State Of Louisiana v. Brhian Thomas ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 KA 0817
STATE OF LOUISIANA
VERSUS
BRHIAN THOMAS
Judgment Rendered: JAN 0 9 2020
n
APPEALED FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF LAFOURCHE
STATE OF LOUISIANA
DOCKET NUMBER 570380
HONORABLE F. HUGH LAROSE, JUDGE
Kristine M. Russell Attorneys for Appellee
District Attorney State of Louisiana
and
Shaun George
Assistant District Attorney
Thibodaux, Louisiana
Samuel H. Winston Attorneys for Defendant/ Appellant
Kara A. Larson Brhian Thomas
New Orleans, Louisiana
BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.
McDonald, J.
The defendant, Brhian Thomas, was charged by grand jury indictment with
second degree murder, a violation of La. R.S. 14: 30. 1. He pled not guilty and,
following a jury trial, was found guilty as charged. He filed a motion for
postverdict judgment of acquittal, which was denied. He was sentenced to life
imprisonment at hard labor without benefit of parole, probation, or suspension of
sentence. The defendant filed a motion to reconsider sentence, which was denied.
The defendant now appeals, designating four assignments of error. We affirm the
conviction and sentence.
FACTS
Javonnie Raymond and Tarisha Thomas were in a relationship. They had a
three-year- old son together. Tarisha was also in a relationship with the defendant.
They had all known each other for years, and Javonnie and the defendant were
aware that Tarisha was in relationships with each of them. Tarisha was staying
with the defendant in his trailer at Solar Trailer Park in Thibodaux, Louisiana.
During this time, Javonnie had given Tarisha $ 2, 500 to purchase a trailer for
Javonnie and Tarisha to live in. Tarisha never bought the trailer. She gave
Javonnie some, but not all, of the money back that he had given her.
On September 4, 2017, a little after 1: 00 a.m., Javonnie and his brother,
Deeric, drove to the defendant' s trailer. Javonnie was going there to pick up his
son and to get the remaining money that Tarisha owed him. Deeric stayed in the
car. Javonnie knocked on the side of the trailer, the defendant answered, and
Javonnie told him why he was there. While Javonnie waited in the yard, the
defendant went back into the trailer to get Tarisha, who was sleeping and had
already been awakened by her son, who had told Tarisha that Javonnie was there.
Tarisha and the defendant then went outside, and Javonnie began talking to
Tarisha. Javonnie told Tarisha that he thought she was not with the defendant
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anymore. Tarisha replied that she was not with the defendant. Angered by this, the
defendant asked Tarisha what she meant by that comment. The defendant then
turned his attention to Javonnie and asked him if he wanted to fight. Javonnie
replied he did not want to fight. The defendant then struck Javonnie in the face
and wrestled him to the ground. The impact caused Javonnie' s shoulder to become
dislocated. The defendant kept striking Javonnie while he was on the ground.
Javonnie called out to his brother Deeric.
Deeric got out of the car and tackled the defendant off of Javonnie. The
defendant and Deeric then began wrestling on the ground. Moments later, Deeric
got off of the defendant and tried to get away. The defendant then tackled Deeric.
According to Javonnie, the defendant then told Tarisha to give him the gun. Deeric
and Javonnie ran away in different directions. Deeric slipped and fell. When he
got up and started to run again, the defendant shot him in the upper right back area.
Deeric was brought to the hospital, where he died. The doctor who
performed the autopsy on Deeric testified that the bullet entered his upper right
back and affected the organs of the abdomen, causing extensive injury. The bullet
traveled downward, forward, and to the left, and came to rest in the left pelvis.
When the police got to the scene, the defendant falsely informed them that
the shooter had fled on foot. The defendant also told deputies the " subject" had
left in a dark colored vehicle. After being questioned a few times at the scene,
Tarisha identified the defendant as the shooter and was taken in for more
questioning. At some point, as more people started to gather around, the defendant
left the scene. Javonnie went to the hospital that night for his dislocated shoulder
and told the police there what happened. The police could not find the defendant.
