Opinion
No. 2009 KA 0192.
September 11, 2009.
APPEALED FROM THE 22ND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA CASE NO. 334349 THE HONORABLE MARTIN E. COADY, JUDGE PRESIDING.
Walter P. Reed, District Attorney, By: Kathryn Landry, Special Appeals Counsel, Baton Rouge, Louisiana, Counsel for Appellee State of Louisiana.
Frank Sloan, Mandeville, Louisiana, Counsel for Defendant/Appellant Virgil Lorenzo Smith.
BEFORE: DOWNING, GAIDRY, AND McCLENDON, JJ.
The defendant, Virgil Lorenzo Smith, was indicted for the first degree murder of Chanda Ladner, a violation of La.R.S. 14:30. He pleaded not guilty. Prior to trial, the state advised that it would not seek the death penalty. Defendant moved to represent himself at the trial. Following a hearing, the trial court granted defendant's request for self-representation with the assistance of standby counsel ("shadow" counsel, in defendant's words) if needed for consultation. Following a jury trial, defendant was convicted as charged. Defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. He now appeals, urging two assignments of error:
1. The evidence presented at the trial is constitutionally insufficient to support the verdict.
2. The trial judge erred in permitting two friends of the deceased to testify to hearsay statements allegedly made by the victim pursuant to Louisiana Code of Evidence article 803(3).
Finding no merit in the assigned errors, we affirm defendant's conviction and sentence.
FACTS
On Friday, March 16, 2001, Emily Ladner and several other family members drove from Picayune, Mississippi to the Cracker Barrel restaurant in Slidell, Louisiana. At the restaurant, Emily requested that her family be seated in Chanda Ladner's section. Chanda, the younger of Emily's two daughters, had started work as a waitress approximately ten days earlier and was scheduled to work that day. Emily was advised that Chanda had not reported to work as scheduled.
Emily and her family immediately traveled to Chanda's residence in the St. Tammany Parish Mobile Home Park. As they approached the trailerthat Emily and her husband Cornell had purchased for Chanda, Emily noticed that Chanda's vehicle was parked outside and only the bathroom and hallway lights were illuminated. Since it was between 7:30 and 7:45 p.m., Emily found it odd that Chanda was not using more lights. After entering the trailer, Emily found her daughter's lifeless body lying on the living room floor. Chanda was lying on her back with her head resting against an ottoman. Initially, Emily thought that Chanda might have fallen asleep in that position. However, when Chanda did not respond to several attempts to wake her, Emily knew something was "terribly wrong." Emily ran outside and called 911.
Lieutenant Kelly James Carrigan of the St. Tammany Parish Sheriff's Office Crime Laboratory was dispatched to the victim's residence at 8:00 p.m. He arrived at the residence at 8:50 p.m. Shortly thereafter, Dr. Michael DeFatta, Chief Deputy Coroner for the St. Tammany Parish Coroner's Office, arrived. The victim was pronounced dead at the scene.
As Lt. Carrigan walked through the residence, he observed no evidence of forced entry. Lt. Carrigan then secured the scene for later processing. Numerous photographs were taken during the processing of the crime scene. Due to the extreme amount of clutter present ( i.e., clothing, books, animal hair, and various other objects all over the floor and furniture), the scene was processed in layers. A bloodstain was found on the sofa and on some clothing on the floor near the sofa. Lt. Carrigan also discovered a blood stained "skull cap" beneath some clothing on the sofa. A black condom was also found on the floor near the victim's head. Although the scene was thoroughly searched for fingerprints, no identifiable prints were found. Only partial, smeared prints were collected. A rape kit was used to collect evidence from the victim's body.
Upon examining the victim's body, Dr. DeFatta noted the presence of a nylon stocking wrapped around her neck. A ligature marking from the stocking was also noted. A small amount of lividity was present, but not "set in," on the victim's back. Dr. DeFatta also noted that the victim's eyes showed signs of sclera hemorrhage. Several areas of petechial hemorrhaging, which Dr. DeFatta defined as the bursting of capillaries (indicative of strangulation), were also noted on the victim's eyelids, forehead, nose and cheek. The victim sustained a stab wound to the right side of her neck. Based upon the lack of blood near that stab wound, Dr. DeFatta opined that the wound was inflicted perimortem (just before or during death). Five large lacerations, caused by blunt force trauma, were found on the victim's scalp. The absence of a significant amount of blood over the victim's head led Dr. DeFatta to conclude that those wounds were also inflicted at or near death.
