Judgment rendered March 1, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,947-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
RONALD BERRY PARKER Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 368,861
Honorable Christopher T. Victory, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Sherry Watters
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
WILLIAM J. EDWARDS KODIE K. SMITH ALEXANDRA L. PORUBSKY Assistant District Attorneys
Before ROBINSON, MARCOTTE, AND ELLENDER, JJ. MARCOTTE, J.
This criminal appeal arises from the First Judicial District Court,
Parish of Caddo, the Honorable Christopher Victory presiding. Defendant,
Ronald Berry Parker, was convicted of second degree murder under La. R.S.
14:30.1. Parker was sentenced to life imprisonment, to be served without
the benefit of probation, parole, or suspension of sentence. Parker now
appeals, and for the following reasons, we affirm his conviction and
sentence.
FACTS
On the afternoon of July 20, 2019, the Shreveport Police Department
received a 911 call from a man who identified himself as Ronald Parker; he
stated that he had just shot someone in the front yard of his neighbor, Ola
Mae Smith (“Ms. Smith”), following a dispute over parking. Officers were
dispatched to the scene and arrested Parker for the shooting death of
Roderick Gaut.
On October 22, 2019, Parker was charged by bill of indictment with
the second degree murder of Mr. Gaut, in violation of La. R.S. 14:30.1.
Parker waived his right to a jury trial pursuant to La. C. Cr. P. art. 780, and a
bench trial proceeded on July 1-2, and 6, 2021.
Officer Gerald Thomas (“Off. Thomas”) is a supervisor and records
custodian with the communications division of the Shreveport Police
Department (“SPD”). He testified concerning the event chronologies
generated for the 911 calls made on the day of the incident, and was able to
authenticate the event chronology report produced by his office, which was
admitted. Off. Thomas confirmed that a 911 call was made at 3:13 p.m. on
July 20, 2019, from Parker. The state played an audio recording of the 911 call made by Parker
after the shooting. Officer Kourtney Pennywell (“Off. Pennywell”) is the
911 dispatcher for SPD who received the call, and she confirmed that the
911 call played for the court was the same one she received on the day of the
incident. In the 911 call, Parker reports that he just shot a man because that
man had pushed him to the ground. When questioned by Off. Pennywell as
to why the man pushed him, Parker first claims that he doesn’t know then
admits that it was due to a parking dispute. Also in the 911 call, Parker is
heard telling Off. Pennywell, “I only shot him once.”
Dr. James Traylor testified as an expert in the field of forensic
pathology. Dr. Traylor performed an autopsy of Mr. Gaut on July 21, 2019,
and determined that his cause of death was a single penetrating gunshot to
the chest. Dr. Traylor recovered a bullet from Mr. Gaut’s body and
determined that the bullet entered Mr. Gaut at a slight downward trajectory.
He confirmed various photographs that were admitted which he took in
connection with his autopsy showing Mr. Gaut’s face, the entry wound from
the bullet, and the bullet recovered from Mr. Gaut’s body. Finally, Dr.
Traylor authenticated his autopsy report which was admitted and which sets
forth the cause of death.
Sergeant Jennifer White (“Sgt. White”) is employed in the crime
scene investigations unit of SPD. During her testimony, she was shown and
confirmed that she took a total of 42 photographs depicting the crime scene,
the area surrounding the crime scene, and Parker’s residence. Sgt. White
was then shown a .22 caliber magnum revolver, along with four .22 magnum
cartridges, one fired .22 magnum cartridge case, and a knife, and confirmed
that they were all the same ones collected from the crime scene on the day of 2 the incident. On cross-examination, Sgt. White testified that the .22 caliber
magnum revolver collected at the scene did not have a trigger guard on it
that could have blocked accidental discharge of the weapon.
Officer Natalie Zweydoff (“Off. Zweydoff”) is a patrol officer with
SPD. She testified that on the day of the shooting, she was dispatched to
block of East Washington Street in Shreveport where the incident occurred.
When she arrived at the crime scene, she found a large gathering of people
standing around Mr. Gaut, who was lying in the grass in the front yard of
Ms. Smith’s house. She observed that Mr. Gaut was bleeding from a chest
wound but still had a faint pulse, so she administered CPR.
