State of Louisiana v. Patrick Newton Harris
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Opinion
Judgment rendered January 13, 2021. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
No. 53,662-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
* ****
STATE OF LOUISIANA Appellee
versus
PATRICK NEWTON HARRIS Appellant
* **** Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 217746
Honorable Allen Parker Self, Jr., Judge
STROUD, CARMOUCHE, BUCKLE, PLLC Counsel for Appellant By: Ansel Martin Stroud, III
THE BAEZ LAW FIRM, P.A. By: Jose Angel Baez
PATRICK NEWTON HARRIS Pro Se
JOHN SCHUYLER MARVIN Counsel for Appellee District Attorney
JOHN MICHAEL LAWRENCE ANDREW C. JACOBS RICHARD RUSSELL RAY Assistant District Attorneys
Before STEPHENS, BLEICH (Pro Tempore), and BODDIE (Pro Tempore), JJ.
BLEICH, J. (Pro Tempore), concurring with written reasons. Boddie (Pro Tempore), J.
Patrick Newton Harris (“Patrick”) was convicted at a bench trial of
manslaughter and sentenced to 39 years at hard labor for the 2016 shooting
death of William Christopher Flowers (“Flowers”), who was his friend and
co-worker. Patrick claimed self-defense, asserting that he had been in fear
for his life after Flowers suddenly attacked him. Patrick had suffered
violence twice at the hands of Flowers a couple of years earlier, which was
around the time when Flowers had engaged in an affair with Patrick’s wife,
Aftan Harris (“Aftan”).
Patrick has appealed his sentence and conviction. After reviewing the
record, the briefs, and the argument of the parties, we conclude the evidence
was insufficient for a rational trier of fact to have found beyond a reasonable
doubt that the homicide was not committed by Patrick in self-defense, and
therefore, reverse his conviction.
BACKGROUND
Patrick, a facility technician, and Flowers, a service technician, were
co-workers at AT&T for 15 years. They reported for work at the same
Shreveport location, and from there were dispatched to their individual job
assignments. The technicians usually worked alone unless they needed help
with a work assignment. Patrick would often depend on Flowers for help.
Patrick and Flowers started socializing outside of work during the
summer of 2013. Their friendship developed quickly, and Patrick
considered Flowers to be like a brother. They were together almost daily,
and would often grill food and watch football games together. In October of 2013, Aftan and Flowers commenced an extramarital
affair. Flowers was separated from his wife at the time. The affair
continued until it came to light in February of 2014.
On December 31, 2013, Patrick and Aftan attended a New Year’s Eve
party at the home of Sarah and Stephen McCann. Patrick asked Stephen if
Flowers could attend the party so he would not be alone on the holiday.
Stephen, who had met Flowers a few months earlier at a cookout, said it was
okay.
At some point during the evening, the partygoers decided to “play
wrestle” on the trampoline. Patrick measured 6’3” in height and weighed
approximately 230 pounds. Flowers was similar in size. During their
match, Patrick landed face down on the trampoline mat. Flowers gained the
upper hand by getting on Patrick’s back and then placing Patrick in a
stranglehold by wrapping his arm around Patrick’s neck from behind.
Patrick tapped on the mat to no avail in an attempt to get Flowers’ attention
that he wanted to be released. It took McCann getting on the trampoline and
pulling Flowers off Patrick for him to be freed.
On February 15, 2014, Patrick and Flowers met at a Chili’s restaurant
in Shreveport to discuss matters and how they were going to go forward at
work in light of the affair. They consumed mixed drinks at the restaurant,
and the conversation became heated as the affair was discussed. They were
asked to leave the restaurant when their voices grew louder and Patrick
became angry. As he exited the restaurant, Patrick decided that he needed
his phone from his truck in order to ask Aftan for a ride home. Flowers and
Patrick continued to have some words about the affair while they were
2 outside. According to Patrick, Flowers threw him to the ground when he
declined Flowers’ offer of a ride.
A 911 call requesting medical assistance was made. The caller, who
identified himself as “Chris,” told the 911 operator that he had “assaulted”
Patrick.1 Patrick sustained a broken elbow during the incident. Flowers was
not arrested for his role in the injury.
Patrick claimed that he blacked out and that paramedics were standing
over him when he awoke. However, the Shreveport Fire Department report
from the incident stated that personnel went to the scene to find Patrick
standing. Patrick was taken by ambulance to a hospital. The medical
records from the hospital reflect that Patrick did not complain of a loss of
consciousness.
According to those medical records, Patrick told hospital personnel
that he had 12 cans of beer before going to Chili’s, and, acting out of
character, had a physical altercation with Flowers. He landed on his right
elbow when he was pushed to the ground. Nursing notes showed that
Patrick was having suicidal thoughts. The medical records also reflect that
Patrick was removed from the Emergency Room and transported to the
Intensive Care Unit under Physician Emergency Certificate (“PEC”) status
because of violent behavior and alcohol abuse.
In the findings of examination for the PEC, Dr. Giddens wrote,
“ETOH, violent homicidal behavior threatening behavior to wife[.]” Boxes
for “Homicidal?” and “Violent?” were checked for Patrick’s condition. A
box for “Suicidal?” was not checked. Patrick’s ethyl alcohol level on
1 Flowers was referred to as “Chris” throughout the trial. 3 admission was .263. He reported that he drank six cans of beer per day or
higher.
Patrick was discharged to a rehabilitation hospital on February 16.
His injured arm was placed in a sling and he was instructed to follow up
with his orthopedic doctor. The final diagnoses upon discharge were alcohol
abuse, violent behavior, right elbow fracture, severe anxiety, and
hypertension.
The elbow fracture ultimately required the surgical placement of two
plates, numerous screws, and a prosthetic radial head to repair the damage.
The plates were removed, but the radial head remained in his arm. Patrick
underwent a total of two surgeries and rehabilitation. He also had to wear a
device on his right arm for several months to help him regain motion in that
arm. He was on disability from work for approximately six months, and
returned to work in 2014. After Patrick requested a job transfer, AT&T
permitted him to report to a location in Bossier City for approximately eight
weeks before returning to his normal location in Shreveport.
Everything remained uneventful between Patrick and Flowers for the
next two years. Patrick had taken some firearms to a pawn shop to secure a
loan because his income was reduced while he was on short-term disability.
When Flowers found out, he paid approximately $3,000 to the pawn shop to
have the firearms returned to Patrick. He told Patrick to repay him at his
leisure.
