author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Samuel REED.
    No. 11-KA-507.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Harry J. Morel, Jr., District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|2On July 28, 2010, the St. Charles Parish District Attorney filed a bill of information charging defendant, Samuel Reed, with two counts of attempted second degree murder, in violation of LSA-R.S. 14:27 and 14:30.1. Defendant pled not guilty. On December 14 and 15, 2010, the case was tried before a 12-person jury, and defendant was found guilty as charged. On March 1, 2011, the trial judge sentenced defendant to imprisonment for ten years in the Department of Corrections without benefit of parole, probation, or suspension of sentence.

FACTS

At trial, Richard Kestle testified that on June 14, 2010, he was at 312 Almedia Plantation Road in St. Rose where he lived with his daughter and his wife, Christine Loupe. Also at the residence visiting that evening were Michael Kestle, who is Richard’s nephew, Cynthia Harrington, who was Michael’s girlfriend, Mona Kestle, who is Michael’s mother and Richard’s sister, and Allan Tinoco, who was Mona’s longtime boyfriend. At approximately 7:30 or 8:00 IsP-ni., defendant, James Yawn, and defendant’s wife arrived at the residence in a truck. Defendant had been a longtime friend of the Kestle family. Michael walked outside, and he and Yawn had an argument while Yawn was sitting in the truck regarding rumors Yawn had allegedly spread about Michael’s mother.

According to Richard, defendant got out of the truck and hit Michael on the back of his head. Defendant and Michael started fighting, and Yawn jumped out of the truck. A fistfight ensued among defendant, Michael, Yawn, and Tinoco. Richard subsequently broke up the fight, and defendant got back into the truck. At some point, Tinoco told defendant and Yawn to leave. Richard testified that defendant paused, and then pulled out a gun. Defendant’s wife, who was in the driver’s seat, yelled, “Shoot him, shoot him.”

Richard testified that defendant pointed the gun out of the window and aimed it at Mona’s chest. He then turned and shot Michael and Tinoco, who were standing approximately fifteen and five feet away, respectively. Tinoco was shot in his right arm and right hip, and Michael was shot in his left leg. Afterward, defendant, Yawn, and defendant’s wife left. Michael Kestle, Mona Kestle, Allan Tinoco, and Christine Loupe also testified at trial, and their testimony was similar to Richard’s testimony.

Detective Ben Schmitt of the St. Charles Parish Sheriffs Office testified that he was the lead investigator in the case. A couple of hours after the shooting, he stopped defendant and advised him of his rights. After waiving them, defendant gave a statement. Defendant said that he went with Yawn to Richard’s house, because Richard owed defendant some money. He also claimed that Richard asked him to bring Yawn there to set Yawn up, because of the comments Yawn had made about Michael’s mother. Richard and a few other men were waiting to fight with Yawn. Defendant and Michael started fighting, and then other people started |4fighting. Defendant claimed that someone yelled, “Go get a gun.” He saw an AK-47 assault rifle, but he did not know who had it, and then he heard three shots. Defendant and Yawn got into the vehicle and left.

In his statement, defendant said that when he and Yawn got out of the truck when they first arrived, he was beaten up with baseball bats and “God knows what else.” He initially denied shooting a gun. However, defendant later admitted that he had a gun and shot it one time into the air or “that way” to try and scare them off. He later said he did not know how many times he fired his weapon.

Detective Schmitt, Lieutenant Rodney Madere, and Detective Derek Pertuis all testified that defendant’s injuries were consistent with a fistfight and inconsistent with being beaten by a bat.

James Yawn testified at trial for the defense. He stated that he and defendant went to Richard’s house, because Richard called defendant to say he had the money he owed defendant. When they arrived, defendant got out of the truck and started walking, and Michael came over and told Yawn to get out of the truck. Defendant then turned around and came back and told Michael to get away from the truck. Yawn did not see defendant strike Michael on the back of the head. Afterward, Yawn saw Tinoco and others beat defendant and hit him with a bat.

Yawn tried to help defendant by punching someone, but then Michael hit Yawn with a baseball bat across his back and on the side of his head. He identified State’s Exhibit 13 as the red and black bat Michael used. Yawn went back to the truck, and he saw defendant crawling on his hands and knees toward the truck. He claimed that Tinoco was standing over defendant, hitting defendant with a silver bat, and telling defendant he was going to kill him. Yawn identified State’s Exhibit 12 as being close in color to the bat Tinoco had.

IsAfterward, Yawn heard Michael yell, “Go get the gun.” He then saw Richard standing in the yard by the fence with an assault rifle in his hand. Yawn heard three shots and thought Richard was shooting at defendant and Yawn. Defendant then jumped in the truck and they left. Yawn claimed that defendant was beaten pretty badly, and that defendant had lumps on his nose, the side of his eye, and the side of his head, and black and blue eyes. Yawn denied that defendant extended his arm out of the window and fired shots. He testified that he heard shots while defendant was still trying to get into the truck, and that he did not know where the shots came from; however, he said he was not saying that defendant did not fire shots. Yawn also testified that he never heard defendant’s wife say, “Shoot them.” Yawn admitted that he pled guilty in this case to aggravated battery, but explained that he did not do anything wrong and only pled guilty because he wanted to go home. On cross-examination, Yawn admitted that defendant told him he shot a gun during the incident.

The State’s witnesses responded that the altercation was a fistfight, and that no one used baseball bats or any other weapons during the fistfight, other than the gun defendant pulled out after the fistfight had ended. Richard testified that the baseball bats found in the trailer, State’s Exhibits 12 and 18, were his daughter’s softball bats, and they were at his residence on the day in question, but were not used during the incident. Richard denied ever owning an AX-47 assault rifle. He also denied that he owed defendant money or that he told defendant to come over so he could repay money he owed defendant.

DISCUSSION

On appeal, defendant argues that the evidence was insufficient to support the verdict. He contends that the State failed to prove beyond a reasonable doubt that the shootings were not done in self-defense, noting that he was a passenger in a Rvehicle that was aggressively attacked by the Kestles, and that he reasonably believed his life and the lives of others were in danger. Defendant also asserts that the State only proved, at best, that the shootings were attempted manslaughter done in the heat of passion, and not attempted second degree murder.

In reviewing the sufficiency of evidence, an appellate court must determine if the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

Defendant was convicted of two counts of attempted second degree murder, in violation of LSA-R.S. 14:27 and 14:30.1. Second degree murder is the killing of a human being when the offender has a spe-eific intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1 A(l). Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly |7toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. LSA-R.S. 14:27. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1).

To prove attempted second degree murder, the State must establish, beyond a reasonable doubt, that the defendant specifically intended to kill a human being and that he committed an overt act in furtherance of that goal. State v. Hebert, 05-1004, p. 9 (La.App. 5 Cir. 4/25/06), 930 So.2d 1039, 1046. Specific intent to inflict great bodily harm is sufficient to support a murder conviction, but attempted second degree murder requires a specific intent to kill. Id., 05-1004 at 9, 930 So.2d at 1046-47. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Hoffman, 98-3118, p. 48 (La.4/11/00), 768 So.2d 542, 585, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State v. Batiste, 06-869, p. 6 (La.App. 5 Cir. 4/11/07), 958 So.2d 24, 27. Specific intent to kill may also be inferred from the extent and severity of the victim’s injuries. State v. Stacker, 02-768 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, 606, writ denied, 03-411 (La.10/10/03), 855 So.2d 327.

