State of Louisiana v. Jamario Kato

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1356

STATE OF LOUISIANA

VERSUS

JAMARIO KATO

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C17497
HONORABLE ERIC ROGER HARRINGTON, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Phyllis M. Keaty, Judges.

AFFIRMED.

Van H. Kyzar
District Attorney, Tenth Judicial District Court
Lala B. Sylvester
Assistant District Attorney
P. O. Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

Edward J. Marquet
Louisiana Appellate Project
Post Office Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Jamario Kato

GREMILLION, Judge.

Defendant, Jamario Kato, and Dominique Sibley met Darious Rogers at an

apartment complex in Natchitoches Parish and discussed robbing the victim,

Tremaine Jackson. Rogers handed them a “bar” of Xanax on behalf of the victim,

who had been selling the drug. Rogers then returned upstairs to the apartment of

the victim’s girlfriend and handed the victim the three dollars he had received from

Sibley. The victim was irritated because he was selling the Xanax for five dollars

per bar. Rogers claimed to have been robbed. The victim walked outside in an

effort to get the rest of the money with Rogers right behind him.

The victim leaned over the balcony and told Kato and Sibley that he needed

the rest of the money. They began running up the stairs, cursing and telling the

victim to “give it up.” The victim did not respond favorably, and Sibley shot him

three times, killing him.

A Natchitoches Parish grand jury indicted Defendant, Sibley, and Rogers for

second degree murder, a violation of La.R.S. 14:30.1, and armed robbery, a

violation of La.R.S. 14:64. A jury found Defendant guilty of second degree murder

and attempted armed robbery. The trial court sentenced him to life imprisonment

for second degree murder and ten years at hard labor for attempted armed robbery.

The sentences are to run concurrently.

Defendant now appeals his convictions and sentences, assigning two errors.

Defendant’s convictions and sentences are affirmed.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues that the evidence adduced

against him at trial was insufficient to support his convictions. He complains that

his convictions rested upon “the uncorroborated and illogical testimony of a

drugged-out convicted felon.”

The general analysis for such a claim is settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court 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,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). 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 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)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.

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

The first portion of Defendant’s argument attacks the credibility of Rogers,

the sole eyewitness in the case. However, some portions of the argument go to the

elements of the crime rather than the witness’s credibility. The case Defendant

cites, State v. Hollins, 08-1033 (La. 6/26/09), 15 So.3d 69, stands for the principle

that a jury should be instructed that an accomplice’s uncorroborated testimony

should be viewed with great caution. Defendant does not argue whether the jury

was so instructed in his case; rather, he claims that a principle of caution regarding

accomplice testimony applies to his sufficiency of the evidence argument.

Applying a principle more specific to witness credibility in the context of a

sufficiency review, we have stated:

As mentioned in Kennerson, credibility assessments are
within the province of the fact-finder, in this case the
jury. A jury may “accept or reject, in whole or in part,”

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any witness's testimony. State v. Silman, 95-0154, p. 12
(La.11/27/95), 663 So.2d 27, 28. Clearly, the jury
believed the victim’s version of events, and Hypolite’s
brief offers no concrete reason why the jury's conclusion
should be considered unreasonable. This court will
overturn a jury’s credibility assessment only when a
witness’s own testimony demonstrates that the witness’s
ability to perceive events was impaired in some way.
See, e.g., State v. Bourque, 94-291 (La.App. 3 Cir.
11/2/94), 649 So.2d 670, wherein one eyewitness had
consumed a large amount of alcohol before the offense
and the other was a minor who believed all white men
looked alike, and defendant was white.

In the present case, there was no indication that
Ms. Chatman was unable to objectively perceive events,
although during cross-examination she testified that she
had consumed two twenty-two-ounce beers while visiting
her friend's house earlier in the evening. It was not clear
exactly when, or over what a period, she drank the beers.
The testimony did not indicate that she was intoxicated,
or otherwise unable to objectively perceive events, at the
time of the offense.

State v. Hypolite, 04-1658, pp. 4-5 (La.App. 3 Cir. 6/1/05), 903 So.2d
1275, 1279, writ denied, 06-618 (La.9/22/06), 937 So.2d 381.

In the present case, the Victim admitted that he had taken one
prescription Lortab for pain and had inhaled “two or three lungs full”
of marijuana on the morning of the shooting. However, as in
Hypolite, the testimony did not indicate the Victim was unable to
objectively perceive events at the time of the shooting.

Further, we observed that the Victim knew Defendant before
the shooting; when he was a postman, he had delivered mail to
Defendant. Although he claimed they had met only two months
before the offense, Defendant acknowledged knowing the Victim. It
is unlikely the Victim misidentified a person he already knew.

State v. Smith, 07-1384, pp. 6-7 (La.App. 3 Cir. 5/28/08), 984 So.2d 238, 242-43.

