State Of Louisiana v. Kenny Wayne Veal

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2019 KA 0323

STATE OF LOUISIANA

VERSUS

KENNY WAYNE VEAL

Judgment Rendered: SEP 2 7 2019

APPEALED FROM THE 32ND JUDICIAL DISTRICT COURT
TERREBONNE PARISH, LOUISIANA
DOCKET NUMBER 702, 235

HONORABLE GEORGE J. LARKE JR., JUDGE

Joe Waitz Attorneys for Appellee
District Attorney State of Louisiana
and

Jay J. Luke
Ellen Daigle Doskey
Assistant District Attorneys
Houma, Louisiana

Prentice L. White Attorney for Defendant/ Appellant
Louisiana Appellate Project Kenny Wayne Veal
Baton Rouge, Louisiana

Kenny Wayne Veal Pro Se
Angola, Louisiana

BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.

McDONALD, J.

The Terrebonne Parish Grand Jury charged the defendant, Kenny Wayne Veal,

with one count of second degree murder ( count I), a violation of La. R. S. 14: 30. 1, and

one count of aggravated battery ( count II), a violation of La. R. S. 14: 34. He pled not

guilty on both counts. He waived his right to a jury trial and, after a bench trial, the

district court found him guilty as charged on both counts. On count I, the district court

sentenced him to life imprisonment at hard labor, without benefit of parole, probation,

or suspension of sentence. On count II, the district court sentenced him to a

consecutive term of 10 years imprisonment at hard labor.

Contending there are no non -frivolous issues to argue on appeal, defense

counsel filed a brief on the defendant's behalf raising no assignments of error and

requesting, review for error under La. C. Cr. P. art. 920( 2). Defense counsel also filed a

motion to withdraw as counsel of record. The defendant then filed a pro se brief,

challenging the sufficiency of the evidence on count I and claiming ineffective

assistance of his trial counsel. For the following reasons, we affirm the convictions and

sentences and grant defense counsel' s motion to withdraw.

FACTS

The defendant lived in Gibson, Louisiana, with his father, Eric. L. Jackson, and his

uncle, Ronald Marshall Scott, the victim of count II. On June 13, 2015, the defendant

became angry with Mr. Scott because he had driven off in a truck that the defendant

wanted to use. When Mr. Scott returned, the defendant approached the passenger side

of the truck, pointed a BB gun at Mr. Scott and threatened to shoot him if he "[ said]

another word."
Mr. Scott spoke, and the defendant shot him in the mouth, injuring his lip

and breaking one of his teeth.

The defendant then ran inside the house. Mr. Scott, who had also gone into the

house to clean his mouth, heard what sounded like the defendant " clicking a gun" behind

him, which made him think the defendant was going to shoot him in the back. Instead,

the defendant left the house, jumped in the truck, and drove away. Frederick Short, who

was visiting a friend across the street from the defendant's house, saw " a big gun" in the
defendant's hand as he left. Steven Stewart, another witness, also saw the defendant

2

with a gun as he walked toward the truck. Steven Stewart described the gun as **'old."

Approximately three to five minutes later, Mr. Scott heard a gunshot.

After leaving the house, the defendant drove the truck down the road and " cut off'

and blocked the truck of the victim of count I, Roosevelt Stewart. The defendant then

approached the driver's side window of Mr. Stewart's truck and shot him in the left side of

his torso. In a recorded statement, the defendant claimed that it was Mr. Stewart who

had a gun and that the gun " went off" as he and Mr. Stewart struggled over it. Mr

Stewart died at the scene.

The defendant then drove back to his house, grabbed some clothes, and fled on

foot to the home of the grandmother of a long- time acquaintance, Joshua Milton Short.

The defendant asked Mr. Short for a ride " to get out of Gibson." Mr. Short did not ask the

defendant " what he did," but noted " of course, Gibson is small." Thereafter, Mr. Short

asked the defendant if he still had the gun, and he answered affirmatively.

Mr. Jackson, the defendant's father, was away from home on the day of the

shootings. When he returned, he discovered his . 357 handgun had been taken from a

locked box under his bed. The handgun was over 50 years old and rusty.

ANDERS BRIEF

Defense counsel has filed a brief containing no assignments of error and a

motion to withdraw. Referring to the procedures outlined in Anders v. California, 386

U. S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 ( 1967) and State v. Jyles, 96- 2669 ( La.

12/ 12/ 97), 704 So. 2d 241 ( per curiam), defense counsel indicates that, after a

conscientious and thorough review of the record, he could find no non -frivolous issues

to raise on appeal.

