State of Louisiana v. Louis Barnes

• Court: Louisiana Court of Appeal
• Decided: January 27, 2021
• Docket: 2020-KA-0494
• Status: Published

Opinion

STATE OF LOUISIANA * NO. 2020-KA-0494

VERSUS * COURT OF APPEAL LOUIS BARNES * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 545-500, SECTION “G” Honorable Jay Daniels, Judge ****** Judge Daniel L. Dysart ****** (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano)

Leon Cannizzaro DISTRICT ATTORNEY Donna Andrieu ASSISTANT DISTRICT ATTORNEY CHIEF OF APPEALS Irena Zajickova ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS 619 S. White Street New Orleans, LA 70119 COUNSEL FOR APPELLANT/STATE OF LOUISIANA

Leon Roche II Colin Reingold ORLEANS PUBLIC DEFENDERS 2601 Tulane Avenue, 7th Floor New Orleans, LA 70119 COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED

JANUARY 27, 2021 DLD RLB JCL The State of Louisiana appeals a trial court judgment that granted a motion

to quash filed by defendant, Louis Barnes. Because we find that the trial court

impermissibly weighed the evidence in consideration of the motion to quash, we

reverse the trial court’s judgment and remand this matter to the trial court for

further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In the very early hours of February 24, 2019, a verbal altercation occurred

between Mr. Barnes and Nicholas Knox, a security guard for the Willie’s Chicken

Shack located on Bourbon Street. When the altercation became physical, Mr.

Knox withdrew a gun, and shots were fired from that gun.1 Both Mr. Barnes and

Mr. Knox were shot during this altercation, and another person, Julie Couvillion,

who had been walking along Bourbon Street, was shot as well. Ms. Couvillion

died as a result of the shooting.

1 As discussed more fully herein, the number of gunshots and the trajectory of those gunshots are critical issues in this case.

1 By bill of information dated May 6, 2019, Mr. Barnes was charged with

three felonies: (1) manslaughter with respect to Ms. Couvillion’s death;2 (2) the

attempted second degree murder of Mr. Knox;3 and (3) possession of a firearm by

a felon.4

On May 20, 2019, Mr. Barnes filed a motion for a bill of particulars5

requesting, seeking information from the State. With respect to the manslaughter

charge, Mr. Barnes sought information as to which section(s) of La. R.S. 14:31 the

State alleged applied to the offense with which Mr. Barnes was charged. In the

event that the State was proceeding under La. R.S. 14:31 A(2)(a), Mr. Barnes

sought information as to which felony “enumerated in article 30 or 31.1” the State

alleged “Mr. Barnes was engaged in [with respect to] the perpetration or attempted

perpetration of [manslaughter].” In response, the State confirmed that it was

proceeding against Mr. Barnes pursuant to La. R.S. 14:31(A)(2)(a).6

On December 6, 2019, Mr. Barnes filed a Motion to Quash with respect to

the manslaughter charge, based on the “agency test,” a jurisprudential rule first

enunciated in State v. Garner, 115 So.2d 855 (La. 1959). Finding merit to the

motion, on January 31, 2020, the trial court granted the motion and quashed the

felony manslaughter charge. This appeal followed.

2 La. R.S. 14:31. 3 La. R.S. 14:27; La. R.S. 14:30.1. 4 14:95.1. Mr. Barnes had previously been convicted in Jefferson Parish of felony carnal knowledge of a juvenile. 5 A bill of particulars requires the district attorney to set forth “more specifically the nature and cause of the charge against the defendant.” La.C.Cr.P. art. 484. 6 Under La. R.S. 14:31(A)(2)(a), manslaughter is defined as follows: (2) A homicide committed, without any intent to cause death or great bodily harm. (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person.

The State listed the following offenses in which Mr. Barnes was engaged at the time of the manslaughter: La. R.S. 14:94, La. R.S. 14:95.1, La. R.S. 14:15, and/or La. R.S. 14:37.

2 DISCUSSION

A motion to quash is “a mechanism whereby pre-trial pleas are urged, i.e.,

pleas which do not go to the merits of the charge.” State v. Marcelin, 13-0893, p. 3

(La. App. 4 Cir. 12/18/13), 131 So.3d 427, 430 (citations omitted). “All pleas or

defenses raised before trial, other than mental incapacity to proceed, or pleas of

‘not guilty’ and of ‘not guilty and not guilty by reason of insanity,’ shall be urged

by a motion to quash.” La. C.Cr.P. art. 531.

