State of Louisiana v. Carlin Tremell Cotton

• Court: Louisiana Court of Appeal
• Decided: January 10, 2024
• Docket: 55,435-KA
• Status: Published

Opinion

Judgment rendered January 10, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 55,435-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

CARLIN TREMELL COTTON Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 386,171

Honorable Christopher T. Victory, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Edward K. Bauman

JAMES E. STEWART, SR. Counsel for Appellee District Attorney

SAMUEL S. CRICHTON TOMMY J. JOHNSON Assistant District Attorneys

Before STONE, ROBINSON, and MARCOTTE, JJ. MARCOTTE, J.

This criminal appeal arises from the First Judicial District Court,

Parish of Caddo, the Honorable Chris Victory presiding. Defendant Carlin

Tremell Cotton appeals his conviction for second-degree murder and his

sentence of life imprisonment at hard labor without benefits. For the

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 16, 2022, Cotton was charged by bill of indictment with

second-degree murder, in violation of La. R.S. 14:30.1. The crime occurred

on August 18, 2021, in Shreveport, Louisiana, and the victim was Cedric

Cemoyne Fuller (“Fuller”), Cotton’s alleged half-brother. Cotton pled not

guilty. A jury trial was held January 23-26, 2023, where the following

evidence was adduced.

Brenretta Richardson-Anderson (“Richardson”) testified that she was

at her mother’s house on the day of the shooting. Her mother lived behind

the home of Gloria Fuller (“Gloria”), Fuller’s mother. Gloria lived at 4206

Baxter Street, Shreveport, Louisiana. From inside her mother’s home

Richardson heard several gunshots, a brief period of quiet which she

described as “a pause,” and then three to four more shots. She saw, from her

mother’s home, a white Chevy Impala pull out of the driveway at or near

4206 Baxter Street. Shortly thereafter, a neighbor informed her that there

had been a shooting. Richardson walked toward Gloria’s house and saw

Fuller on the ground.

Richardson stated that Fuller and Cotton had the same father, and she

saw a white Chevy Impala at Gloria’s house often. She said that Fuller went

by the nicknames “Maniac” or “Yak,” but she did not know why. Richardson testified that she did not hear anything prior to hearing the shots,

such as a verbal argument. She did not know Fuller to wear brass knuckles,

but stated that they only saw each other in passing.

Fuller’s sister, Tomiko Cain (“Cain”), testified that Fuller was living

and working in Texas at the time of the shooting, but he had come to

Shreveport to visit his mother on the day of his death. She said that Fuller

was first called “Maniac” or “Yak” when he was a child. Cain stated that

the front of her mother’s home included a carport which Gloria had enclosed

in plastic sheeting.

Cain stated that Cotton was alleged to be Fuller’s half-brother. She

arrived at Gloria’s house after her brother was shot and transported to the

hospital to find her mother in a state of distress and being treated by

paramedics. She said that she never knew Fuller to wear brass knuckles.

Cain knew her brother was arrested in 2019, but she did not know that he

was arrested for attempted possession with intent to distribute marijuana.

Gloria testified that Fuller was 45 years old when he died and that he

got the nickname “Maniac” when he was a child. Gloria owned a 2015

Cadillac Escalade, which only Fuller was allowed to drive. Fuller came to

Shreveport on the day of his death, August 18, 2021, and was inside Gloria’s

house on Baxter Street when Cotton arrived. She said that it rained prior to

the shooting and there was a puddle in her yard.

Gloria was inside her carport/patio that she had enclosed with plastic

sheeting when Cotton arrived. She first realized Cotton was there when she

saw the plastic sheet shaking, meaning someone was touching it. Gloria

asked who was outside and Cotton identified himself and entered the

carport. 2 Gloria first met Cotton when her husband, Ray Fuller (“Ray”),

Fuller’s father and Cotton’s alleged father, was alive. Gloria stated that Ray

died in 2010, and Cotton would come to her house often to see him and the

victim. Fuller and Cotton referred to each other as brothers. Gloria said that

she was unaware of any financial arrangement between Fuller and Cotton.

Gloria said that Cotton was not acting normal that day and his eyes

were red. While Cotton was speaking with Gloria, Fuller entered the carport

from the house and walked past his mother and Cotton out to the driveway,

where the Escalade was parked at an angle. Gloria testified that Cotton and

Fuller did not speak to each other, and she heard nothing while she was

sitting in the carport. A few minutes later, Cotton left the carport and went

toward the driveway; Gloria also left the carport, entered her house, and

went into the den.

Gloria then heard several gunshots, which she said sounded close.

She went to her front door, opened it, and looked out, but did not see

anything. She closed the door and proceeded down the hallway and then

heard several more shots. Gloria “hollered” for Fuller, but he did not

respond. She went outside to the Escalade, walked around it, and discovered

Fuller lying face down beside it in a puddle. Gloria stated that she was the

first person to find Fuller’s body and no one else was around. She ran inside

her house, retrieved her cell phone, returned to Fuller, and called 911. She

said that police arrived, pulled Fuller out of the puddle, and turned him over;

paramedics arrived and transported him to the hospital.

Gloria’s 911 call and her statement to the police were played for the

jury. Gloria can be heard in the recording in extreme distress. The 911

operator had to repeatedly ask her for her address and information about 3 who was shot. Gloria testified that the 911 operator told her to apply

pressure to Fuller’s wounds, but she testified, “I couldn’t do anything but

scream.” Gloria said that neither was she composed when the police arrived

at her house and paramedics had to work on her to get her blood pressure

down.

Gloria never knew her son to carry brass knuckles, and she did not see

anyone disturb or remove brass knuckles from Fuller’s body. Gloria

testified that she did not hear voices, talking, arguing, or screaming before,

during, or after the shots rang out. She stated that, if there had been an

argument in her driveway, she would have heard it. She said that the

windows to her house were closed at the time of the shooting, and no one

else was present at her home when her son was shot. Gloria stated that she

did not hear anyone say on August 18, 2021, “Mama, throw me my gun.”

