STATE OF LOUISIANA NO. 22-KA-194
VERSUS FIFTH CIRCUIT
MAURICE T. LEACH AKA “MARLO” COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 19-4679, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
December 28, 2022
MARC E. JOHNSON JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
AFFIRMED; REMANDED FOR CORRECTION OF UCO MEJ FHW JGG COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Andrea F. Long Brittany Beckner
COUNSEL FOR DEFENDANT/APPELLANT, MAURICE T. LEACH AKA “MARLO” Jane L. Beebe JOHNSON, J.
Defendant, Maurice T. Leach, appeals his conviction and sentence of thirty-
five years imprisonment at hard labor imposed by the 24th Judicial District Court
for committing manslaughter in violation of La. R.S. 14:31. For the following
reasons, we affirm Defendant’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
Defendant, Michael T. Leach, aka “Marlo”, was charged with second degree
murder, in violation of La. R.S. 14:30.1, and obstruction of justice, in violation of
La. R.S. 14:130.1, in a bill of information filed on October 3, 2019. The following
facts were obtained from the evidence and testimony presented at trial November 8
– 10, 2021:
On May 25, 2019, Defendant shot and killed Michael Shawn Brown inside
of the Pair of Dice Lounge, located on Interstate-10 Service Road South in
Metairie. The bartender called 9-1-1 twice shortly after 4:00 a.m. in the morning
to report the incident. The second time he called, he advised that the shooter,
named “Marlo”, was a Black male, between 5’8” and 6’0,” with twists in his hair,
and who wore a dark blue T-shirt and jeans.
Deputy Brian Knowles with the Jefferson Parish Sheriff’s Office (JPSO)
was dispatched to the lounge on May 25, 2019, at 4:08 a.m. Upon his arrival at
4:11 a.m., Deputy Knowles observed an unresponsive, male victim, later identified
as Michael Shawn Brown, lying on the floor with a gunshot wound to his head.
After Mr. Brown was pronounced dead at 4:22 a.m., Deputy Knowles secured the
scene and spoke with witnesses. Detective Knowles indicated that he was able to
determine the identity of a possible suspect known as “Marlo.” He testified that no
firearm was located at the scene.
Dr. Yen Van Vo, an expert in forensic pathology, performed the autopsy of
Mr. Brown. Dr. Vo determined that the cause of death was a gunshot wound to the
22-KA-194 1 head and that the manner of death was homicide. In Dr. Vo’s opinion, Mr. Brown
was shot at an intermediate range based on the stippling around the wound. She
stated this distance was generally around a “few inches, three, six inches, to two
feet.” Dr. Vo testified that the toxicology report revealed that Mr. Brown had
caffeine, nicotine, cocaine, alcohol, benzoylecgonine, and cocaethylene in his
blood.1 She testified that the victim’s personal effects recovered at the scene
included sunglasses, jewelry, and a pocketknife.
Detective Anthony Buttone reviewed the surveillance video from the lounge,
and the video was played for the jury. He explained that the video depicted
multiple camera angles from inside of the bar. While the videos played, the
detective identified the individuals inside of the lounge during the incident. The
detective pointed out Mr. Brown sitting at the bar. Detective Buttone identified
Defendant as the individual standing by a white female named “Lisa.” He indicated
that Defendant was wearing light-colored pants and a dark t-shirt and that Mr.
Brown was wearing a blue or dark-colored shirt. Detective Buttone explained that
the video showed a witness from the scene placing his arm around Defendant. He
also observed Mr. Brown walk away from Defendant and towards his original seat
at the bar.
In another video, Detective Buttone described the victim as sitting at the bar
next to “Ronnie [Ronald Ruiz].” He indicated that Ronnie walked over to
Defendant and that Kelli McCoy walked “over to separate the two.” While
describing the videos, Detective Buttone denied that there was anything in Mr.
Brown’s hands. He stated that the other camera angles also showed that there was
nothing in Mr. Brown’s hands at any time during the incident.
1 Dr. Vo indicated that Mr. Brown had over double the average impairment level of cocaine, and also benzoylecgonine and cocaethylene, in his system at the time of his death. The doctor explained that cocaethylene is a byproduct that is created when an individual ingests alcohol and cocaine at the same time. Dr. Vo further explained that cocaethylene potentially enhances the effect of cocaine, which the doctor acknowledged is associated with heightened levels of aggression.
22-KA-194 2 Detective Buttone testified that Defendant neither returned to the scene to
speak with the police nor made any contact with them. U.S Marshals apprehended
Defendant in New Jersey, but did not find the weapon Defendant used to shoot Mr.
Brown. In his statement to law enforcement, Defendant said he disposed of the
firearm at Brother’s Gas Station and Food Mart, which was a short distance from
the lounge. Upon searching the gas station and surrounding area, Detective Buttone
did not locate a firearm. In open court, he identified Defendant as the individual
who was arrested for killing the victim.
Donald Zanotelli, now retired, was the lead JPSO detective in the homicide
investigation in this case. Upon his arrival at the scene, he observed the deceased
victim with a single gunshot wound to his neck on the floor. Detective Zanotelli
indicated that he spoke with the remaining witnesses on the scene and developed
Defendant, whom the witnesses called “Marlo,” as a suspect. He learned
Defendant’s full name from his interviews with Ms. Monica Sonia and Ms. Kelli
McCoy and discovered that Defendant was from New Jersey through social media
and research. Detective Zanotelli presented a photographic lineup to Mr. Ruiz, Ms.
Sonia, Ms. McCoy, and Ms. Johnson, and they all identified Defendant as the
shooter.
