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Date: 08-03-2020
Case Style:
STATE OF LOUISIANA Vs. DEVIN JALMAL HOLEFIELD
Case Number: KA -0019-0845
Judge: Phyllis M. Keaty
Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
Plaintiff's Attorney: John Foster DeRosier
District Attorney
Karen C. McLellan
Charles Robinson
Hope Wyatt Buford
Assistant District Attorneys
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer.
Description:
On July 26, 2018, a Calcasieu Parish Grand Jury indicted Defendant, Devin
Jalmal Holefield, for second degree murder, a violation of La.R.S. 14:30.1, and
possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1.
Defendant pled not guilty to both counts. By unanimous vote, a jury found
Defendant guilty as charged. On May 15, 2019, the trial court sentenced
Defendant to life imprisonment at hard labor for second degree murder and to
twenty years imprisonment for possession of a firearm by a convicted felon, to run
concurrently, without benefit of probation, parole, or suspension of sentence.
Defendant appealed his convictions and sentences.
Appellate counsel filed a brief stating that no non-frivolous issues are
available on appeal, and, thus, he seeks to withdraw pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967). Defendant filed a pro se brief
assigning two errors. For the following reasons, we affirm Defendant’s
convictions and sentences, and we grant appellate counsel’s motion to withdraw.
FACTS
Gary O’Brien was murdered in Lake Charles in the early morning of
Monday, July 17, 2017. Two days later, Defendant and Devonta Orphey were
arrested in Waco, Texas, where they had gone in Defendant’s car. They waived
extradition and were transported back to Lake Charles. Defendant did not testify at
trial, but he gave a statement to the police after his arrest, which was videotaped
and played for the jury. In that statement, Defendant admitted that he; his cousin,
Justin Ned, who was a minor at the time; Jermyre Bowers; and Orphey committed
an armed robbery, or as he called it, “a lick,” in DeQuincy in July of 2017. Several
days later, the group decided to commit another “lick” in Lake Charles. Their
intended target was O’Brien, also known as G-Money, a reputed drug dealer who
2
operated out of a small shed located behind his mother’s house. Defendant
explained that in the early morning of July 17, 2017, his three accomplices, who
were dressed in all black and had their faces covered, armed themselves with
handguns, and approached the victim’s home on foot, while he stayed back in his
car. When the trio returned, they told him that G-Money was shot after saying that
he recognized them and refusing to “give it up.” Defendant admitted that the two
weapons found in his car at the time of his arrest in Waco belonged to him and
Orphey.
At trial, all three of Defendant’s accomplices named Orphey as the person
who remained in the getaway car during the attempted robbery. Shameka Glover,
whom Defendant referred to in his statement as a close friend, testified that after
working on Sunday and getting off at midnight, she met Defendant, Orphey, and
two other guys at the Hop-In Store. They arrived there in Defendant’s car and
Orphey was driving, which was confirmed by video obtained from the Hop-In
which was shown to the jury during her testimony. Glover stated that the foursome
was wearing all black clothing, and Defendant told her that they were “going hit a
lick.” Monday night, Defendant texted her to ask if she could come to his house
after her shift ended. When she met with Defendant soon after midnight, he told
her “the whole story about what happened that night that O’Brien -- G-Money --
got killed.” Glover testified that Defendant confessed to her that he shot G-Money
in the head when he started calling for his mother after being warned not to move
or he would be killed. Defendant also told her that he and Orphey were planning
to leave town soon but did not yet know where they were going.
ERRORS PATENT
In his Anders brief on behalf of Defendant, appellate counsel requests that
we perform an errors patent review. This court, in accordance with La.Code
3
Crim.P. art. 920, reviews all appeals for errors patent on the face of the record.
After review, we find two errors patent involving the sentence imposed for
possession of a firearm by a convicted felon.
First, the sentencing court was required to impose a fine of not less than one
thousand dollars nor more than five thousand dollars for Defendant’s conviction of
possession of a firearm by a convicted felon. La.R.S. 14:95.1(B). The trial court
failed to impose the mandatory fine, rendering the sentence for possession of a
firearm by a convicted felon illegally lenient. Second, the sentencing court failed
to impose the sentence for possession of a firearm by a convicted felon at hard
labor even though a sentence for that offense must be served at hard labor. La.R.S.
14:95.1(B). Thus, Defendant’s sentence is illegally lenient in this regard as well.
