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SUPREME COURT OF LOUISIANA No. 95-K-2328 STATE OF LOUISIANA v. BRIAN BORDENAVE AND KEVIN ANDERSON On Writ of Certiorari to the Fourth Circuit Court of Appeal

PER CURIAM: In a pre-trial ruling meant to forestall any double jeopardy implications which might have arisen in defendants' trial on charges of attempted first degree murder and armed robbery, see State ex rel. Adams v. Butler, 558 So.2d 552 (La. 1990), the trial judge resolved that he would give jurors only the definition of first degree murder in La.R.S. 14:30(A)(3). The

ruling required the state to prove on the attempted murder count that the defendants had specifically intended to kill more than one person. After reviewing the testimony at trial, the Fourth

Circuit concluded that the state had presented insufficient evidence that on the night of November 8, 1991, either Bordenave or Anderson had been aware of, or targeted, Patrick Leon, as he ran after George Lewis, his companion on that night. Bordenave

had just shot Lewis during an attempt to take Lewis's football jacket. The evidence otherwise showed that Bordenave fired

several times at the fleeing Lewis, a circumstance which rationally supported an inference of a specific intent to kill. See e.g. State v. Williams, 383 So.2d 369 (La. 1980); State v. Procell, 365 So.2d 484 (La. 1979). The court of appeal

accordingly reduced Bordenave's conviction to attempted second degree murder in violation of La.R.S. 14:30.1 (A)(1), an offense which requires proof only of specific intent to kill. Butler, 322 So.2d 189 (La. 1975). With regard to Anderson, however, the Fourth Circuit found no evidence of specific intent, as he "told Bordenave to take the jacket, but did not urge Bordenave to shoot or participate in the shooting." Bordenave, 93-1682, at 9; 660 So.2d at 1213. The State v.

court of appeal therefore set aside Anderson's conviction on that count. While it affirmed Bordenave's conviction and sentence for

armed robbery, the court of appeal also found that the introduction of evidence of two ensuing chases with the police on November 13 and November 15, 1991, had prejudiced Anderson on that count because "[e]vidence that Anderson pointed a gun at Officer Watzke during the November 13, 1991 chase and that Anderson was in possession of two guns and shoulder holsters on November 15, 1991 [was] irrelevant and inadmissible." 2973, at 13; 660 So.2d at 1215. Id., 94-

The court of appeal therefore

reversed Anderson's conviction and sentence for armed robbery and remanded his case for retrial of that charge. We granted the We reverse as

state's application to review the judgment below. to Anderson only.

A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure that the defendant has received due process of law. Jackson v. Virginia, Accordingly,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

"the relevant question 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 beyond a reasonable doubt." 2789 (emphasis in original). Id., 443 U.S. at 319, 99 S.Ct. at The evidence at trial showed that

Anderson moved toward Bordenave and Lewis as the two men 2

struggled over the gun held to Lewis's head and urged Bordenave to hurry. "Get the jacket," Anderson ordered, "Let's go."

Bordenave's gun gave him the means of settling matters between the men quickly and while it appears that the first shot may have discharged accidentally after Lewis knocked the gun away from his head, Bordenave then emptied his weapon at the fleeing victim, striking him two times in the back. Anderson was standing nearby

when Bordenave fired the shots and both defendants then ran back to a parked and running gray-blue station wagon. the victim until he collapsed in the street. They pursued

The car paused

while Bordenave stripped the jacket from the unconscious and apparently moribund Lewis. Bordenave then climbed back into the These

station wagon and fled the scene with Anderson.

circumstances support the conclusion that a rational trier-offact could have reasonably determined that Anderson had the specific intent to kill Lewis because he urged the use of deadly force to conclude the armed robbery of Lewis as quickly as possible. Cf., State v. Brooks, 505 So.2d 714, 717-19 (La.

1987); State v. Holmes, 388 So.2d 722, 727-28 (La. 1980); State v. Sonnier, 380 So.2d 1, 4 (La. 1979). Accordingly, on the

state's application for review only as to Anderson, we reinstate the jury's verdict but, for the reasons assigned by the court of appeal in Bordenave's case, reduce the judgment to guilty of attempted second degree murder. With regard to Anderson's conviction for armed robbery, our prior decisions make clear that "[m]atters which are ... logically relevant to issues before the jury should not be excluded merely because they show the accused has committed other offenses." State v. Constantine, 364 So.2d 1011, 1014 (La.

1978); State v. Hollingsworth, 337 So.2d 461, 465 (La. 1976). Anderson's conduct on November 13, 1991, was attributable to more than the routine traffic violation which first caught the 3

attention of the police when they spotted Bordenave driving the gray-blue station wagon without a current license plate. Apart

from any tendency to reveal Anderson's consciousness of guilt for the Lewis robbery and shooting, however, the incident placed both defendants together in the getaway car less than less than a week after the Lewis crimes. On that occasion, Anderson had eluded

his pursuers in a footrace after Bordenave crashed the station wagon. Nevertheless, as the result of the chase and arrest of

Bordenave, the police were able to compile a photographic lineup and to obtain identifications of both men by Leon and of Bordenave by Lewis. The trial court did not abuse its broad

discretion by determining that the probative value of this relevant evidence outweighed any unfair prejudice to Anderson. La.C.E. art. 403. It appears that the police involved in the chase on November 15, 1991, were pursuing Anderson for an unrelated crime when they acted on a tip from an informant and stopped the cab in which he was riding. Considered by itself, evidence of Anderson's flight

on this occasion may have been insolubly ambiguous and of marginal probative value to show his consciousness of guilt for the crimes involving Lewis. State v. Parker, 421 So.2d 834, 841

(La. 1983) ("The jury was properly told to consider flight as evidence of guilt only if they believed the men were fleeing the scene of the automobile accident because they had committed the crime for which they were on trial.") (citing State v. Lee, 381 So.2d 792 (La. 1980)); see 2 McCormick on Evidence,

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