STATE v. SOUTHALL (2023)

The defendant, Kevon Southall, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. After a trial by jury, he was found guilty as charged. He filed a motion for post-verdict judgment of acquittal and a motion for new trial. The post-trial motions were denied. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. He now appeals, assigning error to the trial court's denial of his post-trial motions and to the sufficiency of the evidence. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On the night of October 15, 2018, Lieutenant Bradley Trosclair, Lieutenant Varick Taylor, Jr. and other officers with the Thibodaux Police Department reported to the scene of a shooting on Dove Lane in Thibodaux. As the lieutenants testified at the trial, the body of one of the shooting victims, Alex Morena, was lying on the ground outside of the driver's side of a blue truck. The first officer to arrive at the scene attempted to provide medical aid to Alex but determined that he was deceased. Cash was scattered on the ground and a bag of marijuana, which weighed just over a pound, was located on the front passenger's side of the truck. Loose marijuana was scattered throughout the truck's seating area and on the roadway.

The officers took photographs of damages caused by fired bullets striking the truck. After observing a bullet defect on the exterior of the center console, Lieutenant Trosclair unbolted the console and retrieved a bullet that was lodged underneath it. Additionally, several bullet casings were located on the ground and inside of the truck, including three .40 caliber and two 9-millimeter caliber shell casings. The casings were photographed, collected, and sent to the Louisiana State Police Crime Lab for testing.

While Lieutenant Trosclair collected the evidence, Lieutenant Taylor conducted the majority of the interviews, including an interview with the other shooting victim, Kyle Duet. Kyle also testified at the trial. Kyle stated that Alex was his cousin and friend, and that on the morning of the shooting, he and Alex “[h]ung out” for a little while, and then he went to sleep because he worked the night before. Kyle testified that Alex later woke him up and asked him to ride to Thibodaux to “make a play,” which Kyle stated meant a drug deal. Kyle ultimately agreed to ride with Alex to Thibodaux, and they rode in Alex's blue, four-door Ford F-150. Alex drove while Kyle sat on the passenger's side of the truck. Kyle observed “a lot” of weed ¹ but no weapons in the truck at the time.

When they arrived at Dove Lane, they parked in a parking lot and Alex texted “the guy” to let him know that they were there. A man named Tyrick Hills ² then arrived, entered the back of the truck on the driver's side, and asked to see the weed. A minute after Tyrick examined the weed, two gunmen wearing masks and hoodies walked up to the truck, one on each side, and began tapping on the windows with their pistols. According to Kyle, the gunman on the passenger's side of the truck stated, “It's a stick up, bitch.” The other gunman, who was on the driver's side, reached into the truck from the back door and hit Kyle in the back of the head with his pistol. Alex attempted to put the truck in reverse, just as the gunmen began firing their pistols. Kyle confirmed that he and Alex were struck by the gunfire. Kyle further testified that Tyrick took Alex's phone and wallet, while the gunman on the driver's side took the cash that Alex had on his person. Kyle ran from the scene, eventually found a phone, and called the police. Kyle was unable to identify the gunmen.

Lieutenant Taylor interviewed Tyrick the day after the shooting, October 16, 2018, and again on October 19, 2018. During the interviews, Tyrick identified the defendant as the gunman who approached the driver's side of the truck and Tandell Azema as the gunman who approached the passenger's side of the truck. Tyrick said that he, the defendant, Ron Brown, and Saharold Holmes met up at his friend Matthew Holmes's house prior to the shooting, where they made plans to rob Alex.³ During the interviews, Tyrick said that while Ron and Bart (Saharold) acted as lookouts, the defendant and Pete (Tandell) approached the truck on cue, when Tyrick opened the door. Tyrick further stated that the gunfire began when Alex put the truck in gear, with the defendant being the shooter on the driver's side. Tyrick said he took Alex's phone and a bag of weed but tossed both.

After conducting interviews, Lieutenant Taylor obtained a warrant for the defendant's arrest. As he was unable to locate the defendant, Lieutenant Taylor contacted U.S. Marshalls for assistance. About six months later, in March of 2019, officers of the Hattiesburg Police Department arrested the defendant on the warrant while conducting a traffic stop of a vehicle in which the defendant was a passenger. Two firearms were seized from the vehicle. One of the firearms, a 9-millimeter Glock, the type used in the instant offense, was transported to the Louisiana State Police Crime Lab for testing.

At trial, Tyrick recanted his pretrial statements implicating the defendant, contending he lied about the defendant's involvement to protect his “best friend,” Saharold, who was deceased at the time of the trial. The defendant did not testify at trial.