On March 24, 2016, Patrick was on short-term disability because of
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Judgment rendered January 13, 2021. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
No. 53,662-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
* ****
STATE OF LOUISIANA Appellee
versus
PATRICK NEWTON HARRIS Appellant
* **** Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 217746
Honorable Allen Parker Self, Jr., Judge
STROUD, CARMOUCHE, BUCKLE, PLLC Counsel for Appellant By: Ansel Martin Stroud, III
THE BAEZ LAW FIRM, P.A. By: Jose Angel Baez
PATRICK NEWTON HARRIS Pro Se
JOHN SCHUYLER MARVIN Counsel for Appellee District Attorney
JOHN MICHAEL LAWRENCE ANDREW C. JACOBS RICHARD RUSSELL RAY Assistant District Attorneys
Before STEPHENS, BLEICH (Pro Tempore), and BODDIE (Pro Tempore), JJ.
BLEICH, J. (Pro Tempore), concurring with written reasons. Boddie (Pro Tempore), J.
Patrick Newton Harris (“Patrick”) was convicted at a bench trial of
manslaughter and sentenced to 39 years at hard labor for the 2016 shooting
death of William Christopher Flowers (“Flowers”), who was his friend and
co-worker. Patrick claimed self-defense, asserting that he had been in fear
for his life after Flowers suddenly attacked him. Patrick had suffered
violence twice at the hands of Flowers a couple of years earlier, which was
around the time when Flowers had engaged in an affair with Patrick’s wife,
Aftan Harris (“Aftan”).
Patrick has appealed his sentence and conviction. After reviewing the
record, the briefs, and the argument of the parties, we conclude the evidence
was insufficient for a rational trier of fact to have found beyond a reasonable
doubt that the homicide was not committed by Patrick in self-defense, and
therefore, reverse his conviction.
BACKGROUND
Patrick, a facility technician, and Flowers, a service technician, were
co-workers at AT&T for 15 years. They reported for work at the same
Shreveport location, and from there were dispatched to their individual job
assignments. The technicians usually worked alone unless they needed help
with a work assignment. Patrick would often depend on Flowers for help.
Patrick and Flowers started socializing outside of work during the
summer of 2013. Their friendship developed quickly, and Patrick
considered Flowers to be like a brother. They were together almost daily,
and would often grill food and watch football games together. In October of 2013, Aftan and Flowers commenced an extramarital
affair. Flowers was separated from his wife at the time. The affair
continued until it came to light in February of 2014.
On December 31, 2013, Patrick and Aftan attended a New Year’s Eve
party at the home of Sarah and Stephen McCann. Patrick asked Stephen if
Flowers could attend the party so he would not be alone on the holiday.
Stephen, who had met Flowers a few months earlier at a cookout, said it was
okay.
At some point during the evening, the partygoers decided to “play
wrestle” on the trampoline. Patrick measured 6’3” in height and weighed
approximately 230 pounds. Flowers was similar in size. During their
match, Patrick landed face down on the trampoline mat. Flowers gained the
upper hand by getting on Patrick’s back and then placing Patrick in a
stranglehold by wrapping his arm around Patrick’s neck from behind.
Patrick tapped on the mat to no avail in an attempt to get Flowers’ attention
that he wanted to be released. It took McCann getting on the trampoline and
pulling Flowers off Patrick for him to be freed.
On February 15, 2014, Patrick and Flowers met at a Chili’s restaurant
in Shreveport to discuss matters and how they were going to go forward at
work in light of the affair. They consumed mixed drinks at the restaurant,
and the conversation became heated as the affair was discussed. They were
asked to leave the restaurant when their voices grew louder and Patrick
became angry. As he exited the restaurant, Patrick decided that he needed
his phone from his truck in order to ask Aftan for a ride home. Flowers and
Patrick continued to have some words about the affair while they were
2 outside. According to Patrick, Flowers threw him to the ground when he
declined Flowers’ offer of a ride.
A 911 call requesting medical assistance was made. The caller, who
identified himself as “Chris,” told the 911 operator that he had “assaulted”
Patrick.1 Patrick sustained a broken elbow during the incident. Flowers was
not arrested for his role in the injury.
Patrick claimed that he blacked out and that paramedics were standing
over him when he awoke. However, the Shreveport Fire Department report
from the incident stated that personnel went to the scene to find Patrick
standing. Patrick was taken by ambulance to a hospital. The medical
records from the hospital reflect that Patrick did not complain of a loss of
consciousness.
According to those medical records, Patrick told hospital personnel
that he had 12 cans of beer before going to Chili’s, and, acting out of
character, had a physical altercation with Flowers. He landed on his right
elbow when he was pushed to the ground. Nursing notes showed that
Patrick was having suicidal thoughts. The medical records also reflect that
Patrick was removed from the Emergency Room and transported to the
Intensive Care Unit under Physician Emergency Certificate (“PEC”) status
because of violent behavior and alcohol abuse.
In the findings of examination for the PEC, Dr. Giddens wrote,
“ETOH, violent homicidal behavior threatening behavior to wife[.]” Boxes
for “Homicidal?” and “Violent?” were checked for Patrick’s condition. A
box for “Suicidal?” was not checked. Patrick’s ethyl alcohol level on
1 Flowers was referred to as “Chris” throughout the trial. 3 admission was .263. He reported that he drank six cans of beer per day or
higher.
Patrick was discharged to a rehabilitation hospital on February 16.
His injured arm was placed in a sling and he was instructed to follow up
with his orthopedic doctor. The final diagnoses upon discharge were alcohol
abuse, violent behavior, right elbow fracture, severe anxiety, and
hypertension.
The elbow fracture ultimately required the surgical placement of two
plates, numerous screws, and a prosthetic radial head to repair the damage.
The plates were removed, but the radial head remained in his arm. Patrick
underwent a total of two surgeries and rehabilitation. He also had to wear a
device on his right arm for several months to help him regain motion in that
arm. He was on disability from work for approximately six months, and
returned to work in 2014. After Patrick requested a job transfer, AT&T
permitted him to report to a location in Bossier City for approximately eight
weeks before returning to his normal location in Shreveport.
Everything remained uneventful between Patrick and Flowers for the
next two years. Patrick had taken some firearms to a pawn shop to secure a
loan because his income was reduced while he was on short-term disability.
When Flowers found out, he paid approximately $3,000 to the pawn shop to
have the firearms returned to Patrick. He told Patrick to repay him at his
leisure.
On March 24, 2016, Patrick was on short-term disability because of
surgery to repair a condition on both of his eyelids. That afternoon, Patrick
met Aftan and some of her co-workers at a restaurant. He consumed a
4 margarita, two beers, and two shots while there. On the way home, Patrick
stopped at a bank.
Patrick went to Flowers’ apartment early that evening to repay part of
the loan. Patrick would testify at trial that while he was there, he showed a
Taurus .38 revolver (“revolver”) to Flowers since they shared a common
interest in firearms. Patrick, who had a valid concealed carry permit,
returned the revolver to his pants pocket when Flowers had finished looking
at it.
Patrick asked Flowers if he knew where to find marijuana. Flowers
then contacted a co-worker, James Young, about obtaining marijuana.
