State v. Turner

• Decision Date: 03 February 2010
• Docket Number: 920-KA,No. 44,921-KA.,44
• Citation: 32 So.3d 277
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE of Louisiana, Appellee v. Reginald Rayshaun TURNER, Appellant.

32 So.3d 277

STATE of Louisiana, Appellee v. Reginald Rayshaun TURNER, Appellant.

Nos. 44,920-KA, 44,921-KA.

Court of Appeal of Louisiana, Second Circuit.

February 3, 2010.

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Anselm N. Nwokorie, Brian G. Smith, for Appellant.

William R. Coenen, Jr., District Attorney, Penny Douciere, John M. Lancaster, Assistant District Attorneys, for Appellee.

Before GASKINS, CARAWAY and LOLLEY, JJ.

CARAWAY, J.

A fight broke out during a birthday party at a public facility. As the party dispersed, multiple shooters began to fire gunshots into a crowd of exiting guests. Four victims sustained a total of ten gunshot wounds. Defendant was identified by several eyewitnesses as one of the shooters. He was charged by bill of information with attempted first degree murder and possession of firearm by a known felon, under La. R.S. 14:27, 14:30, and 14:95.1. After a jury found defendant guilty of both offenses, the trial court sentenced defendant under the habitual offender statute to 45 years for the crime of attempted first degree murder, to run concurrently with a 15-year sentence for the offense of felon in possession of a firearm. Defendant now appeals, alleging that there was insufficient evidence to convict. Defendant also asserts that the state failed to divulge exculpatory evidence and that the investigating police officers used an improper photo lineup. Furthermore, defendant challenges his habitual offender status and claims his sentence to be unconstitutionally excessive. For the following reasons, we affirm defendant's conviction and sentence.

Facts

On the evening of June 9, 2007, Latisha Freeman, an Oak Grove resident, threw herself a birthday party at the Teen Center. The party commenced at 10:00 p.m. Freeman personally invited guests to her party and also publicly advertised the party by posting fliers throughout the area. As a result, approximately 100 to 200 people attended the party. A $3 cover charge was collected at the door and alcohol and a DJ were provided. Freeman testified that an estimated $300 was collected, but clarified that not every person in attendance that night was required to pay the cover.

At approximately 1:00 a.m., the party came to an abrupt end when an altercation between guests at the party broke out. As the fight escalated and a crowd drew near, several witnesses testified to seeing Bryant Jones ("Jones"), another guest at the party, lift his shirt and display a handgun tucked into his waistband. Upon seeing this, Freeman grabbed the DJ's microphone and announced that Jones had a gun. The lights were turned on and the DJ told the guests that the party was over. Thereafter, a sudden panicked crowd of guests made a hasty rush to the front door to exit the Teen Center. As the crowd exited the building through the front door, gunfire began and four victims were shot during their attempt to escape: Latisha Freeman and Gawun Jordan were each shot once; Shakia "Honey" Freeman was shot twice; and David Carroll was shot six times, of which one bullet entered his chest, barely missing a vital organ. All four gunshot victims were immediately taken by personal vehicles to West Carroll Hospital.

In the early morning hours of June 10, 2007, the Oak Grove Police Department received notice that gunshots were being fired at the local Teen Center. Officer Charles Allen Irby, chief investigative officer for the incident, testified that he received notice of the incident at 1:20 a.m. and immediately responded. Upon arrival at the Teen Center, Officer Irby began to recover physical evidence from the scene. Such evidence included approximately 20 spent shell casings of varying calibers, as well as several live rounds, all of which were located in concentrated areas outside the Teen Center. Officer Irby believed that at least four or five different caliber weapons were fired that night. Blood splatters were found both inside and outside the Teen Center. Additionally, Officer Irby observed several bullet strikes on the front of the building, particularly at the front entrance. According to the evidence and witness statements, the four victims were in or near the front of the building when they were shot.

After processing the crime scene, Officer Irby arrived at the West Carroll Parish Hospital, where he was able to talk to three of the four gunshot victims. Of the three, only Latisha Freeman was able to positively identify any of the shooters. Freeman was first interviewed on the night of the incident, where she only implicated Jones. The next day, she was interviewed at the police station, where she revealed that she additionally witnessed Reginald Turner possessing and shooting a gun at the Teen Center that evening.

Four other witnesses corroborated the fact that Turner was in possession of a gun that night and furthermore, three of these witnesses saw him shooting that gun toward the Teen Center. All witnesses consistently revealed that defendant was holding a long gun with two hands. Based on these witnesses' statements, a warrant was issued and Turner was arrested.

On July 30, 2007, the defendant was charged by bill of information with attempted first degree murder and possession of a firearm by a convicted felon. Jones, who was also identified by witnesses as a shooter, was also arrested, tried and convicted of attempted first degree murder on October 25, 2007. His conviction was later affirmed in State v. Jones, 43,963 (La.App. 2d Cir.2/25/09), 4 So.3d 950.

Following a trial, Reginald Turner was convicted by a jury of attempted first degree murder and possession of a firearm by a convicted felon. After conviction, the state filed a habitual offender bill which alleged that the defendant had a prior conviction for aggravated battery in July of 1999. On April 29, 2009, the trial court conducted a hearing on the motion for post-verdict judgment of acquittal and the motion to quash the habitual offender bill. Both were denied.

On April 29, 2009, Turner was sentenced to concurrent sentences of 45 years at hard labor on the charge of attempted first degree murder and 15 years at hard labor for possession of a firearm by a convicted felon. Defendant now appeals.

Discussion

Sufficiency of the Evidence

Turner argues that the evidence adduced at trial is insufficient to find him guilty beyond a reasonable doubt of attempted first degree murder. He argues that the testimony of alleged eyewitness was so inherently contradictory that a reasonable jury could not have excluded every reasonable hypothesis of innocence.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29, 253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard, now legislatively embodied in La.C.Cr.P. art. 821, 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. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

First degree murder, La. R.S. 14:30, provides in part:

A. First Degree murder is the killing of a human being:

(3) when the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.

An attempt to commit a crime is defined in La. R.S. 14:27, which provides in part:

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.

In order to illustrate what the defense considers an irreconcilable conflict in witness testimony, he points specifically to the inconsistencies between Latisha Freeman's testimony at Jones's earlier trial and her testimony at this trial. In the October 2007 trial of codefendant Bryant Jones, Freeman affirmatively identified Jones as a shooter, but was unable to positively identify any other gunman; Freeman recalled seeing another shooter wearing a black shirt. In the present trial, Freeman testified in great detail that defendant was also a shooter at the Teen Center that night. At trial, she stated she overheard Turner say that he was going to his car "to get his heat." She then saw defendant go to a red or burgundy car where he retrieved a large gun from the vehicle and proceeded to walk back toward the Teen Center. Although it was dark outside, Freeman testified that defendant was standing under a lamp post, enabling her to see as he pointed the gun toward the crowd exiting the building. He then began to fire. When asked about the inconsistent...