State v. Wright

• Decision Date: 19 February 1999
• Docket Number: No. 98 KA 0601.,98 KA 0601.
• Citation: 730 So.2d 485
• Parties: STATE of Louisiana v. Michael WRIGHT
• Court: Court of Appeal of Louisiana — District of US

730 So.2d 485

STATE of Louisiana v.Michael WRIGHT

No. .

Court of Appeal of Louisiana, First Circuit.

February 19, 1999.

Walter P. Reed, District Attorney, Covington, LA, and Dorothy Pendergrast, Metairie, LA, for appelleeState of Louisiana.

Frank Sloan, Covington, LA, for defendant-appellantMichael Wright.

BEFORE: FOIL, KUHN, and WEIMER, JJ.

WEIMER, J.

The defendant, Michael Wright, and his sister, Helen Burns(hereinafter referred to as "Burns"), were charged by grand jury indictment # 255875 with one count of second degree murder, a violation of LSA-R.S. 14:30.1, for the shooting death of Conway Burns, Burns' husband.Wright pled not guilty.¹Originally, only Burns was indicted for the offense under grand jury indictment # 245264, but that indictment was nolle prosequi.

After a jury trial with Burns as co-defendant, Wright was found guilty as charged.Wright's motions for post-verdict judgment of acquittal and for new trial were denied.He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.He now appeals, designating two assignments of error.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number one, Wright contends the circumstantial evidence was insufficient to support the verdict against him.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt.In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove," every reasonable hypothesis of innocence is excluded.LSA-R.S. 15:438.State v. Huls, 95-0541, p. 25(La.App. 1 Cir.5/29/96), 676 So.2d 160, 176,writ denied,96-1734(La.1/6/97), 685 So.2d 126.Where the key issue is the defendant's identity as the perpetrator, rather than whether or not the crime was committed, the State is required to negate any reasonable probability of misidentification.Positive identification by only one witness may be sufficient to support the defendant's conviction.State v. Parfait, 96-1814, p. 17(La. App. 1 Cir.5/9/97), 693 So.2d 1232, 1242,writ denied,97-1347 (La.10/31/97), 703 So.2d 20.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution.When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime.Huls, 95-0541at 25, 676 So.2d at 176-177.

The applicable definition of second degree murder in the instant case is the killing of a human being "[w]hen the offender has a specific intent to kill or to inflict great bodily harm."LSA-R.S. 14:30.1(A)(1).Specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act."LSA-R.S. 14:10(1).Intent is a question of fact.Nevertheless, the intent at issue in this case, specific criminal intent, may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances.State v. Seals, 95-0305, p. 6(La.11/25/96), 684 So.2d 368, 373, cert. denied,520 U.S. 1558, 117 S.Ct. 1558, 137 L.Ed.2d 705(1997).Specific intent is an ultimate legal conclusion to be resolved by the fact finder.State v. Buchanan, 95-0625, p. 4(La.App. 1 Cir.5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La.12/6/96), 684 So.2d 923.Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person.Seals, supra.All 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 principles.LSA-R.S. 14:24.

Wright and Burns were tried jointly, and the following evidence was presented to the jury.Martha Burghardt testified that on June 23, 1995, at approximately noon, she was at her home on Highway 36 cleaning dishes at the kitchen sink.She looked up after hearing a noise, which at first she thought was a car accident.She saw two people fighting near a white van and a "little red car."She then saw one of the individuals go to the red car and retrieve a gun.The person held the gun "like halfway out the car door" and fired.She commented, "Boy, he really wants that person dead."She had no telephone, so after waiting for the shooter to leave, she flagged-down a pickup truck and asked the driver to alert an ambulance and the police.She did not see the faces of the two people and could not determine their skin color.When asked if she had seen Michael Wright at the crime scene, she answered "No."She testified before the grand jury that she thought the two persons were male because they were dressed in jeans, but conceded that it could have been a man and a woman in jeans or two women in jeans.The only times that she had seen Burns was before the grand jury and in the courtroom during trial.

Robbie Anthony testified that on the date in question, he was at his desk in his business located on Highway 59, at the red light in Abita Springs.He looked out of the window after hearing a gunshot.He saw a white van with a "little red car" behind it "with a person out the window."He saw an anxious and nervous African-American male driving the van and an African-American male in the red car pointing a gun towards the van.The driver of the van turned left and stopped near an Abita police officer, but then drove off.While Mr. Anthony saw the faces of both drivers, he could not identify Michael Wright as being the person in the red vehicle.

On redirect examination, the State asked Mr. Anthony whether he was saying that Wright was not the man in the red vehicle or whether he was saying that he could not say whether Wright was or was not the man in the red vehicle.Mr. Anthony answered that he could not say whether Wright was or was not the man in the red vehicle.

Zachary Sloan testified that on June 23, 1995, at approximately noon, he was driving home on Highway 36 to have lunch.As he parked in his driveway, he noticed a white van parked sideways in the middle of the road.Two men were struggling on the side of the van.One of the men got up.He was a black man, 5'11"-6' tall, wearing a white sleeveless T-shirt and blue sweat pants.As Mr. Sloan was closing his gate, he looked over at the man and saw his arms go out, saw the man hunch over, and heard five gunshots.Mr. Sloan turned to run into his house to call the police.As he turned, he saw two people come around the back of the van and get into "a little red foreign car."Mr. Sloan did not see anyone's face, did not see the weapon, and his entire view of the incident lasted approximately fifteen seconds.

Approximately fifteen minutes after the police arrived and approximately thirty minutes after the shooting, Mr. Sloan saw someone matching the description of the shooter "coming down the street" from about two blocks away.The person was coming from the same neighborhood that Mr. Sloan "believed" the red car had turned into.He identified Michael Wright as the person matching the description, commenting that he had gone to school with Wright and had played football with him in the eighth grade.

Mr. Sloan testified that Wright looked like the shooter to him because of Wright's physical appearance, but he could not say for sure because he never saw the shooter's face.He also testified that he could not be certain of the shooter's gender because he never saw that person from the front.When questioned by the State regarding whether his feelings about Wright's identity as the shooter were different at the time of his grand jury testimony, Mr. Sloan replied:

No, my feelings have never changed as to what I saw.And to the physical appearance of the person that I saw and that it looked like the same person to me.But I couldn't tell you for sure because I never saw their face.That would be the, in my mind, the only positive identifying factor to make it one hundred percent.

On cross-examination, Mr. Sloan conceded that he could not identify Wright as the shooter, that the shirt the shooter had worn was "fairly popular or common," and that the sweat pants the shooter had worn "you could get at Wal-Mart any time."He also agreed that when he"bumped into" Wright on two occasions after the day of the shooting, he neither threatened nor seemed antagonistic towards him.

In addition to Mr. Sloan's testimony at trial, the State also relied upon Mr. Sloan's testimony before the grand jury to prove Wright's identity as the shooter.Mr. Sloan's grand jury testimony was placed into evidence by counsel for Burns, but was also used by counsel for both Wright and the State.The portions of Mr. Sloan's grand jury testimony relied upon by the State were as follows:

The witness: The only way I can identify this individual was the fact that I had seen him out there in front of the van, and then he caught my eye when he was coming back down the street later and that I had gone to school with him.And that's the only way I can place him; otherwise I wouldn't have any idea who he was.

. . . .

Q.You said that you knew Michael Wright from school.What grade

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