Ola Mae Smith owned the house next door to Parker where the
shooting occurred. Ms. Smith testified that as part of her preparations for
her brother’s funeral, she asked Parker if he would permit a member of her
family to park in his driveway, as she knew space at her house would be
limited. Ms. Smith testified that Parker had permitted such an arrangement
in the past in connection with her mother’s funeral. Ms. Smith testified that
Parker agreed to allow members of her family to park in his driveway. She
further testified that until the day of the shooting, Parker had been a friendly
neighbor whom she would sometimes bring food to. Ms. Smith identified
Parker in the courtroom.
Officer Christopher Collins (“Off. Collins”) is a patrol officer with
SPD. Off. Collins testified that when he arrived at the scene of the shooting,
he found Mr. Gaut not breathing and lying in the grass in the front yard of
Ms. Smith’s house with blood coming out of his face. Witnesses on the
scene then directed Off. Collins to the neighboring house on East
Washington Street, where they said Parker was located. Parker eventually 3 emerged from his house and Off. Collins handcuffed him and placed him in
a patrol car. Off. Collins testified that he and other SPD officers then
entered the residence, secured it, and recovered a .22 caliber magnum
revolver from on top of Parker’s refrigerator. Off. Collins identified Parker
in the courtroom as the same man he arrested that day.
Mr. Gaut’s wife of sixteen years Christana Gaut was present at Ms.
Smith’s house on the day of the incident and witnessed her husband’s
shooting death. Ms. Gaut testified that she knew Parker as her mother’s
neighbor, and she identified him in the courtroom. Ms. Gaut testified that
she and her family were on their way to bury her uncle when her husband
called to inform her that their son Roderick J. Gaut, II (“R.J.”) needed to
move his truck from Parker’s driveway because Parker was upset about it.
Mr. Gaut stayed at the house during the funeral so that he could prepare food
for the repast following the funeral.
Ms. Gaut testified that after receiving this phone call from her
husband, she returned to her mother’s house with her son, R.J., so that he
could move his truck as requested. After R.J. moved his truck, Ms. Gaut
observed Parker continuing to pester R.J., who at that point was located in
Ms. Smith’s front yard. According to Ms. Gaut, R.J. then called to his dad
for assistance. Ms. Gaut then observed Mr. Gaut emerge from the carport of
Ms. Smith’s house and approach Parker, telling him to calm down since
R.J.’s truck had already been moved. At that point Ms. Gaut observed
Parker confront Mr. Gaut and point in his face. Ms. Gaut then saw Mr. Gaut
respond to Parker’s aggression by pushing Parker to the ground.
Ms. Gaut testified that, “Instead of just getting up, [Parker] came out
with the gun and shot [Mr. Gaut] in the chest.” Ms. Gaut specifically 4 recalled seeing Parker aim his gun at Mr. Gaut before shooting him. After
Parker shot Mr. Gaut in the chest, Ms. Gaut observed Parker point the gun at
her and at the other family members in the yard before walking over to Mr.
Gaut’s lifeless body and patting him on the head. Ms. Gaut also observed
that Parker appeared to have a knife in his other hand. When Parker had his
gun pointed at her, Ms. Gaut testified that she screamed “please don’t shoot
me” at him. She then stated that Parker “walked back to his house like
nothing ever happened.” After the shooting, Ms. Gaut testified that Parker
never said anything indicating that what he had just done was accidental.
R.J. was Mr. Gaut’s son and also witnessed his father’s shooting
death. He testified that on the day of the incident, he went with his family to
his uncle’s funeral at Stoner Hill Baptist Church. Before the funeral, R.J.
testified that he arrived at the house of his grandmother, Ms. Smith, driving
his grandfather’s red truck and was told by another relative to park the truck
in Parker’s driveway. R.J. stated that he was told that permission had been
obtained to use Parker’s driveway for parking. R.J. then rode in his
mother’s car to the funeral.
Following the funeral, R.J. testified that his plan had been to go to the
burial site with the rest of his family but that his father called and told him
that Parker was upset about R.J.’s truck in his driveway and that he needed
to come move it. R.J. and his mother then came back to the property so that
he could move the truck. R.J. testified that as soon as he got out of the truck
after moving it, Parker opened his garage door and came toward him. R.J.
then identified Parker in the courtroom. R.J. testified that Parker at first
thanked him for “moving your damned truck off of my property.” When
R.J. questioned Parker about what he had just said, Parker became 5 belligerent and eventually patted his right pant pocket, saying “I’ve got
something for you.” R.J. then called out to his father for help.
