State of Louisiana v. Wilford B. Vangure AKA Wilfred Vangure AKA Wilfred B. Vangure

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-118 consolidated with 14-119

STATE OF LOUISIANA

VERSUS

WILFORD B. VANGURE
AKA WILFRED VANGURE
AKA WILFRED B. VANGURE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NOS. CR121534, CR122085
HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Michael Harson
District Attorney
J.N. Prather, Jr.
Assistant District Attorney
Fifteenth Judicial District
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Wilford B. Vangure, aka Wilfred Vangure, aka Wilfred B. Vangure

Wilford B. Vangure
DOC #472801
Louisiana State Penitentiary
Walnut 1 B-L-47
Angola, LA 70712
IN PROPER PERSON
Wilford B. Vangure

PETERS, J.

A Lafayette Parish jury convicted the defendant, Wilford B. Vangure (also

known as Wilfred Vangure and/or Wilfred B. Vangure), of second degree murder,

a violation of La.R.S. 14:30.1, and possession of a firearm by a convicted felon, a

violation of La.R.S. 14:95.1. Thereafter, the trial court sentenced him to serve life

in prison at hard labor, without benefit of probation, parole, or suspension of

sentence on the second degree murder conviction; and to serve fifteen years at hard

labor on the firearm possession offense. The trial court ordered that the sentences

run consecutive to one another. On appeal, the defendant’s appellate counsel has

asserted three assignments of error, and the defendant has asserted three pro se

assignments of error. For the following reasons, we affirm the defendant’s

convictions in all respects.

The second degree murder charge arises from a July 5, 2008 physical

altercation which began in a Lafayette, Louisiana nightclub and ended with the

shooting death of Paxton Simon.1 The firearm possession charge arises because

the defendant had previously been convicted of possession with intent to distribute

cocaine, a violation of La.R.S. 40:967(A)(2). A Lafayette Parish Grand Jury

indicted the defendant for the second-degree-murder offense, and the State of

Louisiana (state) charged the defendant by bill of information with the firearm-

possession offense.

Appellate Counsel’s Assignment of Error Number One

In this first assignment of error, the defendant argues that the evidence

admitted at trial was insufficient to support his conviction of second degree

murder.

1
While both the grand jury indictment and bill of information state that the offenses
occurred “on or about” Saturday, July 5, 2008, testimony from various witnesses set the actual
shooting in the early hours of Sunday, July 6, 2008.

As it applies to this offense, second degree murder is defined as “the killing

of a human being” “[w]hen the offender has the specific intent to kill or to inflict

great bodily harm[.]” La.R.S. 14:30.1(A)(1). Additionally, the standard of review

with regard to a sufficiency of evidence issue is well settled:

When an appellate court reviews a sufficiency of the evidence
claim, the standard applied 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, 318-19, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676,
678 (La.1984). This standard has been codified by our legislature in
Louisiana Code of Criminal Procedure article 821, which provides:
“A post verdict judgment of acquittal shall be granted only if the court
finds that the evidence, viewed in a light most favorable to the state,
does not reasonably permit a finding of guilty.” When circumstantial
evidence is used to prove the commission of the offense, Louisiana
Revised Statute § 15:438 mandates, “assuming every fact to be proved
that the evidence tends to prove, in order to convict, it must exclude
every reasonable hypothesis of innocence.” State v. Neal, 00-0674, p.
9 (La.6/29/01); 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122
S.Ct. 1323, 152 L.Ed.2d 231 (2002). This is not a separate test that
applies instead of a sufficiency of the evidence test when
circumstantial evidence forms the basis of the conviction. State v.
Cummings, 95-1377, p. 4 (La.2/28/96); 668 So.2d 1132, 1134.
Rather, all of the evidence, both direct and circumstantial, must be
sufficient under Jackson to convince a rational juror the defendant is
guilty beyond a reasonable doubt. It is not the function of the
appellate court to assess credibility or reweigh the evidence. Id.

State v. Dorsey, 10-216, pp. 42-43 (La. 9/7/11), 74 So.3d 603, 633, cert. denied, __
U.S. __, 132 S.Ct. 1859 (2012).

It is not disputed that on the evening of July 5, 2008, the defendant and his

brother, Dustin Vangure (also known as “Ducky” and referred throughout the trial

by that name) went to Night Caps, a Lafayette, Louisiana night club, and became

involved in a physical altercation with Mr. Simon and some of his friends. The

defendant and Ducky arrived first, and, at approximately 11:30 p.m., Mr. Simon,

Jeremy Nelson, Nakavin Gardner, and a friend named Chuck2 arrived at the club.

