State v. Thomas

665 So. 2d 629, 1995 WL 713745
Louisiana Court of Appeal·Decided December 6, 1995·No. 27507-KA·Published·Cited by 13 cases

Opinion

665 So.2d 629 (1995)

STATE of Louisiana, Appellee,
v.
Eric Jerome THOMAS, Appellant.

No. 27507-KA.

Court of Appeal of Louisiana, Second Circuit.

December 6, 1995.

*630 Allan R. Harris, Assistant Indigent Defender, Shreveport, for Appellant.

Richard Ieyoub, Attorney General, Baton Rouge, Paul Carmouche, District Attorney, Catherine M. Estopinal, Assistant District Attorney, Shreveport, for Appellee.

Before NORRIS, BROWN and WILLIAMS, JJ.

BROWN, Judge.

Defendant, Eric Jerome Thomas, appeals his convictions for second degree murder and attempted second degree murder. His appeal is founded on the failure of the trial court to charge the jury that the state had the burden of proving beyond a reasonable doubt that the homicide was without justification. Defendant, who neither requested such a charge nor objected to the instructions given by the trial court, claims that the omission resulted in a trial lacking minimum standards of fairness and due process. We affirm.

FACTS

Defendant and two companions, Timothy Collins and his brother, Ricky Collins, spent the evening of March 19, 1993, at the apartment of Timothy's girlfriend, Tawana Thomas. At the apartment that evening, Tawana's roommate, Rasheena Olds, received a telephone call from her boyfriend, Terry Smith. Ms. Olds argued with Smith. Following the telephone conversation, Ms. Olds left with some friends. Shortly thereafter, Smith arrived at the apartment in a rage and demanded to be told of Ms. Olds' whereabouts. Unsatisfied with the answers given, Smith began to overturn furniture, speak loudly and make threats against Ms. Olds. When a neighbor stated that the police had been called, Smith, defendant and the two Collins brothers decided to leave.

It was raining and Timothy Collins asked Smith, who was driving a two-door, late model Cadillac, for a ride. Defendant slipped into the backseat behind Smith. Ricky and Timothy Collins occupied the passenger-side front and rear seats respectively. During the drive, Smith continued to express anger toward Ms. Olds and remarked that he had made a fool of himself at the apartment. While Smith was talking, Timothy Collins noticed defendant adjusting the waistband of his pants, revealing a small .38 caliber revolver. Alarmed, Timothy Collins touched defendant's arm; however, defendant pushed Collins' hand away. At Collins' request, Smith stopped near their home. Smith leaned forward, allowed defendant to exit the backseat and then shut the door. Ricky Collins leaned forward to let his brother Timothy out. As Ricky was getting out, he looked over the top of the car and saw defendant fire multiple shots at point-blank range toward Smith's head. One shot passed through Ricky's pants and grazed his leg. Timothy saw defendant shoot into the car, then open the driver-side door and drag Smith into the street. Defendant drove Smith's car away from the scene.

Defendant abandoned the car not far from the scene of the shooting and threw his weapon into a nearby ditch. A passing motorist found Smith's body in the street and notified police. Before the police arrived, the body was run over by another vehicle. An autopsy, however, confirmed that the victim was shot three times in the head at point-blank range and that this was the cause of death. After reaching his house, Ricky Collins realized that he had been shot in the leg. He was later treated at a hospital and released.

At the insistence of his parents, defendant, who was 19 years old, turned himself in and confessed to the shooting. He later assisted the police in recovering the discarded weapon. Tests confirmed that the shots that killed Smith were fired from defendant's gun. Defendant was indicted for the second degree *631 murder of Terry Smith, age 22, and attempted second degree murder of Ricky Collins, age 19.

Defendant pled not guilty to the charges. In his opening statement, defense counsel conceded that defendant did the shooting, but suggested that the facts and circumstances proved only manslaughter and attempted manslaughter. Defendant later testified that while riding in the Cadillac, Smith kept looking back at defendant and remarked several times that they (defendant and the Collins brothers) knew where Ms. Olds was and that they should tell. After getting out of the car, defendant stated that he drew his weapon and fired because of suggestive hand movements by Smith. Defendant claimed that he had been shot on two previous occasions when he was unarmed and that he was having flashbacks. On cross examination, the state attacked defendant's assertion of self defense by establishing that the car door was shut, that defendant saw no weapon and that he could have easily left. In closing arguments, defense counsel made no reference to the self-defense theory offered by defendant's testimony, but instead continued to argue that defendant was only guilty of the lesser offense of manslaughter.

Defendant did not request any special jury instructions. Jury instructions were given by the trial judge without objection from either the prosecution or defense counsel. The jury charges did not include specific instructions regarding justification or the state's burden to disprove self-defense. The jury returned a guilty verdict on both charges and defendant was given consecutive hard labor sentences of life imprisonment and 15 years. A timely motion to reconsider these sentences was filed and subsequently denied. This appeal followed.

DISCUSSION

If a defendant asserts that he acted in self-defense, he does not bear the burden of proof on that issue. Because the state must show a criminal homicide, the prosecution carries the burden of proving beyond a reasonable doubt that the accused did not act in self-defense or with justification. State v. Brown, 414 So.2d 726 (La.1982); State v. Collins, 306 So.2d 662 (La.1975); State v. Patterson, 295 So.2d 792 (La.1974).

Review of criminal trial errors on appeal has long been governed by the contemporaneous objection rule found in LSA-C.Cr.P. Art. 841:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.

More particularly, LSA-C.Cr.P. Art. 801 dictates the necessity of a timely objection to an omitted jury instruction:

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error.

Recognizing his failure to request specific charges or object to the instructions given, defendant nonetheless argues that the omission of a jury charge concerning justifiable homicide and the state's burden to disprove self-defense resulted in a trial that fell short of the minimum standards of fairness and due process. Defendant claims that this was plain error of constitutional magnitude and, as such, reviewable even in the absence of a contemporaneous objection.

The contemporaneous objection rule serves two related purposes. The first prevents a defendant from withholding an objection or alternative theory of defense to urge for the first time on appeal in the event of a conviction. In fairness, a defendant cannot simply watch the proceedings unfold and silently hope the trial court will commit error. Nor can a defendant adopt, as a matter of strategy, one approach at trial, and then, if that approach fails, argue a contrary or novel view on appeal. The second purpose is the promotion of judicial efficiency. State v. Mart,

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State v. Thomas, 665 So. 2d 629, 1995 WL 713745 (La. Ct. App. 1995).

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