After Mr. Gaut came outside, R.J. testified that he heard Parker and
his father exchange words, with his father telling Parker to calm down since
the truck had been moved and that Parker now needed to get off of their
property. R.J. testified that at this point Parker “bumped” his father, and his
father responded by pushing Parker to the ground. R.J. testified that he then
witnessed Parker shoot his father. R.J. stated that all of this occurred in the
front yard of his grandmother’s house. After the shooting, R.J. said Parker
waved his gun at everyone nearby and patted his father on the head before
walking back inside his house next door.
Flautesha Graham also witnessed Mr. Gaut’s shooting. On the day of
the shooting, Ms. Graham was in the funeral procession with her son, Tahj
Graham, Ms. Gaut, and R.J. when Mr. Gaut called to inform them of the
need to have R.J. come back to Ms. Smith’s house to move his truck. Ms.
Graham testified that when they arrived at Ms. Smith’s house, R.J.
immediately moved his truck from Parker’s driveway to a parking spot along
the street on the opposite side of East Washington Street.
Ms. Graham testified that as R.J. was walking back towards Ms.
Smith’s house, Ms. Graham saw Parker emerge from his house and walk
toward R.J. on Ms. Smith’s front lawn. Ms. Graham then identified Parker
in the courtroom. Ms. Graham testified that she saw Parker pestering R.J.
which caused R.J. to seek help from his father. She then saw Mr. Gaut come
out of the carport area of Ms. Smith’s house to talk to Parker. She heard Mr.
Gaut telling Parker that since the truck had been moved, Parker should just
let it go and return to his house. Ms. Graham testified that she then saw 6 Parker get inches away from Mr. Gaut in an aggravated state before Mr.
Gaut pushed Parker to the ground. She then saw Parker get back up, pull out
a gun, and with no hesitation, shoot Mr. Gaut in the chest.
Phillip Stout is the firearms section supervisor for the North Louisiana
Crime Lab, and the parties stipulated that he is an expert in the field of
firearm identification. Mr. Stout tested the .22 caliber magnum revolver
used by Parker and found it to be a functional firearm. He also tested the
bullet recovered from Mr. Gaut’s body and stated that it was the same bullet
fired from the .22 caliber magnum revolver. Mr. Stout explained that the
gun used by Parker is a single action revolver, meaning that it requires the
user to cock the hammer before pulling the trigger. Mr. Stout then
authenticated a crime lab report he created setting forth his conclusions as
summarized above, which was then admitted.
Kristen McFarland is a member of Mr. Gaut’s extended family and
witnessed the shooting. She left the funeral procession early in order to help
set up Ms. Smith’s house for the repast. When she arrived at Ms. Smith’s
house, she saw Parker next door pulling items out of R.J.’s truck parked in
his driveway. Ms. McFarland testified that Parker was using vulgar
language, saying that he was mad because he couldn’t go to the store and get
alcohol due to R.J.’s truck blocking him in. Ms. McFarland witnessed
Parker “cussing out” Mr. Gaut about the truck situation. She said that about
five minutes after Mr. Gaut called to R.J. to come move the truck, R.J.
appeared and moved the truck to a parking spot on the street.
Ms. McFarland then saw Parker harass R.J. in Ms. Smith’s front yard
before Mr. Gaut came outside to attempt to calm down Parker. She then saw
Parker and Mr. Gaut exchange words before Mr. Gaut pushed Parker to the 7 ground. Ms. McFarland testified that Parker then got back up after being
pushed down, pulled out a gun from his pocket, and shot Mr. Gaut. After
shooting Mr. Gaut, Ms. McFarland testified that Parker started waving his
gun around at everyone nearby before tapping Mr. Gaut on the forehead,
saying “You dead.” She then identified Parker in the courtroom.
Tai-jah Graham (“Tai-jah”) is a member of Mr. Gaut’s extended
family and was in the car with R.J. when he got the call to move his truck.
After R.J. moved his truck, Tai-jah saw Parker saying things to R.J. that
appeared to upset him. Tai-jah then saw R.J. call out to his father for help,
which caused Mr. Gaut to walk out to Ms. Smith’s front yard to talk to
Parker. She saw the two men exchange words before Mr. Gaut pushed
Parker. Tai-jah then saw Parker get back up, pull out a gun, and shoot Mr.
