Date: 12-29-2016

Case Style:

Case Number: KA-16-0107

Judge: Sylvia R. Cooks, John D. Saunders, and Marc T. Amy

Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Plaintiff's Attorney:

J. Phillip Terrell
District Attorney
Michael W. Shannon
Assistant District Attorney

Defendant's Attorney:

Chad M. Ikerd
Louisiana Appellate Project

Description: According to the record, in the late night/early morning hours of September
27-28, 2011, there was a series of drive-by shootings in Alexandria. One of those
shootings resulted in the death of Joe Marzette and another resulted in a gunshot
wound to the leg of Darryl White.1 Thereafter, the defendant, Tedrick Jewan
Richardson, was charged with one count of second degree murder, a violation of
La.R.S. 14:30.1; two counts of attempted second degree murder, violations of
La.R.S. 14:30.1 and 14:27; one count of possession of a firearm by a convicted
1 The record contains several inconsistencies in the spelling of the names of various
parties. Unless otherwise noted, we use the spellings contained in the transcript of the trial.
2
felon, a violation of La.R.S. 14:95.1; one count of distribution of a counterfeit
controlled dangerous substance—Schedule II, a violation of La.R.S. 40:967(A)(2);
and unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4. After a
trial, the jury returned a responsive verdict of guilty of negligent homicide, a
violation of La.R.S. 14:32; guilty with regard to both counts of attempted second
degree murder; guilty of distribution of a controlled dangerous substance—
Schedule II; and not guilty of unauthorized use of a motor vehicle.
The record indicates that defendant filed a motion for post-verdict judgment
of acquittal and that the trial court granted that motion in part with regard to the
defendant‘s conviction for distribution of a controlled dangerous substance—
Schedule II. Further, the State filed a habitual offender bill, and the trial court
determined that the defendant was a second felony offender.
The trial court sentenced the defendant to ten years at hard labor without
benefit of probation or suspension of sentence for his conviction for negligent
homicide and twenty-five years at hard labor without benefit of probation or
suspension of sentence for each of the defendant‘s convictions for attempted
second degree murder. For his conviction for possession of a firearm by a
convicted felon, the trial court ordered that the defendant serve fifteen years at hard
labor without the benefit of probation or suspension of sentence. The trial court
ordered that the defendant‘s sentences for negligent homicide and for each
conviction of attempted second degree murder run consecutively. It further
ordered that his sentence for possession of a firearm by a convicted felon run
concurrently with his other sentences.
The defendant appeals, asserting as error that:
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I. The Trial Court Erred in Denying Tedrick Richardson‘s
Post-Trial Motions Because there was Insufficient Evidence that he
was Involved in Any of the Three Shootings.
II. Even if Tedrick Richardson‘s statement is Accepted as
True, Nothing in His Statement or Witness Testimony Establishes that
he acted as a Principal or the Actual Perpetrator of Any of the Three
Shootings.
III. The Trial Court‘s Imposition of Consecutive Sentences
for the Three Shootings was Excessive.
Discussion
Errors Patent
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent. An error patent is one which is ―discoverable by a mere inspection
of the pleadings and proceedings and without inspection of the evidence.‖
La.Code Crim.P. art. 920(2). On review, we note patent errors with regard to the
sentences reflected in the minutes and commitment order. Namely, the trial court‘s
minutes from the defendant‘s sentencing hearing indicates that the defendant‘s
sentences for negligent homicide, attempted second degree murder, and possession
of a firearm by a convicted felon were imposed without the benefit of parole.
However, the transcript of the hearing from the defendant‘s sentencing indicates
that the trial court imposed ―all sentences … at Hard Labor with no benefit of
Probation or Suspension of Sentence[.]‖ It is well-settled that when the minutes
and the transcript conflict, it is the transcript which prevails. State v. Wommack,
00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La. 9/21/01),
797 So.2d 62. Accordingly, we instruct the trial court to correct the sentencing
4
minutes to accurately reflect the transcript and to further correct the commitment
order to reflect that these sentences were imposed as stated in the transcript.2
Sufficiency of the Evidence
Although phrased differently, the defendant‘s first two assignments of error
concern the sufficiency of the evidence. In addition to his assertion that the State
presented insufficient evidence of his identity as one of the perpetrators, he
suggests that consideration of the State‘s evidence is undermined by its reliance on
circumstantial evidence.
The standard of appellate review for sufficiency of the evidence claims is
well-settled. In State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280,
1285-86, the supreme court reiterated that standard, stating:
The standard of appellate review for a sufficiency of the
evidence claim is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988).
A determination of the weight of evidence is a question of fact, resting
solely with the trier of fact who may accept or reject, in whole or in
part, the testimony of any witnesses. State v. Silman, 95-0154
(La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on
the factfinding function of the jury only to the extent necessary to
assure the Jackson standard of review. State v. Bordenave, 95-2328
(La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate
court to assess credibility or re-weigh the evidence. Id.
As here, the primary issue at trial in Macon was whether the defendant was
one of the perpetrators in the subject series of offenses. ―[W]hen 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.‖ State v. Hughes, 05-992, p. 5 (La. 11/29/06), 943 So.2d 1047,
2 The commitment order presently provides that: ―Defendant is given 60 years without
benefit of probation, parole, or suspension of sentence.‖
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1051. In order to support a conviction, the defendant need only be positively
identified by one witness. Id.
Here, the parties dispute whether the State‘s case involved purely
circumstantial evidence, or whether it relied upon a combination of direct and
circumstantial evidence, or whether it relied upon a combination of direct and
circumstantial evidence to prove the defendant‘s involvement. ―Generally, direct
evidence consists of testimony from a witness who actually saw or heard an
occurrence, proof of the existence of which is at issue[.]‖ State v. Lilly, 468 So.2d
1154, 1158 (La.1985). Circumstantial evidence, however, ―consists of proof of
collateral facts and circumstances from which the existence of the main fact may
be inferred according to reason and common experience.‖ Id.
In State v. Major, 03-03522, p. 6 (La. 12/1/04), 888 So.2d 798, 801-02, the
supreme court explained that:
when the conviction is based on circumstantial evidence, La. R.S.
15:438 sets forth the rule that ―assuming every fact to be proved that
the evidence tends to prove, in order to convict, [the circumstantial
evidence] must exclude every reasonable hypothesis of innocence.‖
However, La. R.S. 15:438 does not establish a stricter standard of
review than the more general rational juror‘s reasonable doubt
formula; rather it serves as a helpful evidentiary guide for jurors
when evaluating circumstantial evidence. State v. Toups, 01-1875, p.