In the instant case, the State’s witnesses indicated that defendant started the fistfight. Several of them testified that while Michael and Yawn were engaged in a verbal argument, defendant came over and struck Michael on the back of the head, thereby escalating the verbal argument into a physical altercation. Afterward, a fistfight ensued among defendant, Michael, Yawn, and Tinoco. According to the State’s witnesses, when the fist-fighting ended, defendant and Yawn got back into the truck. At that point, the State’s witnesses thought the fight was over. IsHowever, they maintained that defendant then paused for either a few minutes or a few seconds, that defendant’s wife yelled “Shoot him” or “Shoot them,” and that defendant then pulled out a gun, aimed it, and shot Tinoco, who was standing approximately five feet away, and Michael, who was standing approximately fifteen feet away.

Defendant’s specific intent to kill the victims can be inferred from the fact that defendant deliberately pointed a gun at the victims and fired it. Also, several of the State’s witnesses testified that defendant shot the gun three or four times, and the evidence shows that the two victims collectively sustained a total of three gunshot wounds. Based on the foregoing, the evidence was sufficient to show that defendant had the specific intent to kill the two victims.

Defendant contends that he established by a preponderance of the evidence the presence of “sudden passion” and “heat of blood” entitling him to attempted manslaughter verdicts. He claims that he was provoked by the Kestles, which was sufficient to deprive the average person of self-control and cool reflection.

Under LSA-R.S. 14:31 A(l), manslaughter is a first or second degree murder that is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. LSA-R.S. 14:31 A(l). “Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors which may reduce the grade of the offense. State v. Johnson, 01-1362 (La.App. 5 Cir. 5/29/02), 820 So.2d 604, 610, writ denied, 02-2200 (La.3/14/03), 839 So.2d 32. In order to be entitled to | sthe lesser verdict of manslaughter, the defendant is required to prove the mitigatory factors by a preponderance of the evidence. Id.

The record shows that defendant did not meet his burden of proving that he acted in “sudden passion” or “heat of blood.” The State’s evidence reflects that after the fistfight ended, defendant deliberately entered the truck, paused either a few minutes or a few seconds, and after his wife yelled “Shoot him” or “Shoot them,” pulled out his gun, aimed it at the two victims, and fired it three or four times. The State’s evidence shows that defendant was not being attacked just prior to or at the time of the shootings, and that an average person’s blood would have cooled between the time the fistfight ended and the time defendant shot the victims. Viewing the evidence in the light most favorable to the prosecution, the jury could have reasonably found that the mitigatory factors were not established by a preponderance of the evidence.

Lastly, defendant argues that his actions were justified because they were committed in self-defense and defense of others. The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. LSA-R.S. 14:18. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. LSA-R.S. 14:19 A. The aggressor or the person who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. LSA-R.S. 14:21. It is justifiable to use force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such 110means himself, and when it is reasonably believed that such intervention is necessary to protect the other person. LSA-R.S. 14:22.

When self-defense or the defense of another is claimed by the defendant in a homicide case, the State has the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another. State v. Rainey, 98-436, p. 12 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1103, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28. However, in non-homicide cases, this Court has stated that the defendant has the burden of proof by a preponderance of the evidence that his actions were in self-defense or in defense of others. See State v. Nailor, 10-1062 (La.App. 5 Cir. 11/15/11), 78 So.3d 816, 821; State v. Steele, 01-1414 (La.App. 5 Cir. 9/30/02), 829 So.2d 541, 547, writ denied, 02-2992 (La.9/19/03), 853 So.2d 632, and State v. Barnes, 491 So.2d 42, 47 (La.App. 5 Cir.1986).

In the instant case, the testimony of the State’s witnesses revealed that at the time defendant fired his weapon, he was safely inside his truck, the two victims were standing still outside of the truck and not moving, defendant was not being attacked at the time, and the victims were not armed. These facts do not indicate that it was necessary for defendant to defend himself or others. As such, the evidence did not show that defendant’s action were in self-defense or defense of others.

By returning the guilty verdicts, the jury obviously rejected defendant’s account of the events and found that defendant’s actions were neither reasonable nor apparently necessary. It is the role of the fact-finder to weigh the credibility of the witnesses, and a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State v. Wallace, 00-1745 (La.App. 5 Cir. 5/16/01), 11788 So.2d 578, 584, writ denied, 01-1849 (La.5/24/02), 816 So.2d 297. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant had the requisite intent to support his convictions for attempted second degree murder, that defendant failed to carry the burden necessary to reduce the convictions to attempted manslaughter, and that defendant did not act in self-defense or defense of others.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). Our review reveals one error.

Although defendant was convicted of two counts of attempted second degree murder, the trial judge imposed only one ten-year sentence. Generally, the failure to impose a sentence for each count is considered an error patent. State v. Hebert, 02-1252 (La.App. 5 Cir. 4/8/03), 846 So.2d 60, 66. An exception to this general rule was recognized in State v. Batiste, 517 So.2d 371, 373 (La.App. 5 Cir. 1987), where this Court upheld a single sentence for convictions on multiple counts. This Court held that:

[w]hen the sentences for a conviction on each count would more appropriately be concurrent rather than consecutive, and the term of imprisonment is a reasonable sentence under the circumstances, the single sentence will not affect the substantial rights of the defendant and remand for clarification or resentencing is not necessary.

Batiste, supra.

There is a presumption that if the defendant is convicted of two or more offenses based on the same transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently, unless the court expressly directs that some or all be served consecutively. LSA-C.Cr.P. art. 883.

|12In Batiste, defendant and an accomplice robbed two bank tellers at gun point. Defendant pled guilty to two counts of armed robbery, but the trial judge only imposed a single sentence of 15 years. In upholding defendant’s single sentence, this Court obviously determined that the sentences on each count would more appropriately be served concurrently. See also State v. Mitchell, 476 So.2d 825 (La.App. 5 Cir.1985), in which defendant was convicted of three counts of negligent homicide and sentenced to a single term of five years; and State v. Smith, 461 So.2d 434 (La.App. 5 Cir.1984), in which defendant was convicted of three counts of armed robbery and sentenced to a single term of ten years.

In the instant case, the attempted second degree murder of two victims which occurred on the same date at approximately the same time during the same incident was based on the same transaction or constituted parts of a common scheme or plan. Therefore, there is a presumption in favor of concurrent sentences. The sentencing range for attempted second degree murder is between ten and fifty years. Defendant’s sentence, while light, is not unreasonable in light of the facts of this case. Based on the jurisprudence, there is no need to remand the matter for resentenc-ing despite the failure of the trial court to impose two separate sentences on the two counts for which defendant was convicted.