SUFFICIENCY OF THE EVIDENCE

In a combined argument addressing all three assignments of error, the defendant challenges the trial court's rulings on his post-trial motions ⁴ and the sufficiency of the evidence to support the verdict. He states that the sole evidence implicating him in the shooting was the testimony of Tyrick and Matthew. The defendant notes that Tyrick recanted his prior statements, said Saharold was the shooter, admitted he lied to protect Saharold, said Saharold threatened to kill his brother, and said he saw Saharold sell a gun to the defendant after the shooting. The defendant maintains that since Saharold was deceased at the time of the trial, Tyrick was no longer afraid he would retaliate. The defendant further contends that Matthew admitted that the photograph shown to him at trial did not look like the gun he saw in the defendant's waistband before the shooting. The defendant argues that there was no corroborating testimonial or physical evidence to support that he was the shooter or even present during the “drug deal gone awry.” Thus, the defendant contends that the evidence was insufficient and that the trial court erred in denying his motions for post-verdict judgment of acquittal and for new trial.

The State argues that while Tyrick was a hostile witness at trial, his pretrial statements alone were sufficient to prove the defendant shot and killed Alex. The State further notes that Tyrick's statements, though sufficient alone, were corroborated by Matthew's testimony and the fact that the murder weapon, a two-toned Glock pistol, was found in the defendant's possession when he was arrested in Mississippi after the instant shooting. Finally, the State notes that it also argued to the jury, as an alternate theory, that the defendant was a principal to the armed robbery of Alex and, thus, could be convicted under the felony murder doctrine.

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 sufficiency of the evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime and the defendant's identity as the perpetrator of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Williams, 2019-0077 (La. App. 1st Cir. 5/31/19), 2019 WL 2315340, *2, writ denied, 2019-01060 (La. 10/1/19), 280 So.3d 158. The Jackson standard of review, incorporated in Article 821(B), 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 fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Dyson, 2016-1571 (La. App. 1st Cir. 6/2/17), 222 So.3d 220, 228, writ denied, 2017-1399 (La. 6/15/18), 257 So.3d 685.

Under La. R.S. 14:30.I, second degree murder is defined as the killing of a human being when the offender: 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, including but not limited to armed robbery,⁵ even though he has no intent to kill or to inflict great bodily harm. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Coleman, 2017-1045 (La. App. 1st Cir. 4/13/18), 249 So.3d 872, 877, writ denied, 2018-0830 (La. 2/18/19), 263 So.3d 1155. Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Henderson, 99-1945 (La. App. 1st Cir. 6/23/00), 762 So.2d 747, 751, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Currie, 2020-0467 (La. App. 1st Cir. 2/22/21), 321 So.3d 978, 983.

The State bears the burden of proving the elements of the offense, along with the burden to prove the identity of the defendant as the perpetrator. Coleman, 249 So.3d at 877. 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. A positive identification by only one witness is sufficient to support a conviction. State v. Weary, 2003-3067 (La. 4/24/06), 931 So.2d 297, 311. cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006).

Under La. R.S. 14:24, “[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.” An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Bridgewater, 2000-1529 (La. 1/15/02), 823 So.2d 877, 890, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). Under the law of principals, all persons involved in the commission of a crime are equally culpable. State v. Posey, 2008-0746 (La. App. 1st Cir. 9/26/08), 2008 WL 4376811, *3.

A person may be convicted as a principal to second degree murder even if he has not personally fired the fatal shot. State v. Clark, 2020-167 (La. App. 5th Cir. 11/18/20), 306 So.3d 619, 631, writ denied, 2020-01459 (La. 2/17/21), 310 So.3d 1150. See also State v. Massey, 2011-357 (La. App. 5th Cir. 3/27/12), 91 So.3d 453, 463-64, writ denied sub nom. State ex rel. Massey v. State of Louisiana, 2012-0991 (La. 9/21/12), 98 So.3d 332 (“Whether the 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.”). Further, one need not possess specific intent to kill or inflict great bodily harm to be a principal to a second degree felony murder. Rather, under the felony murder doctrine, the State need only prove the commission of the underlying felony or the attempt thereof. State v. Turner, 2013-836 (La. App. 5th Cir. 3/26/14), 138 So.3d 740, 747, writ denied, 2014-0887 (La. 12/8/14), 153 So.3d 438.