3 (La.10/15/02), 833 So.2d 910, 912; State v. Chism, 436 So.2d 464,
470 (La.1983). When evaluating circumstantial evidence, the trier of
fact must consider
the circumstantial evidence in light of the direct evidence, and
vice versa, [and] the trier of fact must decide what reasonable
inferences may be drawn from the circumstantial evidence, the
manner in which competing inferences should be resolved,
reconciled or compromised; and the weight and effect to be
given to each permissible inference. From facts found from
direct evidence and inferred from circumstantial evidence, the
trier of fact should proceed, keeping in mind the relative
strength and weakness of each inference and finding, to decide
the ultimate question of whether this body of preliminary facts
excludes every reasonable hypothesis of innocence.
6
Chism, 436 So.2d at 469.
With regard to the defendant‘s conviction for negligent homicide, La.R.S.
14:32 provides, in relevant part, that ―A. Negligent homicide is . . . . (1) The killing
of a human being by criminal negligence.‖ Criminal negligence is defined in
La.R.S. 14:12, which states that:
Criminal negligence exists when, although neither specific nor
general criminal intent is present, there is such disregard of the
interest of others that the offender‘s conduct amounts to a gross
deviation below the standard of care expected to be maintained by a
reasonably careful man under like circumstances.
With regard to the defendant‘s convictions for attempted second degree
murder, La.R.S. 14:30.1 provides, in relevant part, that ―[s]econd 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[.]‖ Further, attempt is defined in La.R.S. 14:27(A),
which provides that:
Any person who, having a specific intent to commit a crime,
does or omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the
offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his purpose.
Thus, although La.R.S. 14:30.1 provides that second degree murder requires
―specific intent to kill‖ or ―to inflict great bodily harm,‖ in order to be convicted of
attempted second degree murder, the State must prove that the defendant had the
specific intent to kill. State of Thomas, 10-269 (La.App. 3 Cir. 10/6/10), 48 So.3d
1210, writ denied, 10-2527 (La. 4/1/11), 60 So.3d 1248, cert. denied, _ U.S. _, 132
S.Ct. 196 (2011). However, that intent may be inferred from the specific
circumstances of the offense and the defendant‘s conduct. Id.
With regard to the defendant‘s conviction for possession of a firearm by a
convicted felon, La.R.S. 14:49.1 (footnote omitted) provides that:
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A. It is unlawful for any person who has been convicted of a
crime of violence as defined in R.S. 14:2(B) which is a felony or
simple burglary, burglary of a pharmacy, burglary of an inhabited
dwelling, unauthorized entry of an inhabited dwelling, felony illegal
use of weapons or dangerous instrumentalities, manufacture or
possession of a delayed action incendiary device, manufacture or
possession of a bomb, or possession of a firearm while in the
possession of or during the sale or distribution of a controlled
dangerous substance, or any violation of the Uniform Controlled
Dangerous Substances Law which is a felony, or any crime which is
defined as a sex offense in R.S. 15:541, or any crime defined as an
attempt to commit one of the above-enumerated offenses under the
laws of this state, or who has been convicted under the laws of any
other state or of the United States or of any foreign government or
country of a crime which, if committed in this state, would be one of
the above-enumerated crimes, to possess a firearm or carry a
concealed weapon.
. . . .
C. The provisions of this Section prohibiting the possession of
firearms and carrying concealed weapons by persons who have been
convicted of certain felonies shall not apply to any person who has not
been convicted of any felony for a period of ten years from the date of
completion of sentence, probation, parole, or suspension of sentence.
Therefore, the State must have proven that 1) the defendant possessed a
firearm; 2) a previous conviction for an enumerated felony; 3) the ten-year
cleansing period has not passed; and 4) the general intent to commit the crime.
State v. Caffery, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, writ denied, 09-
1305 (La. 2/5/10), 27 So.3d 297.
With consideration of the elements of the offenses charged, and in light of
the standard of review, we turn to consideration of the evidence presented at trial.
State‘s witness Chris Newell testified that, on September 27, 2011, he visited
Alexandria to buy crack cocaine. Mr. Newell explained that he ultimately loaned
his car until ―about twelve or one o‘clock or so‖ to someone named ―Dedrick,
Tedrick – something to that [e]ffect‖ for about $50 worth of crack cocaine. Mr.
Newell identified the defendant as the person to whom he had loaned his vehicle.
8
He explained that, when his car was not returned to him later, he flagged down a
police officer. Mr. Newell testified that his vehicle was a 1997 Honda Accord,
silver or gray in color, and that it had a sunroof and a small spoiler. Although Mr.
Newell initially testified that he thought his back windows were tinted, after
looking at a picture of the vehicle presented by the State, he admitted that they did
not appear to be tinted.
Addressing the timeframe of the events at issue, an employee of the Rapides
Parish Communication District testified that, on September 28, 2011, at 12:24 a.m.,
the 9-1-1 center received a call from Mary Street reporting that someone had been
shot (the Monroe incident). Additionally, at approximately 12:44 a.m., the 9-1-1
center received a call from the vicinity of Cabrini school and Texas Avenue that
there was an unresponsive person lying in the street (the Texas Avenue incident).3
Finally, at approximately 12:49 a.m., the 9-1-1 center received a ―shots fired‖ call
from Merrian Peterson on Ninth Street (the Ninth Street incident).
With regard to the Texas Avenue incident, Debra Howard testified that she
was driving on Texas Avenue on September 28, at approximately 12:30 a.m. when
she noticed a man lying on the side of the street near the curb. Ms. Howard
testified that she thought that the man had been drinking and had fallen from his
bicycle. Ms. Howard, thereafter, decided to go back and see if the man was still
lying there. When she returned approximately five minutes later and found the
man still in the street, she asked her girlfriend to call 9-1-1. The record indicates
that the body of Joe Marzette was subsequently located on Texas Avenue. The
3 While the Texas Avenue incident was the second reported, the State asserted that it
occurred prior to both the Monroe Street and Ninth Street incidents.
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forensic pathologist testified that Mr. Marzette died from a gunshot wound and that
he had recovered a small caliber projectile from Mr. Marzette‘s lung.
Although the 9-1-1 call regarding Mr. Marzette‘s shooting was made at
12:44 a.m. on September 28, the State introduced the testimony of Jamarques
Starling. Mr. Starling testified that in 2011 he lived on Texas Avenue across the
street from Cabrini school. According to Mr. Starling, at about 11:30 to 11:45 p.m.
on September 27, 2011, he heard what sounded like a BB gun being fired.
