnesses graphically described the gushing flow of blood caused by this injury, saying that blood was "shooting" or "spurting" from the wound. Even so, defendant pressed his attack, and at one point picked the victim up by the throat and slammed him down onto the concrete. Further, the victim's bloody shirt had five lacerations and the victim suffered other cut wounds to his chest; this demonstrates the sustained efforts of defendant to cut the victim in a vital area.

Defendant might well have been facing a second-degree murder charge rather than an attempted-murder charge but for the fact that others on the scene broke off defendant's attack and the victim was transported by air ambulance to the hospital.

Also in this assignment of error, defendant challenges the evidence that he was correctly identified as the perpetrator of the offense. In State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047, 1051,¹ the supreme court observed:

[W]hen the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations.

(Citations omitted.) Although there were some discrepancies between various witnesses' descriptions of defendant's clothing and hairstyle, there was no testimony that the victim fought with or was harmed by any person other than defendant. Indeed, the witnesses unanimously identified defendant as the person with whom the victim was fighting when he sustained the serious stab wound to his arm. There was no substantial question that defendant and not his brother Chad or any other person was the perpetrator of this offense.

This assigned error is without merit.

Denial of Post-trial Motions

On appeal, defendant repeats the arguments he raised in each of his three motions for a new trial in the district court.

Communication by Juror

The first motion for new trial was based upon a conversation that defendant's attorney had with one of the jurors after the conclusion of the trial. According to counsel, the juror, Troy Trussell, approached defendant's attorney at a party a few days after the trial. Defense counsel told the court that when counsel asked the juror how the jury found specific intent to kill, the juror responded, "We didn't, we went on the great bodily harm part." Further, the juror told counsel that, "We told (the two dissenting jurors who wanted to vote for attempted manslaughter) that if he had just hit him once, it would have been manslaughter, but because he kept hitting him it couldn't be attempted manslaughter." Counsel for defendant did not subpoena the juror to testify nor was there a proffer of an affidavit from the juror.

Louisiana Code of Evidence article 606(B) provides:

Inquiry into validity of verdict or indictment. Upon an...