Patrick left Flowers’ apartment since the marijuana was not available at that
time. He stopped at a restaurant to get dinner for his family before returning
home.
When Young was ready for them to come over, he contacted Flowers,
who then drove to Patrick’s home. He arrived there around 9:00 p.m.
Flowers and Patrick stopped at a convenience store on the way to Young’s
home. While Patrick was inside, Flowers entered the store to tell Patrick
that he (Patrick) was getting text messages from Aftan.
Flowers and Patrick stayed at Young’s home for less than an hour.
While there, they had a beer and played with Young’s dogs. They did not
smoke any marijuana. Young did not notice anything unusual or any tension
between Flowers and Patrick. They hugged Young before leaving.
While Flowers and Patrick were returning from their marijuana
excursion, Daniel Lenard arrived at the Harrises’ subdivision to meet one of
their neighbors, Aaron Daniel. Daniel had instructed Lenard to stop near the
corner of his street and then let him know he was there. When Lenard’s 5 vehicle came to a stop near the Harrises’ driveway, Aftan asked him what he
was doing. While he was explaining, Flowers’ Corvette pulled in front of
him. Flowers exited the Corvette without turning off the engine, stood in
front of Lenard’s car, and placed his hands on the hood. These actions
signaled to Lenard not to go anywhere. Patrick approached the passenger-
side window of Lenard’s vehicle and asked Lenard what he was doing there.
Patrick told Lenard that what he was doing was “a good way to get shot.”
Patrick never showed the revolver to Lenard or threatened him with it.
Daniel soon arrived and vouched for Lenard. Daniel remarked that
Aftan needed to control her husband. Apparently satisfied with Daniel’s
explanation, Flowers touched Patrick on the arm and told him to go inside.
Lenard and Daniel then left in Lenard’s vehicle.
Patrick scolded Aftan for not telling Lenard to leave. Patrick and
Aftan claimed that Flowers then grabbed Patrick by his polo shirt and began
pounding on his chest. With Aftan’s assistance, Patrick was able to break
away from Flowers and run toward his garage.2 Flowers caught up with him
and threw him down to the ground in the front yard. Flowers began striking
Patrick as he straddled him. With Flowers standing over him, Patrick
managed to draw his revolver from the right pocket of his cargo shorts and
point it at Flowers. Patrick fired five shots, all of which struck Flowers, who
ultimately died from his injuries.
Following the shooting, Aftan administered aid to Flowers. Patrick
went into the garage, lit a cigarette, and called his mother-in-law and mother
to tell them what had happened. He remained there until police arrived.
2 The garage faced the street. 6 Tina Tomlson and Mike Tomlson lived across the yard from where
the shooting occurred.3 Their kitchen faced the yard and its window was
open. Tina was in the kitchen when she heard the gunshots and Aftan
scream. She looked out the window and saw Aftan helping Flowers. She
also saw Patrick on the phone. Mike Tomlson heard the gunshots from his
living room. When he went outside, he saw Patrick walking toward the
garage. He heard Patrick say, “It’s okay. He tackled me.” He assumed
Patrick said that to Aftan.
Another neighbor, Darold Westall, came outside as well. He stayed
on the phone with the 911 operator as Aftan attempted to stop the bleeding.
The Harrises’s two school-aged children were inside sleeping at the time.
Investigation
Jeffrey Ross was a crime scene investigator with the Bossier City
Police Department (“BCPD”). He documented the scene and collected
evidence, which was dispersed over an area. Among the items collected
were the revolver, a pack of cigarettes, a single cigarette, and a wallet
belonging to Patrick. The Corvette’s engine was still running when Ross
was at the scene.
Lieutenant Brad Kalmbach was the crime scene supervisor and
property manager for the BCPD. He collected Patrick’s clothes and
photographed him. He found that Patrick was calm and did not appear to
have been in a struggle. Lt. Kalmbach did not notice any physical marks,
bruises, abrasions, or anything of that nature on Patrick. When he
3 The yard was between the Tomlson and Harris homes. 7 photographed Patrick, he did not see anything which stood out indicating
Patrick had been in a struggle.
Detective Karen McDonald, a violent crimes investigator with the
BCPD, interviewed Aftan and Patrick at her office. She interviewed Aftan
first. Her interview of Patrick took place around 2:00 a.m. She saw a scrape
on the inner side of his right leg and a couple of small grass stains on his
shorts, but she did not see any signs of the struggle that Patrick described to
her.
Det. McDonald read Patrick’s rights to him. She then asked him if he
would acknowledge that she had done so by signing the back of the rights
card. The back of the card contained a waiver, which she did not read to
him. Patrick asked her, “This is not waiving anything, right?” Det.
McDonald replied, “No sir, it’s just to acknowledge that I read this card to
you.”
Patrick told Det. McDonald that Flowers became belligerent when he
asked Aftan why the car was there. He described how Flowers stood over
him and had pushed him to the ground three times. He told the detective
that he was on the ground and Flowers was “straight up” at his feet. Flowers
was threatening him, saying “Get up” and “Do it.” He said he was scared
for his life, and that Flowers had already held his (Patrick’s) breath before.
Pre-trial proceedings
Patrick was indicted for the second degree murder of Flowers. A free
and voluntary hearing regarding Patrick’s statement to Det. McDonald was
held on June 30, 2017. The trial court conceded that Patrick’s question,
“This is not waiving anything, right?”, at first appeared troubling. However,
when that question was evaluated in light of the totality of the circumstances 8 surrounding the interrogation, the isolated question did not seem to indicate
a lack of understanding or appear to be a misrepresentation that would
require suppression of his statement. The court concluded that the State had
met its burden of proving the validity of the waiver by a preponderance of
the evidence. Patrick applied for a supervisory writ, which this court denied
on March 22, 2018. The supreme court denied his writ on August 31, 2018.
TRIAL
A bench trial was held in this matter beginning on May 8, 2019.
However, due to certain delays, the trial concluded on August 28, 2019.
Patrick testified that Flowers nearly strangled him on the trampoline,
and he believed that he blacked out during the episode. Patrick attributed
Flowers’ behavior on the trampoline to showing off and wanting to be the
alpha male.
Stephen McCann, the party’s host, described the trampoline incident
at trial. When Patrick fell facedown, Flowers got on top of Patrick’s back
and placed him in a chokehold. Patrick told Flowers, “Okay, you got me.”
Patrick also began tapping on the trampoline mat to indicate he was finished,
but Flowers continued to choke Patrick to the point where he was no longer
able to speak and was close to being unconscious. McCann told Flowers to
release Patrick, but Flowers did not respond. McCann had to climb on the
trampoline and pull Flowers off Patrick. He recalled that Patrick was able to
catch his breath in a couple of seconds. Flowers then told McCann that he
was ready to wrestle him, who replied that wrestling was over for the night.
