State Of Louisiana v. Patricia M. Currie

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

N011W11 NIZ 61-9

STATE OF LOUISIANA

VERSUS

PATRICIA M. CURRIE

JUDGMENT RENDERED: FEB 2 2 2021

Appealed from
The Twenty -Second Judicial District Court
In and for the Parish of St. Tammany • State of Louisiana
Docket Number 582421 • Division H

The Honorable Alan A. Zaunbrecher, Judge Presiding

Jane L. Beebe ATTORNEY FOR APPELLANT
Louisiana Appellate Project DEFENDANT— Patricia M. Currie
Addis, Louisiana

Warren L. Montgomery ATTORNEYS FOR APPELLEE
District Attorney State of Louisiana
Matthew Caplan
Assistant District Attorney
Covington, Louisiana

BEFORE: WHIPPLE, C. J., WELCH, AND CHUTZ, JJ.

WELCH, J.

The State of Louisiana charged the defendant, Patricia M. Currie, by bill of

information with attempted second degree murder, a violation of La. R. S. 14: 27

and La. R. S. 14: 30. 1.' The defendant pled not guilty. Following a jury trial, the

jury found the defendant guilty as charged by unanimous verdict. The defendant

moved for a new trial, which the district court denied. The district court sentenced

the defendant to twenty-two years imprisonment at hard labor without the benefit

of parole, probation, or suspension of sentence. The defendant moved for

reconsideration of sentence, which the district court denied. The defendant now

appeals, challenging the evidence as insufficient and her sentence as excessive.

For the following reasons, we affirm the defendant' s conviction and sentence.

FACTS

The victim, Keith Couture, a criminal defense attorney in Madisonville,

Louisiana, represented the defendant in a bankruptcy matter involving her

condominium and debts owed to a homeowner' s association in 2012. Under the

bankruptcy, the defendant was obligated to a five-year repayment plan.

In 2016, the defendant was scheduled to receive approximately $ 1, 000. 00

pursuant to a settlement in a personal injury lawsuit she had filed against the

homeowner' s association. Mr. Couture prepared a motion in the bankruptcy matter

to allow the funds to go to the defendant for car repairs and dental expenses, rather

than to her creditors in the bankruptcy matter. The main creditor in the bankruptcy

matter was the homeowner' s association.

Following a hearing, the bankruptcy court refused to allow the defendant to

use the settlement funds for car repairs and dental expenses. Mr. Couture was not

present at the hearing due to his presence in another court, but he moved the court to

1 The State entered a nolle prosequi to an additional charge of possession of a Schedule IV
controlled dangerous substance, a violation of La. R.S. 40: 969( C), after the defendant produced a
prescription for the substance.

4

reconsider its ruling. Subsequently, Mr. Couture and the defendant disagreed about

what to file in connection with the memorandum in support of the motion for

reconsideration. After Mr. Couture refused to file what he considered irrelevant

documentation, the defendant filed a supplemental, pro se memorandum, which

included the documentation. Additionally, the defendant refused to settle with the

homeowner' s association because she claimed it owed her money " for the past

twenty] years."

Mr. Couture told the defendant that due to her refusal to take his advice and

her refusal to negotiate with the homeowner' s association, he was going to withdraw

from representing her in the bankruptcy matter. Mr. Couture moved to withdraw

prior to the hearing on the motion for reconsideration, which was set for October 25,

2016. Mr. Couture notified the bankruptcy court and the defendant that he would not

be present at the hearing. The defendant argued her position at the hearing pro se;

the judge denied the motion for reconsideration.

On October 27, 2016, at approximately 3: 00 p.m., Mr. Couture was alone in

his office because his secretary and the other attorney with whom he shared the office

routinely left at 2: 00 p.m. and 2: 30 p.m., respectively. The defendant was familiar

with Mr. Couture' s office and knew his secretary and everyone that worked there.

