STATE OF LOUISIANA v. DEVIN HOLMES (2017)

The defendant, Devin C. Holmes, was charged by bill of information with attempted second degree murder, a violation of Louisiana Revised Statutes 14:30.1 and 14:27 (count one); and possession of a firearm by a convicted felon, a violation of Louisiana Revised Statutes 14:95.1 (count two).¹ He entered a plea of not guilty and, following a jury trial, he was found guilty as charged on both counts by a unanimous jury. He filed motions for new trial and postverdict judgment of acquittal, both of which were denied. The defendant was then sentenced to twenty-five years at hard labor on count one and ten years at hard labor on count two, to run consecutively with each other.² , ³ He filed a motion to reconsider sentence, which was denied. The defendant now appeals, challenging the sentences imposed by the district court and the sufficiency of the evidence presented by the State in support of his convictions. For the following reasons, we affirm the defendant's convictions. We also affirm the sentence on count one, but remand for resentencing on count two.

FACTS

On June 10, 2015, at approximately 5:15 a.m., Joe Louis, Jr., the victim, walked out of his house on Carver Drive in New Roads and toward his vehicle to leave for work. As he attempted to enter his vehicle, a man wearing a black hoodie and blue jeans shot him. He fell against his vehicle and then to the ground. The shooter ran toward the back of the victim's house. As the victim attempted to reenter his home, the shooter ran back toward him and shot him again stating, “I told you I was gonna get you, huh?” The victim saw the shooter's face, recognized him, and later identified him as the defendant. The victim was taken to the hospital and treated for his gunshot wounds. He sustained two wounds above his left ear and one to the area between his neck and left shoulder. The lacerations on the left side of the victim's head above his ear were sewn, and the bullet in his left shoulder area was not removed because it was in soft tissue. Hours later, the defendant was located at his girlfriend's apartment and placed under arrest. The defendant maintained that he had nothing to do with the shooting.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, the defendant argues that the evidence was insufficient to support the verdicts. Specifically, he contends that no rational jury could have determined that he was the person who shot the victim.

A conviction based on insufficient evidence cannot stand as it violates due process. See U.S. Const. amend. XIV; LSA-Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also LSA-C.Cr.P. art. 821B; State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821B, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, Louisiana Revised Statutes 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

In arguing against the sufficiency of the evidence introduced at trial, the defendant does not argue that an attempted second degree murder did not occur. Rather, he contends that the victim's identification of him as the shooter is “internally inconsistent, lacks credibility, and fails to satisfy the [S]tate's heavy burden of proof.” In support of this argument, the defendant argues that he was not identified as the shooter in the 911 call or when the victim was initially examined by healthcare providers in the hospital.

When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Hughes, 05-0992 (La. 11/29/06), 943 So.2d 1047, 1051; State v. Davis, 01-3033 (La.App. 1 Cir. 6/21/02), 822 So.2d 161, 163-64.

The testimony presented at trial established that in May 2013, the victim's son, Joshua Louis, shot and killed the defendant's cousin, Damon Brown. The victim's son pled guilty to manslaughter and was sentenced to imprisonment for a term of thirteen years. After Brown's funeral, the defendant participated in a second line in front of the victim's home wherein the defendant rode around New Roads playing Tupac Shakur's song, “I Miss My Homie[s].” On the same day, the defendant threatened the victim's daughter, Josie Louis, stating, “Bitch, I'll kill you[.]” Thereafter, in July 2014, as the victim went outside to take out his garbage, a vehicle pulled up and a man, later identified as the defendant, jumped out of the vehicle, walked around to the area wherein the victim was standing, drew a pistol, and said he was going to shoot the victim's house and kill the victim. Livonia Police Department Officer Ned Tolliver, Jr. was called to the victim's house to investigate the incident. Following his discussion with the victim, Officer Tolliver spoke with the defendant who advised that he would stay away from the victim's residence.

On June 9, 2015, the day prior to the instant offenses, the defendant followed the victim's daughter as she drove from a snowball stand back to the victim's home. The defendant made multiple turns in order to follow the victim's daughter and rode very near to her vehicle. When she arrived at the victim's house, she and the children inside of the vehicle ran inside. By the time the victim was informed of what happened and walked outside, the defendant had left.