DECREE

For the foregoing reasons, we affirm defendant’s convictions and ten-year sentence.

AFFIRMED


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Harry J. CARRABY.
    No. 11-KA-540.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Harry J. Morel, Jr., District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, LA, for Plaintiff/Appel-lee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| ^Defendant, Harry Carraby, appeals his conviction and sentence for manslaughter, a violation of LSA-R.S. 14:31. On appeal, he argues that the homicide was justifiable because he acted in self-defense. He also argues that he received an excessive sentence. For the following reasons, we find no merit to defendant’s assignments of error, and thus affirm his conviction and sentence.

PROCEDURAL HISTORY

On February 18, 2009, the St. Charles Parish District Attorney filed a bill of indictment charging defendant, Harry Car-raby, with second degree murder, in violation of LSA-R.S. 14:30.1. On March 4, 2009, defendant pled not guilty at arraignment. On March 16, 17, and 18, 2010, the case was tried before a twelve-person jury, which found defendant guilty of the responsive verdict of manslaughter, in violation of LSA-R.S. 14:31. Following a pre-sentence investigation, defendant was sentenced to twenty years imprisonment at hard labor, with credit for time served. On September 17, 2010, defendant filed a Motion to |sReconsider Sentence, which was denied on September 21, 2010. This timely appeal followed.

FACTS

This appeal concerns an altercation between defendant, Harry Carraby, the victim, Ed Raymond (“Raymond”), and two others, Jy’Vohn Harris (“Harris”) and De-Jae Smith (“Smith”), which took place at Harris’s apartment located at 172 Keller Street in Hahnville, Louisiana, on December 1, 2008. Harris testified that he knew defendant; they had played flag football together. On December 1, 2008, Harris spoke to defendant, who was to sell Harris, Smith, and Raymond some marijuana for approximately $1,500. Defendant drove his white two-door Ford truck to Harris’s apartment. When defendant arrived, Smith and Raymond were in Harris’s room. Harris met defendant outside. They spoke near the back porch.

Harris testified that, after speaking to defendant, he went inside the apartment to discuss the potential purchase with Raymond and Smith. The three men decided that $1,500 was too much money to pay for the marijuana. Harris then went back outside. Defendant placed the bag of marijuana down. Harris then “snatched” the bag of marijuana, ran back inside the apartment, and locked the door. He then proceeded to hide in his bedroom closet. On the way to the closet, Harris handed the bag of marijuana to Smith. While in the closet, Harris heard a window break and also heard defendant and Raymond arguing. According to Harris, defendant stated that he wanted his “stuff’ back, and Raymond replied, “I’m going to get it for you.” After this verbal exchange, Harris heard three or four Lgunshots fired. As he was about to exit the closet, he heard a second set of shots. When he finally exited the closet, he saw Raymond lying on the floor. He then saw Smith enter the apartment, look around, grab his car keys, and leave. When everything in the apartment seemed quiet, Harris called the police and an ambulance.

Harris was charged with armed robbery, simple escape, and attempted possession of marijuana. However, he pled guilty to simple robbery, for which he was on probation at the time of trial.

On cross-examination, Harris admitted that he initially fled from the police because he did not want to go to jail for stealing drugs. He testified that, prior to the shooting, there was never any discussion among himself, Raymond and Smith about robbing defendant of his marijuana. Harris further stated that on the day of the shooting, both Raymond and Smith had guns with them. Smith had a revolver and Raymond had a 9 mm. Harris denied having a gun. Harris further denied tampering with the crime scene, stating that all he did “was move the chair back behind the door.” He testified that when he came out of the closet, the front door was open and the back door was locked. He admitted that he gave several statements to the police, none of which were true. A tape of Harris’s statement to the police was played for the jury.

Smith testified that he knew the victim, Raymond, having grown up with him in the same neighborhood. On December 1, 2008, he and Raymond were at Harris’s house when at some point during their visit, Harris told them that he was going outside to meet with someone. Approximately twenty minutes later, Harris ran back inside the apartment, hid in a closet, and shut the door. Smith and Raymond heard glass breaking and ran toward the noise to see who was coming in. At that time, they met an individual in the hallway. Smith identified the man he |smet in the hallway as defendant. He testified that neither he nor Raymond were armed at that time.

Smith testified that defendant pointed a gun at him and Raymond. Defendant told them that Harris had just stolen his marijuana, and that he wanted his “stuff’ back. Smith told defendant that he would get his marijuana back. He then retrieved the marijuana and “threw it” to defendant. Defendant then shot Raymond, who was unarmed, and ran to his truck. Smith called the police. He then retrieved a gun and went after defendant. Smith shot at defendant’s vehicle. Smith was later arrested and charged with attempted first degree murder and simple robbery. However, he stated that he eventually pled guilty to illegal discharge of a firearm. He contested defense counsel’s claim that he had pled guilty to aggravated assault with a firearm related to the instant case.

Smith admitted that he was not truthful in the first statement that he gave to the police. Specifically, Smith stated that he lied when he told the police that Raymond had a gun and went after defendant. He indicated that he lied because he did not want to go to jail at that time. Smith also lied to the police when he told them that he was not at Harris’s apartment on the day of the murder. A tape of Smith’s interview with the police was played for the jury.

On further cross-examination, Smith contradicted his previous testimony and indicated that he obtained the gun from Raymond when it fell from his pocket as he hit the ground. Smith denied that he was part of a conspiracy to rob defendant of his marijuana and money.

On redirect examination, Smith stated that at no time during the incident did Raymond have a gun in his hand. After defendant shot Raymond, Smith picked up | ^Raymond’s gun, which had fallen out of Raymond’s pocket, and followed defendant while firing shots.

The State called Detective Jeremy Pitchford of the St. Charles Parish Sheriffs Office. Detective Pitchford was the first detective to arrive on the murder scene at 172 Keller Street after the call came out from dispatch. When he first arrived, Pitchford observed several casings in the parking lot outside, as well as part of a license plate frame. Upon entering the apartment, he saw that a window in the living room had been broken. In the hallway, he saw the lower half of Raymond, who was lying there deceased. In observing Raymond and the immediate surroundings, Detective Pitchford could see fired shell casings in the hallway and in the bathroom down the hall. There was a bullet hole in the wall just above Raymond’s head. There were no weapons or casings or other items from a weapon found in the vicinity of Raymond.

At some point during the investigation, Detective Pitchford received a call about a vehicle having been stopped that fit the description given by dispatch. The suspect in the vehicle, identified as defendant, was subsequently transported to the detective’s office. Detective Pitchford interviewed defendant in his office. The interview was both videotaped and audio-taped. Defendant’s videotaped statement was played for the jury.

Detective Pitchford testified that parts of defendant’s statements were consistent with the physical evidence at the scene. For instance, the back window of the house was broken, which defendant admitted breaking in his statement. However, there were also discrepancies between defendant’s statement and the physical evidence regarding the location from where the shots were fired. Detective Pitchford further stated that all of the casings and rounds that were 17recovered in the apartment were .40 caliber. No 9 mm casings were found inside the apartment. However, six 9 mm casings were found outside the apartment.