Thereafter, he saw a car coming down the street from the direction of the noise.
Mr. Starling testified that the car had four doors and was ―probably a Buick,
something old school.‖ Mr. Starling also stated that the car was dark black or blue,
although he admitted that in his original statement he described it as light blue or
gray. Mr. Starling also testified that the car had a least three passengers, and that
the defendant was definitely not the driver of the car.
The State also offered the testimony of Lieutenant William Bates with the
Alexandria Police Department. Lieutenant Bates testified that it was 2.4 miles
from the location where Mr. Marzette was shot to the location of the Monroe Street
incident, the alleged second-occurring shooting. Lieutenant Bates testified that,
driving the speed limit, it took him seven minutes to drive from one location to the
other.
As for the latter location, Darryl White testified that he was walking on
Monroe Street after midnight on September 28, when he was shot in the ankle.
According to Mr. White‘s testimony, someone fired at least six shots at him from
the driver‘s seat of a car that was ―standing still‖ around the intersection of
Florence and Monroe. Mr. White testified that he saw the car before the shots
were fired and that ―the car was coming towards my way and they made the
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corner.‖ Further, ―[w]hen they made the corner, they stopped in the driveway.
Then they back backed [sic] to the corner and they started shooting at me.‖
Mr. White testified that there were at least four people in the car, which he
said was gray, ―looked like a gray Ford Escort[,]‖ and that it had tinted windows,
although the tint was partially torn off one of the windows. Although Mr. White
stated that the car had a spoiler on the back, he was certain that he car did not have
a sunroof and that the windows were tinted. Further, Mr. White testified that the
driver of the vehicle—the one who fired the shots—was ―chubby‖ and ―way, way
bigger‖ than the defendant.
As far as the alleged third-occurring shooting that evening, the Ninth Street
incident, Merrian Peterson testified that he was standing outside on Ninth Street
when he saw ―a car going from one side of the street to the other. . . . after that car
passed me about four or five car lengths . . . someone got out and they cursing me
out and the next thing I knew some bullets are flying by my head.‖ Mr. Peterson
testified that it was the passenger who stepped from the car. Mr. Peterson further
explained that he dove behind his car and stayed there until the other car drove off.
After taking about ten minutes to compose himself, Mr. Peterson called the police.
Mr. Peterson admitted that he originally described the vehicle as a dark blue
Nissan with tinted windows. However, in his testimony he stated several times
that he was not positive about the color of the car because it was ―in the shadows‖
and that he had been drinking at the time.
As far as the defendant‘s alleged involvement, Sergeant Robert Distafano
with the Alexandria Police Department testified that he began interviewing the
defendant at approximately 8:30 p.m. on September 28, 2011, but that Sergeant
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Cedric Green took over the interview about an hour later. According to Sergeant
Distafano, the defendant was picked up shortly before the interview.
The defendant‘s recorded statement was played for the jury and,
additionally, the transcribed statement was introduced into evidence. Therein, the
defendant admitted that he gave Chris Newell drugs in exchange for the use of his
vehicle. Further, the defendant stated that he and Quantavious ―Taye‖ Frazier
picked up Michael Dotson. The defendant claimed that the incident on Monroe
Street was the first incident, and stated:
A: Okay we rode. . .uh at first I was the driver. And then Mike
forced like made me like make him drive. Like let him drive. While
he was driving we went down Chester Street at first. And then we
made it to Monroe Street. We made a right on Monroe Street. We
rode down. And while I was in the passenger seat we made a couple
of shots. My homeboy Taye was in the backseat.
Q: Okay. He—who made a couple of shots?
A: Mike. Mike shot a couple of shots, about two or three shots.
According to the defendant, Mr. Dotson was in the driver‘s seat at that time. The
defendant stated that he had ―never seen‖ the person that Mr. Dotson shot at on
Monroe Street.
The transcript of the defendant‘s statement indicates that the officers next
asked him about what happened on ―Sixth Street.‖ The defendant stated that:
A: We made it off the highway, off 49 on the exit to Lower Third.
We passed up Peabody. Alright we passed up Ed Payne‘s store and
we made a right on Sixth Street. When we made a right on Sixth
Street and made it to the fork, to the fork in the road. Alright then. .
.then Mike was like hold on, hold on, hold on before we made it down
the street.
Q: Okay who was driving at that point.
A: I was driving.
12
According to the defendant‘s statement, Mr. Dotson ―jumped out‖ and
―walked like up—like in front of the car a lil‘ bit.‖ The defendant claimed that at
that point he noticed that Mr. Dotson had a gun. However, the defendant also
stated that ―well, I already knew he had a gun cause he had shot[.]‖ The defendant
stated that once he noticed Mr. Dotson had a gun, he ―smashed the gas‖ and made
a right. According to the defendant he heard a couple of shots after Mr. Dotson got
out of the car. The defendant also stated that Mr. Frazier felt that the defendant‘s
driving was going to get them ―busted,‖ so he and Mr. Frazier switched seats. Mr.
Frazier ―made the block and picked Mike up.‖ The defendant later asserted that
Mr. Dotson lived ―right there‖ and that he thought Mr. Dotson was ―fixing to run
in [his] house and run back out.‖ Further, he stated that Mr. Dotson told the
defendant to ―make the block.‖
With regard to the shooting on Texas Avenue, the defendant stated that he
was sitting in the backseat and that Mr. Dotson was driving. The defendant stated
that he had been ―like laying like on – like the headrest like this[.]‖ The statement
further indicates that:
A: with my hand to my head. And I just noticed Mike upping the
gun out the sunroof. That‘s what made me like. . .really come to my
senses; cause I had been smoking weed. When I seen that I looked, I
like tried to look to see who he was aiming the gun at, and I ain‘t see
nobody.
Q: Right.
A: Then I heard like three shots. Well I seen him shoot like three
times you know[.] He hurried up and smashed off.
The defendant claimed that after that, they all went to McDonald‘s and then, when
the defendant asked Mr. Dotson what they were going to do with the car, Mr.
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Dotson said that he had ―a spot to take it‖ on ―Eight Street on a dead end street[.]‖
According to the defendant, they left the car there and then he went home.
