State of Louisiana v. Kendrick M. Williams

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-900

STATE OF LOUISIANA

VERSUS

KENDRICK M. WILLIAMS

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C14104
HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

**********

OSWALD A. DECUIR
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Jimmie C. Peters,
Judges.

CONVICTIONS AND SENTENCES AFFIRMED.

R. Stuart Wright
Assistant District Attorney
P. O. Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
Counsel for Appellee:
State of Louisiana

Alex J. Washington
Washington & Wells
401 Edwards Street, Suite 1111
Shreveport, LA 71101
(318) 841-1233
Counsel for Defendant/Appellant:
Kendrick M. Williams

DECUIR, Judge.

Defendant, Kendrick M. Williams, was indicted on one count of second degree

murder, in violation of La.R.S. 14:30.1; two counts of attempted second degree

murder, in violation of La.R.S. 14:30.1 and La.R.S. 14:27; and one count of

possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1.

Following a trial by jury, Defendant was found guilty as charged. For the second

degree murder conviction, the district court sentenced Defendant to serve life

imprisonment. For each of the attempted second degree murder convictions, the

sentencing court ordered Defendant to serve twenty-five years at hard labor. On the

firearm charge, the district court imposed ten years at hard labor. The sentences are

to run consecutively and will be served without benefit of probation, parole, or

suspension of sentence. Defendant now appeals, asserting two assignments of error:

insufficiency of the evidence and failure of the trial court to grant a mistrial.

STATEMENT OF FACTS:

The evidence in the record before us reveals the following facts: On March 13,

2008, Shanay Calhoun, Leroi Watson and Shanay Calhoun’s five-year-old son were

riding in their 1999 white Chevrolet Suburban toward Texas Street in Natchitoches.

Calhoun was driving, Watson was in the front passenger seat, and the five-year-old

child was in the back seat. As the Suburban traveled down Sixth Street, near the

intersection with Texas Street, Defendant and three friends blocked the road so that

Calhoun could not pass. The testimony revealed that there had been some prior

animosity between Watson and Defendant concerning Calhoun. The testimony from

disinterested eye-witnesses indicated that Watson exited the vehicle and walked out

into the street not far from Defendant. He pulled up his shirt to show that he was not

armed, and they exchanged words. As Defendant pulled out a 40-caliber pistol,

Watson returned to the Suburban and proceeded to climb in through the open

passenger door. Defendant started shooting, and Calhoun put the vehicle in reverse

as Watson fell into the Suburban.

As the victims were leaving, Defendant continued to shoot at the Suburban.

The eye-witnesses stated that Defendant was pointing the gun at the driver Calhoun.

Watson retrieved a gun, a 10-millimeter pistol, from inside the Suburban and

attempted to return fire. However, because the car was in motion at a high rate of

speed, his shots were flying all over the place. At some point, a bullet from the 40-

caliber pistol went through the windshield and struck Calhoun in the neck, severing

her carotid artery. She lost control of the vehicle and it flipped on its side. Calhoun

was thrown from the vehicle, and when Watson went to check on her, she was already

dead.

Watson pulled the five-year-old child from the overturned Suburban and

attempted to flee the scene. As he ran, he was shot in the leg by someone in

Defendant’s group. Watson was able to get the child to his grandmother’s house right

up the street; then he frantically returned to Calhoun and the wrecked Suburban.

About this time, law enforcement officers arrived at the scene.

After firing numerous shots at the Suburban, Defendant fled the scene. It was

later determined that he disposed of the gun, and it was never retrieved by law

enforcement.

ASSIGNMENT OF ERROR NO. 1:

Defendant argues, “[t]he evidence was insufficient to convict the defendant of

Second degree murder, (2 counts) Attempted second degree murder, and Possession

of a firearm by a convicted felon.” He asserts the issue of self-defense was raised at

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trial, and the State failed to meet its burden of proving the shootings were not in self-

defense. He contends Watson fired the first shots and had a long arrest record, which

included crimes of violence. Defendant further maintains that Watson was the

aggressor at all times, as Watson shot at him three weeks before the instant incident

and Watson previously appeared at Defendant’s residence with a pistol. Defendant

adds that Watson and Calhoun could have stopped the incident by driving in another

direction before the incident took place.

In response, the State explains that the two neutral eyewitnesses testified to a

different set of circumstances. Instead of recounting the facts urged by the defense,

they stated four men came into the street and stopped the Suburban driven by

Calhoun. Watson exited the vehicle, pulled up his shirt to show he was not armed,

and held his empty hands open. Defendant pulled a handgun, aimed at the driver with

both hands, and fired two shots. Neither of the witnesses saw anyone except

Defendant firing a weapon. The State contends that Defendant’s own testimony

admitted he fled the scene and hid the gun, which supports a finding of Defendant’s

guilt.