Mr. Couture heard a noise " from the front." He saw the front door was open. He

approached the front of his office and saw the defendant sitting in a chair in the

reception area with a towel in her lap. The defendant had plastic bags on her hands

and feet. Mr. Couture asked, "[ w]hat are you doing here, Ms. Currie?" The

defendant began to lift a . 410 bore shotgun from under the towel and stated, " I' m

here to kill you." The defendant pointed the weapon at Mr. Couture' s chest; he

grabbed the weapon by the barrel to push it away. The defendant refused to let go of

the weapon, and Mr. Couture put his elbow " in her chest or on her shoulder" to force

her to release the weapon. Mr. Couture then banged on his neighbor' s door and told

N

him, "[ t]his lady just tried to kill me." Mr. Couture subsequently saw the defendant

removing the plastic bags from her hands and feet and putting them in the trash can.

Mr. Couture has a heart condition and, during the ordeal, his blood pressure

was " through the roof." After the police arrived, he learned that the shotgun was

loaded. He also learned that the defendant had " additional ammunition on her[.]"

Prior to arriving at Mr. Couture' s office, the defendant parked her vehicle

suspiciously at the office of attorney Rykert Toledano in Covington, Louisiana. The

defendant' s car was not in a parking spot, and trees and bushes obscured the rear of

her vehicle. The defendant was wearing blue latex gloves. She falsely claimed to

have an appointment with Mr. Toledano. When his office informed the defendant

that Mr. Tolendano would not be back until Monday, she stated, " I' ll wait," even

though it was only Thursday. She drove away after Mr. Toledano' s partner told her

he had called the sheriff' s office.

The defendant denied that she went to Mr. Couture' s office to shoot and kill

him. Rather, she claimed she only intended to " scare him" and " really make him pay

attention to [ her] this time" because she was getting " madder and madder" at the way

Mr. Couture was " handling things." The defendant stated she initially liked Mr.

Couture, but that their relationship deteriorated because he " was not going to

hearings" and because of his handling of the motion for reconsideration.

The defendant stated she carried her shotgun in her car " for protection," but

probably kept the weapon unloaded " because some child could get in the car." She

claimed she loaded her shotgun on the day of the incident " to scare [ Mr. Couture]

with it." She conceded, however, that only a very small portion of the shotgun shell

was visible when it was chambered inside the weapon. She claimed she told herself,

I will not cock [ the shotgun] because it' s dangerous[,] and I surely don' t want to

hurt him or anybody else." She denied that she attempted to pull the trigger on the

weapon or even had her finger on the trigger. The defendant claimed she covered her

0

hands and feet with plastic bags " to just show [ Mr. Couture] that [ she] was ... freakish

with the whole thing" and to " cover [her] tracks[.]" The defendant did not know why

she covered the shotgun with a towel when she was inside Mr. Couture' s office, but

conceded she covered the weapon when she approached the office " so that nobody

would see the gun." The defendant claimed Mr. Couture was lying about her

pointing the shotgun at his chest, about having to wrestle the weapon away from her,

and about her stating, " I' m here to kill you."

SUFFICIENCY OF THE EVIDENCE

In her first assignment of error, the defendant contends the district court erred

in denying her motion for new trial and finding that the evidence was sufficient to

support the jury' s verdict of attempted second degree murder. She argues the offense

was a " classic example" of an aggravated assault with a firearm, rather than an

attempted second degree murder. The defendant claims she " merely removed the

towel covering the [ shotgun] and began to stand saying she was going to kill Mr.

Couture." She further claims "[ o] ther than the threat and performance of that

threat[,] there was no act in furtherance to warrant the jury' s conclusion that this was

an attempt[ ed] second degree murder."

The standard of review for 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 conclude the State proved the essential elements of the

crime and the defendant' s identity as the perpetrator of that crime beyond a

reasonable doubt. In conducting this review, we also must be expressly mindful of

Louisiana' s circumstantial evidence test, which states in part, " assuming every fact to

be proved that the evidence tends to prove, in order to convict," every reasonable

hypothesis of innocence is excluded. La. R.S. 15: 438; State v. Jones, 2008- 1929

La. App. 11 Cir. 3/ 27/ 09), 2009 WL 839140, * 4 ( unpublished), writ denied, 2009-

0942 ( La. 1/ 22/ 10), 25 So. 3d 139.

