State of Louisiana Versus Gerald Little AKA "Junior"

• Court: Louisiana Court of Appeal
• Decided: October 30, 2024
• Docket: 24-KA-82
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 24-KA-82

VERSUS FIFTH CIRCUIT

GERALD LITTLE AKA "JUNIOR" COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 22-1239, DIVISION "D" HONORABLE JOSEPH A. MARINO, III, JUDGE PRESIDING

October 30, 2024

TIMOTHY S. MARCEL JUDGE

Panel composed of Judges Fredericka Homberg Wicker, John J. Molaison, Jr., and Timothy S. Marcel

AFFIRMED; REMANDED WITH INSTRUCTIONS TSM FHW JJM COUNSEL FOR DEFENDANT/APPELLANT, GERALD LITTLE AKA JUNIOR Jane L. Beebe

DEFENDANT/APPELLANT, GERALD LITTLE AKA JUNIOR In Proper Person

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Andrea F. Long Zachary L. Grate Alyssa Aleman MARCEL, J.

Defendant, Gerald Little, was convicted of first-degree murder in violation

of La. R.S. 14:30 and conspiracy to commit armed robbery in violation of La. R.S.

14:26:64. The trial court sentenced defendant to life imprisonment at hard labor

without benefit of parole, probation, or suspension of sentence for first-degree

murder, and to thirty-five years imprisonment at hard labor for conspiracy to

commit armed robbery, with the sentences to run concurrently. For the following

reasons, we affirm the convictions and sentences and remand with instructions to

the trial court as set forth in our Errors Patent Review.

PROCEDURAL HISTORY

On March 24, 2022, a Jefferson Parish Grand Jury returned a bill of

indictment charging defendant, Gerald Little, with the first-degree murder of

Jemond Cador in violation of La. R.S. 14:30 (count one) and conspiracy to commit

armed robbery of Jemond Cador in violation of La. R.S. 14:26:64 (count four).1

Defendant pled not guilty to both counts on March 28, 2022.

The case proceeded to trial, and on October 18, 2023, the jury unanimously

found defendant guilty as charged on both counts. The trial court then sentenced

defendant to life imprisonment at hard labor without benefit of parole, probation,

or suspension of sentence on count one, and to thirty-five years imprisonment at

hard labor for conspiracy to commit armed robbery on count four, with the

sentences to run concurrently. A Motion for Appeal and a Motion for

Reconsideration of Sentence were filed the following day. The trial court denied

1 In the same indictment, as to count two, the State charged Kewane Keiunta Edwards a/k/a “Keke,” Myron Lee, Isaiah White, and Matthew Smith with second-degree murder in violation of La. R.S. 14:30.1. As to count three, Myron Lee was charged alone for obstruction of justice in violation of La. R.S. 14:130.1. Kewane Keiunta Edwards a/k/a “Keke,” Myron Lee, Isaiah White, and Matthew Kerry Smith were also charged with count four alongside defendant. The co-defendants were severed for trial.

1 24-KA-82 defendant’s motion for reconsideration of sentence and granted his motion for

appeal. This timely appeal followed.

FACTS

On the morning of December 6, 2021, defendant and four others, Myron

Lee, Isaiah White, Kewane Edwards, and Matthew Smith, met in White’s Baton

Rouge apartment. Lee informed the group that he had been planning a robbery,

which he referred to as a “lick”, of a person he believed to have a large amount of

money from drug dealing. The plan was to rob Jemond Cador, the victim, who

lived in Terrytown, Louisiana, of marijuana and money. Lee brought two Glock

pistols, a Model 17 and Model 23, with him to White’s apartment. After

finalizing their plan, the men dressed in black clothing and ski masks, loaded the

two Glock pistols, and boarded Lee’s black GMC Yukon. Along their way to

Jefferson Parish, they stopped at Lee’s home in Gonzales to retrieve an AR-15

rifle. Thereafter, the men continued towards the victim’s apartment in Terrytown.

During their drive, the five men continued to discuss details for the planned

robbery. This included roles each would play: Edwards was to be the “bag man”,

Smith would carry the AR-15 rifle, and defendant and Lee would carry the Glock

Model 23 and Glock Model 17 respectively. White was designated as the

getaway driver. However, the plans changed when they reached Jefferson Parish;

Smith took over as the getaway driver and White assumed the role of handling the

AR-15 during the robbery.

