State of Louisiana v. Derrick Bracken

• Court: Louisiana Court of Appeal
• Decided: May 5, 2025
• Docket: 2024-KA-0208
• Status: Published

Opinion

STATE OF LOUISIANA * NO. 2024-KA-0208

VERSUS * COURT OF APPEAL

DERRICK BRACKEN * FOURTH CIRCUIT

* STATE OF LOUISIANA

*******

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 556-182, SECTION “K” Judge Marcus DeLarge ****** Judge Rachael D. Johnson ****** (Court composed of Judge Paula A. Brown, Judge Rachael D. Johnson, Judge Nakisha Ervin-Knott)

Holli Herrle-Castillo LOUISIANA APPELLATE PROJECT P. O. Box 2333 Marrero, LA 70073-2333

COUNSEL FOR DEFENDANT/APPELLANT

Jason Rogers Williams DISTRICT ATTORNEY Brad Scott Chief of Appeals Orleans Parish 619 S. White Street New Orleans, LA 70119

COUNSEL FOR STATE/APPELLEE

CONVICTIONS AFFIRMED; REMANDED FOR RE-SENTENCING MAY 5, 2025 RDJ Defendant, Derrick Bracken (“Defendant”) appeals his domestic abuse PAB battery with child endangerment conviction. Defendant asks this Court to reverse NEK his conviction as the State of Louisiana (the “State”) failed to provide sufficient

evidence that Defendant did not act in self-defense. After reviewing the record, we

affirm the Defendant’s conviction. However, because of sentencing errors, we

vacate the sentences imposed and remand to the district court for re-sentencing.

FACTS AND PROCEDURAL HISTORY

On October 6, 2022, Defendant had a physical altercation with Ashley

Smothers (“Ms. Smothers”) at 4711 Major Drive in New Orleans, Louisiana (“Ms.

Smothers’ residence”). Ms. Smothers’ thirteen-year-old daughter, K.B.,1 along

with three other children, witnessed the physical altercation. Roquel Hawkins

(“Ms. Hawkins”), Ms. Smothers’ mother, arrived at Ms. Smothers’ house during

the altercation and witnessed Defendant and Ms. Smothers fighting. Shortly after

arriving, Ms. Hawkins and her husband physically separated Defendant and Ms.

Smothers.

1 As provided for in Rules 5-1 and 5-2 of the Uniform Rules—Louisiana Courts of Appeal, the

initials of the minor child and other parties will be used in this matter in lieu of their names in order to ensure the confidentiality of the minors.

1 Earlier on the day of the altercation, the Defendant, Ms. Smothers, K.B., and

Ms. Hawkins called 911 to request police assistance at Ms. Smothers’ residence.

After the altercation, but before police arrived at the house, Defendant fled the

premises and relocated to a nearby bus stop. Once the police found Defendant at

the bus stop, he complained that Ms. Hawkins hit him with a car, so he was

transported to New Orleans East Hospital for medical treatment. When medical

staff became available to treat Defendant, he refused treatment and requested to go

to New Orleans Central Lockup (“Lockup”). Accordingly, the doctor issued

paperwork indicating that Defendant was medically cleared for Lockup at his

request.

While waiting in the holding area at Lockup, Defendant threw himself on the

ground saying he couldn’t walk. The nurse at Lockup refused him entry so

Defendant was transported to University Medical Center. At the hospital

Defendant became irate, uncooperative, and repeatedly threw himself on the

ground during medical examinations. Defendant had to be sedated so the staff

could complete his medical examination. Once his medical examination was

complete, Defendant was medically cleared and transported to Lockup.

On November 17, 2022, Defendant was charged by bill of information with

two felonies and four misdemeanors: (1) Domestic abuse battery with child

endangerment in violation of La. R.S. 14:35.3(I); (2) Domestic abuse of aggravated

assault in violation of La. R.S. 14:37.7(B)(1); (3) Simple criminal damage to

property in violation of La. R.S. 14:56(A)(1); (4) Domestic abuse battery in

violation of La. R.S. 14:35.3; (5) Battery of a police officer in violation of La. R.S.

14:34.2; and (6) Simple battery in violation of La. R.S. 14:35. Defendant pled not

guilty to all charges. On January 10, 2024, the court conducted a two-day jury trial

2 on the two felony charges of domestic abuse battery with child endangerment and

domestic abuse of aggravated assault. At the conclusion of trial, the jury found

Defendant guilty of domestic abuse battery with child endangerment and guilty of

the responsive verdict of simple assault. The district court concurrently held a

bifurcated trial on the four misdemeanor charges.2 Defendant was found guilty of

domestic abuse battery and battery of a police officer, but was found not guilty of

simple criminal damage to property and simple battery.

