State Of Louisiana v. Erin Serigny ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 KA 0958
STATE OF LOUISIANA
VERSUS
ERIN SERIGNY
DATE OF JUDGMENT. •
JAN 0 9 2020
ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT
NUMBER 574112, DIVISION E, PARISH OF LAFOURCHE
STATE OF LOUISIANA
HONORABLE F. HUGH LAROSE, JUDGE
Kristine M. Russell Counsel for Appellee
District Attorney State of Louisiana
Allie LeBlanc Fournet
Shaun George
Joseph S. Soignet
Assistant District Attorneys
Thibodaux, Louisiana
Gwendolyn K. Brown Counsel for Defendant -Appellant
Baton Rouge, Louisiana Erin Serigny
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.
Visposition: CONVICTION AND SENTENCE AFFIRMED.
Ii t v
CHUTZ, I
The defendant, Erin Serigny, was charged by bill of information with
aggravated second degree battery, a violation of La. R.S. 14: 34. 7. The defendant
pled not guilty and, following a jury trial, was found guilty of the responsive
offense of aggravated battery, a violation of La. R.S. 14: 34. The defendant was
sentenced to seven years imprisonment at hard labor. The defendant now appeals,
designating one assignment of error. We affirm the conviction and sentence.
FACTS
Dudley Richoux, III, lived in a trailer on West 170th Street in Galliano,
Lafourche Parish. Dudley' s friend, the defendant, and the defendant' s sister, Erica,
had been staying with Dudley for a few days because, according to Dudley, they
did not have a place to stay. Dudley learned that the defendant and Erica had been
taking some of Dudley' s belongings in the trailer. On March 2, 2018, Dudley told
both of them they had to get out of his trailer.
The defendant and Erica packed their bags and waited outside for a ride.
The defendant was angry that he had been told to leave and angry with Erica
because the defendant thought she had called the police on him. According to
Dudley, the defendant was threatening to beat up Erica. At trial, Dudley provided
the following account of what happened. Dudley got between the defendant and
Erica and told the defendant to put his hands on a man instead of a woman.
Dudley then, without touching the defendant, walked him back off of his property
into the street. At the edge of the street, the defendant tripped and staggered
backward. The defendant, who carried a pocket knife for protection, then stabbed
Dudley. When Dudley realized he was stabbed, he chased the defendant across the
street. They both briefly hit the wall of a building. The defendant then ran.
Dudley chased him for a bit, but had to stop because of his stab wound. Usually
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Dudley also carried a pocket knife on his person because he was a fisherman.
During his confrontation with the defendant, Dudley indicated he never took out,
or threatened to take out, his own knife, and that it stayed in his pocket the entire
time.
The defendant testified at trial and provided the following account. After he
was told to leave Dudley' s house, he was waiting outside for a ride. When his ride
arrived, the defendant put his bags into the truck. Dudley then lunged off his porch
and swung at the defendant, but missed. Dudley did, however, in swinging at him,
pull the defendant' s chain off and rip the defendant' s shirt. The defendant took his
shirt off. They moved across the street and stumbled against the wall of a building.
At this point, Dudley again swung at the defendant. In this swing, the defendant
saw the " glint" of what he perceived as a knife being swung by Dudley. The
defendant then produced his own knife and stabbed Dudley. The defendant ran off
and hid because Dudley and Dudley' s friend, Dwayne, chased him.
Dudley was brought to Lady of the Sea General Hospital in Cut Off. He had
difficulty breathing. The emergency room doctor who treated him testified that the
lining of his left lung was damaged, known as a pneumothorax, which can be fatal.
Dudley was started on oxygen and had a chest tube inserted. In order to be
evaluated more completely for his wound, Dudley was transferred to the
University Medical Center in New Orleans. Dudley testified that he had two tubes
in his chest for almost a week. During his in -court testimony, Dudley stated that
he still hurts when he picks up something. He described that he has three scars on
his chest and one on his abdomen. He also indicated he could not do the physical
work he needed to do because he was out of breath.
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ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant asserts the trial court erred in
charging the jury with incorrect instructions. Specifically, the defendant contends
the trial court failed to inform the jury of who carried the burden of proof for a
self-defense claim for a non -homicide offense.
Louisiana law is unclear as to who has the burden of proving self-defense in
a non -homicide case. State v. Barnes, 590 So. 2d 1298, 1300 ( La. App. 1st Cir.
1991). In State v Freeman, 427 So. 2d 1161, 1162- 63 ( La. 1983), the Louisiana
Supreme Court, without resolving the issue, suggested that the defendant in a non-
homicide case may have the burden of proving self-defense by a preponderance of
the evidence. See Barnes, 590 So. 2d at 1300- 01. Because this issue has never
been resolved by our supreme court, this circuit has similarly left the issue
unresolved. Thus, when self-defense in a non -homicide case is raised on appeal
for sufficiency of the evidence, this court has analyzed the evidence under both
standards of review; that is, whether the defendant proved self-defense by a
preponderance of the evidence or whether the State proved beyond a reasonable
doubt that the defendant did not act in self-defense. Similarly, we have
consistently concluded in these cases that we need not decide who has the burden
of proving (or disproving) self-defense, because under either standard the evidence
sufficiently established that the defendant did not act in self-defense. See State v.
