Opinion
2016 KA 1373
04-12-2017
STATE OF LOUISIANA v. SYMOND TAYLOR
Hillar C. Moore, III District Attorney Dylan C. Alge Assistant District Attorney Baton Rouge, LA Counsel for Appellee, State of Louisiana Prentice L. White Baton Rouge, LA Counsel for Defendant/Appellant, Symond Taylor
NOT DESIGNATED FOR PUBLICATION Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, State of Louisiana
Trial Court Number 10-14-0728
Honorable Beau Higginbotham, Judge Presiding
Hillar C. Moore, III
District Attorney
Dylan C. Alge
Assistant District Attorney
Baton Rouge, LA Counsel for Appellee,
State of Louisiana Prentice L. White
Baton Rouge, LA Counsel for Defendant/Appellant,
Symond Taylor BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. WHIPPLE, C.J.
The defendant, Symond Taylor, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1, and pled not guilty. After a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant's motion for new trial. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, assigning error to the sufficiency of the evidence. For the following reasons, we affirm the defendant's conviction and sentence.
STATEMENT OF FACTS
On the morning of Saturday, October 20, 2007, Joyce Taylor arrived at 6915 Blue Grass Street, the Baton Rouge residence of her brother, Wilbert Livous (the victim), and used her key to enter through the carport door. After opening the door, she noticed a strong smell and then saw the victim's body on the kitchen floor. She immediately drove back home, and she and her husband called the police and her siblings. Officers of the Baton Rouge Police Department (BRPD) responded to the call and went to the residence, where they took photographs, dusted for fingerprints, and collected blood samples and other evidence. Just inside the threshold of the carport entry/exit, Sergeant Mindy Stewart located a bullet projectile on the floor, and a nine-millimeter bullet cartridge a few feet away. The victim's body was lying in front of the stove in an advanced state of decomposition, and blood was on the kitchen floor and spattered on the counter, refrigerator, and curtains. A second bullet projectile was located on the floor in between the victim's feet, and a blanket with an apparent bullet hole was draped over a chair located just outside of the kitchen. The house was in disarray, and the police photographed areas that had been rummaged through in the house.
The victim was shot in the head and died from brain trauma, with the bullet entering the oral cavity, going through his nasal bone and brain cavity, and exiting in the right portion of the top of his head. The toxicology report showed that the victim's gastric fluid was positive for benzoylecgonine, a metabolite of cocaine.
The living room, dining room, and bedroom had been rummaged through, as evidenced by overturned and removed sofa cushions, an opened briefcase, opened cabinet doors, opened and removed cabinet and dresser drawers, and a displaced mattress.
Taylor went to the victim's residence on that Saturday morning after he failed to answer her phone calls for several days. Before discovering his body that morning, the last time Taylor had seen her brother alive was the previous weekend, when she gave him three hundred dollars to supplement the fifteen hundred dollars that he had saved to purchase a vehicle.
On November 5, 2007, less than two months after the victim's body was discovered, the defendant confessed to Dzanduria Singleton, a frequent drug user who lived in the area, that he killed the victim. That day, Singleton gave a recorded police statement relaying the defendant's confession and identified the defendant in a photographic lineup. On July 25, 2008, Tony Jung, an FBI agent stationed in Baton Rouge, interviewed the defendant. After being advised of his Miranda rights, the defendant admitted that he carried a nine-millimeter Ruger with a beam (laser) during drug transactions. On July 29, 2008, Agent Jung interviewed Clarence Taylor, the defendant's father, and the next day, July 30, 2008, Mr. Taylor brought a nine-millimeter pistol to Agent Jung's office that the defendant had left at his residence.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966).
The gun was reported stolen by the registered owner, Shakesia Bailey, the girlfriend of John Scruggs, a known drug trafficker who was the defendant's supplier. In an unrecorded interview, the defendant informed Agent Jung that he received the gun from Scruggs and admitted to carrying the gun during drug transactions with FBI confidential informants prior to February of 2008.
At trial, Charles Watson, Jr., an expert in firearms examination, testified that subsequent testing at the Louisiana State Police Crime Lab confirmed that the two bullet projectiles in evidence had been fired from the nine-millimeter pistol in evidence.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues that even when viewed in the light most favorable to the prosecution, the evidence was insufficient to prove that he shot the victim. The defendant surmises that "[i]t is possible" that Singleton, whom he contends was known to lie and steal, was able to describe the handgun used to commit the murder because she was "intimately involved" with this incident. The defendant claims that the murder weapon was in the possession of a number of people, including a female who was regularly seen with Singleton. The defendant maintains that the victim was involved in either using or selling illegal drugs and that Singleton was always searching for crack cocaine or money to purchase it, noting testimony that the victim had over fifteen hundred dollars at the time of the offense and that his residence had been ransacked. The defendant contends that Singleton's testimony was self-serving, arguing that she pointed the finger at the defendant because she did not want the police to consider her a suspect. The defendant further argues that there was no physical evidence to link him to the victim's death because he was not involved, noting that he was not in possession of the firearm used in the murder and that there were no fingerprints linking the weapon to him. Finally, the defendant contends that the instant case went dormant for seven years, and that there was no new evidence to cause the case to resurface.
