State of Louisiana v. Detriavion D. Green

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-149

STATE OF LOUISIANA

VERSUS

DETRIAVION D. GREEN

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 351,275
HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
CHIEF JUDGE

**********

Court composed of Elizabeth A. Pickett, Sharon Darville Wilson, and Guy E.
Bradberry, Judges.

CONVICTIONS AND SENTENCES VACATED;
JUDGMENTS OF ACQUITTAL ENTERED.

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 6547
Lake Charles, LA 70606-6547
(337) 436-2900
COUNSEL FOR DEFENDANT-APPELLANT:
Detriavion D. Green

J. Phillip Terrell, Jr.
District Attorney, Ninth Judicial District
Kelvin G. Sanders
Assistant District Attorney
P. O. Box 7358
Alexandria, La 71306-7358
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Chief Judge.

FACTS

Detriavion Green, the defendant, was charged by bill of indictment with the

second degree murder of Shemar Nash, in violation of La.R.S. 14:30.1, and the

attempted second degree murder of Day’lon Patterson, in violation of La.R.S.

14:27 and 30.1. The defendant was found guilty as charged by a unanimous jury

verdict. The trial court sentenced the defendant to life imprisonment at hard labor

without parole, probation, or suspension of sentence for second degree murder and

sixteen years for attempted second degree murder, to run concurrently. He is

before this court appealing his convictions.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find there are no errors patent.

ASSIGNMENTS OF ERROR

1) The evidence was insufficient to prove beyond a reasonable
doubt the identity of the person who shot and killed Shemar
Nash and shot in the direction of Day’Lon Patterson.

2) When viewed under the Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, the evidence was
insufficient to prove beyond a reasonable doubt that Detriavion
Green either killed Shemar Nash or participated in an armed
robbery during which Shemar Nash was killed.

3) When viewed under the Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, the evidence was
insufficient to prove beyond a reasonable doubt that Detriavion
Green attempted to commit second degree murder of Day’Lon
Patterson.

4) Defense counsel rendered assistance below that required by the
Sixth Amendment when he failed to request a “great caution”
charge, failed to object to the trial court’s failure to give a “great

caution” charge, and failed to object to the court’s definition of
attempted second degree murder, which erroneously included a
felony-murder alternative. Additionally, attempted second
degree murder required a finding that Green specifically
intended to kill Day’lon Patterson. Thus, the court’s instruction
that a guilty verdict could be returned if the jurors concluded that
the offender was engaged in the perpetration or attempted
perpetration of armed robbery even though he had no intent to
kill was a misstatement of the law. Counsel’s failure to object to
both the insufficient and incorrect jury instructions given by the
court deprived Detriavion Green of his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution and the attendant provisions of the Louisiana
Constitution and resulted in prejudice to Detriavion Green.

5) The trial court erred in failing to properly advise Detriavion
Green that the time frame within which he had to file an
application for post-conviction relief did not begin to run until
his judgment of conviction was final.

ASSIGNMENTS OF ERROR ONE, TWO, AND THREE

In these combined assignments of error, the defendant raises several

challenges to the sufficiency of the evidence presented by the state. We will first

discuss the evidence presented at trial then discuss the specific challenges raised by

the defendant.

Trial Transcript and Joint Exhibit

Angie Branton, director of the Rapides 911 Center, testified that they

received a call on January 6, 2021, at approximately 23:06 hours from Trent

Roberson of 2404 Detroit Street reporting that his friend had been shot in the head.

The case was assigned to Alexandria Police Detective Tod Beaman, who

arrived on the scene after patrol officers had secured it. Upon arrival, he saw a

deceased male, Nash, next to the stairs leading to the side entrance of the house. It

appeared that Nash had been shot in the face with an exit wound on the back of his

head. Roberson, the only person present at the scene, was brought to the station

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for questioning. Detective Beaman interviewed Roberson and searched his cell

phone after obtaining consent. He saw that immediately prior to the 911 call, a

contact labeled “Yay-O head hunter” had called Roberson. This individual was

identified as Marckeeyse Dorsey (Dorsey), a name familiar to Detective Beaman

from previous cases he had worked, including the robbery of “an AR-15 style rifle

that was chambered in 762 by 51 which is a very large caliber.”

