State v. Johnson

244 So.3d 617

STATE of Louisiana, Appellee

v.Gregory Lynn JOHNSON, Appellant

No. 51,652–KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered September 27, 2017

LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant

GREGORY LYNN JOHNSON, Pro Se

JAMES E. STEWART, SR., District Attorney, Ann Arbor, MI, BRITNEY A. GREEN, Mansfield, TOMMY JAN JOHNSON, Shreveport, Assistant District Attorneys, Counsel for Appellee

Before WILLIAMS, GARRETT, and STONE, JJ.

STONE, J.

The defendant, Gregory Lynn Johnson, was convicted by a unanimous jury of second degree murder and sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Johnson now appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On June 27, 2013, officers with the Shreveport Police Department ("SPD") responded to a 911 call from a residence located at 609 Central Street in Shreveport, Louisiana. Officers found Walter Howard ("Walter") just inside the front door lying in a pool of blood with an apparent gunshot wound to the chest. Walter was transported to the hospital, where he was pronounced dead.

On August 15, 2013, Gregory Lynn Johnson ("Johnson") was indicted by a grand jury for the second degree murder of Walter. On November 3, 2016, a jury unanimously found Johnson guilty as charged. Johnson received the mandatory sentence of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Johnson now appeals.

Appellate counsel argues there was insufficient evidence to support the conviction. Johnson filed a pro se brief arguing insufficiency of the evidence, as well as the violation of his Fifth Amendment right against self-incrimination and Sixth Amendment right to confront and cross-examine an adverse witness. Johnson also argues the trial court erred by lodging an incomplete appellate record.

DISCUSSION

Sufficiency of the Evidence

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate, 2001-1658 (La. 05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter, 42,894 (La. App. 2 Cir. 01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086 ; State v. Robinson , 50,643 (La. App. 2 Cir. 06/22/16), 197 So.3d 717, 719, writ denied , 2016-1479 (La. 05/19/17), 221 So.3d 78. This 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, 2005-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Dotie, 43,819 (La. App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/06/09), 21 So.3d 297 ; State v. Robinson, supra .

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases 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 inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983) ; State v. Speed, 43,786 (La. App. 2 Cir. 01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/06/09), 21 So.3d 299 ; State v. Robinson, supra .

Direct evidence provides proof of the existence of a fact, for example, a witness' testimony that he saw or heard something. State v. Lilly , 468 So.2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id . When the state relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove and the circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Lilly , supra ; State v. Robinson , 47,437 (La. App. 2 Cir. 11/14/12), 106 So.3d 1028, writ denied , 12-2658 (La. 05/17/13), 117 So.3d 918.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen , 36,180 (La. App. 2 Cir. 09/18/02), 828 So.2d 622, writs denied , 2002-2595 (La. 03/28/03), 840 So.2d 566, 2002-2997 (La. 06/27/03), 847 So.2d 1255, cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The appellate court neither assesses the credibility of witnesses nor reweighs 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. 2 Cir. 02/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913 ; State v. Hill , 42,025 (La. App. 2 Cir. 05/09/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529.

When a jury reasonably and rationally rejects the exculpatory hypothesis of innocence offered by a defendant's own testimony, an appellate court's task in reviewing the sufficiency of the evidence under the Due Process Clause is at an end unless an alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Calloway , 2007-2306 (La. 01/21/09), 1 So.3d 417 ; State v. Matthews , 50,838 (La. App. 2 Cir. 08/10/16), 200 So.3d 895 ; State v. Walker , 51,217 (La. App. 2 Cir. 05/17/17), 221 So.3d 951.

Second degree murder is defined by La. R.S. 14:30.1, in pertinent part, as the "killing of a human being" when the offender has "a specific intent to kill or to inflict great bodily harm." Specific intent is the state of mind that 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). As a state of mind, specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. State v. Kahey , 436 So.2d 475 (La. 1983) ; State v. Lensey , 50,242 (La. App. 2 Cir. 11/18/15), 182 So.3d 1059, 1062, writ denied , 2015-2344 (La. 03/14/16), 189 So.3d 1066. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Lloyd , 48,914 (La. App. 2 Cir. 01/14/15), 161 So.3d 879, writ denied , 15-0307 (La. 11/30/15), 184 So.3d 33. The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar , 414 So.2d 741 (La. 1982) ; State v. Lloyd, supra.

At Johnson's trial, the state presented the jury with the following evidence and testimony. Katrina Sims ("Sims") testified that, on June 27, 2013, she made the initial 911 call to report witnessing Walter being shot by a man named "Greg." Sims testified she was in a relationship with Walter's brother, Johnny Howard ("Johnny"), and had been staying at the brothers' residence at 609 Central Street for a couple of months prior to the shooting. Sims testified she was aware that Walter made his living selling drugs and admitted to being a drug user herself. Sims professed to using drugs on the day of the shooting but claimed she was still in her "right mind" and able to "see things clearly."

Sims testified that on June 27, 2013, between 2:00 and 3:00 a.m., she was dropped off at 609 Central Street by a friend. As Sims walked up to the house, she saw Johnson standing on the front porch of the house talking to Walter, who was standing inside the house between an opened wooden door and a locked screen door with burglar bars. Sims greeted Johnson as she walked up to the porch. Sims had known Johnson for about a year from the neighborhood, and they had previously done drugs together. Walter opened the screen door for Sims and locked it after she entered the house. Sims stated Walter usually made drug deals through the locked screen door.

Upon entering the house, Sims testified she overheard the men arguing over a drug transaction. Johnson said, "Man, you going to have to do better than this, man, hey, man, what is this." Walter responded, "Man, just fuck it, give me my shit, man, I got to get up early in the morning, man, I got to go to Kansas City, I got to go out of town, so give me my shit." Sims testified she saw Walter open the door and Johnson place three packages of "rock" into Walter's hands. Thereafter, the men started "tussling." Sims described Walter as the bigger man in stature and strength compared to Johnson. Sims testified she did not initially see a gun but subsequently saw Johnson produce a silver pistol. Sims did not see Walter with a weapon.

Sims stated when Walter saw the gun, he grabbed the wooden door and pushed it shut. As Walter leaned against the door to hold it shut, Sims testified that she heard several gun shots. She also heard Walter moaning. After witnessing the shooting, Sims said she ran to the back of the house and hid under a bed. While under the bed, Sims called 911 to report the shooting and named Johnson as the shooter. The 911 call was played for the jury. Sims testified the person she identified as the shooter in the 911 call was the same person sitting in the...