5

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 the direct evidence is

thus viewed, the facts established by the direct evidence and the facts reasonably

inferred from the circumstantial evidence must be sufficient for a rational juror to

conclude beyond a reasonable doubt that the defendant was guilty of every essential

element of the crime. La. R.S. 15: 438. See also Jones, 2009 WL 839140 at * 4.

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. 1( A)( 1). Further,

a specific intent to kill is an essential element of the crime of attempted murder.

Jones, 2009 WL 839140 at * 4.

Any person who, having a specific intent to commit a crime, does or omits an

act for the purpose of and tending directly toward the accomplishing of his object is

guilty of an attempt to commit the offense intended; and it shall be immaterial

whether, under the circumstances, he would have actually accomplished his purpose.

La. R.S. 14: 27( A). Mere preparation to commit a crime shall not be sufficient to

constitute an attempt; but lying in wait with a dangerous weapon with the intent to

commit a crime, or searching for the intended victim with a dangerous weapon with

the intent to commit a crime, shall be sufficient to constitute an attempt to commit the

offense intended. La. R.S. 14: 27( B)( 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); State v. Henderson, 99- 1945 ( La. App. 1 st Cir. 6/ 23/ 00), 762 So. 2d 747,

751, writ denied, 2000- 2223 ( La. 6/ 15/ 01), 793 So. 2d 1235. 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

Cm

as a defendant' s actions or facts depicting the circumstances. Specific intent is an

ultimate legal conclusion to be resolved by the fact finder. Jones, 2009 WL 839140

at * 4.

Whether or not the defendant' s criminal conduct also constituted the offense of

aggravated assault with a firearm is irrelevant to our review of the sufficiency of the

evidence to support the verdict returned in this matter, i.e., attempted second degree

murder. The district attorney' s authority over criminal prosecutions in his district is

well established. See La. Const. art. V, § 26( B); La. C. Cr.P. art. 61. He has entire

charge and control of every criminal prosecution instituted or pending in his district

and determines whom, when, and how he shall prosecute. La. C. Cr.P. art. 61; State

v. Papizan, 2017- 0028 ( La. App. 1St Cir. 11/ 2/ 17), 256 So. 3d 1091, 1095, writ

denied, 2017- 2028 ( La. 10/ 29/ 18), 255 So. 3d 572. Prosecution may proceed under

either provision, in the discretion of the district attorney, whenever an offender' s

conduct is criminal according to an article of the Louisiana Criminal Code ( Louisiana

Revised Statutes Title 14, Chapter 1), or section of the Louisiana Criminal Code, and

also some other provision of the Revised Statutes, some special statute, or some

constitutional provision. La. R.S. 14: 4( 2). See State v. Walker, 2000- 0334 ( La.

App. 1St Cir. 12/ 22/ 00), 775 So. 2d 663, 666, writ denied, 2001- 0235 ( La. 12/ 7/ 01),

803 So. 2d 23 (" Even when the penalty under a general criminal provision differs

from that established in a special provision, the district attorney has the discretion

to proceed under either provision.").

Any rational trier of fact, viewing the evidence presented in this case in the

light most favorable to the State, could have found the evidence proved beyond a

reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence,

all of the elements of attempted second degree murder and the defendant' s identity as

the perpetrator of that offense against the victim. Although the defendant gave a

contrary account of the incident, Mr. Couture testified the defendant pointed a

7

shotgun at his chest and stated, " I' m here to kill you." The verdict returned in this

matter reflects that the jury found the testimony of the victim credible, while rejecting

the testimony of the defendant. This court will not assess the credibility of witnesses

or reweigh the evidence to overturn a fact finder' s determination of guilt. The

testimony of the victim alone is sufficient to prove the elements of the offense. The

trier of fact may accept or reject, in whole or in part, the testimony of any witness.