Calloway, 2015- 0191 ( La. App. 1st Cir. 9/ 21/ 15), 2015 WL 5547564, * 4
unpublished), writ denied, 2015- 1844 ( La. 11/ 7/ 16), 208 So. 3d 896; State v.
Taylor, 97- 2261 ( La. App. 1 st Cir. 9/ 25/ 98), 721 So. 2d 929, 931.
Just prior to closing arguments, the prosecutor and defense counsel agreed
that a self-defense charge should be included in the jury instructions. Defense
counsel noted that, while the first circuit had not made it clear who had the burden
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of proving self-defense in a non -homicide case, this did not mean that the
instruction could not be included. The prosecutor responded that the first circuit
had repeatedly declined " to go one way or the other" and that, as such, the court
should provide " just a general definition of self-defense." The prosecutor added
that omitting the burden of proof from the jury charge was not reversible error.
The trial court noted that our supreme court and the first circuit had not
decided the issue. The trial court continued:
The cases are replete from the First Circuit, which is there[]
remains a deep divide between the Circuits. The First Circuit stands
alone in that it has made neither choice. There is no clear guidance
from the First Circuit regarding whether the burden is on the
defendant to show by a preponderance or the state to show beyond a
reasonable doubt.
The trial court stated that it would include a self-defense instruction.
Because the first circuit and supreme court had remained undecided on the issue,
however, the trial court concluded it would omit the burden of proof charge. That
is, the instruction would be " devoid of any charge to the jury requiring the burden
of proof to be on either party, that it is a neutral, if you will." Defense counsel
objected to the ruling.
The trial court provided the following instructions on self-defense to the
jury:
Louisiana Revised Statutes] 14: 19, Subpart A( 1)( a) of our Criminal
Code provides that the use of force or violence upon the person of
another is justifiable when committed for the purpose of preventing a
forcible offense against the person, provided that the force or violence
used must be reasonable and apparently necessary to prevent such
offense. Thus, if you find that the defendant committed the offense
charged for the purpose of preventing a forcible offense against his
person; and that the amount of force or violence used was reasonable;
and that the force or violence used was apparently necessary to
prevent the forcible offense; then you must find the defendant not
guilty.
The defendant contends in brief that this instruction on self-defense was
inadequate to ensure the jury properly understood the law applicable to its
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deliberations. According to the defendant, Dudley was the aggressor.' The
defendant also suggests that everyone at the scene indicated the stabbing took
place across the street by a building, rather than on Dudley' s property. The
defendant had testified at trial that he stabbed Dudley because he thought Dudley
had swung at him with his ( Dudley' s) own knife. According to the defendant, if
the account offered by the defense was accepted as true, then the stabbing was
justified. The defendant concludes that had the jury been properly instructed that
the State bears the burden of negating a claim of justification, it is quite probable
that the jury may have returned a different verdict."
The defendant and Dudley provided two competing versions of events.
Dudley testified he was defending Erica and walking the defendant off his property
when the defendant stabbed him. Dudley indicated he had not touched the
defendant before he was stabbed. The defendant, on the other hand, testified that
Dudley had swung at him twice and missed both times. According to the
defendant, on Dudley' s second swing, which occurred across the street next to a
building, Dudley swung at him with a knife. When asked how he knew it was a
knife, the defendant explained he saw a " glint" of the blade. The defendant
indicated that when Dudley missed, the defendant produced his own knife and
stabbed Dudley, then ran.
In this case, the facts were clearly disputed. As such, the jury had to
determine which version of events it found more credible. The trier of fact makes
credibility determinations and may, within the bounds of rationality, accept or
reject the testimony of any witness. State v. Weary, 2003- 3067 ( La. 4/ 24/ 06), 931
So. 2d 297, 311- 12, cert. denied, 549 U.S. 1062, 127 S. Ct. 682, 166 L.Ed.2d 5311 A person who is the aggressor or who brings on a difficulty cannot claim the right of self-
defense unless he withdraws from the conflict in good faith and in such a manner that his
adversary knows or should know that he desires to withdraw and discontinue the conflict. La.
R. S. 14: 21.
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2006). The jury' s responsive guilty verdict indicated the jury believed Dudley' s
testimony and rejected the defendant' s theory that he acted in self-defense. See
State v. Hartman, 2015- 1023 ( La. App. 1st Cir. 2/ 17/ 16), 189 So. 3d 458, 460- 65,
writ denied, 2016- 0588 ( La. 3/ 24/ 17), 216 So. 3d 813.
