STATE v. DUPRE (2023)

The defendant, Terance Dupre, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for post-verdict judgment of acquittal, which was denied. The defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating three assignments of error. We affirm the conviction and sentence.

FACTS

During the early morning of May 12, 2019, the defendant and his friend Devante Matthews went to the Wildlife and Fisheries Boat Launch in Pointe-aux-Chenes, which is in Terrebonne Parish and Lafourche Parish. The defendant drove his Ford F-150 pickup truck. At the boat launch, the defendant turned his truck around so that the front of his truck was facing away from the water. The defendant got out of his truck and raised the hood. Several minutes later, Kirby Courteaux arrived in his Toyota Tundra pickup truck and pulled up so that the trucks faced each other. The defendant knew Courteaux, but Matthews did not. Courteaux retrieved jumper cables from his truck and, while connecting them to the trucks, was shot four times and killed.¹ The Tundra was struck in the radiator, which began leaking. Courteaux's body was placed in the back of the defendant's truck. Courteaux's wallet was taken. The defendant drove to a remote wooded location in Morgan City where the body was dumped. The defendant bought a new radiator for the Tundra. Matthews's friend, Mickey Picou, installed the new radiator, and the defendant began driving the Tundra. Several days later, the defendant was spotted by the police in the Tundra on the shoulder of Island Road in Pointe-aux-Chenes. When the defendant saw the police, he fled. A brief vehicle and foot-chase ensued before the defendant was apprehended. Matthews went on the run and was apprehended about two months later.

Matthews testified at trial that he had a plea agreement with the State. In exchange for his truthful testimony, he would receive an 18-year sentence for obstruction of justice. The following is Matthews's version of what occurred the night of the shooting. On May 12, 2019, at approximately 1:00 a.m., the defendant came to his house, woke him up, and told him they were going to rob Courteaux at the boat launch. They drove to the boat launch in the defendant's truck and, once there, the defendant raised his hood to make it look like they had broken down. About ten minutes later, Courteaux arrived in his Tundra, pulled up to the defendant's truck, and retrieved jumper cables. While Courteaux was hooking the cables up to the defendant's truck, the defendant shot Courteaux two times in the body and two times in the head. Matthews and the defendant put Courteaux's body in the back of the defendant's truck. The defendant took Courteaux's wallet. The Tundra had been hit by a bullet and was leaking. The defendant told Matthews to look for spent shell casings, but Matthews did not find any. The defendant drove the Tundra to a secluded area on Island Road to hide it. Matthews lived on Island Road. Then, riding in the defendant's truck, they stopped at Matthews's house to pick up Matthews's little brother so he could act as lookout while they hid the body. They stopped at a supermarket and used Courteaux's bank card to buy something. They stopped at a bank where the defendant withdrew money using the same bank card. They got gas, then drove to Morgan City. They drove down a small trail into the woods that narrowed too much for a truck to pass through. They stopped and dragged the body deeper down the trail into the woods and left it. They had planned on burying the body, but were too tired to do so. They went back to Matthews's house, and the defendant cleaned out his truck with water and bleach. The defendant took out a black bag (the defendant's backpack) from his truck and left it at Matthews's house. They went back to the Tundra, saw the radiator was broken, and got a friend of theirs, Micky Picou, to replace the radiator with a new one the defendant had bought from an auto parts store. The defendant then drove the Tundra, and Matthews drove the defendant's truck. Matthews was eventually apprehended and gave a statement to the police.

The defendant gave two statements to detectives. His first statement made was in Terrebonne Parish, and his second statement was in Lafourche Parish. (Exhibits S-4 and S-8, defendant's statements). In his first statement, the defendant said that he turned his truck around at the boat launch and his motor died. He lifted the hood and walked away to urinate. At that point, Courteaux drove up. According to the defendant, Courteaux was “kind of gay” and stalked the defendant on Facebook. The defendant stated that as he was returning, Courteaux walked up to the truck, and Matthews shot him a couple of times. Then, according to the defendant, the following occurred. The defendant walked away, and Matthews took the defendant's truck and drove off, Matthews returned a short time later with “Joe” and gave the defendant his truck keys. Matthews and Joe put Courteaux's body in the back of the defendant's truck. Joe then drove the Tundra truck, while Matthews and the defendant, who was driving, followed in the defendant's truck. They drove to Morgan City to a wooded area where Matthews and Joe dumped the body. The defendant then agreed to take the detectives to the location of Courteaux's body. The defendant insisted that he did not shoot Courteaux, and he did not go to the boat launch to meet Courteaux.

