State v. Patorno

• Decision Date: 21 June 2002
• Docket Number: No. 2001 KA 2585.,2001 KA 2585.
• Citation: 822 So.2d 141
• Parties: STATE of Louisiana v. Randall PATORNO.
• Court: Court of Appeal of Louisiana — District of US

822 So.2d 141

STATE of Louisiana v. Randall PATORNO.

No. 2001 KA 2585.

Court of Appeal of Louisiana, First Circuit.

June 21, 2002.

Walter P. Reed, District Attorney, Covington, Dorothy Pendergast, Metairie, Counsel for Appellee State of Louisiana.

Margaret Smith Sollars, Appellate Attorney. Thibodaux, Counsel for Defendant/Appellant Randall Patorno.

Before: GONZALES, KUHN, and CIACCIO,¹ JJ.

KUHN, J.

The defendant, Randall Patorno, was charged by grand jury indictment with second degree murder in violation of La. R.S. 14:30.1, and he pled not guilty. After being tried by a jury, he was found guilty as charged. The defendant was subsequently sentenced to life imprisonment at hard labor without the benefit of probation, parole or suspension of sentence. His motion to reconsider sentence was denied. He now appeals, urging the following assignments of error:

1. The verdict of the jury was contrary to the law and evidence.

2. The jury should have been instructed that they were required to find agreement as to ten of twelve as to which of the two provisions under La. R.S. 14:30.1 were applicable to this case.

We affirm.

FACTS

On March 23, 1999, Daniel Kuhl, a maintenance person who worked for Country Square Apartments in Slidell, Louisiana, went to the apartment complex to clean up a pile of trash that he noticed while walking with the owner of the apartment buildings the day before. Kuhl walked down a pathway from the edge of one of the buildings to a drainage canal and observed the debris located in the ditch. The pile of debris contained a roll of fencing and a Christmas tree. Kuhl realized that there was also a human body located in the pile of debris when he saw what he thought was a shoulder, a shirt, and an arm. Kuhl immediately used his cellular telephone to call 911 to inform the police of his discovery.

On March 11, 1999, several days before the discovery of the body, Brenda Carter reported that her seventeen-year-old nephew, B.C., who she had raised from the age of two, was missing. Her last contact with B.C. was when she dropped him off at work on the evening of Friday, March 12th. He worked at a McDonald's Restaurant in Slidell. B.C. did not come home after work Friday, and although Carter made several attempts contact him by paging him and calling his associates, she did not hear from him on Saturday or Sunday. Carter decided to contact the police when she arrived home from work on Sunday night.

Detectives of the Slidell Police Department conducted an investigation as a result of the missing person report. Shortly before B.C.'s disappearance, he accompanied Vivian Pratt to the defendant's apartment. After getting off of work, B.C. met Pratt because she had located his pager, which he had lost the night before. They met in an area where drugs were frequently sold at a home referred to as "Big Bob's." B.C. sold drugs, specifically "crack" cocaine, and gave Pratt some drugs because she found and returned his pager. Pratt told B.C. that she would be walking to the defendant's apartment to use the drugs that he had given her and invited him to come along. B.C. decided to join her.

During the trial, Pratt testified that when they arrived at the defendant's apartment, she introduced B.C. to the defendant, and B.C. gave the defendant and Pratt some drugs in exchange for their hospitality. B.C. then laid down on the defendant's love seat and fell asleep while the defendant and Pratt used the drugs. Pratt later awakened B.C. to ask him for more drugs so that she could sell them at "Big Bob's." According to Pratt, B.C. gave her about $100 worth of crack. She gave some of the drugs to the defendant and then left the apartment to sell the rest. When Pratt left the apartment at about 3:15 a.m., B.C. was sleeping on the defendant's love seat. After Pratt sold the drugs, she called the defendant's apartment to speak with B.C. but the defendant told her that B.C. had left. Pratt tried to contact B.C. several times by paging him but was unsuccessful.

As a result of the information received during the missing person investigation, the police executed a search warrant for the defendant's apartment and interviewed the defendant. During the interview, the defendant confirmed that B.C. had come to his apartment on the night in question. He stated, however, that B.C. was only there for a short period of time and that he left about thirty minutes after Pratt left to sell some of B.C.'s drugs. The defendant stated that he assumed that B.C. left to go look for Pratt since she never came back to the apartment with his money or the drugs.

After the body found by Kuhl on March 23rd was identified as B.C., the missing person investigation became a murder investigation. The police conducted a search of the area where the body was located and recovered a hammer and the victim's wallet and driver's license. The police also executed another search warrant for the defendant's apartment. The defendant was arrested and re-interviewed. During this interview, the defendant stated that after Pratt left his apartment to sell some of the victim's drugs, he began badgering the victim for more drugs. He further stated that, as a result, the victim became angry and pulled a gun out and the defendant hit him with a hammer three times in self-defense. The defendant was charged and subsequently convicted of second degree murder.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant contends that the verdict of the jury was contrary to the law and evidence. The defendant submits that while there is no question that his actions resulted in the death of B.C., he asserts that the evidence failed to establish beyond a reasonable doubt that he had the requisite specific intent to kill or to inflict great bodily harm. He also argues that his actions were the result of provocation or, in the alternative, legally justified under the circumstances. Finally, the defendant avers that there was no credible proof' that an armed robbery occurred.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See La.Code Crim. P. art. 821. The Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Mc-Lean, 525 So.2d 1251, 1255 (La.App. 1st Cir.), writ. denied, 532 So.2d 130 (La.1988).

Louisiana Revised Statute 14:30.1A provides, in pertinent part:

A. Second degree murder is the killing of a human being:

When the offender has specific intent to kill or to inflict great bodily harm; or

(2)(a) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary. aggravated kidnapping, second degree kidnapping, aggravated escape, drive-by shooting, armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm....

Specific criminal intent is that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 11:10(1). 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. State v. Johason, 4151 So.2d 1273, 1277 (La.App. 1st Cir.1984).

In the instant case, a specific intent to kill or inflict great bodily harm can reasonably be inferred from the fact that the defendant repeatedly hit the victim in the head with a hammer. By the defendant's own version of' the events, the initial blow to the head may have only stunned the victim and he did not fall to the floor. The defendant hit the victim in the head a second and third time with the hammer. Dr. MacKenzie, the coroner that performed the autopsy of' the victim stated that the cause of' death was blunt trauma to the head with a skull fracture, lacerations of the brain, and bleeding over surfaces of the brain. Inflicting several blows to a person's head with a hammer indicates an active desire to kill or inflict great bodily harm.

The defendant, secondly, submits that there was no credible proof that an armed robbery occurred. As delineated above, La. R.S. 14:30.1A(2) provides, as one basis for a conviction of murder, the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of armed robbery. La. R.S. 14:64A defines armed robbery as follows:

Armed robbery is the taking of anything of value belonging" to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Louisiana Revised Statute 14:2(3) defines a dangerous weapon as any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.

Defendant does not contest that he was armed with a hammer and that this weapon was used to produce the death-causing injuries. Dr. MacKenzie, who testified as an expert in the field of forensic pathology, stated that the effect of the injuries produced by this weapon might have initially knocked the victim unconscious but would ultimately have resulted in death. The hammer clearly qualifies as a dangerous weapon. The issue is whether or not the defendant was taking or attempting to take...