State v. Thomas

• Citation: 747 So.2d 610
• Decision Date: 18 August 1999
• Docket Number: No. 32,215-KA.,32,215-KA.
• Parties: STATE of Louisiana, Appellee, v. Michael THOMAS, Appellant.
• Court: Court of Appeal of Louisiana — District of US

747 So.2d 610

STATE of Louisiana, Appellee, v. Michael THOMAS, Appellant.

No. 32,215-KA.

Court of Appeal of Louisiana, Second Circuit.

August 18, 1999.

COPYRIGHT MATERIAL OMITTED

Peggy J. Sullivan, Louisiana Appellate Project, Monroe, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Tommy J. Johnson, Suzanne Morelock Owen, Asst. Dist. Attys., Counsel for Appellee.

Before NORRIS, C.J., and BROWN and KOSTELKA, JJ. .

NORRIS, Chief Judge.

Michael Thomas was charged by bill of information with attempted second degree murder. He proceeded to trial in which a 12-member jury returned the responsive verdict of attempted manslaughter, La. R.S. 14:27, 14:31. He was later adjudicated a third felony offender and sentenced to a mandatory life at hard labor without benefit of parole, probation or suspension of sentence. He now appeals, urging the evidence was insufficient to support a conviction of attempted manslaughter, the trial court impermissibly limited cross examination of a State witness, and the sentence is unconstitutionally excessive. For the reasons expressed, we affirm.

Factual background

Early on the morning of December 26, 1996, Shreveport police were summoned to a shooting on the street in the 1000 block of Allen Avenue. The victim, Cynthia James, was lying on the pavement with a bullet in her neck. A large crowd, described by police as "hostile," had to be dispersed; nobody at the scene admitted seeing the shooting or knowing who the shooter was. The victim was taken to LSU Medical Center; Officer Ryan Gholson, who investigated the case, testified that he was unable to develop any leads from her at that time. She died roughly three weeks later; according to the coroner, this resulted from an adverse drug reaction.

Within hours of the shooting, officers developed a witness, 16-year-old Ashanti Monroe, and a possible suspect, Michael "Lil Mike" Thomas. Ms. Monroe testified that she saw the shooting from the window of a nearby apartment. She had been at H & H Lounge on Hope Street after midnight with a crowd of people including the victim, whom she knew well, and the defendant, Michael Thomas, who was "just an acquaintance." Outside the lounge an argument erupted between Thomas and someone named Stanley. Police were called, but Thomas handed his gun to somebody before officers arrived, and the crowd scattered. Ms. Monroe and her group (including the victim) left, taking Stanley with them to a second story apartment belonging to Lamekia Harris in the Jackson Heights projects on Allen Avenue, about a block away.

From the window she could see Thomas and a crowd in the parking lot across the street. Thomas was holding a gun and looking for Stanley. Ms. Monroe testified she had no intention of going down into the crowd, and she kept Stanley safely inside. For reasons Ms. Monroe could not explain, the victim left the apartment, walking past the crowd and down an alley. When she returned, she had words with Thomas. Ms. Monroe, watching through the window, said the victim neither threatened nor gestured at Thomas, but he pulled a gun, turned around and shot her once; she fell immediately. Thomas stood there for a moment, then fled. Ms. Monroe phoned 911. As noted, nobody in the crowd below would identify the shooter.

Ms. Monroe maintained she had an excellent view of the incident from the second story window, a point corroborated by Officer Gholson. She was positive that Thomas was the shooter: she identified him in court and in a photo lineup prepared by Officer Gholson. Thomas was arrested in the H & H Lounge on January 17.

Another witness, Jerry Hayes, testified that he was walking down Allen Avenue and was about 100 feet away when the shooting occurred. He testified that Thomas and the victim were having an argument when Thomas suddenly pulled a gun, shot her once, then walked toward Milam Street. He identified Thomas as the shooter. Hayes admitted he did not volunteer this information to the police at the time, and did not speak to officers until January or February. He also admitted four prior felony convictions, some misdemeanors, and at the time of trial was a trusty at Caddo Correctional Center. However, he denied that he was testifying in order to curry favor with prosecutors. In fact, he was subpoenaed to testify at Thomas's trial.

