Opinion
No. 2010 KA 1762.
March 25, 2011. NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ASCENSION, LOUISIANA TRIAL COURT NUMBER 23,471 HONORABLE THOMAS KLIEBERT, JUDGE.
Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, LA, Attorneys for State-Appellee.
Prentice L. White, Baton Rouge, LA, Attorney for Defendant-Appellant, Arthur "Butch" Gaines, IV.
BEFORE: CARTER, C.J., GAIDRY AND WELCH, JJ.
The defendant, Arthur "Butch" Gaines, IV, was charged by grand jury indictment with first degree murder, a violation of La.R.S. 14:30. He pled not guilty. Thereafter, the charge was amended to second degree murder, a violation of La.R.S. 14:30.1. The defendant pled not guilty to the amended charge and, following a trial by jury, was found guilty as charged. The trial court sentenced the defendant to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. The defendant has now appealed, arguing in his sole assignment of error that the evidence was insufficient to support his conviction. For the following reasons, we affirm the conviction and sentence.
FACTS
Willie Diggs, III, (Diggs) lived in a trailer near the home of his eighty-year-old father, Willie Diggs, Jr., (the victim), in Donaldsonville, Louisiana. On February 25, 2008, he became concerned when he went to his father's home, knocked on the door, and did not receive a response, although his father's car was parked next to the house. After finding the front door locked, he obtained a screwdriver and pried open the carport door. Upon entering the house, he discovered the bloodied, lifeless body of his father lying on the floor. Diggs went to a neighbor's house and asked for help, stating that his father appeared to have been shot.
The neighbor placed a call to the Ascension Parish Sheriff's Office (APSO). Once at the scene, officers discovered the victim's body lying on his back in the living room, with multiple stab wounds. It appeared that a struggle had occurred in the living room. Additionally, several other rooms of the house had been ransacked as though someone was searching for something. It also appeared that someone had rummaged through the interior of the victim's car, which was parked in the carport. Detective Gerald Whealton found $8,600.00 in cash located in a day planner in the trunk of the vehicle. An autopsy subsequently determined that the victim had been stabbed nine times in his abdomen and chest and had six superficial cuts on his body, as well as a defensive wound to his right hand so deep that it severed muscles and tendons. The cause of death was the stab wound that perforated the victim's heart.
As a result of the police investigation, the defendant and several other individuals were identified as suspects. Warrants were secured and DNA samples were obtained from the suspects and other individuals. The DNA samples and a small piece of latex that appeared to be part of a latex glove caught in the victim's belt buckle were submitted by police to the Louisiana State Police Crime lab for analysis.
According to the expert witness from the crime lab, the results indicated there was a mixture of the DNA of at least two contributors on the piece of latex, the profiles of whom were consistent with those of the victim and the defendant. The State expert indicated that the DNA profile obtained from the piece of latex was 32.9 million times more likely to be a mixture of DNA from the victim and the defendant than a mixture from the victim and a randomly selected individual. The results further indicated the DNA samples submitted by APSO from other individuals, including the victim's son, Willie Diggs, III, were not consistent with the DNA profile obtained from the piece of latex, so those individuals were excluded as possible contributors. The defense also presented the testimony of a DNA expert at trial. Although the defense expert did not disagree with the conclusion that the victim and the defendant's DNA profiles were consistent with the DNA mixture obtained from the piece of latex, he felt the sample actually contained the DNA of several additional contributors, which he indicated would change the statistics cited by the State expert.
The defendant erroneously states in brief that Willie Diggs, III, could not be excluded as a possible contributor. In fact, the State's expert specifically testified that Willie Diggs, III, was so excluded. Moreover, this testimony was consistent with the identical conclusion stated in the crime lab's scientific analysis report, which was introduced into evidence at trial.