The defendant also stated that between the incidents on Monroe Street and
Texas Avenue, he went home and picked up a charger for his phone. The
defendant claimed that the first shooting happened at ―9-8-8:30-8:45-9[.]‖ When
asked about the time period ―from the first shooting to the last shooting[,]‖ the
defendant responded ―[a]bout three hours.‖ He subsequently stated that: ―Three or
four hours at most. Cause we like Mike what is you doing man. Drop us off. Man
y‘all ain‘t going no where. Y‘all go tell. Y‘all boys must go tell. That‘s what he
kept on saying, y‘all go tell man.‖
Defense counsel questioned Sergeant Distafano, Sergeant Green, and
Detective David Foshee about the course of the investigation. Specifically,
defense counsel questioned both Sergeant Distafano and Sergeant Green with
regard to their conduct during the defendant‘s interview and with regard to several
people whose names were mentioned as part of the investigation, and whether the
police interviewed those individuals or took their statements. With regard to Mr.
Dotson, whom the defendant alleged fired the gun, Sergeant Distafano testified that
he interviewed Mr. Dotson and that Mr. Dotson provided him with an alibi that he
believed.
Additionally, Daniel Guillot testified that he saw the defendant several times
on the night of September 27, 2011. According to Mr. Guillot, after 1 a.m. on
September 28, 2011, he saw the defendant at a house belonging to Sirderian
Caesar‘s aunt on Sixth Street and Glen Oaks. Mr. Guillot testified that when he
first saw the defendant, he was wearing ―a beat up small T-shirt‖ and was ―sweaty
like he had just been doing something.‖ Further, Mr. Guillot testified that the
14
defendant had a ―black and silver‖ handgun on his back belt loop, which he later
testified was a 9mm semi-automatic. According to Mr. Guillot, the defendant went
into a bedroom and changed clothes. Mr. Guillot stated that after the defendant
changed clothes he did not see the gun anymore and that the defendant stayed at
the house about thirty minutes. Mr. Guillot also observed that the defendant‘s
grandmother lived across the street from the house.
Mr. Guillot further testified as to statements allegedly made by the defendant
when they were both in a holding cell. According to Mr. Guillot, the next day both
he and the defendant were picked up by the police, and the defendant was later
placed in a holding cell with Mr. Guillot. Mr. Guillot explained that he overheard
the defendant tell another person that ―[he] busted somebody but they ain‘t got
nothing on me.‖ Mr. Guillot stated that he got to the holding cell at about 8:30 or
9:00 and that it was still daylight outside. According to Mr. Guillot, the defendant
was put in the holding cell about thirty or forty minutes after Mr. Guillot‘s arrival.
The State also offered the testimony of FBI Special Agent William
Williams. Agent Williams is part of the FBI‘s Cellular Analysis Survey Team and
was accepted as an expert in the field of historical cell site analysis. According to
Agent Williams, whenever a cell phone user makes a network transaction, such as
a phone call or text message, the cell phone company records both the time of the
transaction and the location of the cell phone tower used for the transaction. Agent
Williams testified that, using this historical data, it is possible to ―generally locate‖
where a cell phone was whenever a transaction was made. However, he cautioned
that it was ―impossible‖ to pinpoint a location where the phone was at the time of
any particular transaction.
15
Agent Williams testified that he was asked to examine the defendant‘s cell
phone records for September 27, 2011, from 11:45 p.m. to 12:02 a.m.; September
28, 2011 at approximately 12:23 a.m.; and September 28, 2011, at approximately
12:53 a.m. With regard to the transactions made in close proximity to Mr.
Marzette‘s murder, Agent Williams testified that the defendant‘s phone made
several transactions at between 11:44 p.m. and 11:47 p.m. using the western-facing
side of a tower located at Willow Glen and Third Street. Between 11:48 p.m. and
11:49 p.m., the defendant‘s phone made several transactions using the
southeastern-facing side of a tower located near Masonic Drive and Warshauer.
Between 11:49 p.m. and 11:50 p.m., the defendant‘s phone made two transactions
using the northeastern-facing side of a tower near Lee Street and Government
Street. Agent Williams further testified that between 11:51 p.m. and 11:54 p.m.,
the defendant‘s phone made several transactions using the southeastern-facing side
of the Masonic-Warshauer tower. At 11:55 p.m., the defendant‘s phone made a
transaction using the southwestern-facing side of that tower. Agent Williams
reiterated that he could ―only tell you the general location of that phone when a call
actually occurred[,]‖ and that he could not say where the phone was outside of any
particular call.
The State offered into evidence several maps created by Agent Williams.
Those maps indicated the coverage area boundaries of several tower sectors that
Agent Williams identified as being used by the defendant‘s phone. Agent Williams
noted the distance between the Government-Lee tower and the Masonic-Warshauer
tower is ―less than two miles[.]‖ Further, Agent Williams observed that Mr.
Marzette‘s body was found ―roughly half a block‖ outside of the coverage area of
the tower sector used by the defendant‘s phone at 11:55 p.m.
16
When questioned by defense counsel, Agent Williams agreed that, if Mr.
Marzette‘s murder occurred between 11:30 and 11:45 p.m., as opposed to 11:45
p.m. to 12:02 a.m., he had no data for that time period. Agent Williams also
agreed that in order for the phone‘s general location to be recorded, there had to be
some kind of transaction, such as a phone call or attempted phone call. Agent
Williams testified that ―[i]f a phone is just sitting idle somewhere, it‘s not going to
record a location.‖
With regard to the transactions made in close proximity to the Monroe Street
incident, Agent Williams testified that the closest time to the shooting per the
Alexandria police was 12:23 a.m. Agent Williams testified that the defendant‘s
phone recorded several transactions at 12:21 a.m. and 12:24 a.m., using the
western-facing side of a tower near the intersection of Ninth Street and Murray.
Agent Williams also created a map indicating the coverage area boundaries for the
Ninth Street-Murray tower. Agent Williams testified that it was ―approximately …
ten blocks‖ from the tower to the location where shots were fired at Mr. White.
With regard to the transactions made in close proximity to the Ninth Street
incident, Agent Williams testified that, according to the Alexandria police, Mr.
Peterson was shot at 12:52 a.m. Agent Williams testified that the defendant‘s
phone recorded transactions between 12:45 a.m. and 12:55 p.m. using two sectors
of a tower located near Willow Glen River Road and Seventh Street. The State
submitted Agent Williams‘ map into evidence which indicates that location of the
Ninth Street shooting and the location where Mr. Newell‘s vehicle was recovered.
Additionally, the State presented testimony regarding evidence collected
from the various crime scenes. With regard to the Monroe Street incident, Deputy
Deidre Allen testified that she found a bullet fragment on the sidewalk and blood
17
on the ground roughly where the victim told her that he had been shot. On Ninth
Street, Officer Edward Scott testified that he recovered shell casings from a .380
handgun from the location where Mr. Peterson said the shooter was standing.