STANDARD OF REVIEW:

The Louisiana Supreme Court has discussed the standard of review for

evaluating the sufficiency of the evidence on appeal:

The standard of appellate review for a sufficiency of the evidence
claim is whether, after 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 proven beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d
560 (1979). A determination of the weight of evidence is a question of
fact, resting solely with the trier of fact who may accept or reject, in
whole or in part, the testimony of any witnesses. A reviewing court may
impinge on the factfinding function of the jury only to the extent

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necessary to assure the Jackson standard of review. It is not the function
of an appellate court to assess credibility or re-weigh the evidence.

State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86 (citations

omitted).

MURDER:

Defendant was convicted of one count of second degree murder, which “is the

killing of a human being: (1) When the offender has a specific intent to kill or to

inflict great bodily harm.” La.R.S. 14:30.1(A)(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.” State v. Emanuel-Dunn, 03-550, p. 5 (La.App. 1 Cir. 11/7/03), 868

So.2d 75, 79, writ denied, 04-339 (La. 6/25/04), 876 So.2d 829.

Defendant claimed his actions were justified because he was acting in self-

defense. “The fact that an offender’s conduct is justifiable, although otherwise

criminal, shall constitute a defense to prosecution for any crime based on that

conduct. This defense of justification can be claimed . . . (7) When the offender’s

conduct is in defense of persons or of property[.]” La.R.S. 14:18.

Under certain circumstances, killing someone can be justified. “A homicide

is justifiable: (1) When committed in self-defense by one who reasonably believes

that he is in imminent danger of losing his life or receiving great bodily harm and that

the killing is necessary to save himself from that danger.” La.R.S. 14:20. “When a

defendant charged with a homicide claims self-defense, the State has the burden of

establishing beyond a reasonable doubt that he did not act in self-defense.” Emanuel-

Dunn, 868 So.2d at 79 (citing State v. Rosiere, 488 So.2d 965 (La.1986)).

Under La.R.S. 14:21, the aggressor in a dispute cannot claim self-defense: “A

person who is the aggressor or who brings on a difficulty cannot claim the right of

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self-defense unless he withdraws from the conflict in good faith and in such a manner

that his adversary knows or should know that he desires to withdraw and discontinue

the conflict.”

Our review of the evidence shows that Defendant and his friends blocked the

road and stopped the vehicle driven by Calhoun. Following a verbal confrontation

with Watson, Defendant, standing in front of the automobile, drew a gun, aimed at

Calhoun, and shot her. When Defendant first pulled the firearm, Calhoun began to

back the Suburban away from Defendant and his friends. Calhoun was not armed at

any time during the incident, and she did not attempt to get away by driving over

Defendant and his three friends who were still in front of the Suburban. Though the

defense presented evidence that Defendant had been standing behind the automobile

and Calhoun attempted to run him down, this evidence was self-serving and not

credible.

In Emanuel-Dunn, the victim approached the defendant’s car and engaged him

in conversation before moving away from the vehicle while the defendant exited the

automobile. Neutral eyewitnesses stated that when they saw the defendant pull a gun

from under his shirt, they tried to get away. After hearing gunfire, they saw the

victim turn as if trying to get away, but the defendant continued steadily shooting at

the unarmed victim. In contrast, the defendant testified that the victim approached

him in a hostile manner and engaged in a physical altercation with the defendant once

the defendant exited the car. Also according to the defendant, the victim then

“reached.” When the defendant pulled his firearm, the victim wrestled with him for

control of the gun; it went off and shot the victim in the mouth. The defendant’s

friend testified in support of the defense. The first circuit found that, as the

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sufficiency of the evidence rested on the credibility of the witnesses, there was

sufficient evidence to support the defendant’s conviction for second degree murder.

Moreover, as the aggressor in the transaction, the defendant was not entitled to claim

self-defense.

As in Emanuel-Dunn, the sufficiency of the evidence in this case rests on the

credibility of the witnesses. When the facts are viewed in a light most favorable to

the prosecution, they show beyond a reasonable doubt that Defendant was guilty of

the second degree murder of Calhoun, who was unarmed, made no threatening moves

toward Defendant, and was trying to drive away from Defendant when he shot her.

When the evidence is viewed in the light most favorable to the prosecution,

Defendant was the aggressor in the situation and not entitled to claim self-defense.

Thus, a rational trier of fact could have found Defendant guilty of second degree

murder.

Accordingly, Defendant’s dual contentions that the State failed to meet its

burden of disproving his self-defense claim and of proving him guilty of second

degree murder are both without merit.