Upon arrival at the victim’s apartment complex in Terrytown, the five men

initiated their plan. They drew down their ski masks and exited the vehicle. As

the four men walked through the apartment complex, White and Edwards noticed

a surveillance camera and backed away from defendant and Lee who were

walking ahead towards the victim’s residence.

2 24-KA-82 At the door to Cador’s apartment, Lee knocked and said “it’s me” to the

victim inside. Defendant was standing behind Lee. When the door opened, Lee

fell into the apartment with the victim, and the two physically struggled over

possession of Lee’s Glock Model 17. Defendant remained in the doorway.

At defendant’s trial, White testified that as Lee and the victim wrestled, the

victim gained the physical advantage over Lee and started reaching for the gun. At

that moment, defendant, while standing at the doorway, fired the first shot at the

victim. White recalled that defendant then continued shooting. After the shooting

stopped, White testified that the victim was laying on the ground. The four men

then ran to the vehicle where Smith was waiting to drive them back to Baton

Rouge.

While traveling west on I-10 toward to Baton Rouge, Louisiana State

Trooper Ryan Zimmerman conducted a traffic stop of the Yukon. Trooper

Zimmerman smelled marijuana and conducted a search of the vehicle, where he

discovered two Glock handguns, an AR-15 rifle, a duffle bag containing a black

sweatshirt and black jeans, and two ski masks in a console of the vehicle.

During the traffic stop, Trooper Zimmerman entered each weapon’s serial

number through NCIC. After confirming the weapons were not stolen, Trooper

Zimmerman unloaded the Glock Model 17 and AR-15; the Glock Model 23 was

found empty. All three weapons were returned to Lee. After a speeding citation

was issued to the Smith, the men resumed traveling west on I-10. On their route to

Baton Rouge, they stopped at Lee’s house in Gonzales and dropped off the AR-15

and Glock Model 17.

Upon their arrival at White’s Baton Rouge apartment, the men went inside

and changed clothes. Lee took their discarded clothes and left. Defendant,

Edwards, and Smith broke down the Glock Model 23 and soaked its parts in

3 24-KA-82 bleach. White called his roommate, Jondell Smith, and reported the situation. On

the following day, Jondell Smith arrived at the Baton Rouge apartment to pick up

defendant, who took the Glock Model 23 with him.

Shortly after the shooting, Deputy Marvin Cephus Jr. of the Jefferson Parish

Sheriff’s Office (JPSO) responded to the scene at 294 Wright Avenue in

Terrytown. Deputy Cephus was directed to Building 5, Apartment 236, where he

observed the front door kicked in and found the victim lying on the ground,

showing no signs of life, with blood coming from his body. After EMS confirmed

the victim was deceased, responding officers notified crime scene, the homicide

supervisor, and the coroner’s office. Crime scene technicians arrived and

documented a shotgun on the sofa, a bag of marijuana, shell casings, and a

damaged doorframe in photographs. The homicide division then took over the

investigation.

Detective Steven Quaintance was designated as lead homicide investigator

on the case. He testified that upon his arrival at the apartment, he found the door

had been forced-open and the victim was lying on the floor. While in the

apartment, he found narcotics, seven .40 caliber cartridge casings, additional

ballistic evidence, and a shotgun on the sofa.

In the course of their investigation, officers obtained a surveillance video

recording from December 6, 2021, at 2:02 p.m. The recording depicted a black

SUV entering the rear parking lot of the victim’s apartment complex and four

individuals exiting the vehicle. Two or three of them were armed and one carried a

bag. The recording also captured the vehicle leaving at 2:04 p.m. Another

surveillance video recording from a different camera angle showed the front of the

complex on Wright Avenue and the stairwell leading to the victim’s apartment.

That video recording captured four individuals going up the stairs and later

4 24-KA-82 descending before fleeing the complex. Detective Quaintance estimated the entire

incident occurred within approximately sixty seconds.

Using the automated license plate reader system, law enforcement identified

a black GMC Yukon with a broken right rear taillight near the homicide scene on

December 6, 2021, both before and after the homicide occurred. Specifically, the

vehicle was seen at Terry Parkway, approximately a three-minute drive from the

homicide scene, at 2:00 p.m. It was later tracked traveling towards LaPlace via the

Veterans Boulevard exit on LA 30 and then to Purpura Road.