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 or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime and the identity of the perpetrator of that crime 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. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654, 660; State v. Johnson, 461 So. 2d 673, 674 (La. App. 1st Cir. 1984). The Jackson standard of review, incorporated in La. C. Cr. P. art. 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the fact finder must be satisfied that 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.
Louisiana Revised Statutes 14:30.1(A)(1) provides in pertinent part that second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. The State bears the burden of proving those elements, along with the burden to prove the identity of the defendant as the perpetrator. State v. Draughn, 2005-1825 (La. 1/17/07), 950 So. 2d 583, 593, cert. denied, 552 U.S. 1012, 128 S. Ct. 537, 169 L. Ed. 2d 377 (2007). Specific criminal 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. LSA-R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So. 2d 1126, 1127 (La. 1982); State v. Delco, 2006-0504 (La. App. 1st Cir. 9/15/06), 943 So. 2d 1143, 1146, writ denied, 2006-2636 (La. 8/15/07), 961 So. 2d 1160. 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. Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139 (La. 11/29/06), 943 So. 2d 362, 369, cert. denied, 552 U.S. 905, 128 S. Ct. 239, 169 L. Ed. 2d 179 (2007).
Singleton, who admitted that she was a drug (crack cocaine) user in 2007, testified that she knew the defendant as "Mon" and had purchased drugs from him and other drug dealers in the past. When she saw the defendant around 6:00 a.m., on November 5, 2007, he was at the home of her cousin, Erica Singleton, located at 5905 Ford Street, about seven or eight blocks away from the victim's residence. Singleton described her cousin's house as a "crack house" used as a central location for the purchasing and use of drugs. Singleton testified that she was afraid of the defendant because she once saw him strike someone, but when he asked her to take a ride with him, she got in the car because she wanted to find Tammy Harden, the owner of the vehicle that the defendant was driving. Singleton further admitted that she obtained drugs from the defendant before getting out of the vehicle. However, as it was still early, Singleton had not used any drugs when she got in the vehicle with the defendant. As the defendant was driving, he told her that he killed somebody. The defendant then brandished a gun, which he retrieved from the floorboard on the driver's side of the vehicle. Singleton pulled out the screwdriver that she routinely carried for protection. When she asked who he was referring to, the defendant stated, "I killed that man Wilbert ... the man be at Erica house, Mr. Wilbert." Singleton did not know the victim well, but was familiar with him because she saw him at her cousin's house a few times.
Singleton further recalled her cousin, before the murder, telling the defendant that the victim had a significant amount of cash. She was also present when the victim mentioned that he had cash in his home.
Later that day when she was taken into custody for questioning, Singleton, who had used drugs by that time, relayed the defendant's confession to the police in a recorded interview. During the 2007 recorded interview and again at trial, Singleton specifically described the firearm brandished by the defendant that day as a silver or gray automatic gun with a black handle, further noting that it had a circle and something written on it.
Singleton denied using drugs at the time of the trial in June of 2016, testifying that she had been drug free for eighteen months. Singleton identified the gun in evidence, a firearm with a gray top and black bottom, as the one she saw in the defendant's vehicle on November 5, 2007, noting that it had writing on the side as she recalled. She testified that she was certain that the gun in evidence was the gun she saw in the defendant's vehicle. When asked why she described the gun to the police as a cowboy gun when she was re-interviewed in 2014, Singleton noted that she responded positively when the police asked if the gun looked like a cowboy gun. She further noted that she was under the influence of drugs at the time and did not want to talk to the police. Singleton admitted to having previous convictions for simple burglary and unauthorized use of a motor vehicle, but specifically denied killing the victim or burglarizing his house.
BRPD officers Sergeant Matt Johnson and Detective Robert Gann (the lead detective assigned to the case) responded to the scene, canvassed the area, and spoke to family members and potential witnesses. Sergeant Johnson was among the officers who conducted the photographic lineup and interview of Singleton on November 5, 2007. He noted that she had been placed under arrest for an unspecified offense, at which time she informed the police that she had information about a homicide that occurred a couple of weeks prior to her arrest. The police determined the identity of "Mon," the defendant, and the defendant became a person of interest in the investigation of the instant homicide. However, he was not arrested due to what the police perceived was a lack of probable cause. Detective Gann transferred out of the division and the case became a cold case file until October 3, 2008, when Agent Jung, who was conducting an overlapping federal narcotics investigation at the time, forwarded the firearm he had collected from Mr. Taylor to BRPD. In an attempt to confirm that it was used in the instant murder, Sergeant Johnson submitted the firearm for testing at the Louisiana State Police Crime Lab, but transferred out of the division without receiving or being aware of any results, and the case again went cold, as the limited number of detectives investigated other homicides in the area.