After the defendant showed detectives where the body was located, he was brought to Lafourche Parish and questioned further. The defendant recounted essentially the same narrative he told in his first interview. When asked to identify the gun Matthews had, the defendant indicated it was a “subgun” with a collapsible stock and drew a picture of it. The defendant again insisted he did not shoot Courteaux and that Matthews took the wallet from Courteaux's body. The defendant indicated that he (and his mother) had met Courteaux once in a bar and that Courteaux wanted to have sex with him. The defendant refused because he was not gay. That night, Courteaux gave the defendant and his mother a ride home. The defendant indicated that at the boat launch, he was not sure if Matthews had a gun, but knew that Matthews kept the gun in the bag he carried around. The defendant told detectives he did not even know that Courteaux drove a Tundra.² When asked how he used Courteaux's bank card without knowing the pin number, the defendant responded that the pin number was written on the bank card. The defendant admitted that he withdrew money from the bank with Courteaux's bank card and used that money to buy gas and the radiator.

The defendant did not testify at trial.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues the evidence was insufficient to support the conviction for second degree murder. Specifically, the defendant contends the State did not prove he was the shooter.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. 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 La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (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 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144. Where the key issue is the defendant's identity as the perpetrator of the crime, rather than whether or not the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Johnson, 99-2114 (La. App. 1st Cir. 12/18/00), 800 So.2d 886, 888, writ denied, 2001-0197 (La. 12/7/01), 802 So.2d 641. Positive identification by only one witness may be sufficient to support a conviction. State v. Davis, 2001-3033 (La. App. 1st Cir. 6/21/02), 822 So.2d 161, 163. Moreover, it is the factfinder who weighs the respective credibilities of the witnesses, and this court generally will not second-guess those determinations. State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051.

Second degree murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of armed robbery even though he has no intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(2). The parties to crimes are classified as principals and accessories after the fact. La. R.S. 14:23. Principals are all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime. La. R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals. An individual may be convicted as a principal only for those crimes for which he personally has the requisite mental state. State v. Wright, 2001-0322 (La. 12/4/02), 834 So.2d 974, 983, cert. denied, 540 U.S. 833, 124 S.Ct. 82, 157 L.Ed.2d 62 (2003). The State may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. State v. Huey, 2013-1227 (La. App. 1st Cir. 2/18/14), 142 So.3d 27, 30, writ denied, 2014-0535 (La. 10/3/14), 149 So.3d 795, cert. denied, 574 U.S. 1198, 135 S.Ct. 1507, 191 L.Ed.2d 443 (2015). Further, 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. See State v. Smith, 2007-2028 (La. 10/20/09), 23 So.3d 291, 296 (per curiam).

The defendant asserts his identity as the shooter was not proven at trial. The defendant notes that Matthews was the only person who told the police that the defendant shot Courteaux and that, after being on the run for two months, Matthews “pointed the finger” at the defendant as being the shooter and received an 18-year sentence in exchange for his testimony. The defendant asserts that it was Matthews who called Picou and “directed” the repair of Courteaux's truck and “orchestrated all of the events” after he shot Courteaux. The defendant also points out that the black backpack, which contained the spent shell casings, was at Matthews's house. The day after the shooting, the defendant drove Picou to work and worked as a deckhand because he needed the money; these actions, according to the defendant, were not those of a man who had just shot someone and robbed him.

Despite the defendant's assertions of innocence, we find that based on the evidence introduced and adduced at trial, any juror could have rationally concluded that the defendant was either the shooter or a principal to the shooting and armed robbery of Courteaux. On the day of the shooting, the defendant and Courteaux chatted with each other on Facebook. The defendant asked Courteaux for his number. At 2:53 a.m., Courteaux texted, “688-3277 you like to come over[.]”

Following the shooting, the defendant went to an auto store and used Courteaux's stolen debit card to purchase a radiator for Courteaux's damaged Tundra. When the Tundra was repaired, the defendant used the truck as if it were his own, and drove it around town for several days. The defendant also used Courteaux's debit card to withdraw money from Courteaux's bank account. The defendant drove Courteaux's body to a remote site to dump the body. Picou testified that days or maybe a week before the shooting, he saw a gun in the defendant's truck. The gun, according to Picou, was not a pistol, but looked like a “little rifle” that folded up. Picou also testified that the defendant did not tell him (Picou) that he shot Courteaux, but the defendant did tell Picou about his plan to rob Courteaux.

After the shooting, the defendant never called 911 or the police, or sought help; instead he drove around in Courteaux's truck for a few days, then attempted to flee from the police when they found him. Courteaux's gunshot wounds were consistent with the testimony of Matthews. Matthews testified that while Courteaux was hooking up the jumper cables to the defendant's truck, the defendant was behind Courteaux and shot him. Dr. Ellen Conner, a forensic pathologist who performed the autopsy on Courteaux, testified that Courteaux was shot four times. Two of the shots were to the right midback, one shot was to the right back of the neck, and one shot was to the right temple. All bullets exited the body, and none were recovered.

