State v. Law

• Decision Date: 03 April 2013
• Docket Number: No. 12–1024.,12–1024.
• Citation: 110 So.3d 1271
• Parties: STATE of Louisiana v. DeMarcus W. LAW.
• Court: Court of Appeal of Louisiana — District of US

110 So.3d 1271

STATE of Louisiana

v.DeMarcus W. LAW.

No. 12–1024.

Court of Appeal of Louisiana,Third Circuit.

April 3, 2013.

Van H. Kyzar, District Attorney, Tenth Judicial District Court, Natchitoches, LA, for Appellee, State of Louisiana.

Edward K. Bauman, Louisiana Appellate, Lake Charles, LA, for Defendant/Appellant, DeMarcus W. Law.

DeMarcus W. Law, Louisiana State Penitentiary, Angola, LA, for Defendant/Appellant, DeMarcus W. Law.

Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.

GREMILLION, Judge.

[3 Cir. 1]On March 9, 2010, the State charged Defendant, DeMarcus W. Law, with second degree murder, a violation of La.R.S. 14:30.1, and attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1.

After pretrial hearings, jury selection began on January 17, 2012. The next day, the jury began hearing evidence; finally, on January 19, the jury found Defendant guilty as charged.

The trial court heard and denied Defendant's Motion for New Trial on April 18, 2012. On April 25, 2012, the court sentenced Defendant to life imprisonment without benefit of parole, probation, or suspension of sentence for second degree murder. For the attempted second degree murder conviction, the court sentenced him to a consecutive term of fifty years.

Defendant now appeals his convictions, assigning five errors. For the following reasons, Defendant's convictions are affirmed

FACTS:

Dekaria Williams was sitting in the living room of his Natchitoches home. ShaMichael Berryman and Edward Paige were in the kitchen along with some quantity of cocaine.

Suddenly, Defendant burst into the house; Williams tried to grab him, but Defendant shot him in the arm.¹ Defendant then went into the kitchen and resumed shooting. Defendant's accomplice, Jody Hamilton, who was at the door, shot Williams multiple times.² As Williams was getting up from Hamilton's last shot, [3 Cir. 2]Defendant ran back into the room and shot him in the face. Williams survived his many wounds; Berryman died.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant attacks the sufficiency of the evidence. A finding of insufficiency would require reversal of the conviction and obviate the need for discussion of the other four assignments of error. See State v. Hearold, 603 So.2d 731 (La.1992). Thus, we address it first.

Although Defendant frames his argument as relating to the denial of his motion for new trial below, during argument at the motion hearing he focused entirely on a different issue than the one he now raises. At the hearing, he argued that the evidence was insufficient only as to the murder of Berryman. The basis of his argument was that the evidence was circumstantial, since Williams heard shots but did not see the shooting in the kitchen. On appeal, he attacks both convictions, alleging that Williams was not credible due to inconsistencies between his trial testimony and his earlier statements to police.

Normally, an attack on sufficiency of evidence would be the subject of a motion for post-verdict judgment of acquittal, not a motion for new trial. However, as Defendant's brief uses the term “insufficient” and cites the seminal case in this area of law, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we will proceed with a standard sufficiency analysis.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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,rehearing denied,[3 Cir. 3]444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126;See also State v. Kennerson, 96–1518, (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

The focus of Defendant's credibility attack is that the victim told his father that there were three or four attackers and he did not know who they were. During his testimony, the victim acknowledged that at one time he thought there may have been a third person involved in the offense, possibly a person named Paige, but he affirmed that he saw Defendant and Hamilton. He had known Defendant since the latter was a little boy, but they were not close. Regarding the victim's failure to identify the shooters to his father, the victim explained that he did not want his father to get involved, as he did not “want him [his father] to do nothing to get in no trouble.”

Defendant argues “it is of great moment that Dekaria Williams was engaged in the commission of a felony at the time of the shootings.” ³ Also, Defendant suggests that immediately after the incident, Williams displayed some degree of indifference in regard to Berryman. It is not clear that the second statement is a correct assessment. However, even if Defendant's factual premises are both correct, he does not explain how either would have affected the victim's credibility.

