State v. Turner, 37,162-KA.

• Decision Date: 29 October 2003
• Docket Number: No. 37,162-KA.,37,162-KA.
• Parties: STATE of Louisiana, Appellee, v. Nolan C. TURNER, III, Appellant.
• Court: Court of Appeal of Louisiana — District of US

859 So.2d 911

STATE of Louisiana, Appellee, v. Nolan C. TURNER, III, Appellant.

No. 37,162-KA.

Court of Appeal of Louisiana, Second Circuit.

October 29, 2003.

Peggy J. Sullivan, Monroe, for Appellant.

Nolan C. Turner, III, Pro Se.

Paul J. Carmouche, District Attorney, Traci Moore, Larrion Hillman, J. Thomas Butler, Assistant District Attorneys, for Appellee.

Before WILLIAMS, STEWART and TRAYLOR (Pro Tempore), JJ.

WILLIAMS, J.

Following a jury trial, the defendant, Nolan C. Turner, III, was found guilty as charged of first degree murder. He was sentenced to serve life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence with credit for time served. Turner now appeals his conviction and sentence. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On July 8, 1999, Jason Heath Winn ("Heath") and his father, Doyle Wayne Winn, were working in their tire store located on Jewella Avenue, in Shreveport, Caddo Parish, Louisiana. Heath's eleven-year-old brother, Garrett, was inside the store playing with his friend, Bennett Berryman, who was about six years old. All four individuals were in the office when two men with handguns walked into the store. One man had short hair and one had long, shoulder-length hair. The man with the long hair shut the overhead door in the office area. Heath immediately handed the long-haired man approximately $140 cash. The men then told the victims to "get to the back." One of the assailants told the victims to lie down. Heath complied; however, Winn began to scuffle with the long-haired man and told Heath to get up. As Heath attempted to get up, he was shot twice by the long-haired man. Garrett saw the long-haired man fire the first shot at Heath, but Garrett could only hear the other shots. Heath saw the longhaired man shoot his father twice. As the two men were fleeing the building on foot, the short-haired man grabbed some of the money that had fallen to the floor. Heath heard two more gunshots. Winn received two gunshot wounds and died at the scene. Heath also was shot twice and is now a paraplegic, confined to a wheelchair.

On the day of the incident, at approximately 5:00 p.m., Linda Tyler was leaving her job at Morning Star Baptist Church, which was located across the street from the tire store. Tyler testified that as she waited in her vehicle for the traffic to clear, she noticed that the door to the tire store was partially closed. She thought that this was unusual for that time of day. Tyler observed a man come out of the tire store, stand outside for a moment and then run down the street. She then observed a second man, who had long hair, back out of the tire store shooting a gun. The longhaired man ran across Jewella Avenue toward Tyler and then down Baxter Street. Tyler drove her vehicle onto Jewella Avenue and down Baxter street in an attempt to follow the long-haired man. However, she had to turn around because of construction work in the area. As Tyler drove back up Baxter Street, the longhaired man walked toward and "right by" her.

Allen Waites, a road construction worker, was assigned to Baxter Street at the time of the shooting. Waites testified that shortly after hearing gunshots, he saw a man running down Baxter Street with a handgun in his pants pocket.

During the course of his investigation of the armed robbery and murder, Detective Ronnie Jeter of the Shreveport Police Department, Office of Special Investigations, developed the defendant as a suspect. He prepared a computer-generated lineup, which was printed in both color and black and white formats. Detective Jeter testified that he followed the proper procedure with regard to showing the lineup to Tyler and Bennett, both of whom positively identified the defendant's photograph (Number 5) as the long-haired man who had committed the crime. When Bennett was asked if anyone in the lineup was the person he had seen at the crime scene, Bennett pointed to photograph number five. Ruby Smith, Bennett's cousin/guardian, wrote for the six year old and indicated on the back of the photographic lineup that Bennett had chosen photograph number five.

On July 12, 1999, Detective Jeter questioned the defendant at the police station. Defendant was advised of his Miranda rights, but refused to sign a written waiver of his rights. However, the defendant gave a statement to Detective Jeter wherein he indicated that during the night before the crime and most of the day of the crime, he was in Bossier City, Louisiana. He stated that during the time of the crime, he was at Ike's Barber Shop, where he contacted one Santanian Dixon.

Isaiah Shine, the proprietor of Ike's Barber Shop, testified that he was the last person to leave his barber shop on the day of the crime. According to Shine, he left at about five-thirty or six o'clock that evening. When Shine left, there was no one outside the shop and he had not seen the defendant that day. Santanian, who worked with Shine and was a good friend of the defendant, testified that he had seen the defendant at the shop earlier in the day, but he had not seen him that afternoon.

At trial, Heath positively identified the defendant as the person who had shot and killed his father. Tyler also positively identified the defendant as the person she had seen shooting a gun and running from the tire store on the day of the crime. The defense did not present any evidence during the guilt phase of the trial. At its conclusion, the defendant was unanimously convicted of first degree murder.

After the penalty phase of the trial, the jury returned a recommendation of life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. Motions for post-verdict judgment of acquittal, modification of verdict and new trial were filed, submitted and denied. In accordance with the jury's recommendation, the defendant was sentenced to serve life imprisonment without the benefit of parole, probation or suspension of sentence. The defendant appeals.

DISCUSSION

Assignments of Error Numbers 1 and 2:

By these assignments, the defendant contends the evidence was insufficient to support his conviction of first degree murder. He argues that there was no physical evidence introduced at trial to prove that he shot the victims. He contends the only evidence of his identity as the perpetrator was the identification by three state witnesses: Bennett, Heath and Tyler. The defendant argues that the eyewitness identifications and photographic lineups were inconsistent and unreliable. Specifically, the defendant argues that because of Bennett's young age and the fact that he was crying during the crime, his identification of the defendant from a photographic lineup was unreliable. He argues Heath's identification was unreliable because it was made after Heath's release from the intensive care unit, while he was on medication. The defendant asserts that Tyler's identification from the photographic lineup was suspect because her account of the facts of the crime was inconsistent. The defendant argues that the in-court identifications by Heath and Tyler were unreliable because of their limited opportunity to view him during the crime and shortly thereafter. He also contends Garrett described him as having one or more gold teeth and he does not have any gold teeth. According to the defendant, Garrett and Detective Jeter gave conflicting testimony regarding whether Garrett was shown a photographic lineup in the hospital. Finally, also with regard to his sufficiency of the evidence challenge, the defendant argues that the state failed to prove that he possessed the specific intent to kill the victim.

The question of the sufficiency of the evidence is properly raised by a motion for post-verdict judgment of acquittal. LSA-C.Cr.P. art. 821; State v. Gay, 29,434 (La.App.2d Cir.6/18/97), 697 So.2d 642. The record shows that the defendant properly raised the issue of the sufficiency of the evidence in the trial court in a motion for post-verdict judgment of acquittal, which was denied by the trial court. 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 of the evidence issues 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.

This standard, now legislatively embodied in LSA-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. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court can neither assess the credibility of witnesses nor re-weigh the 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. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508.

In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson standard requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008 (on rehearing), writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

A positive identification by only one witness may be...