Based on the foregoing, the jury could have rationally concluded that the defendant shot and killed Courteaux. But even if the defendant did not shoot Courteaux, he actively participated in the plan to rob Courteaux. Whether the defendant knew Courteaux was going to be shot and killed is of no moment. The defendant, along with an accomplice, engaged in an armed robbery that resulted in a death and, as such, he was a principal to the felony second degree murder of Courteaux where specific intent to kill or to inflict great bodily harm was not required. See La. R.S. 14:24 & 14:30.1(A)(2); Smith, 23 So.3d at 296; State v. Hills, 2022-0549 (La. App. 1st Cir, 11/4/22), 2022 WL 16707743, *2-4 (unpublished). See also State v. Alexander, 2021-1346 (La. App. 1st Cir. 7/13/22), 344 So.3d 705, 713 (“Whether a defendant actually fires the bullet that strikes and kills a victim is of no consequence and the defendant may be convicted as a principal to the crime.” (quoting State v. Massey, 2011-357 (La. App. 5th Cir. 3/27/12), 91 So.3d 453, 463-64, writ denied, 2012-0991 (La. 9/21/12), 98 So.3d 332)); State v. Clarkson, 2011-933 (La. App. 3rd Cir. 3/7/12), 86 So.3d 804, 814-15, writ denied, 2012-0788 (La. 9/28/12), 98 So.3d 826.

While the defendant indicated he did not shoot Courteaux or participate in the armed robbery, the guilty verdict indicated that the jury did not believe the defendant's theory of innocence. The jury had a rational basis to not accept the defendant's self-serving narrative in his statements to the police. The jury heard evidence that the defendant was present when the victim was shot, attempted to eliminate or hide any evidence of the shooting, and that he never turned himself in, but had to be apprehended by the police. Flight and attempt to avoid apprehension indicate consciousness of guilt, and therefore, are circumstances from which a juror may infer guilt. See State v. Fuller, 418 So.2d 591, 593 (La. 1982).

The factfinder can accept or reject the testimony of any witness. To resolve conflicting testimony relative to factual matters, the factfinder must make credibility determinations and weigh the evidence. State v. Eby, 2017-1456 (La. App. 1st Cir. 4/6/16), 248 So.3d 420, 426, writ denied, 2018-0762 (La. 2/11/19), 263 So.3d 1153. See State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 700-01 (per curiam). The Jackson standard of review does not permit a reviewing court to substitute its own appreciation of the evidence for the factfinder's, assess the credibility of witnesses, or reweigh evidence. State v. McGhee, 2015-2140 (La. 6/29/17), 223 So.3d 1136, 1137 (per curiam); State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam). Thus, in the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the factfinder, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict based on an exculpatory hypothesis of mitigatory circumstances presented to it, and rationally rejected. Eby, 248 So.3d at 426-27.

After a thorough review of the record, we find that the evidence supports the guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the second degree murder of Kirby Courteaux. See Calloway, 1 So.3d at 418.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the defendant argues the trial court erred in admitting evidence of other crimes.

The complained of testimony occurred during the following cross-examination of Matthews:

Q. [defense counsel] Okay. You mentioned that Terance told you he was gonna rob Kirby ; right?

A. Yes.

Q. I want you to tell me exactly what that conversation was. What did he tell you?

A. He was like, well –– he told me that we was going rob –– rob this dude that him and his mom already robbed before –– that they knew him. And, he knew this dude had money. He had a nice truck. So.

Q. You agreed to it?

A. Yeah. He needed me to drive his truck.

The defendant argues this other crimes evidence was not used to prove any of the enumerated factors in La. Code Evid. art. 404(B), but to portray him as a bad person and deflect the jury from all of the evidence indicating the greater culpability of Matthews as the shooter and primary beneficiary of the robbery. The defendant asserts that the jury must have been influenced by the fact that Matthews “was allowed to testify” about other crimes evidence, which made the defendant appear to be the instigator rather than Matthews.