Thomas was originally indicted for second degree murder; the District Attorney later filed an amended bill of information charging him with attempted second degree murder, R.S. 14:30.1, 14:27. Thomas proceeded to a jury trial in late April and early May 1997 and was found guilty of attempted manslaughter, R.S. 14:31, 14:27. As noted, the District Attorney filed a multiple offender bill; Thomas was adjudicated a third felony offender. As at least one of the felonies was a crime of violence he received the mandatory life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. R.S. 15:529.1 A(1)(b)(ii).

Of five assignments of error filed in the District Court, Thomas has expressly abandoned the one pertaining to jury selection. Br., 6.

Discussion: Sufficiency of the evidence

By his first two assignments Thomas urges the evidence was insufficient to support the conviction of attempted manslaughter. The argument is entirely factual. He first argues that the State's lead witness, Ms. Monroe, initially told police that the shooter pulled the handgun out of his pants before firing at the victim, but she testified at trial that he was "swinging it around." Next, although they agreed on how the shooting occurred, neither Ms. Monroe nor the other alleged eyewitness, Jerry Hayes, could remember what the shooter was wearing. Further, Officer Gholson spoke to two men, Bryant and Collins, who had not witnessed the incident but gave descriptions of the person they thought was involved; after the defendant was in custody, officers made no effort to contact these potential witnesses or show them the lineup. These circumstances, Thomas argues, cast serious doubt on the credibility of the State's witnesses, who had "ample time, particularly for Mr. Hayes, to learn what the story was and to stick to it." He finally contends that by allowing other witnesses to remain "conveniently elusive," the police failed to "obtain information which might indicate that Ms. Monroe and Mr. Hayes were not being truthful."

When the defendant challenges both sufficiency of the evidence and one or more trial errors, the reviewing court will first consider the former, as a finding of insufficient evidence will moot the trial errors. State v. Hearold, 603 So.2d 731 (La.1992); State v. Adams, 30,815 (La. App. 2 Cir. 6/24/98), 715 So.2d 118, writ denied 98-2031 (La.3/19/99), 739 So.2d 774. The Constitutional standard of appellate review 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); La.C.Cr.P. art. 821. The Jackson standard, however, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96) 680 So.2d 1165. The appellate court does not assess credibility or re-weigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support the requisite factual finding. State v. Braswell, 605 So.2d 702 (La.App. 2 Cir.1992), and citations therein; State v. Gradick, 29,231 (La.App. 2 Cir. 1/22/97), 687 So.2d 1071. Positive identification by one witness may be sufficient to support the conviction. State v. White, 28,095 (La. App. 2 Cir. 5/8/96), 674 So.2d 1018, writ denied 96-1459 (La.11/15/96), 682 So.2d 760.

The thrust of Thomas's argument is that the State's lead witness, Ms. Monroe, was simply not worthy of belief. The jury obviously accepted her account of the shooting and identification of Thomas as the shooter. We have closely examined her testimony and find that the alleged inconsistencies—how the shooter carried the gun before the shooting, and Ms. Monroe's inability to recall the shooter's clothing—do not rise to a level that will warrant disturbing the jury's credibility call. See, State v. Adams, supra; State v. Hubbard, 30,604 (La.App. 2 Cir. 4/8/98), 711 So.2d 393. Although Thomas has not challenged any particular element of the offense of conviction, attempted manslaughter, we note that the evidence supports the verdict. Ms. Monroe knew Thomas as an acquaintance and identified him; this negates any reasonable probability of misidentification. State v. Powell, 27,959 (La.App. 2 Cir. 4/12/96), 677 So.2d 1008 (on rehearing), writ denied 96-1807 (La.2/21/97), 688 So.2d 520. She saw him wielding a gun, both outside H & H Lounge and a block away on Allen Avenue. From her window vantage point she saw him exchange angry words with Cynthia James, pull the gun, point it at her and shoot. This will support the finding of a specific intent to kill the victim. State v. Arnold, 30,282 (La.App. 2 Cir. 1/21/98), 706 So.2d 578, and citations therein. Thus a rational trier of fact could find every essential element of attempted manslaughter.¹

Finally, we find no merit in Thomas's suggestion that an incomplete or inferior police investigation casts doubt on the evidence presented. Officer Gholson frankly admitted that two potential witnesses, Bryant and Collins, gave inconsistent descriptions of a man they thought was involved in the crime, and were not further consulted after Ms. Monroe identified Thomas as the culprit. Gholson also testified that neither Bryant nor Collins saw or heard the shooting; thus the jury was entitled to find...