Four patterned abraded injuries were noted in the victim's chest area near her breasts. Dr. DeFatta explained that these injuries appeared to have been the result of some type of object being pressed against the victim's skin and held tightly for a period of time causing the skin and tissue to tear. These injuries, according to Dr. DeFatta, were consistent with the use of a hard object ( i.e., a knife or screwdriver) to keep the victim incapacitated and under control. The object was moved back and forth, either from the perpetrator moving it or from the victim struggling or squirming under the pressure.
A handleless screwdriver and a knife were recovered from the scene. Neither item revealed the presence of any DNA evidence.
Additionally, although there were no tears, lacerations, or abrasions in the victim's vaginal or anal areas, examination of the victim's clothing revealed signs of sexual assault. It was noted that the victim was fully cladin a t-shirt and a pair of sweatpants. The top of the pants were pulled up above the victim's waist, but under the pants, her underwear was down past her vaginal area. Additionally, despite the existence of several tissue-breaking wounds in her chest area, there were no holes in the victim's shirt. According to Lt. Carrigan, that evidence was consistent with the victim having been re-dressed following a sexual assault. Dr. DeFatta explained that the absence of signs of trauma in the sexual area did not indicate that some type of sexual assault did not occur; the victim would have lacked bruising from rape if she was afraid of the perpetrator and, as such, was submissive.
At the conclusion of the autopsy, Dr. DeFatta concluded that the victim died from asphyxia due to strangulation. The manner of death was listed as "homicide."
Emily Ladner and her family were puzzled as to who would have wanted to kill Chanda. Emily described her daughter as a quiet and non-confrontational individual. Emily explained that Chanda had a "huge heart," was very trusting, and often went out of her way to help anyone in need. The police investigation of the murder initially focused on the victim's ex-boyfriend, Jonathan Tzunaos; Nicole Bonura, a neighbor with whom the victim had a conflict; and Dominick Faraci, the victim's current boyfriend. Each of those individuals was questioned, and each cooperated with the authorities by voluntarily providing DNA samples.
Emily explained that a speech problem in her youth made her daughter uncomfortable verbally expressing herself. According to her mother, Chanda was "quite humble, in some ways she probably lacked self esteem." As a result, Chanda often chose to communicate in writing. She wrote notes to others and sometimes to herself.
The investigation eventually led to the development of defendant as a suspect. Shortly after learning of the Chanda's death, Marissa Amann and Jeanne Kendrick, the victim's best friends, recalled a recent conversationwith the victim. The friends contacted Emily Ladner and advised her of what had transpired at that January 20, 2001 gathering. According to Amann and Kendrick, the three high-school friends met at Amann's home for a late Christmas celebration. The victim attended the party with her new boyfriend, Dominick Faraci, and appeared to be happy. At some point during the gathering, however, as the friends conversed outside the residence, Chanda became very upset. She then confided in her friends that she was afraid, and explained that she had been receiving threats from defendant, whom she had previously allowed to reside in her trailer. According to Amann, Chanda appeared "genuinely afraid," and also stated that defendant had refused to return her trailer keys as requested. Amann and Kendrick advised the victim not to take the threats lightly. They even suggested that she inform her parents and have her locks changed.
At the trial, Emily Ladner testified that during a telephone conversation in December 2000, Chanda advised her that she had houseguests. Chanda explained to her mother that defendant and his wife, Laurie, had no place to stay and were running short of money. Chanda had decided to help the couple. She even invited Emily over to meet them, which Emily did on only one occasion.
In a later telephone conversation in late December 2000 or early January 2001, Chanda complained to her mother about the couple's presence in her home. She explained that defendant had a bad attitude and was verbally and physically abusive to Laurie. Chanda described an incident in which defendant had placed his hands around Laurie's neck as if he was going to choke her. The abuse bothered Chanda. She also told her mother that defendant once said "angry" things to her when she asked him for money he agreed to pay toward the electricity bill.
Uncomfortable with the entire situation, Chanda no longer wanted to share her home with the couple. Emily instructed the victim to be firm and to ask the couple to find somewhere else to live. Eventually, the couple moved out and returned to the motel at which they previously resided. According to Emily, Chanda was relieved when the couple left, but she was still worried about Laurie.
Chanda maintained contact with Laurie. Later, she contacted Laurie's parents and expressed concern for Laurie's safety. With the victim's assistance, Laurie's father made arrangements for Laurie to return home. One day, while defendant was at work, the victim picked Laurie up and drove her to the airport. Laurie left defendant and returned to her parents' home in Arizona.
Back in Arizona, Laurie worried about Chanda. She was afraid that defendant would harm her if ever he learned that she was instrumental in Laurie's leaving him. Defendant had previously stated that if he could not have Laurie, no one would. He also stated that he would kill anyone who helped her to leave him. Laurie cautioned the victim to "watch her back," as defendant was violent, vicious, and untrustworthy.
