Opinion
2016 KA 0057R
06-01-2018
STATE OF LOUISIANA v. CARDALE GREEN
Hillar C. Moore, III District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Frederick Kroenke Baton Rouge, Louisiana Counsel for Defendant/Appellant Cardale Green Cardale Green Angola, Louisiana In Proper Person Defendant/Appellant
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. 04-11-0542
Honorable Beau Higginbotham, Judge Presiding Hillar C. Moore, III
District Attorney
Baton Rouge, Louisiana Counsel for Appellee
State of Louisiana Frederick Kroenke
Baton Rouge, Louisiana Counsel for Defendant/Appellant
Cardale Green Cardale Green
Angola, Louisiana In Proper Person
Defendant/Appellant BEFORE: WHIPPLE, C.J., GUIDRY, and McCLENDON, JJ. McCLENDON, J.
The defendant, Cardale Green, was charged by grand jury indictment with second degree murder of Derrick Casey, a violation of Louisiana Revised Statutes 14:30.1 (count one) and attempted second degree murder of Kenneth Cobbs, a violation of Louisiana Revised Statutes 14:30.1 and 14:27 (count two). He entered a plea of not guilty and, following a jury trial, was found guilty as charged on both counts. He filed motions for postverdict judgment of acquittal and new trial, both of which were denied. The defendant was then sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on count one, and to thirty years at hard labor without the benefit of parole, probation, or suspension of sentence on count two. The sentences were ordered to run consecutively. The defendant appealed, alleging two counseled and two pro se assignments of error. This court found that the defendant was denied his right to counsel and reversed the defendant's convictions, vacated the sentences imposed by the district court, and remanded for a new trial. See State v. Green, 16-0057 (La.App. 1 Cir. 2/7/17), 211 So.3d 683, 689-93. The Louisiana Supreme Court subsequently reversed this court's ruling and remanded this matter to this court with instructions to address pretermitted assignments of error. See State v. Green, 17-0435 (La. 12/5/17), 231 So.3d 30. For the following reasons, we affirm the defendant's convictions and sentences.
Co-defendant Mark Young was also charged with both counts in the same indictment, but was subsequently acquitted in a separate trial.
FACTS
As set forth in our prior opinion in this matter, the facts and procedural history of this case are as follows:
On January 13, 2011, Baton Rouge Police Department Sergeant Kevin Adcock was dispatched to 1841 Gracie Street in the Spanish Town neighborhood in Baton Rouge where he found one victim, Derrick Casey, lying dead on a couch in the living room near the front door of the house. Sergeant Adcock took photographs and collected evidence from the crime scene, including one Winchester nine millimeter shell casing located inside the living room, five Winchester nine millimeter shell casings, one PMC nine millimeter live round, and one Winchester nine millimeter live round, all found on the roadway outside the residence. Also recovered were a projectile found inside of the couch and a cellular telephone located outside in the backyard of the house. The cellular telephone was registered to the defendant. Detectives subpoenaed the records from that phone and developed Mark Young as an additional suspect. Call records of Young's cellular telephone were also subpoenaed.
The investigation led to a witness, Shermon Mealey, and to a second victim, Kenneth "Troy" Cobbs. According to Mealey's trial testimony, on the day of the incident, he, Cobbs, Casey, and Martin Rogers were "riding around, having fun." Mealey decided to purchase two Lortab pills, so he contacted the defendant and met him on Hurst Street. The defendant got onto the hood of Mealey's car and instructed Mealey to drive around the corner to Gracie Street. Palm prints left on the hood of the vehicle matched the left palm of the defendant.
When they arrived at 1841 Gracie Street, Mealey could not enter the house due to paralysis of his legs, so Casey entered the house. Mealey saw the defendant walk toward the house, but was unsure whether he entered. Mealey was also uncertain whether Cobbs entered the house. After hearing gunshots, Mealey saw Cobbs running. He drove away with Cobbs and Rogers and called 911 to report the shooting. As they drove away, there were additional shots fired from the backyard of the Gracie Street house.