The communication between Roberson and Dorsey prompted a second

interview with Roberson a short time later. He confirmed that Dorsey was at his

residence that night. Detective Beaman also conducted a search of Nash’s phone,

and he found photographs of a rifle matching the rifle previously described, the

one taken in a previous robbery. The label on the photograph, “762 2000 or

better,” indicated “they” were trying to sell the rifle. Anonymous tips led to others

who may have been present that night.

In the course of investigation, Detective Beaman learned there were others

present at Roberson’s house that night, including Eric Tison, Jimique Tison, and

Day’Lon Patterson (Patterson). Roberson confirmed this information. According

to Detective Beaman, two people were interviewed, and their stories corroborated

each other. As for physical evidence, Detective Beaman testified that the police

received a jacket from Patterson. The jacket had a hole suspected to have been

made from a bullet entry and exit and burn marks consistent with a gunshot at

close range. Detective Beaman testified that they interviewed Roberson a total of

three times, and the information they received was consistent with other

information uncovered in the investigation.

Alexandria Police Sergeant Chris Fonville photographed the scene and

collected evidence from Roberson’s house. In the yard, he identified what he

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suspected to be a piece of the victim’s skull twenty-seven feet away from the

victim’s body. While searching the bedroom, he discovered two bags of marijuana

under the dresser. Inside a drawer, he found an empty Glock “9 millimeter

magazine and an unfired 7562 cartridge,” later described as a “762 by 39

cartridge.” During the investigation, law enforcement also recovered two cell

phones, one of which was a Samsung Android belonging to the victim Nash.

Sergeant Fonville testified that he attended Nash’s autopsy, and he took a

photograph of Nash showing the entry wound which was “[a]pproximately a

centimeter by one centimeter.” On cross-examination, Sergeant Fonville

confirmed that neither the murder weapon nor any spent shell casings were located

at the scene.

Roberson, the occupant of the home where the shooting occurred, testified

that on January 6, 2021, he was living in the home with his mother and his little

brother. That night, around 11:00 p.m., Dorsey, Nash, and Trey (the defendant)

were also present at the house. While they were there, other people showed up as

well, but Roberson testified he did not know any of them, including Patterson. He

testified that he was inside the house and thus unaware of how many other

individuals showed up that night.

Roberson was first shown his January 14, 2021 statement made to Sergeants

“Bowman [sic]” and Butler, the content of which he claimed was forced by

Sergeant Butler. He testified that he did not make the statement that Dorsey and

Patterson were at his house. Roberson acknowledged that he was arrested for

armed robbery relating to this case and that he entered a plea to robbery of Eric

Tison and Jimique Tison, which he said was also forced due to threats. At the time

4

of trial, he was serving time for the robbery, but his case was complete. Roberson

was an uncooperative witness, at times invoking the Fifth Amendment.

After Roberson’s testimony, the state recalled Detective Beaman as a

witness. He explained that after the initial interview of Roberson was conducted,

the detectives stepped out to review information and then interviewed Roberson a

second time. One week later, after gaining more information, Roberson was

interviewed a third time. All three interviews were recorded. Detective Beaman

testified that Roberson was advised of his rights, and Detective Beaman identified

the advice of rights forms signed by Roberson on January 7, 2021, and January 14,

2021. Detective Beaman testified that the defendant was not forced to sign either

form.

Prior to the interviews being played for the jury, Detective Beaman

explained that their procedure is typically to record the entire interview, but after

the interview, they often digitally record “another question and answer deal” to be

more concise for transcription. Usually, the entire video interview is not

transcribed due to its length. The jurors were provided with the transcribed portion

of Roberson’s statements for their viewing during the playing of his interviews.

Detective Beaman testified that during the third and final interview,

Roberson disclosed that the defendant was at the house in addition to Dorsey,

Nash, Patterson, and two brothers, whom he described as being tall. Patterson was

at the house to buy narcotics. After the drug transaction was completed, Roberson

turned back to walk to his room, and he heard a shot. Upon hearing the shot, he

went to the side door of the house where he saw that Nash had been shot. Dorsey

was in the house during this time, and he retrieved a gun. After hearing the shot,

Roberson did not see the defendant again. Roberson saw Dorsey after the shooting,

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but everyone else fled. Roberson, in his statements, said he had nothing to do with

the planning or execution of the robbery. From Roberson’s statements, Detective

Beaman did not know of the defendant’s involvement in the robbery. From what

Roberson indicated, Dorsey and Nash planned the robbery. In Roberson’s second

statement, he acknowledged that Dorsey was there, and, in the third statement, he

provided the other names. According to Detective Beaman, at the time of the

shooting, Roberson’s statement placed Dorsey inside the house and Nash and the

defendant outside. Detective Beaman testified that Patterson was deceased at the

time of trial, as was Eric Tison, both of whom had been present at Roberson’s

house that night. Their deaths were unrelated to this case.

As joint exhibits, the court minutes and guilty pleas from Roberson’s and

Dorsey’s proceedings were entered into the record. A review of the documents

contained therein revealed that Roberson and Dorsey were jointly charged with the

January 6, 2021 armed robbery of Eric Tison and Jimique Tison. Plea forms and

court minutes dated April 25, 2022, indicated that Roberson pled guilty to first

degree robbery and was sentenced to serve five years at hard labor without the

benefit of parole, probation, or suspension of sentence. Dorsey also pled guilty to

first degree robbery and was sentenced to serve five years at hard labor.

Roberson’s Three Recorded Interviews

In Roberson’s first statement, he said that he and Nash were at his house

watching a basketball game and smoking weed. Nash received a phone call and

went outside to talk to someone. About five to seven minutes after Nash went

outside, Roberson heard a shot. He ran outside, found Nash lying on the side of

the steps, and he called police. Roberson’s cousins Antony and Devante had been

at the house earlier, but they left a few hours before the shooting occurred. During

6

the course of the interview, police told Roberson that “people on the street” said

Nash had gotten into a fight several weeks prior, and they asked Roberson if he

knew anything about it. He said, “[y]eah, at my house, it was him and my cousin.

They was high off of, you know . . . ecstasy pills.” Roberson identified his cousin

as Marckeeyse Kirklin (Dorsey). Roberson said that he and Dorsey did not really

get along, and he did not hang out at Roberson’s house. In fact, they had “got[ten]

into it” the same night that Dorsey and Nash did. When he was asked to explain,

Roberson said that he thought somebody tried to steal some weed and “a few little

dollars” from Dorsey, and Dorsey suspected that Roberson and Nash had

something to do with it. According to Roberson, Dorsey was “on Xanax and just

tripping.” He said he did not think Dorsey could have “done this.”

In Roberson’s second interview, he said he, Dorsey, and Nash were at his

house watching a game. Dorsey was on the phone talking to someone “about

pulling up.” When asked what Dorsey’s intentions were, Roberson said, “I gu- - -

- they was trying to (inaudible) rob somebody[.]” When asked who “they” were, he

said “Yao [Dorsey] and Shemar [Nash].” He said Dorsey was talking, and Nash

“just tagged along.” He believed that Dorsey was selling weed and that he was

going to try to take their1 money. Dorsey and Nash went outside, and Roberson

believed both were armed. Dorsey had a black rifle with a handle on one end, and

Nash had a black pistol. About ten to fifteen minutes later, someone pulled up at

Roberson’s house. Approximately five minutes later, Roberson heard a shot, went

outside, and found Nash lying on the side of the steps. Dorsey was no longer there,

and Roberson could not tell whether Nash still had his gun on him. Approximately

1
Roberson did not say who “they” were.

7

two to three minutes later, Dorsey called Roberson asking, “is [Nash] okay

(inaudible) is did he get shot anything.” According to Roberson, Dorsey did not

return to the scene.

In the untranscribed portion of this interview, Roberson described the gun

that Dorsey had as long and having a handle on the front, agreeing it was probably

an AR-15. In speaking about a prior incident, Roberson said Dorsey “snaps easy”

and had shot at him the previous November during an argument.

The third and final interview was conducted one week later, after law

enforcement obtained additional information. In this interview, Roberson said that

he, Nash, Dorsey, and his cousin, Trey2 (the defendant), were at his house. It is

unclear whether the defendant was outside the whole time or whether he was inside

watching the game with the others at some point. In this statement, Roberson

initially said Trey (the defendant) was “outside or whatever uhm we was all

watching the game Shemar [Nash] had got a call he stepped outside (inaudible)

Uhm Yao [Dorsey] invited someone . . . there was a transaction.” Nash received a

phone call and stepped outside. A person named Patterson came in through the

side door which led into the kitchen. Roberson said Patterson, Dorsey, and two

other guys were in the kitchen. Roberson said he stood “mid in the hallway near . .

. the bathroom and the kitchen like it’s all like in one lil small lil gap.” He said he

could not see into the kitchen because the “two guys,” whom he believed to be the

buyers, were tall. However, Roberson could see Dorsey and Patterson. After the

transaction was completed, Roberson walked off and “they” opened the door and

he heard a “pow.” “Everybody scattering and I see Yao [Dorsey] run back in the

2
In the untranscribed portion of the recording, Roberson described Dorsey as his “blood
cousin” but said he did not know the defendant was his cousin.

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house grab a gun[,]” which he believed was a rifle. When Roberson walked

outside, he saw Nash lying on the ground, and he called police. Roberson denied

seeing the defendant after the shooting. When asked if the defendant was outside

with Nash, Roberson confirmed that they were both outside the house. He again

confirmed that while Patterson and the other two guys he did not know were inside

the house with Dorsey, Nash and the defendant were outside. After he heard the

gunshot, he did not see the defendant. Roberson was asked if Dorsey said anything

to him after the shooting, and he said he called “to confirm if [sic].” According to

Roberson, Patterson and the other two guys “took off.” Although Roberson

assumed a vehicle may have been there because everyone vanished quickly, he did

not see or hear one.

When Roberson was asked whether he said in his first statement that the

reason for the people coming to his house for the drug transaction was because

Dorsey was going to rob them, he replied, “Uhm I believe so but I don’t know.”

Roberson confirmed that police showed him a lineup, and he identified the

defendant as being the fourth person who was at his house that night.

After viewing the untranscribed portion of Roberson’s statement, we note

Roberson said Nash went outside and was talking. Dorsey and the defendant left

his room, and Roberson stayed in his room watching the game. He then heard a

bang and “Yay O [Dorsey] running.” He later added that Dorsey was running,

“getting everything.” Roberson admitted to leaving the defendant out of his prior

statements but added that he did not know what the defendant had to do with it.

He also said he did not think that the defendant had anything to do with it.

Roberson admitted to seeing the drug transaction in the kitchen, adding that the

defendant did not sell. He indicated he believed the defendant was outside with

9

Nash during the drug transaction. Roberson said a total of three people came to

buy weed, Patterson and two tall guys, but he denied knowing Patterson.3

Roberson said he did not want police to think Dorsey shot Nash because the

two were friends, and he did not think Dorsey did it. The officers told Roberson

they were ninety-five percent sure Dorsey did not shoot Nash, and Roberson

responded, “cool.” When police asked Roberson where the guns went, he said that

Dorsey picked one up from the couch and ran outside with it. Roberson did not see

the defendant with a gun. He did not see the defendant but believed he ran from

the scene with Dorsey. When police asked him for the defendant’s contact

number, Roberson said the defendant was a friend of Nash and Dorsey and he did

not have a phone number for him.

Louisiana Revised Statutes 14:30.1 defines second degree murder in

pertinent part as follows:

A. Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict
great bodily harm; or

(2) When the offender is engaged in the perpetration or
attempted perpetration of aggravated or first degree rape, forcible or
second degree rape, aggravated arson, aggravated burglary,
aggravated kidnapping, second degree kidnapping, aggravated escape,
assault by drive-by shooting, armed robbery, first degree robbery,
second degree robbery, simple robbery, cruelty to juveniles, second
degree cruelty to juveniles, or terrorism, even though he has no intent
to kill or to inflict great bodily harm.

Attempt is defined in La.R.S. 14:27 in pertinent part as:

A. 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

3
Although it is not clear, at one point in the interview, Roberson said that after the
transaction was done, before Patterson walked out, a guy came in the house. Dorsey let him in
and gave him the weed. At other points, Roberson made it sound as if no more than three buyers
came to the house, Patterson and the two tall guys.

10

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.

B. (1) 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.

Specific intent to kill is required for a conviction of attempted second degree

murder:

It is well settled in Louisiana jurisprudence that the crime of
attempted second degree murder cannot be based upon an underlying
felony. State v. Guccione, 96-1049, p. 17 (La.App. 5[] Cir. 4/29/97),
694 So.2d 1060, 1068, writ denied, 97-2151 (La. 3/13/98), 712 So.2d
869. An attempt to commit second degree murder requires that the
offender possess the specific intent to kill and commit an overt act
tending toward the accomplishment of that goal. LSA-R.S. 14:27(A);
14:30.1(A)(1). This is inconsistent with the felony-murder theory of
an unintentional killing as provided in LSA-R.S. 14:30.1(A)(2)(a).

State v. Graham, 02-1492, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 416, 421; see

also State v. Gay, 36,357, 36,358 (La.App. 2 Cir. 10/23/02), 830 So.2d 356.

The standard of review when the sufficiency of the evidence is challenged

on appeal is as follows:

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.

11

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. It is the factfinder’s role to weigh the respective
credibility of the witnesses, and the reviewing court will not second-
guess the credibility determinations of the factfinder beyond the
sufficiency evaluations under the Jackson standard of review. State v.
Richardson, 425 So.2d 1228 (La.1983). The testimony of a single
witness, if believed, and absent internal contradictions or
irreconcilable conflicts with physical evidence, is sufficient to support
a conviction. State v. Pierre, 14-1071 (La.App. 3 Cir. 5/6/15), 170
So.3d 348, writ denied, 15-1151 (La. 5/13/16), 191 So.3d 1054.

A conviction based on insufficient evidence cannot
stand as it violates Due Process. See U.S. Const. amend.
XIV; La. Const. art. I, § 2. The constitutional standard for
testing the sufficiency of the evidence, as enunciated in
Jackson, requires that a conviction be based on proof
sufficient for any rational trier of fact, viewing the
evidence in the light most favorable to the prosecution, to
find the essential elements of the crime beyond a
reasonable doubt. See La. Code Crim. P. art. 821(B);
State v. Ordodi, 06-207 (La. 11/29/06), 946 So.2d 654,
660. 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,” every reasonable
hypothesis of innocence is excluded. La.R.S. 15:438;
State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730
So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99),
748 So.2d 1157, 00-0895 (La. 11/17/00), 773 So.2d 732.
When a case involves circumstantial evidence and the
trier of fact reasonably rejects the hypothesis of
innocence presented by the defendant’s own testimony,
that hypothesis falls, and the defendant is guilty unless
there is another hypothesis that raises a reasonable doubt.
State v. Captville, 448 So.2d 676, 680 (La. 1984).

State v. Coleman, 17-1045, p. 6 (La.App. 1 Cir. 4/13/18), 249 So. 3d
872, 877, writ denied, 18-830 (La. 2/18/19), 263 So.3d 1155.

State v. Simmons, 23-661, pp. 2–3 (La.App. 3 Cir. 3/20/24), 381 So.3d 1033,

1036–37.

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The defendant raises several claims regarding the insufficiency of the

evidence presented by the state to support his conviction. First, he contends the

state failed to show that he was either the person who fired the fatal shot or that he

participated in an armed robbery during which Nash was shot. Additionally, the

defendant contends the state failed to prove that he attempted to shoot Patterson or

that he had the intent to kill him. The defendant notes that the only person placing

him in the vicinity of the shooting was Roberson, who was impeached at trial due

to his various inconsistent statements and his trial testimony that his prior

interviews were not truthful. Even if the jury found Roberson’s statements

truthful, the defendant contends that they were still insufficient to establish that a

robbery was taking place at the time of the shooting or that the defendant was still

present at the time of the shooting and purported robbery. Because there was no

corroboration of Roberson’s testimony or physical evidence connecting the

defendant to the shooting or placing him in possession of a weapon, he contends

that his identity as either the shooter or a principal was not proven beyond a

reasonable doubt.

Next, the defendant contends that no physical evidence connected him to the

shooting as the only evidence linking him to the killing was his presence at the

residence minutes prior to the shooting. Additionally, he contends that there was

no evidence establishing that a robbery of Patterson occurred, that there was a plan

to rob anyone, or even if there was a plan, that he was a part of the discussion. The

defendant contends that the fact he left the residence prior to the shooting was not

enough to establish his involvement or his awareness that Nash had been shot. He

notes that Roberson placed both Nash and Doyle (presumably Dorsey) outside at

the time of the shooting.

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Finally, the defendant contends that the evidence presented at trial was

insufficient to prove that he had the specific intent to kill Patterson, as required for

a conviction of attempted second degree murder, or that he did an act in

furtherance of this objective. He notes that the state incorrectly informed the jury

that it did not matter whether the shooting of Patterson was an accidental discharge

of the weapon when the robber stumbled or if it occurred with an intent to either

kill or inflict great bodily harm on Patterson.

In opposition, the state contends that the jury accepted Roberson’s testimony

and recorded statements, which established that there was a plan to rob individuals

who came to the house to buy marijuana, that there was at least one weapon (a

rifle) at the house at the time of the offense, that only the defendant, Patterson, and

Nash were outside of the house at the time of the shooting, and that the defendant

left after the shooting. This, the state argues, is strong circumstantial evidence of

the defendant’s involvement in the robbery plan, and it proved that he fired a shot

that passed through Patterson’s jacket and killed Nash.

The state contends that a reasonable jury could infer that the defendant

attempted to take something of value (either drugs or money) from Patterson, that

it was in his immediate control, that the defendant used force or intimidation by

pointing a gun at Patterson, and that he was armed with a dangerous weapon, as

evidenced by the bullet hole in Patterson’s jacket. Additionally, the state argues

that the jury could also infer that he missed Patterson and struck Nash, even though

Nash was not the intended target of the bullet. Additionally, the state argues that a

reasonable jury could infer that the defendant’s flight after the murder indicated

consciousness of guilt.

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Even assuming all of the facts provided in Roberson’s third statement (the

only statement in which he acknowledged the defendant’s presence at the house

that night) were accepted as true by the jury, there was nothing establishing that the

defendant was part of the planning or was aware of Dorsey (whom Roberson

described as “talking” and Nash as following along) and Nash’s plan to carry out a

robbery. There was no evidence that the defendant was armed that night. Although

there was no expert testimony presented regarding the injuries, law enforcement

believed a high-powered weapon was used in the shooting as evidenced by a piece

of Nash’s skull being found twenty-seven feet away from his body. The only

testimony regarding a high-powered weapon was about a gun belonging to Dorsey.

While it appears that gun may not have always remained in Dorsey’s control and

may have been accessible to others, it appears from Roberson’s statement that

Dorsey came into the house after the shooting to get his rifle. (“Everybody

scattering, and I see Yao [Dorsey] run back in the house grab a gun.”) which

Roberson believed was a rifle. This implies that the rifle was not in the

defendant’s possession at the time of the shooting. The only other weapon

referenced was a pistol, which Nash had, according to Roberson.

One hypothesis of innocence advanced by the defense at trial was that

Dorsey was the shooter. Nash and Dorsey had gotten into an altercation the prior

week. Roberson’s second statement placed Dorsey outside with a gun at the time

of the shooting, and then one week later, he said that Dorsey was inside with no

gun. Another hypothesis of innocence advanced by the defense at trial was that

Nash and Patterson may have simultaneously fired at each other. The state’s

rebuttal was that in that situation, Patterson would have had to possess a long gun

(rifle), and the state questioned how he would have hidden it.

15

The jury obviously chose to believe that Dorsey was inside at the time of the

shooting and that the defendant and Nash were outside. After the transaction was

complete and the buyers were leaving, Patterson was shot at, and Nash was hit in

the head, presumably by a high-powered rifle. The defendant had earlier been

inside the house, but he went outside at some point before the buyers arrived.

Roberson saw Dorsey after the shooting but not the defendant. He

believed/assumed that the defendant left with Dorsey. It is possible the defendant

left the scene prior to the arrival of the buyers or that someone else may have

approached the house while the buy was occurring. Roberson, the only witness on

the scene, who pled guilty to first degree robbery, maintained that he was inside

the house at all times prior to the shooting and that he never saw the defendant

with a gun. The only thing tying the defendant to the shooting was the fact that he

was outside of the house prior to the shooting. Additionally, Roberson and Dorsey

pled guilty to first degree robbery of two victims bearing the last name Tison,

presumably the two “tall guys” who accompanied Patterson to the house. Every

reasonable hypothesis of innocence was not excluded in this case, especially given

the internal inconsistencies in Roberson’s statements, lack of an eyewitness to the

shooting, and the lack of any physical evidence linking the defendant to the

offenses. For these reasons, the state did not meet its burden of proving the

defendant’s guilt beyond a reasonable doubt. Accordingly, the defendant’s

convictions are reversed, an acquittal is hereby entered, and his sentences are

vacated.

Assignments of Error Four and Five are rendered moot.

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CONCLUSION

The defendant’s convictions for second degree murder and attempted second

degree murder are vacated, a judgment of acquittal on both counts is hereby

entered, and his sentences are vacated.

CONVICTIONS AND SENTENCES VACATED;
JUDGMENTS OF ACQUITTAL ENTERED.

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