As noted in Kennerson, a jury's credibility assessments are not to be second-guessed. Defendant's arguments provide no basis for a reassessment of matters that were put to the jury at trial. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, Defendant notes that the bench conferences were not recorded. Thus, he suggests the record is so incomplete that on appeal he [3 Cir. 4]cannot effectively argue regarding jury composition. He notes that the original record did not include the jury strike sheets and the minutes do not specify whether the venire members excused were challenged for cause or peremptorily. Also, the minutes do not reveal which party challenged each venire member. However, the only venire member he mentions in this context is Delores Bivens, and both the minutes and the strike sheets show that she served as a juror.

Regarding unrecorded bench conferences, the supreme court has explained:

This Court has never articulated a per se rule either requiring the recording of bench conferences or exempting them from the scope of La.C.Cr.P. art. 843, which requires in felony cases the recording not only of the evidentiary portions of trial but also of “the examination of prospective jurors ... and objections, questions, statements, and arguments of counsel.” State v. Hoffman, 98–3118, p. 50 (La.4/11/00), 768 So.2d 542, 586. The Court has instead conducted a case-specific inquiry to determine whether the failure to record the conferences results in actual prejudice to the defendant's appeal. As a general rule, the failure of the record to reflect the argument of counsel on objections, even when made in open court, does not affect a defendant's appeal because it does not hinder adequate review of the trial court's ruling. State v. Johnson, 438 So.2d 1091, 1104 (La.1983). Thus, the failure to record bench conferences will ordinarily not affect the direct review process when the record suggests that the unrecorded bench conferences had no discernible impact on the proceedings and did not result in any specific prejudice to the defendant. See, e.g., Hoffman, 98–3118 at 50–51, 768 So.2d at 587 (trial court cured any record problems “by summarizing substantive unrecorded conferences for the record”); State v. Castleberry, 98–1388, pp. 28–29 (La.4/13/99), 758 So.2d 749, 773 (three unrecorded bench conferences during direct examination of state witnesses had no discernible impact on the proceedings and the fourth concerned a mistrial motion by defense counsel, the basis of which was “easily ascertainable from the record” without regard to the unrecorded side-bar discussion); State v. Deruise, 98–0541, pp. 9–15 (La.4/3/01), 802 So.2d 1224, 1233–37 (failure to record bench conferences in which the prosecutor and defense counsel made their peremptory and cause challenges did not prejudice the appeal when the jury strike sheet was available for review and detailed the exercise of peremptory challenges by both sides and when the transcript of the voir dire revealed a substantial basis for denying a defense cause to the juror, even assuming that the challenge had been made but not preserved in the record; remaining unrecorded bench conferences involved evidentiary matters that were otherwise addressed in the [3 Cir. 5]appeal, or involved matters of no discernible impact for which the defendant failed to demonstrate prejudice); State v. Allen, 95–1754, p. 11 (La.9/5/96), 682 So.2d 713, 722 (failure to record arguments at the bench concerning some of the defense peremptory challenges harmless when challenges for cause and arguments on the challenges were fully transcribed in the record and the minutes clearly reflected which jurors had been excused peremptorily and whether the state or defense had exercised the challenge).

On the other hand, in State v. Landry, 97–0499 (La.6/29/99), 751 So.2d 214, a combination of loud construction noise at the courthouse and audio recording problems on the part of the court reporter rendered the record grossly incomplete in several respects, including the failure to record peremptory strikes and challenges for cause made at the bench. Landry, 97–0499 at 1–2, 751 So.2d at 215. This Court reversed the defendant's capital conviction and sentence and remanded for a new trial because the deficiencies deprived the defendant of his constitutional right of appeal and judicial review. Landry, 97–0499 at 4, 751 So.2d at 216.The Court thereby reaffirmed that “ it is not the defendant's obligation to insure an adequate record.... it is the duty of the court.... to see that the court reporter makes a true, complete and accurate record of the trial.” Landry, 97–0499 at 3, 751 So.2d at 216 (citing American Bar Association Standards Relating to the Function of the Trial Judge, § 2.5 (1972)).

In the present case, the trial court and not defense counsel had the duty to insure that the bench conferences involving jury selection were properly...