Cobbs, who received a gunshot wound to his hip during the incident, testified that on the day of the incident, Mealey received a telephone call and thereafter stated that he needed to "handle some business." Cobbs and Mealey then drove to Spanish Town with Casey and Rogers. At some point, Mealey called someone for directions. When they arrived at Spanish Town Road, Mealey picked up someone who instructed Mealey to drive around the corner. However, Mealey told that individual to get on the hood of his vehicle and direct them to the location. The person did so, and they arrived at 1841 Gracie Street. Mealey gave Casey money and asked Casey to "take care of some business" for him. Casey took the money and entered the house. Cobbs exited the vehicle, stood near it, and talked to Mealey. Cobbs decided Casey was taking too long and proceeded to walk toward the house. As he did so, he heard gunfire. Cobbs began running away and realized that he had been shot in his hip. He got back into the vehicle with Mealey, and as they drove away, someone exited the front of the house, shot at them, and jumped the gate. Cobbs testified that he saw two people in the backyard of the Gracie Street house. Cobbs explained that he knew who he saw running out of the house, but he did not know who shot him because his back was turned away from the shooter. According to Cobbs, the person that he saw running out of the house was not the defendant.
A records custodian from Verizon Wireless testified at trial. According to the defendant's cellular telephone records, he spoke with Mealey multiple times on the date of the murder, but starting at 5:55 p.m., all of the calls to the defendant's telephone were sent to voicemail. The last call from the defendant's phone was to Young and was placed at 5:41 p.m.
A Taurus .480 revolver was located in a couch at 1332 Wellington Drive, Young's residence. The projectile located inside of the couch at 1841 Gracie Street was determined to have been fired from the Taurus. The two bullets recovered from Casey's body during his autopsy were not fired from the Taurus. According to the firearms expert who testified at trial, those two bullets were much smaller and a different caliber than that located inside of the couch.
A projectile was collected from Casey's left chest cavity and two fragments were recovered from his right shoulder and right collarbone.
The defendant did not testify at trial, but his video and audio recorded statement were played for the jury. He initially stated that he was in the Spanish Town area with his family on the day of the incident. He later stated that he was there "hanging out" at P.I.'s house, which was located at 1841 Gracie Street, with Young. He stated that he went to P.I.'s house around lunchtime and left approximately two hours later. According to the defendant, he found out about the murder from his mother, who called him on his cellular telephone. He then stated his mother actually called him on his girlfriend's cellular telephone because his cellular telephone was lost. The defendant explained that he lost his phone on the day of the murder at P.I.'s house while he was playing with dogs in the backyard. He denied getting on the hood of a car as well as any involvement in the murder.
COUNSELED ASSIGNMENT OF ERROR NUMBER ONE
In his first counseled assignment of error, the defendant argues that the evidence presented by the State was insufficient to prove all of the elements of both offenses beyond a reasonable doubt. Specifically, the defendant contends that although there was evidence that he was present at the scene of the murder, there was no evidence that he shot Casey, wounded Cobbs, or had the specific intent to kill or do great bodily harm to either victim.
The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See LSA-C.Cr.P. art. 821B. 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. LSA-R.S. 15:438; State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 00-0895 (La. 11/17/00), 773 So.2d 732.
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. Wright, 730 So.2d at 487.
The crime of second degree murder, in pertinent part, "is the killing of a human being: (1) [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]" LSA-R.S. 14:30.1A(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). 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. State v. Buchanon, 95-0625 (La.App. 1 Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So.2d 923. To be guilty of attempted second degree murder, a defendant must have the specific intent to kill and not merely the specific intent to inflict great bodily harm. State v. Maten, 04-1718 (La.App. 1 Cir. 3/24/05), 899 So.2d 711, 716, writ denied, 05-1570 (La. 1/27/06), 922 So.2d 544. It has long been recognized that specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Hoffman, 98-3118 (La. 4/11/00), 768 So.2d 542, 585, opinion supplemented by, 00-1609 (La. 6/14/00), 768 So.2d 592 (per curiam), cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000).
