State v. Lavy

• Decision Date: 11 March 2014
• Docket Number: No. 2013 KA 1025.,2013 KA 1025.
• Citation: 142 So.3d 1000
• Parties: STATE of Louisiana v. Derichard W. LAVY.
• Court: Court of Appeal of Louisiana — District of US

142 So.3d 1000

STATE of Louisiana

v.Derichard W. LAVY.

No. 2013 KA 1025.

Court of Appeal of Louisiana, First Circuit.

March 11, 2014.

Hillar C. Moore, III, District Attorney, Dale R. Lee, Assistant District Attorney, Baton Rouge, LA, for Plaintiff/Appellee State of Louisiana.

Lance C. Unglesby, Baton Rouge, LA, for Defendant/Appellant Derichard W. Lavy.

Before PARRO, GUIDRY, AND DRAKE, JJ.

GUIDRY, J.

The defendant, Derichard W. Lavy, was charged by grand jury indictment with one count of second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. Following a jury trial, he was found guilty as charged by unanimous verdict. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals, contending: the evidence was insufficient to support the verdict; the trial court erred in denying full cross-examination of a witness; the trial court erred in curtailing the right to full and effective voir dire; the trial court erred in failing to rule on the defendant's motion to allow the jury to view the crime scene; and the trial court erred in failing to recognize its ability to impose a sentence less than the sentence provided by the second degree murder statute. For the following reasons, we affirm the conviction and sentence.

FACTS

Rita Faye James testified she was the cousin of the victim, Donnie Williams, and had lived on Swan Street in Baton Rouge her entire life. She was familiar with the defendant because he and she had been “raised up around there together.”

On October 2, 2009, James approached the victim on Swan Street to ask for money for a Coke. He gave her $5, and she walked to a drink machine in front of Roger Parker's house. After James purchased a drink, she gestured to her friend “Madison,” who was in his vehicle at the corner of Somerset and Swan Streets, to drive to her. Madison stopped before a mailbox near the Coke machine, and James told him to move up to let an “old lady” in a beige car pass. James testified that, before Madison moved, she heard approximately six shots. She looked in the direction of the victim and saw shots being fired at him from a blue Oldsmobile, with hands sticking out of the driver's-side window. The blue car passed James, and the defendant looked her “dead in [her] face.” She also recognized Hakeem Profit in the front of the car and someone she did not recognize in the back. It was daylight, but beginning to get dark, James had seen the defendant in the blue Oldsmobile many times and had jump-started the vehicle when it had a bad battery. The victim suffered a fatal gunshot wound to his shoulder and a “potentially life threatening” gunshot wound to his lower abdomen. On October 5, 2009, a blue Oldsmobile Cutlass, registered to the defendant's brother, was recovered close to the scene of the incident.

James subsequently selected the defendant's photograph from a six-person photographic array. She indicated she last saw him “when he was shooting [the victim].” She also identified the defendant in court as the person she saw shooting the victim. Additionally, James selected Profit's photograph from a six-person photographic array. She indicated he was “in the car when they was (sic) shooting.” She testified the defendant and Profit did not look alike. On cross-examination, James indicated the Coke machine did not take $5 bills, so she had to go to Shonda Parker's house for change before she could use the machine.

Shonda Parker testified she lived on Swan Street. She indicated the defendant and Profit were related to one of her children. She stated she was in her house on the day of the incident, when she heard shots fired. She went to the door to check on her children, who were outside, and saw the victim “hit the ground.” She testified “the car shot past so fast I couldn't see what kind of car it was.” She “thought” the vehicle was gray. She claimed she did not recognize the car and did not see the defendant in the car. She indicated she did not want to come to court and testify. Baton Rouge Police Department Detective Bryan Ballard interviewed Parker at the scene of the incident. At that time, Parker indicated she had seen a blue Oldsmobile at the scene, driven by “Richard,” and in which “Hakeem” was a passenger. Subsequently, Parker refused to cooperate in the investigation.

Meldrekia Foster testified she was the defendant's sister. She indicated she and her family, including the defendant, traveled to a Southern University Football game in Jackson, Mississippi, on October 2, 2009. She claimed the defendant arrived at her house on Prescott Road to travel to the game at approximately 4:30 p.m. and was in a car with her and her two nieces between 5:30 p.m. and approximately 9:00 p.m., when they arrived in Jackson.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number one, the defendant contends the evidence was insufficient to support the conviction, because James gave testimony that conflicted with itself and the testimony of other witnesses.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove,” in order to convict, every reasonable hypothesis of innocence must be excluded. State v. Wright, 98–0601, p. 2 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied,99–0802 (La.10/29/99), 748 So.2d 1157 and 00–0895 (La.11/17/00), 773 So.2d 732 (quoting La. R.S. 15:438).

When a conviction is based on both direct and circumstantial evidence, the reviewing court 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 the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98–0601 at p. 3, 730 So.2d at 487.

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific criminal intent is that “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Henderson, 99–1945, p. 3 (La.App. 1st Cir.6/23/00), 762 So.2d 747, 751, writ denied,00–2223 (La.6/15/01), 793 So.2d 1235.

Any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant's identity as the perpetrator of that offense. The verdict rendered indicates the jury rejected the defense theory that the defendant was not the person who shot the victim from the blue Oldsmobile. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied,514 So.2d 126 (La.1987). No such hypothesis exists in the instant case. The verdict also indicates the jury accepted the testimony of James, while rejecting the alibi testimony presented by the defense. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when 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. Lofton, 96–1429, p. 5 (La.App. 1st Cir.3/27/97), 691 So.2d 1365, 1368, writ denied,97–1124 (La.10/17/97), 701 So.2d 1331. Further, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06–0207, p. 14 (La.11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07–2306, pp. 1–2 (La.1/21/09), 1 So.3d 417, 418 (per curiam).

This assignment of error is without merit.

LIMITATION OF CROSS–EXAMINATION

In assignment of error number two, the defendant argues the trial court erred in preventing full cross-examination of James concerning the sentence she received on her forgery conviction.

Louisiana Code of Evidence article 609.1, in pertinent part, provides:

A. General criminal rule. In a...