McCann had not observed any animosity or unfriendliness between Patrick
and Flowers before that incident.
9 Jennifer Alexander was the supervisor of Flowers and Patrick at
AT&T, and she had worked with them since 2006. She was close to
Flowers and his wife, having socialized with and gone on vacations with
them. Alexander testified that the relationship between Patrick and Flowers
became a little rocky after the affair, but once Patrick returned to work from
his elbow injury, it was almost like nothing had ever happened. They
worked fine together, and everything seemed to be normal. She would only
put Patrick and Flowers on the same assignment if Patrick requested it. As
far as she knew, they had stopped hanging out together outside of work after
the affair became public. Patrick never exhibited fear of Flowers in front of
Matt Wood was a union representative at AT&T and knew Flowers
for 17 years. He testified that Flowers’ general reputation among his fellow
employees was of someone who was hotheaded and explosive, and who
should be avoided. Wood thought Flowers’ reputation worsened over the
last four to five years of his life.
Defense counsel attempted to elicit testimony from Aftan and Patrick
about their knowledge of an incident between Flowers and his wife that
occurred in June of 2013. The State objected each time, and the trial judge
sustained both objections. A 911 operator and the responding patrol officer
were allowed to testify about the incident. Flowers and his wife, Heather,
struggled over a weapon during an argument, and a shot went off. Heather
called 911 to report that Flowers was locked in a bedroom and threatening to
kill himself. She also reported that Flowers had stopped taking his anti-
depressants and seeing his therapist. Flowers surrendered to police
10 negotiators after a few hours and was committed to University Health
because of the danger he posed to himself and others.
Patrick testified that he first became fearful of Flowers following the
trampoline incident. He had asked Stephen McCann if Flowers could attend
the party because Flowers was living by himself in an apartment and was
going to be alone that holiday night.
Regarding the affair, Patrick testified that Aftan left for a few days
after he learned about the affair. He was angry with Aftan and Flowers, but
forgave them. Patrick also went to counseling.
Patrick claimed that he initiated a meeting with Flowers at a Starbucks
coffee shop prior to returning to work following the Chili’s incident. Patrick
thought they needed to talk about how things were going to be since they
would be working together again. He recalled that Flowers, who had
previously apologized for the trampoline incident, apologized for the affair
and the elbow injury. Patrick claimed they decided that would be the last
time they would discuss the affair, and would go on with their lives and let
the past be the past. Patrick testified that they worked together fine after he
returned to work, and while it seemed they were the best of friends, they
were really just being cordial during working hours. He did not invite
Flowers to his house or go out with him after that.
Aftan testified that she became angry when Patrick told her of his
plans to go with Flowers to buy marijuana from Young. She never wanted
to see Flowers again.
Patrick claimed that Flowers was somber and not very talkative when
Flowers picked him up. He seemed down to Patrick. Patrick also claimed
that Flowers indicated to him that evening that he was considering harming 11 himself. Patrick became concerned about their safety during the drive
because Flowers was driving erratically.
Young was aware there were past issues between Flowers and Patrick,
but he did not notice any problems between them that night. As far as he
knew, they were trying to mend their relationship. They seemed fine at his
house and there was no tension.
Patrick testified that when he saw Lenard’s car, he remarked to
Flowers that he wondered if it was the same car that had been waiting on
Aaron Daniel before, but Flowers did not respond. Patrick suspected that
Daniel was dealing drugs.
Lenard testified that Patrick came to his passenger side window and
asked, “Why the f**k are you parked in front of my house?” Patrick also
asked him, “Why my house?” a couple of times, then said, “This is a good
way to get shot. Do you want to get shot tonight?” Patrick seemed agitated
to Lenard, and while Patrick was not screaming, he spoke to Lenard in an
elevated and serious tone. Lenard was fearful but never saw a weapon or
was threatened with a weapon. Lenard believed that Patrick was trying to
intimidate him into leaving. Lenard also testified that he felt threatened
when Flowers placed his hands on Lenard’s car.
Lenard recalled that after Flowers realized he was being truthful about
waiting on Aaron, Flowers told Patrick, “Come on, man, let’s just go inside.
Let’s just go inside. It’s nothing.” Flowers touched Patrick lightly on the
arm like he was trying to pull him away. He did not see them arguing. The
last thing Lenard saw before driving away was Patrick, Aftan, and Flowers
talking.
12 Less than five minutes after they left, Lenard saw BCPD vehicles
driving at a high rate of speed in the direction of the neighborhood. Aaron
Daniel received a text from his mother asking if he was okay because she
had heard shots.
After stepping away from Lenard’s car, Patrick began to fuss at Aftan
for not getting Lenard to move before he got there. Patrick testified that
Flowers then grabbed him by the shirt and started pounding on his chest with
his shirt in his hands and saying, “I can’t do this anymore. I cannot be your
friend anymore. I can’t do this.” Patrick described Flowers’ action as a
violent shoving back and forth.
According to Patrick, he tried to back away by breaking Flowers’ grip
on him. In the meantime, Aftan was trying to pull Flowers back. Patrick
stated that he was eventually able to break free, but the momentum from
pulling away caused him to fall down to his left knee, and when he got back
up, he was pushed back down on his right arm.
Patrick testified that he was able to get up from the ground and run
towards the garage because Aftan was holding Flowers back. He wanted to
get away to call 911. He claimed that when Flowers broke free from Aftan
and caught up to him, Flowers grabbed him from behind and threw him
down on his right arm. He hit the ground and rolled over. He tried to get
back up, but Flowers straddled him, with Flowers’ knees on the ground
around Patrick.
Patrick recalled that Aftan was trying to pull Flowers off while telling
Flowers to stop. Both of them were telling Flowers to leave. Patrick
testified that as he tried to protect his head because of his recent eyelid
surgery, Flowers was punching him on the head, arms, and torso. 13 Patrick explained that he rolled over to his left and reached for the
revolver which was partially hanging out of his right front pocket. When he
pulled the revolver out, Flowers, who was still being pulled on by Aftan,
moved back a little bit. However, according to Patrick, even after he pointed
the revolver at Flowers and told Flowers to stop and leave him alone,
Flowers still came at him and reached for the revolver. Patrick claimed
Flowers said that he knew what he would do to him and that Patrick had
better shoot him.4 Patrick testified it scared him that Flowers was in range to
take the gun, and he thought Flowers would surely kill him if he did not fire
his weapon. Patrick was scared for his life. Patrick remarked that despite
having a gun pointed at him, Flowers never stopped or retreated, and he
never threw up his arms and said “don’t shoot.” Instead, Flowers did the
opposite and came at him.
Patrick explained that Flowers was not standing erect at his feet when
he fired. He claimed that Flowers was straight up at his feet at one point, but
not when he fired. Flowers was on top of him, straddling him, and reaching
for the gun as he pointed it at him, and Patrick told Flowers to stop and leave
him alone.