Upon receiving the DNA results, the police arrested the defendant. After being advised of his Miranda rights and signing a waiver form, he was questioned by APSO Detective Chris Moody concerning the victim's death. The defendant initially denied any involvement, but after he was informed of the DNA results, he eventually gave a statement as follows: In the early morning hours of February 25, 2008, Henry Knockum approached him and asked him to participate in a "hustle" of the victim's house by acting as a lookout; Detective Moody indicated he understood "hustle" to mean a burglary of the victim's house. The defendant put on a pair of latex gloves and gave a pair to Knockum. They then walked to the victim's house, which was located about fifty to sixty yards away, with Knockum walking ahead of the defendant. At one point, Knockum met up with a black male who the defendant did not know. The defendant lost sight of the two men walking ahead of him, but continued toward the victim's house. He then saw lights go on inside the house. As he walked up to the corner where the house was located, he heard a "rumble" from inside. He walked up to the front door, which apparently was open, and saw Knockum fighting with the victim in the living room. They both ended up on the floor. At this point, the defendant saw Knockum either stabbing or hitting the victim. As the victim was yelling at Knockum to get off of him, the unknown black male ran from the back of the house, hit the front door, causing it to partially shut, and kicked the victim in the head.
The defendant stated that he became scared and ran to his house located nearby. He claimed he returned to the victim's house after approximately ten or fifteen minutes to check on the victim. According to his statement, he entered the house and checked the defendant for a pulse, putting his hands on the victim's chest, shaking him and moving his body in order to see if he was alive. He indicated he was still wearing his latex gloves at this time, but could not remember whether he tore them. The defendant then left the house, closing the door behind him.
Roy Maurer, who is currently a federal inmate in Texas, also testified at trial on behalf of the State. He testified that he was incarcerated at the Ascension Parish Jail at the same time as the defendant in 2009. According to Maurer, he was approached by another inmate to help the defendant prepare a motion to suppress the latex glove found at the crime scene with the defendant's DNA on it. He testified that when he asked the defendant what his defense would be, the defendant indicated there were several possible scenarios to explain the DNA. One was that he gave the glove to another guy. Another was that he went into the house with his accomplice, but left before the murder occurred. Still another scenario mentioned by the defendant was that he was standing outside, heard a loud noise and went inside, then left again.
Maurer testified that he initiated contact with the District Attorney and wrote him several letters regarding the possibility of testifying in this case, because he felt it was the right thing to do. However, he acknowledged that, although no one made any promises whatsoever to him, he hoped to receive a diminution of his federal sentence in exchange for testifying truthfully in this matter.
Finally, there was testimony at trial that Knockum also was arrested for the victim's death, and gave a statement confessing to killing the victim.
The DNA results indicated that Knockum was excluded as a possible contributor to the DNA mixture obtained from the piece of latex.
SUFFICIENCY OF THE EVIDENCE
In his sole assignment of error, the defendant argues the trial court erred in accepting the jury's verdict. Specifically, he argues the State's evidence was insufficient to prove he was responsible for the victim's murder, because he only agreed to participate in the burglary of the victim's residence, not in the victim's murder. He denies that he had any intent to kill or harm the victim. Asserting that the issue centers on the identity of the murderer, the defendant points out that Knockum confessed to killing the victim. The defendant further notes that the DNA evidence indicated there was a possibility that a third person, in addition to the defendant and the victim, contributed to the DNA mixture found on the piece of latex glove recovered from the victim's belt buckle. He maintains that, although there were numerous other suspects, including the victim's own son, who could have committed or participated in the murder, the police failed to thoroughly interview all the witnesses or to test all the evidence to determine whether such was the case.
The standard of review for the 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 have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).See La.C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660. The Jackson standard of review incorporated in La.C.Cr.P. art. 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La.R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585, p. 5 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987).
In the instant case, the State's theory of the case was that the defendant was the person who actually stabbed the victim to death, but even if he was not, he was still guilty of second degree murder, since he admitted to participating in the burglary of the victim's residence during which the murder occurred. Under the theory of felony murder provided in La.R.S. 14:30.1(A)(2), the State is not required to prove that the defendant possessed specific intent to kill or inflict great bodily harm. This provision defines second degree murder as the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of certain enumerated felonies, including aggravated burglary, even though he has no intent to kill or to inflict great bodily harm. La.R.S. 14:30.1(A)(2); State v. Ortiz, 96-1609, p. 20 (La. 10/21/97), 701 So.2d 922, 934, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). Thus, under the explicit language of this provision, specific intent to kill or to inflict great bodily harm is not an essential element of felony murder under La.R.S. 14:30.1(A)(2).