Officer Scott also testified that he found a bullet hole in the wall of a neighbor‘s
residence and that a bullet was collected from the neighbor‘s bathroom.
Lieutenant Bates testified that from the defendant‘s residence, which he
explained was three or five blocks from the location of the Ninth Street shooting,
was searched but that ―[n]othing of value was found at his residence.‖ Further,
Lieutenant Bates testified that a .22 caliber bullet was recovered from Mr.
Marzette‘s body and that he recovered four .380 fired cartridge casings on the
southwest corner of Florence and Monroe Street.
Lieutenant Bates also stated that he processed Mr. Newell‘s Honda for
fingerprints and that he recovered fifteen latent prints from the vehicle. According
to Lieutenant Bates, a fingerprint found on the inside driver door handle was
identified as belonging to the defendant. He further stated that he tested the
remaining prints against the fingerprints of various individuals, but that none of
those individuals‘ prints matched any of the remaining unidentified prints.
Lieutenant Bates also indicated that no fingerprints were found on the shell
casings.
Michael Stelly, who works for the North Louisiana Crime Lab, testified with
regard to the bullets—which included a bullet jacket—and shell casings recovered
at the crime scene. Mr. Stelly testified that he examined the four fired .380
cartridge cases collected from the scene of the Monroe Street incident, and the two
fired .380 cartridge cases collected from the scene of the Ninth Street incident.
According to Mr. Stelly, he determined that all six cartridge cases were fired from
18
one weapon. With regard to the bullet and the bullet jacket, Mr. Stelly testified
that he could not determine whether they were fired from the same weapon
because the bullet jacket was damaged, but that he could tell they were fired from a
weapon with the same class characteristics. Mr. Stelly also noted that, because
.380 cartridges have the same diameter but are slightly shorter than 9mm
cartridges, it was possible to fire a .380 bullet from a 9mm weapon.
Mr. Stelly also testified that he examined the bullet recovered from Mr.
Marzette‘s body. According to Mr. Stelly‘s testimony, that bullet was a .22 caliber
bullet. Mr. Stelly testified that, because a .22 caliber bullet could not be fired out
of a .380 caliber weapon, that those were ―two different guns.‖ Mr. Stelly also
observed that, because a ―.22 is a small cartridge with a lot less gun powder‖ it has
a ―lot less bang, lot less noise when it exits the barrel of a gun.‖
With regard to the State‘s burden of proving the charge of felon in
possession of a firearm, the defendant stipulated that he had previously been
convicted of ―possession of CDS Schedule II, Cocaine, a felony on June 21, 2011.‖
Following the close of the State‘s case, the defendant presented various
witnesses, including his mother, Olivia Richardson. Ms. Richardson testified that
her son lives with her on Woodard Street. According to her testimony, the
defendant, who was driving a ―tannish, gold Honda‖ came to her house at
approximately 11:45 p.m. with Quantavious Frazier. The defendant retrieved his
cell phone charger and left at most five minutes later. Ms. Richardson later stated
that she saw her son several times that evening—at 11:15 p.m., at approximately
11:35 p.m., and at 11:45 p.m. She testified that:
[The State] He drove up at the time in a Honda. At eleven
fifteen?
19
[Ms. Richardson] Yes, sir.
Q He stayed in the house for a few minutes. Left in the
Honda?
A Yes, sir.
Q Okay. Then you don‘t see him again until eleven fifty?
A No. He same [sic] to the house – eleven fifty was the third
time. That‘s what [sic] I told him what I told him. He came the first
time. He left and he came right back. That was the second time. The
third time was eleven forty-five. That‘s when I told him, the next
time you come here you come in to stay.
Ms. Richardson also testified that the defendant returned home again at 2:30 a.m.
Further, Ms. Richardson stated that she had made it clear to the defendant that she
did not want any guns in the house. According to her testimony, this was because
of her own felony convictions.
Misty Deleery and Breaisha Davis both testified that the defendant arrived at
their house on Park Avenue starting at approximately 12:10 a.m. and stayed for
over an hour. According to both Ms. Deleery and Ms. Davis, while the defendant
was at their house, Ms. Deleery tried to braid his hair. Ms. Deleery stated that she
remembered the time period that he was there because she took a phone off of the
charger before the defendant arrived and had seen the time and that her mother
later woke up and yelled at them to come back inside because it was almost 1:00
a.m. Ms. Deleery did admit that she told the police ―I don‘t know‖ when
questioned about whether the defendant could have left at 12:30 a.m. When asked
how the defendant left, she replied ―[w]alking.‖ She also denied seeing a car.
Further, Ms. Davis was positive that the defendant was at her house between
midnight and 1:00 a.m. However, when questioned by the State, Ms. Davis
insisted that she and Ms. Deleery had been taken to the police station on the same
20
date and that she had given her statement to the police on October 1, 2011. Ms.
Davis testified that she was ―a hundred percent‖ positive that she only went to the
police station one time. However, when questioned by the State as to why her
statement was dated October 3, 2011, Ms. Davis testified:
[The State] Okay. And you recall the police officer said to you
on October the third - -
[Ms. Davis] Mm-hmm.
Q - - I picked you up on Sunday and I had you come down here
to the police station but you were too high for me to get a statement
from you. Is that right? And what was your response on October the
third?
A I said, I guess.
Dantavious Lindsey testified that he was with the defendant in the early
morning hours of September 28, 2011. Mr. Lindsey testified that the defendant
came to get some ―weed‖ from him at his mother‘s house on Gabriel Lane.
According to Mr. Lindsey, the defendant, who was in a gold Honda, arrived at
―like one o‘clock. Between twelve and‖ 1:00 a.m. Mr. Lindsey later testified that
it was right after midnight. Mr. Lindsey also testified that Davetreous ―Boomer‖
Howard was already in the vehicle with the defendant. Mr. Lindsey denied seeing
a gun or ammunition in the vehicle and denied seeing the defendant with a gun.
According to Mr. Lindsey‘s testimony, they dropped Mr. Howard off on
Tulane Avenue and then went to go pick up Travius ―Cat‖ Warden from his
grandmother‘s house, which was also on Tulane Avenue. Mr. Lindsey testified as
follows:
[The defendant‘s attorney] When Cat got into the vehicle –
when Travius Warden got in the vehicle, did he have any firearms?
[Mr. Lindsey] No, sir.
21
Q And during the period of time y‘all were in the car, did he
shoot at anybody?
A No, sir.
Q Did you even have a gun on you?
