text:
    STATE of Louisiana, Appellee v. Jywone Latress SMITH, Appellant.
    No. 41,048-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 30, 2006.

      John Cucci, Jr., Shreveport, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Melissa Sugar, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS, and LOLLEY, JJ.
   BROWN, Chief Judge.

| íDefendant, Jywone Latress Smith, was convicted by a jury of the second degree murder of her husband, Billy Ray Smith, and sentenced to life imprisonment at hard labor without benefit. Defendant has appealed her conviction. Finding no error, we affirm defendant’s conviction and sentence.

Facts

Between the hours of 6:00 and 7:00 a.m. on October 28, 2002, defendant, Jywone Latress Smith, stabbed her husband, Billy Ray Smith, while he was seated on the couch in their apartment living room. Yvonne Woods, a neighbor, overheard defendant screaming at Billy around 6:30 a.m., “Get out of my house, ... get the f — out of my house,” which is when Ms. Woods got her kids up to get ready for school. Ms. Woods testified that a few minutes later, defendant’s two sons ran to the Woods home and told her that “Mamma stabbed my daddy,” before showing her what size knife she used. Ms. Woods related that the children told her that their parents had not been fighting prior to the stabbing, that “Daddy didn’t do anything, mama just stabbed him.”

Several neighbors, including Jamilla Ed-monds who has a son by defendant’s brother, went to defendant’s apartment upon hearing screaming and yelling early that morning. Ms. Edmonds testified that she was the first person to go into the Smiths’ apartment to help. She had heard defendant screaming and overheard her tell someone on the telephone that “you better come get your mother fucker son before I kill his ass.” As she stood outside, defendant’s two young sons came running out of them apartment 1 ¿yelling, “Help, help, mama stabbed him.” Defendant came outside and saw Ms. Edmonds and asked for help, and that’s when she went inside the Smith home. Defendant got on the floor between Billy’s legs with her hand against the cut on his neck. Ms. Edmonds saw two long-handled knives on the floor by defendant. There was blood all over Billy’s shirt and on the back of the couch. Ms. Edmonds stated that she picked up the knives and put them on the counter. She then called 9-1-1 at defendant’s request, although defendant took the phone away from her and disconnected the call seconds later. Ms. Edmonds testified that when the phone rang subsequently, defendant instructed her not to answer it. Ms. Edmonds stayed in the apartment about 30 minutes and Billy was still breathing, although defendant told her he was already dead. Defendant wouldn’t let anyone help and she refused to get off the victim.

Janis Clark, another neighbor, testified that she was one of the neighbors who called Ms. Hall about the yelling she heard coming from the Smith apartment. Ms. Clark heard a female, not a male, voice screaming. Ms. Clark found money wadded up and thrown in the doorway of defendant’s apartment. She put this money in the drawer when defendant told her to do so. Several of the neighbors testified that defendant refused to move her hand from Billy’s wound when they offered assistance in applying pressure.

Linda Boult testified that she heard someone screaming and going on when she woke up that morning. Ms. Boult stated that she always wakes up around 5:30 a.m. to get her nine children up and ready for school. She |,-¡could still hear screaming an hour later, so she went to defendant’s apartment to see if she could help. Ms. Boult told defendant she was a CPR instructor and asked if she could help. Defendant wouldn’t move because she was afraid Billy would bleed more. Defendant told Ms. Boult that she and her husband had been fighting and that she had stabbed him. Defendant told her not to call 9-1-1 because she had already called them three times. Five minutes later, when the police arrived, Ms. Boult left. She testified that had defendant let her help, she feels certain they could have slowed down the blood flow from Billy’s wound.

Ernestine Hall testified that she is the property manager for Chateau Apartments and another property in Shreveport. Ms. Hall stated that she lives in apartment 605, which is in the same building as defendant’s apartment. Around 6:30 or 6:45 a.m. on October 28, 2002, someone called in with a noise complaint about defendant’s apartment. Ms. Hall testified that she walked downstairs and found the door open, so she went inside. She saw Billy sitting on the couch with his head back. Defendant was on her knees in front of Billy and defendant told her, “Ms. Hall, I didn’t mean to do it. He and I got into it.” The telephone kept ringing but no one answered it. Ms. Hall asked about the children and started walking down the hall to get the baby. She answered the telephone and a young man asked her whether his brother was all right. Ms. Hall told the caller to get over to the apartment right away because at that time, she didn’t know what had happened or whether Billy was dead or alive. She was still in the apartment, having found the baby in the third bedroom, when the police got there. |/They got everybody out of the apartment because it was a crime scene. The police later brought her the baby and she took her to Ms. Woods’ apartment, where the other children were.

Darla McDonald, a dispatcher with the Bossier Parish 9-1-1 service, stated that on October 28, 2002, she received a “hang up call” at 6:40 or 6:45 a.m. Ms. McDonald stated that she dialed the calling number but got a busy signal. Ms. McDonald then received another call from the same number; the caller related, “I stabbed him, I stabbed my husband.” Other calls came through requesting assistance at the calling address and Ms. McDonald forwarded the information to the Bossier City Police Department.

Bossier City Police Department Patrol Officer Michael Williams testified that he responded to the call almost immediately, as he was in the area, and defendant told him that she “didn’t mean to” stab her husband, “don’t let' him die.” Officer Williams stated that defendant explained that the two had been fighting, and that “the knife that she had fell into his neck during the fight.” Officer Williams, however, observed that nothing had been disturbed in the apartment and there were no signs that a struggle had occurred.

The victim was transported to LSU Health Sciences Center and Dr. Lou Smith, a general surgeon, testified that Billy survived surgery, but died while still in the operating room. Dr. Smith stated that any delay in calling 9-1-1 or “getting to medical care” would have reduced the victim’s chance of survival. Dr. Cameron Francis Snider, a forensic pathologist, testified | fithat he conducted the autopsy and concluded that the victim died from a single stab wound to the shoulder and neck. He stated that the stab wound was approximately four inches deep and that considerable force would have been necessary to inflict the wound. Dr. Snider testified that a “falling knife” could not have caused the injury.and that both the victim and the defendant would have been aware that the stabbing had occurred. It was Dr. Snider’s opinion that the stabbing was not accidental. Dr. Snider testified that defendant had defensive wounds on his calves. According to Dr. Snider, there were no traces of alcohol in the victim’s liver, but traces of cocaine present indicated that the victim had ingested the drug “earlier in the day, hours before” death. Dr. Snider testified that applying simple pressure to the wound would not have stopped the bleeding because the conjunction of two arteries was severed.

Detective Daryl Worley testified that he read defendant her Miranda rights which she waived prior to any statements. Detective Worley also stated that defendant signed a written waiver. Detective Jeff Cole testified that when he arrived at the scene, Billy Smith had already been transported to the hospital. He left Sergeant Smith processing the crime scene and went back to the police department to interview defendant. At that time, defendant stated that the victim “had been out all night” and had just arrived home around 6:00 aim. When Billy came in the door, they began arguing. Defendant told Detective Cole that she armed herself with a knife and called Billy’s mother to come and pick him up. Defendant stated that Billy was mad because she had disrespected his mother by cursing at her on the phone 1 fiand he grabbed her by the throat while he was sitting on the couch. The two struggled and she did not realize that she had stabbed him. Defendant related that it “just looked like a little biddy (sic) cut” but all of a sudden it began to bleed. Detective Cole testified that defendant told officers at one point it had been an accident at another point that the “knife just fell out of her hand and fell in and cut him.” Defendant told Detective Cole that it had not been self-defense and that she “knows all about self-defense” because she had shot a boyfriend before and that had been ruled a justifiable shooting, done in self-defense. Detective Cole learned that the victim had passed away and he and Captain Lott, who is also a pastor, notified defendant. Although defendant sobbed and yelled, she never cried any tears. Defendant then told the officers that she did not remember stabbing the victim and that she did not stab him. Detective Cole stated that while she was saying that she did not stab Billy Smith, defendant made repeated stabbing motions with her hand. Defendant reasoned that the wound could have been inflicted when the victim grabbed her. Detective Cole stated that there were four different stories told by defendant about the event.