Two days later, on September 6, the defendant turned himself in.
Javonnie and Tarisha were the only eyewitnesses who testified at trial to the
defendant' s shooting of Deeric. The defendant did not testify.
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ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues that the evidence was
insufficient to support his conviction of second degree murder. The defendant does
not deny killing the victim, but argues that he was acting in self-defense.
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 standard of
review for the sufficiency of the evidence to uphold a conviction is whether,
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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,
61 L.Ed.2d 560 ( 1979). See La. Code Crim. P. art. 821( B); State v. Ordodi, 2006-
0207 ( La. 11/ 29/ 06), 946 So. 2d 654, 660. The Jackson standard of review,
incorporated in Article 821, is an objective standard for testing the overall
evidence, both direct and circumstantial, for reasonable doubt. When analyzing
circumstantial evidence, La. R.S. 15: 438 provides that the factfinder must be
satisfied the overall evidence excludes every reasonable hypothesis of innocence.
State v. Patorno, 2001- 2585 ( La. App. 1 st Cir. 6/ 21/ 02), 822 So. 2d 141, 144.
Second degree murder is the killing of a human being when the offender has
a specific intent to kill or to inflict great bodily harm. La. R.S. 14: 30. 1( A)( 1).
Specific criminal intent is " that state of mind which exists when the circumstances
indicate that the offender actively desired the prescribed criminal consequences to
follow his act or failure to act." La. R.S. 14: 10( 1). Specific intent may be formed
in an instant. State v. Mickelson, 2012- 2539 ( La. 9/ 3/ 14), 149 So. 3d 178, 183.
Because it is a state of mind, specific intent need not be proven as a fact, but may
be inferred from circumstances surrounding the offense and the defendant's
actions. Mickelson, 149 So. 3d at 182. It has long been recognized that specific
intent to kill may be inferred from a defendant' s act of pointing a gun and firing at
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a person. State v. Reed, 2014- 1980 ( La. 9/ 7/ 16), 200 So. 3d 291, 309, cert. denied,
U.S. _, 137 S. Ct. 787, 197 L.Ed.2d 258 ( 2017). See State v. Eby, 2017- 1456
La. App. 1st Cir. 4/ 6/ 16), 248 So. 3d 420, 424, writ denied, 2018- 0762 ( La.
2/ 11/ 19), 263 So. 3d 1153.
In his brief, the defendant does not deny that he shot and killed Deeric. The
defendant suggests, instead, that the State failed to prove he did not kill Deeric in
self-defense. The defendant also suggests that he was not the initial aggressor.
When he was fighting Javonnie, the defendant avers he had been unaware that
Javonnie had brought his brother with him to the defendant' s trailer. Thus,
according to the defendant, when Deeric " ran out of the car to join the fray," the
fight became two versus one." Finally, the defendant contends that it was
Javonnie who was the aggressor, given that he showed up unannounced at the
defendant' s home in the middle of the night.
When a defendant in a homicide prosecution claims self-defense, the State
must prove beyond a reasonable doubt that the homicide was not committed in
self-defense. State v. Williams, 2001- 0944 ( La. App. 1st Cir. 12/ 28/ 01), 804
So. 2d 932, 939, writ denied, 2002- 0399 ( La. 2/ 14/ 03), 836 So.2d 135. Louisiana
Revised Statutes 14: 20( A)( 1) provides that a homicide is justifiable when
committed in self-defense by one who reasonably believes that he is in imminent
danger of losing his life or receiving great bodily harm and that the killing is
necessary to save himself from that danger. For appellate purposes, the standard of
review for a claim of self-defense is whether a rational trier of fact, after viewing
the evidence in the light most favorable to the prosecution, could find beyond a
reasonable doubt that the homicide was not committed in self-defense. Williams,
804 So. 2d at 939; State v. Allen, 2015- 0675 ( La. App. 1st Cir. 11/ 9/ 15), 2015 WL
6951570, * 3 ( unpublished), writ denied, 2015- 2254 ( La. 3/ 4/ 16), 188 So. 3d 1056.
