State v. Coleman

342 So.3d 7

STATE of Louisiana

v.Andre D. COLEMAN

2021 KA 0870

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: APRIL 08, 2022

Scott M. Perilloux, District Attorney, Zachary Daniels, Assistant District Attorney, Livingston, LA, Counsel for Plaintiff/Appellee State of Louisiana

Ravi G. Shah, Covington, LA, David F. Gremillion, New Orleans, LA, Counsel for Defendant/Appellant Andre D. Coleman

BEFORE: MCDONALD, LANIER, AND WOLFE, JJ.

LANIER, J.

The defendant, Andre D. Coleman, was charged by bill of information with attempted second degree murder, a violation of La. R.S. 14:27 & 14:30.1, and pled not guilty. Following a jury trial, by unanimous verdict, he was found guilty as charged. He moved for a new trial, but the motion was denied. He was sentenced to fifty years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals, challenging the sufficiency of the evidence, the excessiveness of the sentence, the introduction of certain evidence, and the sufficiency of the record. For the following reasons, we affirm the conviction and sentence.

FACTS

On August 11, 2018, Karen Henry, the defendant's ex-wife, called the police "because [the defendant] was outside [her] house with an [AK-47 assault rifle]." Henry explained she had invited the victim, her friend Emmanuel Jordan, over to her house. Approximately two minutes after he arrived, the defendant drove up to Henry's property in Tickfaw, Louisiana in a gray Chevrolet Tahoe. The defendant asked Henry who was in the truck on her property. She told him that it was none of his business. He replied he was going to find out for himself and reached into the back of his vehicle for the AK-47. Henry also saw that the defendant was wearing a bulletproof vest.

Henry warned the victim not to open the door, then told the defendant not to pass her ditch. It was at that time that she went into her house to call the police. When she went back outside, neither the victim nor the defendant was present. She sat down and heard some shots. Approximately three minutes later, she heard about six more shots.

The victim testified that on an occasion prior to August 11, 2018, he had visited Henry at her home and the defendant confronted him, claimed to be a police officer. The defendant pulled a gun on the victim, demanded the victim's own gun, and told the victim he could not "come over here and all of that."

In regard to the incident on August 11, 2018, the victim was talking to Henry in her yard when the defendant pulled up. The defendant got out of his vehicle holding an AK-47 and wearing a bulletproof vest. The victim was shocked that the confrontation had escalated so quickly, and his immediate thought was to "just get away."

The victim got into his truck, intending to drive back to his home in Kentwood, LA. As he drove in the direction of Interstate 55, he noticed the defendant was following him. As the victim drove up the ramp to merge onto the interstate highway, the defendant fired the AK-47. Bullets were flying around the victim, and he felt himself "get hit." The victim sustained two gunshots in the back. The victim's vehicle stopped on the on-ramp to the interstate, forcing the victim to exit and run to the back of the vehicle.

The defendant pulled his vehicle in front of the victim's vehicle, exited, and "[came] back for [the victim]." The victim ran into an adjacent wooded area to hide. He stayed in the woods for approximately ten or fifteen minutes, but then returned to his vehicle to try and drive himself to the hospital in Amite, LA. The victim realized the tires on his vehicle had been shot out, so he was unable to control the vehicle, and had to pull over. He then called 911. While speaking with the 911 operator, the victim was bleeding heavily and thought he was going to die. Subsequently, he underwent surgery for six hours and, in order to save his life, some of his internal organs were removed. At the time of trial, he was still suffering from problems with his stomach and bowel movements due to the incident.

The victim identified the defendant at trial as the man who had shot him twice in the back with an AK-47, as the man who had chased him from Tickfaw, LA to the entrance ramp of 1-55, and as the man who had shot into his truck approximately twelve times trying to kill him. The victim had "no doubt" the defendant was the assailant.

The defense asked the victim if he had told the 911 operator that he did not know who had shot him. The victim replied that, at the time he called 911, he did not know the defendant's name, but he had seen the defendant before in Henry's yard.

The defendant's recorded statement concerning the incident was played at trial. In the statement, the defendant admitted he owned an AK-47. He also admitted he owned the Tahoe involved in the incident. There were bullet holes in the Tahoe, and the window had been shot out. Initially, the defendant claimed the vehicle was "shot up" while parked at a church in Covington. He then stated the bullet holes were made by twenty "kids" who followed him and shot at him after he was waiting for a friend in Independence, LA. The police had no reports of either a shooting at a church in Covington or of a shooting at a Tahoe in Independence. Thereafter, the defendant claimed he smoked "weeds" to forget, and he had shot at people in the past, but could not remember the dates. When asked how long it had been since he shot at someone, the defendant replied a week.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number 1, the defendant contends he was erroneously convicted of attempted second degree murder. He argues the State failed to prove beyond a reasonable doubt that he was the person that shot at the victim. He claims his car had bullet holes because he was shot at and rammed by another car approximately one week before his arrest. He also points out that the police never found the AK-47 assault rifle allegedly used in the offense.

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, in order to convict," every reasonable hypothesis of innocence is excluded. La. R.S. 15:438 ; State v. Currie , 2020-0467 (La. App. 1st Cir. 2/22/21), 321 So.3d 978, 982.

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. La. R.S. 15:438 ; Currie , 321 So.3d at 982.

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Further, a specific intent to kill is an essential element of the crime of attempted murder. Currie , 321 So.3d at 982.

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). Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended. La. R.S. 14:27(B)(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." La. R.S. 14:10(1) ; Currie , 321 So.3d at 982-83. Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific 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. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Currie , 321 So.3d at 983. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Eason , 2019-0614 (La. App. 1st Cir. 12/27/19), 293 So.3d 61, 70.

Any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could have found the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of attempted second degree murder and the defendant's identity as the perpetrator of that offense against the victim. The State presented testimony from the victim that the defendant was the person who fired the AK-47 and shot him twice in the back. The verdict returned in this matter reflects the jury found the testimony of the victim credible and rejected the defendant's attempts to discredit that testimony. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. The testimony of the victim alone is sufficient to prove the...