Detective Zanotelli also identified photographs taken of individuals at the
lounge. He indicated that one of the photographs captured Mr. Brown, Mr. Ruiz,
Lisa, Mr. Flippin, and Defendant; another showed Mr. Brown and Ms. McCoy.
The photo depicted Ms. McCoy when she was “pushed to the ground as
[Defendant] was coming over and fired a single shot with the muzzle flash.” In
another photograph, Defendant, who was armed with a firearm, could be seen
“shoving and shooting” the victim, and also showed Ms. McCoy intervening.
Detective Zanotelli reviewed the video from the lounge several times during his
investigation. He denied seeing Mr. Brown with a weapon in his hands or reaching
22-KA-194 3 into his pockets and confirmed that Mr. Brown’s hands were empty and “down to
his side.” No witnesses reported that Mr. Brown had a knife. A pocketknife and
Bic lighter were recovered from Mr. Brown’s body. Detective Zanotelli testified
that Defendant did not mention a knife in the statement he gave to police. He
recalled that Defendant made the allegation that the victim had previously
threatened him with a knife, twenty-four days after the incident occurred.
Detective Zanotelli obtained an arrest warrant for Defendant for second
degree murder and obstruction of justice. Defendant was arrested in New Jersey
five days later and was eventually brought to Jefferson Parish. Detective Zanotelli
spoke with Defendant after his arrest. Before giving a statement, Defendant was
advised of and waived his Miranda rights. Detective Zanotelli pointed out that the
video contradicted Defendant’s allegation that Mr. Brown reached into his pocket.
Defendant did not ask to speak with him again or provide any additional
information.
Defendant’s statement given to the police was admitted and published to the
jury. In his statement Defendant stated that he met Mr. Brown two years before the
May 2019 incident. Defendant said that they used to “chill” and “hang out” at bars
together. He explained that he no longer dealt with Mr. Brown because he could
not trust him. Defendant explained that people believed Mr. Brown was “ratting on
things” to the police. He explained that Mr. Brown told other people that he got
“coke” from Defendant and that Defendant sold “bad coke.” Earlier in the year,
while they were at “Pat’s [Club],” Mr. Brown asked Defendant what was going on.
Defendant told him, “You’re supposed to be my friend. You should tell me what
was going on.” Mr. Brown responded, “I don’t give a f*ck,” and Defendant said,
“Okay.” After this incident, Defendant said he stopped speaking to Mr. Brown and
would stay away from him if they were at the same place.
22-KA-194 4 In his statement, Defendant told the detective that on the day of the incident,
he went to different bars, including Pat’s Club and Cheers, and had drinks.
Defendant then went to the Pair of Dice Lounge. He indicated that Mr. Brown was
present and that he was with “Duchess,” [Kelli McCoy] a bartender that he knew,
and other people by the pool tables. He told the detective that his friends, Lisa and
Jason Flippin, were also present at the bar. He recalled that “Duchess” came over
to him, but he could not remember what she said.
Defendant described that around twenty minutes later, Shawn [Mr. Brown]
started “coming at [him] for no reason.” Mr. Brown said to Defendant, “I did
everything for you.” Defendant explained that they were not “in each other’s
faces” at that time. Defendant relayed that the bartender asked if “he was good,”
and he confirmed that he was. Defendant said he had “seen that look before” when
another person stabbed him. Defendant recalled that he went for his drink. He said
Mr. Brown came back over and said, “Motherf*cker.” Defendant indicated that
while Mr. Brown was yelling at him, he told him to “chill” and get away from him.
Defendant explained that he stepped back and that Mr. Brown did not come any
closer. He said that Mr. Brown’s hands were at his side, and he went “in his
pocket.” He recalled that Mr. Brown said, “Motherf*cker, you want a piece of me,
you want a piece of me motherf*cker, I’ll kill you, I’ll f*cking kill you.”
Defendant stated that Mr. Brown said this twice to him and then got closer.
Defendant told the detective that “Duchess” told Mr. Brown to get away
from him. Defendant stated that when “Duchess” came over, Mr. Brown came
towards him and that Mr. Brown’s hands were down. He indicated that Mr. Brown
tried to push “Duchess,” and she was trying to calm him and stop him. He
explained that he saw Mr. Brown “go in his pocket.” Defendant said he “just took
out my sh*t.” Defendant stated that he did not even know he hit Mr. Brown until
he fell. Defendant explained that his 9 millimeter gun was located on his hip under
22-KA-194 5 his shirt. Defendant remembered telling Mr. Brown to leave him alone and that he
did not want to hurt Mr. Brown. He denied showing Mr. Brown the gun. Defendant
said that when Mr. Brown came again for a third time, he pulled out his gun and
fired. He stated that he only fired once and that he was mad. Defendant recalled
that after the shooting, he left out the front door. He explained that he panicked and
his friend picked him up after her left the bar. He stated that he threw the gun “in a
hole behind the Brother’s.” Defendant said he left because he wanted to see his son
and let his family know what was happening.
Defendant was convicted by a unanimous jury of the lesser offense of
manslaughter and of the charged offense of obstruction of justice. On November
12, 2022, Defendant filed a pre-sentencing memorandum. He asserted that his
criminal record shows arrests for minor infractions like disorderly conduct,
criminal mischief, and possession of marijuana. He stated that after moving to New
Orleans in 2017, he was charged with theft and simple assault. He explained that
these charges were dropped because the investigation revealed he had been stabbed
by Mr. Derek Savoie. He averred that in the instant case, an aggressive Mr. Brown
confronted him and mouthed the words “I will kill you.” Defendant explained that
he shot Mr. Brown in response. He requested that the trial court recognize that he
was threatened by Mr. Brown, although his actions were out of proportion to the
threat he faced. Defendant also requested that the court recognize his
“overreaction” was caused by trauma from a previous stabbing. He asked the trial
court to consider that he was a “church member, a hard worker, a loving son, a
committed father, and a man who has never sought out to harm anyone in his life
prior to the shooting in this case.”
