State v. Thomas

• Decision Date: 06 October 2010
• Docket Number: No. 10-269.,10-269.
• Citation: 48 So.3d 1210
• Parties: STATE of Louisiana v. Brian Keith THOMAS.
• Court: Court of Appeal of Louisiana — District of US

48 So.3d 1210

STATE of Louisiana

v.Brian Keith THOMAS.

No. 10-269.

Court of Appeal of Louisiana, Third Circuit.

Oct. 6, 2010.

Carey J. Ellis, III, La. Appellate Project, Rayville, LA, for Defendant/Appellant, Brian Keith Thomas.

Trent Brignac, District Attorney, Julhelene E. Jackson, Assistant District Attorney, 13th Judicial District Court, Ville Platte, LA, for Plaintiff/Appellee, State of Louisiana.

Brian Keith Thomas, Louisiana State Penitentiary, Angola, LA, for Defendant/Appellant, Brian Keith Thomas.

Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.

GREMILLION, Judge.

**1 After a bench trial, Defendant, Brian Keith Thomas, was found guilty of attempted second degree murder. He was sentenced to imprisonment for forty years, at hard labor, without benefit of parole, probation, or suspension of sentence. He has perfected this appeal wherein he alleges insufficient evidence to sustain a verdict of attempted second degree murder and that the sentence is excessive under the circumstances of the case. For the following reasons, we affirm.

FACTS

In the early morning of October 21, 2007, Defendant and one of his co-defendants, Carvanski Fontenot, exchanged gunfire with persons outside the End ZoneBar in Ville Platte, Louisiana. The victim, Shannon Fontenot, who was also outside the bar, was shot. She survived the shotgun injury.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the State failed to prove beyond a reasonable doubt that he possessed or shot a gun on the morning the victim was injured. Defendant argues that it was his co-defendant who shot the victim by accident.

In State v. Bishop, 01-2548 (La.1/14/03), 835 So.2d 434, the defendant argued there was insufficient evidence to sustain his conviction for attempted second degree murder. However, the supreme court affirmed the conviction. Discussing the standard to be used to determine whether the evidence was sufficient, the supreme court stated:

"In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier **2 of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Captville, 448 So.2d 676, 678 (La.1984).

To sustain a conviction for attempted second degree murder, the state must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim's death. La. R.S. 14:27; 14:30.1. Although the statute for the completed crime of second degree murder allows for a conviction based on "specific intent to kill or to inflict great bodily harm," La. R.S. 14:30.1, attempted second degree murder requires specific intent to kill. State v. Huizar, 414 So.2d 741 (La.1982). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Butler, 322 So.2d 189 (La.1975); State v. Martin, 92-0811 (La.App. 5 Cir. 5/31/94), 638 So.2d 411.

Id. at 437.

Furthermore, as stated by the Louisiana Supreme Court in State v. Hampton, 98-331, p. 13 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999):

A person may be convicted of an offense even if he has not personally fired the fatal shot. The law of principals states that all persons involved in the commission of a crime, whether present or absent, are equally culpable. See La. Rev.Stat. 14:24. However, the Defendant's mere presence at the scene is not enough to "concern" an individual in the crime. State v. Schwander, 345 So.2d 1173, 1174-1175 (La.1977). A principal may be connected only to those crimes for which he has the requisite mental state. State v. Holmes, 388 So.2d 722 (La.1980); State v. McAllister, 366 So.2d 1340 (La.1978).

"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." La.R.S. 14:30.1(A).

"Attempt" is defined as:

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.

La.R.S. 14:27(A).

**3 Finally, a principal is defined as "[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals." La.R.S. 14:24.

In brief and at trial, Defendant argued that there was continuous acrimony between the co-defendant, Carvanski Fontenot, and another person who was at the bar, Mario Wilson; that it was Fontenot who was firing a gun at Wilson and accidently shot the victim; and that Defendant was simply attempting to keep the peace.

