author: Judge Roland L. Belsome

text:
    STATE of Louisiana v. Joseph MORGAN
    NO. 2017-KA-0588
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 16, 2018
    Mr. Joseph Morgan, Louisiana State Penitentiary, General Delivery, Angola, LA 70712 Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 220, Madisonville, LA 70447 COUNSEL FOR APPELLANT
    Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, J. Taylor Gray, Kyle Daly, Michael Danon, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119 COUNSEL FOR APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods )
   Judge Roland L. Belsome

The Defendant, Joseph Morgan, seeks review of his second degree murder conviction and sentence. For the following reasons, we affirm the conviction; vacate the sentence and remand the case for re-sentencing.

STATEMENT OF THE CASE

On May 29, 2008, the Defendant was indicted with the second degree murder of Gervais Nicholas. He pled not guilty at arraignment. After a four-day trial, a twelve-person jury found the Defendant guilty as charged. The trial court denied the Defendant's motion for new trial and granted an appeal. Subsequently, the Defendant was sentenced to life in prison with the possibility of parole. On the same day, a notice of appeal was issued. This appeal followed.

STATEMENT OF FACT

The charges against the Defendant stem from a gang-related homicide that occurred on January 12, 2008, at the Chat Room, a teenage nightclub located on Tulane Avenue and South Lopez Street. On the night of the incident, the Chat Room was hosting a sixteenth birthday party, during which multiple fights erupted. As the security guards began removing the participants, several fights continued.

Outside, the victim, Gervais Nicholas, was being held on the ground, near the median, by multiple individuals. Two males, later identified as the Defendant, Morgan, and Tavion Aples, were observed running across Tulane Avenue. They returned to the scene with guns. At that time, Morgan and Aples shot the victim multiple times, fatally injuring him. Then, they fled the scene in different directions. After an investigation involving state and federal authorities, Morgan was arrested pursuant to an arrest warrant.

ERRORS PATENT

The record shows that defense counsel was not present with the Defendant at the sentencing hearing. The trial court specifically noted counsel's absence. Additionally, both the docket master and the minute entries provided that the Defendant "appeared without counsel for sentencing."

In State v. Hall, 99-2887, p. 16 (La. App. 4 Cir. 10/4/00), 775 So.2d 52, 62-63, this Court set forth the law regarding a sentence imposed in the absence of counsel:

La. Const. art. I, § 13 recognizes the right to the assistance of counsel at every stage of the proceedings against a person accused of a crime. State v. White , 325 So.2d 584, 585 (La.1976). Likewise, the constitutional right to the assistance of counsel provided by the Sixth Amendment of the United States Constitution mandates the right, unless waived, to the assistance of counsel at every critical stage of the proceedings, including an initial or deferred sentencing. McConnell v. Rhay , 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). Unless a defendant has made a knowing and intelligent waiver of his right to counsel, any sentence imposed in the absence of counsel is invalid and must be set aside. State v. Williams , 374 So.2d 1215, 1217 (La.1979).

Since the record unequivocally provides that defense counsel was absent and there is no indication that the Defendant waived his right to counsel, the sentence imposed is invalid and must be vacated. Accordingly, the Defendant's sentence is vacated and the case is remanded for re-sentencing.

DISCUSSION

The Defendant raises three assignments of error concerning: 1) jury selection, 2) the admission of testimonial evidence, and 3) sentencing. Having already addressed the sentencing error in our errors patent, we turn to the two remaining assignments of error.

In his first assignment of error, the Defendant contends that the trial court erred in excusing for cause prospective juror, Timothy Charles. La. C.Cr.P. art. 797 provides that the state or the defendant may challenge a juror for cause if:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient grounds for challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence; [or]
***
(4) The juror will not accept the law as given to him by the court[.]

La. C.Cr.P. art. 798(1) also provides good cause for the state to challenge a juror where "[t]he juror is biased against the enforcement of the statute charged to have been violated, or is of the fixed opinion that the statute is invalid or unconstitutional."

