State of Louisiana v. Desmond Johnson

• Court: Louisiana Court of Appeal
• Decided: August 9, 2023
• Docket: 55,254-KA
• Status: Published

Opinion

Judgment rendered August 9, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 55,254-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

DESMOND JOHNSON Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 380,195

Honorable Ramona L. Emanuel, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Mary Constance Hanes

DESMOND JOHNSON Pro Se

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

REBECCA ARMAND EDWARDS SENAE DENEAL HALL NANCY F. BERGER-SCHNEIDER Assistant District Attorneys

Before PITMAN, COX, and THOMPSON, JJ. THOMPSON, J.

A prior altercation between two individuals lead to a deadly encounter

days later when Desmond Johnson, armed with a firearm, shot and killed the

unarmed victim. Johnson was apprehended after the shooting and one of the

firearms recovered matched the one used to kill the victim. Johnson was

convicted by a unanimous jury of second degree murder and of two counts

of a felon in possession of a firearm. He now appeals the conviction for

second degree murder, claiming there was insufficient evidence to show that

he did not act in self-defense when he shot the unarmed victim eight

times. Johnson also asserts his second degree murder conviction should

more accurately have been for the lesser charge of manslaughter. Finding

Johnson’s arguments unpersuasive, we affirm his convictions and sentences.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of December 15, 2020, Reginald Young

(“Young”) was shot and killed in the 300 block of Jordan Street in

Shreveport, Louisiana. Officers responding to the shots-fired call

encountered Desmond Johnson (“Johnson”), who they detained following a

flight on foot from them. Later that morning, Johnson was interviewed by

police. Based on his statement to police, he was arrested for the killing of

Young.

On March 5, 2021, Johnson was indicted by the Caddo Parish grand

jury on one count of second degree murder. On July 21, 2021, he was

charged in an amended indictment with one count of second degree murder,

a violation of La. R.S. 14:30.1, and two counts of possession of a firearm by

a convicted felon, a violation of La. R.S. 14:95.1. On April 11, 2022, a hearing was held regarding Johnson’s December

15, 2020 statement to police and whether it was freely and voluntarily given.

Detective Donald Henry testified during the hearing regarding the events

that led to Johnson’s apprehension and interview. Det. Henry testified that

Johnson was advised of his Miranda rights upon arrival at the police station.

Specifically, Det. Henry read aloud a “rights form” that is used during

homicide investigations to Johnson. Johnson and Det. Henry both signed

the form. Further, Det. Henry testified that his interview with Johnson took

place after he signed the rights form. Det. Henry testified that Johnson was

calm and coherent during his interview, and he stated he was not under the

influence of any drugs or alcohol. At the conclusion of the hearing

regarding the admissibility of Johnson’s videotaped statement, the trial court

found, based on the totality of the evidence submitted, that Johnson’s

statement to police was freely and voluntarily made, and therefore

admissible at trial.

On April 18, 2022, Johnson proceeded to a jury trial on all counts.

The following facts were elicited through the testimony of witnesses,

including police officers and forensic professionals involved in the case. On

December 15, 2020, Officer Rosendo Rodriguez of the Shreveport Police

Department responded to a shots-fired call at 2:30 A.M. The 911 caller who

reported gunshots described seeing a black male wearing a gray hoodie and

black pants, carrying a handgun. While responding to the shots-fired call,

Officer Rodriguez located a male victim with a gunshot wound to the head

on the side of the road at 354 Jordan Street, in front of the Volunteers of

America Building. The victim was declared dead on the scene upon arrival

of emergency services. The victim, later identified as Young, had sustained 2 eight gunshot wounds. Some expended .40-claiber shell casings and one

live .40-caliber bullet were located next to the victim.

Corporal Andrew Presley’s K-9 unit was also dispatched to the shots-

fired call. Cpl. Presley was driving east on Jordan Street approaching

Centenary when he saw a man running toward him from the side yard of a

residence, grasping something that appeared to be a firearm in his left hand.

The man was wearing short sleeves, even though the temperature that night

was in the thirties. When the man noticed the patrol car, he ran through an

open gate and up the driveway of 212 Jordan Street. Cpl. Presley saw the

man toss the item that he was holding while he was running. The man

continued running after Cpl. Presley ordered him to stop, climbed a chain-

link fence, and fell onto the concrete driveway of 216 Jordan Street. Police

detained the suspected gunman and identified him as Desmond Johnson.

Upon his apprehension, Johnson told the officers that he swallowed drugs

that were in his possession, so he was taken to LSU Ochsner Hospital to be

evaluated.

Later that morning of December 15, 2020, when it was daylight,

Kevin White, a resident of 216 Jordan Street, where Johnson had been

apprehended earlier that morning, located a handgun in the corner of his

yard at the back of the driveway. He used a stick to pick up the handgun and

place it on the porch. A little later that same morning, White located another

handgun in his neighbor’s side front yard. White again used a stick to carry

the handgun to his porch. White’s neighbor contacted the police to come

collect the guns.

