State of Louisiana v. Darryl A. Holmes

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1173

STATE OF LOUISIANA

VERSUS

DARRYL A. HOLMES

**********
APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 130157
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

**********
ULYSSES GENE THIBODEAUX
CHIEF JUDGE
**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Michael G. Sullivan, Judges.

AFFIRMED. MOTION TO WITHDRAW
GRANTED.

Michael Francis Kelly
Assistant District Attorney
P. O. Box 528
Marksville, LA 71351
Telephone: (318) 253-5815
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Charles A. Riddle, III
District Attorney - 12th Judicial District Court
P. O. Box 1200
Marksville, LA 71351
Telephone: (318) 253-6587
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457-2057
Telephone: (318) 572-5693
COUNSEL FOR:
Defendant/Appellant - Darryl A. Holmes

Darryl A. Holmes
Louisiana State Penitentiary
Camp D Hawk 3-L-5
Angola, LA 70712

THIBODEAUX, Chief Judge.

The Defendant, Darryl A. Holmes, appeals his conviction for second

degree murder, a violation of La.R.S. 14:30.1, following a bench trial. The trial court

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

or suspension of sentence.

On appeal, counsel seeks to withdraw, pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396 (1967). The Defendant filed a pro se brief in which he

alleges trial counsel was ineffective.

We affirm and grant counsel’s motion to withdraw.

FACTS

At approximately 10:00 p.m. on the night of July 6, 2005, the victim,

Brandon Chapman, and his friends, Shandra Young, Jessica Hills, Anthony Jones,

and Anthony’s brother, Kevin, went to a store and were on their way back to the

home of Brandon’s girlfriend, Tonya Hills. After parking the car at Tonya’s mother’s

house, which is only one house away from Tonya’s, the group was walking down the

street when they saw the Defendant and Arthur Robinson. The Defendant walked up

and told Chapman he had heard Chapman was looking for him. Chapman put up his

fists to fight and the Defendant pulled out a gun and shot Chapman in the chest at

close range. Dr. Joel Carney, accepted by the court as an expert forensic pathologist,

testified that the distance from the victim’s skin surface to the muzzle of the weapon

was approximately one-quarter to one-half inch.

After the Defendant shot Chapman, one witness heard the Defendant say,

“yea, n_ _ _ _ _, I don’t hear you talking now, hear you talking now. Yea, what’s that

you were saying, yea, what’s that you were saying.” According to one witness, the

Defendant walked in the middle of the street “like nothing ever happened with the

gun still in his hand.”

The Defendant’s girlfriend, Tomica Mason, testified that after 10:00 p.m.

on the night the victim was shot, the Defendant came to her house and told her to

hurry and put some clothes on. The two of them went to the Defendant’s

grandfather’s house in Lettsworth. On the way, they saw multiple police cars and an

ambulance. The Defendant told Ms. Mason he had “shot the n_ _ _ _ _.” While in

Lettsworth, the Defendant told Ms. Mason he shot the victim because “they was

trying to handle him.”

The Defendant testified he was told that “Brandon and two of his

partners they were looking for [him] and stuff like that.” According to the Defendant,

he went down the street to see why they were looking for him, and when he saw

Chapman (and two guys with him) he asked, “what you want with me[?]” The

Defendant testified Chapman put up his fists and the Defendant did not know what

was going to happen, considering Chapman had two guys with him and the Defendant

was by himself. The Defendant pulled the gun out to get Chapman and the guys to

back up, and the gun “just went off.” After accidentally shooting the victim, the

Defendant dropped the gun and ran. A forty caliber shell casing was found at the

scene, but the weapon was not recovered.

ANDERS MOTION

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967),

Defendant’s appellate counsel has filed a brief stating he could find no errors on

appeal that would support reversal of Defendant’s conviction. Thus, counsel seeks

to withdraw. In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), the fourth

circuit explained the Anders analysis:

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When appointed counsel has filed a brief indicating
that no non-frivolous issues and no ruling arguably
supporting an appeal were found after a conscientious
review of the record, Anders requires that counsel move to
withdraw. This motion will not be acted on until this court
performs a thorough independent review of the record after
providing the appellant an opportunity to file a brief in his
or her own behalf. This court’s review of the record will
consist of (1) a review of the bill of information or
indictment to insure the defendant was properly charged;
(2) a review of all minute entries to insure the defendant
was present at all crucial stages of the proceedings, the jury
composition and verdict were correct and the sentence is
legal; (3) a review of all pleadings in the record; (4) a
review of the jury sheets; and (5) a review of all transcripts
to determine if any ruling provides an arguable basis for
appeal. Under C.Cr.P. art. 914.1(D) this Court will order
that the appeal record be supplemented with pleadings,
minute entries and transcripts when the record filed in this
Court is not sufficient to perform this review.

