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Judgment rendered May 18, 2011. Application for rehearing may be filed within the delay allowed by art. 922, La. C. Cr. P.

No. 46,303-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA ***** STATE OF LOUISIANA Appellee

versus

A. V. BARNETT

Appellant

***** Appealed from the Fourth Judicial District Court for the Parish of Morehouse, Louisiana Trial Court No. 06-541 F Honorable Daniel J. Ellender, Judge ***** DOUGLAS LEE HARVILLE Louisiana Appellate Project JERRY L. JONES District Attorney E. DION YOUNG CHARLES L. BRUMFIELD GEARY STEPHEN AYCOCK Assistant District Attorneys ***** Before WILLIAMS, GASKINS and LOLLEY, JJ. Counsel for Appellant Counsel for Appellee

GASKINS, J. After a jury trial, the defendant, A.V. Barnett, was convicted of one count of second degree murder and one count of attempted second degree murder. He was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for the conviction of second degree murder and 50 years at hard labor without benefit of probation, parole or suspension of sentence for the conviction of attempted second degree murder. The trial court ordered the sentences to run consecutively. The defendant now appeals. We affirm the defendant's convictions and sentences. FACTS The victims, Herman "Little Cool" White and Richard Eligah, were brothers who lived together in a mobile home on Wimberly Road in Oak Ridge, Louisiana. As Mr. White is paralyzed from the chest down, his brother assisted him in daily living. There were allegations that they sold crack cocaine. On the night of May 20, 2006, into the early hours of May 21, 2006, the defendant was present at the brothers' mobile home. Mr. White was in his bedroom, which was on the northern end of the mobile home, on the opposite end of the mobile home from his brother's bedroom. The defendant attempted to buy crack cocaine from Mr. White, but Mr. White told him he did not have any to sell. Because the defendant was so insistent, Mr. White told him to leave his home. The defendant left the home at approximately 4:00 a.m.

About three hours later, the defendant returned to the trailer. Mr. White was sleeping on his stomach, and awoke when the defendant stabbed him in the right shoulder. Mr. White asked what was going on, and the defendant demanded dope and money. Mr. White told him he did not have any dope or money, and grabbed a stick he had beside the bed which he used to keep the defendant at bay. He also pounded the stick on the floor of the trailer, which was his signal to his brother that he needed help. In the past, his brother would always come to his aid when he pounded on the floor; however, he did not respond this time. Mr. White gave the defendant a vial with three rocks of crack in it. The defendant pushed Mr. White's wheelchair away from his bed. He left Mr. White's room for a very short period of time. He returned and demanded money again. When Mr. White told him he did not have any money, the defendant stated, "Well, I got to go on and do what I gotta do." The defendant picked up a sheet from a pile of clothes in the corner and set it on fire. He then left the trailer. Mr. White managed to pull himself out of bed and crawled into the living room. He called to his brother to get out of the house, yelling that the defendant had stabbed him and set the house on fire. Mr. White heard Mr. Eligah reply, "I can't, I can't." Mr. White was able to drag himself out of the front door of the trailer and down the wheelchair ramp as the trailer was engulfed in flames. The first person to arrive at the scene of the fire was Rodney Seay. He saw Mr. White in the road and asked him what had happened. Mr.

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White told him, "A.V. Barnett killed Richard, and he stabbed me. Richard in the house, and he dead." Mr. White asked Mr. Seay to stay with him because he was afraid the defendant would return. At about that point, Jimmy Jones saw the smoke and drove to the trailer. On his way there, he noticed a man walking near the trailer, looking back toward the smoke. Mr. Jones noticed that when he drove by him, the man turned his face away from the road.1 When Mr. Jones arrived at the mobile home, he saw Mr. White in the middle of the road. Mr. White told him that the defendant "done stabbed me and killed Richard." Mr. White indicated that his brother was still inside the burning trailer; however, the fire was too hot for anyone to attempt to enter. Mr. Seay, who had stayed with Mr. White, asked Mr. Jones to remain with him while Mr. Seay flagged down another motorist and asked him to call the police and get an ambulance to the scene. The defendant's cousin, Willie Johnson, was at home when he observed the defendant walking down the road in front of his house; the defendant was walking away from Mr. White's home. The defendant asked Mr. Johnson for a ride to a friend's house; Mr. Johnson agreed but said that first he needed to go down to Mr. White's house to ask for help getting his truck out of a ditch. The defendant said he did not want to go there because there was a big fire, and there would be police, an ambulance and paramedics there.

While Mr. Jones did not see the man's face, the defendant later testified that Mr. Jones passed him on the road.

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The defendant got in the car with Mr. Johnson, and they drove down to Mr. White's home. Mr. Johnson got out of the car when he saw Mr. White sitting in the road; he noticed that the defendant appeared panicked or scared. Mr. White told Mr. Johnson that the defendant stabbed him and set the trailer on fire, and that Richard was still inside. Mr. Johnson got back in the car and drove the defendant back to Mr. Johnson's house. He refused to drive him to the friend's house, even though the defendant offered him three rocks of crack in a small bottle if he would take him. A short time later, in response to the 911 call, Mike Barham of the Morehouse Parish sheriff's office arrived at the burning trailer and saw Mr. White sitting on the ground. Mr. White told Officer Barham what the defendant had done, and that he had just left in Mr. Johnson's car. Officer Barham went directly to Mr. Johnson's house. The defendant was arrested and transported to the sheriff's office. The defendant was charged with the second degree murder of Mr. Eligah, whose charred body was subsequently found in the ruins of the mobile home, and the attempted second degree murder of Mr. White, who survived the stabbing and the fire. A total of five knives were recovered from the remains of the trailer

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