At the February 10, 2022 sentencing hearing, the defense called the
Jefferson Parish Correctional Center chaplain, Reverend Kathy Radke-Story, to
make a statement on Defendant’s behalf. She stated that Defendant came to the
22-KA-194 6 church services weekly and became an assistant to her. She was “very surprised”
when she subsequently learned about Defendant’s charges in the newspaper.
Reverend Radke-Story, who has only ever testified on one other individual’s
behalf, opined that Defendant seemed to attend the services for the “right reasons”
and was sincere in his commitment to make himself better. The trial judge
informed defense counsel that he would not hold the sentencing open for testimony
from an unavailable witness and noted defense counsel’s objection.
Thereafter, Defendant apologized to the family and stated, “[H]opefully one
day ya’ll [sic] can forgive me for hurting—for hurting your family[.]” He lamented
that people make mistakes, he could not take back what happened, and he could
only move forward. Defendant stated that he had been in jail over thirty-two
months and that it was “hard to survive.” During his time in jail, Defendant
declared that he had been rehabilitated with God’s help. He further expressed that
since giving his life to God, he has learned to have compassion for others, to
forgive, and to love unconditionally. Defendant apologized for taking someone’s
life, and insisted that he was not a murderer or an average inmate. Defendant also
presented the judge with a letter he wrote a few years earlier in order to help
others. The trial judge considered the evidence, pointed out Defendant’s lack of
remorse in his statement to law enforcement following his arrest, and sentenced
Defendant to thirty-five years imprisonment on the manslaughter charge, to be
served concurrently with a twenty-five year sentence imposed for his obstruction
of justice conviction.
On January 12, 2022, defense counsel filed a Motion and Incorporated
Memorandum for New Trial and a Motion for Post-Verdict Judgment of Acquittal.
Defendant’s motion for new trial was based on La. C.Cr.P. art. 851(B)(1), (2), and
(5). He asserted that the State did not prove all of the elements of the crimes and
that the verdict was contrary to the law and evidence. Defendant also argued that
22-KA-194 7 the court’s ruling on Mr. Brown’s prior bad acts showed prejudicial error and that
the ends of justice would be served by the granting of a new trial. In the motion for
post-verdict judgment of acquittal, Defendant argued that the evidence was
insufficient to support the conviction of manslaughter in violation of La. R.S.
14:31. At the hearing on January 13, 2022, after the State made brief arguments,
the district court denied the motions.
ASSIGNMENTS OF ERROR
First, Defendant argues that the trial court erred in denying the defense’s
motions for new trial and post-verdict judgment of acquittal because the evidence
was insufficient to support a conviction of manslaughter. He asserts that the issue
is whether a rational trier of fact, viewing the evidence in the light most favorable
to the State, could find all reasonable hypotheses of innocence were excluded.
Defendant maintains that the only question in this case is whether he “felt
threatened to the point that he had to stand his ground in self-defense and fire a
single shot at Mr. Brown who, he alleges threatened him with a knife, and had
more than double the level of cocaine in his system that would normally cause
impairment and an emergency room visit.”
Defendant further contends that he proved he had a reasonable belief that his
life was in imminent danger of death or serious harm. The evidence presented
established that he had been stabbed a year and a half earlier by “an associate of
Mr. Brown.” The evidence also showed that Mr. Brown, who was carrying a knife
and who was highly impaired that night, initiated the confrontation by aggressively
approaching Defendant in the lounge. He argues that, although he provided the
names of several witnesses, including “Lisa” and Mr. Flippin, who could
corroborate his story, the police did not find those witnesses. He argues that,
although, he initially fled the scene, he freely provided his statement to the police,
and he maintained that he shot Mr. Brown in self-defense. Defendant maintains
22-KA-194 8 that the evidence showed that this was a justifiable homicide and that he acted in
self-defense.
The State responds that the record does not reflect that Defendant objected
to the responsive verdict of manslaughter prior to the jury rendering its verdict. As
such, the State argues that because it presented sufficient evidence to support a
conviction for second degree murder, any challenge by Defendant to his
manslaughter conviction is without merit.
Also, to the extent Defendant argues that no rational jury could have found
he did not act in self-defense, the State counters that Defendant’s argument is
meritless based on the facts of the case. The State contends that based upon the
range from which the shot was fired, the location of the gunshot wound sustained
by Mr. Brown, and the type of ammunition used, Defendant’s specific intent to kill
Mr. Brown was established beyond a reasonable doubt. The State avers that it also
presented evidence to prove Defendant’s action was not justified beyond a
reasonable doubt. Specifically, the State points out that the testimony of witnesses,
corroborated by the surveillance video from the lounge, proved deadly force was
not necessary during the encounter. The State also argues that Defendant’s actions
following the shooting and his self-serving statement were inconsistent with a
defense of justification.
In his second assignment of error, Defendant argues that his thirty-five year
sentence for his manslaughter conviction is excessive. Defendant emphasizes his
age, lack of violent criminal history, and the fact that he acted in self-defense. He
complains that the district court failed to justify why the minimum sentence was
not given in this case. He further claims that the district court discounted his
remorse shown at sentencing and the positive changes he has made while
incarcerated. He avers that excessive sentences do nothing for any legitimate state
or community interest.