Based on its license plate, “389 BHF”, law enforcement determined the

black GMC Yukon’s registered owner to be Brook Mitchell of Jennings,

Louisiana. Ms. Mitchell also had an address at 2019 South Woodlawn, Gonzales.

This was an address also used by Lee and it matched the vehicle’s movements on

December 6, 2021. Using law enforcement databases, they obtained Lee’s phone

number. It was discovered that Lee’s number was saved in the victim’s phone

under the name “Lee.”

According to Detective Quaintance, the Gonzales Police Department

conducted surveillance on the Gonzales residence and observed the black GMC

Yukon with the broken right rear taillight parked in the driveway. When law

enforcement appeared with a search warrant for the residence, Lee was present

inside along with Ms. Mitchell and her partner Mr. Stepteaux. Detective Anthony

Buttone oversaw the Gonzales residence search and reported locating “what should

have been two Glock firearms.” Specifically, he recounted the discovery of a

Glock Model 23 and an empty Glock firearm holster case. A later ballistics

analysis confirmed that the Glock Model 23 recovered in the Gonzales residence

was not the weapon used in the homicide.

5 24-KA-82 Lee was arrested on December 14, 2021. While in custody, he voluntarily

gave a recorded statement to Detective Quaintance. Lee described the events of

December 6, 2021, identified the individuals involved, and spoke of their

encounter with the Louisiana State Police. While Lee provided White’s full name,

he knew the others only by their nicknames. Based on this information, an arrest

warrant was issued for White.

In his trial testimony, Detective Quaintance explained that Mr. Stepteaux

provided purchase receipts for firearms. Serial numbers for the rifle and two-tone

Glock 17 provided by Mr. Stepteaux matched the weapons found inside the vehicle

when it was stopped by Trooper Zimmerman after the homicide. A third weapon,

a Glock Model 23, was missing from the residence.

Investigators obtained body camera and dash camera recordings of Trooper

Zimmerman’s December 6, 2021 traffic stop of the GMC Yukon. Recordings

showed Trooper Zimmerman obtaining the occupants’ full names and dates of

birth, seizing two pistols and one rifle, and radioing in their serial numbers. The

serial number of a pistol found by Trooper Zimmerman in the GMC Yukon

matched the one taken from Mr. Stepteaux’s Gonzales residence.

U.S. Marshals apprehended White along with co-defendants Smith and

Edwards at White’s Baton Rouge apartment on December 15, 2021. White,

Edwards, and Smith provided statements to law enforcement following their arrest.

In his re-interview with law enforcement, Lee reported finding only the two-toned

Glock and the AR-15 rifle in the cargo area of the vehicle when they stopped at his

house in Gonzales after the incident. He informed law enforcement that he

removed those weapons from the GMC Yukon and placed them in a “junk vehicle”

located on his parents’ property. Based on this information, another search was

6 24-KA-82 made at 2019 Woodlawn. The weapons described by Lee, along with a rifle

magazine, were discovered inside the “junk vehicle” parked along the fence line.

Thereafter, a warrant was issued for defendant’s arrest. He was apprehended

on January 26, 2022 at 2024 Fourth Street in New Orleans. While in custody,

defendant provided a recorded statement to Detective Quaintance.

While defendant did not testify at trial, his statement was admitted into

evidence and was published to the jury. In that interview, defendant provided

multiple versions of what happened on the day of the incident. Initially, defendant

claimed he was not present at the homicide. He contended that he was at his aunt’s

house in New Orleans when the incident occurred. After Detective Quaintance

advised him that Lee had implicated him and four others in the incident, defendant

again denied being in Jefferson Parish that day. Defendant was presented with a

photographic image from the victim’s apartment complex on the date in question.

Detective Quaintance informed defendant that White and Edwards identified him

in the photograph. In response, defendant claimed the others had identified him

because he was going to implicate them in an unrelated incident of child

molestation in Covington.

Detective Quaintance then confronted defendant with the traffic stop by

Trooper Zimmerman. In response, defendant acknowledged being inside the

Yukon but claimed that he remained inside the vehicle the entire time they were at

the victim’s apartment complex. He maintained that he only learned of what had

happened after hearing the gunshots.