An aggressor may not claim self-defense without showing he first withdrew
from the conflict in good faith and in such a manner that his adversary knew or
should have known of his intention to withdraw and discontinue the conflict. La.
R.S. 14: 21. When a defendant asserts he acted in self-defense, the State bears the
burden of establishing beyond a reasonable doubt the defendant did not act in self-
defense. Eby, 248 So. 3d at 424. On appeal, the defendant asserts herein the State
failed to meet that burden.
It is true that under La. R.S. 14: 20( C) the defendant had no duty to retreat.
But the defendant' s being in a place where he had a right to be was not dispositive
of whether the defendant killed Deeric in self-defense. That is, based on the
testimony of both Tarisha and Javonnie, the defendant could not have reasonably
believed it was necessary to shoot and kill Deeric because he was in imminent
danger of losing his life or receiving great bodily harm. See La. R.S. 14: 20( A)( 1).
The defendant, Javonnie, and Tarisha all knew each other very well. Tarisha
was in an " open relationship" with both the defendant and Javonnie. The
defendant knew Javonnie and Tarisha had a young son together. Their son was at
the defendant' s trailer that night. There was nothing under the circumstances,
therefore, of Javonnie' s arrival at the trailer about 1: 00 a.m. to pick up his son and
to get the rest of his money back from Tarisha that he had lent her, that could have
caused such surprise or panic in the defendant that he would have felt his life was
in danger. It was the defendant, according to Tarisha, who had a gun in his hand as
the three of them were standing in the yard. Javonnie testified that the defendant
was standing in the yard, wearing shorts, slippers, and no shirt. According to
Javonnie, it was dark outside and he did not see a gun in the defendant' s hand.
As both Javonnie and Tarisha made clear in their testimony, they were all
just standing in the yard talking. No one was arguing, or fussing, or yelling.
During their conversation, the defendant never asked Javonnie to leave. It was
only when Tarisha told Javonnie that she was not seeing the defendant, i.e., not in a
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relationship with the defendant, that the defendant became angry. Upset and
agitated, the defendant began arguing with Tarisha. The defendant then,
unprovoked, struck Javonnie in the face and wrestled him to the ground. Javonnie
dislocated his shoulder and could not defend himself. Javonnie retreated into a
covered position because the defendant " kept swinging" at him. Javonnie, unable
to defend himself, called out to his brother for help. Deeric got out of the car and
tackled the defendant off of Javonnie. Javonnie, at this point, stood up and did
nothing because he was hurt from having his shoulder dislocated.
The defendant and Deeric then began wrestling on the ground/grass. They
stopped fighting and stood up. According to Javonnie, Deeric tried to back away
from the defendant and " break out." The defendant, however, reengaged by
tackling Deeric to the ground. The defendant then told Tarisha to give him the gun.
At this, both Deeric and Javonnie began running in different directions. As Deeric
was running, he slipped. Javonnie heard the defendant " rack the gun" ( pushing the
slide of a semi- automatic handgun to chamber a live round). As he ran, Javonnie
looked back over his shoulder and saw the defendant shoot Deeric in the back with
a black handgun as Deeric tried to get up and run away. Javonnie kept running and
the defendant screamed out Javonnie' s name and chased him. Javonnie found a
place to hide in some bushes. Javonnie' s cousin picked him up and took him to the
hospital, where he underwent surgery for his dislocated shoulder. Javonnie spoke
to the police at the hospital.
Based on the foregoing, under any scenario, the defendant was the aggressor.
He was the aggressor in the first instance when he struck Javonnie and tackled him
to the ground. When Deeric responded to his brother getting beaten up,' the
1 Deeric' s actions in stopping the defendant from continuing to beat on someone unable to
defend himself arguably constituted defense of others. See La. R.S. 14: 22.
h
defendant, in wrestling with Deeric on the ground, was arguably defending himself
at this point. However, after the fighting had subsided and it appeared Deeric was
trying to remove himself from the situation, the defendant again became the
aggressor when he tackled Deeric to the ground. When the defendant armed
himself with the gun and both Deeric and Javonnie began running away, the
defendant could not have reasonably felt his life was in danger at this point. While
he clearly had no duty to retreat, the defendant did not need to shoot a fleeing
Deeric in order to save his own life. Whatever happened in those few minutes in
the yard, the defendant created the difficulty that ultimately led to Deeric' s death.