“Although the authority is granted and discretionary under La.Code Crim.P. art.
882, this court will not consider an illegally lenient sentence unless it is an error
raised on appeal.” State v. Mayfield, 18-420, pp. 3-4 (La.App. 3 Cir. 12/6/18), 261
So.3d 101, 104, writ denied, 19-46 (La. 5/28/19), 273 So.3d 316. As the State has
not complained of Defendant’s sentence being illegally lenient in this case, we will
not amend it.
DISCUSSION
We will first address Defendant’s pro se assignments of error, which include
a challenge to the sufficiency of the evidence pursuant to Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781 (1979), as a successful challenge on this basis would result
in Defendant’s acquittal, thereby mooting the remaining errors and necessitating
the denial of appellate counsel’s motion to withdraw. See State v. Hearold, 603
So.2d 731 (La.1992).
4
Insufficiency of the Evidence
In his first pro se assignment of error, Defendant argues that the evidence
adduced against him at trial was insufficient to support his conviction for second
degree murder.1
The analysis for an insufficiency claim is well settled:
When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court 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, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
Louisiana Revised Statutes 14:30.1 provides, in pertinent part:
A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great
bodily harm; or
(2) When the offender is engaged in the perpetration or attempted
perpetration of . . . armed robbery, . . . even though he has no intent to
kill or to inflict great bodily harm.
At trial, the State presented two theories of guilt: specific-intent murder and felony
murder.
Defendant argues that the State failed to establish at trial that he had the
requisite level of intent to support his conviction. He claims that the evidence
1 Defendant does not challenge his conviction and sentence for possession of a firearm by
a convicted felon.
5
proved that he “was at best an accomplice to or an accessory before the fact of an
attempted armed robbery” of the victim.
Defendant’s argument ignores direct evidence that he shot the victim. As
previously mentioned, Defendant’s close friend, Glover, testified that he confessed
to her that he shot G-Money in the head. Accomplice Bowers testified that when
he and Defendant were in G-Money’s shed, Defendant shot the victim after he
began hollering and refused to “Give it up.” Bowers, as well as the victim’s friend,
Paul Kennerson, who was in the shed during the robbery, testified that the victim
was on his knees when shot. Similarly, Glover testified that Defendant told her the
victim was on his knees when Defendant shot him. At trial, Orphey testified that
when the other men returned to Defendant’s car, Ned asked Defendant “What you
got?” and the latter replied, “I got a body[,]” which Orphey understood to mean
that Defendant had killed someone. Defendant’s cousin and accomplice, Ned,
testified that shortly after the shooting, Orphey, the getaway driver, asked
Defendant “What did you get[,]” to which Defendant answered, “A body.” Ned
explained that Defendant’s reply meant that he had killed somebody. When Ned
later saw Defendant in jail, Defendant stated that he shot the victim because the
victim “tried to run up on him.”
We conclude that the foregoing evidence was sufficient to support
Defendant’s conviction for second degree murder. “It is well-settled jurisprudence
that the testimony of a single witness, absent internal contradictions or
irreconcilable conflicts with physical evidence, is sufficient to support a
conviction.” State v. Jeter, 09-1004, p. 3 (La.App. 3 Cir. 4/7/10), 33 So.3d 1041,
1043. See also, State v. Pierre, 14-1071 (La.App. 3 Cir. 5/6/15), 170 So.3d 348,
writ denied, 15-1151 (La. 5/13/16), 191 So.3d 1054. As stated in Kennerson,
credibility determinations belong to the fact finder. The jurisprudence is clear that
6
a fact finder is free to believe some, none, or all of any witness’s testimony. “It
was the jury’s prerogative to accept or reject the witnesses’ testimony, and the
appellate court may not second guess the rational credibility determinations of the
factfinder.” State v. Baxley, 14-48, p. 9 (La.App. 3 Cir. 5/7/14), 139 So.3d 556,
561.
The record reflects that the State adduced evidence and testimony from
multiple witnesses to support its theory that Defendant had the specific intent to
kill the victim. Accordingly, we conclude that the State satisfied its burden of
proving the elements of La.R.S. 14:30.1(A)(1), specific-intent murder, beyond a
reasonable doubt. As a result, we need not address Defendant’s arguments that
relate to whether the State proved he was guilty of felony murder. Thus, we find no
merit to Defendant’s claim that there was insufficient evidence to support his
conviction.