Gaut. She also saw Parker wave the gun around at everyone located nearby.
After Parker went back into his house, Tai-jah called 911. She then
identified Parker in the courtroom.
Tahj Graham (“Tahj”) is also a member of Mr. Gaut’s extended
family who witnessed the shooting. Tahj was in the vehicle with R.J. when
R.J. got the call to move his truck, and was in Ms. Smith’s carport when the
shooting occurred. After they arrived back at Ms. Smith’s house, he saw
R.J. move the truck. After Mr. Gaut came outside, Tahj testified that he saw
Parker talking in an aggressive manner to Mr. Gaut. Tahj then saw Mr. Gaut
push Parker, “because [Parker] was all the way in [Mr. Gaut’s] face.” Mr.
Graham observed Parker get back up, pull a gun out of his right pants
pocket, point it at Mr. Gaut, and shoot him from a distance of four or five
feet. Tahj then identified Parker in the courtroom.
8 Ysidra Lee is another member of Mr. Gaut’s extended family who
witnessed the shooting. After R.J. moved his truck, she saw Parker come
out of his house and start acting belligerent toward R.J. Ms. Lee then saw
Mr. Gaut and Parker exchanging words in Ms. Smith’s front yard. Ms. Lee
testified that she saw Mr. Gaut push Parker because Parker was “right in his
face.” Ms. Lee said she then turned to say something to her mother and
heard a loud gunshot. When she turned back around, she saw Mr. Gaut
laying on the ground and Parker standing over him holding a gun still
pointed at him. Ms. Lee said that after the shooting Parker did not appear
remorseful or upset and acted “like he hadn’t even done anything.” After
Parker went back into his house, Ms. Lee then approached Mr. Gaut and
helped his wife perform CPR on him. Ms. Lee identified Parker in the
courtroom.
Officer Maria Gardner (“Off. Gardner”) is one of the patrol officers
with SPD who responded to the crime scene. When she arrived at the scene,
she found Mr. Gaut laying on the ground in front of Ms. Smith’s house and
helped render aid to him. Off. Gardner also collected the numerous
witnesses to the shooting and brought them to the station to be interviewed
by detectives.
Corporal Troy Mayweather (“Cpl. Mayweather”) works in the patrol
division of SPD and was one of the officers who arrested Parker after the
shooting. Cpl. Mayweather testified that when he arrived at the scene, Mr.
Gaut was laying in the front yard of Ms. Smith’s house and Parker was
located inside his house next door. After verbal commands were made,
Parker exited his house and was taken into custody by Cpl. Mayweather and
other SPD officers. Cpl. Mayweather then entered Parker’s house to secure 9 the residence and found a .22 caliber magnum revolver on top of Parker’s
refrigerator. Cpl. Mayweather was shown the .22 caliber magnum revolver
in court and confirmed that it was the same one he recovered from Parker’s
residence.
Katrina Wright is employed as a death investigator with the Caddo
Parish Sheriff’s Office. After the autopsy took place, she collected the bullet
found in Mr. Gaut’s body and transferred it to the North Louisiana Crime
Lab. Ms. Wright was shown the bullet collected from Mr. Gaut’s body and
confirmed that it was the same one she sent to the crime lab.
Officer Montrel Jackson (“Off. Jackson”) is a patrol officer with SPD
and was one of the officers who responded to the crime scene on the day of
the shooting. Off. Jackson helped in the arrest of Parker and noticed a
strong odor of alcohol emanating from Parker in the process of arresting
him. Off. Jackson also observed that Parker had slurred speech and that his
eyes were glossy and bloodshot.
Larry Alexander was also a witness to the shooting. Mr. Alexander
did not know Mr. Gaut or Parker prior to the incident. He gave his friend
Michael Lee a ride to the funeral and came back to Ms. Smith’s house after
the funeral for the repast. He parked his vehicle across the street from Ms.
Smith’s house. Mr. Alexander witnessed the confrontation between Mr.
Gaut and Parker and heard Mr. Gaut tell Parker to get out of his yard three
times. Mr. Alexander saw Mr. Gaut push Parker to the ground. He then
heard the gunshot, saw Mr. Gaut fall down and grab his chest. Mr.