During his testimony, Rogers admitted to being “high” at the time of the

shooting, as he had taken a single Xanax pill before arriving at the apartment;

while there, he drank a beer while he ate a meal. However, much like the witness

in Smith, he knew Defendant prior to the shooting and identified him at trial. Also,

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Defendant bought Xanax from the victim and had ridden with Rogers and the

victim earlier that day. Further, Rogers indicated that the shock of the shooting

brought him to his senses. Also, Rogers’ account of the offense was lucid and

gave no indication that he had difficulty perceiving events at the time of the

shooting. In light of the jurisprudence, Defendant’s argument lacks merit.

Defendant also notes that Rogers admitted that he told a number of lies

during the course of the offense and in the initial stages of the investigation. The

following colloquy occurred on cross-examination:

Q. And you know what perjury is . . . do you?

A. (No response recorded).

Q. You know what perjury is?

A. Yes Sir.

Q. What is perjury?

A. I think just blaming somebody the [sic] he didn’t even do.

Q. If I told you perjury is lying under oath, would you agree with
that?

A. Yes Sir.

Q. And you are here today to tell the truth?

A. Yes Sir.

Q. But you do know how to lie, don’t you Mr. Rogers?

A. Yes Sir.

....

Q. So, it comes natural to you to lie to people, right?

A. Yes Sir.

Q. Have you ever lied on anybody before?

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A. No Sir.

Q. You never accused anybody of anything before?

A. No Sir.

Q. This is the first time you have ever accused anybody of doing
anything?

A. Yes Sir.

Q. And the first time you ever sold drugs was that you sold them to
Mr. Kato?

A. Yes Sir.

Q. And the first time you went to go buy some drugs you went
with JT. . . TJ?

A. Yes Sir.

Q. TJ considered you to be his brother?

A. Yes Sir.

During the extensive cross-examination, Defendant admitted several times that he

lied to the victim and lied in his initial remarks to police.

During re-direct, the following colloquy occurred:

Q. All right. Let me ask you something, Darious. Uh, you’ve been
through a lot. On January the 25th, the day after this happened. [sic]
Did you tell Detective Armstrong, Detective Williams, and Detective
Walker what happened?

A. (No response recorded).

Q. Did you tell them what actually had happened?

A. Yes Sir.

Q. Were you telling them the truth back on January the 25th, 2011.
Were you telling them the truth when you came in there and said, “I
got something to get off my chest”?

A. Yes Sir.

Q. Is that the same thing you told this jury today?

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A. Yes Sir.

Q. Is that the scaredest you ever been in your life?

A. Yes Sir.

In response to a question during re-cross, Rogers indicated that when he

made his truthful account of events to police, he apologized for lying to them

earlier. Clearly, the jury was made aware of the witness’s lies but still found him

credible regarding the offense. As the jurisprudence makes clear, a jury’s

credibility assessment is not to be second-guessed on appeal. This court has only a

cold record to analyze, while the jury was able to view the witness’s demeanor and

hear the inflections in his voice. Thus, this argument lacks merit.

Separately, we note Defendant’s characterization of Rogers’s testimony as

“uncorroborated.” Rogers was the only eyewitness at trial. Tommy Wiley, a

neighbor of the victim’s girlfriend, Lillie Wallace, heard two or three gunshots and

saw two people running down the stairs shortly thereafter. Wallace did not witness

the shooting because she was inside her apartment when it occurred. She testified

that before the shooting, Rogers went downstairs; when he returned, he had a

“strange look on his face” that she and the victim both noticed. Rogers then

claimed that he had been robbed. As she did not want any trouble at the apartment

complex, Wallace offered to give Rogers the small amount of cash he was missing.

However, Rogers pressured the victim to go outside. There was an impact of some

sort on the outside of the door, and the two men opened it and stepped out. She

heard two male voices cursing and threatening the victim and also threatening to

hurt Wallace and her baby. She dialed 911 and then heard multiple gunshots. She

pulled the bleeding victim into her apartment. While her testimony contradicted

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that of Rogers on several points, it lent support to the scenario of two men

attempting to rob the victim. The general cast of her testimony indicated that

Rogers may have had a greater role in the attempted robbery than he

acknowledged. However, the jury could logically have believed his description of

Defendant’s role in the offense even if it believed Rogers was minimizing his own

part in it.

Defendant’s next argument is that he was not a principal to the crime as the

record indicates that Sibley, the shooter, acted alone. The following has become

an oft cited principle of Louisiana law: “One need not possess specific intent to kill

or inflict great bodily harm to be a principal to a second degree felony murder.”