See La. R.S. 14: 21; State v. Hunley, 2009- 2323 ( La. App. 1st Cir. 5/ 7/ 10), 2010
WL 1838380, * 4- 5 ( unpublished); State v. Spivey, 38, 243 ( La. App. 2nd Cir.
5/ 12/ 04), 874 So. 2d 352, 358- 59.
The guilty verdict of second degree murder indicates the jury accepted the
testimony of the prosecution witnesses insofar as such testimony established that
the defendant did not kill Deeric in self-defense. See State v. Spears, 504 So. 2d
974, 978 ( La. App. 1st Cir.), writ denied, 507 So. 2d 225 ( La. 1987). Discounting
the claim of self-defense, the jury may have determined the aggressor doctrine
applied, since the defendant struck the first blow unprovoked, then escalated the
conflict by arming himself. See State v. Loston, 2003- 0977 ( La. App. 1st Cir.
2/ 23/ 04), 874 So. 2d 197, 205, writ denied, 2004- 0792 ( La. 9/ 24/ 04), 882 So. 2d
1167. Further, under the facts of this case, the jury may have determined that the
defendant, while he had every right to be in his front yard, did not reasonably
believe he was in imminent danger of losing his life or receiving great bodily harm,
and did not act reasonably under the circumstances, when he shot Deeric in the
back while both Deeric and Javonnie were fleeing from the defendant after the
defendant armed himself. See Loston, 874 So. 2d at 205. Neither Deeric nor
Javonnie was armed with a gun. Tarisha indicated she did not see Javonnie with
N.
any weapon at all.
Dr. Marianna Eserman, who performed the autopsy on Deeric, testified that
the bullet entered his right upper back and came to rest in his left pelvis hip area.
Deeric' s diaphragm, liver, colon, intestines, and inferior vena cava vein were all
hit. There was no soot or stippling found around the bullet hole on his back, which
indicated Deeric was not shot at point-blank range. According to Dr. Eserman, the
gun was at least two to three feet away when fired.
Based on the testimony, a rational trier of fact could have reasonably
concluded that the killing of Deeric was not necessary to save the defendant from
the danger envisioned by La. R.S. 14: 20( A)( 1) and/ or that the defendant had
abandoned the role of defender and taken on the role of an aggressor and, as such,
was not entitled to claim self-defense. See La. R.S. 14: 21; State v. Bates, 95- 1513
La. App. 1st Cir. 11/ 8/ 96), 683 So. 2d 1370, 1377. In finding the defendant guilty,
it is clear the jury rejected the claim of self-defense and concluded that the use of
deadly force under the particular facts of this case was neither reasonable nor
necessary. Moreover, the defendant' s actions in failing to report the shooting and
fleeing from the scene are not consistent with a theory of self-defense. See State v.
Emanuel -Dunn, 2003- 0550 ( La. App. 1st Cir. 11/ 7/ 03), 868 So. 2d 75, 80, writ
denied, 2004- 0339 ( La. 6/ 25/ 04), 876 So. 2d 829; State v. Wallace, 612 So. 2d 183,
191 ( La. App. 1st Cir. 1992), writ denied, 614 So. 2d 1253 ( La. 1993). Flight
following an offense reasonably raises the inference of a " guilty mind." State v.
Captville, 448 So. 2d 676, 680 n.4 ( La. 1984). See Allen, 2015 WL 6951570 at * 4.
The jury can accept or reject the testimony of any witness. To resolve
conflicting testimony relative to factual matters, the jury must make credibility
determinations and weigh the evidence. Eby, 248 So. 3d at 426. See State v.