Defendant would go on to recount events surrounding the robbery as the

interview progressed. According to defendant, before leaving Baton Rouge, Lee

told him they were going to “cop weed.” He recalled they stopped in Gonzales to

obtain a rifle and two handguns; Lee claimed the handguns belonged to his father

7 24-KA-82 and the rifle was his own. He described one handgun as black, which was a Glock

Model 17, and the other as “grayish-brown,” which was a Glock Model 23. Once

at the apartment complex, he stated Edwards exited the vehicle with a bag, Lee

with a handgun, and White with a rifle.

Later in the interview, defendant ultimately admitted walking from the GMC

Yukon to the victim’s apartment. He described the events once they arrived at the

victim’s front door, recounting that Lee had his hand on the door, and when he

kicked it open, the victim tried to close the door and keep him back. Defendant

said once inside, Lee and the victim started “tussling,” and that Lee had his Glock

hanging. He described how the victim tried to grab the gun from Lee. When

asked if it was self-defense, defendant said, “[i]t was not self-defense because he

ran in this man’s house[.]” He described Lee as creating a “home invasion” over

twenty-five dollars’ worth of marijuana.

Defendant stated that he believed Lee was in trouble, explaining he did not

want to lose another “brother” and that he could not go through that again. He then

described how the victim twisted and turned Lee so that the victim was over him.

When he saw Lee pull the Glock and saw “him do that,” he “did it.” Defendant

went on to describe that he remained in the doorway, saying “I didn’t get to make

it in.” He said, “I admit to you that I did shoot him [indistinguishable] but that’s

not my gun. I did, I did.”

Defendant then described scrambling down the stairs, getting into the

vehicle, and being stopped by the police en route to Baton Rouge. He also

confirmed they returned the clothes and guns to Lee.

LAW and ANALYSIS

On appeal, defendant raises one counseled assignment of error and four pro

se assignments. In his counseled assignment, defendant argues that there was

8 24-KA-82 insufficient evidence presented at trial to support his conviction for first-degree

murder.

In reviewing the sufficiency of the evidence, an appellate court must

determine if the evidence, whether direct or circumstantial, or a mixture of both,

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 have been proven beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310 So.3d

794, 80.

In making this determination, a reviewing court will not re-evaluate the

credibility of witnesses or re-weigh the evidence. State v. Woods, 23-41 (La. App.

5 Cir. 11/15/23), 376 So.3d 1144, 1157, writ denied, 23-1615 (La. 05/29/24), 385

So.3d 700. Resolution of conflicting testimony rests solely with the trier of fact,

who may accept or reject, in whole or in part, the testimony of any witness. State v.

Lavigne, 22-282 (La. App. 5 Cir. 5/24/23), 365 So.3d 919, 940, writ not

considered, 23-1119 (La. 10/10/23), 370 So.3d 1086. It is not the function of the

appellate court to assess the credibility of witnesses or reweigh the evidence. State

v. Mills, 04-498 (La. App. 5 Cir. 03/29/05), 900 So.2d 953, 960, writ denied, 05-

1470 (La. 01/13/06), 920 So.2d 235. Thus, in the absence of internal contradiction

or irreconcilable conflicts with physical evidence, the testimony of one witness, if

believed by the trier of fact, is sufficient to support a conviction. State v. Sly, 23-

60 (La. App. 5 Cir. 11/2/23), 376 So.3d 1047, 1072, writ denied, 23-1588 (La.

4/23/24), 383 So.3d 608.

In this assignment of error, defendant only challenges his first-degree

murder conviction. He contends the evidence was insufficient to convict him of

first-degree murder when the evidence established the elements of manslaughter.

9 24-KA-82 La. R.S. 14:30(1) defines first-degree murder, in pertinent part, as the

killing of a human being “[w]hen the offender has specific intent to kill or to inflict

great bodily harm and is engaged in the perpetration or attempted perpetration

of…armed robbery[.]” State v. Lehmann, 23-386 (La. App. 4 Cir. 2/5/24), 385

So.3d 268, 280. Thus, to convict defendant of first-degree murder, the State must

have established the following essential elements beyond a reasonable doubt: (1)

the defendant had the required specific intent to kill or inflict great bodily harm (2)

while he was engaged in the perpetration or attempted perpetration of an armed

robbery. See State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219, 1227, cert.

denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005); State v. Bright, 98-

398 (La. 4/11/00), 776 So.2d 1134, 1141.

On appeal, defendant does not contest the sufficiency of the evidence as to

the essential statutory elements with regard to his first-degree murder conviction.

He does not deny that he shot and killed the victim. However, he argues his actions

were justified because they were committed in self-defense or defense of others.

When self-defense or the defense of another is claimed by the defendant in a

homicide case, the State has the burden to prove beyond a reasonable doubt that

the defendant did not act in self-defense or in defense of another. State v. Rainey,

98-436 (La. App. 5 Cir. 11/25/98), 722 So.2d 1097, 1103, writ denied, 98-3219

(La. 5/7/99), 741 So.2d 28. A homicide is justifiable “[w]hen 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). A person who is not engaged in unlawful

activity and who is in a place where he or she has a right to be shall have no duty

to retreat before using deadly force and may stand his or her ground and meet force

with force. La. R.S. 14:20(C). In addition, La. R.S. 14:22 provides that “[i]t is

10 24-KA-82 justifiable to use force or violence or to kill in the defense of another person when

it is reasonably apparent that the person attacked could have justifiably used such

means himself, and when it is reasonably believed that such intervention is

necessary to protect the other person.”

It is well established that the aggressor or the person who brings on a

difficulty cannot claim the right of self-defense unless he withdraws from the

conflict in good faith and in such a manner that his adversary knows or should

know that he desires to withdraw and discontinue the conflict. State v. Leach, 22-

194 (La. App. 5 Cir. 12/28/22), 356 So.3d 531, 544. See La. R.S. 14:21. In

addition, while there is no unqualified duty to retreat, the possibility of escape from

an altercation is a recognized factor in determining whether the defendant had a

reasonable belief that deadly force was necessary to avoid the danger. State v.

Martin, 20-141 (La. App. 5 Cir. 4/28/21), 347 So.3d 1061, 1068, writ denied, 21-

803 (La. 10/1/21), 324 So.3d 1054. Factors to consider in determining whether a

defendant had a reasonable belief that the killing was necessary include the

excitement and confusion of the situation, the possibility of using force or violence

short of killing, and the defendant’s knowledge of the assailant’s bad character.

Lavigne, 365 So.3d at 941. The determination of a defendant’s culpability rests on

a two-fold test: 1) whether, given the facts presented, the defendant could

reasonably have believed his life to be in imminent danger; and 2) whether deadly

force was necessary to prevent the danger. Id. The jury is the ultimate fact-finder

in determining whether the State negated self-defense beyond a reasonable doubt.

Sly, 376 So.3d at 1074.

In this instant case, the jury heard testimony and evidence that established

that defendant, while armed with a Glock Model 23, accompanied three

accomplices to the victim’s apartment as part of a planned robbery. They had

11 24-KA-82 earlier retrieved weapons from Lee’s residence. In a recorded statement, defendant

admitted to intending to rob the victim. When two companions fell back after

spotting a camera, defendant stood behind Lee as he knocked on and kicked in the

door. During the struggle inside, as described by White, Lee and the victim fought

over a Glock Model 17. The gun fell during their altercation, and the victim

gained the advantage and started reaching for it. White explained that the victim

was trying to get the gun away from Lee. At this point, defendant fired multiple

shots at the victim, with White witnessing defendant aiming the gun at them while

they were on the ground. After fleeing back to their vehicle, defendant

contemplated killing Lee for fear he might tell the police. Additionally, White

mentioned that after discovering the AR-15 was unloaded, defendant switched to

the loaded Glock Model 23.

The victim’s body was discovered near the apartment’s front door with

visible bleeding. He had sustained seven gunshot wounds, including two fatal

shots to his head from .40 caliber bullets. Dr. Troxclair confirmed the shots were

fired from a distance of two to three feet away. Defendant was identified as

possessing a Glock Model 23 handgun, which was not recovered. Detective

Buttone connected this firearm, owned by Lee’s stepfather, to .40 caliber casings

found at the crime scene. Live .40 caliber bullets found at Lee’s residence

matched those recovered. Trial evidence indicated defendant fired continuously

until the gun was empty, and police found it unloaded during a subsequent traffic

stop. The entire incident occurred within approximately sixty seconds near the

apartment’s entrance.