At trial, there was testimony that officers on the scene had to restrain the victim’s brother, Patrick Smith. The victim’s mother, Patricia Smith, had sent Patrick to his brother’s apartment because defendant had called Mrs. Williams before Billy had gotten home that morning relating that he had stayed out all night and threatening to stab him in “his goddamned face” when he got to the couple’s apartment. Mrs. Williams testified that she sent 17Patrick to his brother’s house because she “felt like something was going to happen.”

Patrick Smith testified that his mother woke him up the morning of October 28, 2002, and told him he had to get to Bossier quickly because she had just got a phone call in which “this girl” [defendant] was talking about stabbing Billy and his mother wanted him to go pick up his brother. Patrick stated that he got dressed in a hurry, got his keys, cell phone, and wallet, and drove off in his car.

According to Mrs. Williams, after Patrick left, she called defendant and asked whether Billy had made it home. Upon learning that he was home, Mrs. Williams asked to speak to her son and when he came to the phone, she told him about defendant’s prior phone call and threat to stab him. Mrs. Williams urged her son to get out of the house and told him that Patrick was on his way to get him. Mrs. Williams could hear Billy asking defendant, “Why you doing me like this?” as he agreed to leave the apartment and wait for his brother.

Patrick testified that he made several phone calls to Billy’s house before he finally got an answer. Some unidentified female told him he needed to get over there immediately. Patrick stated that he drove as fast as he could and when he got to Billy’s, he was restrained by the officers, He was placed in the back of a police car and one of the officers told him that his brother had been stabbed, but was fine at that time. The officer called his mother and Patrick gave a statement to the officer and “that was pretty |smuch it.” The officers let him out of the car and he and his mother went to the hospital.

Defendant testified that Billy arrived home the morning of October 28, 2002, after she called his mother once. Defendant asked Billy to give back the money she had given him to pay bills and when he gave it to her, she threw it back at him because it was in smaller bills than she had given him. Defendant called Billy’s mother a second time and this made him angry. Defendant told Mrs. Williams to “come over and get him because if he put his hands on her” she was “going to cut him with that knife.” According to defendant, the victim was cut while they were “wrestling.”

Defendant and Billy Smith were married less than a year. As part of her defense, several witnesses testified that the relationship had been abusive. Bernadette Tucker, who worked with both defendant and Billy at the Hollywood Casino, stated that she had seen defendant come to work with scratches or bruises on her neck and back and on several occasions Billy had arrived smelling of alcohol. Ms. Tucker testified that she thought that Billy was abusive, controlling, and possessive of defendant. Ms. Tucker related that it made Billy angry when she and defendant went out to a club, so they didn’t go places together outside of work.

Tiki Lashoan Wilson, another coworker, testified that the victim had drinking problems and was abusive to defendant. Ms. Wilson stated that Billy once threatened to put out a cigarette in his pregnant wife’s eye at her own baby shower. Ms. Wilson also testified that she had seen bruises and | scratches on defendant’s face and arms and heard Billy verbally abuse defendant while on the phone with her.

LaShawn Marshall, another coworker, testified that she witnessed Billy abusing defendant at work, including slapping her face with a handful of shaving cream, pushing her down on a bed in one of the guest rooms, and attempting to push a laundry cart into her. Ms. Marshall also stated that she picked defendant up one day after she and Billy were first married. Defendant ran to Ms. Marshall’s car and told her they had to leave because Billy had a gun.

Defendant testified that the abuse started after their wedding, including a threat to shoot at a car she was riding in as she left to go to a party on New Year’s Eve, an incident in which Billy pushed defendant “into the shower,” an occasion when he slapped her with shaving cream while they were arguing at work, several fights in which he choked and punched her, one occasion when he tied her hands up and tried to drown her in the bathtub, and once when he threatened to “target practice” with her while holding a gun. Defendant stated that he also threw bleach on her once. She noted that Billy’s mother and brother Patrick came over several times to calm down Billy and protect her. The police were called twice because of the abuse, and Billy was arrested once and charged with simple battery. According to defendant, on several occasions Billy told her and his mother that he would kill defendant if she ever left him.

Defendant’s aunt, Lalisa Francis, testified that while helping clean up the apartment after the shooting, she found a gun and a box of bullets linbeneath the couch that Billy had been sitting on. Ms. Francis stated that defendant had told her that she did not know the gun was there at the time of the stabbing.

Kenny Russell, defendant’s former boyfriend, testified about being shot in the back by defendant on June 11, 2001. While no charges were filed against defendant, Russell was charged with aggravated battery for the altercation in which he had a “mop stick;” this fight occurred just pri- or to the shooting. Russell noted, however, that the charges against him were dropped.

The jury’s verdict was unanimous and defendant was convicted of second degree murder. Thereafter, she was sentenced to life imprisonment at hard labor without benefit. She has appealed her conviction.

Discussion

According to defendant, the state failed to prove each element of second degree murder and to show that the killing was not done in self-defense in light of “a mass of credible evidence” that the victim had abused and threatened her in the past.

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Ellis, 28,282 (La.App. 2d Cir.06/26/96), 677 So.2d 617, writ denied, 96-1991 (La.02/21/97), 688 So.2d 521. As a state of mind, | n specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. State v. Kahey, 436 So.2d 475 (La.1983); State v. Murray, 36,137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, writ denied, 02-2634 (La.09/05/03), 852 So.2d 1020. The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982).

Under La. R.S. 14:20(1), a homicide is justifiable when committed in self-defense by one who reasonably believes she is in imminent danger of being killed or receiving great bodily harm and that the homicide is necessary to save herself from danger. When self-defense is raised as an issues by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State ex rel. D.P.B., 02-1742 (La.05/20/03), 846 So.2d 753; State v. Gaddis, 36,661 (La.App. 2d Cir.03/14/03), 839 So.2d 1258, writ denied, 03-1275 (La.05/14/04), 872 So.2d 519, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487 (2005). When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La.1985).

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the | ^.evidence. State v. Allen, 36,180 (La.App. 2d Cir.09/18/02), 828 So.2d 622, writs denied, 02-2595 (La.03/28/03), 840 So.2d 566, 02-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

The state proved that the victim died of a four inch deep stab wound to the shoulder and neck. Dr. Snider, the forensic pathologist who conducted the autopsy testified that considerable force would have been necessary to inflict the fatal wound. Dr. Smith, the coroner, testified that the wound could not have been caused by a falling knife. A neighbor testified that defendant’s young sons ran screaming from their apartment and told her that, “Mamma stabbed my daddy.” The children also related that their parents had not been fighting. The 9-1-1 operator testified that during a call from the apartment, a woman stated that she had stabbed a man. Billy Smith’s mother testified that defendant had called her early on the morning of October 28, 2002, and threatened to stab Billy in his “goddamned face.”