2
Chuck’s last name was not given by any witness.

2

Shortly thereafter, an altercation broke out initially between Ducky and Mr. Simon,

but quickly escalated into a fight involving the victim and his friends on one side

and the defendant, Ducky, and their friends on the other. Because of the

altercation, Mr. Simon, Mr. Nelson, the defendant, and Ducky were expelled from

the club. Approximately twenty-five minutes later, Mr. Simon lay in the parking

lot of the Loose Caboose, another night club located approximately one block from

the Night Caps club, dying from a gunshot wound to the shoulder.

The original altercation in the Night Caps club began when Mr. Simon and

Ducky exchanged harsh words. Initially, the defendant attempted to calm the

situation by getting between the two men and telling Mr. Simon that because they

were all from the same community, their dispute did not have to be settled in the

club. However, the defendant’s peacemaking efforts failed when Ducky reached

over his shoulder and sucker-punched Mr. Simon. A number of people joined the

altercation, and, ultimately, the club security personnel threw Mr. Simon, Mr.

Nelson, the defendant, and Ducky out of the club. Mr. Garner and Chuck were not

ejected from the club and remained inside after the others were forced to leave.

Once outside, Mr. Simon and Mr. Nelson walked to the parking lot of the

Loose Caboose where they had left their vehicle. Because the vehicle belonged to

Chuck and because they left Chuck in the other club, Mr. Nelson returned three

different times to Night Caps to find him. He was unsuccessful all three times, but

when returning to the Loose Caboose on the last trip, he heard gunshots coming

from the direction of the Loose Caboose. Thus, he did not see the actual shooting

of Mr. Simon. The state did, however, produce two eyewitnesses to the shooting,

Marissa Joseph and Officer Oren Haydell of the Lafayette City Police Department.

3

Ms. Joseph testified that she observed the defendant walking back and forth

in the parking lot of the Loose Caboose at approximately 1:00 a.m. on July 6,

2008, as she and some of her friends were sitting in their vehicle in the parking lot.

She recognized the defendant because she and he had attended both middle and

high school together. 3 As she and her friends exited their vehicle and started

walking towards the club, she observed the defendant walk up to a young man and

“pull out something.” While she did not see a weapon, she then heard three

gunshots, and she and her friends ran back to their vehicle. According to Ms.

Joseph, when the shooting occurred the two men were so close that they could

reach out and touch each other. 4

Officer Haydell was working mounted patrol in the early hours of July 6,

2008, and found himself directly in front of the Loose Caboose at approximately

1:00 a.m., when he heard several gunshots coming from the rear of the club. He

immediately turned in the direction of the shots and had an unobstructed view of a

black male holding a pistol, and saw the flash coming out of the gun’s barrel on the

last shot. Officer Haydell testified that the man immediately ran from the scene

with he and his mounted partner in pursuit. As they chased the man through the

neighborhood, Officer Haydell radioed for assistance and, before the two officers

could apprehend the man, two other officers arrived on the scene and took him into

custody. Officer Haydell identified the man taken into custody as the individual he

saw discharge the firearm in the Loose Caboose parking lot, and, later that

3
Although the prosecutor had Ms. Joseph indicate the distance between her and the
defendant, he did so by walking to her and having her stop him at the proper distance. No
estimate as to the distance in feet was noted for the record.
4
There was testimony regarding how close Ms. Joseph was to the defendant at the time
of the shooting, but the record does not reflect the actual distance.

4

evening, he selected the defendant’s picture from a photographic lineup as the

individual who fired the weapon.5

When initially taken into custody, the defendant had no weapon and was not

wearing shoes. However, a subsequent search of the area between the Loose

Caboose and where the defendant was apprehended resulted in the recovery of a

semi-automatic Jennings .380 handgun and a pair of white Gucci tennis shoes.

Subsequent scientific testing established the recovered handgun as the weapon

used in the shooting of Mr. Simon, but DNA testing of both the handgun and tennis

shoes did not connect the two items of evidence to the defendant.