This argument is baseless. The State had nothing to do with Matthews's testimony of other crimes evidence. Defense counsel instructed Matthews to tell him exactly what the conversation between him and the defendant entailed, and Matthews complied. If Matthews was “allowed to testify” about other crimes evidence, it was only because defense counsel adduced such testimony and failed to lodge any objection regarding this testimony. See La. Code Crim. P. art. 841(A); La. Code Evid. art. 103(A)(1). The basis or ground for the objection must be sufficiently brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. A defendant is limited on appeal to the grounds for the objection articulated at trial. State v. Young, 99-1264 (La. App. 1st Cir. 3/31/00), 764 So.2d 998 1005. Accordingly, this argument is not properly before this court for review.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 3

In his third assignment of error, the defendant argues the trial court erred in denying the motion for mistrial. Specifically, the defendant contends a mistrial should have been granted for the prosecutor's reference to other crimes evidence in its closing argument.

The complained of remarks by the prosecutor involve the same testimony discussed in the second assignment of error. The prosecutor stated: “What did Devante Matthews tell you? Terance Dupre knows Kirby Courteaux. Planned to rob him. He had robbed him before.” At the end of the prosecutor's closing argument, defense counsel moved for a mistrial on the grounds the prosecutor referred to other crimes evidence, indicating the defendant had robbed Courteaux before. The prosecutor indicated defense counsel had elicited this information from Matthews.³ The trial court agreed. The trial court denied the motion for mistrial and informed defense counsel that Matthews's testimony had been elicited during his (defense counsel) examination of the witness.

Defense counsel elicited this other crimes evidence from Matthews and never objected to it during his cross-examination. It appears, thus, he cannot complain on appeal over a remark by the prosecutor in closing argument regarding this testimony of Matthews.

Louisiana Code of Criminal Procedure article 775 provides for a mistrial if prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized under La. Code Crim. P. art. 770 or 771. A mistrial under La. Code Crim. P. art. 775 is discretionary and is warranted only when trial error results in substantial prejudice to the defendant depriving him of a reasonable expectation of a fair trial. State v. Faciane, 2017-224 (La. App. 5th Cir. 11/15/17), 233 So.3d 195, 208, writ denied, 2017-2069 (La. 10/8/18), 253 So.3d 797.

A mistrial under the provisions of La. Code Crim. P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Flowers, 2016-0130 (La. App. 1st Cir. 9/19/16), 204 So.3d 271, 284, writ denied, 2016-1871 (La. 9/6/17), 224 So.3d 983. A mistrial is warranted when certain remarks are considered so prejudicial and potentially damaging to the defendant's rights that even a jury admonition could not provide a cure. See State v. Edwards, 97-1797 (La. 7/2/99), 750 So.2d 893, 906, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). Mistrial is a drastic remedy that is authorized only where substantial prejudice will otherwise result to the accused. State v. Anderson, 2000-1737 (La. App. 1st Cir. 3/28/01), 784 So.2d 666, 682, writ denied, 2001-1558 (La. 4/19/02), 813 So.2d 421. A trial court's ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518 (La. 1/17/01), 776 So.2d 443, 454; State v. Johnson, 2006-1235 (La. App. 1st Cir. 12/28/06), 951 So.2d 294, 300.

Closing arguments in criminal cases should be restricted to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom, and to the law applicable to the case. Prosecutors are allowed wide latitude in choosing closing argument tactics. State v. Draughn, 2005-1825 (La. 1/17/07), 950 So.2d 583. 614, cert. denied, 552 U.S. 1012, 128 S.Ct 537, 169 L.Ed.2d 377 (2007). The trial judge has broad discretion in controlling the scope of closing arguments, and we will not reverse a conviction on the basis of improper closing argument unless thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Vansant, 2014-1705 (La. App. 1st Cir. 4/24/15), 170 So.3d 1059, 1063. See State v. Prestridge, 399 So.2d 564, 579-80 (La. 1981).

We find no reason to disturb the trial court's denial of the motion for mistrial. As noted, closing arguments should be restricted to the evidence admitted, which included the complained of testimonial evidence of Matthews, Much credit should be accorded to the good sense and fairmindedness of jurors who have seen the evidence and heard the argument, and have been instructed by the trial judge that arguments of counsel are not evidence. Vansant, 170 So.3d at 1064-65. See State v. Mitchell, 94-2078 (La. 5/21/96), 674 So.2d 250, 258, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996). We find the prosecutor's remarks did not contribute to the verdict nor make it impossible for the defendant to obtain a fair trial. See La. Code Crim. P. art. 775; Vansant, 170 So.3d at 1064.

Based on the foregoing, we find no abuse of discretion in the trial court's denial of the motion for mistrial. Accordingly, this assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

FOOTNOTES

1.   The shooting occurred in Lafourche Parish.

2.   This assertion appears to contradict the defendant's earlier statement in the same interview that Courteaux had driven him home.

3.   The prosecutor mistakenly refers to defense counsel as “Mr. George.”

HOLDRIDGE, J.