ATTEMPTED MURDER:

Defendant was also convicted of two counts of attempted second degree

murder:

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). When a defendant is charged with attempted second degree

murder, the State is required to prove the specific intent to kill a human being. State

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v. Hall, 606 So.2d 972, 974 (La.App. 3 Cir. 1992), writ denied, 93-51 (La. 11/11/94),

644 So.2d 385. “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).

A different justification provision applies to Defendant’s self-defense claims

for the two attempted second degree murder convictions:

A. The use of force or violence upon the person of another is
justifiable when committed for the purpose of preventing a forcible
offense against the person . . . provided that the force or violence used
must be reasonable and apparently necessary to prevent such offense
....

....

C. A person who is not engaged in unlawful activity and who is
in a place where he or she has a right to be shall have no duty to retreat
before using force or violence as provided for in this Section and may
stand his or her ground and meet force with force.

La.R.S. 14:19. “In non-homicide cases, . . . the defendant [has] the burden of proving

self-defense by a preponderance of the evidence. The issue of self-defense requires

a dual inquiry: (1) an objective inquiry into whether the force used was reasonable

. . . ; [and] (2) a subjective inquiry into whether the force was apparently necessary.”

Hall, 606 So.2d at 973-74 (citations omitted).

The evidence most favorable to the prosecution showed that Defendant stopped

the vehicle Watson was riding in by forming a human barricade in the street. Watson,

unarmed, exited the vehicle and engaged in a verbal exchange with Defendant, who

drew a gun as Watson turned to reenter the Suburban. After shooting the driver of

the vehicle, Defendant continued to shoot at the Suburban as Watson, acting in

defense of himself and the unarmed child inside the Suburban, grabbed a firearm and

returned fire; the out-of-control swerving of the vehicle jerked Watson’s arm and

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prevented him from aiming. Defendant admitted to both leaving the scene and

disposing of his handgun after the Suburban crashed.

Though the defense claimed Watson fired first and instructed Calhoun to run

Defendant over, the only evidence supporting this claim was the testimony given by

a friend of Defendant plus the self-serving accounts given by Defendant and the four

young men reported to have been accomplices in the matter. Defendant also

attempted to explain his flight and disposal of evidence in the case.

In State v. Wilson, 42,440 (La.App. 2 Cir. 9/19/07), 965 So.2d 992, writ denied,

07-2084 (La. 3/7/08), 977 So.2d 898, the defendant was convicted of second degree

murder and attempted second degree murder based upon facts showing he fired

bullets into a vehicle, killing one person and injuring another. On appeal, the

defendant asserted the State failed to prove he had specific intent and that his actions

were justified as self-defense. Though the defendant claimed he shot at the tires of

the victims’ vehicle because it swerved into the path of his truck, the second circuit

held that it was within the province of the jury to disbelieve the defendant’s claims

based upon the evidence presented at trial.

The contradicting evidence in Wilson showed that the defendant followed the

victims when they left a nightclub; the defendant then fired at least sixteen shots at

the victims’ vehicle as he passed it in his truck. After the shooting, the defendant

concealed evidence by disposing of the shell casings and hiding the firearm. The

defendant also fled the area for two days before eventually turning himself into

authorities. Noting that the defendant’s flight and attempt to avoid apprehension gave

rise to an inference of guilty conscience, the second circuit found sufficient evidence

to prove the defendant’s specific intent to kill.

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In the present case, the issue of sufficiency of the evidence again rests upon

witness credibility. The factfinder found the testimony of the neutral witnesses and

Watson to be more believable than that given by the defense witnesses. When the

evidence is viewed in the aspect most favorable to the State, it shows that Defendant

aimed and fired at the Suburban with the active desire to kill the occupants, and both

Watson and Calhoun’s son were occupants of the vehicle at the time. Defendant’s

actions also caused the Suburban to travel out of control and violently wreck.

Though Watson returned fire, Defendant was the aggressor in the situation, and an

aggressor who has not attempted to withdraw from the conflict cannot claim self-

defense. La.R.S. 14:21.

Accordingly, a rational trier of fact could have found beyond a reasonable

doubt that Defendant attempted to kill Watson and the five-year-old boy, and

Defendant was not acting in self-defense at the time.

POSSESSION OF A FIREARM BY A CONVICTED FELON:

Defendant’s final conviction was for illegal possession of a firearm, in

violation of La.R.S. 14:95.1(A): “It is unlawful for any person who has been

convicted of . . . simple burglary . . . to possess a firearm or carry a concealed

weapon.” The statute does not apply to defendants when there is ten years between

the completion of sentence, probation, parole, or suspension of sentence and the date

of the possession. La.R.S. 14:95.1(C)(1).