On March 17, 2001, the police obtained a taped statement from Geraldine Martin, defendant's mother, regarding defendant's actions and whereabouts on the day Chanda was murdered. In her statement, Martin explained that defendant came to her house around 5:00 a.m. on March 16, 2001 and told her that he wanted to watch the television news. After watching the early morning news, he left. He returned shortly before noon and was in and out of his mother's house that day. He left shortly after the 6:00 p.m. news concluded.
Martin explained that something was obviously bothering her son when he was at her house that day. Martin encouraged defendant to openly discuss the situation, but he stated that he could not talk to anyone about it. He told her, "[I]t's bad [,]mom[,] it's bad." Martin counseled defendant about repentance and sin and advised him to pray about the situation that was bothering him. Martin told the police she specifically spoke to defendant about the religious ramifications of killing and hurting people because he "talks a lot about that kind of stuff." In the same statement, Martin also described her son as "a time bomb ready to explode at any minute."
Karen Phillips, an admitted drug addict, also testified regarding defendant's actions on the day of the murder. Phillips stated that she saw defendant walking up and down her street on Friday, March 16, 2001. Although he was not personally acquainted with her, defendant asked Phillips if he could use her bathroom. Phillips agreed. According to Phillips, defendant used the bathroom twice, each time occupying it for approximately 15-20 minutes. When he was not in the bathroom, defendant never sat down. He stood by the door and looked out at every car that passed on the street. Because defendant told Phillips he was homeless, she invited him to spend the night at her home. Defendant accepted Phillip's offer, but left later without notice. Phillips never saw defendant again. The following day, the police approached Phillips with a photograph of defendant and asked if she had seen him. Phillips advised the police of the prior day's events. Phillips also identified defendant in open court as the man she allowed into her home that day.
The police investigation later revealed that defendant's DNA profile matched the DNA profile of semen taken from the condom found on thefloor near the victim's head. Defendant was subsequently indicted for Chanda's murder.
Laurie, defendant's wife, testified at trial and provided background information on her relationship with defendant and how defendant became acquainted with the victim. Her testimony established the following. In 1995, Laurie, her husband at that time, Mike Magee, and their two sons moved to the Chateau Deville apartments in Slidell, Louisiana. Mike was in the Navy and was stationed in New Orleans. While living in Slidell, Laurie met defendant and they began a relationship. Laurie eventually left her husband and moved to the City Motel with defendant. Laurie described defendant as mentally, physically, emotionally, and sexually abusive. Defendant often told Laurie if he could not have her, no one would. He also told her that if anyone ever assisted her in leaving him, and he found out about it, he would kill that person or persons. The violently abusive relationship prompted Laurie to obtain various restraining orders against defendant and to eventually leave him on one occasion before they were married. Laurie returned to Arizona to live with her parents. Eventually, Laurie allowed defendant to join her in Arizona.
Laurie and the defendant were eventually married on March 2, 1999, but the cycle of abuse continued. Laurie again obtained protective orders against defendant, but voluntarily ignored them to be with him on occasion. In October 2000, Laurie and defendant took her father's vehicle (without permission) and returned to Louisiana. Laurie's father reported the vehicle stolen. Shortly thereafter, Laurie and defendant were stopped in the vehicle and arrested. Once released from jail, Laurie returned to the City Motel where she and defendant had been staying. Later, when defendant was released, he obtained a ride back to the motel with Chanda and her then live-inboyfriend, Jonathan Tzuanos. Defendant had met Tzuanos while both were incarcerated. Tzuanos was also being released that day. Tzuanos requested that Chanda give defendant a ride. She complied. The two couples became friends.
One day, defendant asked Chanda if he and Laurie could stay with her for a while. Chanda agreed to help the couple by allowing them to move in. The abusive relationship between defendant and Laurie continued, and Chanda observed it. Laurie and Chanda grew closer. By this time, Chanda was not only providing the couple with housing, but was also responsible for transporting defendant to and from work.
According to Laurie, it was only a matter of time before defendant's violence shifted toward Chanda. Laurie explained that one day when Chanda complained about having to take defendant to work, he threatened to "put her in the hospital" if she did not provide him transportation. In response, Laurie begged Chanda to continue to transport defendant to and from work until he found an alternative ride. Laurie explained that she was afraid that defendant would follow through on his threat to harm Chanda.