Id. at 531.

Pursuant to Anders and Benjamin, this court has performed a thorough

review of the record, including pleadings, minute entries, the charging instrument and

the transcripts. The bill of information is in proper form; the Defendant and his trial

counsel were present at all critical stages of the proceedings. The Defendant

knowingly and intelligently waived his right to a jury trial and elected to be tried by

a judge alone. The sentence imposed on the Defendant, a mandatory sentence of life

imprisonment without the benefit of parole, probation, or suspension of sentence, is

legal.

In his brief, appellate counsel observes the trial court resolved its

credibility determination in favor of the State in finding the shooting was not

accidental and that appellate courts will not disturb a fact finder’s credibility

determination. Counsel is correct that, “It is the role of the fact finder to weigh the

respective credibility of the witnesses, and therefore, the appellate court should not

second guess the credibility determinations of the triers of fact beyond the sufficiency

3

evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436

So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)).” State v.

Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Further, counsel points out that none of the denials of trial counsel’s

objections supported reversal of the Defendant’s conviction in light of his admission

that he shot the victim. We find the Defendant’s admission that he shot the victim,

the physical evidence indicating the gun was fired at an extremely close range, and

the jurisprudence that states, “[t]he discharge of a firearm at close range and aimed

at a person is indicative of a specific intent to kill or inflict great bodily harm upon

that person,” support counsel’s observation. See State v. Jones, 40,652, p. 4 (La.App.

2 Cir. 1/25/06), 920 So.2d 941, 944.

Thus, we find there are no issues which would arguably support an

appeal. Having reviewed counsel’s brief, we will proceed to Defendant’s pro se

assignment of error.

PRO SE ASSIGNMENT OF ERROR

The Defendant contends his counsel was ineffective in two respects.

First, the Defendant claims counsel failed to conduct any investigation and file

pretrial motions. The Defendant alleges his attorney failed to contact him about his

case and to obtain the names of witnesses that could assist him in his defense.

Second, the Defendant claims counsel failed to prepare an adequate defense of

justifiable homicide. He contends counsel could have filed a motion to obtain

character evidence concerning the victim, whom he claims became aggressive,

forcing the Defendant to act in self-defense. He claims the foregoing errors resulted

from counsel’s failure to devote the necessary time to his case, due to her busy

schedule.

4

A criminal defendant is guaranteed the effective
assistance of counsel. United States Sixth Amendment;
La.Const. art. I, § 13; Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Washington, 491 So.2d 1337 (La.1986). To establish a
claim of ineffective assistance, a defendant must show that
counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms; and,
that counsel’s professional errors resulted in prejudice to
the extent that it undermined the functioning of the
adversarial process and rendered the verdict suspect.
Strickland v. Washington, supra, Lockhart v. Fretwell, 506
U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). This
does not mean “errorless counsel [or] counsel judged
ineffective by hindsight, but counsel reasonably likely to
render effective assistance.” State v. Ratcliff, 416 So.2d
528, 531 (La.1982).

A claim of ineffectiveness is generally relegated to
post-conviction, unless the record permits definitive
resolution on appeal. E.g., State v. Prudholm, 446 So.2d
729 (La.1984). However, when the record is sufficient for
review, this Court will reach the merits of complaints about
counsel’s performance and grant relief when appropriate.
E.g., State v. Hamilton, 92-2639 (La. 7/1/97), 699 So.2d
29, 32-35.

State v. Bright, 98-398, pp. 40-41 (La. 4/11/00), 776 So.2d 1134, 1157.

These claims are not reviewable on the record currently before this court

and are thus relegated to post-conviction relief.

CONCLUSION

The defendant’s conviction and sentence are affirmed. Counsel’s motion

to withdraw is granted.

AFFIRMED. MOTION TO WITHDRAW GRANTED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule
2-16.3, Uniform Rules—Courts of Appeal.

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06-1173

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

Plaintiff-Appellee

VERSUS

DARRYL A. HOLMES

Defendant-Appellant

On Appeal from the Twelfth Judicial District Court, Parish of Avoyelles, State of
Louisiana, Honorable William Bennett, District Judge.

ORDER

After consideration of Defense counsel’s request to withdraw as counsel and

the appeal presently pending in the above-captioned matter,

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is

granted.

THUS DONE AND SIGNED this _____ day of __________, 2007.

COURT OF APPEAL, THIRD CIRCUIT

Chief Judge Ulysses Gene Thibodeaux

Judge Oswald A. Decuir

____________________________________
Judge Michael G. Sullivan