22-KA-194 9 The State counters that, in sentencing Defendant on his conviction of
manslaughter, the district court considered the facts of this case, the mitigating
factors presented by Defendant, the victim impact statements, the pre-sentence
investigation report, and Defendant’s lack of remorse. The State further argues that
in comparing the instant case to analogous cases, Defendant has not made a
sufficient showing of abuse of discretion.
LAW AND DISCUSSION
Assignment of Error One – Sufficiency of the Evidence
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, 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, 804.
This directive that the evidence be viewed in the light most favorable to the
prosecution requires the reviewing court to defer to the actual trier of fact’s rational
credibility calls, evidence weighing, and inference drawing. State v. Clifton, 17-
538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 702. This deference to the fact-
finder does not permit a reviewing court to decide whether it believes a witness or
whether the conviction is contrary to the weight of the evidence. State v. Caffrey,
08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.
2/5/10), 27 So.3d 297.
The 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.
Bailey, 04-85 (La. App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605
(La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163
L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable
22-KA-194 10 conflicts with physical evidence, the testimony of one witness, if believed by the
trier of fact, is sufficient to support a conviction. State v. McKinney, 304 So.3d at
1103 (citing State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153,
writ denied sub nom. State ex rel. Dixon v. State, 08-987 (La. 1/30/09), 999 So.2d
745).
Evidence may be either direct or circumstantial. Circumstantial evidence
consists of proof of collateral facts and circumstances from which the existence of
the main fact can be inferred according to reason and common experience. State v.
Gatson, 21-156 (La. App. 5 Cir. 12/29/21), 334 So.3d 1021, 1034 (citing to State v.
Williams, 05-59 (La. App. 5 Cir. 5/31/05), 904 So.2d 830, 833). When
circumstantial evidence is used to prove the commission of an offense, La. R.S.
15:438 provides that assuming every fact to be proved that the evidence tends to
prove, “in order to convict, it must exclude every reasonable hypothesis of
innocence.” State v. Wooten, 99-181 (La. App. 5 Cir. 6/1/99), 738 So.2d 672, 675,
writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208. This is not a separate test from
the Jackson standard but rather provides a helpful basis for determining the
existence of reasonable doubt. Id.
The motion for a new trial is based on the supposition that injustice has been
done to the defendant, and unless such is shown to have been the case, the motion
shall be denied, no matter upon what allegations it is grounded. La. C.Cr.P. art.
851(A). On motion of the defendant, the court shall grant a new trial whenever the
verdict is contrary to the law and the evidence. La. C.Cr.P. art. 851(B)(1). When a
motion for a new trial is based on the verdict being contrary to the law and the
evidence, there is nothing to review on appeal. State v. Condley, 04-1349 (La. App.
5 Cir. 5/31/05), 904 So.2d 881, 888, writ denied, 05-1760 (La. 2/10/06), 924 So.2d
163. However, both the Louisiana Supreme Court and this Court have addressed
the constitutional issue of the sufficiency of the evidence under this circumstance.
22-KA-194 11 Id. With respect to defendant’s claim that the “ends of justice” would be served by
a new trial, this Court has previously held that such a claim presents nothing for
appellate review. See State v. Daniels, 15-78 (La. App. 5 Cir. 9/23/15), 176 So.3d
735, 740, writ denied, 15-1997 (La. 11/29/16), 211 So.3d 386. The decision on a
motion for a new trial rests within the sound discretion of the trial judge, and his
ruling will not be disturbed on appeal absent a clear showing of an abuse of
discretion. State v. Mouton, 16-673 (La. App. 5 Cir. 4/26/17), 219 So.3d 1244,
1254, writ denied, 17-1149 (La. 5/18/18), 242 So.3d 572.
Defendant also filed a Motion for Post-Verdict Judgment of Acquittal. The
question of sufficiency of the evidence is properly raised in the trial court by a
motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821.
Mouton, supra; State v. Bazley, 09-358 (La. App. 5 Cir. 1/11/11), 60 So.3d 7, 18,
writ denied, 11-282 (La. 6/17/11), 63 So.3d 1039. A post-verdict judgment of
acquittal shall be granted only if the court finds that the evidence, viewed in a light
most favorable to the State, does not reasonably permit a finding of guilty. State v.
Durand, 07-4 (La. App. 5 Cir. 6/26/07), 963 So.2d 1028, 1033, writ denied, 07-
1545 (La. 1/25/08), 973 So.2d 753. Appellate review of the denial of the motion
for post-verdict judgment of acquittal is controlled by the standards set forth in
Jackson v. Virginia, supra.
In the instant case, the testimony and evidence presented at trial established
that, on the day of the shooting, the victim, Mr. Brown was at the Pair of Dice
Lounge with his friends, Mr. Ronald Ruiz, Ms. Monica Sonia, and Ms. Kelli
McCoy, who were also Defendant’s friends. Defendant arrived thereafter with his
friends, Lisa and Jason Flippin. Defendant and Mr. Brown were friends who had “a
falling out” a few months earlier, but they both continued to frequent the same bars
afterwards. The State demonstrated that before the shooting, Ms. McCoy and
Defendant had an argument because Defendant’s friend, Mr. Flippin, called Mr.
22-KA-194 12 Brown “a cop.” Ms. McCoy stated that Defendant was upset that she was “hanging
out” with Mr. Brown. Shortly after this exchange, Mr. Ruiz left his seat by Mr.
Brown, and approached Defendant and his friends, who were on the other side of
the bar. At that point, Mr. Brown also walked over to Defendant, and they had an
argument.