Identification Element

In this portion of his first assignment of error, the defendant asserts that the

evidence was insufficient to identify him as the person who shot Mr. Simon. He

argues that there existed many discrepancies between the testimony of Ms. Joseph

and Officer Haydell concerning what they observed at the scene of the offense and

that these discrepancies are sufficient to call into question their identity of him.

Additionally, he notes that the DNA evidence did not connect him to the weapon

used in the shooting or the recovered tennis shoes.

The defendant points out that Ms. Joseph testified at trial that the defendant

was wearing a “wife-beater”6 and jeans and was holding a T-shirt in his hand,

when she saw him in the Loose Caboose parking lot, and that she vaguely recalled

that he was wearing white tennis shoes. On the other hand, Officer Haydell

testified that the defendant was wearing a white T-shirt and khaki shorts when he

5
The lineup became necessary because of a communication breakdown within the
Lafayette Police Department after the defendant was taken into custody. The defendant was
ordered released by another officer on the mistaken belief that other officers had taken the
shooter into custody at another location. Twenty to thirty minutes later, someone realized the
error of releasing the defendant, thus prompting the lineup.
6
A “wife-beater” is a man’s white tank top. See Merriam-Webster.com.
5

first saw him in the parking lot and when he was apprehended after the chase

through the neighborhood. The other officers involved in the defendant’s

apprehension confirmed that the defendant was dressed as described by Officer

Haydell. Additionally, Ms. Joseph’s trial testimony differed from the statement

she initially gave to the investigating officers wherein she stated that she was not

sure whether the defendant was wearing jeans or some other form of pants.

The defendant also points to the fact that Ms. Joseph admitted to a close

friendship with the Simon family and that she did not speak to any of the family or

law enforcement until a month after the shooting. Ms. Joseph attempted to

explain the delay away by suggesting that she did not consider what happened to

initially be any of her concern. However, she was clear in her testimony that she

recognized the man she saw in the parking lot as the defendant and not Ducky

because she knew the brothers well enough to tell them apart.

Concerning the chase immediately after the shooting, the defendant asserts

that Officer Haydell’s identification is suspect because he acknowledged that on at

least two occasions he lost sight of the fleeing suspect as he ran between buildings.

While Officer Haydell did testify that he temporarily lost sight of the fleeing

suspect on two occasions, both times were short in duration and, on one of the

times, he and his partner found the suspect crouching behind a building. It was at

this location where the weapon and tennis shoes were discovered subsequent to the

defendant being taken into custody. Additionally, a number of other officers

arriving at the scene observed the general path taken by the suspect from the Loose

Caboose to the point he was taken into custody. One of those officers involved in

taking the defendant into custody, Captain Luraine Richard, of the Lafayette City

6

Police Department, testified that once he was handcuffed, the defendant blurted

out, “Man, I didn’t do this guy anything. He hit me in the mouth.”

With regard to the DNA evidence, Carolyn Booker, a forensic DNA analyst

with the Acadian Crime Lab testified that the DNA on the weapon matched that of

the officer who recovered it and that it could have been transferred to the weapon

through perspiration even though the officer was wearing gloves. With regard to

the tennis shoes, Ms. Booker testified that a shoe is notoriously bad for DNA

profiles because it is usually dirty and contains bacteria which destroy DNA. She

found a DNA profile on one shoe and a mixed profile on the other and testified that

both the defendant and Ducky were excluded from these profiles.

Finally, while Ms. Joseph testified that the defendant and Mr. Simon were

very close together in the parking lot, Dr. Joel Carney, the Lafayette, Louisiana

forensic pathologist who performed the autopsy on Mr. Simon, testified that there

was no evidence of stippling on the victim’s skin, and that “[d]istant range gunshot

wounds” would not deposit soot or cause stippling on the skin surrounding the

entrance wound. Officer Haydell testified that he had an unobstructed view of the

shooting, but did not indicate the distance between the two men.

In cases where the key issue is the defendant’s identity as the
perpetrator, rather than whether the crime was committed, the state is
required to negate any reasonable probability of misidentification.
Neal, 00-0674 at 11, 796 So.2d at 658 (citing State v. Smith, 430
So.2d 31, 45 (La.1983)). A positive identification by only one
witness is sufficient to support a conviction. Id.; See State v. Mussall,
523 So.2d 1305, 1311 (La.1988). A victim’s or witness’s testimony
alone is usually sufficient to support the verdict, as appellate courts
will not second-guess the credibility determinations of the fact finder
beyond the constitutional standard of sufficiency. State v. Davis, 02-
1043, p. 3 (La.6/27/03); 848 So.2d 557, 559. In the absence of
internal contradiction or irreconcilable conflict with physical
evidence, one witness’s testimony, if believed by the fact finder, is
sufficient support for a requisite factual conclusion. State v.
Robinson, 02-1869, p. 16 (La.4/14/04); 874 So.2d 66, 79.