Regarding the self-defense jury instruction, the defendant in brief suggested
that the State bore the burden of negating a claim of justification. In the second,
third, and fifth circuits, however, the jurisprudence has repeatedly found that the
burden of proving self-defense in a non -homicide case rests with the defendant to
prove the defense by a preponderance of the evidence. State v. Barron, 51, 491
La. App. 2d Cir. 8/ 9/ 17), 243 So. 3d 1178, 1186, writ denied, 2017- 1529 ( La.
6/ 1/ 18), 243 So. 3d 1063. The fourth circuit is split as to where the burden of proof
lies. Id. This circuit has never decided the issue, and the Louisiana Supreme
Court in Freeman, 427 So.2d at 1163, suggested that the defendant in a non-
homicide case may have the burden of proving self-defense by a preponderance of
the evidence. In Martin v. Ohio, 480 U.S. 228, 235, 107 S. Ct. 1098, 1102- 03, 94
L.Ed.2d 267 ( 1987), the United States Supreme Court upheld allocation of the
burden on the defendant for those statutory schemes in which self-defense defeats
no elements of the offense.
The court shall charge the jury as to the law applicable to the case. La.
C. Cr.P. art. 802( 1). A requested special charge shall be given by the court if it
does not require qualification, limitation, or explanation, and if it is wholly correct
and pertinent. It need not be given if it is included in the general charge or in
another special charge to be given. La. C. Cr.P. art. 807.
An improper jury instruction is a trial error subject to harmless error review
analysis. State v. Woods, 2000- 2147 ( La. App. 1st Cir. 5/ 11/ 01), 787 So. 2d 1083,
1095- 97, writ denied, 2001- 2389 ( La. 6/ 14/ 02), 817 So. 2d 1153. An improper jury
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instruction on self-defense is also subject to harmless error analysis. State u
Richardson, 92- 836 ( La. App. 5th Cir. 12/ 14/ 94), 648 So.2d 945, 947- 48, writ
denied, 95- 0343 ( La. 6/ 23/ 95), 656 So. 2d 1011. See State a Free, 48, 260 ( La.
App. 2d Cir. 11/ 20/ 13), 127 So. 3d 956, 970 n. 5, writ denied, 2013- 2978 ( La.
5/ 30/ 14), 140 So. 3d 1174, writ denied, 2014- 0039 ( La. 9/ 19/ 14), 148 So. 3d 944.
The inquiry is not whether, in a trial that occurred without the error, a guilty
verdict would surely have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error. Sullivan v. Louisiana,
508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L.Ed.2d 182 ( 1993); State v
Patterson, 2012- 2042 ( La. 3/ 19/ 13), 112 So. 3d 806, 810.
Herein, if the jury thought the defendant had the burden of proof, the
prevailing view of this State' s jurisprudence, then it clearly found the defendant
did not meet his burden of proof. Since the trial court, however, instructed the jury
that the burden of proof was on the State to prove each element of the crime
beyond a reasonable doubt, it is likely the jury thought the State also had the
burden of proof regarding self-defense. If so, this ostensible instruction error
inured to the benefit of the defendant anyway because it placed a more onerous
burden on the State of having to disprove something it was not by law required to
disprove. See State v. Greene, 2012- 649 ( La. App. 3d Cir. 11/ 6/ 13), 126 So. 3d
839, 844; State v. Glover, 47, 311 ( La. App. 2d Cir. 10/ 10/ 12), 106 So. 3d 129, 139-
40, writ denied, 2012- 2667 ( La. 5/ 24/ 13), 116 So. 3d 659. Moreover, it would
seem that given that the first circuit has not decided which burden is applicable,
then a neutral approach, that is, the approach that does not instruct a jury on who
has burden of proof, is the correct approach to take.
Nevertheless, we find that even if the jury charge on self-defense was
erroneous, it was harmless error because the defendant was not prejudiced by any
such error.
See State v. Morris, 2009- 0422 ( La. App. 1st Cir. 9/ 11/ 09), 22 So. 3d
1002, 1014. In finding the defendant guilty, the jury clearly found implausible
and/or irrational the defendant' s account that unprovoked, Dudley ran at him and
twice swung a knife at him, prompting the defendant to defend himself with his
own knife. See State v. Elzey, 2014- 0452 ( La. App. 1st Cir. 9/ 19/ 14), 2014 WL
4657317, * 4 ( unpublished), writ denied, 2014- 2103 ( La. 5/ 22/ 15), 171 So. 3d 921.
The trial court' s jury instruction on self-defense did not constitute reversible
error. Accordingly, the assignment of error is without merit.
nF.rUFF.
For these reasons, we affirm the conviction and sentence of defendant, Erin
Serigny.
CONVICTION AND SENTENCE AFFIRMED.
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