In response to White’s neighbor’s call to police regarding the

handguns found in the yard, Corporal David McClure responded to 216 3 Jordan Street to collect the two handguns, which were processed into

evidence. The Shreveport Police Department Crime Scene Unit processed

the guns and ammunition collected from the scene. One handgun was a .40-

calibur Glock 22, serial number DBR424, with an extended clip. The other

handgun was a .45-calibur Glock 22. Both firearms were loaded when

found.

Troy Stracener with the North Louisiana Crime Lab conducted

comparison testing for both guns with the bullets and bullet fragments

removed from Young’s body during his autopsy, as well as the the shell

casings and bullet fragments found at the scene. The report generated by the

lab determined that the five .40 caliber casings, a bullet jacket, and two

bullets recovered from the victim were all fired from the .40 caliber Glock

with the extended clip. Stracener’s certified report provided: “The five fired

.40 caliber cartridge cases in item 1 were determined to have been fired in

the .40 caliber Glock pistol, Model 22C, serial number DBR424 US […].”

Johnson’s videotaped interview from December 15, 2020, with the

Shreveport Police was entered into evidence and played for the jury. After

Johnson was released from LSU Ochsner Hospital, Detective Donald Henry

interviewed him at the Violent Crimes Office of the Shreveport Police

Department. During the interview, Johnson initially claimed he heard

gunshots while he was out walking, around 12:00 or 1:00 A.M. However,

when Det. Henry asked him about the two firearms that were found at 216

Jordan Street, confronted him with the facts that the shots occurred well after

midnight, and stated that the victim was shot on Jordan Street, Johnson

responded that when you “put it like that, you have me jammed.” Johnson

then admitted to having an altercation with Young a few days prior, because 4 Young had allegedly stolen items from his godmother’s home. Johnson

admitted to telling Young (a.k.a. “One Eye”) that he would “beat the shit out

of him” if he saw him again. Det. Henry testified that Johnson explained

that he would appear weak in the community if he let Young get away with

the theft of his godmother’s things. Johnson stated that when he saw Young

on the street, Young tried to speak with him. Johnson nodded “yes” when

asked whether Young was trying to be friendly or resolve their dispute.

Johnson stated that Young was pursuing him and grabbed him on the

shoulder to turn him around. Johnson claimed that he acted due to a quick

reflex and shot the gun he had at his side. Young called out to him, “Dez”

and it’s “not like that,” but Johnson fired more rounds, shooting Young at

least five times. Johnson did not know whether Young was armed, and

never claimed that Young threatened him. Johnson also admitted to using

the firearm with “the stick,” referring to the extended magazine clip on the

.40-caliber Glock.

Dr. Long Jin is a forensic pathologist at LSU Ochsner Hospital who

performed the autopsy on Young. Dr. Jin testified and confirmed that

Young sustained eight gunshot wounds. Dr. Jin testified that Young had two

gunshot wounds to the chest. Further, Young sustained at least two gunshot

wounds to his hands, with entrance wounds in the palm. Dr. Jin testified that

the wounds to his hands were defensive in nature. Dr. Jin testified that there

were two gunshot wounds to Young’s back, one in the upper back and one in

the lower back. Dr. Jin testified that a final gunshot wound was behind

Young’s ear, with a trajectory of back to front, behind the right ear.

At the conclusion of the four-day trial, on April 19, 2022, the 12-

member jury unanimously found Johnson guilty as charged on all three 5 counts. On May 10, 2022, the trial court sentenced Johnson to life

imprisonment without benefit of probation, parole, or suspension of sentence

on count one, second degree murder. The court also sentenced him to 18

years at hard labor without benefit of probation, parole, or suspension of

sentence on each of the two counts of felon in possession of a firearm. This

appeal followed.

DISCUSSION

Johnson asserts one assignment of error:

Assignment of Error Number 1: The evidence is insufficient to support Desmond Johnson’s conviction for second degree murder as the State failed to prove Johnson did not act in self-defense; Mr. Johnson’s conviction should be reversed, or in the alternative, the verdict should be modified to reflect a judgment of conviction for the lesser included offense of manslaughter.

Johnson argues that there is insufficient evidence to support his

conviction for second degree murder, because the State failed to prove

beyond a reasonable doubt that he did not act in self-defense. On appeal,

Johnson asserts that the issue is whether he acted in self-defense when he

shot and killed Young. Johnson argues that the killing of Young was

justifiable because he reasonably believed he was in imminent danger of

losing his life or receiving great bodily harm, and that the killing was

necessary to save himself from that danger. Alternatively, Johnson argues

that, at most, he should have been convicted of manslaughter, claiming that

he acted in sudden passion or heat of blood. Johnson argues that he and

Young had been involved in a previous altercation. He contends that this

prior altercation, coupled with Young suddenly grabbing his shoulder,

served as the catalyst for the shooting.