7

Dorsey, 74 So.3d at 633-34.

While we recognize the inconsistencies pointed out by the defendant in his

argument to this court, the jury heard all of the evidence and, although it may have

questioned Ms. Joseph’s credibility, it clearly found the testimony of the

investigating officers, specifically Officer Haydell, to be credible. Applying the

Jackson standard as codified in La.Code Crim.P. art. 821, and based on the

evidence presented, we find that a rational trier of fact could have concluded that

the state established beyond a reasonable doubt that the defendant was the

individual who shot Mr. Simon.

Specific Intent to Kill or Inflict Great Bodily Harm

Next, the defendant contends that the state failed to prove that he had the

specific intent to kill or inflict great bodily harm. The defendant notes that three

shots were fired and, despite the two men being a foot apart, only one bullet struck

the victim. The defendant asserts that if the shooter had the specific intent to kill,

three shots to the chest area would not have been difficult and would have been

more likely than one of three shots striking the shoulder area. Further, Dr. Carney

observed no stippling when examining Mr. Paxton’s body, and the presence or

absence of stippling is used to determine the range of fire. Based on these factors,

the defendant asserts that the victim was not shot at close range.

It is well-settled that the act of pointing a gun at a person and firing
the gun is an indication of the intent to kill that person. State v.
Pierre, 02-277 (La.App. 3 Cir. 6/11/03), 854 So.2d 945, writ denied,
03-2042 (La.1/16/04), 864 So.2d 626; State v. Reed, 00-1537
(La.App. 3 Cir. 3/6/02), 809 So.2d 1261, writ denied, 02-1313
(La.4/25/03), 842 So.2d 391; State v. Clark, 93-1470 (La.App. 3 Cir.
10/5/94), 643 So.2d 463, writ denied, 94-2715 (La.2/9/95), 649 So.2d
418.

State v. Thomas, 10-269, p. 7 (La.App. 3 Cir. 10/6/10), 48 So.3d 1210, 1215, writ
denied, 10-2527 (La. 4/1/11), 60 So.3d 1248, cert. denied, __ U.S. __, 132 S.Ct.
196 (2011).
8

Firing into a crowd is also indicative of an intent to kill. State in the Interest of

L.H., 94-903 (La.App. 3 Cir. 2/15/95), 650 So.2d 433.

Officer Haydell testified that while clearing people from the sidewalk

alongside the Loose Caboose, he observed a man, whom he identified as the

defendant, fire a shot from a handgun in the parking lot where the defendant was

seen by Ms. Joseph speaking with a young man. The victim was found near that

area with a gunshot wound to the shoulder, which caused his death. Based on this

evidence, we find that the defendant’s act of firing a handgun, whether it be

directly at the victim or into a crowd, indicated his specific intent to kill.

Manslaughter

Finally, the defendant argues that we should consider whether the shooting

was committed in sudden passion or heat of blood immediately caused by

provocation sufficient to deprive an average person of his self-control and cool

reflection. The defendant asserts that if one of these mitigating factors is present,

the responsive verdict of manslaughter is appropriate.

However, because we find that the evidence, when viewed in the light most

favorable to the state, was sufficient to prove beyond a reasonable doubt that the

defendant committed the crime of second degree murder, we need not address the

defendant’s claim relative to manslaughter.

Appellate Counsel’s Assignment of Error Number Two

The defendant’s second assignment of error address his conviction of

possession of a firearm by a convicted felon. In this assignment of error, the

defendant contends that the evidence is insufficient to establish beyond a

reasonable doubt that he was in possession of a firearm on the late evening of July

5, 2008, or the early morning of July 6, 2008.

9

Louisiana Revised Statutes 14:95.1 (footnote omitted) provides, in pertinent

part:

A. It is unlawful for any person who has been convicted of . . .
any violation of the Uniform Controlled Dangerous Substances Law
which is a felony . . . to possess a firearm or carry a concealed
weapon.

....