She was not aware of any guns that Fuller kept in her home, she never saw

him bring a gun into her home, and she had not found a gun in her home

since her son died.

Officer A. Visciotti (“Off. Visciotti”) was working patrol for the

Shreveport Police Department (“SPD”), when he was dispatched to the

scene of Fuller’s murder on Baxter Street on August 18, 2021. Off. Visciotti

received the call at approximately 6:00 p.m. when it was still light out; it had

been raining earlier that day, but it was not raining at the time of the

shooting. Off. Visciotti testified that he was the first officer to arrive, and he

observed Fuller lying face down on the left side of a Cadillac Escalade near

the driver’s door in approximately three to five inches of water, which was

tinted red. Fuller’s hands were in the water.

4 Off. Visciotti testified that he pulled Fuller’s body forward to get him

out of the water and flipped him onto his back in order to perform life-

saving measures. He stated that Fuller’s clothing and pockets were wet and

he was bleeding. Off. Visciotti observed shell casings in the road, but he did

not see any blood other than the blood around Fuller. The rear hatch to the

Escalade was open and he saw a cell phone and brass knuckles placed there,

side-by-side. Off. Visciotti stated that he arrived on the scene about 2

minutes and 15 seconds after he received the call about Fuller’s shooting and

the crime scene was unattended during that time. He said that multiple

people were walking around the scene and could have disturbed the

evidence. Off. Visciotti said that Gloria was distraught when he arrived at

her home, but she did not make a statement to him that she had removed

brass knuckles or a phone from Fuller’s body.

The dash cam recording from Off. Visciotti’s patrol vehicle was

played for the jury and confirmed his testimony. It was raining before he

was dispatched to the scene. He received the call at 6:14 p.m., and he

arrived at the scene at 6:16:09 p.m. When he arrived, several people there

were moving around and in distress. Gloria could be seen screaming,

crying, wandering around, and in distress before she was ushered out of the

dash cam’s view. Later, an officer could be heard requesting help from

paramedics to attend a woman who fainted out of view of the camera.

Sergeant Hannah Clark (“Sgt. Clark”), a crime scene technician for

SPD, testified that she responded to a reported shooting that occurred on

Baxter Street on August 18, 2021. Sgt. Clark first went to the hospital where

Fuller was transported to photograph his body. She stated that she took

pictures of Fuller’s hands and knuckles and no bruising or cuts were present 5 to indicate that he had participated in a fistfight before his death. The

photographs were admitted. No bruising, cuts, or injuries to Fuller’s hands

can be seen in the photos.

Sgt. Clark then went to the scene of the shooting. Upon arriving, Sgt.

Clark noticed an SUV with its hatch door up parked at an angle in the

driveway. There were also seven .40 caliber shell casings marked with

numbered placards on the ground, west of the SUV. Sgt. Clark testified that

there were two distinct sets of shell casings grouped together on the ground.

There was also one projectile on the ground near the SUV, and the driver’s

side of the vehicle had an indentation in it, consistent with it being hit by a

projectile which did not penetrate the door.

She observed a cell phone and brass knuckles made of metal in the

back end of the SUV. Sgt. Clark stated that she did not see anything on the

brass knuckles, such as blood, moisture, dirt, or debris. She swabbed the

brass knuckles for DNA and placed them into a sealed evidence bag, but she

did not attempt to get any fingerprints from them. Sgt. Clark took additional

photographs of the crime scene which were admitted and are consistent with

her testimony.

Dr. James Traylor (“Dr. Traylor”), who was accepted as an expert

witness in forensic pathology, testified about the autopsy he performed on

Fuller. Fuller was 6 feet, 195 pounds, and tested positive for natural

marijuana at the time of his death. Fuller had five gunshot wounds, one

penetrating, three perforating, and one grazing. Dr. Traylor described the

wounds as being from distant range of fire, meaning that the muzzle of the

gun was more than 18 inches from Fuller when he was shot. Dr. Traylor

explained that a penetrating shot is one where the bullet goes into the body 6 but does not exit; a perforating shot is one where the bullet goes into the

body and exits, leaving entry and exit wounds in the body; and a grazing

shot is one where the bullet only grazes the body, but does not go into the

body.

The diagram Dr. Traylor made of Fuller’s gunshot wounds was

admitted. The diagram shows that Fuller was shot five times, all on his left

rear side, from his thigh to his mid-back. Dr. Traylor stated that two of the

five bullets that struck Fuller created fatal wounds. The first, a perforating

shot, entered Fuller’s left mid-back and exited just below his right nipple,

damaging two ribs, his left lung, and the right ventricle of his heart. The

second, a penetrating wound, entered his left buttock, hit his right common

iliac artery, perforated two loops of his small bowel, and then lodged in his

abdomen. Photos of Fuller’s autopsy were admitted. Dr. Traylor stated that

he observed no injuries to Fuller’s hands and his manner of death was

homicide.

On cross examination, Dr. Traylor testified that it was impossible to

determine which shot was fired first, and he agreed that it was common for

people to turn away from being shot. Dr. Traylor stated that he did not test

Fuller for synthetic cannabinoids. Dr. Traylor acknowledged that it was

possible “with a good-fitting pair” of brass knuckles that a person could

inflict a lot of injury, but have no injury to himself.

On redirect, when asked, “If you have a weapon, and I’m running

toward you, can I sustain these injuries,” (referring to Fuller’s gunshot

wounds) “Dr. Traylor responded, “No.” He stated that with the fatal wounds

Fuller sustained, he would have been debilitated before dying and unable to

fight, but his death would not have been instantaneous. 7 Detective T. Wesley (“Det. Wesley”), a homicide detective for SPD,

was the lead detective in the investigation into Fuller’s death. He testified

that he was dispatched to 4206 Baxter Street on the date Fuller was killed;

he arrived at 6:13 p.m. When he arrived on scene, he saw paramedics

rendering aid to Fuller, who was lying on the ground; Fuller was transported

to a hospital and later pronounced dead. Det. Wesley observed a white

Escalade SUV parked diagonally in the driveway of Gloria’s house, with

part of the rear of the vehicle sticking out into the street.