See State v. Hill, 98-1087, p. 9 (La.App. 5 Cir. 8/31/99), 742 So.2d 690, 696, writ

denied, 99-2848 (La. 3/24/00), 758 So.2d 147.” State v. Johnson, 11-336, p. 11

(La.App. 5 Cir. 2/14/12), 91 So.3d 365, 372. This is particularly true when “the

defendant aided or abetted the perpetration of a robbery, and that the victim was

killed during the perpetration of said robbery.” State v. Goodley, 00-846, p. 3

(La.App. 3 Cir. 12/11/02), 832 So.2d 1165, 1167-68

In this case, Defendant and Sibley talked to Rogers about robbing the victim.

When the victim came outside, they both demanded that he “give it up.” When he

offered verbal resistance, both men ran up the stairs, and Sibley shot the victim.

As already discussed, the jury apparently found Rogers to be a credible

witness. His testimony set forth the facts just recited, which demonstrate that

Defendant actively participated in the attempted robbery. Unlike Goodley, the

present case involves an attempted armed robbery. Attempt is governed by

La.R.S. 14:27(A), which states,

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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.[1]

The facts demonstrated through the testimony of Rogers show that

Defendant had the requisite intent and committed acts in furtherance of the offense.

Clearly, a homicide resulted. For the reasons discussed, this argument lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues that his life sentence for

murder is improperly disparate, since the shooter received a forty-year sentence.

He implies that he was punished for exercising his right to trial but does not pursue

this particular argument. Also, he does not mention his ten-year sentence for

attempted armed robbery.

Defendant cites State v. Amos, 97-1381 (La.App. 3 Cir. 06/03/98), 716 So.2d

902, for the principle that disparity between the sentences of co-defendants is a

factor to be considered in appellate review. We have recently explained:

There is no requirement that co-defendants receive equal
sentences. See State v. Taylor, 01-1638 (La.1/14/03), 838 So.2d 729,
cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004);
State v. Rogers, 405 So.2d 829 (La.1981). Notwithstanding, in State
v. Quimby, 419 So.2d 951, 962 (La.1982), our supreme court stated:

This does not mean that disparity in sentences of
co-defendants with similar backgrounds, charged with
similar participation in identical crimes may not be
considered as a factor in determining whether a sentence
is excessive and out of proportion to the severity of a
crime. It is only a factor to be considered along with all
other appropriate considerations when there is no
reasonable basis in the record for the disparity. State v.
Sims, 410 So.2d 1082 (La.1982).

1
Attempted armed robbery will support a second degree murder conviction. La.R.S.
14:30.1(A)(2).

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“In providing a wide range of criminal sanctions for violations
of a statute, the legislature obviously intends that the [trial court] shall
exercise [its] sentencing discretion to impose sentences gradated
according to the individualized circumstances of the offense and of
the offender.” State v. Sepulvado, 367 So.2d 762, 766 (La.1979).
Indeed, the individualization of a sentence cannot be accomplished
“without independently considering the merits of each case.” State v.
Day, 414 So.2d 349, 352 (La.1982). Simply stated, “[d]isparities are
inherent in a system where punishment is tailored to fit the defendant
and the crime.” Id.

Against that backdrop, it is clear that the trial court in the
present case heeded those statutory requirements and jurisprudential
admonitions. As reflected in the colloquy at the hearing on the
defendant’s motion to reconsider sentence, the State, without any
assertion to the contrary by the defendant, emphasized that the
defendant was more culpable of this crime than his co-defendants. In
making that assertion, the State stressed that it was the defendant who
approached the victim, entered her home without her permission,
brandished the knife, and stole from her. Accordingly, we find our
review of the record fully justifies the disparity in the sentences of the
co-defendants and exhibits that the trial court truly individualized the
sentence to this defendant.

State v. Prejean, 10-480, pp. 4-5 (La.App. 3 Cir. 11/3/10), 50 So.3d 249, 253.

In the present case, as the State notes in its brief and the trial court noted at

sentencing, a conviction for second degree murder carries a mandatory life term.

La.R.S 14:30.1(B). The supreme court has explained:

[T]o rebut the presumption that the mandatory minimum sentence is
constitutional, the defendant must clearly and convincingly show that:

[he] is exceptional, which in this context means that
because of unusual circumstances this defendant is a
victim of the legislature’s failure to assign sentences that
are meaningfully tailored to the culpability of the
offender, the gravity of the offense, and the
circumstances of the case.

Young, 94-1636 at pp. 5-6, 663 So.2d at 528 (Plotkin, J., concurring).

State v. Johnson, 97-1906, p. 8 (La. 3/4/98), 709 So.2d 672, 676.

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This is not the exceptional case contemplated by Johnson. Louisiana

jurisprudence would be significantly impacted if being a principal but not the

shooter in a murder case were held to necessitate a sentence less than life.

Defendant was convicted of second degree murder and received the statutorily-

required sentence. Sibley was able to plead to manslaughter, a different charge,

and he received a different sentence. For the reasons discussed, this assignment

lacks merit.

DECREE

The convictions and the life sentence for second degree murder are affirmed.

AFFIRMED.

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