New Roads Police Department Officer Tavis Dixon testified that he spoke with the victim and the victim's family at the hospital. According to Officer Dixon, the victim was in shock, but was coherent. Based on information provided by the victim and his family, the defendant and his brother, Derrick Gamble, were identified as suspects. Photographs of the defendant and Gamble obtained by officers from social media were shown to the victim. When Officer Dixon showed the victim the photograph of Gamble, the victim was certain that Gamble was not the man who shot him. However, when shown a picture of the defendant, the victim was certain that the defendant was the man who shot him.

New Roads Police Department Lieutenant Shael Stringer also testified at trial. According to Lieutenant Stringer, who spoke with the victim at the hospital, the victim stated he was unable to provide a name, but if shown a photograph, he would be able to recognize the person who shot him. The victim described the defendant and specifically stated that he had “twist[s] in his hair.” Lieutenant Stringer testified that there was no doubt in his mind that the victim knew who shot him.

The victim testified at trial that he had no doubt in his mind and was “one thousand percent” certain that the defendant shot him. He explained that when he arrived at the hospital, he knew the defendant's face, but not his name. The victim pointed out that there were distinguishing features about the defendant, including the twists in his hair and the “structure of his face,” which the victim described as skinny. The victim's emergency room doctor testified that the victim was anxious and concerned whether he would live. The doctor explained that when he asks a patient who has been shot whether he or she knows the name of the shooter, usually the patient does not actually give a name of the shooter because he or she is anxious and “wondering if they're gonna live or die.” According to the victim's testimony, after Brown's shooting, the defendant “never did give it up.” The victim claimed that the defendant drove by his home “all through the day, all through the night” and would threaten him.

According to the defendant's testimony, on June 9, 2015, he arrived at his girlfriend's house around 7:00 p.m. and fell asleep there at approximately 11:30 p.m. The defendant stated that he did not leave his girlfriend's house and did not wake up until the detectives arrived the next morning. Although he admitted to having “words” with the victim's son, he denied knowing the victim, threatening the victim, or owning a black hoodie. He also denied talking to Officer Tolliver about the July 2014 incident. The victim testified that both the victim and Tolliver were lying. The defendant admitted participating in a second line after Brown's funeral and seeing the victim's daughter as he passed the victim's house. However, he denied following the victim's daughter on the day prior to the victim's shooting and claimed that her testimony was a lie. The defendant admitted that he and Brown were very close and he was angry because of his murder. The defendant also stated he would not ask his girlfriend to lie on his behalf, but conceded he would ask her to break the law.

The defendant's girlfriend, Mary Lewis, testified at trial. According to Lewis, she was with the defendant the night before the shooting, and he did not leave her apartment that night. Lewis testified that she woke up at 5:30 a.m., and the defendant was asleep in bed. Although she stated that she was one hundred percent certain that the defendant did not leave her apartment, on cross-examination, she admitted that the last time she saw the defendant was at 2:00 a.m. when she fell asleep and that she does not know what he was doing between 2:00 a.m. and 5:15 a.m. According to Lewis, the victim's home is a three or four minute drive from her apartment.

The defendant's father, Larry Holmes, testified on his behalf. According to Holmes, he spoke to Officer Tolliver after the July 2014 incident, and the defendant was not present. Further, he maintained that Officer Tolliver never spoke with the defendant.

Despite the defendant's contention that the victim's identification of him lacked credibility, the jury obviously concluded otherwise. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

Viewed in the light most favorable to the State, the evidence presented at trial established that the defendant was the person who shot the victim. The jury believed the victim's testimony over the defendant's own self-serving testimony. After a thorough review of the record, we cannot say that the jury's determination of the defendant's guilt was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 660. Accordingly, this assignment of error is without merit.

EXCESSIVE SENTENCES

In his second assignment of error, the defendant argues that the sentences imposed are excessive. He specifically contends that “for a total of 35 years, [he] was sentenced to a disproportionate amount of incarceration based upon the fact he dared to put the [S]tate to its burden of proof and maintain his innocence.” He argues that he “received an unduly harsh and unpredictable sentence based upon the whims of the sentencing judge.”

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate the defendant's constitutional right against excessive punishment and is subject to appellate review. See State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. Further, a sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. State v. Hurst, 99-2868 (La.App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 00-3053 (La. 10/5/01), 798 So.2d 962. A district court judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Id.

Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the district court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the trial court adequately considered the guidelines. See State v. Herrin, 562 So.2d 1, 11 (La.App. 1 Cir.), writ denied, 565 So.2d 942 (La. 1990). The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). Even when the district court assigns no reasons, the sentence will be set aside on appeal and remanded for sentencing only if the record is inadequate or clearly indicates the sentence is excessive. State v. Knight, 11-0366 (La.App. 1 Cir. 9/14/11), 77 So.3d 302, 304, writ denied, 11-2240 (La. 2/17/12), 82 So.3d 283. On appellate review of a sentence, the relevant question is whether the district court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

Pursuant to Louisiana Revised Statutes 14:30.IB and 14:27D(1)(a), attempted second degree murder carries a sentence of imprisonment at hard labor “for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.” Pursuant to Louisiana Revised Statutes 14:95.IB in effect at the time of trial whoever is convicted of possession of a firearm by a person convicted of certain felonies, “shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.” The defendant was sentenced to twenty-five years at hard labor on count one and ten years at hard labor on count two, to run consecutively with each other.

The district court ordered and reviewed a presentence investigation report and heard a victim impact statement prior to sentencing. The district court also heard a statement from the defendant's father who asked the court to have mercy on the defendant, pointing out that the shooting affected both families. Defense counsel also argued prior to the imposition of sentence that the defendant, who was twenty-six years old at the time of sentencing, should be given a chance for rehabilitation. Defense counsel noted that ten to fourteen years was a fair punishment and that the defendant's cousin's “killer,” the victim's son, received a sentence of thirteen years after pleading guilty to manslaughter.

The district court stated that the defendant had two “bites at the apple,” noting that he was on probation and in drug court at the time of the instant offenses. The court pointed out that the defendant maintains his innocence and shows no remorse. According to the district court, had the defendant had a better aim, the victim would be dead. The district court noted that the defendant had little work history, a long history of drug abuse, and although the defendant did not have a long criminal history, he had a substantial one. The court stated that it was concerned that because of the defendant's drug addiction, he may reoffend if he is released and “gets back on drugs and someone angers him[.]” See LSA-C.Cr.P. art. 894.1A(1), (2) and (3). After sentencing the defendant, the district court concluded that the sentences imposed would give the defendant the opportunity, with good behavior, to “get out and, to improve [himself] in society.”

The district court provided, and the record reveals, sufficient justification for imposing the sentences herein. The district court reviewed the facts developed at trial and noted that but for the defendant's “terrible shot,” the victim would be dead. The district court also expressed concerns as to the defendant's propensity to reoffend. In addressing the length of the defendant's sentences as compared to that imposed for the victim's son, the court noted that the victim's son was “very remorseful” at his sentencing hearing. Considering the district court's review of the circumstances and the nature of the crimes, we find no abuse of discretion by the district court. Therefore, this assignment of error is without merit.

SENTENCING ERROR

Under Louisiana Code of Criminal Procedure article 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record, we have found a sentencing error.

Whoever is found guilty of violating the possession of a firearm by a convicted felon provision shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. LSA-R.S. 14:95.1B. The record, including the minutes, reveals that the district court failed to impose the mandatory fine. Accordingly, the defendant's sentence on count two is illegally lenient.

Because the amount of the fine lies in the trial court's discretion, the correction of the sentencing error must be made by the trial court, rather than by amendment by this court. See State v. Haynes, 04-1893 (La. 12/10/04), 889 So.2d 224 (per curiam). Accordingly, we vacate the sentence imposed on count two and remand for resentencing in accordance with law. See LSA-C.Cr.P. art. 881.4(A).

CONCLUSION

For the foregoing reasons, the defendant's convictions are affirmed; the sentence imposed on count one is affirmed; the sentence imposed on count two is vacated; and this matter is remanded to the trial court for resentencing on count two in accordance with law.

CONVICTIONS AFFIRMED. SENTENCE AS TO COUNT ONE AFFIRMED; AS TO COUNT TWO, SENTENCE VACATED AND REMANDED FOR RESENTENCING.

FOOTNOTES

1.   Previously, in April of 2012, the defendant pled guilty to simple burglary under Eighteenth Judicial District Court, Parish of Pointe Coupee, docket number 77884. He was sentenced to five years at hard labor. His sentence was suspended, and he was placed on supervised probation for a period of three years.

2.   The district court revoked the defendant's probation under docket number 77884 and ordered that the defendant serve five years under that docket number consecutively with the sentences imposed on the instant offenses.

3.   These sentences are deemed to be served without benefit of probation, parole, or suspension of sentence. See LSA-R.S. 15:301.1A.

MCCLENDON, J.