When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this Court will generally not second-guess those determinations. State v. Hughes, 05-0992 (La. 11/29/06), 943 So.2d 1047, 1051; State v. Davis, 01-3033 (La.App. 1 Cir. 6/21/02), 822 So.2d 161, 163-64.
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 principals. LSA-R.S. 14:24. However, the defendant's mere presence at the scene is not enough to "concern" him in the crime. 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 liable as principals. A principal may be connected only to those crimes for which he has the requisite mental state. State v. Neal, 00-0674 (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). However, "[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice's intention." State v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225 (per curiam).
A thorough review of the record indicates that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and attempted second degree murder, and the defendant's identity as the perpetrator of those offenses. The verdicts rendered in this case indicate that the jury credited the testimony of the witnesses against the defendant. The trier of fact may 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. State v. Lofton, 96-1429 (La.App. 1 Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331. The credibility of witnesses will not be reweighed on appeal. State v. James, 02-2079 (La.App. 1 Cir. 5/9/03), 849 So.2d 574, 581.
The verdicts rendered in this case further indicate the jury rejected the defendant's hypothesis of innocence that he was no longer at 1841 Gracie Street at the time of the shooting. When a case involves circumstantial evidence and the jury 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. See State v. Moten, 510 So.2d 55, 61 (La.App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). No such hypothesis exists in this case.
Further, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 662. The jury reviewed the defendant's audio and video recorded statement wherein he denied riding on the hood of Mealey's vehicle and being present at 1841 Gracie Street at the time of the incident. He initially stated that he lost his phone while walking to Gracie Street, but later, when law enforcement told him that his phone was recovered at the house, he stated that it fell out while he was playing with dogs at the Gracie Street house on the day of the incident. The defendant claimed that he left the house at approximately 2:00 p.m. However, the records from his cellular telephone established that he was in control of it at least until 5:55 p.m. on the day of the murder, when calls began being forwarded to voicemail. The defendant's last phone conversation with Mealey was at 5:26 p.m., and Mealey reported the shooting shortly thereafter at 6:15 p.m. Mealey identified the defendant as the person who he picked up on Hurst Street and who rode on the hood of his car to Gracie Street. The prints left on the hood of the vehicle matched the defendant's left palm print. Cobbs could not identify who shot him, but testified that two shooters exited the house. Ballistics evidence indicated that at least two weapons were used during the crime. One of those weapons, a Taurus .480 revolver, was located in Young's home and determined to have fired the bullet found lodged inside of the couch in the Gracie Street house. The bullets recovered from Casey's body during the autopsy were of a different caliber and could not have been fired from that revolver. Smaller caliber shell casings were located on the living room floor as well as on the roadway in front of the Gracie Street house. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Based on the foregoing reasons, this assignment of error lacks merit.
COUNSELED ASSIGNMENT OF ERROR NUMBER TWO
In his second counseled assignment of error, the defendant argues that the district court erred by failing to advise the jury that the State must prove specific intent to kill in order to sufficiently prove attempted murder. In the alternative, the defendant argues that the failure of his trial counsel to object to the district court's erroneous instruction amounts to ineffective assistance of counsel.
During jury instructions, the district court read the definition of second degree murder and defined attempt. The jury asked the court for the definitions of the two charges, and the district court again read the definition of second degree murder and defined attempt. Consequently, the district court incorrectly included "the intent to inflict great bodily harm" as an element of attempted second degree murder. The intent to inflict great bodily harm, while an element of second degree murder, may not be used to support a conviction of attempted murder. State v. Hongo, 96-2060 (La. 12/2/97), 706 So.2d 419, 420.