Patrick described how Flowers was still kneeling when he pulled out
the revolver, but then stood up erect when Patrick shot him. Patrick did not
think Flowers was going to fall because he was just standing there. He
thought he had missed Flowers, but then Flowers fell backwards toward the
sidewalk. Asked if Flowers continued to stand erect after he finished firing,
Patrick replied, “It seemed that way. It was a - - it was a horrifying
4 “You know what I’ll do. You are going to have to shoot me, mother***er” or “You know what I’ve done to you before and you better shoot me, mother***er.” 14 situation.” When he finished firing, Patrick extended his right arm out and
let the revolver fall from his hand onto the grass.
Patrick testified that in the aftermath, a neighbor, Darold Westall,
asked him what he had done, and he replied that Flowers had attacked him.
Patrick believed that Flowers snapped that night as Flowers’ actions in his
yard took him by surprise. Patrick testified that he knew what Flowers had
done to him before, Flowers was going to go as far as he could, and it made
Patrick fear for his life. He was fearful that Flowers would take the gun and
turn it on him. Patrick denied that he shot Flowers out of revenge for the
affair.
Aftan testified that after Lenard and Daniel drove away, she was
trying to move her husband and Flowers to the garage to smoke with her and
calm down. Flowers grabbed Patrick by the front of his shirt and began
pounding him in the chest by pulling forward on his shirt and then pushing
back against his chest. She recalled that Flowers told Patrick that he was
sick of this and tired of trying to be his friend.
Aftan described how she grabbed Flowers by the neck to pull him
away from her husband, who was able to break free. Patrick ran toward the
garage while she momentarily held Flowers back. Patrick took a few steps
before falling. Flowers then ran after Patrick.
Aftan testified that her husband made it to the edge of the garage
before Flowers grabbed Patrick from behind with his arms wrapped around
Patrick. Flowers lifted Patrick, brought him back a short distance, and then
threw Patrick to the ground. Patrick landed on his right arm.
According to Aftan, Flowers then straddled Patrick’s legs while down
on one knee and bent over. Patrick was in the fetal position on his right side 15 as he tried to protect his face and elbow with his left arm while Flowers
struck him with hard blows mainly to his torso.
Aftan testified that she pleaded with Flowers to stop as she pulled him
by the waist in an effort to get him off her husband. When she was able to
pull Flowers back enough, Patrick rotated out of the fetal position, drew his
weapon, and asked Flowers to stop. Aftan explained that at that point,
Flowers was out of his kneeling position and now standing over Patrick,
whose legs remained between Flowers’ legs the entire time. Aftan denied
that Flowers was below Patrick’s feet.
Aftan testified that Flowers told her husband, “Shoot me
motherf***er. Shoot me.” She recalled that when Flowers said this, he was
not standing straight up, but was standing with his upper body curved over
the top of Patrick. Flowers was leaning forward and reaching for the
revolver. She remembered Flowers being close enough to take the revolver.
Patrick fired when Flowers lunged at him.
According to Aftan, she was still holding onto Flowers by his waist
when the first shot was fired. She screamed and let go. She recalled that
Flowers took three steps backwards and then fell back. She went to his aid
before going to the garage to get a phone to call 911. She then returned to
Flowers in order to apply pressure to his wounds. She recalled that Patrick
was still in the yard when she went to get the phone, but did not know if he
had remained there when she returned to Flowers.
Aftan testified that she had not met with Flowers from February of
2014 until the night of the shooting. She still had feelings for Flowers and
did not want to see him or her husband get hurt.
16 Interviews with Detective McDonald
Detective McDonald testified at trial that Patrick became tearful at
times during the interview. He told her more than once that he had been in
fear for his life. She agreed that she did not press Patrick for more details
after he told her that Flowers had put him in a position before where he
thought he was going to die. She testified that she did not ask Patrick
exactly what Flowers had done to him previously. That did not seem
important to her at the time of the interview.
Patrick testified that he told Det. McDonald that Flowers stood over
the top of him and dared him to get back up. He also testified that he told
her that Flowers pushed him to the ground twice and wrestled him to the
ground once.
Patrick explained that while he was sober during the interview, he was
extremely rattled and shaken. It was very difficult for him to understand
what had happened, much less talk about it and explain the way it occurred.
He believed that he would be asked additional questions about the shooting
later. Det. McDonald did not press him for details when he mentioned what
Flowers had done to him before.
Aftan testified that she told Det. McDonald and a BCPD officer that
Flowers was the aggressor, that he attacked Patrick, and that Patrick had
tried to get away. She also claimed she told them that Flowers had hurt
Patrick before.
Autopsy
Dr. Frank Peretti, who performed Flowers’ autopsy on March 25,
2016, testified as an expert in forensic pathology. He was unable to
determine the sequence in which the shots were fired. One bullet entered the 17 right side of the neck, went through the spinal cord, and ended in the left
side of the neck. That shot would have immediately incapacitated Flowers.
Another bullet caused a superficial graze wound to his right interior
forearm, just above the thumb side of the wrist, and then entered the right
side of the chest. The bullet lodged in the right lung. Dr. Peretti could not
determine whether the thumb was facing up or down when the wound was
received. He also could not tell whether the wound was received when
Flowers was actually reaching for something. However, because the wound
went across the wrist, he agreed this meant the hand would not have been
pointed in the direction of the weapon. He thought the wrist wound was
consistent with a defensive position, even though he could not characterize it
as one, and the wrist would have been in front of Flowers’ chest when the
bullet struck. That shot did not lead to a fatal wound immediately. Flowers
would have been able to continue moving if that was the first shot.
The third bullet was to the left upper chest but did not enter the chest
cavity. It was a flesh wound and the bullet ended in the shoulder. A fourth
bullet caused a flesh wound as it grazed the left costal margin and ended in
the back without entering the chest. Flowers would have remained
ambulatory after receiving those two wounds.
A fifth bullet entered the subcutaneous tissue on the back of the neck
and hit the occipital skull bone. Although that bullet did not enter the brain,
the impact from it caused subarachnoid hemorrhaging. That injury would
have immediately incapacitated Flowers. In summary, Flowers would not
have remained standing after that shot or after the shot which fired the bullet
that struck his spinal cord. His hands would have dropped immediately if
raised at the time the bullet struck his spinal cord. 18 Dr. Peretti did not find any burn or powder marks around the wounds
or any evidence of close-range firing on the skin. He opined that the wounds
were all from shots fired no closer than 24 inches away. Anything more
than 24 inches away is considered a distant shot. All of the bullets were
fired at an upward trajectory, with upward meaning the angle of the muzzle
relative to the target. He could not determine precise angles. Dr. Peretti
agreed that impact from a bullet could move a body some, but did not know
whether it did and to what extent in this matter.