Ineffective Assistance of Counsel
In his second pro se assignment of error, Defendant argues he received
ineffective assistance of appellate counsel. He complains that “counsel simply
requested review of the record for errors patent, and counsel seemingly identified
but[] failed to assert any new grounds on appeal.” In essence, Defendant is
claiming that appellate counsel is ineffective for having filed an Anders brief. This
is inappropriate from a procedural standpoint, as the question at hand is whether
appellate counsel has demonstrated in brief that he should be allowed to withdraw
due to a lack of non-frivolous errors to assert for review. If counsel has failed to
make such a demonstration, then the remedy is to deny the motion to withdraw and
order counsel to brief any non-frivolous issues that are identified. See State in the
Interest of L.D.L., 97-1634 (La.App. 3 Cir. 4/29/98), 714 So.2d 780.
7
Defendant argues that appellate counsel should have argued that the
evidence adduced against him at trial was insufficient to support his conviction.
As detailed in our discussion of the first pro se assignment of error, the
insufficiency argument lacks merit.
Next, Defendant argues that the trial court did not properly instruct the jury
regarding the law of principals. The controlling statute, La.R.S. 14:24, states: “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.” The trial court told the jury: “All persons concerned in the
commission of a crime are principals and are guilty of the crime charged, if,
whether present or absent, they directly commit the act constituting the crime, aid
and abet in its commission, or directly or indirectly counsel or procure another to
commit the crime.” Although the trial court did not quote the statute verbatim, the
instruction closely tracked its wording. Thus, we conclude that the trial court
correctly stated the law of principals.
Lastly, Defendant contends that the trial court did not properly instruct the
jury regarding available responsive verdicts. We have thoroughly reviewed the
trial transcript, and it reveals that the trial court did, in fact, fully instruct the jury
regarding the responsive verdicts applicable to the charges against Defendant.
Finally, Defendant suggests that the State failed to prove he had specific intent to
kill. As previously discussed, we find that the State did present evidence that
Defendant possessed the requisite specific intent to support his conviction under
La.R.S. 14:30.1(A)(1).
Because we have determined that Defendant’s pro se arguments lack merit,
we will proceed to the Anders analysis.
8
Anders Analysis
Explaining Anders v. California, 386 U.S. 738, this court has stated:
In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), the
fourth circuit explained the Anders analysis:
When appointed counsel has filed a brief
indicating that no non-frivolous issues and no ruling
arguably supporting an appeal were found after a
conscientious review of the record, Anders requires that
counsel move to withdraw. This motion will not be acted
on until this court performs a thorough independent
review of the record after providing the appellant an
opportunity to file a brief in his or her own behalf. This
court’s review of the record will consist of (1) a review
of the bill of information or indictment to insure the
defendant was properly charged; (2) a review of all
minute entries to insure the defendant was present at all
crucial stages of the proceedings, the jury composition
and verdict were correct and the sentence is legal; (3) a
review of all pleadings in the record; (4) a review of the
jury sheets; and (5) a review of all transcripts to
determine if any ruling provides an arguable basis for
appeal. Under C.Cr.P. art. 914.1(D) this Court will order
that the appeal record be supplemented with pleadings,
minute entries and transcripts when the record filed in
this Court is not sufficient to perform this review.
Id. at 531.
While it is not necessary for Defendant’s counsel to “catalog
tediously every meritless objection made at trial or by way of pre-trial
motions with a labored explanation of why the objections all lack
merit[,]” counsel’s Anders brief must “ ‘assure the court that the
indigent defendant’s constitutional rights have not been violated.’
McCoy [v. Court of Appeals of Wisconsin, 486 U.S. [429] at 442, 108
S.Ct. [1895] at 1903, 100 L.Ed.2d 440 [ (1988) ].” State v. Jyles, 96-
2669, p. 2 (La. 12/12/97), 704 So.2d 241. Counsel must fully discuss
and analyze the trial record and consider “whether any ruling made by
the trial court, subject to the contemporaneous objection rule, had a
significant, adverse impact on shaping the evidence presented to the
[trier of fact] for its consideration.” Id. Thus, counsel’s Anders brief
must review the procedural history and the evidence presented at trial
and provide “a detailed and reviewable assessment for both the
defendant and the appellate court of whether the appeal is worth
pursuing in the first place.” State v. Mouton, 95-981, [p. 2] (La.