The procedure outlined in Anders was discussed in State v. Benjamin, 573 So. 2d

528, 529- 31 ( La. App. 4 Cir. 1990), sanctioned by the Louisiana Supreme Court in State

v. Mouton, 95- 0981 ( La. 4/ 28/ 95), 653 So. 2d 1176, 1177 ( per curiam), and expanded

by the Louisiana Supreme Court in Jyles, 704 So. 2d at 242. According to Anders, 386

U. S. at 744, 87 S. Ct. at 1400, ' cif counsel finds his case to be wholly frivolous, after a

conscientious examination of it, he should so advise the court and request permission to

withdraw." To comply with Jyles, appellate counsel must review not only the

3

procedural history of the case and the evidence presented at trial, but must also provide

a detailed and reviewable assessment for both the defendant and the appellate court

of whether the appeal is worth pursuing in the first place." Jy/es, 704 So. 2d at 242

quoting Mouton, 653 So. 2d at 1177). When conducting a review for compliance with

Anders, an appellate court must conduct a full examination of all proceedings to

determine whether the appeal is wholly frivolous. Anders, 386 U. S. at 744, 87 S. Ct. at

1400; State v. Wallace, 15- 0218 ( La. App. 1 Cir. 9/ 18/ 15), 2015 WL 5516186 at * 1.

Herein, defense counsel has complied with all the requirements necessary to file

an Anders brief. Defense counsel reviewed the procedural history of the case, including

the pretrial rulings and trial proceedings. He sets forth that, after a conscientious and

thorough review of the record, he has found no non -frivolous issues to present on

appeal and no ruling of the district court that arguably supports an appeal. Accordingly,

he moves to withdraw.

Defense counsel sent a copy of his brief and motion to withdraw to the

defendant and informed him that he had the right to file a brief on his own behalf. The

defendant then filed a pro se brief. He argues the evidence was insufficient to prove

the bullet recovered from Mr. Stewart was the same as the ammunition Mr. Jackson

gave to the police. He also argues there was insufficient evidence of specific intent,

because there was no evidence he aimed a lethal weapon at Mr. Stewart and fired.

Additionally, he argues trial counsel was ineffective because he allowed the defendant

to be tried by the district judge rather than by a jury.

SUFFICIENCY OF THE EVIDENCE

The defendant's pro se challenge to the sufficiency of the evidence concerns

count I only. 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 also La. C. Cr. P. art. 8216;

State v. Ordodi, 06- 0207 ( La. 11/ 29/ 06), 946 So. 2d 654, 660. The Jackson standard of

4

review, incorporated in La. C. Cr.P. art. 821, is an objective standard for testing the overall

evidence, both direct and circumstantial, for reasonable doubt. State v, Mitchel%16- 0834

La. App. 1 Cir. 9/ 21/ 17), 231 So. 3d 710, 731, writ denied, 17- 1890 ( La. 8/ 31/ 18), 251

So. 3d 410.

When a conviction is based on both direct and circumstantial evidence, the

reviewing court must resolve any conflict in the direct evidence by viewing that evidence

in the light most favorable to the prosecution. When analyzing circumstantial evidence,

La. R. S. 15: 438 provides that, to convict, the factfinder must be satisfied that the overall

evidence excludes every reasonable hypothesis of innocence. The facts then established

by the direct evidence, and inferred from the circumstances established by that evidence,

must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that

the defendant was guilty of every essential element of the crime. State v. Wafts, 14- 0429

La. App. 1 Cir. 11/ 21/ 14), 168 So. 3d 441, 444.

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. La. R. S. 14: 30. 1A( 1). 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.

La. R.S. 14: 10( 1). 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 is an ultimate legal conclusion to be resolved by the

factfinder. 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. 1 Cir. 6/ 23/ 00), 762

So. 2d 747, 751.

As was his right, the defendant did not testify at trial.' See U. S. Const. amend.

V; La. Const. art. I, § 16. The State, however, played a video recording of the

defendant' s June 17, 2015 interview concerning count I. In the video interview, the

defendant claimed he blocked Mr. Stewart's vehicle with his truck, exited his truck, and

5

approached Mr. Stewart to beat him up, because Mr. Stewart was insisting the

defendant sell drugs for him. According to the defendant, Mr. Stewart threatened him

with a gun and was shot during a struggle for the gun. The defendant denied being

armed when he approached Mr. Stewart. He also denied that he ever had control of

Mr. Stewart' s alleged gun. According to the defendant, Mr. Stewart reached out with

his right arm and pointed his gun at the defendant. The defendant was unable to

explain, however, how Mr. Stewart's wrist could turn the weapon in such a manner as

to inflict the fatal wound. Further, the pathologist who performed the autopsy of Mr.

Stewart's body testified at trial that Mr. Stewart was shot from a distance of at least three

feet away.

The verdict returned in this case indicates the trier of fact rejected the

defendant' s version of the incident and credited the evidence that, after shooting Mr.

Scott with a BB gun, the defendant retrieved his father's . 357 caliber handgun and

drove off in the truck he then used to block Mr. Stewart. The location where Mr.

Stewart was shot was only about one minute' s drive from the defendant's house. Mr.

Scott testified he heard a gunshot three to five minutes after the defendant drove off.

Frederick Short and Steven Stewart both testified they saw the defendant carrying a

gun as the defendant walked to the truck he used to cut off Mr. Stewart. Steven

Stewart saw the defendant block Mr. Stewart's truck, get out of his truck, go to the

driver's side of Mr. Stewart's truck, and then heard gunshots. Mr. Stewart then exited

his truck and fell to the ground.