A No, sir.
Q Did Tedrick shoot anyone?
A No, sir.
Q No shooting?
A No, sir. And no one shooting.
Mr. Lindsey further testified that after they picked up Mr. Warden, they all
went to the BP station on Lee Street to get some cigars. Mr. Lindsey denied going
to Sirderian Caesar‘s house or seeing Daniel Guillot. Mr. Lindsey also stated that
they went to the defendant‘s house sometime after midnight to charge the
defendant‘s cell phone.
Davetreous Howard also testified. Mr. Howard stated that everyone calls
him ―Boomer.‖ According to Mr. Howard‘s testimony, the defendant was getting
his hair done on Park Avenue at 12:45 or 1:00 a.m. when Mr. Howard walked up
and asked the defendant for a ride. Mr. Howard stated that they stayed at the house
on Park Avenue for thirty to forty-five minutes. However, Mr. Howard later stated
that he was already at the house on Park Avenue charging his phone when the
defendant walked up. Mr. Howard remembered that the defendant had a brown
Honda, and that defendant dropped him off in Phoenix Point. Mr. Howard denied
seeing the defendant with a gun and denied shooting at anyone.
Travius Warden, who explained that everyone calls him ―Cat,‖ testified that
he was on his bicycle when he saw the defendant driving a tan Honda. Mr.
22
Warden stated that the defendant was with Mr. Lindsey, whom he called ―Lil‘
Dan,‖ at that time. According to Mr. Warden, the defendant came back and picked
him up between midnight and 1:00 a.m. Mr. Warden testified as follows:
[The defendant‘s attorney] Okay. All right. When you got in
the back of the vehicle, did you see Tedrick with a gun?
[Mr. Warden] No.
Q Did you see Lil‘ Dan with a gun?
A No. I ain‘t seen no guns.
Q Did you see any guns in the vehicle at all?
A No, sir. No, sir.
Q Did you see any bullets in the vehicle?
A No, sir.
Q Any ammunition in the vehicle?
A No, sir.
Mr. Warden also testified that they went to the BP station to get some cigars.
According to his testimony, eventually they ended up going to the defendant‘s
house and sat outside in the car talking until at least 4:00 a.m. Mr. Warden
admitted that in his first statement he said that they stayed outside talking until
2:30 a.m. Mr. Warden further denied seeing Sirderian Caesar or Daniel Guillot.
Sirderian Caesar testified that his cousin lives on the corner of Sixth and
Green Oaks. Mr. Caesar denied being at his cousin‘s house at 1:00 a.m. on the
morning of September 28, 2011. Mr. Caesar further stated that his cousin does not
allow people to ―smoke weed‖ at her house and does not allow people to be there
late at night. Shedrick Metoyer testified that he was not at Sirderian Caesar‘s
23
house at 1:00 a.m. on the morning of September 28, 2011, and confirmed that if
Mr. Guillot said that he saw him there ―[t]hen it‘s all a lie.‖
With regard to the defendant‘s convictions for negligent homicide and
attempted second degree murder, and having viewed this evidence in the light most
favorable to the prosecution, we conclude that there is sufficient evidence to
support these convictions. Notably, the defendant did not contest that he was in
Mr. Newell‘s car on the night in question. Instead, he referenced various
inconsistencies in his own statement, along with that of other witnesses, to suggest
that the person he named as the shooter in his statement was not in the vehicle.
However, there was sufficient evidence that the jury could have determined both
that Mr. Newell‘s car was the one used in all three shootings and that the defendant
was in Mr. Newell‘s car at the time of the shootings. Most importantly, the
defendant‘s statement, which was played for the jury, admitted both of these facts.
The defendant‘s fingerprints were also located on the driver‘s door handle of Mr.
Newell‘s vehicle.
Certainly, there were notable inconsistencies between the witnesses‘
testimonies with regard to the time of each shooting and the description of the
vehicle. We observe that Mr. Guillot‘s testimony about when he encountered the
defendant in the holding cell was inconsistent with the officer‘s testimony about
when the defendant was booked. Similarly, the defendant‘s alibi witnesses offered
inconsistent statements about when they encountered the defendant on the night in
question and those witnesses‘ testimonies contradicted the defendant‘s statement to
the police that he was involved. However, the jury, as the trier of fact, could
accept or reject, in whole or in part, the testimony of any witness, and it was within
the jury‘s purview to resolve those inconsistencies. Macon, 957 So.2d 1280. We
24
note that, if accepted by the jury, there was sufficient evidence to place the
defendant‘s cell phone in the general area of each shooting at the approximate time
of each incident. Further, there was testimony that the defendant was seen with a
9mm semi-automatic, which, testimony revealed, was capable of firing the .380
caliber cartridges recovered at two of the crime scenes.
However, the defendant‘s mere presence in the vehicle at the time of the
shooting does not necessarily impose criminal liability. Having concluded that
there is sufficient evidence to support a conclusion that the defendant was in Mr.
Newell‘s vehicle at the time of the shootings, the relevant determination is whether
there is sufficient evidence to conclude that he was a principal to the crimes for
which he was convicted. Louisiana Revised Statutes 14:24 addresses the law of
principals, stating ―[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.‖ In State v. Mason, 10-28, p. 9
(La.App. 5 Cir. 1/11/11), 59 So.3dd 419, 425-26, writ denied, 11-306 (La.
6/24/11), 64 So.3d 216, the fifth circuit explained accomplice liability, stating:
Only those persons who ―knowingly participate in planning or
execution of a crime‖ are principals to that crime. State v. King, 06-
554, pp. 7-8 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ
denied, 07-0371 (La.5/4/07), 956 So.2d 600 (quotation omitted). An
individual may only be convicted as a principal for those crimes for
which he personally has the requisite mental state. King, supra. The
mental state of one defendant may not be imputed to another
defendant. Thus, mere presence at the scene of a crime does not make
one a principal to the crime. Id. However, it is sufficient
encouragement that the accomplice is standing by at the crime scene
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, p. 3 (La.2/6/98), 707 So.2d
1223, 1225 (per curiam) (quotation omitted).
25
However, a ―general principle of accessorial liability‖ is that ―when two or more
persons embark on a concerted course of action, each person becomes responsible
for not only his own acts but also for the acts of the other, including ‗deviations
from the common plan which are the foreseeable consequences of carrying out the
plan.‘‖ State v. Acker, 12-1116, p. 12 (La.App. 3 Cir. 4/3/13), 111 So.3d 535, 546
(quoting State v. Smith, 07-2028 (La. 10/20/09), 23 So.3d 291).