The toxicology report showed that Flowers had antidepressants within
therapeutic range in his system. His alcohol levels were .078 in his blood,
.093 in his vitreous fluid, and .155 in his urine. While Flowers received
blood as the paramedics tried to save him, that would not have affected the
alcohol levels found in his urine or vitreous fluid.
Firearms identification expert
Richard Beighley, the firearm section supervisor of the North
Louisiana Crime Lab, testified as an expert for the State in firearm
identification. He explained that to determine the distance from a muzzle to
a target, he begins by looking for gunshot residue deposited on the target or
on something in between the target and the muzzle. If he finds a gunpowder
pattern, then he will try to duplicate that pattern by firing the weapon to
determine a muzzle-to-target distance.
Beighley examined a long-sleeve shirt that had been worn by
Flowers and which had eight holes. Using a stereo microscope, he looked at
areas around each of the holes for gunpowder residue. He did not find any
type of gunpowder residue in the area of any hole. Beighley explained that
19 the absence of a gunpowder pattern on the shirt precluded him from making
a more definite determination of distance.
Beighley explained that a rule of thumb he sometimes utilized for a
.38 is there would be a pattern present if the gun was fired within three feet
of the target, and there would be traces of gunpowder present if it was fired
beyond three feet and up to six feet away. He would probably not find any
gunpowder residue if the .38 was fired from more than six feet away.
Although he did not find a pattern, he did find a total of ten partially
burned or unburned gunpowder particles. Four of those particles were
discovered on the examination paper while he was handling the shirt. The
other six particles were found after he performed a debris collection from the
shirt.
Beighley did not consider 10 particles of gunpowder to be much
considering five shots were fired. He believed that he would have found a
lot more than 10 particles of gunpowder if the gun had been fired three feet
away, or at arm’s length. However, he would not have expected to find any
gunpowder on the shirt whatsoever if the distance had been more than six
feet as gunpowder from a .38 would not travel beyond six feet.
Beighley concluded that in order to get the 10 particles of gunpowder
that he found, at least one shot was fired less than six feet away from
Flowers, and it could have been as close as three feet.
Expert crime scene analysis
Owen McDonnell testified on behalf of Patrick as an expert in crime
scene analysis. He reviewed the reports, statements, physical evidence, and
measurements taken at the crime scene.
20 Aftan testified that Patrick’s wallet and pack of cigarettes fell out of
his pocket when Flowers was slinging him around. The wallet and pack of
cigarettes were found 3.9 feet from the revolver. The pack of cigarettes
appeared to be crushed, which McDonnell thought could have occurred
when someone fell on them. A loose cigarette was also found in the grass.
McDonnell believed that the distribution of the wallet, gun, and cigarettes on
the grass was consistent with an altercation in the front yard. The position of
the revolver was also consistent with Patrick’s statement that he was on his
back and deposited the gun out to his side after he finished firing it.
McDonnell reviewed photos of Patrick taken by Lieutenant
Kalmbach. He noted that Patrick’s polo shirt showed some stretching
around the neckline, as well as wrinkles and other stretched areas. Patrick
had a slight redness to his chest. McDonnell thought the chest redness and
shirt wrinkling were consistent with Flowers grabbing Patrick by the front of
his shirt and pounding him in the chest. McDonnell also noted a scrape on
Patrick’s left shin and scrape marks on the inside of his right knee and right
upper leg.
Patrick was wearing cargo shorts during the altercation. McDonnell
noted grass stains on the shorts in three distinct areas. There was a group of
grass stains along the right cargo pocket. Those stains were consistent with
someone lying on their side. There was also a grass stain on the left front
side in the area of a cargo pocket. McDonnell could not say whether Patrick
was on his left side or on his front when that stain was made, but at one time
the front of the left pocket came into contact with the grass. McDonnell
explained that because those stains were separated, that meant the stains
were from separate contacts with the ground. They were also consistent 21 with Patrick’s statement that he was on his right side and that he fell to the
front at one point. Finally, there were grass stains that stopped at the top of
the back of the shorts on one side. McDonnell testified that the stains on the
back were lineal, which showed they could have been caused by contact
with grass during a rocking movement. He believed that the stain on the
back of the shorts was consistent with Patrick’s statement that he rotated to
his back.
McDonnell noted a small grass stain at the top of one of Patrick’s
socks, as well as dirt along the side of his right shoe. He concluded that
Patrick’s scrapes, the grass stains, and the dirt on the shoe showed that
Patrick was in contact with the grass at least three different times.
McDonnell observed a substantial amount of dirt on the side of
Flowers’ right shoe. He thought this dirt was consistent with a person
leaning down and having the side of their foot in contact with dirt.
McDonnell testified that Dr. Peretti’s report that the wounds were at
an upward trajectory was consistent with Patrick’s statement that he was on
the ground and fired upward. He also testified that under nationally-
accepted guidelines, the absence of gunpowder residue is not a basis for
expressing a distance determination.
McDonnell concluded that none of the physical evidence he observed
was inconsistent with Patrick’s or Aftan’s statements as to how the events
happened. The grass and dirt stains, markings, wrinkles, and abrasions
supported the general framework of what Patrick and Aftan told him had
occurred. In particular, the statement that Patrick was on the ground
multiple times was consistent with the scrape found on his left shin, the
scrapes inside of his right upper leg above the knee, and the separation of 22 stains on his shorts. Aftan’s and Patrick’s statements about the altercation
are the most likely explanation for how the physical evidence resulted.
Ruling
The trial court gave extensive oral reasons for finding Patrick guilty of
manslaughter. The court was not certain that Patrick passed out during the
trampoline episode. Despite what happened to Patrick on the trampoline, he
continued his friendship with Flowers. Regarding the Chili’s incident, the
court was not convinced that Flowers actually used the word “assault” when
he called 911. The court did not think Patrick lost consciousness when his
elbow was fractured. The court found it extremely telling that the physician
who did the PEC indicated that Patrick was homicidal and violent. Alcohol
abuse was listed first in the final diagnosis, making it the condition requiring
the most treatment. The court noted that despite the broken elbow, Patrick
accepted a loan from Flowers, they continued to be friends, and they
continued to work on jobs at the request of Patrick. The court also noted the
two-year gap between the Chili’s incident and the shooting.
Lenard was found to be a credible witness. Patrick’s testimony about
Flowers driving erratically during the marijuana errand was not believed by
the court.
The court could not make sense of the testimony about what occurred
from the time that Lenard drove away until the shooting. In reference to
McDonnell’s testimony, the court wondered which statements from Patrick
and Aftan were consistent with the physical evidence since their own
statements differed depending on when they were made. The court
specifically noted that Aftan contradicted herself in a couple of ways. Later,
at sentencing, the court was very blunt about her lack of credibility, stating 23 that it had been correct in attaching absolutely no credibility to her
testimony.