Alexander then observed Parker standing over Mr. Gaut while Parker had a
gun in his hand. After the shooting, Mr. Alexander described the scene as
“pandemonium.” He then identified Parker in the courtroom. 10 Michael Lee was another member of Mr. Gaut’s extended family and
was in the carport of Ms. Lee’s house at the time of the shooting. After the
funeral he arrived at Ms. Smith’s house with Mr. Alexander. He saw Mr.
Gaut and Parker having an argument and then heard a gunshot.
The state rested. Parker elected to testify. Parker testified that at the
time of the incident, he had lived at his house on East Washington Street for
14 years and had become friendly with his neighbor Ms. Smith during that
time. Parker said that Ms. Smith would occasionally cook food for him and
care for him when he was sick. Parker testified that on the day of the
incident he was concerned that the truck parked in his driveway meant that
he was soon to be the victim of a home invasion. He also said that he
needed to go check on his mentally ill brother, and could not do so because
he was blocked in. When asked whether or not he gave consent for Ms.
Smith’s family to park a car in his driveway on the day of the funeral, Parker
said, “not that I recall.”
Due to his concerns, Parker claimed he went outside with a cocked
gun in one hand and a knife in the other. He claimed that R.J. was “rapping
a song” in his direction using expletives, but that he did not say anything to
R.J. Parker claimed that R.J.’s father, Mr. Gaut, then motioned for him to
come over to Ms. Smith’s yard, which he did. Parker said that Mr. Gaut
then poked him in the chest and pushed him to the ground. He claimed that
as soon as he hit the ground his gun went off, which is how Mr. Gaut was
shot. Parker claimed that he then got up and went to check Mr. Gaut’s pulse
before returning to his house to call 911. Regarding the 911 call, Parker
confirmed that he told the 911 operator he “only shot [Mr. Gaut] one time,”
11 and that he never told the 911 operator that the shooting was unintentional.
The defense rested.
The trial court found Parker guilty of second degree murder. The trial
court then denied Parker’s motion for a new trial and sentenced Parker to life
imprisonment without benefits. No motion to reconsider sentence or motion
for appeal was filed by Parker’s counsel.
On September 3, 2021, Parker’s counsel filed a motion to withdraw,
which the trial court granted on September 15, 2021. Parker then filed a pro
se application for post-conviction relief, seeking an out-of-time appeal. The
trial court granted Parker’s request on February 7, 2022, and this appeal
ensued.
DISCUSSION
Defendant’s first assignment of error is that the evidence is
insufficient to support his conviction for second degree murder. Defendant
contends that, at best, the evidence proves manslaughter during an act of
negligent homicide or under sudden heat of passion.
The state argues that it established beyond a reasonable doubt that
Parker possessed the requisite specific intent to kill or to inflict great bodily
harm when he shot and killed Mr. Gaut in front of multiple witnesses. The
state notes that the trial court was presented with both the state’s and
Parker’s version of the events leading up to Mr. Gaut’s death and weighed
the credibility of each witness in turn. And, by finding Parker guilty as
charged of second degree murder, the state argues that the trial court rejected
Parker’s contention that the revolver used to kill Mr. Gaut accidentally
misfired when he fell to the ground. The state argues that the evidence
presented at trial supports Parker’s conviction, and that his assertion on 12 appeal that he should have been convicted of a lesser included verdict is
without merit.
When issues are raised on appeal contesting the sufficiency of the
evidence and alleging one or more trial errors, the reviewing court should
first determine the sufficiency of the evidence. State v. Hearold, 603 So. 2d
731 (La. 1992). The Louisiana Supreme Court has set forth the following
standard of review of the sufficiency of the evidence:
When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d. 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La. 6/29/01) 796 So. 2d 649, 657 (citing State v. Captville, 448 So. 2d 676, 678 (La. 1984)).
State v. Brown, 03-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18.
Relevant to this case, second degree murder is “the killing of a human
being ... [w]hen the offender has a specific intent to kill or to inflict great
bodily harm.” La. R.S. 14:30.1(A)(1). Specific intent is that state of mind
which exists when the circumstances indicate that the offender actively
desired the prescribed criminal consequences to follow his act or failure to
act. La. R.S. 14:10(1). Specific intent may be inferred from the
circumstances surrounding the offense and the conduct of the defendant.
State v. Bishop, 01-2548 (La. 1/14/03), 835 So. 2d 434. Specific intent to
kill may also be inferred from the extent and severity of the victim’s injuries.