Louisiana Revised Statutes 14:60 provides, in pertinent part, that:
Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.
Moreover, "[a]ll 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 principals." La.R.S. 14:24. However, only those persons who knowingly participate in the planning or execution of a crime may be said to be "concerned" in its commission, thus making them legally liable as principals. Mere presence at the scene of a crime does not make a person a principal to the crime. A defendant may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Neal, 2000-0674, pp. 12-13 (La. 6/29/01), 796 So.2d 649, 659, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).
In State v. Smith, 98-2078, p. 7-8 (La. 10/29/99), 748 So.2d 1139, 1143 (per curiam), the Supreme Court explained the legal responsibility of principals to an aggravated burglary for a murder that occurs during the commission of that offense as follows:
In felony murder, "the mens rea of the underlying felony [provides] the malice necessary to transform an unintended homicide into a murder." State v. Kalathakis, 563 So.2d 228, 231 (La. 1990) (footnotes and citations omitted); see also 2 Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law, § 7.5, pp. 211-12 (1986). Moreover, under general principles of accessorial liability, see La.R.S. 14:24, "all parties [to a crime] are guilty for deviations from the common plan which are the foreseeable consequences of carrying out the plan." 2 LaFave and Scott, Substantive Criminal Law, § 7.5, p. 212; see also State v. Anderson, 97-1301, p. 3 (La. 2/6/98), 707 So.2d 1223, 1224 ("Acting in concert, each man then became responsible not only for his own acts but for the acts of the other."). The risk that an unauthorized entry of an inhabited dwelling may escalate into violence and death is a foreseeable consequence of burglary which every party to the offense must accept no matter what he or she actually intended. See State v. Cotton, 341 So.2d 362, 364 (La. 1976) (if the co-perpetrator in an aggravated burglary was guilty of second degree murder because he shot and killed the victim, then Cotton, "as a principal [in the burglary] was likewise guilty of the same offense."). As we observed in State v. Lozier, 375 So.2d 1333, 1337 (La. 1979), "[b]urglary laws are not designed primarily to protect the inhabitant from unlawful trespass and/or the intended crime, but to forestall the germination of a situation dangerous to the personal safety of the occupants. . . . In the archetypal burglary an occupant of a dwelling is startled by an intruder who may inflict serious harm on the occupant in his attempt to commit the crime or to escape from the house."
(Emphasis added.)
Thus, when a murder occurs during the commission of an aggravated burglary, one need not possess specific intent to kill or inflict great bodily harm, nor even be the person who physically killed the victim, in order to be a principal to second degree murder. See La.R.S. 14:24 14:30.1(A)(2).
In Ortiz, 96-1609 at pp. 13-20, 701 So.2d at 931-934, the evidence suggested the defendant hired an assassin to kill his wife in order to collect insurance proceeds. To facilitate that plan, he apparently provided the assassin with a key to the residence and information about his wife's activities. The defendant's wife and her friend, who happened to be present at the wrong time, were subsequently found murdered. The Supreme Court concluded that the evidence was sufficient to support the defendant's conviction for the second degree murder of his wife's friend, since he was a principal to the commission of an aggravated burglary during which a murder occurred, although he had no specific intent that the friend be killed and actually was out of the country when the murder occurred.
As in the present case, the defendant in State v. Dunn, 94-776, pp. 19-20 (La. App. 5th Cir. 2/15/95), 651 So.2d 1378, 1389-1390, claimed that he only acted as a lookout during a burglary that resulted in a murder. The Fifth Circuit held that evidence of the defendant's participation in the burglary as a lookout, if not by assisting his co-perpetrator inside, was sufficient to support his conviction for second degree murder. Similarly, in State v. McFarland, 2007-26, pp. 8-12 (La. App. 5th Cir. 5/29/07), 960 So.2d 1142, 1147-1149, writ denied, 2007-1463 (La. 1/7/08), 973 So.2d 731, the defendant participated in the planning of a burglary and drove his co-defendants to and from the crime scene, although he did not enter the residence. During the commission of the burglary, a murder occurred. The Fifth Circuit found the evidence was sufficient to support the defendant's second degree murder conviction.