The jury evidently rejected defendant’s theory of self-defense in reaching

their verdict. Defendant claimed in his statement that he acted to protect Lee

because he did not want to lose his “brother” again, but despite this, he later

12 24-KA-82 contemplated killing Lee out of fear that Lee might inform the police. However,

there was no evidence presented that the victim had any weapons, gained control

of Lee’s weapon, or threatened anyone present. During the altercation between the

victim and Lee, defendant did not attempt to end the altercation or pull Lee out of

the victim’s reach or retreat. Instead, he began shooting the victim multiple times,

including twice in the head, when he saw him reaching for Lee’s weapon. After

the shooting, defendant failed to report the shooting and fled from the scene.

These actions were inconsistent with the theory of justifiable homicide. See State v.

Wallace, 612 So.2d 183, 191 (La. App. 1 Cir. 1992), writ denied, 614 So.2d 1253

(La. 1993). Flight and evasion of apprehension are circumstances from which a

trier of fact may infer a guilty conscience. State v. Cazenave, 00-183 (La. App. 5

Cir. 10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La. 10/26/01), 799 So.2d

1151.

Furthermore, defendant’s argument ignores his and his companions’ actions

that led the victim to attempt to grab Lee’s weapon in the first place. He and his

armed accomplices arrived at the victim’s apartment on December 6, 2021,

intending to rob him. In State v. Scales, 93-2003 (La. 5/22/95), 655 So.2d 1326,

1336, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996), the

Louisiana Supreme Court found that because the defendant brought on the

difficulty by engaging in an armed robbery at the time of the shooting, he could not

claim the right of self-defense. Similarly, the second circuit found that regardless

of conflicting testimony regarding who fired the first shot, because the defendant

was engaged in an armed robbery at the time of the shooting, he was

unquestionably the aggressor and had no right to claim self-defense. State v.

Hopkins, 34,119 (La. App. 2 Cir. 12/20/00), 774 So.2d 1178, 1183. In this case,

since the evidence indicates that defendant brought on a difficulty by engaging in

13 24-KA-82 the attempted perpetration of an armed robbery at the time of the shooting, he

cannot claim the right of self-defense. See Scales, supra. Therefore, we find the

State met its burden of proving defendant did not act in self-defense.

Alternatively, defendant argues that if his actions are not deemed self-

defense, he should have been convicted of manslaughter rather than first-degree

murder arguing he acted out of sudden fear for his life and for Lee’s life. The

offense of manslaughter is defined as a homicide that would be first or 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. La. R.S. 14:31; State v. Monterroso, 22-390 (La.

App. 5 Cir. 4/26/23), 361 So.3d 1177, 1190, writ denied, 23-745 (La. 11/21/23),

373 So.3d 447.

Sudden passion and heat of blood distinguish manslaughter from murder, but

they are not elements of the offense. Instead, they are mitigating factors that may

reduce the grade of the offense. State v. Thompson, 18-273 (La. App. 5 Cir.

11/28/18), 259 So.3d 1257, 1266, writ denied, 18-2077 (La. 9/6/19), 278 So.3d

372. In order to be entitled to the lesser verdict of manslaughter, the defendant is

required to prove the mitigatory factors by a preponderance of the evidence. State

v. Burse, 19-381 (La. App. 5 Cir. 2/12/20), 289 So.3d 690, 696, writ denied, 20-

650 (La. 11/24/20), 305 So.3d 104. Provocation and time for cooling are questions

for the jury to determine under the standard of the average or ordinary person, one

with ordinary self-control. Id. The question for this Court on review is whether a

rational trier of fact, viewing the evidence in the light most favorable to the

prosecution, could have found that the mitigatory factors were not established by a

preponderance of the evidence. Id.

14 24-KA-82 Defendant suggests that the shooting was “a reaction to fear and in the

sudden heat of passion.” We disagree. The mitigating factors for manslaughter

were not established by a preponderance of the evidence in this case.

In State v. Wright, 42,956 (La. App. 2 Cir. 3/5/08), 978 So.2d 1062, writ

denied, 08-819 (La. 10/31/08), 994 So.2d 532, the defendant and his accomplices,

Foster and Hill, planned to rob the victim, believing he had drugs and money and

could not report them. They forced their way into the victim’s house, where they

demanded money and drugs. Despite giving them $1,500, the victim was later

taken in his car. During the drive, he tried to take the defendant’s gun, causing a

struggle that resulted in gunshot wounds to both the defendant and Foster.

Afterward, the defendant and Foster returned to the victim’s house, left in a truck,

and sought medical help. The victim was later found dead with multiple gunshot

wounds and blunt force trauma. Id. at 1066-67.

In Wright, the defendant argued on appeal that his conviction should be

reduced to manslaughter because the shooting occurred in “sudden blood heat of

passion” because the victim was fighting for the gun. Id. at 1069. The second

circuit indicated that although the defendant was shot during the struggle with the

victim, the actual shooter was his accomplice, Foster. Further, the court held,

“When a victim is fighting back against two armed gunmen, actions of self-defense

are not provocation to reduce a charge of second-degree murder to manslaughter.”

The court provided that the defendant fatally shot the victim during the

perpetration of an aggravated burglary, armed robbery, and aggravated kidnaping.

The court found that neither the fact that the victim acted in self-defense, nor the

fact that the defendant was shot by his accomplice, constitutes provocation to

reduce the charge of second degree murder to manslaughter. The court held that

the defendant, therefore, did not meet his burden of proving that he killed the

15 24-KA-82 victim while acting in “sudden passion or heat of blood,” and, thus, he was not

entitled to a reduced verdict of manslaughter. Id. at 1072.

Similarly, in the instant case, the State’s evidence reflects that after

defendant’s accomplice, Lee, kicked in the apartment door and began fighting with

the victim, defendant aimed his gun at the victim and fired it seven times. The

evidence shows that defendant was not being attacked prior to or at the time of the

shootings or that the victim threatened him in any way. Defendant fatally shot the

victim during the attempted perpetration of an armed robbery. The fact that the

victim tried to defend himself does not constitute provocation to reduce the charge

of first degree murder to manslaughter. See Wright, supra. Defendant failed to

carry his burden of proof of sudden passion or heat of blood to reduce the offense

to manslaughter.

Based on the evidence in this case, and viewing the evidence in the light

most favorable to the State, we find that a rational trier of fact could have found

that the evidence was sufficient under the Jackson standard to support the

conviction of first-degree murder.

Defendant also raises four pro se assignments of error in his supplemental

brief. In these assignments, the entirety of defendant’s law and argument is as

follows:

Appellant Gerald Little is a Prose [sic] Petitioner who is unskilled in law and

objects to my appellate counsel Jane L. Bebe appeal brief on my behalf.

I maintain my innocence and I never confessed to any crime, I never told

detectives I knew about the instant crime.

I never received any transcripts of my trial, everything is false that appellant

counsel Jane L. Bebe [sic] says.

16 24-KA-82 I never talked to my trial lawyer prior to trial. I also object to my trial

counsel opening statements, closing statements, and the entire defense of trial

counsel.

Defendant’s primary complaint is that he did not receive the trial record in

this matter. Our review indicates that by letter dated March 27, 2024, defendant

requested to view the record and to file a pro se supplemental brief. On April 9,

2024, this Court granted his request and ordered the record transmitted to

defendant through the Legal Programs Department at Louisiana State Penitentiary.

The order further provided that defendant had until May 9, 2024 to file a pro se

supplemental brief in this appeal. Our review also revealed that the record was

transmitted to the Louisiana State Penitentiary electronically on April 9, 2024.

Receipt was confirmed the same day. Defendant’s pro se supplemental brief

(dated May 9, 2024) was filed on May 17, 2024.

In these assignments, defendant also contends that appellate counsel’s brief

is based on false and fraudulent facts, objects to the entire record, and objects to

the findings of material facts as unsupported by the evidence. We disagree. We

have conducted a full and complete review of this appeal and have found no basis

for defendant’s assertions. As to defendant’s remaining assignments pertaining to

innocence and his trial counsel’s performance, he has failed to brief these issues

and therefore, we find them abandoned under Uniform Rules-Courts of Appeal,

Rule 2-12.4(B)(4).

ERRORS PATENT

The record was reviewed for errors patent according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

17 24-KA-82 (La. App. 5 Cir. 1990). After reviewing the record, we find the following errors

patent.

