State v. McCullough

• Court: Court of Appeal of Louisiana
• Writing for the Court: Thibodeaux
• Citation: State v. McCullough, 774 So.2d 1105 (La. App. 2000)
• Decision Date: 06 December 2000
• Docket Number: No. CR00-983.,CR00-983.
• Parties: STATE of Louisiana v. Daveon Deshan McCULLOUGH.

774 So.2d 1105

STATE of Louisiana v. Daveon Deshan McCULLOUGH.

No. CR00-983.

Court of Appeal of Louisiana, Third Circuit.

December 6, 2000.

Rehearing Denied January 24, 2001.

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James Buck, Assistant District Attorney, Alexandria, LA, Counsel for Plaintiff/Appellee, State of Louisiana.

John M. Lawrence, Shreveport, LA, Counsel for Defendant/Appellant, Daveon Deshan McCullough.

Court composed of Judge ULYSSES GENE THIBODEAUX, Judge OSWALD A. DECUIR and Judge JIMMIE C. PETERS.

THIBODEAUX, Judge.

A jury unanimously convicted Defendant, Daveon Deshan McCullough, of the second degree murder of Rita Rabalais after he and three codefendants¹ were charged by grand jury indictment with first degree murder. He appeals his conviction on numerous grounds and also appeals the denial of his motion for a change of venue.

We affirm.

INSUFFICIENCY OF THE EVIDENCE

The Defendant filed a Motion for Post-Verdict Judgment of Acquittal contending the evidence presented was insufficient to support a conviction of second degree murder. The motion was denied. The Defendant claims the evidence failed to establish that he desired "the natural and probable consequences of death for the victim to follow his actions" and that the evidence did not show he was a principal to the offense. Additionally, the Defendant claims there was no evidence to show he had committed or was attempting to commit an aggravated burglary because the evidence did not prove he was at the scene of the crime.

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 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

State v. Lambert, 97-64 (La.App. 3 Cir. 9/30/98); 720 So.2d 724, 726-727.

The victim's body was discovered by her sister-in-law, Leta Juneau, Ms. Juneau's daughter, Sharon Yarbrough, and Ms. Yarbrough's son, along with a police officer who had been called to the victim's residence on October 24, 1994.

Doctor George McCormick II, a forensic pathologist and the coroner in Caddo Parish, was accepted as an expert in the field of forensic pathology. He concluded that several stab wounds to the victim's neck and chest areas were fatal.

Palm prints found on rubber gloves recovered from a garbage can in the victim's kitchen were linked to Fredrick Gradley. Impressions on the floor also corresponded in design and size to Gradley's sneakers.

Detective Gary Billingsley, who was working in the detective division of the Alexandria Police Department on October 24, 1994, testified that on December 9, 1994, he interviewed Fredrick Gradley. After getting a statement from him, he obtained warrants for first degree murder for Jerry Joseph, Joseph General, Joseph Green and Cedric Howard. On June 22, 1995, he spoke to Jerry Joseph and Mr. Joseph identified several persons from a lineup. After Mr. Joseph made the identifications, arrest warrants were secured for the Defendant, Fredrick Bush, Lonnie Simmons, Jr., and Joseph Michael Elie III. Detective Billingsley testified on cross-examination that the Defendant's footprints did not match the footprints found at the crime scene. He further testified that Fredrick Gradley admitted he went in the kitchen and got the knives and he said that Jerry Joseph put the victim in the closet. Initially, Jerry Joseph denied involvement in the murder, but on June 22, 1995, he admitted his involvement. He implicated the five individuals that Fredrick Gradley had referred to and four more, including the Defendant. According to Detective Billingsley, Jerry Joseph, Joseph General, Cedric Howard and Joseph Green had all either pled guilty or been convicted of the crime at the time of the Defendant's trial, but none of them other than Jerry Joseph named the Defendant. According to Detective Billingsley, none of the individuals other than Jerry Joseph told him that gloves were used, that they had cleaned up after the offense, that they had split up money or that they went to school afterwards. Jerry Joseph provided nicknames of the people involved and Detective Billingsley and others had to go through nickname files to figure out who they were. Joseph named a person, but they could not understand if he was saying David or Daveon. When asked why they put the Defendant's picture in the lineup, Detective Billingsley explained that they realized the Defendant was a half brother to Fredrick Bush and Joseph had named Fredrick.

Jerry Joseph testified that at the time of trial, he was incarcerated for the murder of the victim. He said he was arrested on a charge of first degree murder but pled guilty to manslaughter. According to Mr. Joseph, he entered a plea agreement with the State. In 1994, Mr. Joseph was twenty-three and selling crack cocaine for a living. Prior to the plea he entered on the manslaughter charge, he had never pled guilty or been convicted of anything.

Joseph testified he heard about the murder from Fred Gradley and Ced Howard. According to Jerry Joseph, Gradley, Howard, Green, Joe General, Mike Elie, Lonnie Simmons, Fred Bush and the Defendant went to his house. The group then went to a club (Eat-and-Bite) about two to three blocks from Joseph's house. Joseph and Joe General went in the club and got some beer and after they came out, they heard a conversation about a woman on Kelly Street who had a lot of money. According to Mr. Joseph, they said they were "scoping her out, like watching her house, stealing...." Shortly thereafter, Joseph testified that they were talking about robbing the lady. According to Joseph, he was just listening to this conversation and they were not talking to him. He later explained that "they" were Ced Howard and Fred Gradley. After this, he drank some beer and smoked some marijuana.

According to Mr. Joseph, he did not mind robbing drug dealers, but he was not interested in robbing the old woman on Kelly Street because she did not have anything he wanted. He then stated, "See, I was robbing her for dope, because that was money. I'm talking about money."

Mr. Joseph testified that everyone left after Ced Howard hollered, "Let's go to Kelly Street, back on Kelly Street." The only two left there were Mr. Joseph and Joe General. General told Joseph that "it was going down in the morning." According to Mr. Joseph, he then consumed two 40 ounce beers and got a bicycle and rode by General's house, but he was not there. Mr. Joseph proceeded to ride the bicycle past Bolton High School and down Chester Street. At some point, when looking for someone to sell drugs to, he asked someone what time it was and they told him it was about 5:00 or 6:00. Joseph confirmed that this was in the early morning hours. Mr. Joseph then saw Joe General and Fred Gradley talking by a brick church on Chester Street. Ced Howard came around the corner and a couple of minutes later, Joe Green arrived. Joe General said something about the woman on Kelly Street and everyone started hollering, "let's go by Jay Lowe." Jerry Joseph explained that this is Lonnie Simmons and he was supposed to live by the woman on Kelly Street. Jerry Joseph, Joe Green, Fred Gradley, Ced Howard and Joe General were the only ones there at first and they were waiting for Lonnie to come out. Mike Elie arrived followed by Fred Bush and the Defendant. According to Mr. Joseph, there were more people present than the ones he named.

Mr. Joseph testified that he went to the corner and when he returned everyone was on the side of the house, laughing. He went back across the street and when he returned he saw Ced on the side of the house with a screwdriver and Lonnie "had the card." Mr. Joseph testified that he went back and sat on the porch across the street and he saw Ced Howard, Fred Gradley, Joe Green, Joe General and Mike Elie come around in the front. He said it appeared they were "messing with the door" and they entered the house through the front door. Mr. Joseph then went on the side of the house and the back door was open. Lonnie Simmons was standing there and they heard rumbling in the house, like someone fell. Mr. Joseph entered the house and saw Joe General hitting a woman in the head with his fist. The woman was holding onto Fred Gradley's T-shirt and Ced hit her with a pipe and she fell. Ced Howard told Joe Green he'd "better get some more of this" and Joe Green ran and kicked her. Mike Elie had already kicked the victim when she was on the floor and the Defendant jumped in and picked her up. When the Defendant was picking her up, Lonnie Simmons walked over and punched her. Fred then came up with a knife and "when the knife went up" the victim fell. Joe then got the Defendant a little towel because he said his hand was bleeding. According to Mr. Joseph, Joe General, Mike Elie and the Defendant had gloves on that looked like "doctor gloves."

Mr. Joseph testified that when they were leaving, he saw the Defendant take a stick and knock some things off the dresser. Joe General was "wiping on the side, like the wall, wherever they touched at."

William Wansley, who at the time of trial was incarcerated for his conviction on one count of forgery and one count of unauthorized use of an access card, testified that he had been previously convicted for other offenses in this...