In the instant case, the defendant admitted that he participated in the plan to burglarize the victim's residence by providing Knockum with latex gloves to use while committing the crime and by acting as a lookout while the crime was perpetrated. Further, after putting on a pair of gloves himself, he followed Knockum to the victim's house for that purpose. The defendant admitted that he expected to share in the proceeds of the crime. These circumstances clearly establish his participation as a principal to the aggravated burglary. Moreover, since the murder occurred during the commission of that burglary, the defendant is guilty under La.R.S. 14:30.1 (A)(2) of the second degree murder of the victim. See Ortiz, 96-1609 at p. 20, 701 So.2d at 934; McFarland, 2007-26 at pp. 8-12, 960 So.2d at 1147-1149; Dunn, 94-776 at pp. 19-20, 651 So.2d at 1389-1390.
The defendant's arguments that the evidence was insufficient to support his conviction appear to be based on the faulty legal premise that he cannot be found guilty of second degree murder if he did not physically kill the victim and possessed no specific intent to kill or inflict great bodily harm upon him. This premise is fatally flawed. As discussed above, when a murder occurs during the commission or attempted commission of an aggravated burglary, all principals to the burglary are guilty of second degree murder, regardless of whether they possessed specific intent to kill or inflict great bodily harm or, indeed, were even present at the scene of the killing. See La.R.S. 14:30.1(A)(2); Ortiz, 96-1609 at p. 20, 701 So.2d at 934; McFarland, 2007-26 at pp. 8-12, 960 So.2d at 1147-1149; Dunn, 94-776 at p. 19, 651 So.2d at 1389-1390. The defendant's own admissions establish that he willingly participated in the aggravated burglary during which the victim was killed. Accordingly, he was guilty of second degree murder under La.R.S. 14:30.1(A)(2). As the Supreme Court stated in State v. Kalathakis, 563 So.2d 228, 231 (La. 1990), "the mens rea of the underlying felony [provides] the malice necessary to transform an unintended homicide into a murder."
For this reason, the defendant's arguments on appeal that he should not have been found guilty because he did not have a weapon on him and his fingerprints were not found in the house are meritless. The same is true of his additional argument that there may have been other perpetrators, including the victim's son, who could have killed the victim. Even if someone other than the defendant and Knockum was involved in the burglary, that fact would not diminish the defendant's legal guilt for felony murder: it would only mean that the other person also was guilty of murder. Under the law of principals, all persons involved in the commission of the crime are culpable. Neal, 2000-0674 at p. 12, 796 So.2d at 659. Similarly, the defendant's argument that the testimony of Roy Maurer was not credible because he was an opportunistic career criminal seeking to gain an advantage by testifying on behalf of the State in no way affects the conclusion that the defendant's own admissions were sufficient to establish his guilt in this case.
In any event, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when 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. An appellate court will not assess the credibility of witnesses or reweigh the evidence to overturn a trier of fact's determination of guilt. State v. Lofton, 96-1429, p. 4 (La. App. 1st Cir. 3/27/97), 691 So.2d 1365, 1368,writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342, p. 8 (La. 10/17/00), 772 So.2d 78, 83.
After a thorough review of the record, we find that the evidence supports the guilty verdict. We cannot say that the jury's determination was irrational under the facts and circumstances presented to it. See Ordodi, 2006-0207 at p. 14, 946 So.2d at 662. The defendant admitted that he willingly participated in the aggravated burglary during which the victim was killed. Thus, the proof of the defendant's participation in the burglary by agreeing to act as a lookout and by providing latex gloves to Knockum, even if not by actually assisting Knockum inside the residence, was sufficient to support his conviction as a principal to second degree murder. See La.R.S. 14:30.1(A)(2). Accordingly, we are convinced that viewing all of the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that defendant was guilty of the instant offense. See La.C.Cr.P. art. 821(B).
This assignment of error lacks merit.
CONCLUSION
For the foregoing reasons, the defendant's conviction and sentence are affirmed.