Mire, 2014- 2295 ( La. 1/ 27/ 16), 269 So. 3d 698, 700 ( per curiam). The Jackson
standard of review does not permit a reviewing court to substitute its own
W
appreciation of the evidence for the factfin.der' s, assess the credibility of witnesses,
or reweigh evidence. See State v. McGhee, 2015- 2140 ( La. 6/ 29/ 17), 223 So. 3d
1136, 1137 ( per curiam); State v. Calloway, 2007- 2306 ( La. 1/ 21/ 09), 1 So. 3d 417,
422 ( per curiam). Thus, in the absence of internal contradiction or irreconcilable
conflict with the physical evidence, one witness' s testimony, if believed by the
jury, is sufficient to support a factual conclusion. State v. Higgins, 2003- 1980 ( La.
4/ 1/ 05), 898 So. 2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S. Ct. 182, 163
L.Ed.2d 187 ( 2005). An appellate court errs by substituting its appreciation of the
evidence and credibility of witnesses for that of the factfinder and thereby
overturning a verdict based on an exculpatory hypothesis of innocence presented
to, and rationally rejected by, the jury. Eby, 248 So. 3d at 426- 27.
The jury credited Javonnie' s testimony, which reasonably supports its
determination that the defendant shot the victim with the specific intent to kill and
not in self-defense. The jury' s determination was not irrational under the facts and
circumstances presented. See Ordodi, 946 So. 2d at 662. After a thorough review
of the record, we find that the evidence supports the jury' s unanimous guilty
verdict.
Any rational trier of fact, viewing the evidence presented in the light most
favorable to the State, could have found beyond a reasonable doubt, and to the
exclusion of every reasonable hypothesis of innocence, all elements for second
degree murder. Eby, 248 So.3d at 427.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the trial court erred
when it informed the jury in its jury instructions that it was to consider whether the
defendant had the opportunity to retreat.
Under La. R.S. 14: 20( D), the jury is prohibited from considering the
possibility of retreat if the accused was not engaged in an unlawful activity and had
10
the right to be in the place that force was used. See State v. Wells, 2014- 1701 ( La.
12/ 8/ 15), 209 So. 3d 709 ( per curiam). The defendant suggests in brief that the jury
was instructed to consider both the possibility of retreat " as part of an overall
reasonable analysis but also instructed that [ the defendant] had no duty to retreat."
The defendant concedes that defense counsel made no objection to the jury
instructions as given.
Considering that there is no objection in the record to the instructions on
retreat, we find that the issue was not preserved for review. An alleged error in the
jury instruction is not preserved for appeal in the absence of a contemporaneous
objection. La. Code Crim. P. art. 841; State v. Rouser, 2014- 0613 ( La. App. 4th
Cir. 1/ 7/ 15), 158 So. 3d 860, 869.
Moreover, it is not clear that the jury instructions were incorrect. In
pertinent part, the trial court provided:
One, the possibility of avoiding the necessary, I' m sorry, the
necessity of taking human life by retreat, provided however, that a
person who is not engaged in any unlawful activity and is in a place
where he has a right to be has no duty to retreat before using deadly
force to save himself from the danger of losing his life or receiving
great bodily harm. He may stand his ground and meet force with
force.
While this charge was in keeping with La. R.S. 14: 20( B) and ( C), the trial
court did not explicitly inform the jury, per La. R.S. 14: 20( D), that no finder of fact
shall be permitted to consider the possibility of retreat. But given that the trial
court is obligated by La. Code Crim. P. art. 802( 1) to charge the jury on the law
applicable to the case, including every phase of the case supported by the evidence
whether or not accepted as true, it is not clear in this case that the defendant was
2 It should also be noted that while it is clear closing arguments do not constitute evidence, both
the prosecutor and defense counsel in closing arguments explained to the jury that the defendant
had no duty to retreat. Defense counsel went into more detail, explaining that there was no duty
to retreat before using deadly force to save oneself from the danger of losing his life or receiving
great bodily harm. Defense counsel further informed the jury that when it began deliberating, it
could not take into account whether or not the defendant should or should not have attempted to
retreat. Later, defense counsel again informed the jury that " this man did not have a duty to
retreat and you all cannot consider that as a factor."