The court addressed what the photographs of the clothing showed and
did not show. There were some grass stains on Patrick’s pants, but there
was no stretching on the polo shirt that indicated there was pounding back
and forth. The shoes, socks, and shirt were in pristine condition. While
there was a mark on Patrick’s chest, the court did not see any abrasions on
his legs.
The court believed there had been an altercation before the shooting
and that Patrick was agitated. The court believed that Flowers was standing
over Patrick, but not that he lunged for the gun. Finally, the court noted the
testimony from Patrick and Aftan that Flowers took a few backward steps
after being shot. There was no indication that the shots would have caused
that, especially considering that according to Dr. Peretti, two of the shots
would have dropped him. In conclusion, the court found that the State
proved beyond a reasonable doubt that no reasonable person could have
believed that Patrick was in imminent physical harm that night.
The guilty verdict was rendered on August 28, 2019. Patrick filed a
motion for a post-verdict judgment of acquittal on October 31, 2019. A
sentencing hearing was held on November 5, 2019. Two weeks later,
Patrick filed a motion to reconsider sentence on the grounds that his
sentence was excessive. He argued that the trial court gave too much weight
to certain unnamed factors, but then failed to give appropriate weight to
particularized La. C. Cr. P. art. 894.1 factors. The motions were denied.
Patrick has appealed his conviction and sentence. He argues: (1) the
evidence was insufficient to support his manslaughter conviction as the State 24 failed to prove beyond a reasonable doubt that he did not act in self-defense;
(2) the admission of his statement to Detective McDonald violated his right
against self-incrimination under the United States and Louisiana
Constitutions; (3) the trial court erred in not allowing Patrick to testify about
his knowledge of Flowers’ violent behavior; and (4) his sentence is
excessive.
DISCUSSION
When issues are raised on appeal both as to sufficiency of the
evidence and as to one or more trial errors, the reviewing court must first
determine whether there was sufficient evidence to convict. State v.
Hearold, 603 So. 2d 731 (La. 1992).
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 legislatively
embodied in La. C. Cr. P. art. 821, does not provide the appellate court with
a vehicle 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.
Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1 So. 3d 833, writ denied, 09-0310
(La. 11/06/09), 21 So. 3d 297.
The trier of fact makes credibility determinations and may accept or
reject the testimony of any witness. State v. Casey, 99-0023 (La. 1/26/00),
775 So. 2d 1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 25 62 (2000). In the absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness’s testimony, if believed by the trier of
fact, is sufficient support for a requisite factual conclusion. State v.
Robinson, 50,643 (La. App. 2 Cir. 6/22/16), 197 So. 3d 717, writ denied, 16-
1479 (La. 5/19/17), 221 So. 3d 78; State v. Gullette, 43,032 (La. App. 2 Cir.
2/13/08), 975 So. 2d 753. The appellate court does not assess credibility or
reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d
442; State v. Green, 49,741 (La. App. 2 Cir. 4/15/15), 164 So. 3d 331.
Direct evidence provides proof of the existence of a fact, for example,
a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.
2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral
facts and circumstances, from which the existence of the main fact may be
inferred according to reason and common experience. Id. When the State
relies on circumstantial evidence to establish the existence of an essential
element of a crime, the court must assume every fact that the evidence tends
to prove and the circumstantial evidence must exclude every reasonable
hypothesis of innocence. La. R.S. 15:438; State v. Lilly, supra; State v.
Green, supra.
The appellate court reviews the evidence in the light most favorable to
the prosecution and determines whether an alternative hypothesis is
sufficiently reasonable that a rational juror could not have found proof of
guilt beyond a reasonable doubt. State v. Calloway, 07-2306 (La. 1/21/09),
1 So. 3d 417; State v. Garner, 45,474 (La. App. 2 Cir. 8/18/10), 47 So. 3d
584.
Where there is conflicting testimony about factual matters, the
resolution of which depends upon a determination of the credibility of the 26 witnesses, the matter is one of the weight of the evidence, not its sufficiency.
State v. Green, supra; State v. Glover, 47,311 (La. App. 2 Cir. 10/10/12),
106 So. 3d 129, writ denied, 12-2667 (La. 5/24/13), 116 So. 3d 659. Such
testimony alone is sufficient even where the State does not introduce
medical, scientific, or physical evidence. State v. Larkins, 51,540 (La. App.
2 Cir. 9/27/17), 243 So. 3d 1220, writ denied, 17-1900 (La. 9/28/18), 253
So. 3d 154. The trier of fact is charged to make a credibility determination
and may, within the bounds of rationality, accept or reject the testimony of
any witness in whole or in part; the reviewing court may impinge on that
discretion only to the extent necessary to guarantee the fundamental due
process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d 1022,
cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000).
As relevant to the facts of this case, manslaughter is defined in La.
R.S. 14:31(A)(1) as:
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 would have cooled, at the time the offense was committed[.]
A homicide is justified when it is 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. La. R.S. 14:20(A)(1). Patrick asserted that he acted in
self-defense. When self-defense is raised as an issue by the defendant, the
State has the burden of proving, beyond a reasonable doubt, that the
homicide was not perpetrated in self-defense. State ex rel. D.P.B., 02-1742 27 (La. 05/20/03), 846 So. 2d 753; State v. Allen, 50,703 (La. App. 2 Cir.
8/10/16), 200 So. 3d 376, writ denied, 16-1734 (La. 9/6/17), 224 So. 3d 981.
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. State v. Matthews, 464 So. 2d 298 (La.1985); State v. Allen,
supra.
Patrick argues that no reasonable trier of fact could have found
beyond a reasonable doubt that the homicide was not committed in self-
defense. He asserts that the State’s case was based on circumstantial
evidence that failed to exclude a reasonable hypothesis of innocence. This
hypothesis was that based on the great bodily harm caused by Flowers in the
past and Patrick’s knowledge of Flowers’ reputation for explosive and
erratic behavior, he reasonably believed his actions were necessary to avoid
imminent danger of great bodily harm or death. The State argues in
opposition that the evidence actually proved all the essential elements of
second degree murder, but the trial judge noted mitigation and returned a
responsive verdict of manslaughter.
The evidence presented at trial established beyond any reasonable
doubt that Patrick reasonably believed that he was in imminent danger of
losing his life or receiving great bodily harm that night in his yard, and that
shooting Flowers was necessary to save himself from that danger. We
therefore conclude that he acted in self-defense.
There was nothing in the record indicating that Patrick had acted
aggressively toward Flowers in the past, including when he learned of the 28 affair two years before the shooting. On the contrary, Flowers acted without
provocation when putting Patrick in a chokehold on the trampoline. It took
the intervention of a third party to free Patrick and possibly prevent a severe
injury.
