State v. Revish

185 So. 3d 8, 2015 WL 7008188
CourtLouisiana Court of Appeal
DecidedNovember 9, 2015
DocketNos. 2015 KA 0470, 2015 KA 0471
StatusPublished
Cited by9 cases

This text of 185 So. 3d 8 (State v. Revish) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Revish, 185 So. 3d 8, 2015 WL 7008188 (La. Ct. App. 2015).

Opinions

CHUTZ, J.

| ¡¿Defendant, Nicholas Revish, was charged by grand jury indictment with second degree murder, a violation' of La. R.S. 14:30.1 (count one), and attempted second degree murder, a violation of .La. R.S. 14:27 and 14:30.1 (count two). He pled not guilty. Following a jury trial, defendant was found guilty as charged on both counts. On count one, the trial court sentenced defendant to the mandatory term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. On count two, the trial cpurt sentenced defendant to twenty-five years at hard labor, to run concurrently with the ..sentence on count one. Defendant now appeals, alleging in his sole assignment of error that the trial court improperly instructed the jury regarding his claim -of self-defense and that his trial counsel was ineffective for failing to object to this instruction. For the following reasons, we vacate defendant’s - convictions and sentences and remand for a new trial.

FACTS

Around 9:00 p.m. on March 26, 2012, Jamond Rougeau and Latrell Davis were riding around the Sherwood Forest area of Baton Rouge in Rougeau’s vehicle. Davis directed Rougeau to pick up defendant from a nearby Jack in the Box restaurant. Rougeau complied, and the three men continued to ride around the area together. At some point, Rougeau pulled his vehicle onto a side street, potentially because of car trouble. Shortly after Rougeau pulled his vehicle onto this street, defendant shot both Rougeau and Davis. Rougeau called 911 and, while talking to the operator, drove his car to his aunt’s home on Gerald Street. Rougeau ultimately survived his injuries, but Davis died as a result of having been shot twice in the back of the head. Rougeau later identified defendant in a photographic lineup as the individual who had shot him and Davis.

| ^IMPROPER JURY ■■INSTRUCTION/INEFFECTIVE- " ASSISTANCE

In his sole assignment of error, defendant asserts that the trial court erred in improperly instructing the jury that self-defense was not available as a defense if the jury determined that the homicide occurred as a result of drug activity. Because his trial counsel did not object to this instruction, defendant contends that counsel’s performance was ineffective to the -point that it prejudiced his ability to have a fair trial.

[11]*11Following closing arguments, the trial court instructed the jury with regard to defendant’s claim of self-defense as follows:

The defendant in this case has raised the claim of self-defense. The law recognizes the right of an individual to use force or violence against another when used in self-defense. If you find that the defendant committed a homicide, you must consider whether or not his actions were justified.
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Thus, if you find that the defendant killed in self-defense; and that the defendant believed that he was.in imminent danger of losing.his life or receiving great bodily harm; and that he believed the killing was, necessary to save himself from that danger; and the defendant’s beliefs, were reasonable in light of the circumstances; then you must find the defendant not guilty.
A defendant who raises the defense that he acted in self-defense does not have to prove that he acted in self-defense. The [Sjtate must prove beyond a reasonable doubt that the homicide was not committed in self-defense.
Self-defense shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous, Substances Law.

We note that the jury was not given a separate instruction regarding a claim of self-defense with respect to defendant’s non-homicide offense of attempted second degree murder. An instruction with respect to that offense should have been given in accordance with the provisions of La. R.S. 14:19. Defendant has not explicitly complained of the lack of a self-defense instruction regarding his attempted second [¿degree murder conviction. However, the substance of defendant’s argument regarding the second degree murder self-defense instruction also applies to the self-defense instruction-that should have been given for the charge. of attempted second degree murder. See La. R.S. 14:19(A). Because the trial court gave only a single, deficient instruction regarding self-defense .in this case, we treat defendant’s assignment of error as raising an issue with both convictions..

As defendant points out, defense counsel did not object to this jury charge. Nor did defense counsel object to the State’s per-emptive references to this jury charge during closing arguments. Normally, such failure to object.would preclude consideration on appeal of arguments challenging the giving of this jury charge. See La. C.Cr.P. art. 801(C) and 841(A). However, defendant also contends that his counsel was ineffective for failing to object to the sécond part of this- instruction, which restricts a claim of self-defense for an individual involved in drug activity.

A claim of ineffective assistance of counsel is generally relegated to postcon-viction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192 (La.9/6/00), 776 So.2d 396, 411, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001). A claim of- ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney’s performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel [12]*12guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense.' This element requires a showing that the errors were so serious that the defendant was deprived-of a fair trial; the defendant must prove actual prejudice before relief will be granted. It is not sufficient for defendant to |fishow that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that but for his counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 859-60 (La.App. 1st Cir.1992), writ denied 614 So.2d 1263 (La.1993).

In the, instant case,, despite the, State’s contention to the contrary, the record permits definitive resolution of defendant’s ineffective assistance claim on appeal. Therefore, we address the merits of defendant’s claim. See State v. Cooper, 2005-2070 (La.App. 1st. Cir.5/5/06), 935 So.2d 194, 199, writ denied, 2006-1314 (La.11/22/06), 942 So.2d 554.

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Bluebook (online)
185 So. 3d 8, 2015 WL 7008188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-revish-lactapp-2015.