Ms. McCoy heard their entire argument, and she explained that Mr. Brown
said they should go outside and fight. Ms. Monica Sonia also testified that she
heard Mr. Brown say, “Hey, man, I’m tired of this, you know, we grown a** men.
And we’ll go outside and fight, fight it out like men instead of just, you know,
going back and forth bickering all the time.” Ms. McCoy explained that Mr. Ruiz
initially got between Mr. Brown and Defendant, so she walked over to the group
because it seemed that they were “getting heated.” Ms. McCoy further explained
that she told Mr. Brown to stop and to sit down. She testified that she could be seen
grabbing Defendant’s arm and trying to push him back. She recalled that she saw
the firearm, told Defendant “no,” and ducked down as Defendant shot Mr. Brown.
The witnesses denied that Mr. Brown pulled out a weapon or hit Defendant.
Ms. McCoy also denied hearing Mr. Brown threaten to kill Defendant during their
argument. Detectives Buttone and Zanotelli both testified that they reviewed the
surveillance video taken from the lounge. Detective Buttone indicated that the
camera angles showed nothing in Mr. Brown’s hands during the incident, and
Detective Zanotelli also denied seeing him with a weapon in his hands or reaching
into his pockets for the pocketknife, found later during the autopsy.
Also, the surveillance video from the lounge, which did not have sound,
largely corroborated the witnesses’ testimony. The video showed that Mr. Brown
walked over to Defendant, the two had a verbal altercation, and Mr. Brown walked
away. The video also showed that after Mr. Brown walked back towards
Defendant, Mr. Ruiz stepped between the two, and then Ms. McCoy walked over.
22-KA-194 13 The surveillance video showed that Ms. McCoy pushed Mr. Brown backward into
a railing, and Defendant stepped around Mr. Ruiz afterwards. The video reflected
that Ms. McCoy had her hands placed on the men’s chests. In the video, Mr.
Brown’s hands were at his side, and Defendant could be seen pulling on Ms.
McCoy’s arm. The video showed that when Ms. McCoy ducked down, Defendant
shot Mr. Brown in the left side of his face, and Mr. Brown fell to the ground. The
testimony and evidence established that after the shooting, Defendant fled from the
scene, discarded his weapon at a gas station, and left for New Jersey, where he was
later apprehended.
The testimony also established that other witnesses present fled the scene
after the shooting. Detective Buttone and Mr. Zanotelli both testified that they
searched for but could not locate Mr. Flippin, and they were unable to determine
the identity of “Lisa.” Also, besides providing a statement the night of the
shooting, the bartender failed to cooperate with the police.
The defense argued that Defendant killed Mr. Brown in self-defense, and
that Mr. Brown had a knife and was the aggressor. Although Defendant did not
testify, his statement was played for the jury at trial. Defendant claimed that he
shot the victim because he was previously stabbed by Mr. Savoie after Mr. Savoie
threatened Defendant. He said that Mr. Brown and Mr. Savoie were friends. The
defense also introduced photographs of Defendant’s scars into evidence. Defendant
knew Mr. Brown kept a gun in his truck and had a pocketknife. Defendant
repeatedly told the detective that Mr. Brown threatened to kill him and that he saw
Mr. Brown go into his pocket. During his statement, Defendant alleged that he
“blacked out,” did not know that he hit Mr. Brown until he fell, and he denied
remembering that the shooting occurred. He further alleged that he pulled the gun
out and fired right away.
22-KA-194 14 Defense counsel questioned Ms. McCoy about Defendant’s prior stabbing at
trial. She confirmed that she was present the night Mr. Savoie and Defendant had
an argument. Ms. McCoy testified that in September 2017, Mr. Savoie injured
Defendant with a pen and that Defendant went to the hospital afterwards.
However, she denied that Mr. Brown knew Mr. Savoie or that they were friends.
She further denied that Mr. Savoie was present at the lounge the morning Mr.
Brown was shot. None of the witnesses testified that they heard Mr. Brown
threaten to kill Defendant. Some witnesses testified that they only heard him tell
Defendant that they should go outside, which they believed meant that Mr. Brown
wanted to fist fight. Witnesses also denied that they saw Mr. Brown with a knife or
that he pulled a knife out of his pocket. Furthermore, the detectives testified that
they reviewed the surveillance video and Mr. Brown did not have anything in his
hands during the incident. The jury heard this conflicting testimony and evidently
found the State’s witnesses’ descriptions of what had occurred during the early
morning hours of May 25, 2019, at the Pair of Dice Lounge more credible. The
credibility of a witness is within the sound discretion of the trier of fact, who may
accept or reject, in whole or in part, the testimony of any witness; therefore, the
credibility of witnesses will not be reweighed on appeal. State v. Macon, 06-481
(La. 6/1/07), 957 So.2d 1280, 1285-86; State v. Rowan, 97-21 (La. App. 5 Cir.
4/29/97), 694 So.2d 1052, 1056.
Although evidence was presented regarding Defendant’s violent encounter
with Mr. Savoie, the testimony of other witnesses did not corroborate Defendant’s
claim that Mr. Savoie and Mr. Brown were friends. Defendant also admitted that
he fled the scene after the shooting. Defendant’s flight from the scene after the
shooting could be viewed as inconsistent with a theory of justifiable homicide. See
State v. Wallace, 612 So.2d 183, 191 (La. App. 1st Cir. 1992), writ denied, 614
So.2d 1253 (La. 1993). A defendant’s flight and attempt to avoid apprehension are
22-KA-194 15 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.