C. The provisions of this Section prohibiting the possession of
firearms and carrying concealed weapons by persons who have been
convicted of certain felonies shall not apply to any person who has not
been convicted of any felony for a period of ten years from the date of
completion of sentence, probation, parole, or suspension of sentence.

D. For the purposes of this Section, “firearm” means any pistol,
revolver, rifle, shotgun, machine gun, submachine gun, black powder
weapon, or assault rifle which is designed to fire or is capable of firing
fixed cartridge ammunition or from which a shot or projectile is
discharged by an explosive.

In State v. Recard, 97-754, p. 9 (La.App. 3 Cir. 11/26/97), 704 So.2d 324,

329-30, writ denied, 97-3187 (La. 5/1/98), 805 So.2d 200, this court discussed the

state’s burden of proof in such cases as follows:

To convict defendant of possession of a firearm by a convicted
felon, the State must prove beyond a reasonable doubt: (1) the
possession of a firearm; (2) a previous conviction of an enumerated
felony; (3) absence of the ten-year statutory period of limitation; and,
(4) general intent to commit the offense. La.R.S. 14:95.1; State v.
Husband, 437 So.2d 269 (La.1983); State v. Tatum, 27,301 (La.App. 2
Cir. 9/27/95); 661 So.2d 657. . . .

La.R.S. 14:95.1 requires only general criminal intent, which
means that the circumstances indicate that the accused “in the
ordinary course of human experience, must have adverted to the
prescribed criminal consequences as reasonably certain to result from
his act or failure to act.” La.R.S. 14:10(2). Although the existence of
intent is a question of fact, it need not be proven as such, but may be
inferred from the circumstances of a transaction. La.R.S. 15:445.

The defendant does not argue that he is not a convicted felon, and the

evidentiary record before us establishes that on September 5, 2003, he pled guilty

to possession with intent to distribute cocaine, a violation of La.R.S. 40:967. In
10

arguing the lack of evidence of this offense, the defendant relies on the same facts

and discrepancies raised in his first assignment of error to argue that the state failed

to negate any reasonable probability of misidentification in proving that he was in

possession of a firearm at the time of the shooting. For the reasons previously

expressed, we find that the state established beyond a reasonable doubt that the

defendant was in possession of a handgun on the dates in question. We find no

merit in this assignment of error.

Appellate Counsel’s Third Assignment Of Error

In his third assignment of error, the defendant contends that the trial court

erred in permitting the state to reject his offer to admit or stipulate to the prior

conviction and in permitting evidence of the name and nature of the prior

conviction without admonishing the jury as to the limited use of the evidence of

the prior conviction in arriving at verdicts in this case.

Prior to jury selection, the defendant’s counsel informed the trial court that

he planned to object to any reference to the underlying conviction relating to the

firearm-possession charge and that the defendant was prepared to stipulate that he

had been convicted of a predicate charge listed in La.R.S. 14:95.1. The state

rejected the stipulation and asserted that it was entitled to inform the jury of the

specific felony for which the defendant had been previously convicted. The trial

court overruled the defendant’s objection on this point. After presenting testimony

of the prior drug conviction, the state offered the court minutes of the underlying

offense as further evidence of his conviction. The trial court allowed the

introduction of the minutes over the defendant’s objection that the minute entry

was not necessary, prejudicial, and had no bearing on the case. On appeal, the

11

defendant asserts that the trial court erred in allowing the minutes to be admitted as

evidence. We disagree.

In order to prove a violation of La.R.S. 14.95.1, the state must prove that the

defendant was previously convicted of one of the specific crimes enumerated in

Subsection A of that statute. In this instance, the state was required to prove that

the defendant was previously convicted of “any violation of the Uniform

Controlled Dangerous Substances Law which is a felony[.]” La.R.S. 14:95.1(A)

(footnote omitted). Although the defendant relies on Old Chief v. United States,

519 U.S. 172, 117 S.Ct. 644 (1997),7 the Louisiana Supreme Court has declined to

follow Old Chief with regard to the state’s admission of evidence pertaining to a

defendant’s conviction of a prior crime pursuant to La.R.S. 14.95.1. State v. Ball,

99-428 (La. 11/30/99), 756 So.2d 275. The court did so for two reasons, first,

because the Supreme Court’s decision was based on the specific language of 18

U.S.C. § 922, rather than on constitutional principles binding on the states, and,

second, because La.R.S. 14:95.1 “defines the crime by specific enumerated prior

offenses, contrary to the broad definition in the federal statute[.]” Id. at 278. In

State v. Davis, 13-237, p. 16 (La.App. 5 Cir. 10/30/13), 128 So.3d 1170, 1171

(alteration in original), the court stated:

We find no error in the admission of evidence relating to the
April 5, 2010 shooting. Evidence that Defendant shot someone on
April 5, 2010 with the same gun used to kill Ross six days later was
relevant to establish that Defendant killed Ross by showing identity,
opportunity and plan. The State was not required to accept
Defendant’s stipulation in lieu of presenting evidence. The State
cannot be robbed of the moral force of its case merely because a
stipulation is offered. See State v. Watson, 449 So.2d 1321, 1326
(La.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952
(1985). “[T]he prosecution is entitled to prove its case by evidence of
its own choice” and a defendant “may not stipulate or admit his way

7
In Old Chief, 519 U.S. 172, the Supreme Court ruled that evidence of a prior conviction
was prejudicial to a defendant charged under federal law with being a felon in possession of a
firearm.
12

out of the full evidentiary force of the case as the government chooses
to present it.” State v. Ball, 99-428 (La.11/30/99), 756 So.2d 275, 280
(quoting Old Chief v. United States, 519 U.S. 172, 186-87, 117 S.Ct.
644, 136 L.Ed.2d 574 (1997)).

The defendant admits that the state cannot be denied the full force of its case

by requiring it to stipulate to certain facts. However, because he sought to limit the

state’s use of the prior enumerated conviction, he argues that he was entitled to

have the jury admonished that the prior conviction could only be considered as

proof of an element of the offense. Based on the trial court’s failure to so

admonish the jury, the defendant argues that the trial court erred in denying his

request to stipulate to the prior conviction.

In State v. Sims, 98-1304 (La.App. 1 Cir. 4/1/99), 734 So.2d 813, the first

circuit held that a limiting instruction was not required when proof of a prior

conviction was a requisite element of the charged offense. See also State v.

Bullock, 604 So.2d 715 (La.App. 4 Cir. 1992). Additionally, the defendant did not

request a limiting instruction nor object to the trial court’s failure to give one.

Thus, we find that the defendant’s third assignment of error lacks merit or that he

failed to preserve this claim for review. See La.Code Crim.P. art. 841.

Defendant’s First Pro Se Assignment of Error

In his first pro se assignment of error, the defendant argues that the trial

court used elements not presented to the jury during his sentencing, in violation of

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), which he claims

violates his rights under the U.S. Const. amends. IV, V, VI, VIII, and XIV and

La.Const. arts. 1, § 2, 3, 5, 13, 14, 16, 17, 19, 20, 22, and 24, and that the trial court

erroneously denied him a presentence hearing to rebut allegedly false statements

made by the prosecutor. However, as the defendant has failed to brief this

13

assignment of error, we consider this assignment as being abandoned. Uniform

Rules—Courts of Appeal, Rule 2-12.4.

Defendant’s Second Pro Se Assignment of Error

In his second pro se assignment of error, the defendant argues that the trial

court erred when it failed to rule on a motion to quash the indictment and bill of

information prior to the trial on the grounds that they failed to comply with the

particular mode or form prescribed by constitution or statute. He further argues

that the indictment and bill of information used to charge him were short form

documents, which failed to state the elements of the crimes charged, and that all

short form indictments are unconstitutional pursuant to La.Code Crim.P. art. 464.

Although the record reveals that the defendant filed motions to quash in both

trial court docket numbers on May 23, 2011, both motions sought to dismiss the

charges against him based on the fact that DNA testing revealed that he had not

handled the gun. Thus, motions to quash based on the inadequacy of the charging

documents was never raised by the defendant prior to trial.

The time for testing the sufficiency of an indictment or bill of
information is before trial by way of a motion to quash or an
application for a bill of particulars. State v. Gainey, 376 So.2d 1240,
1243 (La.1979). A post-verdict attack on the sufficiency of an
indictment should be rejected unless the indictment failed to give fair
notice of the offense charged or failed to set forth any identifiable
offense. State v. Williams, 480 So.2d 721, 722, n. 1 (La.1985);
La.C.Cr.P. art. 465, Official Revision Comment (a). Given counsel’s
failure to file a motion to quash, the defendant arguably waived any
claim based on the allegedly defective indictment.

Notwithstanding the procedural bar to the claim, the Louisiana
Constitution of 1974 provides that an accused shall be informed of the
nature and cause of the accusation against him. La. Const. Art. I, § 13.
That requirement is implemented by La.C.Cr.P. art. 464, which
provides:

The indictment shall be a plain, concise and definite
written statement of the essential facts constituting the
offense charged. It shall state for each count the official
14

or customary citation of the statute which the defendant
is alleged to have violated. Error in the citation or its
omission shall not be ground for dismissal of the
indictment or for reversal of a conviction if the error or
omission did not mislead the defendant to his prejudice.

La.C.Cr.P. art. 465 authorizes the use of specific short form
indictments in charging certain offenses, including first degree murder.
The constitutionality of short forms has been consistently upheld by
this Court. State v. Baylis, 388 So.2d 713, 718-19 (La.1980); State v.
Liner, 373 So.2d 121, 122 (La.1979). When those forms are used, it
is intended that a defendant may procure details as to the statutory
method by which he committed the offense through a bill of
particulars. Baylis, 388 So.2d at 719; State v. Johnson, 365 So.2d
1267, 1270-71 (La.1978); La.C.Cr.P. art. 465, Official Revision
Comment (a).

State v. Draughn, 05-1825, pp. 60-61 (La. 1/17/07), 950 So.2d 583, 623-24, cert.
denied, 552 U.S. 1012, 128 S.Ct. 537 (2007).

Based on the foregoing, a review of the charging documents is necessary to

determine whether they complied with the requirements of La.Const. art. 1, § 13,

by informing him of the nature and cause of the accusation against him.

The defendant was charged by indictment for the crime of second degree

murder, which read in part:

WILFORD B VANGURE
AKA WILFRED VANGURE AKA WILFRED B. VANGURE

at the Parish of Lafayette on or about the 5th day of July in the year
of our Lord, Two Thousand and Eight, 2008;

did commit second degree murder of one PAXTON SIMON, in
violation of the provisions of R.S. 14:30.1.

He was charged by bill of information for the crime of possession of a firearm by a

convicted felon, which read in part:

WILFORD B VANGURE
AKA WILFRED VANGURE AKA WILFRED B. VANGURE

at the Parish of Lafayette on or about the 5th day of July in the year
of our Lord, Two Thousand and Eight, 2008;

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WILFORD B VANGURE COUNT 1 ON OR ABOUT THE 5th DAY
OF July 2008, being a person having been convicted of a felony, to-
wit: POSSESSION WITH INTENT TO DISTRIBUTE COCAINE,
DOCKET NUMBER 03385, State of Louisiana, Parish of Iberia, on
September 5, 2003, did willfully and unlawfully possess a firearm, in
violation of the provisions of R.S. 14:95.1[.]

Upon review, we find that the defendant was informed of the nature and

cause of the two crimes based on the documents by which he was charged. The

indictment complies with the short form for second degree murder provided by

La.Code Crim.P. art. 465(32), which states, “Second Degree Murder—A.B.

committed second degree murder of C.D.” Furthermore, the bill of information

substantially complies with the form provided by La.Code Crim.P. art. 463, which

states:

In the (Here state the name of the court.) on the ______ day of
______, 19___. State of Louisiana v. A.B. (Here state the name or
description of the accused.).

X.Y., District Attorney for the Parish of ______, charges that
A.B. (Here state the name or description of the accused.) committed
the offense of ______, in that (Here set forth the offense and
transaction according to the rules stated in this Title. The particulars
of the offense may be added with a view to avoiding the necessity for
a bill of particulars.) contrary to the law of the state of Louisiana and
against the peace and dignity of the same.

Accordingly, because we find that the defendant was notified of the nature

and cause of the crimes he was accused of, we find no merit in this assignment of

error.

Defendant’s Third Pro Se Assignment of Error

In his final pro se assignment of error, the defendant argues that the trial

court erred in allowing tainted evidence into the record in the form of the DNA

evidence given the fact that the only connection by DNA evidence to the weapon

and tennis shoes was to the officer who collected the evidence. However, as the

defendant has failed to brief this assignment of error, reference the record’s page
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number containing the basis for the alleged error, or to set forth any legal authority

for his claims, we consider this assignment as being abandoned. Uniform Rules—

Courts of Appeal, Rule 2-12.4.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s convictions in all

respects.

AFFIRMED.

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

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