6 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). This standard, now codified in La. C.

Cr. P. art. 821, does not afford appellate courts 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.

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

crime. State v. Sutton, 436 So. 2d 471 (La. 1983).

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. Broome, 49,004 (La.

App. 2 Cir. 4/9/14), 136 So. 3d 979, writ denied, 14-0990 (La. 1/16/15), 157

So. 3d 1127. If a case rests essentially upon circumstantial evidence, that

evidence must exclude every reasonable hypothesis of innocence. La. R.S.

15:438; Broome, supra; State v. Gipson, 45,121 (La. App. 2 Cir. 4/14/10),

34 So. 3d 1090, writ denied, 10-1019 (La. 11/24/10), 50 So. 3d 827. 7 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.

Gilliam, 36,118 (La. App. 2 Cir. 8/30/02), 827 So. 2d 508, writ denied, 02-

3090 (La. 11/14/03), 858 So. 2d 422. 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. State v. Allen, 36,180 (La. App. 2

Cir. 9/18/02), 828 So. 2d 622, writ denied, 02-2595 (La. 6/27/03), 847 So.

2d 1255.

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, Johnson 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: (1) when the offender has a specific intent to kill

or inflict great bodily harm[.]” Regarding Johnson’s claim that he should

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

provides, in pertinent part:

(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 8 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; State v. Efferson, 52,306

(La. App. 2 Cir. 11/14/18), 259 So. 3d 1153.

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); McGee, supra. In this case, Johnson was unable to persuade the jury

to believe his theory he had only committed manslaughter when he

encountered the victim that morning.

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. In determining whether a defendant had a

reasonable belief that the killing was necessary, factors that may be 9 considered include the excitement and confusion of the situation, the

possibility of using force short of killing, and the defendant’s knowledge of

the assailant’s bad character. The question on a sufficiency of the evidence

review is 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. Lensey, 50,242 (La. App 2 Cir. 11/18/15), 182 So. 3d

1059, writ denied, 15-2344 (La. 3/14/16), 189 So. 3d 1066. Johnson was

unable to persuade the jury to believe he acted in self-defense.

We find that there was sufficient evidence to support Johnson’s

conviction for second degree murder. The unanimous guilty verdict shows

that the fact finder rejected the notion that Young’s murder was committed

in self-defense or that it was merely manslaughter. The evidence, viewed in

the light most favorable to the prosecution, was sufficient for the jury to find

the elements of second degree murder proved beyond a reasonable doubt.

Under the same Jackson standard, the evidence was sufficient for the jury to

find beyond a reasonable doubt that the homicide was not committed in self-

defense.

Johnson, who was looking for an opportunity to confront Young, shot

Young multiple times with a handgun, one equipped with an extended clip to

hold additional rounds of ammunition. The record establishes that Young

was not armed, and Johnson did not have any reason to believe he was

armed. Johnson admitted during his statement to police that Young was

simply trying to speak to him about their prior altercation. The record does

not contain any evidence that Young threatened Johnson during their

encounter on the street, or any time prior. Further, the record does not 10 provide any reason for Johnson to assume that Young was armed and

intended him any harm. In fact, Johnson admitted to having a desire to beat

Young, because he believed Young had stolen from a member of his family

and allowing that to go unaccounted for jeopardized Johnson’s reputation in

the streets. Johnson’s hostility toward Young, combined with the fact that

he was armed with two loaded handguns when he encountered him on the

street, is sufficient to show that he did not act in self-defense and that he did

have the specific intent to kill Young. Further, Johnson did not plead self-

defense, and nothing in his statement to police established that he acted in

self-defense. As such, we find the State proved beyond a reasonable doubt

that Johnson did not murder Young in self-defense.

Additionally, Johnson failed to prove by a preponderance of the

evidence that his murder of Young was merely manslaughter. Johnson

contended that days prior to their fateful encounter, Young stole from his

family. Johnson failed to prove that the homicide was committed in sudden

passion or heat of blood, because his alleged issue with Young arose days

prior to the encounter on Jordan Street. Young’s touching his shoulder

during their conversation does not amount to provocation sufficient to

deprive an average person of his self-control and cool reflection. Even if

Johnson was angry about the alleged theft, an average person’s blood would

have cooled well before their encounter on the street. Accordingly,

Johnson’s assignment of error is without merit.

11 CONCLUSION

For the foregoing reasons, Desmond Johnson’s conviction for second

degree murder and sentence of life imprisonment without the possibility of

probation, parole, and suspension of sentence are affirmed.

AFFIRMED.