Several witnesses testified that there were no signs of struggle in the apartment nor were there visible signs of abuse to support defendant’s claim of self defense. Through her own testimony, defendant tried to show that she armed herself in self defense, but that the stabbing was accidental. This theory was weakened by defendant’s statement to the police that she had not acted in self defense. She explained to the officer that she understood the concept of self defense because in the past she had not been charged or prosecuted after she shot a former boyfriend in the back.

haViewing the evidence presented in the light most favorable to the prosecution, a rational trier of fact could have found that the state proved the elements of second degree murder and that homicide was not committed in self defense beyond a reasonable doubt. This assignment of error is without merit.

Other Crimes Evidence

According to defendant, the trial court erred in allowing the state to present evidence that she had shot a former boyfriend after he had burglarized her home. Defendant claims that the state failed to “establish the reliability” of the prior act and failed to show that evidence of this prior act was used to prove “system or intent.” It is defendant’s position that the only function of this evidence was to show bad character.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that the prosecution provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B). For evidence of other crimes to be admissible, the state must prove with clear and convincing evidence that the other acts or crimes occurred and were committed by the defendant; demonstrate that the other acts satisfy one of the requirements of La. C.E. |uart. 404(B); and show that the probative value of the evidence outweighs its prejudicial effect. State v. Jackson, 625 So.2d 146 (La.1993).

A trial court’s ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Butler, 30,798 (La.App. 2d Cir.06/24/98), 714 So.2d 877, writ denied, 98-2217 (La.01/08/99), 734 So.2d 1222.

In the instant case, the state filed a notice of intent to offer evidence of other crimes and offenses regarding two of defendant’s former paramours, Kenny Russell and Leon Lewis. A hearing was held on April 19, 2004.

At that hearing, Shreveport Police Officer Paul Robinson testified that defendant shot Kenny Russell, a former boyfriend, in the back on June 11, 2001. Defendant told police officers that Russell kicked down her apartment door and beat her with a mop handle. Defendant related that she attempted to shoot him but could not release the gun’s safety. She realized how to deactivate the safety after several attempts, pursued Russell as or after (specific time unknown) he left the apartment, and shot him in the back. Defendant told police that she had fired the shot to “scare” Russell, indicating that the actual wounding was accidental. Officer Robinson stated that he observed no bruises, cuts, or signs of battery upon defendant. Kenny Russell survived his wound and refused to cooperate in prosecuting defendant. He was arrested and charged in accordance with the Domestic Violence Act.

| ^Detective Jeff Cole, also testified at this hearing. He interviewed defendant at the police station, and she stated that she did not stab Billy Ray Smith in self defense. Defendant told police that she knew what self defense was because of the prior incident involving Kenny Russell. Detective Cole also testified that he learned that defendant had stabbed the father of at least one of her children, a man named Leon Lewis. Detective Cole testified that Lewis, who was “well known” to local law enforcement agencies, refused to make a statement or cooperate, although he did admit that he had been stabbed.

On May 4, 2004, the trial court issued a written ruling on the admissibility of the other crimes evidence sought to be introduced by the state. The trial court found the “evidence concerning the Russell shooting to be relevant and admissible in the instant case,” as it went to intent, knowledge, and absence of mistake or accident. However, the trial court ruled that any information about an incident in which defendant allegedly stabbed Leon Lewis was inadmissible because of lack of details. According to the court, allowing evidence of this second incident would simply be allowing the state to admit evidence of defendant’s bad character.

Kenny Russell testified at defendant’s trial. Russell stated that he had a previous romantic relationship with defendant. While he was living with her in an apartment, they got into an argument because he had stayed out late drinking with some friends. Russell related that he left the apartment, but came back to use the phone to get a ride. Defendant would not let him in the house so he kicked in the door or “bumped it” with his shoulder. |1(iRussell admitted that he threw a mop and cursed at her, but testified that defendant had the gun in her hand when he did so. As he was “going out the door” of the apartment he heard “a gun go off.” Russell testified that defendant shot him in the back. Russell was charged with aggravated battery and defendant was not charged. During her testimony, defendant stated that Russell kicked in the door of the apartment and beat her with a “mop stick.” According to defendant, she shot Russell while he was still in her apartment.

Contrary to defendant’s assertion, there is very little evidence which would establish that Kenny Russell was shot after he had burglarized her home. Instead, the evidence showed that, at the time of their altercation, defendant and Russell were cohabitating. The trial court did not err in admitting evidence as to Kenny Russell while excluding the evidence concerning Leon Lewis. This evidence was probative to show intent, knowledge, and absence of mistake or accident. Both the stabbing of Billy Ray Smith and the shooting of Kenny Russell occurred while defendant was in a romantic relationship and living with her victim. Both men were injured after returning from a night out drinking or partying with friends. Both men apparently argued with defendant and both were told to “get out.” Police officers did not detect bruises or other signs of abuse on defendant after either incident although defendant reported that she had been assaulted on both occasions.

While evidence about defendant shooting her former boyfriend is highly prejudicial, it is also probative to show that she possessed the | -^requisite intent and to show lack of mistake or accident as she told officers that the stabbing of Billy Smith was accidental. Defendant had also told officers that she had shot Russell to scare him. The fact patterns of both incidents and defendant’s statements regarding both incidents are similar. Furthermore, the prior episode goes to defendant’s prior knowledge of self defense in her explanation to the police. The trial court correctly found that this other crimes evidence was proved by clear and convincing evidence, came under one of the exceptions set forth in La. C.E. art. 404(B), and was more probative than prejudicial. This assignment of error is without merit.

Closing Arguments

In this assignment of error, defendant argues that the prosecutor’s reference to battered women’s syndrome in her closing arguments was an assertion that defendant should have “produced proof of a mental defect.” According to defendant, the state’s attorney’s statement prejudiced her and resulted in a “violation of due process and the right to a fair trial.”

The scope of closing arguments is limited to the evidence admitted, the lack of evidence, conclusions of fact drawn therefrom, and the law applicable to the case. La. C. Cr. P. art. 774. The trial court has wide discretion in confining the arguments to the scope of the evidence. State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000); State v. Martin, 539 So.2d 1235 (La.1989). A prosecutor has considerable latitude in making closing arguments. State v. Casey, supra; State v. Taylor, 93-2201 (La.02/28/96), 669 So.2d 364, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996); State v. Byrne, 483 So.2d 564 (La.1986), cert. denied, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168 (1986).

The Louisiana Supreme Court has recognized that “much credit should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence and heard the argument, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.” State v. Mitchell, 94-2078 (La.05/21/96), 674 So.2d 250, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996). Before a verdict will be overturned on the basis of improper argument, this court must be thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Taylor, supra; State v. Byrne, supra.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Baker, 28,152 (La.App. 2d Cir.05/08/96), 674 So.2d 1108, writ denied, 96-1909 (La.12/06/96), 684 So.2d 925.

During closing arguments, the prosecutor made the following comment:

She [defendant] talked about things that happened a year, maybe less, some things that happened almost a year before this occurred. I haven’t heard any testimony that this is a battered woman (sic) syndrome case. I didn’t hear any experts come up here and testify about battered women (sic) syndrome. Even if ... those witnesses were telling the truth, even if Billy did slap her months before at the boat, even if, even if those witnesses were telling some truth, how does that show that she was in reasonable fear for her life on October 28th, the day that she took Billy’s life?