Det. Wesley said that the hatch door and front driver’s side door of the

SUV were open. Crime scene markers were placed on the ground near spent

shell casings from a handgun. Det. Wesley observed a water puddle on the

ground near the driver’s side door which had a reddish tint. The driver’s

side front door was later closed in order to take a photograph of a defect in

the door, which Det. Wesley stated appeared to have been caused by a bullet

striking the door. Det. Wesley observed a cell phone and brass knuckles,

which had been “neatly placed” in the hatch of the SUV. He did not observe

any dirt, debris, moisture, or water on the brass knuckles. He stated that he

did not see or find any other weapons or harmful objects in the area.

Det. Wesley confirmed that Richardson’s and Gloria’s testimony

about hearing two sets of shots with a pause in between them was consistent

with their statements to law enforcement. Det. Wesley affirmed that Gloria

did not say to law enforcement that she moved the brass knuckles, but she

reported that she immediately went inside her home to call 911. Det.

Wesley also confirmed that Gloria informed the police that she did not see

anyone else around when she found her son’s body on the ground. Det.

Wesley stated that Gloria told law enforcement that, when she saw Cotton 8 on the day of Fuller’s death, he was “talking irrational,” was stumbling, and

his eyes were “bloodshot red.” Gloria did not tell police she heard Fuller

say, “Mama, go get my gun.”

Det. Wesley reviewed a 911 call that Cotton made, saying that his

brother beat him with brass knuckles, so he then pulled out a gun and shot

him. Cotton made a phone call from jail on January 1, 2023, to his mother

Sandra Goode (“Goode”), a recording of which was admitted and played for

the jury. In the call, Cotton stated that the autopsy report was incorrect and

that the state should not have been able to use it against him. Cotton said

that he did not know how he was going to be able to claim self-defense,

because the autopsy report stated that Fuller was shot in the back. He told

his mother several times that Fuller “came at” him and that’s why he shot

him.

When Goode asked Cotton if he shot Fuller in the back, he said “Yes,

I did, and no, I didn’t. I shot him when he asked for the gun. I, uh, that’s

when I shot him when he was on the ground. It appears the gunshot wounds

were in the back.” Det. Wesley reiterated that no firearm was discovered in

the vicinity of where Fuller was found, including the SUV, but the detective

acknowledged that he did not ask to search Gloria’s house for firearms.

Det. Wesley agreed that SPD Sergeant Mendel’s police report noted

that she observed water droplets or moisture on the brass knuckles at the

scene. He did not see the same on the brass knuckles, which he inspected

when he first arrived at the scene. Det. Wesley stated that it was not raining

at the time of the shooting. Det. Wesley said that the way the phone and

brass knuckles were placed in the SUV was suspicious, because of how

neatly they were placed there; it did not look like someone threw them in the 9 vehicle. Det. Wesley said that the cell phone was Fuller’s and he did not get

any information from the phone.

Det. Wesley testified that he attended the first 30-45 minutes of

Fuller’s autopsy, and that initially Dr. Traylor stated that the wound to

Fuller’s chest was an entry wound. Det. Wesley included that information in

his arrest warrant application, but that information was later corrected by Dr.

Traylor’s autopsy report. Det. Wesley did not request that a synthetic

marijuana test be performed. Det. Wesley requested that the crime lab

analyze the DNA swab of the brass knuckles, but as of the date of his

testimony, it had not done so. Det. Wesley said that there was nothing in

Fuller’s history to suggest that he used synthetic marijuana. The state rested.

The defense called Goode to testify. She stated that she spoke with

Cotton shortly after the shooting and that he was “hysterical” and crying,

and that she could not understand most of what he was saying. Law

enforcement contacted her and asked if she had seen him; she told them she

had not and gave the officers Cotton’s phone number. Goode heard from

Cotton several times a month prior to the shooting, but afterwards, he did not

contact her.

Following a colloquy where defendant was informed of his right to

remain silent, Cotton elected to testify in his own defense. Cotton stated that

he was 53 years old at the time of trial and Fuller was his half-brother; the

two shared a father. Cotton stated that he has several misdemeanor and

felony convictions for various crimes, including several drug offenses, theft

offenses, simple battery, simple robbery, and two charges of domestic abuse

battery.

10 Cotton stated that Fuller borrowed money from him, and he waited

several months for Fuller to pay him back; on August 18, 2021, Cotton went

to Gloria’s house to talk to Fuller about getting his money. He parked his

girlfriend’s car, a Chevy Impala, near Gloria’s Escalade. Cotton stated that

Fuller was outside the house when he arrived, but he did not acknowledge or

speak to Cotton. Cotton said that he was smoking in the Impala for a minute

after he arrived, and as he put out his cigarette, he saw that there was a gun

in the compartment under the radio; the gun was initially covered with

something. Cotton testified that the gun was not his, he did not put it in the

car, and having the gun in the car made him nervous, because he was a

convicted felon. Cotton picked up the gun, “slid the rack” to make sure

there was not a round in the chamber and then slid the gun between the

seats. He exited the car and locked the door.

Cotton went to the carport, Gloria asked who was there, he responded

and entered the carport. Cotton observed Fuller in the laundry room talking

on his phone and “sacking up a couple of ounces of cocaine.” Fuller ended

his call and walked by Cotton without saying anything to him. Cotton stated

that he followed him outside and asked for his money. Cotton testified that

Fuller reached into the back of the Escalade, pulled out and put on a pair of

brass knuckles, and swung at defendant. Cotton said that he deflected the

first blow, but Fuller hit him repeatedly on his body, from his forearms to his

hips. Cotton said that he was backing away from Fuller and he lost his

footing and went down to his knees at the front of the Impala.