State v. Bull, 53,470 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1175, writ denied,
20-00797 (La. 12/22/20), 307 So. 3d 1040.
La. R.S. 14:31(A)(1) states that manslaughter is:
13 A homicide which would be murder under ... 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 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. 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. Provocation and the time for cooling are questions for the jury to
determine according to the standard of the average or ordinary person. Id.,
citing 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).
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.
62 (2000). A reviewing court may not impinge on the fact finder’s
discretion unless it is necessary to guarantee the fundamental due process of
law. Id. The appellate court does not assess credibility or reweigh the
evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442. A
reviewing court accords great deference to a fact-finder’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.
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
14 state proved the essential elements of second degree murder. The state
presented sufficient evidence to prove that Parker killed Mr. Gaut when he
had a specific intent to kill or to inflict great bodily harm. The testimony
from numerous witnesses established that Parker was upset at his neighbors
about his car being blocked in and went next door with a weapon. After
Parker was pushed, every eyewitness testified that Parker then drew his gun
and fired it into Mr. Gaut’s chest. This was sufficient to show Parker’s
intent. See State v. Lewis, 08-1317 (La. App. 5 Cir. 5/26/09), 16 So. 3d 390
(holding that specific intent to kill may be inferred from the act of pointing a
gun and firing at a person from close range). Parker’s claim that his gun
went off accidentally when he hit the ground after being pushed is
contradicted by Parker’s own statements in his 911 call and is simply not
supported by the evidence.
Defendant’s argument that he should have been convicted of the lesser
offense of either negligent homicide or manslaughter is without merit.
Defendant did not meet his burden of proving that he committed the
homicide in sudden passion or heat of blood immediately caused by
provocation sufficient to deprive an average person of his self-control and
cool reflection. While Mr. Gaut did push Parker to the ground, that act,
under these facts, is not sufficient justification for the shooting, nor did it
create a sudden passion or heat of blood situation that would warrant a
finding of manslaughter, particularly since it was Parker who instigated the
confrontation. Accordingly, this assignment of error lacks merit.
For his second assignment of error, Parker argues that his life
sentence, although statutorily mandated, is excessive. He argues that
because he is a sixty-eight-year-old disabled Vietnam war veteran with no 15 prior criminal history, the mandatory life sentence should not have applied
to him, especially considering that the tragic incident which resulted in Mr.
Gaut’s death was not intentional. Alternatively, defendant argues that it was
ineffective assistance of counsel for his lawyer to withdraw without
objecting to the sentence and before filing both a motion to reconsider the
sentence and a motion for appeal.
The state contends that the circumstances do not warrant a downward
departure from the mandatory sentence of life imprisonment and that the
evidence at trial proved beyond a reasonable doubt that Parker intended to
kill or inflict great bodily harm upon Mr. Gaut when he shot him in the
chest. Regarding defendant’s ineffective assistance of counsel claim, the
state argues that defendant is unable to prove that his trial counsel’s
performance was deficient at sentencing and that he was prejudiced by trial
counsel’s inadequate performance as a result.
Where no motion to reconsider sentence is filed, the defendant is
relegated to a claim of constitutional excessiveness. State v. Nabors, 53,357
(La. App. 2 Cir. 4/22/20), 295 So. 3d 974, writ denied, 20-00709 (La.
10/6/20), 302 So. 3d 527. A sentence violates La. Const. Art. I, § 20, if it is
grossly out of proportion to the seriousness of the offense or nothing more
than a purposeless and needless infliction of pain and suffering. State v.
Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.
1980). A sentence is considered grossly disproportionate if, when the crime
and punishment are viewed in light of the harm done to society, it shocks the
sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166;
State v. Jackson, 52,606 (La. App. 2 Cir. 4/10/19), 268 So. 3d 1217, writ
16 denied, 19-00699 (La. 10/15/19), 280 So. 3d 560, and writ denied, 19-00797
(La. 1/28/20), 291 So. 3d 1056.
Where there is a mandatory sentence, there is no need for the trial
court to justify, under La. C. Cr. P. art. 894.1, a sentence it is legally
required to impose. State v. Burd, 40,480 (La. App. 2 Cir. 1/27/06), 921 So.
2d 219, writ denied, 06-1083 (La. 11/9/06), 941 So. 2d 35.