Dr. Ellen Connor, a former forensic pathologist at the Jefferson Parish Coroner's Office, performed the autopsy in this case and testified that Alex died of multiple gunshot wounds. Alex sustained four gunshot wounds to the head, neck, torso, and extremities. Dr. Connor further testified that one of the gunshot wounds, caused by a bullet entering the victim's underarm and exiting his right chest, was a fatal contact wound. Specifically, the wound was surrounded by soot deposited when a gun is fired while touching the victim's skin or while within approximately an inch of the victim's skin.

Matthew testified that at the time of the incident in question, he and Tyrick sold drugs and smoked marijuana together. He noted that he had only met Alex once, prior to the incident. Matthew said that on the day of the incident, Tyrick came to his house with four other individuals. Matthew was not familiar with the other individuals, but he identified the defendant as one of them. At the time of the visit, Matthew was in his bedroom recuperating from a bike injury. Matthew testified that Tyrick said that he and the other individuals were “going to jack” Alex “because he came up short” on money he owed. Matthew testified the word “jack” indicated that they were going to rob or steal from Alex. Tyrick told Matthew that they planned to meet Alex on Dove Lane. Matthew confirmed that the defendant was present for the conversation and testified that the defendant had “a smoke gray slide with a black stock, Glock” tucked under his waistband. Matthew testified that he was able to see the handle, noted the handle was black, and reiterated that the slide was “[s]moke gray.” Matthew admitted that he lied to the police prior to trial when he told Lieutenant Taylor that he did not know Tyrick, explaining that he was nervous at the time of the interview.

On cross-examination, Matthew was shown a photograph of the two-toned gun seized from the defendant when he was arrested, a Glock with a black handle and exterior but a tan or beige slide. Matthew responded, “No, sir” to each question when asked if the photographed gun was a “stock Glock” and if it was specifically the gun that he described as being tucked under the defendant's waistband at his house. On redirect examination, Matthew clarified that he considered a “stock Glock” to be an “all black” gun, including the slide and handle. After being allowed to review his police statement, Matthew confirmed that in his pretrial statement, consistent with his trial testimony, he described the defendant's gun as gray and black, having a smoke gray slide and a black handle.⁶

Tyrick confirmed that he was at Matthew's house on the day of the shooting. He stated that Matthew was his “middleman” who helped him get and sell drugs. When asked who was with him at Matthew's house on the date in question, he stated, “It was me, I don't remember.” Tyrick confirmed that while he was at Matthew's house, he arranged to buy some weed from Alex, but denied talking about robbing him. When asked about his statement to Lieutenant Taylor, Tyrick testified, “I said that, I set it up.” Tyrick testified that he made the statement “[b]ecause [Lieutenant Taylor] said he was going to help me out if I go [sic] tell him anything. [⁷ ] You heard me.” Tyrick further testified that he could not recall his testimony presented during his own trial regarding this matter. After reviewing the transcript of his testimony, he confirmed previously testifying that the defendant, Tandell; Mathew's cousin, D.J.; and Mathew's brother were with him at Matthew's house on the day of the shooting. Tyrick then denied being friends with the defendant, stating, “I don't know the dude like that.”

In describing the incident at issue in the instant trial, Tyrick testified that he “was about to buy some weed” when “two people ran up and shot.” He confirmed that he was in the truck sitting behind Alex when the shooters approached. He further confirmed that he stole Alex's wallet and phone. While Tyrick denied taking any marijuana, he confirmed that he told Lieutenant Taylor that he took some weed and that he gave two bags of it to the defendant.

Tyrick originally testified that he did not know the shooters or know that they were going to approach the truck, but admitted that he previously told Lieutenant Taylor that the defendant and Tandell were the shooters. Tyrick further admitted to telling Lieutenant Taylor that he opened the truck door to give the shooters the cue to approach, and the defendant approached on the driver's side of the truck. When confronted with another portion of his interview, Tyrick admitted to stating that the defendant had two guns. He explained that his pretrial statement was not true, stating, “[b]ecause I just lied on [the defendant] just so I don't get my best friend [Saharold] in jail. But now, he dead now.”

Tyrick further testified that Saharold was the actual killer. Tyrick stated that he waited until after Saharold died to disclose that he was the shooter because Saharold knew his whole family and threatened to kill his brother if he told anyone. Tyrick admitted to specifically telling Lieutenant Taylor, during a second interview, that Saharold was not involved in this incident. Further, Tyrick admitted that he was afraid to make a statement against the defendant. When asked if he was scared of the defendant, Tyrick testified, “[y]es, because he ain't never did anything. I lied on him.”