Cotton said that he begged Fuller to stop beating him and told him

that he could keep the money. Fuller stopped hitting Cotton and moved

away. Cotton then cursed at Fuller, who proceeded to hit defendant again 11 using the brass knuckles. Cotton said that Fuller backed him up toward the

Impala and that he thought he was going to die. Cotton said that he used his

car door as a shield and he fell to his hands and knees again and begged for

Fuller to stop beating him.

Cotton stated that Fuller stopped hitting him and walked away again.

Cotton testified that he unlocked the car door while on his knees, leaving the

keys in the door. Cotton again cursed at Fuller, who started toward him

again. Cotton testified that he then grabbed the gun from the car, cocked it,

and fired. Cotton stated that he fired one round, but Fuller was still coming,

so he pulled the trigger two more times and hit Fuller. Cotton said that he

had never fired a gun before. Fuller fell back against the Escalade and fell to

the ground. Cotton stated, “[H]e’s not coming no more. He’s immobilized.”

Cotton then said that he turned to get his phone from his car to call 911,

when he heard Fuller say, “Mama, throw me my gun.”

Cotton testified that he turned, saw Fuller’s arm outstretched and

reaching, so he fired several more shots to stop Fuller from getting whatever

he was reaching for. Cotton said that he left in the Impala, because he was

afraid Fuller was going to get a gun and kill him, or that Gloria would see

Fuller on the ground and try to kill him. Cotton said that he drove around

the corner and called 911. The 911 call was admitted and played for the

jury. In the call, Cotton can be heard crying and screaming; he mentioned

brass knuckles and gave his name. Cotton stated that, after calling 911, he

went to the Red Roof Inn, where he stayed the rest of the evening.

Cotton said that his girlfriend took photographs of the bruising to his

body from being struck with the brass knuckles. Four photographs depicting

bruising were admitted. The photos only depict a person’s body, and do not 12 show the person’s face. Three of the photos depict the same area of bruising

on the person’s body.

Cotton said he did not want to turn himself in, because there was

coronavirus in the jail and he was not vaccinated. He said that he did not

think he would be charged in this case, because Fuller beat him using brass

knuckles and he feared for his life while Fuller was hitting him. Cotton said

that he was unaware that there was a warrant for his arrest for shooting

Fuller. Cotton explained that he did not remove the brass knuckles from

Fuller’s body or place them and a cell phone in the back of the Escalade.

Cotton said that neither was inside the hatch of the SUV when he walked by

it to get into the carport at Gloria’s house.

Cotton gave the following testimony on cross-examination. He stated

that he was aware that he was not allowed to possess a firearm. He said he

had been using his girlfriend’s car off and on for about one to two weeks

prior to August 18, 2021, and his girlfriend’s adult son also used the car

during that period. Cotton suggested that her son placed the gun in the car.

Cotton stated that when he put out his cigarette in the car’s ashtray, he

disturbed what was covering the gun, he saw something shiny, reached for it,

and saw that it was a gun. He said he was “freaking out” about there being a

gun in the car. When asked why he did not relocate the gun to a secure

location, like the trunk, Cotton stated, “[I]t wouldn’t matter. If I got stopped

in that car by a police officer, and that gun is in the glove box…do I get

convicted felon with a firearm?”

Cotton said that he was unfamiliar with firearms, but he watched a

YouTube video about how firearms work. He said he was not sure if the

magazine was in the gun when he slid the rack, which would have loaded a 13 round into the chamber if the magazine was present. Cotton said the safety

on the handgun “must not have been on,” when he handled and fired the

weapon.

When he arrived at Gloria’s house, he sat in his car for three to four

minutes before he walked toward the carport. Cotton said that he did not

stand outside the carport rustling the plastic sheeting as Gloria testified and

he was not under the influence of drugs or alcohol. He again said that Fuller

was “sacking up cocaine” when he first saw him inside Gloria’s house.

Cotton said that he did not know what happened to the cocaine that Fuller

allegedly had, when questioned about why Fuller was not found with

cocaine and none was found at the crime scene.

Cotton said that Fuller’s “drug of choice” was codeine syrup which he

said showed up on Fuller’s toxicology report from Dr. Traylor. When the

state said that the only drug present in Fuller’s body at the time of his death

was natural marijuana, Cotton said that he misread the results of the report,

saying that he confused codeine with cocaine. Cotton said that when he

used cocaine, he got it from Fuller.

Cotton alleged that he thought there was a surveillance camera that

caught his altercation with Fuller, which is why he believed he would not be

charged in the case. Cotton said that the first time Fuller hit him with the

brass knuckles he did not feel like his life was threatened, but he just felt like

he “got beat.” Cotton said that he walked to the driver’s side of the Impala,

because he knew if Fuller beat him again, he could get at the gun. Cotton

said that he was not yelling when Fuller beat him, but he was making loud

noises.

14 Cotton said that he was 6 feet, 200 pounds and was not afraid Gloria

would physically hurt him. He said that he did not seek medical attention

for his injuries and he did not have any broken skin or bones from his

altercation with Fuller. When asked, “That injury meant that you had to use

a firearm to shoot him,” Cotton responded, “He had a weapon. That was the

only weapon I had.”

Cotton testified that he stopped speaking to his mother after his initial

conversation after he shot Fuller, because he didn’t want her “harboring a

fugitive.” Cotton said the brass knuckles were on Fuller’s person when he

left the scene.

Cotton gave the following testimony on redirect. He stated that the

entire encounter between himself and Fuller took about one minute. He said

he was not sure where he hit Fuller when he first shot him, and when Fuller

fell to the ground, he was crawling and he had his hand up. Cotton said that

he was afraid he was going to receive immediate bodily injury, including

when Fuller called for a gun.

Det. Wesley testified again and said that he attempted to canvass

neighbors and other witnesses near Gloria’s house, but most people did not

want to speak with him. Det. Wesley found no functioning surveillance

cameras at the scene that recorded the alleged altercation between Fuller and

defendant. Det. Wesley stated that he did not follow up with the crime lab to

determine if they had tested the DNA swab from the brass knuckles or a

DNA sample taken from Cotton.

Det. Wesley stated that there was no evidence of cocaine at the scene

or of guns other than the one used to shoot Fuller. Det. Wesley stated that

15 he learned after his earlier testimony that the DNA swab taken from the

brass knuckles was never submitted to the crime lab.

Michelle Jackson (“Jackson”), the DNA Section Supervisor at the

North Louisiana Crime Lab, testified that Cotton’s DNA sample was

submitted to the crime lab, was never tested, and was returned to SPD and

that no DNA swab of brass knuckles was submitted to the crime lab for

testing. The defense rested.

Gloria testified as a rebuttal witness for the state. She said that if

Fuller had been dealing cocaine out of her home, she would have known

about it. She said that her son did not do so and she never saw him with

cocaine at her house.

The trial court then gave instructions to the jury, which included the

following language:

There are several factors that you should consider in determining whether the defendant had a reasonable belief that the killing was necessary to save himself from that danger:

(1) The possibility of avoiding the necessity of taking human life by retreat, provided however, that a person who is not engaged in any unlawful activity and in a place where he or she 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.

The jury rendered a unanimous verdict, finding Cotton guilty as

charged. On February 14, 2023, a sentencing hearing was held. Cotton filed

a motion for a new trial and a motion for a post-verdict judgment of

acquittal. The trial court denied both motions, and Cotton waived all

sentencing delays. The trial court advised Cotton of his appellate and post-

conviction relief time limits. The trial court considered the factors from La.

16 C. Cr. P. art. 894.1 and sentenced Cotton to life imprisonment at hard labor

without benefits. Defendant now appeals.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Cotton argues that the evidence

admitted at trial was insufficient to prove beyond a reasonable doubt that he

was guilty of second-degree murder, because he acted in self-defense when

he shot his half-brother. In his second assignment of error, Cotton makes the

alternative argument that, if this court finds that the killing was not done in

self-defense, the evidence supports a conviction of manslaughter. We will

consider the first two assignments of error together.

Cotton claims that he reasonably believed he was acting in self-

defense when he shot Fuller. He argues that Off. Clark’s and Det. Wesley’s

testimony that they did not notice any blood, dirt, or moisture on the brass

knuckles contradicts the report of Sgt. Mendels, which stated that there were

water droplets present on the brass knuckles in the back of the Escalade.

Cotton states that he was lawfully at Gloria’s house and that when Fuller

attacked him, he had the right to prevent a forcible offense against his

person. He states that he was in fear for his life, and that Fuller was

advancing on him when he shot at him. Fuller continued to advance on him

when he shot at him again. Fuller fell to the ground, but yelled for his

mother to throw a gun to him, and Cotton then shot him several more times.

Cotton argues that Fuller was the aggressor and he believed Fuller was going

to kill him or seriously injure him. He claims that the state failed to prove

that he did not act in self-defense when he shot Fuller.

17 In the alternative, Cotton argues that, if this court finds that he did not

act in self-defense, the evidence supports a conviction for manslaughter. He

states that what happened in this case was a fight between half-brothers that

got out of control. He contends that he was provoked by Fuller and, after

being attacked by Fuller a third time, he decided to defend himself by

getting the gun out of his girlfriend’s car and shooting Fuller.

The state argues that the question of who killed Fuller is not an issue.

The state contends that Cotton killed Fuller and intended to kill him when he

shot him. He had the requisite specific intent to kill Fuller when he shot him

five times, and several of those shots occurred when Fuller was already on

the ground and debilitated. Cotton fled the scene and avoided apprehension

for over two months. The state also argues that Cotton’s “self-serving facts”

were at odds with the evidence presented. Cotton claimed he had never fired

a gun before, but he hit the victim with five of seven shots. Cotton never

explained how he shot Fuller in the back except in his jail call to his mother.

Cotton stated he was very concerned about being a convicted felon in

possession of a firearm, but he did nothing to place the gun outside of his

possession.

The state argues that Cotton stated that Fuller was outside when he

arrived at the house, but was inside when he walked into the carport. He

also claimed there were drugs at the scene, but no drugs were found. Cotton

changed his story while testifying about whether he got into an argument

with Fuller. The photos he had admitted that allegedly depicted the injuries

Fuller inflicted on him, show only bruising on his back, but he testified that

he was bruised on his arms and body. The photos also do not show that he

was the person photographed, because they do not show his face. The state 18 contends that this court is not allowed to assess credibility or reweigh

evidence. The state argues that the evidence does not support a finding that

Fuller’s killing was committed in a sudden heat of passion or under other

circumstances limiting the verdict to a manslaughter conviction. The state

asks that this court find that the evidence was sufficient to support a second-

degree murder conviction.

The standard of appellate review for a sufficiency of the evidence

claim 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 proven beyond a reasonable doubt. Jackson v.

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

Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124

S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Parks, 54,888 (La. App. 2

Cir. 12/14/22), 352 So. 3d 166. This standard, now codified in La. C. Cr. P.

art. 821, does not afford an appellate court with a means to substitute its own

appreciation of the evidence for that of the fact finder. State v. Pigford, 05-

0477 (La. 2/22/06), 922 So. 2d 517; State v. Johnson, 55,254 (La. App. 2

Cir. 8/9/23), 370 So. 3d 91.

The Jackson standard is applicable to cases involving both direct and

circumstantial evidence. An appellate court reviewing the sufficiency of the

evidence in such cases must resolve any conflict in the direct evidence by

viewing that evidence in the light most favorable to the prosecution. When

the direct evidence is thus viewed, the facts established by the direct

evidence must be sufficient for a rational trier of fact to conclude beyond a

reasonable doubt that defendant was guilty of every essential element of the

19 crime. State v. Sutton, 436 So. 2d 471 (La. 1983); State v. Anderson, 55,168

(La. App. 2 Cir. 9/27/23), __ So. 3d __, 2023 WL 6280114.