Moreover, when 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. Jones, 2009 WL 839140 at * 5.

In reviewing the evidence, we cannot say that the jury' s determination was

irrational under the facts and circumstances presented to them. See State v. Ordodi,

2006- 0207 ( La. 11/ 29/ 06), 946 So. 2d 654, 662. The defendant' s specific intent to

kill Mr. Couture was proven by direct evidence, specifically, the defendant' s

statement that she was in Mr. Couture' s office " to kill [ Mr. Couture]." Further, the

defendant' s lying in wait with a dangerous weapon with the intent to commit a crime

was, in and of itself, sufficient to constitute an attempt to commit the offense

intended. See La. R.S. 14: 27( B)( 1); State v. Kalathakis, 563 So. 2d 228, 229 n. 1

La. 1990) ("[ d] efendant' s conviction for the attempted manslaughter of Deputy

Daughtery was based on defendant' s lying in wait behind the bedroom door with a

loaded pistol, knowing that police had entered the building, with the intent to use the

gun to prevent police officers from entering the bedroom. On this evidence a rational

juror could have concluded beyond a reasonable doubt that defendant lay in wait with

a dangerous weapon with the intent to kill a police officer.")

Additionally, the defendant performed numerous additional acts for the

purpose of and tending directly toward the accomplishing of her object. She loaded

her shotgun, drove to Mr. Couture' s office, covered her hands and feet with plastic

bags, entered Mr. Couture' s office while concealing her shotgun under a towel, and

8

then pointed the weapon at Mr. Couture' s chest. Although the defendant claimed she

covered her hands and feet with plastic bags merely to scare Mr. Couture, the fact

remains this action would have concealed or eliminated the presence of her

fingerprints and footprints at the scene and would have concealed or eliminated

gunshot residue on her hands. Most significantly, the defendant pointed the loaded

shotgun at Mr. Couture' s chest. The jury was not irrational in finding that this action

was certainly an act in furtherance of killing him. Indeed, the fact that Mr. Couture

had to forcefully take the shotgun away from the defendant was circumstantial

evidence that she intended to do more with the weapon than scare him. For the

foregoing reasons, the defendant' s first assignment of error is without merit.

EXCESSIVE SENTENCE

In her second assignment of error, the defendant contends the district court

imposed an excessive sentence in this matter because she was a seventy -nine-year-

old woman with no criminal history.

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of

excessive punishment. Although a sentence may be within statutory limits, it may

violate a defendant' s constitutional right against excessive punishment and is subject

to appellate review. A sentence is constitutionally excessive if it is grossly

disproportionate to the severity of the offense or is nothing more than a purposeless

and needless imposition of pain and suffering. A sentence is grossly disproportionate

if, when the crime and punishment are considered in light of the harm done to

society, it shocks the sense of justice. A district court is given wide discretion in the

imposition of sentences within statutory limits, and the sentence imposed by it should

not be set aside as excessive in the absence of manifest abuse of discretion. State v.

Eason, 2019- 0614 ( La. App. 1St Cir. 12/ 27/ 19), 293 So. 3d 61, 73.

The Louisiana Code of Criminal Procedure sets forth items that must be

considered by the district court before imposing sentence. See La. C. Cr.P. art. 894. 1.

9

The district court need not recite the entire checklist of Article 894. 1, but the record

must reflect that it adequately considered the guidelines. In light of the criteria

expressed by Article 894. 1, a review for individual excessiveness should consider the

circumstances of the crime and the district court' s stated reasons and factual basis for

its sentencing decision. Remand for full compliance with Article 894. 1 is

unnecessary when a sufficient factual basis for the sentence is shown. Eason, 293

So. 3d at 73.

As applicable here, the penalty for attempted second degree murder is

imprisonment at hard labor for not less than ten years nor more than fifty years

without benefit of parole, probation, or suspension of sentence. La. R.S.