On January 19, 2014, Sergeant Scott Blake, of the BRPD homicide division, selected the file for the instant case among other cold cases and reviewed it to determine if DNA evidence could possibly be obtained. As noted by the police, there had been drastic technological advances since the time that the evidence in this case was collected in 2007. Sergeant Blake submitted some of the evidentiary items for DNA analysis, including the blanket seized from the scene and the firearm recovered from the FBI, and had the fingerprint evidence re-examined. However, the evidence was not sufficient to produce any additional information. After Sergeant Blake interviewed Singleton and the defendant's father, and reviewed the November 13, 2008 crime lab report regarding the comparison of the Ruger nine-millimeter to the projectiles from the scene, the defendant was finally arrested for the instant offense.
Agent Jung testified that when Mr. Taylor brought the firearm to his office, he apologized for initially denying that the defendant left the gun in his possession and stated that the defendant was aware that he was turning the gun over to the police, was angry, and did not want "anything to do with" his father again.
In contrast to Agent Jung's testimony, Mr. Taylor testified that he turned over the gun to the FBI at the defendant's request, contending that he spoke to the defendant after being questioned by the FBI. He stated that the defendant had informed him that he bought the gun "off the streets" and was not aware of any problems with the gun. Mr. Taylor further testified that he informed the FBI as follows, "I want to turn this gun in, this ain't mine, I don't want nothing to do with it. This is his." Mr. Taylor noted that he was being investigated at the time, had been under FBI surveillance, and had been swabbed. Mr. Taylor also testified that he knew Singleton, that she was a drug addict, and that she was a known liar who often begged for money.
When a case involves circumstantial evidence and the trier of fact reasonably rejects a hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So. 2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So. 2d 126 (La. 1987). We find no such hypothesis exists in the instant case. The jury was well aware of the fact that Singleton was on drugs at the time of the offense. The verdict rendered in this case indicates that the jury accepted the testimony presented by the State and rejected the hypothesis of innocence presented by the defendant that implicated Singleton or someone other than the defendant as the shooter in this case.
Singleton testified that the defendant confessed to her to killing the victim around two weeks after his body was discovered. The victim's sister confirmed that the victim had a significant amount of cash in his possession just before she discovered him deceased in his home. Singleton, likewise, was present when the victim discussed having money and was present when this information was relayed to the defendant. Her description of the gun, which she indicated was brandished by the defendant at the time of his confession, was consistent with the gun in evidence that had been turned over to the police by the defendant's father after the defendant left it in his father's possession. Further, crime lab testing and expert witness testimony confirmed that the gun in evidence was the murder weapon.
In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So. 2d at 662. 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. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam). We are convinced that any rational trier of fact, viewing the evidence presented at trial in the light most favorable to the State, could find the evidence 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. See State v. Mire, 2014-2295 (La. 1/27/16), ___ So. 3d ___, ___, 2016 WL 314814 (per curiam).
Accordingly, the assignment of error is without merit.
PATENT ERROR
This court routinely reviews criminal appeals for patent error. Under LSA-C.Cr.P. art. 920(2), we are limited in our patent error 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 in these proceedings, we have found no reversible patent errors.
However, we have discovered that the trial court sentenced the defendant immediately after denying his motion for new trial. Thus, the trial court did not observe the required twenty-four hour delay between the denial of the posttrial motion and imposition of sentence. See LSA-C.Cr.P. art. 873; State v. Dixon, 620 So. 2d 904, 912-13 (La. App. 1st Cir. 1993).
We note that after the motion for new trial was denied, before the sentence was imposed, the defendant's attorney prompted the trial court to impose the sentence before ruling on the motion for an appeal. Thus, arguably, the defendant implicitly waived the waiting period. See State v. Hilton, 99-1239 (La. App. 1st Cir. 3/31/00), 764 So. 2d 1027, 1038, writ denied, 2000-0958 (La. 3/9/01), 768 So. 2d 113; State v. Lindsey, 583 So. 2d 1200, 1206 (La. App. 1st Cir. 1991), writ denied, 590 So. 2d 588 (La. 1992). Moreover, in this case, the trial court imposed the mandatory life sentence, and there was no sentencing discretion involved. See LSA-R.S. 14:30.1(B).
In State v. Augustine, 555 So. 2d 1331, 1333-34 (La. 1990), the Louisiana Supreme Court held that a trial court's failure to observe the twenty-four hour delay is not harmless error if the defendant assigns the failure as error, challenges the sentence on appeal, or demonstrates prejudice. However, in the event the issue is not assigned as error or the sentence is not challenged, the error is not reversible unless the defendant can show he was prejudiced. Augustine, 555 So. 2d at 1334.
In the instant case, the defendant did not assign error to the failure to impose sentence at least twenty-four hours after a ruling on the posttrial motions; nor did he challenge his sentence or demonstrate any prejudice. Considering the foregoing, even assuming the defendant had not implicitly waived the delay, any error in the trial court's failure to observe the twenty-four hour delay is harmless beyond a reasonable doubt and does not require a remand for resentencing. State v. Felder, 2000-2887 (La. App. 1st Cir. 9/28/01), 809 So. 2d 360, 372, writ denied, 2001-3027 (La. 10/25/02), 827 So. 2d 1173; State v. Perez, 95-2445 (La. App. 1st Cir. 12/20/96), 686 So. 2d 114, 118, writ denied, 97-0280 (La. 6/20/97), 695 So. 2d 1351.
CONVICTION AND SENTENCE AFFIRMED.