Circumstantial evidence consists of proof of collateral facts and

circumstances from which the existence of the main fact may be inferred

according to reason and common experience. State v. Johnson, supra. If a

case rests essentially upon circumstantial evidence, that evidence must

exclude every reasonable hypothesis of innocence. La. R.S. 15:438; State v.

Wayne, 55,052 (La. App. 2 Cir. 6/28/23), 367 So. 3d 924.

Appellate courts neither assess the credibility of witnesses nor

reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442.

Rather, the reviewing court affords great deference to the jury’s decision to

accept or reject the testimony of a witness in whole or in part. State v.

Wayne, supra. Where there is conflicting testimony concerning factual

matters, the resolution of which depends upon a determination of the

credibility of the witnesses, the matter is one of the weight of the evidence,

not its sufficiency. Id.

In the absence of internal contradiction or irreconcilable conflict with

physical evidence, the testimony of one witness, if believed by the trier of

fact, is sufficient support for a requisite factual conclusion. State v. Coffey,

54,729 (La. App. 2 Cir. 9/21/22), 349 So. 3d 647, writ denied, 22-01574 (La.

12/20/22), 352 So. 3d 89; State v. Wilson, 50,418 (La. App. 2 Cir. 4/6/16),

189 So. 3d 513, writ denied, 16-0793 (La. 4/13/17), 218 So. 3d 629.

In the present case, Cotton was convicted of second-degree murder in

violation of La. R.S. 14:30.1, which is defined, in pertinent part, as “the

killing of a human being…when the offender has a specific intent to kill or

inflict great bodily harm[.]” 20 Specific 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 inferred from the circumstances and the actions of the

defendant. State v. Wayne, supra. Specific intent can be formed in an

instant. State v. Alexander, 51,918 (La. App. 2 Cir. 4/11/18), 247 So. 3d

981, writ denied, 18-0805 (La. 2/11/19), 263 So. 3d 436.

The discharge of a firearm at close range and aimed at a person is

indicative of specific intent to kill or inflict great bodily harm upon that

person. State v. Wayne, supra. Specific intent to kill may also be inferred

from the extent and severity of the victim’s injuries and the defendant’s use

of a deadly weapon to produce those injuries, which involved serious risk of

death. State v. Alexander, supra. The determination of whether the requisite

intent to kill is present is a question for the trier of fact. State v. Walker,

51,217 (La. App. 2 Cir. 5/17/17), 221 So. 3d 951, writ denied, 17-1101 (La.

6/1/18), 243 So. 3d 1064.

When a defendant raises self-defense as an issue, the burden is on the

state to prove beyond a reasonable doubt that the homicide was not

perpetrated in self-defense. We must consider whether the state met that

burden. La. R.S. 14:20 provides, in pertinent part:

A. A homicide is justifiable:

(1) 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.

(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its 21 prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing. …

C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.

D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

Factors to consider in determining whether a defendant had a

reasonable belief that the killing was necessary include the excitement and

confusion of the situation, the possibility of using force or violence short of

killing, and the defendant’s knowledge of the assailant’s bad character.

State v. Crow, 52,817 (La. App. 2 Cir. 6/26/19), 278 So. 3d 416. Although

there is no unqualified duty to retreat, the possibility of escape is a factor to

consider in determining whether a defendant had a reasonable belief that the

use of deadly force was necessary to avoid the danger. State v. Wilkins, 13-

2539 (La. 1/15/14), 131 So. 3d 839; State v. Johnson, supra.

When the defendant challenges the sufficiency of the evidence in a

self-defense case, the question becomes whether, viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could

have found beyond a reasonable doubt that the homicide was not committed

in self-defense or in the defense of others. State v. Crow, supra.

Regarding Cotton’s alternative claim that he should have been

convicted of the lesser offense of manslaughter, La. R.S. 14:31(A) provides,

in pertinent part: 22 (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood had actually cooled, at the time the offense was committed; or

(2) A homicide committed, without any intent to cause death or great bodily harm.

Accordingly, for murder to be reduced to manslaughter, the following

must be proved: (1) the homicide was committed “in sudden passion or heat

of blood”; (2) that sudden passion or heat of blood was immediately caused

by provocation sufficient to deprive an average person of his self-control and

cool reflection; (3) the defendant’s blood did not cool between the

provocation and the killing; and (4) an average person’s blood would not

have cooled between the provocation and the killing. State v. McGee,

51,977 (La. App. 2 Cir. 4/3/19), 316 So. 3d 1196.

A defendant who claims provocation as a means of reducing murder

to manslaughter bears the burden of proving these elements by a

preponderance of the evidence; additionally, provocation and the time for

cooling are questions for the jury to determine according to the standard of

the average or ordinary person. State v. Leger, 05-0011 (La. 7/10/06), 936

So. 2d 108, cert. denied, 549 U.S. 1221, 127 S. Ct. 1279, 167 L. Ed. 2d 100

(2007); State v. McGee, supra. Or, this court must determine that Cotton

shot at his brother not intending to kill him. La. R.S. 14:31.

There is no question here that Cotton shot and killed Fuller; he

admitted that he did so. The jury was tasked with considering whether

defendant killed his brother because he reasonably believed that he was in

23 imminent danger of losing his life. Cotton was unable to persuade the

members of the jury that he acted in self-defense.

Cotton stated that Fuller beat him with brass knuckles and walked

away twice, before advancing on Cotton a third time, at which point, Cotton

fired several shots at him. Fuller fell to the ground and Cotton alleged that

he called for his mother to throw him his gun while reaching from where he

was lying on the ground. Cotton then fired more shots at him. Two of the

shots were fatal.