On January 30, 2024, the trial court sentenced Defendant to serve three years

imprisonment at hard labor for the domestic abuse battery with child endangerment

conviction and imposed a fine of $500.00 and court costs totaling $147.50. The

trial court also sentenced Defendant to six months in jail for each of the remaining

convictions to run concurrently with his sentence for the domestic abuse battery

with child endangerment conviction. This timely appeal followed.

Defendant’s sole assignment of error is that there was insufficient evidence

to uphold the conviction for domestic abuse battery with child endangerment.

Defendant did not raise any errors as to his other convictions. Therefore, he has

waived any argument regarding these charges and we will not address these

convictions.

2 Louisiana Code of Criminal Procedure Article 779 states the following,

A. A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict. B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.

As Defendant was not charged with any misdemeanors where the punishment may be a fine in excess of one thousand dollars or imprisonment for more than six months, the trial on the misdemeanors was without a jury.

3 DISCUSSION

Errors Patent

Appellate Courts have a duty to review all appeals for errors patent on the

face of the record pursuant to La. C.C.P. art. 920. There are two errors patent

discerned from the record that both relate to sentencing: (1) the trial court failed to

indicate whether Defendant’s three--year sentence for his domestic abuse battery

with child endangerment conviction will be served without the benefit of parole,

probation, or suspension of sentence outside of the mandatory forty-eight-hour

minimum and (2) the trial court erred in imposing a sentence amount that exceeds

the maximum allowable term of imprisonment for the simple assault conviction.

The first error patent is the trial court failed to indicate whether Defendant’s

three-year sentence, from his domestic abuse battery with child endangerment

conviction, will be served without the benefit of parole, probation, or suspension of

sentence outside of the mandatory forty-eight-hour minimum pursuant to La. R.S.

14:35.3(C).3 In State v. Istre, this Court remanded the case to the trial court for

resentencing when “the trial court failed to specify whether the Defendant’s

sentence was to be served without the benefit of parole, probation, or suspension of

sentence, outside of the mandatory two-year minimum.”4 2023-0748, p. 18 (La.

App. 4 Cir. 10/24/24), 400 So. 3d 322, 334. Finding that same error in the case sub

3 La. R.S. 14:35.3(C) provides in pertinent part:

On a first conviction, notwithstanding any other provision of law to the contrary, the offender shall be fined not less than three hundred dollars nor more than one thousand dollars and shall be imprisoned for not less than thirty days nor more than six months. At least forty-eight hours of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

4 The Istre defendant was convicted of committing second degree rape. 2023-0748, p. 5 (La.

App. 4 Cir. 10/24/24), 400 So. 3d 322, 327.

4 judice, we remand to the district court for resentencing to determine what portion

of the sentence should be served without the benefit of parole, probation, or

suspension.

The second error patent is the district court imposed a sentence that exceeds

the maximum allowable term of imprisonment for the simple assault conviction.

According to La. R.S. 14:38(B), “[w]hoever commits a simple assault shall be

fined not more than two hundred dollars, or imprisoned for not more than ninety

days, or both.” The Defendant’s six-month sentence exceeds the maximum

allowed term of imprisonment of ninety days, therefore, we vacate the sentence

and remand to the district court for resentencing.

Insufficient Evidence

In Defendant’s sole assignment of error, he argues that the State failed to

present sufficient evidence to prove that he was not acting in self-defense when he

attacked Ms. Smothers in front of her children. Defendant argues that during Ms.

Hawkins’ 911 phone call recording, he can be heard saying that Ms. Smothers

struck him first. Defendant further argues that the force he used against Ms.

Smothers was necessary because she was significantly bigger and stronger than

him. Therefore, she should be seen as the aggressor and he was acting in self-

defense.

Defendant asserts that the State failed to provide sufficient evidence that he

was not acting in self-defense. Defendant argues that because Ms. Smothers did

not testify, his conviction was based solely on 911 calls and Ms. Hawkins’

testimony which revealed that she arrived at the culmination of the altercation. No

reasonable juror could have found that the State provided sufficient evidence to

convict him, as it was unreasonable for the jury to determine that Defendant was

5 the initial aggressor and that he did not act in self-defense. After review of the law

and record, we find both arguments are without merit.

Louisiana Revised Statutes 14:35.3(A) defines domestic abuse battery as

“the intentional use of force or violence committed by one household member or

family member upon the person of another household member or family member.”