The murder weapon was never recovered. Mr. Jackson provided the police with a

box of ammunition for his missing handgun during their investigation. Louisiana State

Police Crime Laboratory Firearms Unit Supervisor Jeff Goudeau testified the bullet

recovered from Mr. Stewart's body was similar in diameter, caliber, weight, and crimp ring

distance to Mr. Jackson' s ammunition. Without having Mr. Jackson' s gun, Mr. Goudeau

could not say that the bullet recovered from Mr. Stewart's body was fired from that gun.

Any rational trier of fact, viewing the evidence in the light most favorable to the

State, could find that the evidence proved beyond a reasonable doubt, and to the

1 He was questioned, however, about the voluntariness of his June 17, 2015 interview.

0

exclusion of every reasonable hypothesis of innocence, all of the elements of second

degree murder, including that the defendant acted with the specific intent to kill or cause

great bodily harm to Mr. Stewart and that the shooting was not accidental. On appeal,

this court will not assess the credibility of the witnesses or reweigh the evidence to

overturn a factfinder's determination of guilt. 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 on the basis of an exculpatory hypothesis of innocence

presented to, and rationally rejected by, the factfinder. State v. Welch, 12- 1531 ( La. App.

1 Cir. 3/ 22/ 13), 115 So. 3d 490, 500- 01. In accepting a hypothesis of innocence that

was not unreasonably rejected by the factfinder, a court of appeal impinges on a

factfinder's discretion beyond the extent necessary to guarantee the fundamental

protection of due process of law. State v. Mire, 14- 2295 ( La. 1/ 27/ 16), 269 So. 3d 698,

703 ( per curiam). In reviewing the evidence, we cannot say that the district court's

determination was irrational under the facts and circumstances presented to it. This

assignment of error is without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

Regarding his ineffective assistance of counsel claim, the defendant concedes

defense counsel advised him of his right to a jury trial under the federal and state

constitutions, and "[ t] hus, from all appearances defendant Veal was informed of his

rights sufficient enough to make a ' knowingly [ sic] and intelligent' waiver of his right to

trial by jury." He argues, however, defense counsel did not have the defendant's best

interests in mind by filing the motion to waive jury trial, because '' the State did not

possess any substantive evidence that [ negated the defendant' s] accidental shooting

defense." The defendant argues " by counsel filing a motion for a judge trial it was

procedurally inferred he disbelieved his defense of innocence." He concludes that his

counsel' s failure to advocate defendant Veal' s cause, or ... his defense of an accidental

shooting before a jury was prejudicial to his defense."

A claim of ineffective assistance of counsel is generally relegated to post-

conviction proceedings, unless the record permits definitive resolution on appeal. Such

a claim is analyzed under the two- pronged test developed by the United States

Supreme Court in Strickland v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

674 ( 1984). To establish that his trial counsel was ineffective, the defendant must first

show that the counsel' s performance was deficient, which requires a showing that the

counsel made errors so serious that he was not functioning as counsel guaranteed by

the Sixth Amendment. Secondly, the defendant must prove that the deficient

performance prejudiced the defense. This element requires a showing that the errors

were so serious that the defendant was deprived of a fair trial; the defendant must

prove actual prejudice before relief will be granted. It is not sufficient for the defendant

to show that the error had some conceivable effect on the outcome of the proceeding.

Rather, he must show that, but for the counsel' s unprofessional errors, there is a

reasonable probability the outcome of the trial would have been different. Further, if

the defendant makes an inadequate showing on one of the components, it is

unnecessary to address the issues of both counsel' s performance and prejudice to the

defendant. State v. McMillan, 09- 2094 ( La. App. 1 Cir. 7/ 1/ 10), 43 So. 3d 297, 302- 03.

Decisions relating to investigation, preparation, and strategy cannot possibly be

reviewed on appeal. These allegations could only be sufficiently investigated in an

evidentiary hearing in the district court, where the defendant could present evidence

beyond what is contained in the instant record. 2 Accordingly, the defendant's claims

are not subject to appellate review. To the extent the defendant is claiming ineffective

assistance of counsel caused him to waive his right to a jury trial, and that the outcome

of his trial would have been different had he not exercised this right, he may raise this

claim at an evidentiary hearing for post -conviction relief. That is, the defendant must

show that, but for the counsel' s unprofessional errors, there is a reasonable probability

the outcome of the trial would have been different. See State v. Boswell, 12- 1568 ( La.

App. 1 Cir. 4/ 26/ 13), 2013 WL 1791841 at * 5. The fact that a particular strategy is

unsuccessful does not establish ineffective assistance of counsel. See McMillan, 43

So. 3d at 307. This assignment of error is not subject to appellate review.

2 The defendant would have to satisfy the requirements of La. C. Cr.P. art. 924, et seq., to receive such a
hearing. State v. Caminita, 16- 0121 ( La. App. 1 Cir. 9/ 16/ 16), 203 So. 3d 1100, 1107 n. 5.

0

After an independent review of the record, we find no reversible errors under La.

C. Cr. P. art. 920( 2). Furthermore, we find no non -frivolous issues or district court

rulings that would arguably support this appeal. Accordingly, the defendant's

convictions and sentences are affirmed. Defense counsel' s motion to withdraw is

granted.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW
GRANTED.

V