A court considering a motion to quash “must accept as true the facts

contained in the bill of information and in the bill of particulars, and determine as a

matter of law and from the face of the pleadings, whether a crime has been

charged.” State v. Landry, 13-1030, p. 4 (La. App. 4 Cir. 5/7/14), 144 So.3d 1078,

1081 (citations omitted). As such, the decision on a motion to quash is based

strictly on legal issues and is therefore subject to a de novo standard of review.

State v. Hall, 13-0453, p. 11 (La. App. 4 Cir. 10/9/13), 127 So.3d 30, 38-39.

In Marcelin, this Court explained the well-settled principles regarding a trial

court’s analysis of a motion to quash:

The scope of permissible consideration by the trial court on a motion to quash an indictment or bill of information is similar to an exception of no cause of action in a civil suit. See State v. Schmolke, 12-0406, pp. 2-3 (La. App. 4 Cir. 1/16/13), 108 So.3d 296, 298. See also State v. Gerstenberger, 260 La. 145, 255 So.2d 720, 723 (1971). Thus, “[a] judge’s consideration of a motion to quash is confined to questions of law and, as a general rule, does not extend to defenses based upon factual findings.” Schmolke, 12-0406 at p. 2, 108 So.3d at 298. This is because the question raised by a motion to quash is not of the factual guilt or innocence of the offense charged as that is an appropriate determination for the fact-finder at trial. See State v. Perez, 464 So.2d 737, 740 (La. 1985). See also [State v.] Byrd, 96-2302 [p. 18 (La. 3/13/98), 708 So.2d 401,] 411; State v. Patterson, 301 So.2d 604, 604 (La. 1974). Rather, the trial judge’s range of

3 permissible actions is limited to those matters which do not go to the merits of the charge.

Marcelin, 13-0893, p. 4 (La. App. 4 Cir. 12/18/13), 131 So.3d 427, 430.

There are numerous grounds for quashing a bill of particulars as set forth in

La. C.Cr.P. arts. 532 and 534.7 In the instant matter, the trial court specified that it

was granting Mr. Barnes’ motion to quash pursuant to La. C.Cr.P. art. 532,

“paragraph one,” which the trial court noted, provides that “an indictment or bill of

information must be quashed when it fails to charge an offense which is punishable

under a valid statute.”8 In so ruling, the trial court found in its detailed judgment

that it “[v]iew[ed] the evidenced in the light most favorable to the State . . . , [as

well as] the testimony of the State’s witnesses,” and applied the “agency test” to

quash the manslaughter charge against Mr. Barnes.

The “agency test” has as its foundation the principle that the “felony murder

rule . . . require[s] that a direct act of a defendant or his accomplice cause the

death of the victim.” State v. Small, 11-2796, p. 12 (La. 10/16/12), 100 So.3d 797,

806. Our jurisprudence has “specifically rejected a ‘proximate cause’ test by

which a defendant may be held liable for any death proximately caused or resulting

from the events set into motion by defendant’s actions.” State v. Smith, 14-0213,

pp. 9-10 (La. App. 4 Cir. 12/17/14), 156 So.3d 1227, 1233 (citations omitted).

“Instead, Louisiana courts have adopted the ‘agency test,’ which requires a direct

act by the defendant in committing the killing.” Id., p. 10, 156 So.3d at 1233.

7 The grounds set forth in these articles “are merely illustrative.” Marcelin, 13-0893, p. 4, 131 So.3d at 430. 8 La. C.Cr.P. art. 532 provides, in pertinent part, as follows:

A motion to quash may be based on one or more of the following grounds: (1) The indictment fails to charge an offense which is punishable under a valid statute.

4 This Court recently illustrated the use of the “agency test” in State v. Trung

Le, 17-0164, pp. 13-14 (La. App. 4 Cir. 4/11/18), 243 So.3d 637, 653, writ denied,

18-0741 (La. 1/18/19), 262 So.3d 285, and writ denied, 18-0755 (La. 1/18/19), 262

So.3d 286, as follows: “when A shoots at B and B returns fire, killing C, A cannot

be found guilty of a homicide against C because the act resulting in the homicide

was neither actually or constructively the act of A.”

In the instant matter, the trial court based its ruling on testimony adduced at

an October 24, 2019 preliminary examination at which two witnesses, New

Orleans Police Officer Patrick Macfarlane and Detective Bruce Brueggeman,

testified. Officer Macfarlane testified that, while he was on assignment in the 400

block of Bourbon Street on February 24, 2019, he heard two gunshots,

approximately 15 seconds apart. He and his partner headed towards the Willie’s

Chicken Shack at which time he saw Mr. Barnes fleeing the scene with what

appeared to be a wound to his shoulder. He and his partner apprehended Mr.

Barnes.