Further, subsection “I” in the statute states that if a minor child thirteen years old

or younger was present at the residence during the time of the commission of the

offense, the offender “shall be imprisoned at hard labor for not more than three

years.” La. R.S. 14:35.3(I). Defendant does not dispute that there was a physical

altercation, that he is a household member pursuant to the statute, and that there

was an individual under the age of thirteen present at the time of the altercation.

Pursuant to La. R.S. 14:18, “[t]he fact that an offender’s conduct is

justifiable, although otherwise criminal, shall constitute a defense to prosecution

for any crime based on that conduct [under certain circumstances].” Louisiana

Revised Statutes 14:19(A)(1)(a) provides that the use of force or violence upon the

person of another is justifiable “[w]hen committed for the purpose of preventing a

forcible offense against the person … provided that the force or violence used must

be reasonable and apparently necessary to prevent such offense.” “A person who is

the aggressor or who brings on a difficulty cannot claim the right of self-defense

unless he withdraws from the conflict in good faith and in such a manner that his

adversary knows or should know that he desires to withdraw and discontinue the

conflict.” La. R.S. 14:21.

In a non-homicide case, the analysis of self-defense as a justification is a

two-step inquiry: “(1) a subjective inquiry into whether the force was apparently

necessary; and (2) an objective inquiry into whether the force used was reasonable

6 under the circumstances.” State v. Scott, 2023-0022, p. 11 (La. App. 4 Cir.

8/30/23), 372 So. 3d 42, 52 (citing State v. Canales, 2014-0663, p. 12 (La. App. 4

Cir. 12/10/14), 156 So. 3d 1183, 1191). When reviewing a claim of insufficient

evidence, we rely on Jackson v. Virginia, which states that the evidence, viewed in

the light most favorable to the prosecution, must “convince a trier of fact beyond a

reasonable doubt of the existence of every element of the offense.” 443 U.S. 307,

316, 99 S.Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979). This standard gives the trier of

fact full responsibility to “resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts.” Id. at 319, 99

S.Ct. at 2789. Accordingly, “the rational credibility determinations of the trier of

fact are not to be second guessed by a reviewing court.” State v. Williams, 11-

0414, p. 18 (La. App. 4 Cir. 2/29/12), 85 So. 3d 759, 771 (citing State v. Juluke,

98-341, p. 4 (La. 1/8/99), 725 So. 2d 1291, 1293). A factfinder’s credibility

determination should only be disturbed if it is clearly contrary to the evidence.

State v. Wells, 10-1338, p. 5 (La. App. 4 Cir. 3/30/11), 64 So. 3d 303, 306 (citing

State v. Vessell, 450, So. 2d 938, 943 (La. 1984)).

This Court has not definitively determined which party has the burden of

proof when proving self-defense in a non-homicide case. See State v. Abbot, 17-

0016, p. 18 (La. App. 4 Cir. 6/14/17), 222 So. 3d 847, 857. In State v. Jefferson,

this Court determined that when an issue of exculpatory circumstances exists, the

State has the burden to disprove Defendant’s self-defense claim beyond a

reasonable doubt. 04-1960, p. 10 (La. App. 4 Cir. 12/21/05), 922 So. 2d 577, 588.

However, in State v. Wischer, this Court determined that “as an affirmative

defense, the defendant has the burden of showing justification by a preponderance

of the evidence.” 04-0325, p. 8 (La. App. 4 Cir. 9/22/04), 885 So. 2d 602, 606. See

7 State v. Wright, 99–1137 (La. App. 3 Cir. 3/1/00), 758 So. 2d 301; State v. Barnes,

491 So. 2d 42 (La. App. 5 Cir. 1986). See also State v. Cheatwood, 458 So. 2d 907,

910, n. 4 (La. 1984). In the case sub judice, the circumstances do not require us to

determine which party has the burden of proof because there was sufficient

evidence presented at trial to uphold Defendant’s conviction under either standard.

The State provided sufficient evidence to prove that Defendant was not

acting in self-defense. During trial, the State relied on the audio from 911 phone

calls placed on October 6, 2022, and Ms. Hawkins’ testimony that Defendant was

the aggressor. Emma Skilbred (“Ms. Skillbred”), Orleans Parish Custodian of 911

records, authenticated the 911 phone calls and the corresponding incident reports.

Ms. Skillbred identified that phone calls were made from Ms. Smothers’ residence

at or around 12:03 a.m., 12:26 a.m., 6:54 a.m., 7:15 a.m., 1:55 p.m., 11:48 p.m. and

11:53 p.m. During Ms. Hawkins’ testimony she identified the callers as Defendant,

Ms. Smothers, K.B., and herself.

