State of Louisiana v. Emmanuel Dewayne Johnson

Opinion

Judgment rendered September 4, 2024.

No. 55,698-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

***** STATE OF LOUISIANA Appellee

versus

EMMANUEL DEWAYNE JOHNSON Appellant

***** On Rehearing Originally Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 384,251

Honorable Christopher T. Victory, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Holli Herrle-Castillo

EMMANUEL DEWAYNE JOHNSON Pro Se

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

REBECCA A. EDWARDS SAMUEL S. CRICHTON CHRISTOPHER BOWMAN Assistant District Attorneys

*****

Before STONE, COX, STEPHENS, ROBINSON, and ELLENDER, JJ.

ROBINSON, J., concurs with written reasons.

ELLENDER, J., concurs with the majority opinion and with the reasons assigned by J. Robinson.

STEPHENS, J., dissents for reasons set forth in the original opinion.

STONE, J., dissents. COX, J.

We granted a rehearing to reconsider our earlier opinion in this matter.

In that opinion, Emmanuel Dewayne Johnson’s conviction and sentence

were affirmed. State v. Johnson, 55,698 (La. App. 2 Cir. 7/17/24), -- So. 3d

--. On rehearing, we affirm our earlier opinion.

AFFIRMED ON REHEARING.

I agree with the majority opinion, but write separately to emphasize

the fact that the defendant placed himself in the dangerous position that

ultimately gave rise to the defendant shooting and killing the victim. 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. Johnson,

52,762 (La. App. 2 Cir. 8/14/19), 277 So. 3d 1263, writ denied, 19-01670

(La. 7/17/20), 298 So. 3d 176. 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.

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.

Not every act of a defendant will make him or her an aggressor. It is

the character of the act coupled with the intent of the defendant that

determines whether the defendant is the aggressor. State v. McGee, 51,977

(La. App. 2 Cir. 4/3/19), 316 So. 3d 1196, writ denied, 19-00761 (La.

11/19/19), 282 So. 3d 1066.

In State v. McGee, supra, this court upheld McGee’s second degree

murder conviction despite his claim of self-defense. McGee, who was

1 selling marijuana, shot and killed Mardis, an unarmed buyer. When

rejecting McGee’s alternative claim that he should have been convicted of

the lesser offense of manslaughter, this court stated:

It is unclear from the record what caused the fight between Mardis and McGee. However, dealing drugs is a rough business fraught with tension, potentially consisting of lawless individuals with erratic behavior. McGee, the illegal seller of marijuana, should have been cognizant of the possibility of a recalcitrant customer such as Mardis.

Id., 51,977 at pp. 15-16, 316 So. 3d at 1206.

We quote the above language for its recognition of the hazards

associated with drug transactions. Johnson certainly brought on the

difficulty with Goines by returning to Goines’ vehicle after purchasing drugs

and then engaging in an argument with him about not paying for the drugs.

The shooting does not occur if Johnson chooses a different course of

conduct upon leaving the store.