The sentencing transcript reflects that the judge failed to order that

defendant’s sentence on count four (conspiracy to commit armed robbery) is to be

served without benefit of parole, probation, or suspension of sentence as mandated

by La. R.S. 14:26 and La. R.S. 14:64. Likewise, the sentencing minute entry and

the UCO also reflect that the sentence on count four was imposed without these

restrictions. This aligns with the sentencing transcript. Under La. R.S. 15:301.1

and State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, a statute’s

requirement that a defendant be sentenced without the benefit of parole, probation,

or suspension of sentence is self-activating. While the trial court’s failure to

impose defendant’s sentence without the benefit of parole, probation, or

suspension of sentence requires no corrective action, we remand for correction of

the minute entry and UCO and direct the Clerk of Court for the 24th Judicial

District Court to transmit the original of the corrected UCO to the institution to

which defendant has been sentenced and to the Department of Corrections’ legal

department. See State v. Jones, 22-527 (La. App. 5 Cir. 5/24/23), 366 So.3d 821,

837; State v. Breaux, 22-535 (La. App. 5 Cir. 4/26/23), 362 So.3d 1020, 1026. See

also State v. Bardell, 17-274 (La. App. 5 Cir. 11/15/17), 232 So.3d 82, 89-90

(where this Court acknowledged that while the statutory restriction of benefits is

self-activating, it nonetheless remanded for correction of the sentencing minute

entry to reflect the correct restriction of benefits).

Additionally, the sentencing minute entry does not reflect that defendant’s

conviction of first degree murder is a crime of violence. Per La. C.Cr.P. art.

890.3(C), first and second degree murder “shall always be designated by the court

in the minutes as a crime of violence.” Therefore, we order the correction of the

18 24-KA-82 minute entry to designate the conviction as a crime of violence. See State v. Le,

22-468 (La. App. 5 Cir. 8/9/23), 370 So.3d 162, writ denied, 23-1230 (La. 2/6/24),

378 So.3d 752; State v. Williams, 20-428 (La. App. 5 Cir. 4/28/21), 347 So.3d

1023, 1030, writ denied, 21-717 (La. 10/1/21), 324 So.3d 1059; Thompson, 259

So.3d at 1273 (where this Court during its error patent review found that the

minute entries did not reflect that the defendants’ convictions were designated as

crimes of violence. This Court, on remand, ordered the correction of the minute

entries).

Additionally, the sentencing transcript does not reflect that defendant was

advised of the prescriptive period to seek post-conviction relief pursuant to La.

C.Cr.P. art. 930.8. The sentencing minute entry also does not indicate that

defendant was advised of the time period for filing an application for post-

conviction relief. It is well-settled that if a trial court fails to advise, or provides

an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may

correct this error by informing the defendant of the applicable prescriptive period

for post-conviction relief by means of its opinion. State v. Taylor, 20-215 (La.

App. 5 Cir. 4/28/21), 347 So.3d 1008. Accordingly, by way of this opinion, we

advise defendant that no application for post-conviction relief, including

applications that seek an out-of-time appeal, shall be considered if filed more than

two years after the judgment of conviction and sentence has become final under the

provisions of La. C.Cr.P. arts. 914 or 922. See Taylor, supra.

DECREE

For the reasons stated above, we affirm defendant’s convictions and

sentences and remand with instructions as set forth herein.

AFFIRMED; REMANDED WITH INSTRUCTIONS

19 24-KA-82 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY OCTOBER 30, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-KA-82 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE JOSEPH A. MARINO, III (DISTRICT JUDGE) HONORABLE GLENN B. ANSARDI (DISTRICT JUDGE) JANE L. BEEBE (APPELLANT) ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE)

MAILED ALYSSA ALEMAN (APPELLEE) GERALD LITTLE #783274 (APPELLANT) HONORABLE PAUL D. CONNICK, JR. ATTORNEYS AT LAW LOUISIANA STATE PENITENTIARY (APPELLEE) 200 DERBIGNY STREET ANGOLA, LA 70712 DISTRICT ATTORNEY GRETNA, LA 70053 ZACHARY L. GRATE (APPELLEE) ASSISTANT DISTRICT ATTORNEYS TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053