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even entitled to a jury charge for self-defense. The defendant did not testify at
trial. Tarisha' s testimony did not establish that the defendant acted in self-defense,
and Javonnie' s testimony established the defendant did not act in self-defense. As
such, with the aggressor doctrine appropriately applicable to this case, it is
questionable whether the defendant was even entitled to a self-defense charge.
At any rate, even if the jury charge regarding the duty to retreat was
erroneous, it would have constituted harmless error. In the similar jury charge
scenario in Wells, wherein the jury was instructed to both consider the possibility
of retreat and to not consider the possibility of retreat, the supreme court found that
such error was subject to a harmless error analysis. Wells, 209 So. 3d at 711- 13.
Under the harmless -error test of Chapman v. California, 386 U.S. 18, 87
S. Ct. 824, 17 L.Ed.2d 705 ( 1967), the question is whether it appears " beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained." Chapman, 386 U.S. at 24, 87 S. Ct. at 828. See State v. Gibson, 391
So. 2d 421, 426- 27 ( La. 1980). In Sullivan v. Louisiana, 508 U.S. 275, 279, 113
S. Ct. 2078, 20819 124 L.Ed.2d 182 ( 1993), the Supreme Court clarified that 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." See Wells, 209 So. 3d at 717- 18.
Given that Javonnie' s uncontradicted testimony established that the defendant did
not kill Deeric in self-defense, the guilty verdict was surely unattributable to any
confusion that may have been created regarding the jury charge on the duty to
retreat.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
In his third assignment of error, the defendant argues Javonnie should not
have been allowed to remain in the courtroom and listen to the testimony of
12
Tarisha before he testified.
At the start of trial, the trial court ordered sequestration of witnesses. During
trial, but prior to Javonnie and Tarisha testifying, defense counsel moved that
Javonnie, despite being a family member of the victim, be sequestered during the
testimony of Tarisha. According to defense counsel, this would prevent Javonnie
from being able to " cater his testimony" to what he had already heard from Tarisha.
Based on La. Code Evid. art. 615, the trial court denied defense counsel' s motion.
The purpose of the sequestration article is to prevent witnesses from being
influenced by the testimony of earlier witnesses. State v. Chester, 97- 2790 ( La.
12/ 1/ 98), 724 So. 2d 1276, 1282, cert. denied, 528 U.S. 826, 120 S. Ct. 75, 145
L.Ed. 2d 64 ( 1999). The trial judge, in his discretion, may determine the
disqualification of a witness when a rule of sequestration has been violated. This
ruling will not be disturbed absent an abuse of the trial court' s discretion. State v.
Draughn, 2005- 1825 ( La. 1/ 17/ 07), 950 So. 2d 583, 621, cert. denied, 552 U.S.
10125 128 S. Ct. 537, 169 L.Ed.2d 377 ( 2007).
Louisiana Code of Evidence article 615 provides in pertinent part:
A. As a matter of right. On its own motion the court may, and on
request of a party the court shall, order that the witnesses be excluded
from the courtroom or from a place where they can see or hear the
proceedings, and refrain from discussing the facts of the case with
anyone other than counsel in the case. In the interests of justice, the
court may exempt any witness from its order of exclusion.
B. Exceptions. This Article does not authorize exclusion of any of the
following:
4) The victim of the offense or the family of the victim.
Under La. Code Evid. art. 615( B)( 4), Javonnie, as the brother of the victim,
was entitled to remain in the courtroom for the duration of the trial. Without any
showing, by a preponderance of the evidence, that a sequestration violation
occurred and that the violation substantially prejudiced his case, a complaining
party is not entitled to having his opponent' s witnesses excluded from the trial.
13
State v. Lucas, 39, 419 ( La. App. 2nd Cir. 3/ 9/ 05), 896 So. 2d 331, 340.