As stated, the shooting of a firearm at close range and aimed at the

person is indicative of specific intent to kill or inflict great bodily harm upon

the victim. Cotton fired two sets of shots at Fuller showing his intent to hit

him with the projectiles. Cotton’s testimony that Fuller was moving toward

him when he shot the victim is inconsistent with Dr. Traylor’s testimony that

Fuller was shot five times in the back, meaning that he was not facing

Cotton when defendant shot him. Dr. Traylor also testified that it was

impossible for victim to have sustained his injuries as Cotton described.

Cotton stated that the first time that Fuller hit him with the brass

knuckles he was not in fear for his life, but, rather, he felt like he “got beat.”

While there is no unqualified duty to retreat, Cotton was presented with two

opportunities during his alleged confrontation with his brother to stop the

altercation and deescalate the situation. He chose not to do so.

Cotton attempted to paint his brother as a violent individual engaged

in criminal activity. He said that his brother got his nickname “Maniac” as

an adult. He testified that his brother was preparing cocaine for distribution

when Cotton arrived at Gloria’s home, and he suggested that Fuller was

under the influence of synthetic marijuana at the time he supposedly 24 attacked Cotton. Cotton said that his brother like to take codeine syrup, but

later backtracked and said Fuller preferred cocaine. Gloria and Cain

testified that Fuller got his nickname when he was a child. Fuller’s autopsy

report showed only that he had natural marijuana in his system at the time he

was killed, though he was not tested for synthetic marijuana. The only

evidence presented regarding Fuller’s criminal history was a conviction for

attempted possession with intent to distribute marijuana.

Richardson and Gloria, who were nearby at the time of the shooting,

testified that they heard no voices or sounds of arguing prior to hearing

gunshots, which conflicted with Cotton’s testimony that he made noises and

yelled at Fuller prior to shooting him. Richardson and Gloria also stated that

they heard several shots, a pause, and then additional shots, which is

consistent with Cotton’s testimony. Cotton said that he heard Fuller say,

“Mama, throw me my gun,” but Gloria testified that she never heard her son

say that. Also, Dr. Traylor testified that Fuller would have been debilitated

and unable to fight back after he was shot, meaning he would have been

unable to place the brass knuckles in the SUV. Cotton himself testified that

Fuller was “immobilized” when he shot him the first time.

The jury was also presented with evidence revealing that Cotton fled

the scene after the shooting, which does not comport with that of a person

who believed he acted in self-defense. Cotton also said that he did not

contact his mother but one time between the shooting and his arrest, because

he did not want her to get into trouble for harboring a fugitive.

Off. Visciotti testified that when he arrived on scene, Fuller was lying

face-down in standing water; his hands were also in the water. The

recording from his dash cam confirmed his testimony. Det. Wesley, Off. 25 Visciotti, and Sgt. Clark testified that there was no moisture, blood, or debris

on the brass knuckles found in the hatch of the Escalade. Off. Visciotti and

Det. Wesley stated that the brass knuckles and cell phone were placed side-

by-side in the hatch of the SUV and had not been thrown into the vehicle.

Cotton testified that Fuller was wearing the brass knuckles when he

left the scene, and he suggested that Gloria removed the brass knuckles from

Fuller’s body and placed them in the back of the SUV. Gloria’s testimony,

her 911 call, and the dash cam recording show that Gloria was completely

distraught by the shooting of her son, and this court finds it improbable that

she would have been able to remove brass knuckles from the hand of her

dead or dying son and neatly place them in the back of the SUV. Dr.

Traylor and Sgt. Clark stated that they did not observe any bruising or cuts

to Fuller’s hands, and the post mortem photographs do not show any injuries

to his hands. Gloria and Cain stated that they had never seen Fuller with

brass knuckles or had known him to wear or carry the weapon.

Cotton testified that Fuller was “sacking up” cocaine when he arrived,

and the victim took that cocaine with him outside to the Escalade. However,

no cocaine or other drugs were found at the scene. Cotton was unable to

explain where the drugs went when questioned.

Cotton’s belief that the use of deadly force was necessary to avoid the

danger was not reasonable. He had opportunities to end the alleged violent

encounter with his brother. In addition, it is the jury that determines

credibility. They were able to hear Cotton’s account of what happened, as

well as the testimony of the other witnesses, and they chose to believe a

different version of events than Cotton presented.

26 Regarding Cotton’s alternative claim that the evidence supports a

conviction of manslaughter instead of second-degree murder, we do not

agree. Cotton testified that his brother hit him with brass knuckles then

stopped hitting him and walked away. Cotton cursed at him, his brother

began hitting him again, but then stopped a second time and once more

walked away. Cotton again cursed at Fuller, who advanced on him again, at

which point Cotton shot him.

For murder to be manslaughter, the law requires that the homicide was

committed in sudden passion or heat of blood, that sudden passion or heat of

blood was immediately caused by provocation sufficient to deprive an

average person of his self-control and cool reflection, that the defendant’s

blood did not cool between the provocation and the killing, and an average

person’s blood would not have cooled between the provocation and the

killing. Cotton alleged that Fuller paused twice in beating him and walked

away. Cotton was able to then curse at his brother about the money Fuller

purportedly owed him.

Such testimony is sufficient to find that Cotton was not robbed of his

self-control or cool reflection and that his blood had cooled between when

Fuller allegedly hit him and when Cotton then shot his brother. Fuller also

fell to the ground, “immobilized,” and was unable to further harm defendant

before Cotton shot him again. Cotton provided the self-serving testimony

that Fuller sought a gun after he was first shot, but the jury did not find that

testimony persuasive.

The jury was instructed that it could return the responsive verdict of

manslaughter, but it chose not to do so. We find no evidence in the record

27 which convinces this court to disturb the jury’s verdict. The first two

assignments of error lack merit.