On cross-examination, Detective Pitch-ford further discussed what he felt were inconsistencies between the physical evidence and defendant’s statement. Specifically, he opined, based upon the positions of the casings and bullet holes in the apartment, it appeared that defendant was firing from different directions. Detective Pitchford acknowledged, however, that witnesses to the murder had admitted tampering with the crime scene. He also acknowledged that it was possible that someone could have kicked the casings in various directions while pursuing defendant.

On redirect examination, Detective Pitchford was again asked about the inconsistencies in defendant’s recorded statements. In defendant’s statement, he first said that Harris brought him inside the apartment. However, later in his statement, defendant said that Harris grabbed the marijuana off the porch, and then defendant broke the window to enter the apartment. Additionally, in his statement, defendant first said that he never saw Smith. However, he later indicated that he was surrounded by all three men. In summary, Detective Pitchford concluded that defendant lied multiple times in his statement.

The State also called Captain Craig Pet-it of the St. Charles Parish Sheriffs Office, who participated in this investigation. Captain Petit stopped defendant in his vehicle on Interstate 310 northbound. According to Captain Petit, defendant “threw his hands up in the air and said I know why you’re stopping me.” He further made a statement about weapons being in the vehicle. At that point, the vehicle was secured until detectives and crime scene technicians arrived on the scene.

|8The State also called Deputy Othello Carter, a crime scene technician with the St. Charles Parish Sheriffs Office. On December 1, 2008, Deputy Othello processed defendant’s pickup truck. The State presented various exhibits which Deputy Carter identified. Of particular significance were State’s Exhibit 41A-N, a series of photographs which depicted possible impact indentation on the vehicle and a “blood-like substance” that had been smeared. Deputy Carter stated that the dents appeared to have been made from a fired projectile, and that the “blood-like substance” was found inside and outside of the vehicle. State’s Exhibit 45A-K were photographs which showed two weapons that Deputy Carter found inside the vehicle — one a revolver with the hammer cocked back, and the other a semi-automatic pistol. State’s Exhibit 7 was a Beretta .40 caliber semi-automatic pistol and two magazines, which were recovered from the center console in the front seat of defendant’s truck. One magazine was inside the weapon and another magazine was found inside a holster. State’s Exhibit 9 was a Smith and Wesson revolver located on the passenger side floorboard of defendant’s truck. That gun was cocked and it contained “four rounds and two empty cylinders, two empty casings.” Carter also testified that he secured five unfired Winchester bullets in the magazine that was inside the .40 caliber gun. He further recovered unfired bullets in other magazines as well, identified in State’s Exhibit 62.

Deputy Carter identified State’s Exhibit 46A-J as green vegetable matter that was found in the back seat of the vehicle. State’s Exhibit 47A-H were photographs that Deputy Carter took of defendant to depict injuries on his limbs.

On cross-examination, Deputy Carter stated that in searching defendant’s vehicle, he did not find documentation of the ownership of the .40 caliber weapon. The Beretta .40 caliber handgun had five rounds taken from the magazine, and there was a live round in the chamber as well. For the .38 caliber weapon, the | ahammer was cocked on a live round in the chamber. In total, there were four live rounds in the chamber and two empty casings.

Joel O’Lear testified in his capacity as a firearms and tool mark examiner for the Jefferson Parish Sheriffs Office crime laboratory, and was admitted as an expert in this field without objection. O’Lear was questioned about State’s Exhibit 52, which was a scientific analysis report for weapons recovered in the case. With respect to the Beretta .40 caliber pistol, O’Lear matched six fired cartridge cases to this particular weapon that had been recovered. The second weapon examined was the Smith and Wesson revolver. O’Lear did not find any projectiles or casings that matched that particular weapon. He also received several 9 mm caliber fired cartridge casings, which he determined were fired from the same weapon. However, that weapon was not recovered. O’Lear stated that he also examined several projectiles, copper-jacketed projectiles, a copper jacket, and a “lead like core” — a piece of the projectile. He determined that all of these specimens had been fired from the Beretta pistol.

Dr. Samantha Huber, a forensic pathologist employed in Orleans Parish, was accepted without objection as an expert in the field of forensic pathology. She testified that she conducted a forensic autopsy of Raymond. In this case, Raymond sustained five gunshot wounds to his body. Dr. Huber explained that two of the shots caused substantial internal damage, while three of the shots only hit soft tissue and would not be considered life threatening. Of the three soft tissue wounds, one was in Raymond’s left buttocks, and the path of the bullet came from below and ultimately exited the hip. A second non-lethal shot entered the bottom of the heel and exited the back of the heel. Dr. Huber opined that in order for a shot to be made to the heel, it would have to be off of the ground. The cause of death in this case was determined to be gunshot wounds to the chest and abdomen. |10On cross-examination, Dr. Huber answered that it was possible that the wound made to the heel was a ricochet. A toxicology analysis of Raymond’s blood was positive for THC, commonly called marijuana.

Defendant testified in his own defense. He testified that he knew Jy’Vohn Harris through playing football with him in Algiers. He stated that on December 1, 2008, Harris called him several times about purchasing marijuana. They were first supposed to meet in Avondale, but Harris did not show up. Finally, defendant went to Harris’s apartment in Hahnville. When defendant arrived, Harris took him to the back door of the apartment and they went inside. At that time, defendant took out the bag of marijuana and set it on the floor. As they were attempting to weigh the marijuana, Harris picked up the marijuana, pulled out his gun, and pushed defendant into the glass near the back door. Harris then ran from the room, dropping his gun. Defendant went into the hallway and picked up the gun that Harris had dropped, which was either a .38 or a .357 caliber.

At that time, a door opened, and defendant could see Raymond and Smith. Smith was ducked behind the TV pointing a gun at him, and Raymond was standing in front of defendant. Defendant also saw Harris peeking out of a closet. Smith asked defendant for his money. Defendant threw Smith approximately $1,400, which landed on the floor, and Smith picked up the money. As defendant was about to leave, he saw the barrel from Raymond’s gun. At that point, defendant moved out of the way and began firing.

Defendant testified that prior to the shooting, his own gun was tucked in his pants, under his shirt. He also had the second gun that he had picked up in the hallway, which he was holding by the barrel in his left hand. Defendant stated that he fired his gun four or five times within seconds. After the shooting, Smith threw the marijuana toward defendant, who picked it up at his feet. Defendant then |n headed to his truck. He sensed that Smith was coming after him. While in his truck, shots were fired at him. Defendant denied standing over Raymond and shooting him. He further testified that he had no intent to kill anyone when he went to Harris’s house. He only intended to sell the marijuana.

Later, when defendant saw a marked police unit following him on Interstate 310, he pulled over. He said that he cooperated with the detectives and gave a statement. Defendant acknowledged that he did not mention anything about marijuana in his initial statement. Defendant further admitted that he told the police that he broke the window in order to enter the apartment. However, he testified that he did not break into the apartment, and that he was confused at the time he made that statement.