Michelle Olinde, a firearms examiner and crime scene investigator with the Louisiana State Police Crime Lab, performed the verification and technical review of the evidence testing in this case. She testified that the 9-millimeter cartridge cases and projectile in evidence were determined to have been fired from the 9-millimeter Luger caliber Glock semi-automatic pistol recovered from the vehicle the defendant was a passenger in when the defendant was arrested in Mississippi. Ms. Olinde further confirmed that the serial number of the gun from which the cartridges were fired matched the serial number of the gun recovered during the defendant's arrest.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Dorsey, 2010-0216 (La. 9/7/11), 74 So.3d 603, 634, cert. denied, 566 U.S. 930, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012). Further, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. Accordingly, on appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Lavy, 2013-1025 (La. App. 1st Cir. 3/11/14), 142 So.3d 1000, 1006, writ denied, 2014-0644 (La. 10/31/14), 152 So.3d 150.

The verdict rendered in this case indicates that the jury rejected the defendant's theory that he was not one of the shooters or a participant in the instant offense. In reviewing the evidence presented at trial, we cannot say that the jury's determination was irrational under the facts and circumstances presented. See Ordodi, 946 So.2d at 662. Matthew testified that the defendant was present when the robbery was being planned and armed with the type of gun used in the subsequent shooting. While Tyrick recanted his pretrial statements at the time of the trial, prior to trial, he positively identified the defendant as the shooter who approached the vehicle on the driver's side. Tyrick readily admitted to implicating the defendant prior to trial and the jury was free to reject any conflicting testimony by Tyrick. Moreover, Tyrick's statements were corroborated by Matthew's testimony and by the fact that the defendant, at the time of his arrest, was in possession of one of the firearms used in the shooting. Finally, as the defendant's whereabouts were initially unknown, attempts to find him were unsuccessful, and he was ultimately arrested on the Louisiana warrant in another state, the jury could have reasonably concluded that the defendant fled after the offense. Flight and attempt to avoid apprehension indicate consciousness of guilt, and therefore, are circumstances from which a juror may infer guilt. State v. Earl, 2015-1383 (La. App. 1st Cir. 6/6/16), 2016 WL 3146011, *8, writ denied, 2016-1329 (La. 12/5/16), 213 So.3d 393.

We find that based on the evidence presented at trial, the jury could have reasonably found the defendant was guilty as a principal to second degree murder. See La. R.S. 14:30.1(A)(1). Further, we find that based on the evidence, the jury could have rationally found that the defendant was engaged in the perpetration or attempted perpetration of an armed robbery when Alex was killed and, thus, guilty of second degree murder, in violation of La. R.S. 14:30.1(A)(2). An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 703 (per curiam). After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence in the light most favorable to the State, could find that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant's identity as the perpetrator of the offense. Furthermore, we find no error in the trial court's denial of the defendant's motion for post-verdict judgment of acquittal. The assignments of error lack merit.

CONVICTION AND SENTENCE AFFIRMED.

FOOTNOTES

1.   At trial, the word “weed” was frequently used to refer to marijuana.

2.   Tyrick was sometimes referred to at trial as Rico.

3.   While being interviewed, Tyrick sometimes referred to the other shooter, Tandell, as “Pete” and to Saharold as “Bart” and “BK.” It is unclear as to whether or not Tandell was present when the group met up at Matthew's residence before the shooting.

4.   In his motion for new trial, the defendant argued that a new trial was warranted because the jury was polled orally rather than in writing. However, on appeal, the defendant argued that the trial court should have granted a new trial because the evidence was insufficient to convict. Sufficiency is properly raised by a motion for post-verdict judgment of acquittal, not by a motion for new trial. State v. Brown, 2009-0067 (La. App. 1st Cir. 7/31/09) 2009 WL 2356719 *2 n. 2. Furthermore, any argument regarding the oral polling of the jurors was abandoned. See Rule 2-12.4 of the Uniform Rules, Courts of Appeal.

5.   Herein, the trial court instructed the jury as to the specific intent and the felony murder theories of second degree murder under La. R.S. 14:30.1(A). The trial court stated that in order to find the defendant guilty under the felony murder theory, the jury had to find that the defendant was engaged in the perpetration or attempted perpetration of an armed robbery at the time of the incident. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64(A).

6.   On re-cross examination, when confronted with the fact that the gun in evidence had a tan (as opposed to “smoke gray”) slide, Matthew reiterated that he was lying in bed with stitches in his right eye when he saw the gun tucked in the defendant's waistband.

7.   At trial, Lieutenant Taylor testified that Tyrick's statement was freely and voluntarily given, specifically denying making any promises, statements that he would help him, or any threats to Tyrick.

HESTER, J.