Emotions were obviously high at the Chili’s restaurant considering
Patrick had recently learned of his wife’s infidelity with Flowers, yet Patrick
was the one who left the scene with a serious injury. The trial judge seemed
to minimize Patrick’s injury and instead focused on his mental condition at
the hospital as documented in the medical records, which were a joint
exhibit. Notably, there was no testimony at trial from any of the personnel
at the hospital elaborating on Patrick’s mental condition that night.
The two incidents occurred two years before the shooting, and by all
accounts, there were never any subsequent problems between Patrick and
Flowers until the shooting. However, both incidents had occurred outside of
work, and Patrick had limited his interactions with Flowers after working
hours.
Without question, Patrick overreacted to Lenard’s presence when he
returned with Flowers, who presented a threatening presence to Lenard as
well. It is not entirely clear what provoked Flowers to begin shoving
Patrick. There is nothing in this record contradicting Patrick’s assertion that
he attempted to escape to the garage, but was prevented from doing so by
Flowers. Whether Patrick incorrectly counted the number of times he was
pushed to the ground is immaterial. This was a fast-moving, dynamic
situation.
It is also immaterial whether Flowers was standing entirely upright or
standing over Patrick when the first shot was fired, even if Flowers, as found 29 by the trial court, was not reaching for the revolver. Dr. Peretti testified that
all the shots were fired at an upward trajectory, which supports Patrick’s
claim that he was on the ground when he fired the revolver. The State’s
firearm expert testified that at least one shot was fired at a distance no closer
than three feet and no farther away than six feet between the muzzle and the
target. A distance of three to six feet between the muzzle and the target is
not much separation when: (1) Flowers had a history of acting violently
toward Patrick; (2) Flowers suddenly started shoving Patrick in his yard; (3)
Flowers pursued Patrick when he tried to retreat to his garage; and (4)
Patrick was in the strategically vulnerable position of being on the ground at
the feet of Flowers when Flowers had already overpowered him.
In summary, even when the evidence is viewed in the light most
favorable to the prosecution, we find that no rational trier of fact could have
found beyond a reasonable doubt that the homicide of Flowers was not
committed in self-defense. Because we reverse the manslaughter conviction
of Patrick, it is unnecessary for this court to address his remaining
assignments of error.
DECREE
For the foregoing reasons, the conviction and sentence of Patrick
Newton Harris are reversed, and defendant is ordered discharged.
REVERSED.
30 BLEICH, J. (Pro Tempore) concurring,
Moments before the shooting, defendant had just – for the fourth
separate time – been attacked by Flowers.
The conviction rendered in this case must be reversed.
As stated in the original opinion, this court is mandated to review the
sufficiency of the evidence supporting the conviction under the standards set
forth in Jackson v. Virginia and La. C. Cr. P. art. 821. Further, under the
Jackson standard, this court is constrained to consider all of the evidence
introduced at trial “regardless of whether that evidence was admitted
erroneously.” McDaniel v. Brown, 558 U.S. 120, 138, 130 S. Ct. 665, 676,
175 L. Ed. 2d 582 (2010); State v. Lamothe, 98-2056 (La. 11/25/98), 722 So.
2d 987; State v. Hearold, 603 So. 2d 731 (La. 1992); State v. Robinson,
51,830 (La. App. 2 Cir. 2/28/18), 246 So. 3d 725, writ denied, 18-0573 (La.
2/11/19), 263 So. 3d 725; State v. Major, 19-0621 (La. App. 1 Cir.
11/15/19), 290 So. 3d 1205, writ denied, 20-00286 (La. 7/31/20), 300 So. 3d
398.
This writer has refrained from substituting his judgment for that of the
trier of fact relative to the credibility of witnesses. Indeed, the learned trial
judge was required to make some difficult credibility decisions and he was
most conscientious in performing that responsibility.
Succinctly, the primary issue before us is whether the State of
Louisiana proved, beyond a reasonable doubt, that defendant did not act in
self-defense. This issue was thoroughly examined by this panel under the
1 Jackson standard. Our analysis involved consideration of the entire record,
including admissible as well as inadmissible items of evidence.1
While giving great deference to the trial court’s assessment of
credibility and the Jackson standard, the record contains objective items of
evidence which are compelling and not subject to contradiction. This
evidence is considered in the context of the state’s burden of proving beyond
a reasonable doubt that defendant did not act in self-defense.
At trial, there was much testimony, both lay and expert, concerning
the distance between the pistol and Flowers, whether the victim lunged for
the pistol or whether he was standing at defendant’s feet. Yet, one
uncontradicted fact gleaned from all of the testimony and evidence is that
defendant fired each shot in an upward direction. As a result, there can be
no dispute that Flowers was in a superior position to defendant, who was
lying on the ground in his own yard.
There can be much speculation about what happened and whom to
believe. However, from a forensic standpoint, it is indisputable that Flowers
was positioned over the defendant while he was on the ground. It is illogical
1 This writer considered, under the Jackson standard, the defendant’s inculpatory statement, which was a pivotal consideration of the trial court as to defendant’s credibility at trial. The trial court indicated in its written ruling that the statement, at least in part, suggested that defendant was not credible, thus leading to his conviction. In this writer’s opinion, the inculpatory statement should not have been considered at all. The record shows that defendant was misled by the officer, intentionally or unintentionally, while “waiving” his rights. At one point, the trial court expressed concern over this issue. Most importantly, the trial court adopted an incorrect standard for admissibility of the inculpatory statement, requiring that the state prove admissibility by a “preponderance of the evidence.” (Trial court opinion, R.p. 163). Rather, the burden for admitting such a statement is “beyond a reasonable doubt.” La. C. Cr. P. art. 703(D); State v. Hunt, 09- 1589 (La. 12/1/09), 25 So. 3d 746; State v. Odums, 50,969 (La. App. 2 Cir. 11/30/16), 210 So. 3d 850, writ denied, 17-0296 (La. 11/13/17), 229 So. 3d 924.
It is emphasized that although the facial inadmissibility of defendant’s statement was not considered by this writer, the trial court’s error, by itself, would have been the basis for ordering a new trial if not for this writer’s agreement with the ultimate result reached by the majority.
2 to conclude that defendant had placed himself on the ground as Flowers
casually approached him. The forensic evidence concerning the striking of
the bullets and the physical positions of the two principals corroborates the
details of defendant’s testimony relative to the moment of shooting.
Furthermore, the cigarette package and a single cigarette in a separate
location scattered across the ground were independently corroborative of the
second confrontation between defendant and Flowers.
Thus, the objective forensic evidence and the location of other
physical evidence demonstrate that a reasonable doubt exists concerning the
failure to prove that defendant did not act in self-defense.
For these additional reasons, this writer concurs in the original
opinion.
Related
Cite This Page — Counsel Stack
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