Based on the foregoing, we find that the evidence presented by the State was
sufficient to support the jury’s finding that Defendant committed manslaughter and
that the killing of Mr. Brown was not a justifiable homicide. La. R.S. 14:30.1
defines second degree murder as the killing of a human being when the offender:
1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the
perpetration or attempted perpetration of one of several enumerated felonies, even
though he has no intent to kill or inflict great bodily harm. State v. Lewis, 05-170
(La. App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ denied, 06-757 (La.
12/15/06), 944 So.2d 1277. The written jury charges instructed the jury regarding
specific intent manslaughter as well. 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.
Provocation shall not reduce a homicide to manslaughter if the jury finds that the
offender’s blood had actually cooled, or that even an average person’s blood would
have cooled, at the time the offense was committed. La. R.S. 14:31(A)(1).
Manslaughter is a responsive verdict for second degree murder. La. C.Cr.P. art.
814(A)(3).
When a defendant does not object to a legislatively responsive verdict, the
defendant’s conviction will not be reversed, whether or not that verdict is
supported by the evidence, as long as the evidence is sufficient to support the
offense charged. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 252 (La. 1982),
cert. denied sub nom. Elaire v. Blackburn, 461 U.S. 959, 103 S.Ct. 2432, 77
L.Ed.2d 1318 (1983); State v. Austin, 04-993 (La. App. 5 Cir. 3/1/05), 900 So.2d
22-KA-194 16 867, 878, writ denied, 05-830 (La. 11/28/05), 916 So.2d 143. Defendant did not
object to the responsive verdict of manslaughter at trial.
When a defendant in a homicide prosecution claims self-defense, the burden
is on the State to prove beyond a reasonable doubt that the defendant did not act in
self-defense. State v. Reed, 11-507 (La. App. 5 Cir. 2/14/12), 88 So.3d 601, 607,
writ denied, 12-644 (La. 9/14/12), 97 So.3d 1014. The relevant inquiry on appeal is
whether a rational fact-finder, after viewing the evidence in the light most
favorable to the prosecution, could have found, beyond a reasonable doubt, that the
homicide was not committed in self-defense. State v. Cassard, 01-931 (La. App. 5
Cir. 2/26/02), 811 So.2d 1071, 1076, writ denied, 02-917 (La. 12/19/02), 833 So.2d
327.
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). The fact that an offender’s conduct is justifiable,
although otherwise criminal, constitutes a defense to prosecution for any crime
based on that conduct. La. R.S. 14:18; State v. Sparkman, 13-640 (La. App. 5 Cir.
2/12/14), 136 So.3d 98, 106, writ denied, 14-477 (La. 11/26/14), 152 So.3d 897.
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. See La. R.S. 14:21;
State v. Howard, 15-473 (La. App. 5 Cir. 12/9/15), 182 So.3d 360, 363. 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. King, 11-767 (La.
22-KA-194 17 App. 5 Cir. 2/28/12), 88 So.3d 1147, 1153, writ denied, 12-660 (La. 9/14/12), 99
So.3d 35.
Other factors to consider in determining whether a defendant had a
reasonable belief that the killing was necessary include the excitement and
confusion of the situation, the possibility of using force or violence short of killing,
and the defendant’s knowledge of the assailant’s bad character. State v. Lensey,
50,242 (La. App. 2 Cir. 11/18/15), 182 So.3d 1059, 1062, writ denied, 15-2344
(La. 3/14/16), 189 So.3d 1066. 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. State v. Sinceno, 12-118 (La. App. 5
Cir. 7/31/12), 99 So.3d 712, 719, writ denied sub nom. State ex rel. Sinceno v.
State, 12-2024 (La. 1/25/13), 105 So.3d 713. The fact-finder determines whether
the State negated self-defense beyond a reasonable doubt. State v. Griffin, 14-450
(La. App. 5 Cir. 12/16/14), 167 So.3d 31, 38, writ denied, 15-148 (La. 11/20/15),
180 So.3d 315.
Defendant’s theory of self-defense was presented to the jury during the trial.
After listening to the testimony and considering the evidence, the jury rejected
defendant’s theory that the homicide in this case was justified and found defendant
guilty of the lesser offense of manslaughter. The fact-finder must make the
ultimate decision in determining whether a defendant proved his condition and
whether the State negated the defense beyond a reasonable doubt. State v. Hyman,
09-409 (La. App. 5 Cir. 2/9/10), 33 So.3d 271, 278, writ denied, 10-548 (La.
10/1/10), 45 So.3d 1094.
Viewing the evidence in the light most favorable to the prosecution, we find
that the record supports the jury’s conclusion that Defendant did not reasonably
believe his life to be imminent danger and that deadly force was necessary to
22-KA-194 18 prevent the danger. The testimony of the witnesses who knew both Defendant and
the victim was that they both continued to frequent the same bars and lounges.
Also witnesses opined that Mr. Brown wished to resolve their conflict by going
outside and “fighting it out like men.” No one overheard Mr. Brown threaten
Defendant’s life, as Defendant claimed. No witness saw Mr. Brown attempt to pull
out his pocketknife. Detectives investigating the crime confirmed that the
surveillance video showed that Mr. Brown did not have a weapon in his hand at the
time of the shooting, though a pocketknife was found in his pants pocket during the
autopsy. Defendant and Mr. Brown’s mutual friends were also actively trying to
de-escalate the conflict between the two men before the shooting. Thus, we find
that the State provided sufficient evidence under the Jackson standard for the jury
to find that it proved beyond a reasonable doubt that Defendant did not kill Mr.
Brown in self-defense.