In the instant case, the trial court was lenient in allowing defendant to present the testimony of witnesses, including that of defendant herself, |19regarding specific incidents of domestic abuse inflicted upon defendant by the victim, Billy Ray Smith. The prosecutor’s closing argument was directed at the credibility of this testimony and even if true, its relevancy to the charged crime. This assignment of error is meritless.

Jury Charge

The court shall charge the jury after the presentation of all evidence and arguments. The court shall reduce its charge to writing if it is requested to do so by either a defendant or the state prior to the swearing of the first witness at the trial on the merits. The court’s written charge shall be read to the jury. The court shall deliver a copy thereof to the defendant and to the state prior to reading it to the jury. La. C. Cr. P. art. 801(A). 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. The nature of the objection and grounds therefor shall be stated at the time of the objection. The court shall give the party an opportunity to make the objection out of the presence of the jury. La. C. Cr. P. art. 801(C).

If the evidence does not reasonably support a verdict, a trial court may exclude an otherwise proper responsive verdict. State v. Wright, 36,635 (La.App. 2d Cir.03/07/03), 840 So.2d 1271. The failure to object to the improper jury charge regarding responsive verdicts results in a waiver of the error on appeal. La. C. Cr. P. arts. 801, 841; State v. Houston, 40,642 (La.App. 2d Cir.03/10/06), 925 So.2d 690; State v. Wallace, 602 So.2d 296 (La.App. 2d Cir.1992).

|2nln the instant case, the jury was given instructions as to second degree murder, manslaughter, and self defense. Neither the prosecutor nor defense counsel had any objections concerning the jury charge before it was read.

Negligent homicide was added as a responsive verdict listed under La. C. Cr. P. art. 814(5) by an amendment approved in 2003. Amendments to responsive verdicts are procedural, and the list of responsive verdicts in effect at the time of trial, not the time of the offense, should be used. State v. Garner, 39,731 (La.App. 2d Cir.09/08/05), 913 So.2d 874, writ denied, 05-2567 (La.05/26/06), 930 So.2d 19; State v. Martin, 351 So.2d 92 (La.1977).

Negligent homicide is the killing of a human being by criminal negligence. La. R.S. 14:32. Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances. La. R.S. 14:12.

Defendant alternatively asserted theories that the stabbing was accidental or in self defense. Neither of those theories directly supports the responsive verdict of negligent homicide. While the evidence could arguably support a theory that defendant acted negligently in approaching the victim while she was armed with a knife, this is not the version of events presented by either side. Defendant did not request negligent homicide as a responsive verdict before the jury retired to deliberate and failed to object toj^any alleged improper jury instructions. The error, if any, was waived, and this assignment of error is without merit.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    William GOOD, et al., Plaintiffs-Appellees v. Gene LAIRD, et al., Defendants-Appellants.
    No. 41,205-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 30, 2006.

      Hamilton & Hamilton, by Orlando N. Hamilton, Jr., Oak Grove, for Appellants.
    Mulhearn & Smith, by Leroy Smith, Tallulah, for Appellees.
    Before BROWN, GASKINS and LOLLEY, JJ.
   GASKINS, J.

| ,The plaintiffs, William A. Good, Virginia Good, and Charles Douglas Johnston, obtained a permanent injunction against the defendants, Gene Laird, Jim Laird, and Tilford Watts. The injunction prohibits the defendants from hunting or grazing cattle on approximately 170 acres of land in Tensas Parish. The defendants have appealed the trial court ruling. We affirm in part and reverse in part the trial court judgment.

FACTS

The tract in question was owned by John M. Monsell. It contained approximately 170.82 acres. After his death, by judgment of possession, Charles Frederick Monsell (C.F. Monsell) inherited an undivided one-half interest in the property. Harriet Ann Monsell and Caroline Monsell each inherited an undivided one-fourth interest in the acreage. In August 1999, Harriet Monsell sold her undivided one-fourth interest to Jowayne Herring and his wife.

On February 7, 2001, C.F. Monsell gave the plaintiffs permission to hunt on the property. On February 8, 2001, C.F. Monsell granted a five-year lease to Gene Laird on 160 acres “commonly known as the Monsell Estate.” Douglas Johnston was a witness to the lease which was recorded in the Tensas Parish conveyance records on February 9, 2001.

On February 26, 2001, Jowayne Herring and his wife sold their undivided interest in the property to the plaintiffs. In a partition dated July 20, 2001, C.F. Monsell, Caroline Monsell, and the plaintiffs agreed to give the plaintiffs title to a specific tract containing approximately 42 acres. [ ?The partition was finally signed by all the parties on October 4, 2001, and was recorded in the parish conveyance records.

According to testimony at the hearing on this matter, in November 2001, the plaintiffs sold their 42-acre tract to Delta Diamond, Inc., a corporation controlled by the plaintiffs. C.F. Monsell and Caroline Monsell continued to be owners in indivi-sión of the remainder of the property.

On September 7, 2001, C.F. Monsell leased 160 acres known as the “Monsell Estate” to Gene and Jim Laird for nine years beginning on February 6, 2002, and ending February 5, 2011. This lease was intended to supplement and expand the lease of February 2001. The new lease contained the option to renew for an additional five years, beginning February 6, 2011, and ending February 5, 2016. The lease included hunting rights and was recorded in the parish conveyance records on September 19, 2001.

In June 2002, C.F. Monsell and Caroline Monsell sold a 3.764-acre tract to the plaintiffs. This sale was recorded February 23, 2004.

In July 2004, the plaintiffs and C.F. Monsell executed an agreement to purchase Mr. Monsell’s undivided interest in the property. The printed provision that asserted the property was not subject to a lease was scratched out and initialed by all parties.

In August 2004, Caroline Monsell and C.F. Monsell identified the specific 42.6092 acres belonging to Caroline Monsell and the 81.7508 acres |sbelonging to C.F. Mon-sell. However, this document does not clearly purport to be a partition. The agreement was filed and recorded on August 24, 2004.

In August 2004, C.F. Monsell sold his undivided one-half interest in the property to the plaintiffs. The plaintiffs then owned an undivided interest in the original tract with Caroline Monsell and the plaintiffs’ corporation owned a specific 42 acres of the original tract.

On October 4, 2004, the plaintiffs brought suit to obtain a preliminary injunction against the defendants seeking to prohibit them from hunting or grazing cattle on the property. In their petition, the plaintiffs claimed that the leases were invalid because all the co-owners had not agreed to the leases. The plaintiffs alleged that Tilford Watts had obtained hunting rights on the property from the Lairds.

A hearing on the matter was held on November 15, 2004. The plaintiffs testified that they own an undivided interest in approximately 124 acres of the remaining portion of the Monsell estate and also own, through a corporation, approximately 42 acres that was originally a part of the Monsell estate. They testified that they never agreed to any lease allowing the defendants to hunt or graze cattle on the property. Due to their lack of consent, they contend that the leases by C.F. Mon-sell, purporting to lease 160 acres of the “Monsell Estate” to the defendants, are null. Mr. Johnston testified that he witnessed the original lease for grazing cattle, but that he did not consent to it.