Having reviewed the record in the light most favorable to the prosecution,
we conclude that there is sufficient evidence to support such a conclusion.
Although the defendant denied firing the gun, in his statement he admitted that he
was in the vehicle on three occasions when another person shot out of the car.
With regard to the Monroe Street incident, the defendant‘s statement indicates that
he knew that another person, who he alleged to be Mr. Dotson, was shooting at a
person. The crime of attempted second degree murder requires that the defendant
have the specific intent to kill. See Thomas, 48 So.3d 1210. Specific intent may
be established by circumstantial evidence and ―[i]t is well-settled that the act of
pointing a gun at a person and firing the gun is an indication of the intent to kill
that person.‖ Id. at 1215. Similarly, the jury could have concluded that the
defendant agreed to render aid to the shooter by agreeing to ―make the block‖ and
then following through on that action even after he heard gunshots.
Further, our courts have determined that where a defendant is present for
multiple criminal acts and remains with the person or persons committing the
criminal acts, the defendant‘s intent to participate can be inferred from his
continued presence. Acker, 111 So.3d 535 (citing State v. Scroggins, 40,746
(La.App. 2 Cir. 3/22/06), 926 So.2d 64, writ denied, 06-098 (La. 11/3/06), 940
So.2d 655). Accordingly, although the defendant‘s statement may be interpreted
26
as downplaying his involvement in the alleged offenses, there was sufficient
evidence for the jury to infer that the defendant had the opportunity to leave the
group but chose not to do so. In turn, the jury could have also inferred that the
defendant possessed the requisite criminal intent for each of the homicide
convictions. As to the negligent homicide conviction, we conclude that the jury
could have found that the defendant was criminally negligent as ―[t]he evidence
supports a finding that the circumstances indicate that the [defendant], in the
ordinary course of human experience, must have adverted to the prescribed
criminal consequences as reasonably certain to result from his act or failure to act.‖
Scroggins, 926 So.2d at 69. Additionally, the nature of those circumstances
supports a finding of a specific intent to kill, as is required for each of the
convictions for second degree murder. Specifically, La.R.S. 14:10(1) explains,
that ―specific criminal intent‖ ―exists when the circumstances indicate that the
offender actively desired the prescribed criminal consequences of his act or failure
to act.‖
The defendant also argues that his statement to the police was an admission
and not a confession. Thus, the defendant argues, the only evidence available for
the jury to consider was circumstantial evidence, and the State failed to exclude
every reasonable hypothesis of innocence as required by La.R.S. 15:438.
―The term ―admission‖ is applied to those matters of fact which do not
involve criminal intent; the term ―confession‖ is applied only to an admission of
inculpatory facts and a confession of guilt.‖ State v. Marr, 626 So.2d 40, 45
(La.App. 1 Cir. 1993)(quoting State v. Jones, 451 So.2d 35 (La.App. 2 Cir.), writ
denied, 456 So.2d 171 (La.1984)), writ denied, 93-2806 (La. 1/7/14), 631 So.2d
27
455. In State v. Boothe, 532 So.2d 203, 206 (La.App. 3 Cir. 1988), a panel of this
court explained that there are three categories of incriminating statements:
The first category is the confession which admits the guilt of the crime
charged. The second is the admission which involves the existence of
criminal intent. The third is the admission or acknowledgment of
facts which tend to establish guilt, but which do not involve the
existence of criminal intent. The Court concluded that remarks which
were not express admissions of guilt or facts showing criminal intent
can be introduced without the foundation necessary for admitting a
confession, despite the fact that the statements might be considered
inculpatory.
In this context, the distinction between a confession and an admission is that a
confession is considered direct evidence while an admission is considered
circumstantial evidence. State v. Hunter, 39,664 (La.App. 2 Cir. 6/29/05), 907
So.2d 200, writ denied, 05-2027 (La. 3/10/06), 925 So.2d 507.
Here, we conclude that whether or not the defendant‘s statement constitutes
an admission, a confession, or a combination of both, there was sufficient evidence
to support the defendant‘s convictions for negligent homicide and attempted
second degree murder. As stated in Major, 888 So.2d at 801, La.R.S. 15:438 ―does
not establish a stricter standard of review than the more general rational juror‘s
reasonable doubt formula[.]‖ As previously discussed, we conclude that the
evidence and testimony, including the defendant‘s own statement, contains enough
information to support the jury‘s finding that the defendant was a willing
participant. See Scroggins, 926 So.2d 64.
Accordingly, we find that there was sufficient evidence to support the
defendant‘s convictions for negligent homicide and attempted second degree
murder.
We further find that the State presented sufficient evidence to support the
defendant‘s conviction for possession of a firearm by a convicted felon. Notably,
28
Mr. Guillot testified that he saw the defendant with a firearm on his back belt loop.
Mr. Guillot‘s testimony was sufficient such that, if believed by the jury, they could
have concluded that the defendant possessed the intent to possess a firearm.
Further, the defendant stipulated that he had been convicted of ―possession of CDS
Schedule II, Cocaine, a felony on June 21, 2011.‖ That date is within the ten-year
cleansing period described by La.R.S. 14:95.1. Accordingly, we conclude that
there was sufficient evidence to support the defendant‘s conviction for possession
of a firearm by a convicted felon.
In sum, the defendant‘s assignments of error with regard to the sufficiency
of the evidence are without merit.
Sentencing
The defendant also asserts that his sentences were unconstitutionally
excessive. Specifically, the defendant contends that the imposition of consecutive
sentences for the convictions of negligent homicide and two counts of attempted
second degree murder rendered his sentences excessive.
The law with regard to excessive sentences is well-settled. In State v.
Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-
43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, this court explained that:
La. Const. art. I, § 20 guarantees that, ―[n]o law shall subject any
person to cruel or unusual punishment.‖ To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ
denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant
question is whether the trial court abused its broad sentencing
29
discretion, not whether another sentence might have been more
appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957,
cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Further, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d
786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061, the supreme court
elaborated that:
In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an appellate court
may consider several factors including the nature of the offense, the
circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a
comparison of sentences imposed for similar crimes may provide
some insight, ―it is well settled that sentences must be individualized
to the particular offender and to the particular offense committed.‖
State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is
within the purview of the trial court to particularize the sentence
because the trial judge ―remains in the best position to assess the
aggravating and mitigating circumstances presented by each case.‖
State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.