14: 27( D)( 1)( a) & 14: 30. 1( B). The defendant was sentenced to twenty- two years

imprisonment at hard labor without the benefit of parole, probation, or suspension

of sentence.

Mr. Couture testified at the sentencing hearing. He stated the defendant had

never offered any type of apology or accepted any type of responsibility for the

offense. He indicated the defendant swore to tell the truth at trial, but then lied to

the jury. Mr. Couture testified, "[ the defendant is] a violent individual, and it will

never, ever, ever go out of my mind what happened."

Rhonda Couture, Mr. Couture' s wife, also testified at the sentencing hearing.

She stated the offense had changed her life and her family. Following the incident,

for months," she and Mr. Couture would wake up in the middle of the night. She

indicated when Mr. Couture came home after the incident, " he had bruises from

here to here from banging on the office next door' s door to save his life from [ the

defendant]." Mrs. Couture stated the defendant had " no remorse, no nothing," but

that Mr. Couture and his family had been " put through hell for three years worried

that [ the defendant] was going to get out of jail and that [ Mrs. Couture] was going

to run into her in Wal- Mart or anywhere." Mrs. Couture concluded:

10

I would like [ the defendant] to spend the rest of her life
that is what according to the law or whatever the law says
that she needs to spend in jail, because I never want her
to do this to anybody else or my family ever again. And
I am scared if she gets out what would happen. We live
five miles away from each other.

Debbie Eskan also testified at the sentencing hearing. Approximately thirty-

six or thirty- seven years earlier, after Mrs. Eskan' s husband visited her at her

apartment after they were separated, the defendant threatened to kill Mrs. Eskan

and " cut [ her] up in little bits and pieces."

Jesse Wimberly, IV, also testified at the sentencing hearing. He had

represented the homeowner' s association in legal matters to recover homeowner' s

dues from the defendant. During that representation, the defendant' s daughter

telephoned Mr. Wimberly to warn him that the defendant had threatened to kill

him. The defendant' s daughter warned Mr. Wimberly because she thought "[ the

defendant] could do it and would do it."

Trey Lape also testified at the sentencing hearing. In 2012, Mr. Lape

obtained a judgment for the homeowner' s association against the defendant and

pursued legal process for the seizure and sale of the defendant' s condominium.

Thereafter, while he was working at his office, he heard what he believed to be a

gunshot and saw a vehicle fitting the description of the defendant' s vehicle outside.

In sentencing the defendant, the district court noted it had reviewed the

factors under La. C. Cr.P. art. 894. 1 and found the presence of the following

aggravating factors: ( 1) the defendant used threats or actual violence in the

commission of the offense; ( 2) the defendant used a dangerous weapon in the

commission of the offense; ( 3) the defendant' s " lack of candor with the [ c] ourt,

lack of truthfulness with the [ c] ourt was significant"; and ( 4) the defendant had

shown no remorse whatsoever. In regard to mitigating factors, the court noted the

defendant had no prior criminal convictions in any way related or evidencing a

11

capability of or likelihood to commit the offense. Additionally, the court stated it

had considered the general goals of sentencing, i.e., punishment, deterrence,

incapacitation, and rehabilitation.

A thorough review of the record reveals the district court adequately

considered the criteria of Article 894. 1 and did not manifestly abuse its discretion

in imposing the sentence herein. See La. C. Cr.P. art. 894. 1( B)( 6), ( B)( 10), ( B)( 21)

B)( 28). Further, the sentence imposed was not grossly disproportionate to the

severity of the offense, and thus, was not unconstitutionally excessive. The

defendant created a highly charged atmosphere conducive to violence. Danger

invites rescue, but also invites self-help. See State v. Wallace, 98- 2450 ( La. App.

1St Cir. 9/ 24/ 99), 754 So. 2d 991, 997. For these reasons, the defendant' s second

assignment of error is without merit.

DECREE

Based on the foregoing, we affirm the defendant' s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

12