RTilford Watts testified that he has hunted on the property for many years. John Monsell originally gave his permission for Mr. Watts to hunt on the land, followed by C.F. Monsell, Jowayne Herring, and Gene and Jim Laird. Mr. Watts stated that he understood that he had permission to hunt on the approximately 120 acres owned by C.F. Monsell and Caroline Monsell after the partition in July 2001, but not on the 42-acre tract owned by the plaintiffs.

Jim Laird testified that the defendants never hunted or grazed cattle on the southern 42 acres of the property. At the close of the hearing, the trial court granted a preliminary injunction in favor of the plaintiffs.

In October 2005, the trial court granted judgment for the plaintiffs, permanently enjoining the defendants, Gene Laird, Jim Laird, and Tilford Watts, from entering, hunting, or grazing cattle on the disputed property. In reasons for judgment, the court noted that at the time the lease of February 7, 2001 was executed, C.F. Mon-sell owned an undivided one-half interest in the property; the Herrings and Caroline Monsell each owned an undivided one-fourth interest.

The plaintiffs acquired the Herrings’ undivided one-quarter interest in the property and the remaining interest in the property was owned one-half by C.F. Monsell and one-fourth by Caroline Monsell. The court noted that both leases described the property as approximately 160 acres commonly known as the “Monsell Estate.” This statement seemed to indicate that the lease was for the entire property. The court found that C.F. Monsell executed the leases without the consent of his co-owners and without | ^specifically noting that the lease applied only to his undivided interest in the property.

The court held that the leases were null under La. C.C. art. 805, because they both purported to lease the entirety of the property without the consent of all the owners. That statute provides:

A co-owner may freely lease, alienate, or encumber his share of the thing held in indivisión. The consent of all the co-owners is required for the lease, alienation, or encumbrance of the entire thing held in indivisión.

The court noted that, although under La. C.C. art. 805, C.F. Monsell could have leased his undivided interest in the property, that is not what is reflected on the document. The document purports to lease the entire tract. The court found both the leases to be null and void. Because the leases were null, the court found that Johnston’s notice of the lease by serving as a witness or any notice afforded by the public records doctrine was without effect.

The court further found that Tilford Watts and his family members had hunted on the property for years with the tacit consent of the Monsell family. Because Watts had no legal right to hunt on the property, the court granted the injunction prohibiting him and his family from hunting on the property. The defendants appealed.

LEGAL PRINCIPLES

An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant. La. C.C.P. art. 3601. The standard of review for the issuance of a permanent injunction is the manifest error standard. The issuance of a permanent injunction takes place only 1 fiafter a trial on the merits in which the burden of proof is a preponderance of the evidence. Metro Ambulance Service, Inc. v. Med Life Emergency Medical Services, Inc., 39,440 (La.App. 2d Cir.3/17/05), 900 So.2d 184.

Relative nullity of contracts is set forth in La. C.C. art. 2031:

A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed.
Relative nullity may be invoked only by those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own initiative.

Under La. C.C.P. art. 927, the peremptory exception of no right of action, or interest in the plaintiff to institute the suit, may be noticed by the appellate court of its own motion.

A court of appeal may not set aside a judge’s factual finding unless that finding was manifestly erroneous or clearly wrong. Furthermore, when reviewing questions of law, appellate courts are to determine if the trial court’s ruling was legally correct. Metro Ambulance Service, Inc. v. Med Life Emergency Medical Services, Inc., supra.

DISCUSSION

The defendants concede that Tilford Watts had no legal authority to hunt on the property. They do not oppose that portion of the permanent injunction prohibiting him from doing so. Therefore, we affirm that portion of the trial court judgment permanently enjoining Tilford Watts from hunting on the disputed property.

The defendants contend that the trial court erred in finding that the leases to Gene and Jim Laird were null and void under the terms of La. C.C. |7art. 805, and because all the co-owners did not consent to the leases. They also argue that the trial court erred in failing to find that C.F. Monsell leased his undivided one-half interest in the property.

The plaintiffs maintained, and the trial court found, that the lease purported to cover the entire acreage. At the time of the first lease, C.F. Monsell, Caroline Monsell, and the Herrings were the owners in indivisión of the property. At the time the second lease was executed in September 2001, the Herrings had sold their interest to the plaintiffs. A partition was in progress, but was not finally signed by all the parties until October 2001. The plaintiffs argued that because all the owners of the property did not consent, the leases are null. Moreover, the defendants concede that the lease does not cover the 42 acres owned by Delta Diamond, Inc.

The law is clear that the use and management of property held in indivisión must be determined by agreement of all the co-owners. La. C.C. art. 801. Further, La. C.C. art. 805 provides that the consent of all the co-owners is required for the lease, alienation, or encumbrance of the entire thing held in indivisión. However, the law does not require that the consent of co-owners be written in order to lease property. Acts by a sole co-owner, if useful to all, are ratified as a de facto agency. Schroth v. Seminole Supermarket, Inc., 2002-318 (La.App. 5th Cir.9/30/02), 829 So.2d 597.

A co-owner who does not consent to a lease may attack the validity of the lease as being a relative nullity. This action to nullify a lease by the co-owner for lack of consent is a personal right, which may only be invoked by |sthose persons for whose interest the ground for nullity was established. La. C.C. art. 2031.

If a purchaser buys an interest in property subject to a lease recorded in the public records, the purchaser’s interest is burdened by the lease. La. R.S. 9:2721(A). This purchaser has no right to contest the lease based on the lack of consent of his predecessor-in-title.

In Rowan v. Town of Arnaudville, 2002-0882 (La.App. 3d Cir.12/11/02), 832 So.2d 1185, the plaintiff purchased property belonging to his mother that was burdened by a lease. The plaintiff claimed the lease was null because his mother did not consent to the lease. The court explained that the rights and obligations which automatically transfer to the purchaser are real rights. The actions challenging the validity of a contract or seeking to ratify or nullify a contract, even in the case of real estate transactions, are personal actions. The real rights and obligations transfer from the seller to the buyer without special provision. Personal rights, the court distinguished, do not transfer in the absence of a special assignment of rights to the buyer. The court determined that the ability to challenge the validity of his mother’s consent to lease her land was a personal action belonging to her. The court reasoned that the personal action did not automatically pass to the plaintiff when he purchased the property, and she had not conveyed that right to him. The court found that the plaintiff had no right of action to assert his mother’s lack of consent to the lease.

lflThe peremptory exception of. no right of action determines whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. La. C.C.P. art. 927; Alston v. Stamps, 38,628 (La.App. 2d Cir.6/23/04), 877 So.2d 259. This exception may be raised by this court on its own motion.

The plaintiffs purchased the Herrings’ interest after the first lease had been executed and recorded. They had no right of action to contest the validity of the first lease based on the lack of consent of their predecessor-in-title, without an assignment of this right. The second lease was executed after the plaintiffs had purchased the Herrings’ interest, and the plaintiffs would have had a right to assert their lack of consent to the lease and attack it as being relatively null. However, this interest was partitioned and the plaintiffs received an undivided ownership of 42 acres. Moreover, the 42 acres were conveyed to Delta Diamond, Inc., and the corporation is not a party to this suit. The plaintiffs have no right of action to nullify the second lease based on an interest they previously owned, but which was transferred prior to the filing of this suit. In any event, the defendants acknowledge that the lease does not burden these 42 acres.