Assignment of Error Two - Constitutionally Excessive Sentence
The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the
Louisiana Constitution prohibit the imposition of excessive punishment. State v.
Calloway, 19-335 (La. App. 5 Cir. 12/30/19), 286 So.3d 1275, 1279, writ denied,
20-266 (La. 7/24/20), 299 So.3d 69; State v. Nguyen, 06-969 (La. App. 5 Cir.
4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La. 12/7/07), 969 So.2d 628. A
sentence is considered excessive, even if it is within the statutory limits, if it is
grossly disproportionate to the severity of the offense or imposes needless and
purposeless pain and suffering. State v. Woods, 18-413 (La. App. 5 Cir. 12/19/18),
262 So.3d 455, 460; Nguyen, supra.
In reviewing a trial court’s sentencing discretion, three factors are
considered: 1) the nature of the crime; 2) the nature and background of the
offender; and 3) the sentence imposed for similar crimes by the same court and
other courts. Woods, supra; State v. Allen, 03-1205 (La. App. 5 Cir. 2/23/04), 868
22-KA-194 19 So.2d 877, 880. However, there is no requirement that specific matters be given
any particular weight at sentencing. Woods, 262 So.3d at 460-61.
According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside
a sentence for excessiveness if the record supports the sentence imposed. In
reviewing a sentence for excessiveness, the reviewing court shall consider the
crime and the punishment in light of the harm to society and gauge whether the
penalty is so disproportionate as to shock the court’s sense of justice, while
recognizing the trial court’s wide discretion. Calloway, supra; State v. Taylor, 06-
839 (La. App. 5 Cir. 3/13/07), 956 So.2d 25, 27 (citing State v. Lobato, 603 So.2d
739, 751 (La. 1992)). The relevant question on appeal is whether the trial court
abused its broad sentencing discretion not whether another sentence might have
been more appropriate. See State v. Dixon, 19-7 (La. App. 5 Cir. 12/30/19), 289
So.3d 170, 174, writ denied, 20-143 (La. 7/17/20), 298 So.3d 176.
As previously mentioned, Defendant only challenges the constitutional
excessiveness of his sentence for his manslaughter conviction, not his sentence for
the obstruction of justice conviction. Here, Defendant was originally charged with
second degree murder but was convicted by a jury of the lesser offense of
manslaughter. At the time of the offense, the penalty for manslaughter under La.
R.S. 14:31 provided in pertinent part, “[w]hoever commits manslaughter shall be
imprisoned at hard labor for not more than forty years.” The record reflects that at
the February 10, 2022 sentencing hearing, the trial court imposed a term of
imprisonment of thirty-five years at hard labor for his manslaughter conviction.
Therefore, Defendant’s thirty-five-year sentence is within the statutory range.
Prior to sentencing, the trial judge explained that he took into consideration
the pre-sentencing investigation report (PSI), the testimony from the witnesses,
Defendant’s statement, and the victim impact statement. The trial judge was
“struck by the fact that [Defendant] gave a very lengthy recorded statement to the
22-KA-194 20 police once he was brought back after being arrested by the U.S. Marshals in New
Jersey and never did express any kind of sympathy or remorse during that time.”
The judge also noted that prior to sentencing, he gave great consideration to the
PSI report, in which Defendant did not express remorse. Defendant argues that the
trial court improperly focused on the fact that he failed to show remorse in his
statement to the police. He maintains that the district court discounted his remorse
shown to the court at sentencing and the many positive changes and actions he has
made while incarcerated.
Although the district court stressed that Defendant did not show any remorse
for committing the instant offense in his statement to the detective, the record
reflects that the trial court also considered Defendant’s statement to the court at his
sentencing—where Defendant expressed his remorse. Nonetheless, a trial court is
not prohibited from considering a defendant’s lack of remorse See State v.
Bartholomew, 18-670 (La. App. 5 Cir. 10/23/19), 282 So.3d 374, 385, writ not
considered, 19-1869 (La. 1/28/20), 288 So.3d 123; State v. L.A.C., 07-1411 (La.
App. 3 Cir. 4/30/08), 982 So.2d 277, 279.
Finally, with respect to Defendant’s thirty-five-year sentence, the
jurisprudence reflects that comparable sentences have been imposed for
manslaughter convictions under similar circumstances. In Hyman, 45 So.3d at
1094, this Court found the trial court did not abuse its broad discretion in imposing
a forty-year sentence on the defendant who was initially charged with second
degree murder, but was ultimately convicted of manslaughter. At sentencing, the
trial court stated that the defendant, like Defendant in this case, created a risk to
more than one person by shooting the victim in the manner he did, and that any
lesser sentence would deprecate the seriousness of the offense. On appeal, we
found that the record revealed sufficient evidence to support a conviction for
second degree murder. Further, as in the instant case, the defendant in that case had
22-KA-194 21 an opportunity to withdraw from the confrontation, but chose not to, and the trial
court found that the defendant was not acting in self-defense.
Also, in State v. Pham, 12-635 (La. App. 5 Cir. 5/16/13), 119 So.3d
202, writ denied, 13-1398 (La. 12/6/13), 129 So.3d 531, the defendant was charged
with second degree murder and convicted of manslaughter. On appeal, the
defendant argued that his sentence of thirty-five years imprisonment for
manslaughter was excessive. Id. at 222. The trial court properly considered a
family member’s impact statement, the fact that the defendant was found guilty of
the responsive verdict of manslaughter, and the sentencing guidelines set forth
under La. C.Cr.P. art. 894.1. The trial court also stated that the offense was a crime
of violence committed with a dangerous weapon, where endangerment to human
life was foreseeable and from which the victim’s family suffered permanent injury.