As previously noted, the victim later helped Laurie leave the defendant and return to Arizona. Laurie and Chanda remained in contact, via telephone and mail, after Laurie returned to Arizona. While again in Arizona, Laurie filed for divorce from defendant. She continued to worry about Chanda, afraid that defendant would harass the victim once he was served with the divorce petition. Laurie explained that she was afraid of defendant because he threatened her and her family. She also described earlier incidents in which defendant choked her to the point of unconsciousness.
Although defendant was considered a suspect in the victim's murder early in the investigation, he was not questioned initially because he had fled the state. He was later apprehended in Arizona. Prior to defendant's arrest, Laurie had informed him of the victim's murder and advised that he was considered a suspect. Defendant did not return to Louisiana.
Defendant did not testify or present any alibi evidence at trial.
SUFFICIENCY OF THE EVIDENCE
In his first assignment of error, defendant argues that the state failed to present sufficient evidence to support his first degree murder conviction. Specifically, he argues that the state failed to present any evidence connecting him with the murder. He argues that the state's evidence proved only that he is a "bully with a temper," who had an abusive relationship with his ex-wife and "liked to mouth off by making grandiose threats." Defendant urges that the evidence did not prove he was a murderer. The state's case, he contends, failed to exclude the reasonable hypothesis that he had consensual sex with Chanda and that she was murdered by someone else after he left her residence. The state in turn asserts that the evidence, when viewed in the light most favorable to the prosecution, amply supports all of the essential elements of the crime and defendant's identity as its perpetrator beyond a reasonable doubt.
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 conclude that the state proved 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 also La.C.Cr.P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988).
When analyzing circumstantial evidence, La.R.S. 15:438 provides, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." This statutory test is not a purely separate one from the Jackson constitutional sufficiency standard. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Shanks, 97-1885, pp. 3-4 (La. App. 1st Cir. 6/29/98), 715 So.2d 157, 159. When the key issue in a case 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 in order to meet its burden of proof. State v. Millien, 02-1006, pp. 2-3 (La. App. 1st Cir. 2/14/03), 845 So.2d 506, 509.
First degree murder is defined, in pertinent part, as "the killing of a human being . . . [w]hen the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of . . . aggravated rape." La.R.S. 14:30(A)(1).
Initially, we note that because there were no eyewitnesses to directly connect defendant with the victim's murder, the evidence presented at trial was largely circumstantial. Nevertheless, following a thorough review of the record and the evidence contained therein, we are convinced that the evidence sufficiently proves defendant's identity as the perpetrator of the murder and excludes every reasonable hypothesis of innocence. Thus, the evidence is sufficient under the Jackson standard to convict defendant of the first degree murder of Chanda Ladner.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Bates, 95-1513, p. 12 (La. App. 1st Cir. 11/8/96), 683 So.2d 1370, 1377. Moreover, where there is testimony about factual matters, the resolution of which depends upon the determination of the credibility of witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. State v. Willis, 591 So.2d 365, 372 (La. App. 1st Cir. 1991), writ denied, 594 So.2d 1316 (La. 1992).
In the instant case, defendant argues that the circumstantial evidence presented by the state failed to eliminate the possibility that he engaged in consensual sex with the victim, but that she was killed by someone else after he left her residence. 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 which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). The court does not determine whether another possible hypothesis has been suggested by defendant, which could explain the events in an exculpatory fashion. Rather, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational juror could not have found guilt beyond a reasonable doubt. See State v. Bridgewater, 2000-1529, p. 9 (La. 1/15/02), 823 So.2d 877, 889, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).
In this case, the hypothesis of innocence urged by defendant, i.e., the victim consented to the sexual encounter and was subsequently killed by someone else, was rebutted by the testimonial and circumstantial evidence. The jury, faced with testimonial evidence of the victim's fear of defendant and defendant's bizarre and suspicious actions immediately after the murderof following the television news and hiding out at the residence of a stranger, obviously rejected the defendant's hypothesis of innocence. We likewise find defendant's version of the events, presented through his examination of the witnesses at the trial, to be unsupported by the evidence presented at trial.
Therefore, when viewing the evidence in this case in the light most favorable to the prosecution, we find that any rational trier of fact could have concluded beyond a reasonable doubt, and to the exclusion of any reasonable hypothesis of innocence, that defendant raped and murdered the victim. While we agree that a condom and semen on the scene do not conclusively prove that defendant killed the victim, the DNA evidence confirming that the defendant left semen at the crime scene, together with the other facts established at defendant's trial, provide sufficient evidence from which a reasonable fact finder could have concluded that the defendant was involved in the brutal rape and murder. Evidence establishing that the victim actively assisted Laurie in her efforts to leave defendant, coupled with defendant's specific threats to kill anyone who provided such assistance, sufficiently proved that defendant had motive to harm the victim. Defendant's actions of leaving the state and refusing to return, even after he learned that he was the subject of the murder investigation, also are suggestive of his guilt. See State v. Williams, 610 So.2d 991, 998 (La. App. 1st Cir. 1992), writ denied, 617 So.2d 930 (La. 1993).