The plaintiffs purchased Mr. Mon-sell’s interest in the estate after the second lease was executed and filed in the public record; consequently, the plaintiffs purchased it burdened with the lease. Obviously, the plaintiffs’ predecessor-in-title, Mr. Monsell, consented to the lease. So even if Mr. |inMonsell subrogated to the plaintiffs any of his personal rights of action, the plaintiffs would still have no right of action because Mr. Monsell did not have that right. Nor could Mr. Monsell have sought to nullify the lease based on the other co-owners’ lack of consent, as that action would be personal to them. We find that the lease is still viable as to the interest purchased from Mr. Monsell.

The only other interest involved in this litigation is that belonging to Caroline Monsell. Throughout the various transactions, she has continued to hold her share of the property. She was not a party to this suit and did not testify at trial. While she may have an action to contest the lease(s), if not prescribed, the plaintiffs have no right of action to bring it on her behalf.

As to the 42 acres that were partitioned, the plaintiffs have no right to bring an action in nullity when they have no ownership interest in the property. By all accounts, the defendants agree that the 42 acres is not covered by the lease. As to the interest conveyed by Mr. Monsell, he consented to the lease and he has no right to contest the lease as it affects his interest. In this action asserting relative nullity of the lease, the plaintiffs could not be subrogated to any greater right than Mr. Monsell had. Additionally, Mr. Monsell could not have contested the lease based on the lack of consent of the co-owners, as that would be a personal right of the co-owners. The plaintiffs, likewise, have no right to bring an action of relative nullity on behalf of the co-owners. In summation, the lease is still valid and the injunction must be lifted.

^CONCLUSION

For the reasons stated above, we affirm that portion of the trial court judgment permanently enjoining Tilford Watts from hunting on the disputed portion of the property in this case. We reverse that portion of the judgment finding the two leases to be invalid and enjoining Gene Laird and Jim Laird from entering, hunting, or grazing cattle on the property. Costs in this court are assessed to the plaintiffs.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Tilford Watts was incorrectly designated as "Tim Watts” in the trial court pleadings.

      . It is unclear whether this property now belongs to Delta Diamond, Inc.

      . We find that the facts presented in this case allege a relative nullity of the lease rather than absolute nullity as defined in La. C.C. art. 2030.

      . The deed from the Herrings to Johnston and the Goods did contain some subrogation language. We need not determine if this language was sufficient to subrogate the plaintiffs' right to contest the lease because plaintiffs conveyed the land to the corporation prior to the lawsuit.


author: WILLIAMS, Judge. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Nathaniel T. KING, Appellant.
    No. 41,084-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 30, 2006.

      Annette Roach, Lake Charles, for Appellant.
    Nathaniel T. King, Pro Se.
    Paul J. Carmouche, District Attorney, Laura O. Wingate, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   WILLIAMS, Judge.

_JjThe defendant, Nathaniel King, was initially indicted on a charge of first degree murder, a violation of LSA-R.S. 14:30. Subsequently, the defendant was charged by amended indictment with second degree murder, a violation of LSA-R.S. 14:30.1. After a jury trial, defendant was found guilty of the responsive verdict of manslaughter. Defendant’s motion for post-verdict judgment of acquittal was denied. The trial court adjudicated defendant a second felony offender and imposed a sentence of 65 years at hard labor to run concurrently with any other sentenced imposed. The defendant appeals his conviction and sentence. We affirm the conviction; however, we amend the sentence.

FACTS

On the morning of March 23, 2001, the body of the victim, Ted Ramsey, was found at his residence in Shreveport with a knife sticking out of his neck. There was a great deal of blood at the crime scene and the coroner determined that the victim had been stabbed and cut approximately 65 times. A pair of the victim’s pants looked as though someone had gone through the pockets and police investigators later learned that the victim had been carrying a large sum of cash the night before. The police observed two distinct sets of shoe prints at the scene and a blood trail leading from the apartment to the street, indicating to the police that the attacker also had been injured. The police also found at the scene a number of latex finger cots, which are used by employees of restaurants or banks to cover their fingers. The name of defendant’s sister, Shawntell Cade, was the last to appear on the victim’s telephone caller-ID machine.

| ^Investigators learned that defendant had been treated the evening before at the Schumpert Medical Center emergency room for a stab wound to his right forearm. At the hospital, defendant told a police officer that he had been attacked by three unknown men in the Martin Luther King area. When authorities went to the defendant’s residence to question him, they observed through a glass door bloody clothes and shoes, which appeared to match a shoe print found at the crime scene. The police obtained a search warrant and subsequently arrested defendant after receiving an anonymous tip that he was hiding at his aunt’s residence.

When initially questioned, the defendant said that he and his sister had gone to visit Ramsey and that they all “smoked weed.” Defendant claimed that during the visit the victim suddenly attacked him with a knife, that defendant then took the knife and stabbed the victim in self-defense. However, in his second statement, defendant said he rode with his sister to the victim’s house so she could pick up some money and she told him to wait in the vehicle. Defendant stated that after waiting 20 minutes he went to the victim’s door, saw his sister and the victim fighting, and that he was cut when he tried to stop them. The defendant said that when he left to go wait in the vehicle, his sister was still “tussling” with the victim.

The defendant was charged by grand jury indictment with first degree murder. On October 29, 2001, following a sanity commission hearing, the defendant was found incompetent to stand trial and was transferred to a treatment facility. Defendant was subsequently found competent to be tried and the state amended the indictment to second degree murder. After a jury | ¿trial, the defendant was found guilty of manslaughter. The trial court adjudicated defendant a second felony offender and sentenced him to serve 65 years at hard labor. Defendant appeals his conviction and sentence.

DISCUSSION

The defendant contends the evidence was insufficient to support the conviction of manslaughter. Defendant argues that the state failed to prove beyond a reasonable doubt that he did not act in self-defense because his two versions of what occurred were not totally inconsistent and set forth a reasonable hypothesis of innocence.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

Under the Jackson standard of appellate review for a sufficiency of the evidence claim, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found |4the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Bosley, supra. This standard of review, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or re-weigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the | ¡^witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Both of defendant’s statements place him and his sister, Shawntell Cade, in the victim’s residence on the night he was killed. The physical evidence shows that the defendant’s running shoes left identifiable bloody prints at the crime scene. A detective testified that defendant’s larger shoe prints were found in the living room where the victim was attacked and that smaller shoe prints were left in the kitchen. It was established that the defendant’s sister was approximately five feet tall. Thus, the jury could reasonably believe that the defendant, and not his sister, was the person who repeatedly stabbed the victim.

The physical evidence showed that the victim had sustained 65 stab and cut wounds and that the fatal knife wound punctured his carotid artery and jugular vein. The coroner testified that another stab wound in the victim’s abdomen caused hemorrhaging and would also have been fatal. In particularly damaging testimony, the coroner reported that the wounds across the victim’s palm and fingers showed that he had held his hands in a defensive posture. The jury could reasonably conclude from this evidence that the killing was not in self-defense and that defendant was the attacker.

Despite defendant’s claim that his two statements to police were not totally inconsistent, the different versions of the killing were contradictory | rjn significant respects. In the first version, defendant said he was attacked by the victim, then took the knife and repeatedly stabbed the victim. However, in the second version, defendant said that he merely tried to stop the victim and his sister from fighting and did not stab the victim at all. In addition, evidence of defendant’s guilt can be inferred from his statement at the emergency room on the night of the murder, when defendant lied about the circumstances of his knife wound and said nothing about stabbing the victim in self-defense. The defendant’s fabrication demonstrates his consciousness of guilt and his attempt to prevent detection of the crime.