Additionally, La.Code Crim.P. art. 894.1 contains a list of sentencing
guidelines, and the trial court must ―state for the record the considerations taken
into account and the factual basis therefor in imposing sentence.‖ La.Code Crim.P.
art. 894.1(C). However, the trial court need not articulate every circumstance or
read through a checklist in order to comply with La.Code Crim.P. art. 894.1(C).
State v. Herbert, 12-228 (La.App. 3 Cir. 6/13/12), 94 So.2d 916, writ denied, 12-
1641 (La. 2/8/13), 108 So.3d 78. Yet, the record should sufficiently establish that
the trial court adequately considered Article 894.1‘s guidelines in imposing a
defendant‘s sentence. Id.
With regard to concurrent and consecutive sentences, La.Code Crim.P. art.
883 states that:
If the defendant is convicted of two or more offenses based on the
same act or transaction, or constituting parts of a common scheme or
30
plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall
specify, and the court minutes shall reflect, the date from which the
sentences are to run concurrently.
Accordingly, concurrent sentences are preferred when a defendant‘s offenses arise
from a common scheme or plan. State v. Bethley, 12-853 (La.App. 3 Cir. 2/6/13),
107 So.3d 841. It is, however, within the trial court‘s discretion to impose
consecutive sentences provided that the trial court articulates particular
justification for doing so at sentencing. Id. ―The factors to consider when
imposing consecutive sentences include defendant‘s criminal record, the severity
or violent nature of the offenses, or the danger the defendant poses to the public.‖
Id. at 850 (quoting State v. Wallace, 11-1258 (La.App. 3 Cir. 5/30/12), 92 So.3d
592, writ denied, 12-1861 (La. 3/8/13), 109 So.3d 355, writ denied, 12-1865 (La.
3/8/13), 109 So.3d 355.
As for negligent homicide, La.R.S. 14:32(C) provides that ―whoever
commits the crime of negligent homicide shall be imprisoned with or without hard
labor for not more than five years, fined not more than five thousand dollars, or
both.‖ Further, and with regard to the two convictions for attempted second degree
murder, a violation of La.R.S. 14:30.1 and La.R.S. 14:27, those offenses were
punishable by ten to fifty years at hard labor, without benefit of probation, parole,
or suspension of sentence. See also State v. Thomas, 10-806 (La.App. 3 Cir.
4/27/11), 63 So.2d 343, writ denied, 11-0963 (La. 10/21/11), 73 So.3d 382.
Finally, La.R.S. 14:95.1, relative to possession of a firearm by a convicted felon,
provides that ―[w]hoever is found guilty of violating the provisions of this Section
shall be imprisoned at hard labor for not less than ten nor more than twenty years
31
without the benefit of probation, parole, or suspension of sentences and be fined
not less than one thousand dollars nor more than five thousand dollars.‖ However,
these sentences must be viewed within the context of La.R.S. 15:529.14 as the
defendant was found to be a second felony habitual offender and, thus, under these
circumstances each sentence could not have been ―less than one-half the longest
term and not more than twice the longest term prescribed for a first conviction.‖
Reference to the sentences indicates that the trial court stayed within the
above framework as, upon the determination that the defendant was a second
felony habitual offender, it sentenced the defendant to ten years without the benefit
of probation or suspension of sentence for his negligent homicide conviction;
twenty-five years without benefit of probation or suspension of sentence for each
conviction for attempted second degree murder; and fifteen years without the
benefit of probation or suspension of sentence for the felon in possession of a
firearm conviction. Accordingly, we conclude that all of the defendant‘s sentences
are within the statutory range.
Further, our review of the transcript from the defendant‘s sentencing hearing
indicates that the trial court gave lengthy reasons for the sentences, noting the
presence of limited mitigating circumstances, the random, ―egregious‖ nature of
4 In particular, Louisiana Revised Statutes 15:529.1 provides, in pertinent part, that:
A. Any person who, after having been convicted within this state
of a felony, or who, after having been convicted under the laws of any other state
or of the United States, or any foreign government of a crime which, if committed
in this state would be a felony, thereafter commits any subsequent felony within
this state, upon conviction of said felony, shall be punished as follows:
(1) If the second felony is such that upon a first conviction the
offender would be punishable by imprisonment for any term less than his natural
life, then the sentence to imprisonment shall be for a determinate term not less
than one-half the longest term and not more than twice the longest term
prescribed for a first conviction.
(Emphasis added).
32
the crimes, and the lack of motivation in choosing the victims. The trial court
further remarked upon a lack of remorse demonstrated by the defendant. Thus, we
also conclude that the trial court adequately considered the sentencing guidelines
of La.Code Crim.P.art. 894.1.
Addressing the defendant‘s particular concern regarding the consecutive
nature of the sentences, we note that the trial court explained that:
The final issue before the Court is to determine whether the sentences
imposed should run concurrently or consecutively with each other.
The Court is aware of the option and so today I find that they are
consecutive. The evidence, well to an extent. The evidence clearly
established 3 separate occurrences in this case. Defendant shot the
first victim, drove to another part of town looking for a second
innocent victim, shot him, drove around some more to find a third
innocent victim, shot at him. Fortunately the last bullet didn‘t meet its
target and Mr. Petersen was unharmed. Obviously each of these
shootings amounted to a separate crime with separate intent to harm
by the defendant. To run the sentences concurrent for these 3
convictions in this case would be to minimize the seriousness of each
separate offense. Defendant would essentially benefit from the fact
that he chose 3 and not just 1 victim.
On review, we find that the trial court adequately considered the factors
necessary to justify the imposition of consecutive sentences. In addition to the
above excerpt which addresses the separate temporal element of each event, the
trial court considered the defendant‘s previous history, including the fact that the
defendant was on probation at the time of these offenses; the gravity of the offense;
the ―significant, permanent injury‖ done to the victims; and the risk to the general
public posed by the defendant. The trial court specifically noted in that regard that
the defendant‘s offenses appeared to be ―some kind of random game[.]‖ Thus, we
conclude that the trial court adequately expressed its reasons for imposing
consecutive sentences.
33
Finally, we point out that the supreme court has admonished ―that sentence
review under the Louisiana constitution does not provide an appellate court with a
vehicle for substituting its judgment for that of a trial judge as to what punishment
is more appropriate in a given case.‖ State v. Mouton, 15-287, p. 15 (La.App. 3
Cir. 10/7/15), 175 So.3d 1122, 1133 (quoting State v. Savoy, 11-1174 (La. 7/2/12),
93 So.3d 1279). With that precept in mind, and considering the reasons given by
the trial court, we find that the defendant‘s sentences are not constitutionally
excessive.
This assignment of error is without merit.

Outcome: