STATE of Louisiana v. Germaine MITCHELL, 815 So. 2d 1041

| AMY, Judge. The defendant was charged with second degree murder in the shooting death of one victim and attempted second degree murder in the injury of another. A jury found the defendant guilty of manslaughter and aggravated battery. The defendant now appeals the convictions, questioning the sufficiency of the evidence. For the following reasons, we affirm the convictions. We further remand this matter with instructions to the trial court to inform the defendant of the applicable post-conviction relief period.

Factual and Procedural Background The events at issue in this criminal appeal occurred on November 26, 1997 in Breaux Bridge, Louisiana. The State alleges that the defendant, Germaine Mitchell, and two acquaintances, Demond Ledet and Ervin Mitchell, traveled to the home of Kaisha Landry. Ms. Landry was the defendant’s girlfriend and the mother of his young child. While visiting the neighborhood, an argument arose between the three men and several men from the neighborhood, including the victim, Alton Francis, who died later in the day.

After the altercation turned physical, Germaine, Demond and Ervin left the area. Later in the evening, the defendant and Ervin returned to the area in the defendant’s vehicle. Although witness statements varied as to the particularities of the event at issue, the record indicates that Ervin and the defendant were approached by Alton Francis, Alphonse Alexander, and Willis Alexander. The State contends that, at some point, the defendant entered the passenger compartment of the vehicle, retrieved a gun, pointed it at Alton Francis and fired.

The record indicates that Mr. pFrancis ran into the home of Joyce Landry and died on the floor from a gunshot wound to the chest. The State contends that the defendant continued to fire, striking neighbor Felton Johnson in the abdomen and arm. The defendant then left the scene. The defendant was charged by bill of information on January 21, 1998, with attempted first degree murder in the shooting injury of Felton Johnson. Additionally, he was indicted by a grand jury on February 10, 1998, with the charge of second degree murder, a violation of La.R.S. 14:30.1.

The defendant’s attempted first degree murder charge was amended on August 30, 1999, to the offense of attempted second degree murder, a violation of La.R.S. 14:30.1 and La.R.S. 14:27. Both charges were consolidated for trial and on September 23, 1999, on the charge of attempted second degree murder, the jury found the defendant guilty of aggravated battery, a violation of La.R.S. 14:34. Additionally, on the charge of second degree murder, the jury found the defendant guilty of manslaughter, a violation of La. R.S. 14:31.

The defendant moved for a new trial on October 29, 1999, asserting that the State made an improper reference to the defendant’s decision not to testify in its rebuttal argument. The motion was granted by the court on December 9,1999. The State filed a writ application with this court which was denied with the finding there was no error in the trial court’s ruling of December 9, 1999. See State v. Mitchell, an unpublished writ opinion bearing docket number 00-23 (La.App. 3 Cir. 4/17/00). The State thereafter applied for supervisory and/or remedial writs to the Supreme Court of Louisiana.

The supreme court reversed the trial court’s granting of the new trial and remanded the matter for sentencing. State v. Mitchell, 00-1399 (La.10/13/00); 771 So.2d 93. | ¡¡The defendant was sentenced on April SO, 2001, to serve ten years at hard labor for the manslaughter conviction and five years at hard labor for the aggravated battery conviction. The sentences were ordered to run concurrently. The defendant appeals, arguing that the evidence was insufficient to sustain the convictions in light of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In particular, the defendant points to the variations and inconsistencies in testimonies of the State’s witnesses. Discussion Errors Patent As is required by La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record and observe that the defendant was not informed of the two-year time limit for filing post-conviction relief as is required by La. Code Crim.P. art. 930.8. Thus, we remand this matter with instructions to the trial court to inform the defendant of the provisions of

Article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that the defendant received the notice in the record of the proceedings. See State v. Clark, 00-818 (La.App. 3 Cir. 12/6/00); 780 So.2d 418. Sufficiency of the Evidence The defendant contends that evidence presented for both convictions was insufficient to support the convictions.

In particular, he references what he terms the “clearly contradictory and impeached testimony of the lay witnesses presented by the State[.]” As an example, he points to one witness’s statement that Alton Francis “possessed a bat for use against Germain Mitchell. However, another eye witness ... Lelearly denied the existence of any bat.” He also contends that cross-examination of the State’s eyewitnesses revealed that there was a significant motivation for lying.

He contends that, because there was no “uncontradicted and/or unim-peached testimony” to support the convictions, they must be reversed pursuant to State v. Mussall, 523 So.2d 1305 (La.1988). When considering a sufficiency of the evidence argument, the appellate court views the evidence in the light most favorable to the State and then determines whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

Furthermore, in order for the State to obtain a conviction following a plea of not guilty, the State must prove the elements of the crime beyond a reasonable doubt. La.R.S. 15:271. The defendant was charged with second degree murder and attempted second degree murder. The jury, however, found the defendant guilty of the responsive verdicts of manslaughter and aggravated battery. Although the evidence was arguably sufficient to support the charged offenses, see State v. Porter, 93-1106 (La.7/5/94); 639 So.2d 1137 and State ex rel. Elaire v.

Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983), we review the verdicts entered by the jury. Manslaughter Manslaughter is defined in La.R.S. 14:31(A)(1) and (2). The trial court in-stracted the jury as to La.R.S. 14:31(A)(1), which provides: IrA. Manslaughter is:

(1) A homicide which would be murder under either

Article 30 (first degree murder) or

Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed[.] Athough the defendant does not dispute that he shot and fatally injured Aton Francis, he disputes the events leading to the shooting.

The defendant correctly argues that the participants in the day’s events, both the altercation earlier in the day and the subsequent altercation at issue, testified differently as to the particulars of the surrounding circumstances. Furthermore, their statements differed in some respects from the statements given to the officers investigating the matter. Athough the variation in the accounts is evident in the

summary of testimony below, importantly, many of the significant of the events of the day, i.e., the actors involved and the actual shooting, were consistently related by the witnesses. The defendant and his friends, Demond and Ervin, traveled to Breaux Bridge to visit the defendant’s son at the home of the child’s mother, Kaisha Landry. Kaisha lived at the home of her mother, Joyce Landry. Upon arriving at the house, the defendant walked to the house, with De-mond and Ervin remaining outside.

Ervin testified that a group of men, Aton Francis, Aphonse Aexander, and Willis Aex-ander, began to talk to the defendant. The defendant reached the front of the house, had a discussion with Trinicia Edmond and, upon learning that Kaisha was not at home, began returning to the car. According to Ervin and Demond, Aphonse Aexander began spouting obscenities at |fithe defendant and moving closer. A fight ensued between the defendant and A-phonse, with Aton becoming involved according to Demond’s testimony.

According to Aphonse’s testimony, however, the defendant instigated the fight and, although he and the defendant exchanged blows, neither Aton nor Willis hit the defendant. Trinicia Edmond confirmed that the fight occurred, stating that Aphonse, Aton, and Willis were involved in the fight, but explaining that it originated between the defendant and Aphonse. According to Demond, the fight ended with the defendant running from the scene. He and Ervin got into the defendant’s car, picking up the defendant at another location.

Demond testified that the three traveled in the car for a while and he eventually asked the defendant to take him home, which the defendant did. At some point, the defendant returned to the Landry home. According to Ervin, he did so because he was paged by Kaisha. Kaisha testified that the defendant returned to the home and explained the earlier altercation to her mother. She testified that the defendant informed Joyce Landry that: “[T]hey fought with him and feels like nobody should keep him away from his child.” Joyce Landry asked the defendant to purchase some items at the store for her.

When he returned, Joyce Landry heard “a fuss” outside. Although the witnesses’ testimonies vary as to the particularities of the subsequent events, they are in accord as to the general circumstances surrounding the shootings. According to Trinicia Edmond, when the defendant and Ervin returned from the store, Alton, Willis, and Alphonse, were on the side of Joyce Landry’s 17house. They began to argue with Ervin who was on the street with the defendant. The three approached Ervin and the defendant. According to Trinicia, Alton was walking alongside the car, when Willis retrieved a baseball bat, giving it to Alton.

According to her testimony, Alton continued to argue with Ervin. Although she stated at trial that he had a bat, she asserted that he never raised the bat toward Ervin. According to Trinicia, the defendant did not attempt to leave the scene, raise the gun, or tell Alton to stop his approach. Rather, the defendant raised a gun and started shooting. She stated that Alton was shot in the chest and that he turned and ran away. The record indicates that Alton died inside of Ms. Landry’s house. Trini-cia testified that the defendant continued shooting.

Alphonse also testified that someone presented Alton with a baseball bat. Like Trinicia, he stated that he did not see Alton raise the bat. He further testified that the defendant was sitting in his car, that he got out of the car, and then walked to the rear of it. He testified that neither he nor Alton said anything to defendant and defendant said to Alton: “I’m going to kill you bitch.” He then pulled the gun. Alphonse stated that Alton told the defendant to “stop tripping.” The defendant fired the gun.

Kaisha testified that the defendant returned from the store, gave her the items for Joyce Landry, and then began walking to the car. According to Kaisha as he returned to the car, “they started approaching him.” She said that Ervin got out of the car, saying to Alton “what’s up man. You ready, you ready to handle that.” Kaisha stated that Alton approached Ervin, at which time, Ervin backed up. Although she stated that she never saw Alton with anything in his hands, she saw the defendant go into the car.

She testified that she did not see the defendant shoot Alton, did not see Alton move in toward the defendant, nor did she see him raise anything indicating |sthat he was about to hit the defendant. Joyce Landry testified that, when she went outside, she saw Ervin and Alton walking toward each other. She then heard the gunshot and saw Alton run into her house. She followed inside. Bernice Alexander testified that her brother, Willis Alexander, went into her house to get a baseball bat during this second altercation and that he was angry. She went outside to see what was wrong and saw Alton and Ervin arguing.

She stated that they were standing close to one another and that Alton was holding the baseball bat from her house. She testified that the defendant was inside the passenger side of the car and that, as Alton and Ervin argued, the defendant got out of the car, walked to the driver’s side, pointed the gun at Alton and said: “man, I’m going to shoot your f_ a_” Bernice testified that following the statement, the defendant shot Alton. She denied that Alton raised the bat.

Felton Johnson, a neighbor and victim of the shooting, testified that he saw Alton walk down the street, tap on the hood of the car, and bend down to speak to speak to someone. He denied that Alton had a baseball bat in his hand. Felton testified that the defendant “just pulled out the gun and shot it.” The defense provided only one additional eyewitness, Ervin Mitchell. His testimony was offered in support of the defendant’s contention that his actions should be viewed as self-defense or justifiable homicide.

Ervin testified that after he and the defendant returned from the store, they went into the house to deliver the items. He stated that as he, the defendant, and Kaisha stood and talked outside, Alton, Willis, and Alphonse appeared from behind the house. Upon noticing the men and hearing their obscene language, he and the defendant decided to leave. |9Ervin testified that he and Mitchell made it to the car and the defendant unlocked the passenger door. As he was doing so, Alton approached him from behind and tried to grab him.

Ervin testified that he was trying to get away from Alton, but that Alton continued to argue with him, wanting him to fight. He then saw Willis run from the side of the house and hand something to Alton. He stated that Alton then pulled out a bat and swung at him. Ervin testified that Alton then attempted to swing at the defendant. Ervin further testified that the defendant ducked as Alton tried to hit him. He then went around the car and was cornered by Alton between the ditch and the car.

Ervin testified that defendant got into his car, got back out, and as Alton was about to swing again, the defendant ducked and fired the gun. As the jury must have been, we are aware that the witnesses offered inconsistent testimonies and, as pointed out by the defendant, some of their statements contradicted statements made to investigating authorities. The most significant inconsistencies between trial testimony and pretrial statements involved whether Alton had a bat and whether or not it was raised. In State v.

Taylor, 96-1043, p. 5 (La.App. 3 Cir. 2/5/97); 688 So.2d 1262, 1267, a panel of this court addressed witness credibility, stating: A determination of the weight of evidence presented is a question of fact. The resolution of a matter where conflicting testimony exists requires a determination of credibility of the witnesses and is a matter of weight of the evidence and not sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. State v.

Nolan, 503 So.2d 1186 (La.App. 3 Cir.), writ denied, 507 So.2d 226 (La.1987). A fact-finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process |inof law. Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Where rational triers of fact could disagree as to the

interpretation of the evidence, the rational trier’s view of all evidence most favorable to the prosecution must be adopted on review. Only irrational decisions to convict by the trier of fact will be overturned. See State v. Mussall, 523 So.2d 1305 (La.1988). Although confronted with variations in witness testimony, we do not conclude that the jury’s reliance on trial testimony and the ultimate verdict of guilty of manslaughter were irrational, especially in light of its function as a fact-finder and the deference given its credibility determinations as described above.

Essentially, the jury was presented with testimony indicating that the defendant and two acquaintances attempted to visit at the home of the defendant’s girlfriend and child. Testimony indicates that, while at the home, they were harassed/intimidated by three neighborhood men. An altercation occurred, turning physical and causing the defendant to retreat. When he and Ervin returned later in the day, they were again approached by the same three men. According to witness testimony, the events occurred quickly, with Alton, a man of considerable size, approaching Ervin.

Witness testimony even indicates that Willis Alexander left, returning with a bat. In short, the State presented evidence indicating that the defendant was presented with a quickly escalating situation, although it may not have been one necessarily found to be threatening to either his life or Ervin’s. While this same testimony indicated that the defendant may have had sufficient time to retreat from the situation or sound a warning, he instead further escalated the confrontation, firing shots and killing Alton Francis.

Given these circumstances and the credibility determinations best left with the trier of fact, it is our opinion that it was not irrational for the trier of fact to conclude that the defendant had the intent to kill Alton or cause him great bodily Inharm, but that he did so under “heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La.R.S. 14:30.1(A)(1). This argument lacks merit.

Aggravated Battery The defendant also contests his conviction for aggravated battery in the shooting of Felton Johnson, again relying on his assertion that the witnesses offered inconsistent versions of events and that the shooting was justifiable or in self-defense. La.R.S. 14:34 provides that: “Aggravated battery is a battery committed with a dangerous weapon.” “Battery” is defined as “the intentional use of force or violence upon the person of another.” La.R.S. 14:33. Felton Johnson testified that he and the defendant knew each other and that they never argued.

Additionally, Felton Johnson testified that he was not with Alton, Alphonse, or Willis on the day of the shooting. He denied making any aggressive moves toward the defendant. Instead, he contends that he was merely walking in the street, on his way to his brother’s home, at the time of the shooting. Felton related his version of the shooting, testifying that he froze once Alton was shot. He continued, stating that Alton ran toward him, passed in front of him, and ran into the house. He explained that, although everyone else ran, he froze and ended up looking at the defendant.

Felton stated: “He point the gun right at me. He looked at me and I looked at him.” He was then shot. When asked what occurred next, Felton stated: “The only thing I know that I fell.” The record indicates that Felton sustained injuries to his abdomen and arm from the shooting. It is unquestioned that the injury resulted from the use of a dangerous weapon. As far as intent, Felton explained that he froze following Alton’s shooting and that |12he ended up looking at the defendant, with the defendant pointing the gun at him. Thus, the jury was free to believe that the defendant intentionally fired in his direction.

Although the defendant again made arguments regarding self-defense/justifiable use of force, the jury was free to not accept this version of events. Testimony was offered indicating that, although confronted with a hostile situation, the defendant was not placed in a position where he was justified in firing at either Felton Johnson or Alton Francis. Whether the defendant was mistaken as to Felton’s role in the altercation is of no moment if the jury chose to disbelieve the defendant’s arguments regarding self-defense. This argument also lacks merit.

DECREE For the foregoing reasons, the convictions of the defendant, Germaine Mitchell are affirmed. This matter is remanded to the trial court with instructions to inform the defendant of the applicable post-conviction relief periods as discussed above. AFFIRMED; REMANDED WITH INSTRUCTIONS. PETERS, J., dissents and assigns written reasons. . Mr. Francis is also referred to in witness testimony as "Biggie,” "Biggie June,” and "Heavy.” . Testimony was offered indicating that Alton was upset with the defendant due to his treatment of Kaisha, Alton’s cousin.