State v. Allen
Opinion
Defendant was charged with second degree murder in violation of La.R.S. 14:30.1. After trial by jury, defendant was convict[738]*738ed of manslaughter and sentenced to eighteen years at hard labor. La.R.S. 14:31.1 Defendant appealed assigning two errors.
We affirm.
ASSIGNMENT OF ERROR NUMBER ONE
Defendant’s first assignment of error is the denial of his motion for a post-verdict judgment of acquittal under La.C. Cr.P. art. 821,2 based on the State’s failure to disprove his plea of self-defense. When a defendant in a homicide prosecution asserts self-defense the State has the affirmative burden to prove beyond a reasonable doubt that the homicide was feloniously committed and was not perpetrated in self-defense. State v. Patterson, 295 So.2d 792 (La.1974); State v. Pittman, 428 So.2d 979 (La.App. 1st Cir.1983).
Review of this issue is governed by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). An appellate court must determine, after viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Savoy, 418 So.2d 547 (La.1982).
An argument between the defendant and the victim, Mack Terrell, in a local club moved outside where Terrell fired two shots toward the defendant at close range. Terrell put his gun in his back pocket or down by his side, turned away from the defendant and started to walk back inside the club. Defendant crept up behind Terrell and grabbed the gun. When Terrell turned around defendant took a swing at him. Defendant had a knife in his hand. A fight ensued and Terrell was fatally stabbed.
The State’s evidence presents a strong showing that defendant’s action of creeping up behind Terrell was not necessary to prevent loss of life or great bodily harm. The victim may have provoked the defendant, but Terrell had put his gun away and his back was turned when the defendant went after him. Under the circumstances, the force used by the defend[739]*739ant was unwarranted by the alleged provocation. We agree that defendant’s actions were not in self-defense within the meaning of La.R.S. 14:20.3
Defendant’s first assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
Defendant alleges in his second assignment of error that his sentence of eighteen years was cruel, excessive and unusual punishment in violation of the United States and Louisiana Constitutions. Defendant alleges that the trial judge failed to give any reason for the eighteen-year sentence which was completely disproportionate to the offense. The maximum sentence that could have been imposed under La.R.S. 14:31 was twenty-one years.
State v. Sepulvado, 367 So.2d 762 (La.1979), held that a sentence, although within statutory limits, may still violate a defendant’s constitutional right against excessive punishment. La.Const. Art. 1, § 20.4
La.C.Cr.P. art. 894.1 provides the sentencing criteria by which to measure whether a sentence within statutory limits is nevertheless excessive.5 The article requires the trial judge fully to articulate his reasons for imposing sentence, enabling an appellate court competent review.
The trial judge complied with article 894.1 stating for the record the reasons and [740]*740factual basis for the sentence imposed. The focus of review is whether the trial judge abused his wide discretion, considering the circumstances of the crime, the character of the defendant and the trial court’s reasons for sentencing. State v. Tompkins, 429 So.2d 1385 (La.1983).
In looking at the factors favoring imprisonment, the trial judge noted that, at the time of the offense, defendant was on probation. He believed that if defendant’s sentence were suspended there would be an undue risk that he would commit other crimes. The defendant’s need for correctional treatment or custodial environment was provided most effectively by defendant’s commitment to an institution. A lesser sentence would deprecate the seriousness of the crime of manslaughter.
The judge found that some mitigating factors existed, including possible provocation by the victim. However, the judge noted that defendant had a history of alcohol and drug abuse which resulted in convictions for possession of a controlled dangerous substance, DWI, disturbing the peace, damage to property and the present conviction for manslaughter. Defendant had shown no positive response to probationary treatment and it was not unlikely he would commit another crime.
Under the circumstances and considering the seriousness of the crime, the trial judge believed that an eighteen-year sentence was appropriate. We do not find an abuse of his large discretion.
For the foregoing reasons, defendant’s conviction and sentence are affirmed.
AFFIRMED.
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442 So. 2d 737 (State v. Allen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.