State v. Ross

• Decision Date: 13 March 2019
• Docket Number: 18-453
• Citation: 269 So.3d 1052
• Parties: STATE of Louisiana v. Jeffery Wayne ROSS
• Court: Court of Appeal of Louisiana — District of US

269 So.3d 1052

STATE of Louisiana

v.Jeffery Wayne ROSS

18-453

Court of Appeal of Louisiana, Third Circuit.

March 13, 2019

FACTS

On September 19, 2017, the defendant, Jeffery Wayne Ross, and the victim, Billy Gillette, had a confrontation regarding an incident on Highway 167 in Grant Parish. The confrontation culminated in the defendant running the victim over with his Mercedes Benz SUV and dragging him several yards. Believing the defendant was backing up to run over him again, the victim began shooting at the defendant's car. The victim survived the incident and was taken to the hospital where he subsequently underwent surgery for his injuries.

On October 13, 2017, the defendant was charged by bill of information with one count of attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1, and one count of aggravated battery, a violation of La.R.S. 14:34(A). After a three-day trial that concluded on February 22, 2018, a unanimous jury found the defendant guilty as charged on both counts. On March 26, 2018, the defendant filed a Motion for New Trial and a Motion for Post Verdict Judgment of Acquittal. Both motions were denied by the trial court on that same date without a hearing.

Subsequently, on March 29, 2018, the trial court sentenced the defendant for attempted second degree murder to fifteen years at hard labor, without benefit of probation, parole, or suspension of sentence, and for aggravated battery to ten years at hard labor, to run concurrently with the sentence imposed for attempted second degree murder. The trial court also ordered the defendant to pay a $ 5,000.00 fine, court costs, and $ 75,000.00 in restitution to the victim. On April 11, 2018, the defendant filed a motion to reconsider sentence, which was denied by the trial court on that same date without a hearing. Pursuant to a Motion for Appeal, the defendant is now before this court alleging five assignments of error as to his convictions and sentences.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENTS OF ERROR

1. The evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove, beyond a reasonable doubt, all of the elements of attempted second degree murder. Additionally, the evidence proved that Ross's actions were justified and reasonable under the circumstances.

2. The trial court erred in failing to correctly and sufficiently instruct the jury as to the law necessary for the jury to evaluate the evidence and render a proper verdict in the case, thereby denying Appellant of his right to a fair trial as guaranteed to him by the Constitutions of both the United States and Louisiana.

3. The trial court erred in denying Appellant's Motion for New Trial.

4. Convictions for both attempted second degree murder and the responsive verdict of aggravated battery violate the Double Jeopardy Clause.

5. The sentences imposed by the trial court violate the Eighth Amendment of the Constitution of the United States and the La. Constit. Art. I, § 20, as they are nothing more than cruel and unusual punishment and, thus, excessive. Additionally, the order of restitution was not based upon evidence establishing the actual pecuniary loss.

SUFFICIENCY OF THE EVIDENCE

The defendant contends the evidence was insufficient to prove all of the elements of attempted second degree murder. The defendant's argument focuses on the lack of evidence that he had specific intent to kill the victim. Additionally, the defendant asserts the evidence proved that his actions were justified under the circumstances. He argues both his convictions for attempted second degree murder and aggravated battery should be reversed.

Standard of Review

In State v. Duplantis , 13-424, pp. 9-10 (La.App. 3 Cir. 11/27/13), 127 So.3d 143, 148-49, writ denied , 14-283 (La. 9/19/14), 148 So.3d 949, this court set forth the standard of review for a sufficiency of the evidence claim:

The standard of review in a sufficiency of the evidence claim is "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged." State v. Leger , 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied , 549 U.S. 1221, 127 S.Ct. 1279 [167 L.Ed.2d 100] (2007) (citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781 [61 L.Ed.2d 560] (1979) ; State v. Captville , 448 So.2d 676, 678 (La.1984) ). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court "to substitute its own appreciation of the evidence for that of the fact-finder." State v. Pigford , 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson , 96-1048 (La. 10/4/96), 680 So.2d 1165 ; State v. Lubrano , 563 So.2d 847, 850 (La.1990) ). The appellate court's function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442.

The factfinder's role is to weigh the credibility of witnesses. State v. Ryan , 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson , "the appellate court should not second-guess the credibility determination of the trier of fact," but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert , 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27 ). Our supreme court has stated:

However, an appellate court may impinge on the fact finder's discretion and its role in determining the credibility of witnesses "only to the extent necessary to guarantee the fundamental due process of law." State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve " ‘the factfinder's role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ " McDaniel v. Brown, 558 U.S. 120, 134, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ 2010) ] (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury "reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt." State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother , 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378.

State's Evidence

The first witness to testify for the state was Wildlife and Fisheries Officer James Bruce. On the day in question, Officer Bruce responded to a call regarding a white male shooting at oncoming vehicles. Less than five minutes later, Officer Bruce reached the scene, where he saw a white male lying in the roadway. Several bystanders and a white sedan were parked in the intersection. When Officer Bruce asked about a weapon, he was told a firearm had been given to a Creola Police Officer. Officer Bruce identified several photographs taken of the scene. In one photograph, Officer Bruce identified what he believed was the defendant's vehicle with the back glass shattered and with an apparent bullet hole on the left side of the glass. In another photograph, Officer Bruce noticed fresh tire marks through the median just north of glass located on the ground.

According to Officer Bruce, the defendant was not at the scene when Officer Bruce first arrived but that he approached the officers at some point:

A. I - - he approached us uh, at that time I did not know who it was approaching uh, but he had approached us from the north uh, from the Bentley direction and he was traveling through the median towards us and he stopped uh, just inside the grass, inside the turn around.

Q. So when you say he was approaching from the north, was he in the northbound or the southbound lane?

A. He was in the median.

Q. Okay, so he wasn't on the roadway?

A. No, sir.

The next witness to testify was Detective Ryan James of the Grant Parish Sheriff's Office. Detective James arrived at the scene about twenty minutes after receiving the call. Someone had drawn a black box where the victim had been located. Detective James was informed by another officer of the following:

A. .... Mr. Ross's vehicle ran over Mr. Gillette, dragging him out into the roadway where he drew the black box. Went. Stopped. Shots were fired, and then proceeded through the median going north.

Detective James determined the damage to the defendant's back glass was caused by bullets. In a photograph shown by the state, Detective James identified foam that had been knocked out of a headrest by a bullet. According to Detective James, the bullet entered the headrest from the rear and exited it from the front. In another photograph, Detective James identified an area on the glass of the "passenger's side rear" where a bullet entered the vehicle. Detective James identified another bullet hole in the roof of the defendant's vehicle. In the detective's opinion, the bullet hole in the roof was caused by the same bullet that went through the rear headrest and deflected off the driver's headrest.

Detective James also identified photographs taken of the victim while at the hospital. In one photograph, Detective James identified injuries...