State v. Odom

• Court: Court of Appeal of Louisiana
• Writing for the Court: Before HALL; SEXTON
• Citation: State v. Odom, 511 So.2d 1214 (La. App. 1987)
• Decision Date: 19 August 1987
• Docket Number: No. 18758-KA,18758-KA
• Parties: STATE of Louisiana, Appellee, v. Thomas W. ODOM, Appellant.

Page 1214

511 So.2d 1214

STATE of Louisiana, Appellee, v. Thomas W. ODOM, Appellant.

No. 18758-KA.

Court of Appeal of Louisiana Second Circuit.

Aug. 19, 1987.

Rehearing Denied Sept. 17, 1987.

Kitchens, Benton, Kitchens & Warren by S. Michael Adcock, Minden, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton

Rouge, Henry N. Brown, Jr., Dist. Atty., Benton, L. Charles Minifield, Asst. Dist. Atty., Minden, for appellee.

Before HALL, C.J., and FRED W. JONES, Jr., and SEXTON, JJ.

SEXTON, Judge.

The defendant, Thomas W. Odom, was convicted by a jury of attempted second degree murder in violation of LSA-R.S. 14:27 and 14:30.1 and sentenced to serve the maximum penalty of fifty years at hard labor. We affirm the conviction and sentence.

FACTS

Julius Mitchell testified that he was at a washateria in Heflin, Louisiana on February 8, 1986. At approximately 7:30 p.m., as he left the washateria and headed toward his car, he saw a truck--which he knew to be owned by one Monroe Moore--coming across some railroad tracks about twenty feet away from the washateria. Earlier in the day, he had seen the truck sitting in the driveway next to his house. As Mr. Mitchell was opening his car door, the truck pulled up "right behind" him. Mr. Mitchell did not recognize the driver but recognized the defendant Odom seated on the passenger side. Mr. Mitchell "jumped in the car and took off."

The truck followed Mr. Mitchell "flashing their lights for [him] to stop. But [he] wouldn't stop." About one-quarter of a mile from the washateria, a shot was fired at Mr. Mitchell's vehicle. Three shots were fired in total; one shot struck the center of the rear window and two struck the trunk. Although Mr. Mitchell knew the shots were coming from the truck, he could not see who was firing the shots or from which side of the vehicle the shots were being fired. He got to the driveway of his home some four to five minutes after the last shot was fired. The truck had followed him all the way to his home but stopped out in the road in front of his house. Mr. Mitchell got out of his vehicle, fired two shots from a .22 pistol into the air and ran to his next door neighbor's house to summon help.

Police responded to the scene and took photographs of his vehicle. Following an investigation, the police found a .30 caliber rifle in the defendant's house and arrested the defendant. Experts at the North Louisiana Crime Lab matched fragments of bullets taken from Mr. Mitchell's vehicle to the gun recovered from the defendant's home.

Jesse Beavers testified that on the date of the incident, he and the defendant were "talking about going hunting ... running some coon dogs, and ... went down to a place called Heflin." Having made several stops, Mr. Beavers and the defendant were going to pick up some coon dogs and Mr. Beavers asked the defendant if he could drive the truck they were traveling in because of the defendant's drinking and fast driving.

Mr. Beavers related the subsequent events as follows:

We went on down and getting close to a store he seen that fellow's car parked over at the side of the road. He said, that's my friend right there, said stop him. So when I pulled up behind him his friend drove out and got on the road. So I tried to stop him, so I couldn't stop him. So he took the rifle and shot at the car, at the man. I asked him what did he do that for. He said the man had messed over him.

Mr. Beavers further identified the weapon which the defendant used on the date of the incident, demonstrated the defendant's shooting at the victim's vehicle out of the passenger side of the truck, and testified that the weapon was never in his own possession. Mr. Beavers continued his testimony as follows:

And I said, man, you hit that man's car. He said, no, I didn't. I said, yes, you did. He said, I didn't hit the man's car. So the fellow that was driving this car was going on down the road, you know. I said, you hit that man's car. He said, no, I didn't. I said, yes, you did, too. We got--I drove up a little, I said, man, you're not going to shoot the man no more and he said no. I got up pretty close, I would say a pretty good ways away from him and he shot the third time, you know. And the man pulled his car off in a driveway and I pulled up and stopped because I was scared, you know, I was going to get out and go and talk to the man. The man fired back twice with some little pistol, so I drove on off.

It is noted that Mr. Beavers pled guilty to manslaughter in 1979 or 1980, was sentenced to eighteen years in jail, and was released in 1985, having spent approximately five or six years in jail. The presentence investigation report indicates that charges based upon this incident were dropped against Mr. Beavers. The defendant Odom claimed in the presentence investigation report that Jesse Beavers had actually fired the weapon.

SUFFICIENCY OF EVIDENCE

ASSIGNMENT OF ERROR NO. 1

The defendant initially contends that the state failed to prove one of the essential elements of the crime, that the defendant specifically intended to kill Mr. Mitchell.

LSA-R.S. 14:27 reads in part as follows:

§ 27. Attempt

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

LSA-R.S. 14:30.1(1) reads as follows:

§ 30.1. Second degree murder

Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm.

The gravamen of the crime of attempted murder, whether first or second degree, is the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Jarman, 445 So.2d 1184, 1189 (La.1984); State v. Huizar, 414 So.2d 741 (La.1982); State v. Strother, 362 So.2d 508 (La.1978); State v. Butler, 322 So.2d 189 (La.1975). Although a specific intent to inflict great bodily harm may support a conviction of murder, the specific intent to inflict great bodily harm will not support a conviction of attempted murder. State in the Interest of Hickerson, 411 So.2d 585, 587 (La.App. 1st Cir.1982), writ denied, 413 So.2d 508 (La.1982), appeal after remand, 424 So.2d 1233 (La.App. 1st Cir.1982).

Specific intent is defined as 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). Even though intent is a question of fact, it need not be proven a fact, it may be inferred from the circumstances of the transaction and the actions of the defendant. La.R.S. 15:445; State v. Boyer, 406 So.2d 143 (La.1981); State v. Fuller, 414 So.2d 306 (La.1982).

State v. Beck, 445 So.2d 470, 477 (La.App. 2d Cir.1984).

In reviewing a case to determine the sufficiency of the evidence, we consider the evidence in the light most favorable to the prosecution in order to determine if a rational trier of fact could have found the 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); State v. Jarman, supra at 1189.

State v. Coleman, 432 So.2d 323 (La.App. 1st Cir.1983), is analogous to the instant case. The facts are related at 324 as follows:

On October 30, 1981, three white youths, including the victim, Paul Sirchia, were driving, when they encountered a group of four young black pedestrians, including defendant. Although testimony of what happened is sharply conflicting, it is clear that defendant fired six shots, including the one that struck Sirchia.

Defendant and his companions testified that the confrontation was initiated by the car's occupants, one of whom shouted a hostile racial remark at them as the car passed and then started backing up toward the group standing in the street. Defendant testified he fired a warning shot in the air and started running down a side street. It was only when the car later came up behind him again and tried to run him down that he fired any shots toward it, one of which apparently hit Sirchia, since he heard shattering glass and a scream.

The car's occupants admit that some remark was made to the group on the street, but deny that it was either hostile or racial in nature. They testified that after the car passed the group, several shots were fired, one of which hit Sirchia. As they left the subdivision to bring Sirchia to a hospital, several more shots were fired, although they were unable to see by whom. They deny ever directly encountering the defendant or his companions again or attempting to run over him.

In determining that a rational trier of fact could conclude that the defendant possessed a specific intent to kill, the court noted at page 325 as follows:

Defendant admits that he fired several shots at the occupied car at fairly close range, but claims that he did so in self-defense. However, evidence refuting defendant's claim of self-defense was presented and the jury obviously rejected the claim. Additionally, of the six shots fired, at least three struck the car and one hit the victim; the jury could conclude that defendant deliberately aimed toward the car's occupants with an intent to kill.

In State in the Interest of Aaron, 405 So.2d 1194, 1198 (La.App. 1st Cir.1981), the court stated:

A specific intent to kill may be reasonably inferred from the defendant's intentional use...