On cross-examination, defendant reiterated that he had been invited inside the apartment. He testified that when he approached the apartment, he had a gun in his hand and then holstered it as he entered the apartment. He stated that when he saw Smith behind the television set, he still had his weapon holstered under his shirt. As the situation escalated, defendant wanted to leave, but then Raymond pulled a gun on him. After the shooting occurred, defendant threw the gun that had killed Raymond onto the seat of his truck, and he placed the holster in the door. Defendant admitted that at the time he saw Smith with a gun, he could have turned and exited the apartment. Defendant did not leave, however, because he wanted his marijuana back. He stated the value of the marijuana was about $700.

Defendant testified that he was confused when he told detectives that Harris had been the one to pull a gun on him and demand his money, instead of Smith as indicated in his trial testimony. Defendant admitted that he lied when he told detectives that he pulled out his gun on Harris after Harris demanded his money. Defendant also admitted lying when he said that he took the .38 revolver from 112Harris. Although defendant at first denied it, he admitted that someone told him not to shoot. Defendant told detectives that the man with the dreads (Smith) was trying to help get his money back. However, at trial, defendant testified that Smith was trying to rob him. Defendant also admitted that he lied to the detectives when he told them that he left the marijuana in the truck when he first arrived at Harris’s apartment.

ASSIGNMENT OF ERROR NUMBER ONE — Self-defense

Defendant argues that the homicide was justifiable because he acted in self-defense. Defendant asserts that two guns were pointed at him; therefore, a high probability existed that he would have been shot in the back had he attempted to leave the apartment.

The State contends that the evidence proves that defendant was the aggressor and the only person to use deadly force during the incident. The State further argues that defendant’s testimony that he acted in self-defense was completely contradicted by the testimony of DeJae Smith. Therefore, “the jury obviously made a credibility determination and decided not to accept the defendant’s version of the facts.”

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005) (quotation omitted). Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

In this case, defendant was charged with second degree murder, but was convicted of the responsive verdict of manslaughter. On appeal, defendant does not dispute that the State proved the elements of the offense. Rather, he claims that the killing was justified because he acted in self-defense.

When a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982); State v. Theriot, 07-71, pp. 12-13 (La.App. 5 Cir. 6/26/07), 963 So.2d 1012, 1020, writ denied, 07-1598 (La.2/1/08), 976 So.2d 715. The fact that an offender’s conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. LSA-R.S. 14:18. According to LSA-R.S. 14:20, a homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.”

A person who is the aggressor or who brings on a difficulty cannot claim self-defense, unless he withdraws from the conflict in good faith. State v. Mills, 04-489, p. 7 (La.App. 5 Cir. 3/29/05), 900 So.2d 953, 959, writ denied, 05-1470 (La.1/13/06), 920 So.2d 235 (citing LSA-R.S. 14:21). In addition, while there is no unqualified duty to retreat, the possibility of escape from an altercation is a recognized factor in determining whether the defendant had a reasonable belief that deadly force was necessary to avoid the danger. Theriot, 07-71 at 13, 963 So.2d at 1020. The determination of a defendant’s culpability rests on a two-fold test: 1) 114whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and 2) whether deadly force was necessary to prevent the danger. Theriot, 07-71 at 12, 963 So.2d at 1020. The jury is the ultimate fact-finder in determining whether a defendant proved his condition and whether the State negated the defense beyond a reasonable doubt. Theriot, 07-71 at 13, 963 So.2d at 1020.

In this case, the jury was presented with several different versions of the events that occurred on the day of the shooting. The witnesses’ testimony differed, as did their testimonies from their recorded statements. At trial, defendant claimed that he killed the victim in self-defense. He testified that he was in Harris’s living room, trying to weigh the marijuana, when Harris picked up the marijuana, pulled out his gun, and pushed defendant into the glass near the back door. He stated that Harris then ran from the room, dropping his gun. Defendant picked up Harris’s gun, and began looking for him in the hallway. He then saw Smith ducked behind a television, pointing a gun at him. He stated that Smith demanded his money, and defendant threw it to him. Defendant further stated that he and Smith argued over the marijuana. As defendant prepared to leave, he saw that Raymond had a gun. He stated, “I just looked down the barrel and I just moved out the way and went to shooting.” Smith then threw the marijuana to defendant, and defendant ran outside to his vehicle. He admitted to shooting four or five times. He stated that he felt his life was in danger.

It appears that the jury found the State’s version of events as presented by its witnesses more credible. Smith testified that he and Raymond (the victim) were at Harris’s apartment on the day of the murder. Harris went outside to meet with someone. About twenty minutes later, Harris ran inside the apartment and into a closet. Smith stated that he and Raymond heard glass breaking and they ran to the | lshallway where they were confronted by defendant. Defendant pointed his gun at them and demanded the return of his marijuana. Smith retrieved the marijuana and “threw it” to defendant, at which time defendant shot Raymond. Smith testified that neither he nor Raymond were armed with a weapon.

Harris testified that, on the day of the murder, he went outside to talk with defendant. He then grabbed defendant’s marijuana and ran inside the apartment and hid in the closet. While in the closet, he heard a window break and heard defendant and Raymond arguing about the marijuana. Harris then heard approximately three or four gunshots fired.

Additionally, the State played defendant’s statement to the police for the jury. Although defendant initially stated that he was invited into the apartment, he subsequently indicated that he broke the window glass, reached in and opened the door. Defendant’s second version of events is consistent with Smith and Harris’s account of how defendant entered the apartment. If the jury found that defendant broke into the apartment, he would be the aggressor. Courts have found that a person who is the aggressor cannot claim self-defense, unless he withdraws from the conflict in good faith. See State v. Carrier, 95-1003, p. 7 (La.App. 3 Cir. 3/6/96), 670 So.2d 794, 799, writ denied, 1996-0881 (La.9/20/96), 679 So.2d 431 (finding defendant’s self-defense argument to be without merit, as he was the aggressor “who brought about the difficulty by forcibly entering” the apartment); see also Mills, supra.

The jurors clearly found the testimony offered by the State’s witnesses to be more credible than defendant’s testimony. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact, and when faced with a conflict in testimony, the trier of fact is free to | lfiaccept or reject, in whole or in part, the testimony of any witness. State v. Singleton, 05-622, p. 7 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, 651. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id. The jury was presented with all of the evidence, and it appears the jury rejected defendant’s claim of self-defense.

Further, the number of gunshot wounds to decedent’s body, in addition to the location of the wounds, refutes defendant’s claim of self-defense. Dr. Samantha Huber, who performed the forensic autopsy on decedent, testified that the victim sustained five gunshot wounds to his body. Decedent sustained wounds to his chest and lower abdomen, and he had soft tissue injuries to his arm, buttocks and heel. Dr. Huber testified that for decedent to have sustained the wound to his heel, his heel would have to have been off the ground. One possible scenario would be if decedent was bending at the knee, which would mean that decedent’s back was to the gun. She also testified that the injury could have been sustained if decedent was falling forward, running away, or if decedent was already down. Additionally, the wound to decedent’s buttocks entered the left buttocks and exited the side of the hip. This suggested that decedent’s back was to the gun when he sustained this wound.