Thus, contrary to defendant’s contention, the jury rationally could have found that the evidence presented, including the victim’s wounds, the crime scene and defendant’s own implausible statements about the killing, established beyond a reasonable doubt that the murder was not perpetrated in self-defense. The assignment of error lacks merit.

Motion to Suppress

The defendant contends the trial court erred in denying his motion to suppress the statements and physical evidence obtained from defendant by the state. Defendant argues that because of his limited mental ability, his use of prescription pain medication and his representation by counsel prior to the second statement to police, the prosecution failed to show that his waiver of rights was knowing and voluntary.

A trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Normandin, 32,927 (La.App. 2d Cir 112/22/99) 750 So.2d 321, writ denied, 00-0202 (La.9/29/00), 769 So.2d 550. At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La.App. 2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288. The state has the burden to prove the admissibility of any evidence seized without a warrant. LSA-C.Cr.P. art. 703(D); State v. Traylor, 31,378 (La.App. 2d Cir.12/9/98), 723 So.2d 497.

The admissibility of a confession is a question for the trial judge, whose conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility should not be overturned on appeal unless they are not supported by the evidence. State v. Richardson, 33,272 (La.App. 2d Cir.11/1/00), 779 So.2d 771, writ denied, 2000-3295 (La.10/26/01), 799 So.2d 1151. We place great weight upon the trial court’s factual determinations because of that court’s opportunity to observe witnesses and assess credibility. State v. Roddy, supra.

Before introducing an inculpatory statement made in police custody, the state bears the heavy burden of establishing that the defendant received a Miranda warning and that the statement was freely and voluntarily made, and not the product of promises, threats or duress. LSA-C.Cr.P. art. 703; LSA-R.S. 15:451; State v. Johnson, 36,014 (La.App. 2d Cir.6/12/02), 821 So.2d 652. Any mental incapacity is an important factor to consider in deciding the voluntariness of a confession. The prosecution must introduce sufficient evidence to establish that under the totality of the circumstances, [Rthe defendant was aware of the nature of the right being abandoned. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

At the hearing on the motion to suppress, Detective Tom Oster testified that he advised defendant of the right to remain silent and of his right to request and have an attorney present during the questioning. Oster stated that defendant indicated he understood these rights and signed a waiver of rights card before giving each of the taped statements. The rights cards and the audiotapes were introduced into evidence.

Detective Oster testified that police had executed a search warrant of defendant’s residence and found a bag from the hospital pharmacy with a label for the pain medication Hydrocodone prescribed to defendant. Oster stated that while he did not ask defendant if he was on pain medication before questioning him, he had asked if defendant was under the influence of narcotics or alcohol. The detective testified that he “wouldn’t interview him” if he thought defendant was under the influence of “something.”

A review of the tape recording of the March 26, 2001 interview shows that defendant was expressly advised of his Miranda rights and was notified that he was under arrest for first degree murder. The defendant was able to give answers to the questions asked. After stating that he had stabbed the victim in self-defense, defendant was asked where he stabbed the victim and replied that it happened so fast he did not know where he stabbed the victim. He described the tennis shoes he had worn and gave the brand name. Defendant stated that he had put on the finger cots after stabbing the victim to clean up the “knife and stuff.” He said that he had 19thrown away the shirt he had been wearing that evening and that he had not been staying at his residence because he was “scared” about what happened. When asked why he and his sister did not just leave when Ramsey attacked him, defendant answered that the victim had already stabbed him.

The defendant said he had smoked marijuana earlier that morning, but did not think he was “high” at the time. Defendant told the investigator that he graduated from high school in 1995 and that he was not working because of injuries resulting from a car accident.

At the time of the second interview on March 28, 2001, the defendant signed another waiver of rights card. In this statement he said that on the night of the stabbing he had asked his sister for a ride and she told him she needed to stop by the victim’s residence first to get money. She said it would take about 10 minutes and defendant said he remained in the car for approximately 20 minutes, then he went to the door and saw his sister and the victim fighting. He said the victim stabbed him and he began bleeding. Defendant stated that before she dropped him off at the hospital, his sister said the victim had died.

A review of these audiotapes shows that the defendant was able to respond to the questions with detail. Further, he was able to estimate the length of time he said he spent in the vehicle waiting for his sister. The defendant’s responses would not have indicated to the detective that defendant did not have the mental capacity to voluntarily give these statements.

We note that the issue of defendant’s capacity to stand trial had been | indetermined before the hearing on the motion to suppress was held in 2004. The trial court initially found defendant unable to stand trial at a sanity hearing held on October 29, 2001. No transcript of this first hearing is available. Subsequently, in April 2003, both doctors at a second sanity hearing stated that although defendant was mildly retarded, with an IQ score in the upper 60 to 70 range, he could assist in his defense.

The Louisiana Supreme Court has stated that low intellect, moderate mental retardation or diminished mental capacity does not invariably vitiate capacity to make a free and voluntary statement or a knowing and intelligent Miranda waiver. State v. Manning, 03-1982 (La.10/19/04), 885 So.2d 1044. Here, the evidence presented did not show that at the time the statements were recorded defendant was incapable of understanding and waiving his right to remain silent. In addition, the circumstances of the interviews support the detective’s opinion that defendant was not impaired by the use of any medication. Thus, the record demonstrates that defendant’s mental capacity did not preclude his ability to make a knowing waiver of his Miranda rights.

In his brief, defendant argues that because attorney Sheva Sims visited him in the jail prior to his second statement the detective’s subsequent questioning violated his constitutional right to counsel. When counsel is requested, interrogation must cease; officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney. Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); State v. Williams, 2001-1650 (La.11/1/02), 831 So.2d 835. Once defendant has expressed a desire to deal with the police only through counsel, all successive officers who interact with defendant are deemed to have knowledge of this fact. State v. Arceneaux, 425 So.2d 740 (La.1983); see State v. Carter, 00-145 (La.App. 5th Cir.7/25/00), 767 So.2d 839, writ denied, 02-0227 (La.12/13/02), 831 So.2d 978.

In the present case, the parties stipulated that attorney Sims visited defendant at the jail on March 27, 2001. Sims testified that “at some point” she was retained to represent defendant and his sister in this criminal matter. However, Sims stated she did not recall whether she visited the defendant prior to his second statement or whether she told anyone not to talk to the defendant. Sims testified regarding her standard practice of identifying herself as an attorney to the jailer, but she did not recall the actual language she used that evening. Sims acknowledged that she did not telephone or write to notify the police of her representation and that she never spoke with a detective prior to defendant making a statement.

The trial court found that attorney Sims did not inform police that she was defendant’s attorney and that the defendant neither invoked his right to have an attorney present at questioning nor informed the detectives that he was represented by counsel. The trial court’s findings are supported by this record, which shows that defendant never expressed a desire to deal with police only through counsel. Thus, we cannot say the court erred in denying defendant’s motion to suppress. The assignment of error lacks merit.

112Ineffective Assistance of Counsel

The defendant contends the trial court erred in refusing to include in its jury charge an instruction that the state bore the burden of proving beyond a reasonable doubt that defendant did not act in self-defense. Defendant argues that his trial counsel was ineffective in failing to object to the court’s error.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (per) in the trial court than by appeal. This is because per creates the opportunity for a full evidentiary hearing under LSA-C.Cr.P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App. 2d Cir.6/21/00), 764 So.2d 1164. However, when the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App. 2d Cir.9/27/95), 661 So.2d 673.