The record shows Defendant pled guilty to simple burglary in 1999, and he was

under supervision by a probation officer for that offense until May 2002. Defendant

admitted at trial that he purchased a handgun and had it in his physical possession on

March 13, 2008, which was less than six years after Defendant completed probation.

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As before, Defendant argues his possession of the firearm was justified

because, following an incident in February 2008, he feared an attack by Watson. At

trial, Defendant testified that Watson had previously shot at him and had continued

to harass Defendant by driving past his home and pointing a gun at him. However,

Defendant never reported the matter to law enforcement.

When “an offender’s conduct is justifiable, although otherwise criminal, [it]

shall constitute a defense to prosecution for any crime based on that conduct. This

defense of justification can be claimed . . . When the offender’s conduct is in defense

of persons . . . under any of the circumstances described in Articles 19 through 22.”

La.R.S. 14:18(7). The action must, however, be reasonable and apparently necessary

to prevent a forcible offense or trespass against property in a person’s lawful

possession. La.R.S. 14:19(A). “‘Necessity’, when raised as a defense to the illegal

possession of a firearm, entails proof that the threat of force by another is imminent

and apparent, and that the person threatened has no reasonable alternative but to

possess the firearm.” State v. Jackson, 452 So.2d 776, 779 (La.App. 4 Cir. 1984).

Again, “[a] person who is the aggressor or who brings on a difficulty cannot claim the

right of self-defense unless he withdraws from the conflict in good faith and in such

a manner that his adversary knows or should know that he desires to withdraw and

discontinue the conflict.” La.R.S. 14:21.

As with the other charges, the issue rests upon the credibility of the witnesses,

and credibility determinations are the purview of the factfinder. The jury clearly

believed the facts presented by the State. Under those facts, Defendant initiated both

the contact and the attack. Because Watson did not initiate contact or threaten

Defendant, there was no imminent and apparent threat that would leave Defendant

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with no reasonable alternative to possessing the firearm. As the aggressor, Defendant

could not claim his possession of the firearm was justified.

Accordingly, there was sufficient evidence to prove the facts of the case met

the criteria set forth in La.R.S. 14:95.1(A) and that Defendant was not justified in

possessing the pistol.

ASSIGNMENT OF ERROR NO. 2:

Defendant claims the trial court erred when a mistrial was not granted.

Defendant complains that the trial court should have granted a mistrial based on the

prosecutor’s remark during opening statements that the jury would hear from

Defendant during the trial.

The transcript of the State’s opening statement shows that counsel was

discussing the individuals involved in the case when he mistakenly classified them

as witnesses. This is evidenced by the inclusion of Calhoun, the deceased victim in

the case. Because Defendant testified at trial, the parties concluded an instruction that

Defendant was not required to testify in his own defense would be sufficient to

mitigate any damage done by the prosecutor’s statement. The State further asserts

that its statement does not constitute a remark concerning Defendant’s failure to

testify; therefore, it does not constitute a prohibited statement under La.Code Crim.P.

art. 770.

The record shows that, during opening statements, the prosecutor stated,

“There’s gonna be a lot of witnesses in this case. Uh, and just some of the main ones

that you’re gonna hear (inaudible) obviously the defendant is Kendrick . . . Kendrick

Williams.” At that time, the defense moved for a mistrial on the basis that the

prosecutor had attacked his “client’s privilege not to testify.” After the jury was

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excused, the trial court had the court reporter play back the prosecutor’s statement.

During argument on the matter, the defense maintained that admonishment would not

be sufficient in this case. After a recess and discussion in chambers, the district court

stated the resolution for the record:

We’ve discussed the matter in Chambers. I understand that you
have resolved the issue concerning Mr. Whitehead’s Motion for a
mistrial by an agreement that the Court will make the following
statement to the Jury when they come in. Uh . . . there was some
mention about who is going to testify. I want to make it clear that the
defendant is not required to testify. And then I will tell them that we’re
going to recess for today and start tomorrow morning with opening
statements.

At that time, both the prosecution and defense verbally agreed with the trial court’s

statement.

Under La.Code Crim.P. art. 770(3), “[u]pon motion of a defendant, a mistrial

shall be ordered when a remark or comment, made within the hearing of the jury by

the . . . district attorney . . . refers directly or indirectly to: . . . The failure of the

defendant to testify in his own defense.” Because the prosecutor said Defendant

would be testifying and in no way referred to Defendant’s failure to testify, La.Code

Crim.P. art. 770 does not apply to the instant case. Accordingly, this assignment of

error is without merit.

DECREE

For the above and foregoing reasons, and finding no error patent on the face

of the record, we hereby affirm the Defendant’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of
Appeal, Rule 2–16.3.

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