After a thorough review of the record and the evidence contained therein, we are convinced that the evidence presented at trial fulfilled the standard of excluding every reasonable hypothesis of innocence and was sufficient under the Jackson standard to convict defendant of first degree murder. Further, in reviewing the evidence, we certainly cannot say that thejury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207, p. 14 (La. 11/29/06), 946 So.2d 654, 662. This assignment of error lacks merit.
INADMISSIBLE HEARSAY EVIDENCE
In his second assignment of error, defendant complains that the trial court erred in allowing hearsay testimony from the victim's friends, Marissa Amann and Jeanne Kendrick, indicating that the victim was "really scared" when she spoke of defendant, that the defendant was the only person of whom the victim expressed fear, and that the victim stated that defendant refused to return the keys to her residence. Over defense objection and relying on La.C.E. art. 803(3), the trial court allowed the challenged testimony from Amann and Kendrick concerning the victim's expressed fear of the defendant. That hearsay evidence, defendant asserts, was not introduced to contradict any testimony by defendant, as he did not testify; it was not introduced to contradict any defense which challenging the criminal character of the victim's death; nor was it introduced to show the victim's state of mind. Defendant urges that because the evidence in question was not elicited to show the victim's "mental, emotional, or physical condition," the trial court's reliance on La.C.E. art. 803(3) was in error. Defendant argues that the sole purpose for the introduction of that hearsay evidence was to prove his state of mind and guilt.
In his brief, defendant refers to the witness as "Jeanne Kirkpatrick." In the record, however, the witness's name is "Jeanne Kendrick."
Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La.C.E. art. 801(C). Hearsay is not admissible exceptas otherwise provided by the Louisiana Code of Evidence or other legislation. La.C.E. art. 802.
Louisiana Code of Evidence article 803(3), in pertinent part, provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . .
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant's then existing condition or his future action. A statement of memory or belief, however, is not admissible to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's testament.
Evidence to prove the declarant's state of mind can be used to prove the declarant's subsequent conduct. La.C.E. art. 803(3). The length of time between the making of the statement and the conduct in question does not determine the admissibility, but rather goes to the weight of the evidence. State v. Lee, 559 So.2d 1310, 1319 (La. 1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991).
A state of mind declaration is relevant if it has a tendency to make the existence of any consequential fact more or less probative than it would otherwise be without the evidence. See La.C.E. art. 401. Nevertheless, a relevant declaration may be legally inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misapplication by the jury. See La.C.E. art. 403; State v. Brown, 562 So.2d 868, 878 (La. 1990).
Extrajudicial statements of a declarant's subjective fear or revulsion have considerable probative value in circumstantially explaining the declarant's subsequent conduct. Even when the declarant's state of mind isnot the ultimate proposition to be proven, the declaration may be used as circumstantial evidence of the declarant's behavior by providing an intermediate basis for further inferences about the declarant's conduct. Where extrajudicial declarations are offered to show the declarant's state of mind or intent to undertake a course of action, when the communication indicates the act is dependent upon an event or upon acts of another, the contingency operates only to reduce the probative force (weight) of the evidence, not its admissibility. The declarations are non-hearsay if offered only to circumstantially prove the decedent's state of mind prior to the homicide. See State v. Brown, 562 So.2d at 878-79 (and authority cited therein.)
Defendant cites Brown, 562 So.2d at 879, for the proposition that in homicide cases, evidence of the victim's fear should be limited to situations where defendant has made the criminal character of the death an issue, "by raising defenses of self defense, suicide or accident." The defendant's reliance on Brown is misplaced. As previously noted, in Brown, the court clearly provided that a "[d]ecedent's declaration of fear . . . is relevant to circumstantially rebut the defense's theory." Brown, 562 So.2d at 879. In this case, a key issue to be determined by the jury was whether the victim had consensual sex with the defendant. Thus, the deceased victim's declaration of her fear of the defendant, including the statement indicating that the defendant refused to return her house keys, was clearly relevant to rebut the defense theory of consent insofar as the sexual encounter is concerned. Under these circumstances, we find the victim's statements to be relevant. The trial court did not err in allowing the contested statements to be introduced into evidence.
Defendant's second assignment of error lacks merit.
For the foregoing reasons, we affirm defendant's conviction of first degree murder and his sentence.