When a defendant claims self-defense, the state has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Garcia, 483 So.2d 953 (La.1986). A conviction will not be overturned on the grounds of an erroneous jury charge unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial. State v. Gaddis, 36,661 (La.App. 2d Cir.3/14/03), 839 So.2d 1258, writ denied, 03-1275 (La.5/14/04), 872 So.2d 519. An erroneous instruction is subject to harmless error review. Gaddis, supra; State v. Eskano, 00-101 (La.App. 5th Cir.1/30/01), 779 So.2d 148.

|iaThe question is whether it appears beyond a reasonable doubt that the erroneous instruction did not contribute to the jury’s finding of guilt, or whether the error is unimportant in relation to everything else the jury considered, as revealed in the record. Gaddis, supra. Stated another way, the appropriate standard for determining harmless error is whether the guilty verdict was surely unattributable to the jury charge error. Gaddis, supra.

In the present case, the trial court’s instruction to the jury included the following language:

The defendant is presumed to be innocent until each element of the crime necessary to constitute guilt is proven beyond a reasonable doubt. The defendant is not required to prove his innocence; thus, the defendant begins the trial with a clean slate. The burden is upon the state to prove the defendant’s guilt beyond a reasonable doubt. In considering the evidence, you must give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence. If you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find him not guilty.
The presumption of innocence is another way of saying that a person is not guilty until proven otherwise beyond a reasonable doubt. A legal presumption relieves the person in whose favor it exists from the necessity of any proof whatsoever....
⅜ ⅜ ‡
A homicide is justifiable, one, when 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. Two, when committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

1 ^Although the trial court did not give a specific instruction regarding the state’s burden of proof on the issue of self-defense, we note that the court instructed the jury that the state was required to prove each element of the crime beyond a reasonable doubt, that defendant was presumed innocent and that he did not need to present any evidence. Thus, a reasonable reading of the jury charge as a whole does not support defendant’s contention that the court improperly imposed on defendant the burden of proving self-defense.

Even if we accept for this argument that the trial court erred in omitting a specific instruction regarding the state’s burden of proof on the self-defense issue, when considered in the context of the entire charge, along with the evidence of guilt presented at trial, we are convinced that no reversible prejudice to defendant occurred as a result of the error. There is little or no evidence in the record, other than defendant’s own words in his statements, to suggest that this brutal and bloody crime was committed in self-defense. The coroner testified that the victim was stabbed and cut more than 60 times and his skull was fractured. Further, the victim’s hands were cut across the palm and fingers, an indication that the victim was the person who was trying to defend himself against the defendant’s attack.

In addition, the evidence produced demonstrated that defendant could not have reasonably believed he was in imminent danger of losing his life or receiving great bodily harm, and that defendant’s response of repeatedly stabbing the victim was not necessary to prevent death or great bodily harm to himself. After reviewing the jury charge as a whole and the evidence in 11Bthe record, we cannot say the guilty verdict was attributable to an erroneous jury charge. Thus, any error in the failure to include the self-defense instruction was harmless. Nor would defendant’s claims of ineffective assistance of counsel for failure to object to the jury instructions have merit on these grounds. The assignment of error lacks merit.

Sentencing

Initially, we note that the record shows that after the defendant was sentenced, the trial counsel filed a timely motion for reconsideration of sentence. Although defendant’s motion for appeal states that the motion to reconsider was denied, this record does not reflect that the trial court ever actually ruled on the motion. On appeal, both the defendant and the state urge that this matter be remanded to the trial court for a ruling on the motion to reconsider. In the alternative, defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that a less severe sentence is appropriate because of his limited mental ability and the court’s failure to consider that his prior felony was not a crime of violence.

Pursuant to LSA-C.Cr.P. art. 881.1, if the defendant has filed a motion to reconsider sentence then the district court may resentenee the defendant despite the pendency of an appeal or the commencement of execution of the sentence. Defendant has the responsibility to obtain a ruling on his motion and to cause the appellate record to be supplemented with the ruling. State v. Lewis, 633 So .2d 318 (La.App. 1st Cir.1993).

This court has previously remanded for a ruling on the motion to reconsider. State v. Beverly, 34,783 (La.App. 2d Cir.2/15/01), 777 So.2d 1291. However, we conclude a remand is not necessary in this case since the defendant’s claim in his motion to reconsider that the sentence is “excessive and unconstitutionally harsh” is sufficient to preserve a bare claim of constitutional excessiveness. If the trial court rules on defendant’s motion, then that ruling will be separately appealable under Article 914.

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385. The offense of manslaughter is punishable by imprisonment at hard labor for not more than 40 years. Thus, as a second felony offender the defendant was subject to a sentencing range of 20 to 80 years. LSA-R.S. 15:529.1. The trial court imposed a sentence of 65 years at hard labor.

Prior to imposing sentence, the trial court held an evidentiary hearing where the defense introduced into evidence a psychological report and presented witness testimony regarding defendant’s diminished mental 1 ^ability. The court considered the defendant’s youth and mild mental retardation as mitigating circumstances. However, the court noted that this was a “horrible crime” in which the victim had been stabbed over 60 times, his skull was fractured and the victim was left lying in a pool of blood with a knife protruding from his neck. In addition, the court found that defendant’s limited mental ability did not prevent him from making misleading statements to police to avoid telling the authorities what had actually happened at the victim’s apartment on the night of the killing.

Considering the factual circumstances of this particular case and the defendant’s criminal background, there is no showing that the district court abused its discretion in sentencing this defendant. The sentence imposed is neither grossly disproportionate to the seriousness of the offense committed nor shocking to the sense of justice. Thus, we cannot say the sentence is constitutionally excessive. The assignment of error lacks merit.

In a pro se assignment of error, the defendant contends the trial court made multiple unspecified errors before, during and after trial that will cause injustice if not corrected and requests a review of the record for error patent. We note that neither defendant nor his counsel specifically briefed this vague assignment of error. Assignments of error which are neither briefed nor argued are considered abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978). In addition, defendant’s request for an error patent review is unnecessary, since this court conducts such a review in all criminal cases. State v. Bryant, 29,344 (La.App. 2d Cir.5/7/97), 694 So.2d 556.

11S.Error Patent

In reviewing the record for error patent, we note that although the district court minute entry, dated June 21, 2005, indicates that the sentence imposed denied the benefit of parole, probation or suspension of sentence, the transcript shows that the court did not impose sentence without benefit of parole, probation or suspension of sentence.

LSA-R.S. 15:529.1(G) provides that any sentence imposed under the habitual offender law is to be served without benefit of probation or suspension of sentence, but does not deny the benefit of parole. Pursuant to LSA-R.S. 15:301.1, the sentencing court’s failure to state that a sentence shall be served without benefit of probation or suspension of sentence shall not affect the statutory requirement that the sentence be served without such benefits. We shall amend the sentence accordingly.

CONCLUSION

For the foregoing reasons, the defendant’s conviction is affirmed. The sentence is hereby amended to order that defendant shall serve 65 years imprisonment at hard labor -without benefit of probation or suspension of sentence, to run concurrently with any other sentence imposed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED.

BROWN, C.J., concurs with written reasons.

BROWN, Chief Judge,

concurring.

[ jWhen a defendant, as in this case, is sentenced to a prison term, the court does not have to say “without probation or suspension.” Such words are superfluous and unnecessary.