State v. Harrell, 18-KA-63
| Decision Date | 17 October 2018 |
| Docket Number | NO. 18-KA-63,18-KA-63 |
| Parties | STATE of Louisiana v. Lavelle M. HARRELL a/k/a Big Mike |
| Court | Court of Appeal of Louisiana — District of US |
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Thomas J. Butler, Douglas W. Freese, Gretna, Rachel L. Africk
COUNSEL FOR DEFENDANT/APPELLANT, LAVELLE M. HARRELL A/K/A BIG MIKE, Cynthia K. Meyer
Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
Defendant appeals his conviction and sentence for possession of a firearm by a convicted felon. For the following reasons, we affirm. We also remand to the trial court for correction of the commitment and the uniform commitment order.
Defendant, Lavelle M. Harrell a/k/a "Big Mike," was charged by indictment with the second degree murder of Ronald Perrier and Jonas Perrier, violations of La. R.S. 14:30.1 (), and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count three).1 Defendant pleaded not guilty at his arraignment.
Defendant proceeded to trial before a twelve-person jury, which found him guilty as charged on count three, possession of a firearm by a convicted felon. However, the jury was unable to reach a verdict on the second degree murder charges, resulting in a mistrial on counts one and two. The trial court sentenced defendant, on count three, to twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.2 Defendant now appeals, challenging the sufficiency of the evidence used to convict him of possession of a firearm by a convicted felon.
At approximately 6:49 p.m. on the evening of January 27, 2014, brothers Ronald Perrier and Jonas Perrier were shot and killed outside of 932 E. Monterey Court in Terrytown, Louisiana. Defendant and his co-defendants were implicated in the murders by the victims' brother, Jessie Perrier, who testified that he was present at the time his brothers were killed4 and witnessed defendant shoot at his brother Ronald and then flee the scene. Jessie explained that in the weeks leading up to the murder of his brothers, his brother Ronald was involved in a dispute with defendant/co-defendants.
Jessie provided statements to the police based upon the events he witnessed, and as a result, arrest warrants were issued for defendant and his four co-defendants. Defendant's cell phone was seized at the time of his arrest. Pursuant to a search warrant, a forensic analysis was performed on defendant's cell phone. Several photographs were obtained from defendant's cell phone including pictures found on his camera roll depicting him holding firearms with specific metadata indicating the make and model of the phone which took the photograph and the following "capture" dates: December 19, 2013 and January 25, 2014.5 A photograph without metadata, depicting defendant holding a firearm while standing with his arm around a woman, was also recovered from defendant's text messages. The information gleaned from the text message indicated that it had been received by defendant on January 5, 2014, but it did not indicate the capture date.
Deputy Donna Quintanilla, an expert in the field of latent print processing and comparison, compared defendant's fingerprints taken on the day before trial to those contained in a certified conviction packet for case number 04-1936 of the Twenty-Fourth Judicial District Court, in which defendant pleaded guilty to the felony offense of distribution of marijuana within one-thousand feet of a playground, in violation of La. R.S. 40:981.3. Based on the fingerprint comparison, Deputy Quintanilla testified that defendant was the same person convicted of violating La. R.S. 40:981.3 in 2004, which formed the basis for the instant conviction of possession of a firearm by a convicted felon.
In his sole assignment of error, defendant argues the evidence is insufficient to support the verdict of possession of a firearm by a convicted felon. Defendant contends the only testimony presented by the State at trial to show he possessed a handgun was provided by Jessie Perrier—a witness whose testimony was rejected by the jury as evidenced by the jury's inability to reach a verdict on the second degree murder charges. He further submits that the photographs downloaded from his cellular phone and introduced into evidence which depicted him with handguns, specifically State's Exhibits 79H and 79I, do not clearly show that he was actually holding a handgun. Defendant also argues that the State failed to prove that one of the photographs, State's Exhibit 79K, was taken within the date range alleged in the indictment.
The State responds that the evidence is sufficient to support the conviction of possession of a firearm by a convicted felon. The State asserts that eye witness Jessie Perrier testified that he observed defendant shoot at the victims, and that any contradictions to Jessie's testimony concern witness credibility and do not establish that the evidence was insufficient to support the verdict. The State also submits that the photographic evidence retrieved from defendant's cellular phone and introduced at trial establishes that defendant was in possession of various handguns during the relevant time period in question.
The standard of review for determining the 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When addressing the sufficiency of the evidence, consideration must be given to the entirety of the evidence, both admissible and inadmissible, to determine whether the evidence is sufficient to support the conviction. State v. Hearold , 603 So.2d 731, 734 (La. 1992).
It is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence. State v. Clark , (La. 12/19/16), 220 So.3d 583, 626. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. Id. ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, 929, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). Thus, a reviewing court may impinge upon the fact finder's discretion "only to the extent necessary to guarantee the fundamental protection of due process of law." Clark , 220 So.3d at 626 ; State v. Mussall , 523 So.2d 1305, 1310 (La. 1988). Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness's testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall , 04-3139 (La. 11/29/06), 943 So.2d 362, 369.
In order to convict a defendant of illegal possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt that the defendant had: (1) possession of a firearm; (2) a prior conviction for an enumerated felony; (3) an absence of the ten-year statutory period of limitation; and (4) the general intent to commit the offense. State v. Chairs , 12-363 (La. App. 5 Cir. 12/27/12), 106 So.3d 1232, 1250, writ denied , 13-306 (La. 6/21/13), 118 So.3d 413.
Actual possession of a firearm is not necessary to prove the possession element of La. R.S. 14:95.1. State v. Jones , 09-688 (La. App. 5 Cir. 2/9/10), 33 So.3d 306, 315, writ denied , 11-1301 (La. 3/2/12), 83 So.3d 1042. Constructive possession is sufficient to satisfy the element of possession. Id. ; State v. Day , 410 So.2d 741, 743 (La. 1982). A person is in constructive possession of a firearm if the firearm is subject to his dominion and control. State v. Johnson , 03-1228 (La. 4/14/04), 870 So.2d 995, 998. A person's dominion over a weapon constitutes constructive possession, even if it is only temporary in nature and even if control is shared. Id. at 999.
General intent requires a showing that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). In general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal. State v. Howard , 94-23 (La. 6/3/94), 638 So.2d 216, 217.
In the present case, the evidence was clearly sufficient to support defendant's conviction for possession of a firearm by a convicted felon. Deputy Quintanilla testified that she took defendant's fingerprints the day before the commencement of this trial and compared those to the fingerprints contained in a certified conviction packet from a distribution of marijuana within one-thousand feet of a playground (a violation of La. R.S. 40:981.3 )6 charge, to which defendant pleaded guilty on May 17, 2004, and was sentenced on June 1, 2004. The indictment in this case alleges defendant committed the crime of possession of a firearm by a convicted felon between January 27, 2013 and January 27, 2014. Thus, evidence of defendant being a convicted felon, as well as the date of his previous conviction being within the ten-year cleansing period, was presented to the jury.
The jury was also presented with photographic evidence7 retrieved through the course of a forensic analysis performed on defendant's cellular phone seized at the time of his arrest, including:
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