4/28/95), 653 So.2d 1176, 1177.
9
State v. Sanders, 16-470, pp. 5-6 (La.App. 3 Cir. 12/7/16), 209 So.3d 143, 147-48
(last alteration ours), writ denied, 17-218 (La. 11/6/17), 229 So.3d 470.
Pursuant to Anders and Jyles, 704 So.2d 241, appellate counsel has filed a
brief asking to withdraw, as his review of the record revealed no non-frivolous
issues for appeal. Counsel starts his review of the record by addressing the
possibility of an insufficiency of the evidence claim. Much like our review of
Defendant’s pro se assignment on this issue, counsel concludes that the State
presented a solid case of specific-intent murder. Counsel also observes that the
State presented evidence, including Defendant’s own statement, to support its
alternative theory that Defendant was a principal to an attempted armed robbery in
which a killing occurred.
The Anders brief includes a discussion of the accomplices’ testimony, noting
that they did not give statements against Defendant until they learned he had
implicated each of them. Counsel points out, however, that Defendant’s trial
counsel “understandably attacked the credibility” of the accomplices. He thus
submits that the issue of credibility was squarely before the jury, who chose to
convict Defendant. Further, as we previously noted, credibility was a matter for
said jury to decide, and this court is prohibited from second guessing the jury’s
determination of credibility. State v. Baxley, 14-48 (La.App. 3 Cir. 5/7/14), 139
So.3d 556.
Counsel notes that the State also proved the companion charge of possession
of a firearm by a convicted felon. It presented fingerprint evidence, including prior
arrest cards, to show that Defendant was the same man convicted of aggravated
burglary in 2013. Clearly, the State presented evidence sufficient to prove that
Defendant possessed a firearm during the offense.
10
Counsel addresses the motion for new trial filed by Defendant which alleged
that the State interfered with his right to counsel by deliberately creating a
technical conflict of interest that kept Defendant’s original public defender from
continuing to represent him. Appellate counsel notes the record is not sufficient to
address this claim and, thus, should be addressed in the post-conviction relief
process, where the record can be further developed regarding this issue. Counsel
catalogues several objections made by trial counsel but notes they either lacked
merit or constituted harmless error. We agree that consideration of this issue
should be deferred.
Counsel also observes that Defendant received the mandatory sentence of
life in prison and the maximum sentence of twenty years for possession of a
firearm by a convicted felon. Trial counsel did not offer any mitigating evidence
and did not object to the sentences. Appellate counsel asserts that although trial
counsel’s performance was deficient, Defendant would not be able to establish
prejudice and thus show ineffective assistance counsel pursuant to Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).2
In a recent case, this court stated:
Additionally, Defendant did not file a motion to reconsider his
sentence. Ordinarily, the failure to seek reconsideration of a sentence
precludes a defendant from raising the issue on appeal. La.Code
Crim.P. art. 881.1. However, this court has reviewed sentences for
bare excessiveness in the interest of justice even where no motion for
reconsideration is filed. State v. Davis, 06-922 (La.App. 3 Cir.
12/29/06), 947 So.2d 201.
Defendant received the maximum sentences for aggravated
burglary and armed robbery and a mandatory life sentence for
aggravated rape. Counsel made no objection to the sentences.
Appellate counsel notes an error by the trial court regarding the two
maximum sentences, if any at all, would be harmless because of the
2
“[I]neffectiveness claims alleging a deficiency in attorney performance are subject to a
general requirement that the defendant affirmatively prove prejudice.” Strickland, 446 U.S. at
693.
11
mandatory life sentence. Defendant has no non-frivolous grounds on
which to appeal his sentences.
State v. Harrison, 19-239, pp. 5-6 (La.App. 3 Cir. 11/6/19), 283 So.3d 1050, 1054-
55. Considering Harrison, we find that appellate counsel is correct in his
assessment regarding a potential Strickland claim concerning Defendant’s
sentences.
Outcome: We find that appellate counsel has fully demonstrated that he reviewed the
record and determined there are no non-frivolous issues to raise on appeal. We
have also reviewed the record and agree. Defendant’s pro se assignments of error
lack merit. Therefore, appellate counsel’s motion to withdraw is granted, and
Defendant’s convictions and sentences are affirmed. Defendant’s allegation that
the State interfered with his right to counsel is deferred to the post-conviction relief
process.
Plaintiff's Experts:
Defendant's Experts:
Comments: