State of Louisiana v. Brian Douglas Horn , 251 So. 3d 1069 ( 2018 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #040
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 7th day of September, 2018, are as follows:
BY JOHNSON, C.J.:
2016-KA-0559 STATE OF LOUISIANA v. BRIAN DOUGLAS HORN (Parish of Desoto)
This is a direct appeal under La. Const. art. V, § 5(D) by
defendant, Brian Douglas Horn. On April 12, 2010, defendant was
indicted by a grand jury in DeSoto Parish for the first-degree
murder of 12-year-old Justin Bloxom. Following the close of
evidence at trial, a jury unanimously found defendant guilty as
charged and, at the conclusion of the penalty phase of the trial,
recommended a sentence of death. The district court sentenced
defendant to death in accordance with that recommendation. In his
appeal to this court, defendant raises seventy assignments of
error. Finding merit in defendant’s assignment of error asserting
a violation of his Sixth Amendment right to counsel, we vacate
defendant’s conviction and sentence and remand this matter to the
district court for a new trial.
DEFENDANT’S CONVICTION AND SENTENCE ARE VACATED; REMANDED TO THE
DISTRICT COURT FOR A NEW TRIAL.
Retired Judge Burrell Carter assigned as Justice ad hoc, sitting
for Crichton, J., recused.
WEIMER, J., additionally concurs and assigns reasons.
GUIDRY, J., additionally concurs for the reasons assigned by
J. Weimer.
CRICHTON, J., recused.
09/07/18
SUPREME COURT OF LOUISIANA
No. 2016-KA-0559
STATE OF LOUISIANA
VERSUS
BRIAN DOUGLAS HORN
ON APPEAL
FROM THE FORTY-SECOND JUDICIAL DISTRICT COURT
FOR THE PARISH OF DESOTO
JOHNSON, Chief Justice1
This is a direct appeal under La. Const. art. V, § 5(D) by defendant, Brian
Douglas Horn. On April 12, 2010, defendant was indicted by a grand jury in DeSoto
Parish for the first-degree murder of 12-year-old Justin Bloxom. Following the close
of evidence at trial, a jury unanimously found defendant guilty as charged and, at the
conclusion of the penalty phase of the trial, recommended a sentence of death. The
district court sentenced defendant to death in accordance with that recommendation.
In his appeal to this court, defendant raises seventy assignments of error. Finding
merit in defendant’s assignment of error asserting a violation of his Sixth
Amendment right to counsel, we vacate defendant’s conviction and sentence and
remand this matter to the district court for a new trial.
FACTS AND PROCEDURAL HISTORY
On March 29, 2010, 12-year-old Justin Bloxom was staying overnight at a
friend’s house in Stonewall, Louisiana, and texting with a person he believed to be
1
Retired Judge Burrell Carter assigned as Justice ad hoc, sitting for Crichton, J., recused.
1
a 14-year-old girl. The “girl” urged Justin to sneak out of the house so that the two
could meet for a sexual encounter, and texted that she would send a taxi to get him.
In reality Justin was texting defendant, Brian Horn. Shortly after three o’clock in the
morning of March 30, 2010, Justin left his friend’s house and climbed into
defendant’s taxi. Defendant leased and drove a green Action Taxi, Cab M-28. The
last text message sent by Justin on March 30, 2010 at 3:13 a.m. stated “Cab died.”
That message was received by defendant’s cell phone.
Later that morning, Justin’s friend reported him missing. Sheriff’s deputies
arrived at the friend’s home and learned from neighbors that a green Action Taxi
Cab was seen in the neighborhood the night before. Additionally, another officer
informed the investigating deputies that he had noticed a green Action Taxi cab
parked on the side of the road on US Highway 171 in the very early hours of the
morning and had stopped to give aid. The driver of the taxi, later identified by the
officer as Brian Horn, advised the officer that he had run out of gas and lost his key,
and someone from the taxi company was bringing him another key. Several other
witnesses confirmed seeing the taxi on the side of the road in the early morning hours
and recalled speaking to defendant, who informed them that he had run out of gas
and lost his keys. Investigating officers subsequently searched the wooded area on
the side of Highway 171 where defendant’s taxi had been stopped and found Justin’s
body in a shallow pool of water 30-40 yards from the highway. The key to
defendant’s taxi was later found by metal detector in the same general area.
Defendant’s brother, Kevin Horn, learned defendant was a person of interest
in Justin’s murder later that day. He accompanied defendant to Action Taxi, where
defendant returned the taxi after cleaning it out. Kevin then drove defendant to the
police station. Kevin gave police officers consent to search his vehicle, which
2
resulted in the seizure of evidence, including an AT&T SIM card belonging to
defendant.
On April 12, 2010, defendant was indicted by a grand jury in DeSoto Parish
for first-degree murder. In its Bill of Particulars, the state outlined its intent to prove
defendant committed first-degree murder pursuant to La. R.S. 14:30(A)(1) while
engaged in the perpetration or attempted perpetration of aggravated kidnapping or
second degree kidnapping. Specifically, that statutory provision defines first-degree
murder as the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great
bodily harm and is engaged in the perpetration or attempted
perpetration of aggravated kidnapping, second degree kidnapping,
aggravated escape, aggravated arson, aggravated or first degree rape,
forcible or second degree rape, aggravated burglary, armed robbery,
assault by drive-by shooting, first degree robbery, second degree
robbery, simple robbery, terrorism, cruelty to juveniles, or second
degree cruelty to juveniles.
(Emphasis added). La. R.S. 14:44 addresses the crime of “aggravated kidnapping,”
and provides, in relevant part:
Aggravated kidnapping is defined as “the doing of any of the following
acts with the intent thereby to force the victim, or some other person, to
give up anything of apparent present or prospective value, or to grant
any advantage or immunity, in order to secure a release of the person
under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to
another; or
(2) The enticing or persuading of any person to go from one place to
another; or
(3) The imprisoning or forcible secreting of any person.
Likewise, La. R.S. 14:44.1 provides for second-degree kidnapping:
A. Second degree kidnapping is the doing of any of the acts listed in
Subsection B wherein the victim is:
(3) Physically injured or sexually abused;
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B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to
another; or
(2) The enticing or persuading of any person to go from one place
to another; or
(3) The imprisoning or forcible secreting of any person.
(Emphasis added).
At trial, the state presented evidence of defendant’s guilt including: forensic
evidence of the SIM card revealing explicit text messages sent from defendant’s cell
phone to Justin’s cell phone; evidence of a latent fingerprint from the taxi that
matched Justin; and autopsy results showing Justin died of suffocation, with possible
strangulation. The coroner, Dr. James Traylor, testified Justin died from being
smothered, and opined that the perpetrator smothered Justin while on Justin’s back.
Dr. Traylor identified several areas of “petechiae” or ruptured blood vessels in
Justin’s eyes and on his face and forehead, which would have required the
perpetrator to apply pressure to some part of the body to prevent the drainage of
blood to the heart. Dr. Traylor identified an abraded contusion on the inside of
Justin’s mouth consistent with the perpetrator compressing his lips and mouth
against his braces. Dr. Traylor also described numerous abrasions on Justin’s body
and testified they were anti-mortem wounds. In sum, the state presented photos and
testimony from Dr. Traylor that (1) Justin exhibited injuries on his neck, face, hands,
back shoulder, and torso; (2) the injuries occurred before death; and (3) the injuries
were not solely attributable to smothering. The state also presented testimony from
defendant’s wife and another adult woman regarding their sexual relations with
defendant, with the state eliciting testimony that defendant sometimes choked them
during consensual sex. Defendant’s wife testified they were “swingers” and
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sometimes engaged in sexual relations with other adult men and women. The other
woman testified defendant suggested that a “younger” man join them in sexual
activities.
During the trial, defense counsel conceded defendant killed Justin. However,
defense counsel argued that the jury could not find defendant guilty of first-degree
murder because the state failed to prove defendant had specific intent to kill and
failed to prove defendant was engaged in an aggravated kidnapping or a second-
degree kidnapping when Justin died. The defense rested in the culpability phase of
the trial without calling any witnesses.
A unanimous jury found defendant guilty of first-degree murder and
determined defendant should be sentenced to death. The matter is now before this
court on defendant’s direct appeal under La. Const. art. V, § 5(D).
DISCUSSION
Sixth Amendment Violation (Assignment of Error #43)
Defendant argues his Sixth Amendment right to counsel was violated when
his attorneys conceded his guilt over his explicit objection. We find this assignment
of error has merit, and requires us to vacate defendant’s conviction and sentence.
The Sixth Amendment guarantees the accused in a criminal proceeding the
right to have “the Assistance of Counsel for his defence.” U.S. Const. amend. VI. It
“does not provide merely that a defense shall be made for the accused; it grants to
the accused personally the right to make his defense.” Faretta v. California, 422
U.S. 806, 819, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562 (1975). “The right to defend is
given directly to the accused; for it is he who suffers the consequences if the defense
fails.” 422 U.S. at 819-20 (footnote omitted). Implicit in this right is the accused’s
authority “to make certain fundamental decisions regarding the case, as to whether
5
to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.”
Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312, 77 L. Ed. 2d 987 (1983).
However, certain other decisions, such as decisions relative to trial management
belong to counsel:
As to many decisions pertaining to the conduct of the trial, the
defendant is deemed bound by the acts of his lawyer-agent and is
considered to have notice of all facts, notice of which can be charged
upon the attorney. Thus, decisions by counsel are generally given effect
as to what arguments to pursue, what evidentiary objections to raise,
and what agreements to conclude regarding the admission of evidence.
Absent a demonstration of ineffectiveness, counsel’s word on such
matters is the last.
New York v. Hill, 528 U.S. 110, 115, 120 S. Ct. 659, 664, 145 L. Ed. 2d 560 (2000)
(internal quotations and citations removed).
The issue of whether the decision to admit guilt as part of the defense objective
belongs to counsel or to the accused was recently addressed by the United States
Supreme Court in McCoy v. Louisiana, -- U.S. --, 138 S. Ct. 1500 (2018). In McCoy,
defense counsel, over defendant’s objections, told the jury that defendant was guilty
of the triple murder of his family members, but sought leniency in the penalty phase
due to defendant’s serious mental and emotional issues. McCoy testified in his own
defense maintaining his innocence by asserting an implausible alibi defense. 138
S. Ct. at 1506-07. The jury found defendant guilty of three counts of first-degree
murder and sentenced defendant to death. Id. at 1507. This court affirmed the
convictions and sentence. State v. McCoy, 14-1449 (La. 10/19/16), 218 So. 3d 535,
cert. granted in part, 138 S. Ct. 53, 198 L. Ed. 2d 781 (2017), and rev’d and
remanded, 138 S. Ct. 1500 (2018). In reversing this court’s ruling, the Supreme Court
considered whether it is unconstitutional to allow defense counsel to concede guilt
over the defendant’s unambiguous objection:
6
We hold that a defendant has the right to insist that counsel refrain from
admitting guilt, even when counsel’s experienced-based view is that
confessing guilt offers the defendant the best chance to avoid the death
penalty. Guaranteeing a defendant the right “to have the Assistance of
Counsel for his defence,” the Sixth Amendment so demands. With
individual liberty—and, in capital cases, life—at stake, it is the
defendant’s prerogative, not counsel’s, to decide on the objective of his
defense: to admit guilt in the hope of gaining mercy at the sentencing
stage, or to maintain his innocence, leaving it to the State to prove his
guilt beyond a reasonable doubt.
Id. at 1505. The Court reasoned that “just as a defendant may steadfastly refuse to
plead guilty in the face of overwhelming evidence against her, or reject the assistance
of legal counsel despite the defendant’s own inexperience and lack of professional
qualifications, so may she insist on maintaining her innocence at the guilt phase of
a capital trial.” 138 S. Ct. at 1508.
In this case, Mr. Horn argues his Sixth Amendment right to counsel was
violated when his attorney conceded his guilt over his explicit objection. The record
demonstrates that defendant’s attorney admitted that defendant killed Justin and also
suggested to the jury that the evidence supported a finding that he molested, or
attempted to molest Justin. Counsel specifically told the jury he was not asking them
to find defendant “not guilty,” and further stated that the facts fit second-degree
murder or manslaughter. The record further demonstrates that Mr. Horn disagreed
with his counsel’s decision to concede guilt as part of the defense strategy and that
defendant made the district court aware of the disagreement both before and during
the trial.
On February 13, 2013, during the pre-trial stage of the case, defendant filed a
pro se “Motion for Evidentiary Hearing on the Defendant’s Claims of Ineffective
Assistance of Counsel with Incorporated Memorandum of Law” wherein defendant
asserted that his defense had been refused by his attorneys. During a pre-trial hearing
7
on February 20, 2013, defense counsel and the court discussed defendant’s motion
and counsel’s refusal to use the defense requested by defendant, but the court refused
to get involved in the dispute and dismissed the motion:
Counsel: I have one question for you. Perhaps you’re not the right
person. Perhaps I need to ask somebody in Baton Rouge. I read his pro
se motion and it was denied. One of the things he said in there is that I
didn’t want to use his defense in the guilt phase. I did not want to use
the defense he wants to use in the guilt phase. Now, am I supposed to
do what I think is best as an attorney for my client or am I supposed to
be a puppet and do exactly what he wants me to do on these appointed
cases? ***
Court: [] The allegations in the motions with regard to you are things
that no court can rule on. I cannot get in the middle of the attorney/client
privilege, communication, non-communication, is it enough, is it not
enough. The only thing that I can judge, as I understand, are
Washington versus Strickland and the progeny is the performance at
trial and the results as compared to the amorphous standard out there of
the criminal defense counsel in capital cases. That’s all. And that
motion did not even come close to approaching that. *** I think that is
going to be something you and Mr. Gorley are going to have to sit down
with the bosses and make the tactical decision and the case, right or
wrong, is contingent upon that. And some, either this court or another
reviewing court will have to make that decision whether that was the
right or wrong decision. I can’t, you know, I can’t stop it.
During his closing argument, defense counsel specifically stated to the jury:
• “We have never contested any of that, none of it. The only thing that
we have contested is the intent, the specific intent. The judge will
instruct you that specific intent is an element of the crime of first-degree
murder. I’m not going to ask you to like Brian Horn because what he
did was awful. It was awful. Sending those text messages is
unforgivable. That’s not what he’s charged with. He’s charged with
first-degree murder, a crime for which he could get the death penalty.
They have to prove specific intent. They didn’t prove it, and I’ll get to
that in a minute.”
• “Nobody knows what happened. Nobody knows what happened out on
171 when the cab – when they ran out of gas. We know that Brian Horn
killed Justin Bloxom.”
• “I’m not asking you to let him walk the streets. I’m not asking you to
find him ‘not guilty.’”
8
• “Look, I’m not asking you to let him go. I’m not asking you to let him
go. I never once stood up here and said ‘Find him not guilty.’ I’m asking
you to find him not guilty of first-degree murder I mean, I think the
facts fit manslaughter, but if you don’t want to accept that because for
whatever reason, you can convict him of second-degree murder.”
• “Okay, I know y’all are tired of hearing me. We contested nothing in
this case. We admitted everything except that they couldn’t prove it was
a first-degree murder, and they haven’t proved it.”
• Defense counsel argued again to the jury that he was not asking them
to find defendant “not guilty,” but asking them to find defendant not
guilty of first-degree murder.
• Defense counsel read the definitions of indecent behavior with a
juvenile and molestation to the jury.
• Defense counsel suggested a scenario to the jury wherein Justin realized
there was no girl involved, resulting in a struggle; counsel suggested an
alternative wherein defendant could have tried to molest Justin,
resulting in struggle.
Following closing arguments, defendant objected to his counsel’s concession
of guilt, filing “Defendant’s Pro Se Formal Written Objections of Trial Errors &
Ineffective Assistance of Counsel and Motion for Relief Therefrom.” Defendant
objected to counsel’s closing arguments conceding guilt to any of the lesser included
offenses when he specifically instructed counsel not to do so. Defendant stated he
instructed counsel only to make an argument of accidental killing via the negligent
homicide statute. Defendant further objected to counsel’s closing argument wherein
he suggested defendant was guilty of indecent behavior with a juvenile and/or child
molestation. The district court denied defendant’s objections without a hearing.
In this court, defendant asserts the Supreme Court’s decision in McCoy is
dispositive and requires a reversal of his conviction. By contrast, the state suggests
McCoy is not controlling in this case because defendant did not claim outright
innocence and instructed his attorneys to make an argument for accidental killing
under the negligent homicide statute. After review of the record and considering the
9
Court’s decision in McCoy, we reject the state’s argument and decline to restrict
application of the holding in McCoy solely to those cases where a defendant
maintains his absolute innocence to any crime. McCoy is broadly written and focuses
on a defendant’s autonomy to choose the objective of his defense. Although Mr.
McCoy’s objective was to pursue a defense of innocence by presenting an alibi
defense, Mr. Horn’s objective was to assert a defense of innocence to the crime
charged and the lesser-included offenses, i.e. asserting his innocence to any degree
of murder. Mr. Horn was charged with first-degree murder. The only verdicts the
jury was permitted to enter were “guilty,” “guilty of second degree murder,” “guilty
of manslaughter,” or “not guilty.” See La. C.C.P. art. 814. The jury would not have
been permitted to enter a plea relative to negligent homicide. The fact that defendant
instructed his attorney to admit guilt to this different crime as part of his defense
objective did not give defense counsel the authority to admit guilt to the crime
charged or the lesser-included crimes, and does not cause us to disregard the holding
of McCoy. While defense counsel may use his professional judgment to develop
defense theories and trial strategies based on his assessment of the evidence, he
cannot usurp the fundamental choices provided directly to a criminal defendant
under the Constitution. As explained by the Court in McCoy, “these are not strategic
choices about how best to achieve a client’s objectives; they are choices about what
the client’s objectives in fact are.” 138 S. Ct. at 1508.
Thus, based on the Supreme Court’s ruling in McCoy, there is no question that
a criminal defendant’s decision whether to concede guilt implicates fundamental
constitutional rights and the right to exercise that decision is protected under the
Sixth Amendment. Moreover, a violation of this Sixth Amendment right is a
10
structural error and not subject to harmless error review. As the Court explained in
McCoy:
Because a client’s autonomy, not counsel’s competence, is in issue, we
do not apply our ineffective-assistance-of-counsel jurisprudence to
McCoy’s claim. To gain redress for attorney error, a defendant
ordinarily must show prejudice. Here, however, the violation of
McCoy’s protected autonomy right was complete when the court
allowed counsel to usurp control of an issue within McCoy’s sole
prerogative.
Violation of a defendant’s Sixth Amendment-secured autonomy ranks
as error of the kind our decisions have called “structural;” when present,
such an error is not subject to harmless-error review. Structural error
affects the framework within which the trial proceeds, as distinguished
from a lapse or flaw that is simply an error in the trial process itself. An
error may be ranked structural, we have explained, if the right at issue
is not designed to protect the defendant from erroneous conviction but
instead protects some other interest, such as the fundamental legal
principle that a defendant must be allowed to make his own choices
about the proper way to protect his own liberty. An error might also
count as structural when its effects are too hard to measure, as is true of
the right to counsel of choice, or where the error will inevitably signal
fundamental unfairness, as we have said of a judge’s failure to tell the
jury that it may not convict unless it finds the defendant’s guilt beyond
a reasonable doubt.
Under at least the first two rationales, counsel’s admission of a client’s
guilt over the client’s express objection is error structural in kind. Such
an admission blocks the defendant’s right to make the fundamental
choices about his own defense. And the effects of the admission would
be immeasurable, because a jury would almost certainly be swayed by
a lawyer’s concession of his client’s guilt. McCoy must therefore be
accorded a new trial without any need first to show prejudice.
138 S. Ct. at 1510-11 (internal quotations and citations removed). 2 As in McCoy, we
find Mr. Horn’s counsel explicitly conceded guilt over his client’s objections, thus
violating Mr. Horn’s Sixth Amendment rights. Given this violation, we have no
2
In light of the Supreme Court’s decision in McCoy, this court recently vacated Mr. McCoy’s
convictions and sentences, and remanded the matter to the district court for further proceedings
consistent with McCoy v. Louisiana. State v. McCoy, 14-1449 (La. 8/31/18), -- So. 3d --.
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choice but to vacate the conviction and sentence and remand this matter to the district
court for a new trial.3
CONCLUSION
Given the express holding of the Supreme Court in McCoy, we find
defendant’s assignment of error asserting a Sixth Amendment violation has merit. A
criminal defendant’s express refusal to concede guilt is safeguarded by core
constitutional protections. While conceding guilt in the hope of avoiding a death
sentence may be a reasonable strategic decision in some cases, the decision to do so
belongs to the defendant. Defense counsel’s decision to concede Mr. Horn was guilty
of second-degree murder or manslaughter over Mr. Horn’s objections resulted in a
structural error requiring this court to vacate defendant’s conviction and sentence.
DECREE
DEFENDANT’S CONVICTION AND SENTENCE ARE VACATED;
REMANDED TO THE DISTRICT COURT FOR A NEW TRIAL.
3
Ordinarily we would first analyze the sufficiency of the evidence because lack of sufficient
evidence to sustain the conviction would entitle a defendant to an acquittal under Hudson v.
Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30 (1981). See State v. Maxie, 93-2158 (La.
4/10/95), 653 So. 2d 526, 531. However, we find the particular structural error in this case—
counsel’s concession of guilt over defendant’s objection—is inextricably intertwined with an
analysis of the sufficiency of the evidence. Thus, it is impossible for us to scrutinize the
fundamentally unfair trial in this case to determine if there is sufficient evidence to support the
conviction.
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09/07/18
SUPREME COURT OF LOUISIANA
NO. 2016-KA-0559
STATE OF LOUISIANA
VERSUS
BRIAN DOUGLAS HORN
FROM THE FORTY-SECOND JUDICIAL DISTRICT COURT
FOR THE PARISH OF DESOTO
WEIMER, J., additionally concurring.
While I agree with the majority’s conclusion that, pursuant to McCoy v.
Louisiana, ___ U.S. ___, 138 S. Ct. 1500 (2018), defendant’s conviction and sentence
must be reversed for violation of defendant’s Sixth Amendment right to counsel, I
write separately to address an issue that is pretermitted by the majority, but that
nonetheless is highly relevant to defendant’s trial on remand. That issue is the
sufficiency of the evidence presented to prove every element of the crime of first
degree murder beyond a reasonable doubt.
It is a necessary and fundamental first step in any analysis of a conviction in
which sufficiency is assigned as error, to address the sufficiency argument directly
and as an initial matter, because the lack of sufficient evidence to sustain the
conviction would entitle the defendant to an acquittal under Hudson v. Louisiana,
450 U.S. 40 (1981). Indeed, for precisely that reason, it has been the long-standing
practice of this court to address the sufficiency argument, even when the defendant’s
conviction and sentence must be reversed on other grounds. See, State v. Crawford,
14-2153, p. 19 (La. 11/16/16); State v. Mickelson, 12-2539, p. 5 (La. 9/3/14), 149
So. 3d 178, 182; State v. Maxie, 93-2158 (La. 4/10/95), 653 So. 2d 526, 531. The
sufficiency argument is especially relevant in this case because defendant’s argument
that the State failed to prove that the killing occurred when the defendant was
engaged in the perpetration or attempted perpetration of aggravated kidnapping or
second degree kidnapping, if meritorious, would mean that, on remand, the crime
could not be prosecuted as a first degree murder. Therefore, consistent with
well-settled law and procedure, I offer the following analysis of defendant’s
arguments on appeal regarding the sufficiency of the State’s evidence to convict him
of the crime of first degree murder.
Sufficiency of the Evidence (Assignments of Error #8-11)
In order to affirm a conviction, an appellate court must determine that the
evidence, viewed in the light most favorable to the prosecution, was sufficient for a
rational finder of fact to conclude that every element of the crime was proved beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316 (1979); Maxie, 653
So. 2d at 532. Importantly, the Jackson standard does not permit this court to
substitute its own appreciation of the facts for that of the factfinder. State v.
Robertson, 96-1048 (La. 10/4/96), 680 So. 2d 1165, 1166. It is not the province of
the reviewing court to assess the credibility of witnesses or reweigh evidence. State
v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442, 443. As explained by this court
in State v. Mussall, 523 So. 2d 1305, 1310 (La. 1988):
If rational triers of fact could disagree as to the interpretation of the
evidence, the rational trier’s view of all of the evidence most favorable
to the prosecution must be adopted. Thus, irrational decisions to convict
will be overturned, rational decisions to convict will be upheld, and the
actual fact finder’s discretion will be impinged upon only to the extent
necessary to guarantee the fundamental protection of due process of law.
[Footnote omitted.]
To obtain a conviction for first-degree murder under the State’s theory of this
case, the State had to prove beyond a reasonable doubt that defendant had a specific
intent to kill or inflict great bodily harm on the victim while engaged in the
2
perpetration or attempted perpetration of aggravated kidnapping or second degree
kidnapping. See La. R.S. 14:30(A)(1). Defendant argues the State failed to present
sufficient evidence at trial that he had either specific intent to kill or was engaged in
an aggravated kidnapping or second degree kidnapping at the time of the homicide.
Specific intent may be inferred when the circumstances indicate that the
offender actively desired the prescribed criminal consequences of his act. La. R.S.
14:10(1). Because it is a state of mind, specific intent need not be proved as a fact,
but may be inferred from the circumstances and the defendant’s actions. Mickelson,
12-2539 at 6, 149 So. 3d at 182-183; State v. Broaden, 99-2124, p.18 (La. 2/21/01),
780 So. 2d 349, 362.
In this case, the State presented a forensic analysis of the cause of the victim’s
death, which was asphyxiation due to smothering. The coroner, Dr. James Traylor,
testified for the State that the perpetrator had to obstruct the victim’s mouth and apply
pressure for 90 seconds in order to kill him. Dr. Traylor opined that death from
smothering does not often happen accidentally and, ordinarily, does not happen to a
healthy 12-year-old boy. Viewing this evidence in the light most favorable to the
prosecution, a rational trier of fact could have determined that the defendant had the
specific intent to kill or inflict great bodily harm on the victim.
Aggravated Kidnapping
Louisiana R.S. 14:44 provides:
Aggravated kidnapping is the doing of any of the following acts with the
intent thereby to force the victim, or some other person, to give up
anything of apparent present or prospective value, or to grant any
advantage or immunity, in order to secure a release of the person under
the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to
another; or
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(2) The enticing or persuading of any person to go from one place to
another; or
(3) The imprisoning or forcible secreting of any person.
Defendant argues that the State lacked sufficient evidence to convict him of
aggravated kidnapping, noting that the offense requires the perpetrator to kidnap the
victim with the intent to “force the victim, or some other person, to give up anything
of apparent present or prospective value, or to grant any advantage or immunity, in
order to secure a release of the person under the offender’s actual or apparent
control.” Defendant argues there is a complete absence of evidence that he had any
intent, or engaged in any communications or actions, to attain anything of value in
return for the release of the victim. Defendant points to the State’s argument that “no
matter what happened to [the victim], whether a sexual act occurred or not, he was
not going to live,” which defendant contends undermines any possibility defendant
intended to secure something for his victim’s release. Defendant also points to the
State’s closing argument wherein it instructed the jury to ignore aggravated
kidnapping as an aggravating circumstance in favor of second degree kidnapping.1
A review of the record reveals that the State did indeed fail to prove beyond a
reasonable doubt that defendant committed aggravated kidnapping. In fact, in brief
to this court, the State conceded “that there would not be sufficient evidence in the
record to support a first degree murder charge with aggravated kidnapping.” Thus,
by the State’s admission, this statutory aggravating circumstance was not proved.
Nevertheless, “this Court has held on many occasions that the failure of one or more
statutory aggravating circumstances does not invalidate others, properly found, unless
1
The prosecutor argued: “Ladies and gentlemen, let me make this even easier for you when you do
your punch list. Go to second degree kidnapping, remember, it’s an either/or …. Save yourself
some time, go to second degree kidnapping.”
4
introduction of evidence in support of the invalid circumstance interjects an arbitrary
factor into the proceedings.” State v. Manning, 03-1982 (La. 10/19/04), 885 So. 2d
1044, 1102. There is no evidence to support a conclusion that the evidence offered
in support of the aggravated kidnapping charge, which the State argued the jury need
not even consider, injected an arbitrary factor into the proceedings. Therefore, it is
necessary to examine whether another aggravating circumstance, specifically second
degree kidnapping, was proved.
Second Degree Kidnapping
Louisiana R.S. 14:44.1 provides in relevant part:
A. Second degree kidnapping is the doing of any of the acts listed
in Subsection B wherein the victim is:
....
(3) Physically injured or sexually abused;
....
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place
to another; or
(2) The enticing or persuading of any person to go from one place
to another; or
(3) The imprisoning or forcible secreting of any person.
....
Relevant to the facts of this case, to establish the offense of second degree
kidnapping, the State had to prove defendant enticed or persuaded the victim to go
from one place to another and that the victim was physically injured or sexually
abused.
5
The record clearly supports, and defendant does not contest, a finding that
defendant “enticed or persuaded” the victim “to go from one place to another.” Text
messages between defendant and the victim establish defendant disguised his identity
and lured the victim from his friend’s house and into defendant’s taxi by pretending
to be a young girl who wanted a sexual encounter. Thus, the only issue to be resolved
is whether the State proved the victim was sexually abused or physically injured.
Defendant argues that no rational trier of fact could have found beyond a
reasonable doubt that he sexually abused the victim. Although there was some
suggestion of sexual abuse by the State at trial, the State essentially abandoned the
sexual abuse theory in closing arguments.2 Additionally, the State does not argue in
brief to this court that the victim was sexually abused. Rather, the State asserts the
evidence was sufficient to prove the victim was “injured” during the kidnapping and,
thus, the evidence was sufficient to establish second degree kidnapping.
The defendant argues that the State presented insufficient evidence that the
victim suffered injuries apart from those that resulted from the murder. However, a
review of the record, viewed in the light most favorable to the prosecution, reveals
that the State met its burden of demonstrating that defendant physically injured the
victim in the course of kidnapping him prior to his death. The coroner, Dr. Traylor,
testified that the victim died from being smothered and opined that the perpetrator
smothered the victim while on his back. Dr. Traylor identified several areas of
“petechiae” or ruptured blood vessels in the victim’s eyes and on his face and
forehead, which would have required the perpetrator to apply pressure to some part
2
The prosecutor argued: “All this back and forth in the trial about DNA . . . whether he was sexually
abused or not, that’s great and all, but you can stop right there. Physically injured, no doubt, without
a doubt that he is physically injured as a result of Brian Horn enticing him or persuading or any
person to go from one place to another.”
6
of the body to prevent the drainage of blood to the heart. Dr. Traylor identified an
abraded contusion on the inside of the victim’s mouth consistent with the perpetrator
compressing his lips and mouth against his braces. Dr. Traylor also described
numerous abrasions on the victim’s body and testified they were anti-mortem
wounds. Defendant argued these abrasions were consistent with the victim’s body
being dragged from the road and over a barbed wire fence to the area where the body
was found. However, Dr. Traylor testified the wounds were not consistent in size
with barbed wire and were not consistent with the perpetrator dragging the victim’s
body in one direction post-mortem.
In summary, the State presented photos and testimony from Dr. Traylor that (1)
the victim exhibited injuries on his neck, face, hands, back shoulder, and torso; (2)
the injuries occurred before death; and (3) the injuries were not solely attributable to
smothering. When viewed in the light most favorable to the State, the evidence is
sufficient for a rational trier to find beyond a reasonable doubt that some of the
injuries on the victim’s body resulted apart from the killing itself or its immediate
aftermath.
Evaluating the evidence in the light most favorable to the prosecution, giving
deference to the jury’s obvious assessment of credibility and weighing of the
evidence, and without substituting my own appreciation of the facts for that of the
jury, it is apparent that the evidence was sufficient for the jury to find defendant
committed second degree kidnapping. Given that the evidence was sufficient for the
jury to find proof of guilt beyond a reasonable doubt under Jackson, defendant’s
assignments of error asserting insufficiency of evidence are without merit.
7
09/07/18
SUPREME COURT OF LOUISIANA
NO. 2016-KA-0559
STATE OF LOUISIANA
VERSUS
BRIAN DOUGLAS HORN
FROM THE FORTY-SECOND JUDICIAL DISTRICT COURT
FOR THE PARISH OF DESOTO
GUIDRY, J., additionally concurs for the reasons assigned by Justice Weimer.