The mandatory sentence for second degree murder is punishment by
life imprisonment at hard labor without the benefit of parole, probation or
suspension of sentence. La. R.S. 14:30.1(B). The argument that the
mandatory life sentence for second degree murder is a violation of the
prohibition against excessive punishment in the Louisiana Constitution has
been repeatedly rejected. State v. Parker, 416 So. 2d 545 (La. 1982); State
v. Roberson, 40,809 (La. App. 2 Cir. 4/19/06), 929 So. 2d 789.
To rebut the presumption that the mandatory minimum sentence is
constitutional, the defendant must clearly and convincingly show that he is
exceptional, namely, that, because of unusual circumstances, the defendant
is a victim of the legislature’s failure to assign sentences that are
meaningfully tailored to the culpability of the offender, the gravity of the
offense, and the circumstances of the case. State v. Johnson, 97-1906 (La.
3/4/98), 709 So. 2d 672; State v. Parker, 47,952 (La. App. 2 Cir. 4/10/13),
113 So. 3d 471, writ denied, 13-1051 (La.11/15/13), 125 So. 3d 1101.
The mandatory sentence of life imprisonment for a conviction of
second degree murder is presumed to be constitutional, and Parker failed to
demonstrate that he is an “exceptional” defendant for whom a downward
departure from the statutory minimum sentence is required. Defendant’s age
and status as a Vietnam war veteran with no criminal record are inadequate 17 to show that the sentence is inappropriate for him. Moreover, when
compared to the severity of the offense, defendant’s sentence is neither
grossly disproportionate nor shocking to the sense of justice. We find,
therefore, that defendant’s life sentence is not constitutionally excessive.
We next address Parker’s alternate argument of ineffective assistance
of counsel due to his lawyer’s decision to withdraw before filing a motion to
reconsider sentence. As a general rule, a claim of ineffective assistance of
counsel is more properly raised in an application for post-conviction relief in
the trial court than by appeal. This is because post-conviction relief creates
the opportunity for a full evidentiary hearing. However, when the record is
sufficient, an appellate court may resolve this issue on direct appeal in the
interest of judicial economy. State v. Nixon, 51,319 (La. App. 2 Cir.
5/19/17), 222 So. 3d 123, writ denied, 17-0966 (La. 4/27/18), 239 So. 3d
836.
The mere failure to file a motion to reconsider sentence does not in
and of itself constitute ineffective assistance of counsel. A basis for
ineffective assistance of counsel may only be found if a defendant can show
a reasonable probability that, but for counsel’s error, his sentence would
have been different. State v. Jones, 46,712 (La. App. 2 Cir. 11/02/11), 80
So. 3d 500, writ denied, 12-0016 (La. 08/22/12), 97 So. 3d 356; State v.
Louis, 32,347 (La. App. 2 Cir. 10/27/99), 744 So. 2d 694. Parker’s sentence,
life imprisonment without the benefit of parole, probation, or suspension of
sentence, was the mandatory penalty for the crime he was convicted of.
Parker failed to allege how his age and lack of prior criminal record at the
time of the offense justified a deviation from the mandatory sentence. He
likewise did not allege any special circumstances that would support a 18 deviation from the mandatory sentence provided in La. R.S. 14:30.1. Parker
failed to show that he is exceptional or that the mandatory life sentence is
not meaningfully tailored to his culpability, the gravity of the offense, and
the circumstances of the case. See State v. Collins, 09-1617 (La. App. 1 Cir.
02/12/10), 35 So. 3d 1103, writ denied, 10-0606 (La. 10/08/10), 46 So. 3d
1265.
Because Parker failed to prove that a motion to reconsider the
sentence would have resulted in a different sentence, we cannot find that the
failure of his trial counsel to file a motion to reconsider sentence constitutes
ineffective assistance of counsel. State v. Brooks, 52,334 (La. App. 2 Cir.
11/14/18), 260 So. 3d 713, writ denied, 18-2031 (La. 4/15/19), 267 So. 3d
1121; State v. Lee, 26,542 (La. App. 2 Cir. 05/12/94), 636 So. 2d 634.
Accordingly, this assignment of error is also without merit.
CONCLUSION
For the foregoing reasons, the conviction and sentence of defendant
Ronald Berry Parker are affirmed.
AFFIRMED.