The defendant claims he was prejudiced by the trial court' s failure to
sequester Javonnie during the testimony of Tarisha. According to the defendant,
after Tarisha' s testifying first, Javonnie then repeatedly referred to her testimony
during his cross- examination. For example, when Tarisha was asked about texts
from Javonnie to her wherein Javonnie stated she was going to make him hurt her
if she did not give him his money back, Tarisha responded that this type of
language was typical between them and it was just the way they talked to each
other. When Javonnie was later asked about similar texts where he threatened to
slap Tarisha, he indicated that it was the way they talked to each other, and that
Tarisha had told defense counsel that.
The defendant suggests that defense counsel was unable to cross- examine
Javonnie effectively about his mental state on the night of the shooting because
Javonnie had listened to Tarisha' s testimony before testifying. According to the
defendant, Javonnie should have testified first, which would have preserved his
right to remain in the courtroom throughout the trial. Under this scenario, the
defendant avers, neither witness' s testimony would have impacted the other' s.
The defendant has failed to show how Javonnie' s presence in the courtroom
during Tarisha' s testimony substantially prejudiced his case. Aside from a few
instances where Javonnie agreed with Tarisha, such as they talked to/texted each
other in their own particular way and that all parties were aware of Tarisha' s
open"
relationship with the defendant and Javonnie, there was nothing in the
cross- examination of Javonnie that suggested he was merely repeating what
Tarisha had testified to earlier. See State v. Jones, 43, 053 ( La. App. 2nd Cir.
2/ 20/ 08), 982 So. 2d 105, 117- 18, writ denied, 2008- 0710 ( La. 10/ 10/ 08), 993
So. 2d 1282. Their accounts regarding how events unfolded that night were clearly
dissimilar enough to indicate Javonnie' s testimony was not merely a reiteration of
14
Tarisha' s testimony. Aside from both testifying that all three ( the defendant,
Javonnie, and Tarisha) were standing in the yard, there was little agreement in what
followed. For example, Tarisha testified the defendant had a gun in his hand when
she was talking to Javonnie. Javonnie testified he did not see the defendant with a
gun. Javonnie testified that the defendant threw the first punch. Tarisha testified
only that they " went at it" and that she did not know who struck whom first.
Javonnie testified he heard the defendant tell Tarisha to give him the gun. Tarisha
testified she never had a gun and never gave the defendant a gun
There was no evidence that the rule of sequestration was violated, as there
was no evidence that these witnesses discussed the case amongst themselves.
Moreover, it is clear that the testimony of Javonnie was not improperly influenced
by the earlier testimony of Tarisha, but rather that he testified according to his own
recollection of the same events that had been addressed during Tarisha' s testimony.
See Draughn, 950 So. 2d at 621- 22; State v. Comery, 2012- 0999 ( La. App. 1st
Cir. 9/ 13/ 13), 2013 WL 11253298, * 3 ( unpublished), writ denied, 2013- 2401 ( La.
5/ 23/ 14), 140 So. 3d 720. See also State v. Johnson, 2001- 2334 ( La. App. 4th Cir.
12/ 4/ 02), 833 So. 2d 508, 511 ( finding witness' s presence in the courtroom during
her mother' s testimony was not a violation of the trial court' s sequestration order
where witness was a victim of the offense, as well as a family member of another
victim, and her presence in the courtroom did not affect her testimony).
Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 4
In his fourth assignment of error, the defendant argues that his life sentence
is excessive.
The Eighth Amendment to the United States Constitution and Article I, § 20,
of the Louisiana Constitution prohibit the imposition of cruel or excessive
punishment. Although a sentence falls within statutory limits, it may be excessive.