In State v. Thomas, 44,113 (La.App. 2 Cir. 4/8/09), 7 So.3d 838, 843, writ denied, 09-1041 (La.2/5/10), 27 So.3d 296, the Second Circuit stated that even if the victim had pulled a gun on the defendant, “the fact that [the defendant] shot him six times before [the victim] got off a single round seems to refute the theory of reasonable necessity.” Similarly, in this case, even if the victim had pulled a gun on defendant, the fact that defendant shot him five times, two times which 117appear to have occurred when the victim’s back was to defendant or when the victim was on the ground, seems to refute the theory of reasonable necessity-

Additionally, on cross-examination, defendant admitted that he could have left the apartment when he saw Smith had a gun. This Court has held that the possibility of escape from an altercation is a recognized factor in determining whether defendant had a reasonable belief that deadly force was necessary to avoid the danger. See Theriot, supra.

Based on the foregoing, we find that the State met its burden of proving defendant did not act in self-defense. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO — Excessive sentence

In his second assignment of error, defendant contends that the trial court erred in imposing an excessive sentence, considering that he was a first-time offender. Defendant also asserts that the court failed to consider mitigating factors such as his age, educational background, family dynamics, and factual circumstances surrounding his arrest. Conversely, the State argues that the sentence imposed was within the statutory limits and the trial court’s wide discretion.

In this case, defendant was convicted of manslaughter, a violation of LSA-R.S. 14:31. With respect to sentencing, the statute, in subsection B, provides in relevant part: “Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.” Therefore, defendant’s sentence of twenty years is a mid-range sentence.

On the date of sentencing, the record reflects that the trial court took several factors into consideration. The court indicated that it had reviewed a pre-sentence report completed by the Department of Public Safety and Corrections. The court |lsaIso noted that defendant armed himself while going to sell drugs, knowing that there was a possibility that “things could go wrong.” The court considered that defendant had no prior convictions, defendant’s age, and the possibility of rehabilitation. The court also took into account the fact that defendant had a young child.

The record reflects that, at the time of sentencing, defendant did not move to reconsider his sentence pursuant to LSA-C.Cr.P. art. 881.1, nor did he object to his sentence at the time his sentence was imposed. While defendant did ultimately file a written motion to reconsider sentence, the failure to state specific grounds upon which the motion was based limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 108; see also LSA-C.Cr.P. art. 881.1.

In his brief, defendant refers to LSA-C.Cr.P. art. 894.1 and argues that the trial judge failed to consider mitigating factors in his case. As noted above, defendant did not specify the grounds upon which the motion to reconsider his sentence was based. As such, to the extent that defendant argues that the judge failed to articulate his reasons for sentencing pursuant to LSA-C.Cr.P. art. 894.1, defendant is precluded from raising such an issue on appeal. See State v. Declouet, 09-1046, p. 13 (La.App. 5 Cir. 10/12/10), 52 So.3d 89, writ denied, 10-2556 (La.4/8/11), 61 So.3d 681; State v. Ridgley, 08-675, p. 20 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, writ denied, 09-0374 (La.11/6/09), 21 So.3d 301. In any event, this Court has held that where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. Declouet, 09-1046 at 14, 52 So.3d at 89.

| igThe Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 655. A sentence is considered excessive, even when it is within the applicable statutory range, if it imposes needless and purposeless pain and suffering or is grossly disproportionate to the offense. Warmack, 07-311 at 7, 973 So.2d at 109. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice. Pearson, 07-332 at 15, 975 So.2d at 655-56. The trial judge is afforded wide discretion in determining a sentence. Id., 07-332 at 15, 975 So.2d at 656.

In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. The relevant issue on appeal is whether the trial court abused its sentencing discretion, and not whether another sentence might have been more appropriate. Pearson, 07-332 at 15-16, 975 So.2d at 656.

Defendant’s sentence is commensurate with similarly situated defendants who have been convicted of manslaughter. In State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 07-805 (La.3/28/08), 978 So.2d 297, the defendant received a 27-year sentence for his manslaughter conviction, which was the defendant’s first felony conviction. It was noted he only had misdemeanor convictions that occurred during the breakup of his marriage 20 years earlier. It was also noted the defendant had a work history. The court stated that there was no requirement that any specific matter be given any particular weight inJjjdetermining a defendant’s sentence and concluded the defendant’s sentence was not excessive. Id., 41,855 at 13, 16, 953 So.2d at 899-900.

Also, in State v. Hodge, 41,097 (La.App. 2 Cir. 8/23/06), 938 So.2d 1066, the Second Circuit found the defendant’s 22-year sentence for manslaughter was not constitutionally excessive. The trial court noted that the defendant lacked any significant criminal history, had a good employment history and community involvement, and showed remorse for the crimes. But, the trial court also noted that the defendant shot two people “ ‘after an evening of argument and flared tempers.’ ” Id., 41-097 at 9, 938 So.2d at 1072. The trial court concluded “the level of provocation could not alleviate the sentence to any great extent.” Id.

Defendant in this case had no prior convictions and appeared to show remorse for his actions. Nonetheless, as noted by the trial court, defendant engaged in the sale of drugs while armed with a dangerous weapon and with the knowledge that there was a possibility he would have to use the gun. Defendant’s actions resulted in the death of another person. Considering the jurisprudence and the circumstances of this case, we find that the trial court did not abuse its discretion when sentencing defendant. Defendant’s mid-range sentence is not grossly disproportionate to the severity of the offense and does not shock the sense of justice. This assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). No matters were found that require corrective action.

¡^CONCLUSION

For the above reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . Although the transcript refers to the victim as "Ed Raymond,” he is referred to as "Edd Raymond” in most of the law enforcement documents found in the record.

      . The State’s first two witnesses to testify. Sergeant Bill Slayton, evidence custodian for the St. Charles Sheriff’s Office, and Deputy Joseph Marrocolli, crime scene technician with the St. Charles Parish Sheriff's Office, both accounted for the chain of custody for numerous State exhibits introduced at trial.

      . Smith had previously been arrested for carrying an illegal weapon on school grounds and pled guilty to illegal carrying of a weapon.

      . The State introduced a Miranda rights form that Detective Pitchford filled out when he advised defendant of his rights. Defendant initialed the form after the Miranda rights were read to him.

      . On cross-examination, Smith testified that “When [Raymond] hit the ground, [the gun] fell out.” On re-direct, Smith stated that he knew Raymond had a gun, but it was not in his hand when the incident occurred.

      . In defendant’s motion to reconsider, he merely argued that the basis of his motion was that “the sentence imposed upon him is excessive and that there were other sentences that could be imposed upon the defendant that would be more reasonable under the circumstances of this case.”