As pointed out by the defendant, his counsel failed to object to the district court's erroneous instruction. Therefore, he is precluded from raising this argument on appeal. See LSA-C.Cr.P. art. 801C; see also LSA-C.Cr.P. art. 841. However, the defendant also argues that his counsel's failure to object amounted to ineffective assistance of counsel. As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the district court rather than on appeal. This is because post-conviction relief provides the opportunity for a full evidentiary hearing under Louisiana Code of Criminal Procedure article 930. However, when the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Lockhart, 629 So.2d 1195, 1207 (La.App. 1 Cir. 1993), writ denied, 94-0050 (La. 4/7/94), 635 So.2d 1132.
A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial; the defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that but for the counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel's performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 859-60 (La.App. 1 Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993).
The defendant has failed to prove that the erroneous instruction affected the unanimous verdict of guilty of attempted second degree murder. The version of events presented by the State was that the defendant and Young acted together by both firing loaded weapons of different calibers at the victims. There was no argument or evidence presented to the jury that would support a finding that the defendant had the intent to only inflict great bodily harm. No reasonable jury could have concluded that the defendant had the intent only to inflict great bodily harm. Specific intent to kill can be inferred from a defendant's act of pointing a gun and firing at a person. See Hoffman, 768 So.2d at 585. The discharge of a firearm in the direction of a crowd of innocent bystanders has repeatedly been recognized in the jurisprudence as sufficient to prove specific intent to kill. State v. Collins, 09-2102 (La.App. 1 Cir. 6/28/10), 43 So.3d 244, 251, writ denied, 2010-1893 (La. 2/4/11), 57 So.3d 311, cert. denied, 565 U.S. 818, 132 S.Ct. 99, 181 LEd.2d 27 (2011). Thus, the district court's erroneous inclusion of intent to inflict great bodily harm did not prejudice the defendant nor would its omission have affected the verdict. See Hongo, 706 So.2d at 422.
This assignment of error is without merit.
PRO SE ASSIGNMENT OF ERROR NUMBER ONE
In his first pro se assignment of error, the defendant contends that he was denied his right to counsel of choice in violation of the Sixth and Fourteenth Amendments to the United States Constitution when the district court "withdrew two qualified attorneys." As noted, this court previously found that the defendant was denied his right to counsel. See Green, 211 So.3d at 689-93. However, the Louisiana Supreme Court subsequently reversed this court's ruling and found that the district court did not abuse its discretion in granting the motion to withdraw. See Green, 231 So.3d at 30. Accordingly, this assignment of error is without merit.
PRO SE ASSIGNMENT OF ERROR NUMBER TWO
In his second pro se assignment of error, the defendant argues that a non-unanimous jury verdict is unconstitutional and in violation of state and federal constitutions. He contends that Louisiana Code of Criminal Procedure article 782A and Louisiana Constitution Article I, Section 17A violate the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. We note that the defendant was found guilty of second degree murder by a 10-2 vote, and guilty of attempted second degree murder by a unanimous vote.
An appellate court may not consider a constitutional challenge unless it was properly pleaded and raised in the district court below. A party must raise the unconstitutionality in the district court, must specially plead the unconstitutionality, and must particularize the grounds outlining the basis of unconstitutionality. See State v. Hatton, 07-2377 (La. 7/1/08), 985 So.2d 709, 718-19. Here, the defendant failed to raise this challenge in the district court. Accordingly, the issue is not properly before this court. Moreover, this court and the Louisiana Supreme Court have previously rejected the argument that Article I, § 17A violates the right to equal protection. State v. Bertrand, 08-2215 (La. 3/17/09), 6 So.3d 738, 742-43; State v. Smith, 06-0820 (La.App. 1 Cir. 12/28/06), 952 So.2d 1, 16, writ denied, 07-0211 (La. 9/28/07), 964 So.2d 352. This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we affirm the defendant's convictions and sentences.
AFFIRMED.