According to the 911 audio provided, it is clear that (1) On the morning of

October 6, 2022 and continuing throughout the day, Defendant had been harassing

Ms. Smothers and her children; (2) Ms. Smothers, Ms. Hawkins, and K.B. called

the police to report that Defendant was a threat to Ms. Smothers and the children in

the residence; and (3) K.B. was present at the time of the violent altercation.

During the first two 911 phone calls introduced into evidence, Defendant called the

police in an attempt to enter Ms. Smothers’ residence. Additionally, he can be

heard in the background of later phone calls made by Ms. Smothers, Ms. Hawkins,

and K.B, which confirmed his presence at Ms. Smothers’ residence. During the

phone call made by K.B. and Ms. Hawkins, both of them described Defendant

being violent towards Ms. Smothers. Further, the violent altercation can be heard

8 in the background of both phone calls. Based on the evidence presented, a rational

trier of fact could have found that Defendant was the aggressor and that he could

not claim self-defense.

Assuming arguendo that the Defendant was not the aggressor, based on the

evidence at trial, the use of force against Ms. Smothers was not reasonable or

necessary. During trial, the State relied on Ms. Hawkins’ testimony about

Defendant’s violent acts towards Ms. Smothers. According to Ms. Hawkins’

testimony, she saw Defendant choking and strangling Ms. Smothers while on top

of her when she entered Ms. Smothers’ residence. This Court stated in Wells that

“[t]he testimony of a single witness, if believed by the trier of fact, is sufficient to

support a conviction.” 10-1338, p. 5, 64 So. 3d at 306. As noted above, “[a] trier of

fact’s determination as to the credibility of a witness is a question of fact entitled to

great weight, and its determination will not be disturbed unless it is clearly

contrary to the evidence.” Id. (citing State v. Vessell, 450 So. 2d at 943). There is

nothing in the record that is clearly contrary to the evidence or that suggests that

Defendant’s use of force was necessary to defend himself. As such, we will not

question the jury’s determination as to Ms. Hawkins’ credibility or the reliability of

her testimony. Accordingly, viewing the evidence in the light most favorable to the

prosecution, a rational trier of fact could have found that there was sufficient

evidence to find that Defendant was the aggressor, that he was not acting in self-

defense, and his use of force towards Ms. Smothers was neither reasonable nor

necessary under the circumstances.

Defendant did not present sufficient evidence to show that he was acting in

self-defense during the altercation. Defendant’s arguments that Ms. Smothers

struck him first are not sufficient evidence of self-defense. It only demonstrates the

9 possibility that Ms. Smothers may have been the initial aggressor. When viewing

in the light most favorable to the prosecution, this argument only satisfies the

prerequisite for Defendant to make his self-defense claim. Defendant still must

prove that the force he used against Ms. Smothers was necessary and reasonable

under the circumstances. He has failed to do so.

Further, Defendant failed to present any evidence at trial that Ms. Smothers

attacked him prior to Ms. Hawkins witnessing the altercation. Defendant failed to

prove that Ms. Smothers hit him with her car or that strangling her inside of her

residence was a necessary and reasonable response under the circumstances. In

addition, the State provided testimony from NOPD Officers Nicholas Martin

(“Officer Martin”) and Rejanna Mari-Laveaux (“Officer Mari-Laveaux”) to show

that Defendant had no serious injury after the violent altercation happened. Officer

Martin testified that Defendant seemed “perfectly fine” when he approached him at

the bus stop after the altercation. Officer Mari-Leveaux testified that Defendant

was “fine on the way to [L]ockup” but then suddenly threw himself on the ground

and said he couldn’t walk. Officer Mari-Leveaux further explained that Defendant

would be able to walk when it suited him, but would then throw himself on the

ground during examinations and treatments to avoid going to Lockup. The

testimony regarding Defendant’s lack of injury is inconsistent with his claim that

he was attacked by Ms. Smothers prior to the altercation. Considering all of the

aforementioned evidence and testimony, a reasonable juror could have found that

Defendant failed to prove by a preponderance of the evidence that he was acting in

self-defense during the altercation with Ms. Smothers. As such, we find that the

evidence presented during trial was sufficient to convict Defendant of La. R.S.

14:35.3(I), domestic abuse battery with child endangerment.

10 DECREE

For the foregoing reasons, we affirm Defendant’s domestic abuse battery

with child endangerment conviction. We vacate Defendant’s sentences for his

domestic abuse battery with child endangerment and simple assault convictions,

and remand for resentencing.

CONVICTIONS AFFIRMED; REMANDED FOR RE-SENTENCING