Ineffective Assistance of Counsel

In his third assignment of error, Cotton claims that his trial counsel

was ineffective for failing to object to the erroneous jury instruction on self-

defense. Cotton argues that his trial counsel erred when he did not object to

the jury instruction that a factor to consider in determining whether he had a

reasonable belief that killing Fuller was necessary was “the possibility of

avoiding taking a human life by retreat.” Cotton states that La. R.S.

14:20(D) forbids a finder of fact from considering the possibility of retreat in

deciding whether the use of deadly force was reasonable. Cotton claims that

the fact that he stood his ground and did not retreat, if in fact he could,

should not have been considered by the jury in evaluating his self-defense

claim. Cotton avers that he was prejudiced by his counsel’s failure to object

to the jury instruction about his duty to retreat, thereby denying him his right

to a fair trial.

The state contends that the evidence supported that Cotton was

engaged in unlawful activity at the time he killed Fuller. Cotton testified

about his criminal history, including recent convictions for drug offenses for

cocaine. Cotton stated that he knew that Fuller had a conviction for

possession with intent to distribute marijuana. Cotton stated that he loaned

money to Fuller and that he saw Fuller packaging and carrying cocaine

outside of Gloria’s house. He also admitted to the jury that he invested

money in illegal activity. The state contends that the inference of illegal

activity regarding the loan he sought to collect was before the jury.

28 The state also points out that Cotton took possession of a handgun he

found in his girlfriend’s vehicle and placed in an accessible location in the

car. He admitted he was a convicted felon and knew he was prohibited from

possessing a firearm, proving that Cotton was engaged in unlawful activity

when he shot Fuller. The state claims the jury charge was correct and

Cotton’s conviction and sentence should be affirmed.

As a general rule, a claim of ineffective assistance of counsel is more

properly raised in an application for post-conviction relief in the trial court

than by appeal. This is because post-conviction relief creates the

opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930.

However, when the record is sufficient, an appellate court may resolve this

issue on direct appeal in the interest of judicial economy. State v. Miller,

54,897 (La. App. 2 Cir. 1/11/23), 355 So. 3d 1165, writ denied, 23-00200

(La. 12/5/23), __ So. 3d __, 2023 WL 8431706.

The right of a defendant in a criminal proceeding to the effective

assistance of counsel is mandated by U.S. Constitutional Amendment VI.

State v. Wry, 591 So.2d 774 (La. App. 2 Cir. 1991). A claim of

ineffectiveness of counsel is analyzed under the two-prong test developed in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).

First, to establish that his attorney was ineffective, the defendant must

show that counsel’s performance was deficient. This requires a showing that

counsel made errors so serious that he was not functioning as the counsel

guaranteed the defendant by the Sixth Amendment. Second, the defendant

must show that counsel’s deficient performance prejudiced his defense and

that, but for counsel’s unprofessional errors, there is a reasonable probability 29 the outcome of the trial would have been different. Strickland, supra; State

v. Miller, supra. A reviewing court must give great deference to trial

counsel’s judgment, tactical decisions, and trial strategy, strongly presuming

he has exercised reasonable professional judgment. State v Miller, supra.

In considering the duty to retreat found in La. R.S. 14:20, the

Louisiana Supreme Court said in State v. Wells, 14-1701, p. 11 (La.

12/8/15), 209 So. 3d 709, 716:

This Court also found in Wilkins, that Section D’s provision that “[n]o finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary,” cannot be detached from Section C, which permits only those persons “who [are] not engaged in unlawful activity and who [are] in a place where [they have] a right to be” to stand their ground (which finding is also consistent with the legislative history described above). Thus, this Court found that “[t]o the extent that subsection D effectuates the right conferred by Subsection C on an individual to ‘stand his or her ground’ without weighing the possibility of escape or retreat before responding with deadly force, an unqualified right that did not exist previously in Louisiana, the two subsections work in tandem, not separately, to make a substantive change in the law because they directly impact not only how trials are conducted, and how juries may be instructed, but also how individuals may conduct themselves when confronted with situations that they perceive, reasonably or not, to present an imminent threat to their own lives.” (internal citations omitted.)

Here, the trial court instructed the jury by reading part of the language

of La. R.S. 14:20 to it. The jurors were instructed that Cotton had no duty to

retreat before using deadly force provided that he was not engaged in

unlawful activity. Moreover, as stated in the previous section, jurors are

permitted to consider the possibility of escape in determining whether a

defendant had a reasonable belief that deadly force was necessary to avoid

the danger of being killed or suffering great bodily harm. Cotton admitted

that he was in possession of a firearm as a convicted felon. Thus, he was 30 engaged in unlawful activity. He also alleged that Fuller was in possession

of cocaine, a controlled dangerous substance, which is also an unlawful

activity. We do not find that the jury instructions were in error or that

defense counsel was deficient in his performance for failing to object to the

instructions.

Furthermore, harmless-error analysis applies to instructional errors so

long as the error at issue does not categorically vitiate all the jury’s findings.

State v. Wells, supra. 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.” Id., 386 U.S. at 24, 87 S. Ct. at

828. In Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 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.” Id., 508 U.S. at 279, 113 S. Ct. at 2081.

The jury here heard conflicting testimony about the events that led to

Cotton shooting and killing Fuller. Cotton claimed self-defense, but witness

testimony, specifically regarding the lack of voices or noises prior to the

shooting, the lack of moisture, blood, and debris on the brass knuckles, and

the placement of the brass knuckles in the back of the SUV, contradicts his

story that he was attacked by Fuller. The jury rejected his self-defense

theory and the possibility that Cotton was guilty of manslaughter. The

verdict of guilty of second-degree murder was not attributable to the

disputed portion of the jury instruction and defense counsel’s failing to

object to the jury charge did not prejudice defendant. This third assignment 31 of error lacks merit, and Cotton’s conviction and sentence should be

affirmed.

Errors Patent

The record was reviewed for errors patent and none were found.

CONCLUSION

Defendant Carlin Tremell Cotton’s conviction and sentence are