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Lawrence MANGERCHINE.
    No. 11-KA-599.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Kellie M. Rish, Lauren Dileo, Assistant District Attorneys, Gretna, LA, for Plaintifi/Appel-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

      Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

12Defendant, Lawrence Mangerchine, was convicted by jury of negligent homicide in violation of LSA-R.S. 14:32. After the denial of his motion for new trial, he was sentenced to five years at hard labor, with three years of the sentence suspended, giving credit for time served. Defendant now appeals, alleging that the trial court erred in denying his motion for new trial.

The facts adduced at trial are as follows. Beginning on New Year’s Eve of 2008 continuing to the morning of New Year’s Day of 2009, the victim and defendant, who were in a romantic relationship with one another, had been involved in several verbal arguments and decided to end their relationship. Before the arguments ensued, the couple was residing with the victim’s mother and was planning to move into an apartment together. At 3:00 p.m. on New Year’s Day, defendant went to work at Whole Foods Market, where the victim brought defendant some of his personal items. After work, defendant continued on to his ex-wife’s home and spent the night mostly watching television on the sofa. In the | ¡¡early morning hours of January 2, 2009, the victim and defendant had a telephone conversation discussing a possible reconciliation. Defendant also planned to pick the victim up from her mother’s house and bring her to the bank to sign and deposit some cheeks to secure the apartment.

Defendant arrived at the victim’s residence at approximately 8:30 a.m. on January 2 in a white Ford F150 with a trailer in tow, and they proceeded to Regions Bank while discussing their relationship status in the vehicle. Because the bank was not yet opened, defendant stopped and purchased a 24 ounce beer. After purchasing a beer, the couple made their bank transactions and proceeded to Zuppardo’s, where they were going to drop off the trailer.

As the couple was traveling south down Transcontinental Drive, another argument developed and the victim threw defendant’s beer out of the window. At approximately 9:50 a.m., the arguing couple approached the red light at the busy intersection of Transcontinental Drive and Veterans Boulevard, in Metairie, where defendant unknowingly bumped into the vehicle in front of him, which was driven by Anthony Ritter. Defendant and Ritter exited their vehicles and Ritter instructed defendant to “cool it.” Defendant returned to his vehicle and resumed arguing with the victim. At some point during the argument, the victim punched the defendant in the nose and his nose began to bleed. The victim then exited the vehicle and defendant locked the passenger side door. While punching on the outside mirror, the victim attempted to open the passenger’s side door to no avail then walked to the front of the truck and banged on the hood. Meanwhile, to scare the victim off of the road, the defendant depressed the brake and simultaneously pressed the gas pedal, revving the engine. The truck jolted and the victim moved from in front of the truck and proceeded to the driver’s side door, again yelling and | Ranging on the window and outside mirror. Before the victim reached the door of the truck, the light turned green. The defendant locked his door, rolled up his window, and began to drive his vehicle forward. While yelling and screaming, the victim grabbed the door handle, trying to re-enter the vehicle, and was carried forward a few steps before she lost her footing, spun around, and fell underneath the vehicle. The victim was rolled over by the rear driver’s side wheel of the truck and the trailer before defendant saw the victim on the ground, realized what had happened, and stopped the vehicle.

Defendant stopped the vehicle, went to the back of the truck to assist the victim, and yelled for someone to call 9-1-1. When he realized that the bystanders were focused on the victim, he returned to his truck in search of his phone. At that time, defendant was apprehended and detained until the police arrived.

After the police obtained witness statements, defendant was advised of his Miranda rights and placed under arrest. Defendant passed a field sobriety test at the scene and was later taken to East Jefferson General Hospital, where he was examined for injury and his blood was tested. The blood test later returned negative results for drugs and alcohol. Once defendant left the hospital, he was taken to the Detective’s Bureau, where he gave a statement to Detective Jeffrey Rodrigue, after being advised of and waiving his Miranda rights. After a judge found probable cause, defendant was booked on the morning of January 3, 2009.

The victim was taken to University Hospital where she expired during surgery. Dr. Susan Garcia performed an autopsy on the victim. The victim’s |stoxicology report reflected that her blood samples tested positive for methadone, caffeine, and alcohol.

In his sole allegation of error, the defendant alleges that the trial court erred in failing to grant the motion for new trial, in which he argued that new and material Brady evidence existed regarding the victim’s 2004 arrest for domestic violence.

The defendant asserts that the trial court erred in failing to grant the motion for new trial because the State clearly violated discovery rules. In particular, defendant argues that the State failed to timely disclose before trial that the victim was arrested in 2004 for punching her ex-husband in the nose and was participating in a Jefferson Parish District Attorney’s Diversion Program at the time of her death. (The State did not disclose the evidence until after trial.) Defendant’s theory of the case was that he was punched in the nose and was trying to get away from a violent situation. He argues that the late disclosure prejudiced his case because he did not take the stand due to a lack of tangible corroborating evidence.

Defendant also asserts that in a negligent homicide, it was crucial for the jury to understand his state of mind. He further adds that the proof of the previous arrest would have corroborated that his actions were in self-defense rather than negligent, thus making it a Brady violation. Finally, defendant contends that the guilty verdict was attributable to the error, thus the error denied him of due process and a fair trial and was not harmless.

The State responds that the trial court was correct in denying the defendant’s motion for new trial because the evidence was not newly discovered, as the defendant knew of the victim’s abusive behavior towards her ex-husband prior to |fitrial. It further argues that the evidence was cumulative, irrelevant, and inadmissible character evidence, it did not fall within the scope of Brady material, and even if considered Brady material, there was no showing of prejudice. Finally, it argues that even assuming that the late disclosure was erroneous, it was harmless because the evidence would not have changed the verdict and did not undermine the confidence in the verdict. The State asserts that the defendant chose not to testify because it would have hurt his case, because he had prior DWI convictions and because he was drinking at the time of the accident. Moreover, the State was planning to admit evidence that defendant battered the victim the night before the incident when he previously stated that he never hit the victim.

LSA-C.Cr.P. art. 851(3) provides that on motion of the defendant, the court shall grant a new trial when “[n]ew and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty[.]” State v. Bazley, 09-358, p. 22 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 21, writ denied, 11-0282 (La.6/17/11), 63 So.3d 1039. As such, when the motion for a new trial is based on newly discovered evidence, the following four requisites must be met: (1) the evidence must have been discovered since the trial; (2) the failure to learn of the evidence at the time of trial was not due to defendant’s lack of diligence; (3) the evidence must be material to the issues at trial; and (4) the evidence must be of such a nature that it would probably produce an acquittal in the event of a retrial. Id. (citation omitted). The trial court’s ruling as to whether these requisites are met is entitled to great weight and a denial of a motion for new trial will not be disturbed on appeal absent a clear abuse of that discretion. Id., 09-358 at 22-23, 60 So.3d at 21. (citation omitted).