Carvanski Fontenot was the first to testify for the State. He explained that a week prior to the shooting at the End Zone Bar, he and Defendant had a run-in with a man named Raven Gallow. During this particular confrontation, a gold chain was taken from Gallow and Fontenot fired a gun at Gallow's car. Fontenot was arrested and charged with offenses involving this event. Defendant had possession of the gold chain. Fontenot testified that the argument over the gold chain continued until the night of the current shooting when Mario Wilson got involved. At the bar, Gallow began cursing at Fontenot and Wilson stepped in and told Fontenot that they (Fontenot and Defendant) would have to go through him to get to Gallow. Eventually, they all went outside.

Fontenot stated that Defendant had a 9 millimeter gun. Fontenot had a .357 revolver. Fontenot had initially given his gun to Kevin Wilson, who left the gun in a car in a tire store parking lot across the street from the bar. After the two groups of people left the bar and Fontenot and his group crossed the street, Kevin Wilson gave Fontenot his gun. Mario Wilson and Fontenot continued arguing and at some point, **4 shots were fired from somewhere else. Fontenot testified that both he and Defendant began shooting at Mario Wilson, who was attempting to flee. He said that he heard Defendant fire three or four times, while he fired three times. He saw the victim fall, but stated he did not know from which gun she was shot. He and Defendant then ran behind the tire store where they gave their guns to Defendant's sister and together with Defendant's girlfriend, they all left and drove to his aunt's house. Shortly thereafter, the police arrived and arrested them.

Kevin Wilson was at the bar the night of the shooting. He was also charged with attempted second degree murder as a result of the victim's gunshot injury. He testified that although he knew Fontenot prior to the shooting, he did not know Defendant. He stated he was at the bar with another friend. However, he testified that when Fontenot had asked him to keep his gun, he put the gun in his sister's car, which was parked across the street from the bar. When the argument from the bar came out to the street, he gave the gun to Fontenot upon his request. He said that Defendant and Mario Wilson were arguing over the gold chain. When a gunshot from somewhere else rang out, Defendant and Fontenot began shooting at Mario Wilson. Defendant shot three or four times and Fontenot shot two or three times.

Patricia Eddings, a trace analyst with the Tarrant County Medical Examiner's Office in Fort Worth, Texas, testified that she found gunshot residue on both Defendant's and Fontenot's hands. Craig Nickolas, a detective with the Ville Platte Police Department, applied gunshot residue swab kits to both men shortly after they were arrested the morning of the shooting. Detective Nickolas further testified that herecovered three 9 millimeter casings from the tire store parking lot and recovered the core bullet removed from the victim.

**5 Christopher Henderson, a forensic chemist with Acadiana Criminalistic Laboratory analyzed the casings and the core bullet and testified that the casings were fired from the same gun. He stated that the core bullet was consistent with a .38 caliber which included a 9 millimeter, .357, or a .38 special.

Drashandra Thomas, Defendant's first cousin, testified she was at the End Zone Bar when the shooting occurred. She was aware of the animosity between Fontenot and Wilson inside the bar. She stated she was with the victim outside and saw Defendant, Fontenot, Kevin Wilson, and one other person with guns. She said that she saw Defendant's sister give him the gun.

In brief, Defendant argues that Carvanski Fontenot's and Kevin Wilson's testimonies were self-serving as they, too, were charged with the offense of attempted second degree murder, but had not yet been tried. He argues that there was never a gun recovered connected to him and that he was actually attempting to defuse the matter at the time of the shoot-out. Several witnesses testified that he did not have a gun. Kimberly Jack, a jailer with the local marshall's office, was at the bar the morning of the shoot-out. She stated she knew both Defendant and Fontenot and said she did not see anyone with a gun inside the bar. Avery Wilson, the father of the victim's children, stated he saw only Carvanski Fontenot shooting. He initially testified he did not see Defendant in the tire store parking lot, but later stated that he saw Defendant and Fontenot walk together across the street to parking lot. Raven Gallow testified that Defendant gave the gold chain back to him prior to the...