Detective Brueggeman testified that he was called to the scene of a homicide

in the 400 block of Bourbon Street on February 24, 2019. There, he learned that

three people had been shot: a security guard, a female who had been walking on

Bourbon Street and who had died, and the possible perpetrator. Detective

Brueggeman summarized the witness accounts of the events from interviews

conducted by NOPD homicide detectives and his review of videotaped footage of

the altercation, as follows:

It was a verbal altercation between a security guard for Willie's Chicken Shack and a customer. The verbal altercation led to a physical altercation where it appeared by looking at the video and witness testimony that the [security guard] was severely losing the physical

5 altercation, felt it was necessary to retrieve his firearm to protect himself and others in the area. A shooting occurred and that was pretty much it.

Detective Brueggeman later learned that the man engaged in the altercation

with the security guard was Mr. Barnes. He then testified that the decedent (Ms.

Couvillion) was walking down the street when she was “struck in the throat and

face, she immediately dropped at that location and died right there.”

According to Detective Brueggeman, two bullet casings associated with the

shooting were recovered at the scene. Ms. Couvillion’s companion and other

witnesses reported hearing two gunshots. Detective Brueggeman interviewed Mr.

Knox, who told him that he fired the first shot, which struck and went through Mr.

Barnes’ arm. Detective Brueggeman indicated that the videotape footage reflected

that Ms. Couvillion fell at the same time that the crowd on Bourbon Street reacted

to the first gunshot, by fleeing the scene.9 Based on the physical evidence and

witness accounts, Detective Brueggeman believed that two gunshots were fired,

although one witness indicated that she heard three gunshots.

The trial court considered the testimony from the preliminary examination

and found that the evidence “clearly shows Mr. Knox fired the fatal shot and that

[Mr. Barnes] was not acting in concert with Mr. Knox when Ms. Couvilion [sic]

was killed.” Thus, the trial court, citing Garner for the principle that “the Court [in

Garner] was “constrained to conclude and hold that LSA-R.S. 14:31 imposes no

liability on the defendant,” concluded that Mr. Barnes “cannot be held criminally

responsible for the death of Ms. Couvillion under the ‘felony-manslaughter’ or

‘misdemeanor-manslaughter’ doctrine.”

9 Detective Brueggeman testified that approximately nineteen seconds elapsed between the first and second gunshots.

6 While the Garner Court did affirm the grant of a motion to quash an

indictment based on a finding that the defendant did not fire the shot that killed the

victim, the Garner case has a critical distinction from the instant matter. In

Garner, all parties stipulated to the underlying facts. See Garner, 115 So.2d at

566, 568. Here, there is no such stipulation and more importantly, when

questioned by the trial court as to whether the State would stipulate to the facts as

set forth in Mr. Barnes’ motion to quash, the State repeatedly indicated that it

would not. To the question of whether the State would “concede that the first shot

is the shot that killed Ms. Couvilion [sic],” counsel for the State replied that it

would not, as “that is an issue that needs to be determined by the jury.” Nor would

the State concede that Ms. Couvillion “is clearly seen [on the videotape footage]

falling to the ground after the first shot was fired,” explaining:

. . . establishing when the shot was fired is a matter of dispute because the video does not have sound. I don’t dispute that she can be seen going towards the ground. I don’t know if that’s falling because of a bullet wound. I don’t know if that’s falling because she heard a shot fired. I don’t know if she’s falling because someone yelled, “He’s got a gun, get down.” Those are all factorial matters that need to be determined by the jury. . . .

The State further explained:

. . . Mr. Knox has provided information that he believes he fired the first shot. I would note that is also a matter of factorial dispute because there was an ongoing struggle which is not contested by either side. So determining maybe who pulled it, certainly Mr. Knox believes he reached for his firearm to withdraw it and intended to use it, but I believe that also is a matter for factorial determination by the jury, by the trier of fact that needs to be made prior to this presupposed argument being made which this motion to quash relies upon.

7 It is clear that the trial court, in granting the motion to quash in this case,

evaluated the evidence presented at the preliminary motion to find that Mr. Barnes

could not “be held criminally responsible for the death of Ms. Couvillion.”

Accordingly, after reviewing the record before us de novo, we find that the

trial court erred in granting Mr. Barnes’ motion to quash. Our finding is based on

the trial court’s failure to confine its consideration of the motion to quash to

questions of law. To the contrary, the trial court clearly and impermissibly

considered factual matters that go to the merits of the offense charged.

CONCLUSION

Based on the foregoing, the judgment of the trial court, granting Mr. Barnes’

motion to quash, is reversed. We remand this matter to the trial court for further

proceedings.