15
State v. Sepulvado, 367 So. 2d 762, 767 ( La. 1979). A sentence is considered
constitutionally excessive if it is grossly disproportionate to the seriousness of the
offense or is nothing more than a purposeless and needless infliction of pain and
suffering. A sentence is considered grossly disproportionate if, when the crime and
punishment are considered in light of the harm done to society, it shocks the sense
of justice. State v. Livous, 2018- 0016 ( La. App. 1st Cir. 9/ 24/ 18), 259 So. 3d 1036,
1044, writ denied, 2018- 1788 ( La. 4/ 15/ 19), 267 So. 3d 1130. The trial court has
great discretion in imposing a sentence within the statutory limits, and such a
sentence will not be set aside as excessive in the absence of a manifest abuse of
discretion. State v. Scott, 2017- 0209 ( La. App. l st Cir. 9/ 15/ 17), 228 So. 3d 207,
211, writ denied, 2017- 1743 ( La. 8/ 31/ 18), 251 So. 3d 410. Louisiana Code of
Criminal Procedure article 894. 1 sets forth the factors for the trial court to consider
when imposing sentence. While the entire checklist of Article 894. 1 need not be
recited, the record must reflect the trial court adequately considered the criteria.
State v. Brown, 2002- 2231 ( La. App. 1st Cir. 5/ 9/ 03), 849 So. 2d 566, 569.
The articulation of the factual basis for a sentence is the goal of Article
894. 1, not rigid or mechanical compliance with its provisions. Where the record
clearly shows an adequate factual basis for the sentence imposed, remand is
unnecessary even where there has not been full compliance with Article 894. 1.
State v. Lanclos, 419 So. 2d 475, 478 ( La. 1982); Scott, 228 So. 3d at 211. The
trial judge should review the defendant' s personal history, his prior criminal record,
the seriousness of the offense, the likelihood that he will commit another crime,
and his potential for rehabilitation through correctional services other than
confinement. State v. Jones, 398 So. 2d 1049, 1. 051- 52 ( La. 1981); State v.
Spikes, 2017- 0087 ( La. App. 1st Cir. 9/ 15/ 17), 228 So. 3d 201, 204- 05.
For the defendant' s second degree murder conviction, the trial court imposed
the mandatory life sentence. The defendant argues in brief that under the facts
16
developed at trial, his life sentence without parole is unconstitutionally excessive.
According to the defendant, life imprisonment is grossly disproportionate to the
situation that occurred in this case.
In State v. Dorthey, 623 So. 2d 1276, 1280- 81 ( La. 1993), the Louisiana
Supreme Court opined that if a trial judge were to find that the punishment
mandated by La. R.S. 15: 529. 1 makes no " measurable contribution to acceptable
goals of punishment" or that the sentence amounted to nothing more than " the
purposeful imposition of pain. and suffering" and is " grossly out of proportion to
the severity of the crime," he has the option, indeed the duty, to reduce such
sentence to one that would not be unconstitutionally excessive. In State v.
Johnson, 97- 1906 ( La. 3/ 4/ 98), 709 So. 2d 672, 676- 77, the Louisiana Supreme
Court reexamined the issue of when Dorthey permits a downward departure from
the mandatory minimum sentences in the Habitual Offender Law.
Mandatory sentences have been repeatedly upheld as constitutional and
consistent with the federal and state constitutional provisions prohibiting cruel,
unusual or excessive punishment. Scott, 228 So. 3d at 212. To rebut the
presumption that the mandatory minimum sentence is constitutional, the defendant
must clearly and convincingly show that he is exceptional, which means that
because of unusual circumstances this defendant is a victim of the legislature' s
failure to assign sentences that are meaningfully tailored to the culpability of the
offender, the gravity of the offense, and the circumstances of the case. Johnson,
709 So. 2d at 676.
Considering the nature of the crime and the mandatory life sentence at issue,
we find no abuse of discretion by the trial court. The defendant does not mention
Dorthey or Johnson in brief, but to the extent he is suggesting his situation is
unique, he has not proven by clear and convincing evidence that he is exceptional
such that the sentence would not be meaningfully tailored to the culpability of the
17
offender, the gravity of the offense, and the circumstances of the case. See
Johnson, 709 So. 2d at 676. Accordingly, the sentence imposed by the trial court is
not grossly disproportionate to the severity of the offense and, therefore, is not
unconstitutionally excessive._
This assignment of error is without merit.
DECREE
For the foregoing reasons, the conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.
HM