The trial court considered the mitigating factors, including the defendant’s young
age and absence of a criminal record, but, based on the testimony presented at trial
which disproved the defendant’s theory of self-defense, found the crime to be
senseless. This Court found that the trial court did not err in denying the
defendant’s motion to reconsider sentence, finding that the sentence imposed for
the defendant’s manslaughter conviction was not constitutionally excessive. Id. at
225-27.
In State v. Parker, 54,190 (La. App. 2 Cir. 3/9/22), 335 So.3d 519, the
defendant was sentenced to thirty-six years imprisonment at hard labor after he
pled guilty to manslaughter. The defendant asserted that the trial court should have
considered that he was young and immature, he had only one misdemeanor
conviction, he had some work history, and he took responsibility for his actions. Id.
at 524. The second circuit found that given the heinous and senseless nature of the
violent offense, the defendant’s attempts to avoid responsibility for his actions, and
the benefit he received from his favorable plea agreement, the sentence was not
22-KA-194 22 grossly disproportionate to the seriousness of the offense, and it did not shock
one’s sense of justice. Id. at 526. In State v. Angelle, 13-508 (La. App. 3 Cir.
11/6/13), 124 So.3d 1247, writ denied, 13-2845 (La. 5/23/14), 140 So.3d 724, and
writ denied sub nom. State ex rel. Angelle v. State, 13-2892 (La. 8/25/14), 147
So.3d 693, the third circuit found that the maximum sentence of forty years
imprisonment imposed upon the defendant who pled guilty was not excessive. In
that case, the third circuit stated that while the defendant was a first-time offender
and expressed some remorse, the evidence indicated that the defendant walked into
a bar and killed the victim “in cold blood.” The third circuit found that evidence
was sufficient to support a conviction of second degree murder and the defendant
received the benefit of pleading to the reduced crime of manslaughter, thereby
avoiding the more severe penalty of life imprisonment without the benefit of
probation, parole, or suspension of sentence that comes with a second degree
murder conviction. Id. at 1252-53.
In this case, the evidence adduced at trial could have supported a second
degree murder conviction and the exposure to a mandatory life sentence under La.
R.S. 14:30.1. “In considering the nature of the offense, both the trial court and
reviewing court may assess whether the crime for which defendant has been
convicted adequately describes his conduct when the conviction is for a lesser
included responsive offense to the crime charged.” State v. Lewis, 09-1404 (La.
10/22/10), 48 So.3d 1073, 1078 (citing State v. Lanclos, 419 So.2d 475, 478 (La.
1982)). This general sentencing principle accommodates Louisiana’s responsive
verdict scheme which provides the fact-finder, ordinarily a jury in felony cases, the
discretion to return verdicts for lesser-included offenses against the weight of the
evidence presented at trial. Lewis, 48 So.3d at 1078 (citing State v. Porter, 93-1106
(La. 7/5/94), 639 So.2d 1137, 1140). Louisiana courts have found the fact that the
evidence might have supported a verdict of second degree murder is an appropriate
22-KA-194 23 sentencing consideration where the defendant has been convicted of a lesser
offense. See Lewis, supra; State v. Angelle, 124 So.3d at 1252.
After considering the seriousness of the crime committed in this case, for
which Defendant could have been convicted of second degree murder, we find the
thirty-five-year sentence imposed with respect to Defendant’s manslaughter
conviction is not constitutionally excessive. Therefore, we find that the district
court did not abuse its discretion in sentencing Defendant to thirty-five years
imprisonment for the crime of manslaughter.
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
(La. App. 5th Cir. 1990). The Uniform Commitment Order (“UCO”) states that
Defendant was charged with manslaughter on count one. However, the transcript
reflects that Defendant was charged with second degree murder in violation of La.
R.S. 14:30.1 and was found guilty of the lesser offense of manslaughter in
violation of La. R.S. 14:31. Accordingly, we remand this matter for correction of
the UCO and direct the Clerk of Court for the 24th Judicial District Court to
transmit the original of the corrected UCO to the appropriate authorities and the
Department of Corrections’ legal department. See State v. Ramos, 20-239 (La. App.
5 Cir. 1/27/21), 310 So.3d 826.
Also, the sentencing minute entry indicates that Defendant was advised that
he had “two (2) years after judgment of conviction and sentence has become final
to seek post-conviction relief.” However, a review of the transcript of the
proceedings on February 10, 2022, reveals that the trial judge did not advise
Defendant of the prescriptive period for filing post-conviction relief after his
sentencing. The transcript generally prevails. State v. Lynch, 441 So.2d 732, 734
(La. 1983).
22-KA-194 24 If the 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. See State v. Perez, 17-119 (La. App. 5 Cir. 8/30/17), 227 So.3d 864,
870. Therefore, we advise Defendant that no application for post-conviction relief,
including applications that seek an out-of-time appeal, shall be considered if it is
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.
DECREE
Considering the foregoing, Defendant’s conviction of manslaughter in
violation of La. R.S. 14:31 and sentence of thirty-five years imprisonment are
affirmed. The matter is remanded for correction of the UCO as directed by this
opinion.
AFFIRMED; REMANDED FOR CORRECTION OF UCO
22-KA-194 25 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. 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 DECEMBER 28, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KA-194 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE) ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE) JANE L. BEEBE (APPELLANT)
MAILED BRITTANY BECKNER (APPELLEE) HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY BRITTANY BECKNER (APPELLEE) ASSISTANT DISTRICT ATTORNEY TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053