7In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963), the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Favorable evidence includes both exculpatory evidence and evidence that impeaches the testimony of a witness whose credibility or reliability may determine guilt or innocence. In re Jordan, 04-2397 (La.6/29/05), 913 So.2d 775, 782, (citing Giglio v. United, States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)); State v. Calloway, 97-796 (La.App. 5 Cir. 8/25/98), 718 So.2d 559, 562, writs denied, 98-2435 and 98-2438 (La.1/8/99) 734 So.2d 1229, (citing U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

Evidence is material only if there is a reasonable probability that the results of the proceeding would have been different if the evidence had been disclosed to the defense. A “reasonable probability” is that which is sufficient to undermine confidence in the outcome of the trial. State v. Johnson, 05-180 (La.App. 5 Cir. 11/29/05), 917 So.2d 576, 579, writ denied, 06-1254 (La.12/15/06), 944 So.2d 1282, (citing U.S. v. Bagley, supra). In determining materiality, a reviewing court must ascertain “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of Isconfidence.” Johnson, supra, (citing Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)).

The U.S. Supreme Court has explained that “[t]there are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); State v. Louviere, 00-2085 (La.9/4/02), 833 So.2d 885, 896, cert. denied, 540 U.S. 828, 124 S.Ct. 56, 157 L.Ed.2d 52 (2003).

In Kyles, 115 S.Ct. at 1567, the United States Supreme Court made clear that materiality is not determined item by item but by the cumulation of the suppressed evidence. Thus, even if each item by itself would not warrant a new trial, the accumulation may.

“Late disclosure as well as nondisclosure of evidence favorable to the defendant requires reversal if it has significantly impacted the defendant’s opportunity to present the material effectively in its case and compromised the fundamental fairness of the trial.” State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238, 1250, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed,2d 116 (2005). The impact on the defense of late disclosure of favorable evidence must be evaluated in the context of the entire record. Id.

Defendant complains that the victim’s arrest record was requested; however, evidence of her 2004 arrest for punching her ex-husband was not disclosed until after trial. Defendant urges that he should have been granted a new trial or a mistrial, pursuant to LSA-C.Cr.P. art. 718, which allows the trial court to enter any order appropriate for failure to comply with discovery rules. As stated above, there are three components of a Brady violation: 1) the evidence must be favorable: | aexculpatory or impeaching; 2) the evidence must have been suppressed; and, 3) the defendant must have been prejudiced.

The evidence of the victim’s 2004 arrest does not appear to be exculpatory or possess impeachment value. Exculpatory evidence by definition is that “which tends to justify, excuse or clear the defendant from alleged fault or guilt.” State v. Lande, 06-24, p. 24 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, 296, writ denied, 06-1894 (La.4/20/07), 954 So.2d 154, (citing Black’s Law Dictionary, Sixth Edition). Evidence of the victim’s arrest for punching her ex-husband does not appear to clear defendant from guilt due to his negligence in driving away from the victim, whom he knew was holding the door handle. Nor does it appear to undermine the confidence in the jury verdict, as the jury heard similar evidence involving the victim’s assaultive behavior against the defendant himself both prior to and at the time of the incident and still came to the guilty verdict. As such, the 2004 arrest evidence does not seem likely to have affected the jury’s determination so as to result in an acquittal or otherwise undermine confidence in the verdict.

Furthermore, there was overwhelming evidence of defendant’s gross deviation from the standard of care. By defendant’s own admission, he was drinking and driving, he revved his engine and caused his vehicle to jolt forward while the victim was in front of it, and he drove forward knowing that the victim was alongside his vehicle holding on to the door. Therefore, we find that the evidence of the 2004 arrest is not exculpatory or otherwise material to the defendant’s case.

Converse to defendant’s assertions, his state of mind was not relevant to the jury’s determination, because intent was not required to prove the elements of negligent homicide, under LSA-R.S. 14:32, which requires only the killing of a human being through criminal negligence. Criminal negligence is gross deviation Imfrorn the standard of care expected of a reasonably careful person under similar circumstances. See LSA-C.Cr.P. art. 12.

A self-defense argument appears to be equally implausible because defendant was attempting to escape, not fight force with force. In addition, a homicide is only justifiable when one reasonably believes he is in danger of losing his life or receiving great bodily harm, which was not the case because the victim was not armed and could not injure defendant, who was inside the vehicle. LSA-C.Cr.P. art. 20. Accordingly, we find nothing in the evidence tended to clear the defendant from guilt.

Further, this evidence does not appear to have impeachment value. Conversely, the evidence appears to corroborate the defendant’s account of the events. Although the defendant argues that the evidence could have been used to impeach Atoinette Madsen, the victim’s sister, the record does not reflect that Madsen testified contrary to the evidence involving the victim’s 2004 arrest. Therefore, this argument is speculative.

Because the evidence was neither material, exculpatory, nor impeaching, we find that the unpunctually disclosed evidence failed to meet the requirements to be considered a discovery violation under both Brady and LSA-C.Cr.P. art. 718.

Considering the foregoing, we find that the trial court did not abuse its discretion in denying defendant’s motion for new trial. The unpunctually disclosed evidence does not appear to be newly discovered, as the defendant has admitted he was aware of it. The evidence is not material, exculpatory, or impeaching, thus the late disclosure did not amount to a Brady violation or otherwise violate the |ndiscovery rules. The defense could have found the evidence after a diligent search. And finally, the evidence is not of a nature that would have produced an acquittal at trial.

The Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. Our review reveals no errors patent in this case.

Finding no merit to defendant’s allegation of error, and no error patent requiring our attention, we affirm the defendant’s conviction and sentence.

AFFIRMED

      . In his statement to police, defendant indicated that they were arguing over addiction problems. The victim’s addiction was methadone, Xanax, and other prescription drugs, and defendant’s was alcohol.

      . The evidence at trial did not establish whether the victim voluntarily or involuntarily left the vehicle. In his statement, the defendant declared that the victim voluntarily exited the vehicle.

      . Eyewitness Kathy Chaves testified that the truck grazed the victim causing her to fall.

      . There is conflicting testimony as to whether defendant stopped the truck after the victim was rolled over by the rear driver’s side wheel of the truck, but before she was rolled over by the trailer.

      . The defendant’s demeanor after the accident and whether he went to assist the victim is unclear.

      . The report also reflects a positive screening for amphetamine and benzodiazepine; however, further testing to confirm the existence of those drugs was not performed.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . See also, LSA-C.Cr.P. art. 718 which provides:
      Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which:

        (1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
      (2) are intended for use by the state as evidence at the trial, or
      (3)were obtained from or belong to the defendant.
      The court may determine whether evidence is subject to the provisions of paragraph (1) hereof by in camera inspection.

      . Although the defendant does not meet the first prong of Brady, it is also noted that there is no indication defendant was prejudiced by the late disclosure of the above evidence under the third prong, which requires a showing of prejudice. (See Kyles v. Whitley, 115 S.Ct. at 1555, where the United States Supreme Court stated, ”[w]e evaluate the tendency and force of the undisclosed evidence item by item; there is no other way. We evaluate its cumulative effect for purposes of materiality separately and at the end of the discussion.”)