During voir dire , Mr. Charles initially stated at the outset that he could not apply the law knowing the Defendant, if convicted, could be sentenced to life imprisonment. Upon further questioning by the State, Mr. Charles appeared confused concerning the prosecution's burden of proof based on earlier instructions provided to the panel. After the State explained it had to establish its case beyond a reasonable doubt, not beyond all possible doubt, for Mr. Charles to convict the Defendant, Mr. Charles responded "okay." However, defense counsel subsequently asked Mr. Charles whether he could find the Defendant guilty if he was "one hundred percent positive" that the State proved its case "without a doubt" and Mr. Charles replied: "I possibly can." Mr. Charles also testified he would render a verdict irrespective of the sentence if there was a "smoking gun." However, after defense counsel clarified the State's burden was beyond a reasonable doubt, Mr. Charles stated that he would be able to follow the law and fairly render verdict.

Thereafter, the State moved to strike Mr. Charles for cause arguing that he would not be able to render a verdict of guilty. The State claimed that Mr. Charles only answered that he would be able to find the Defendant guilty after defense counsel misrepresented the burden of proof required to convict. After hearing arguments from both the prosecution and the defense, the trial court granted the State's challenge for cause.

The Defendant argues that there was no basis for the trial court to grant the State's challenge for cause because once defense counsel explained the law, Mr. Charles indicated that he would follow the law and render a verdict regardless of the sentence imposed. However, it is well established that when assessing whether a challenge for cause should be granted, the trial judge must look at the juror's responses during his or her entire testimony, not just "correct" isolated answers or, for that matter, "incorrect," isolated answers. State v. Washington , 15-0819, pp. 4-5 (La. App. 4 Cir. 2/17/16), 187 So.3d 71, 74, writ denied, 16-0488 (La. 3/31/17), 217 So.3d 358 (citation omitted). Thus, despite Mr. Charles eventually indicating he would to be able to render a verdict based on the law as instructed, his responses as a whole displayed confusion as to the applicable burden of proof and reluctance to find the Defendant guilty given the mandatory life sentence. See State v. Mickelson , 12-2539, p. 13 (La. 9/3/14), 149 So.3d 178, 187 (citations omitted)(noting a challenge for cause should be granted, even when a prospective juror declares his or her ability to remain impartial, if the juror's responses, as a whole, reveal facts from which bias, prejudice, or inability to render a judgment according to law may be reasonably inferred).

A trial judge is vested with broad discretion in ruling on challenges for cause, and such a ruling is subject to reversal only when a review of the entire voir dire reveals the judge abused his discretion. State v. Dotson , 16-0473, p. 5 (La. 10/18/17), 234 So.3d 34, 39 (citation omitted). This standard of review is utilized "because the trial judge has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questions by the parties' attorneys." Id. , p. 17, 234 So.3d at 45 (citations omitted). "Such expressions and intonations are not readily apparent at the appellate level where review is based on a cold record." Id. Considering the trial court's enhanced perspective in evaluating a prospective juror, along with Mr. Charles' equivocal responses concerning his willingness and ability to apply the law correctly, we cannot find that the trial court abused its discretion in granting the State's challenge for cause concerning Mr. Charles.

In his second assignment of error, the Defendant asserts that the trial court erred in allowing Federal Bureau of Investigation Agent Jim McNelis to testify regarding statements made by another witness, Bruce Simmons. Simmons, who "grew up with" the Defendant, testified in the State's case-in-chief that the Defendant (also known as "Joey Cracker") and the Defendant's brothers, Josh and Jermaine Morgan (also known as "Pookie"), were upstairs inside the Chat Room with him at the time of the shooting. Simmons denied making a statement to an FBI agent that Josh was worried when the shooting occurred because he could not find his brother, Joey Cracker. Later during trial, Agent McNelis testified that when he spoke with Simmons the day after the incident, Simmons said only Pookie and Josh were with him inside the club when the fight began outside and that Josh was concerned because he could not find Joey Cracker. Agent McNelis also stated that Josh used Simmons' cell phone and again conveyed that he was concerned about "his brother, Joey Cracker, because he was outside the club." Agent McNelis further indicated that Simmons permitted him to look at his cell phone to confirm the telephone calls were placed. Defense counsel objected to Agent McNelis testimony as hearsay. In response, the State argued that it was entitled to impeach Simmons' former testimony. The trial court overruled the objection.

On appeal, the Defendant does not specifically challenge Agent McNelis' testimony based on hearsay. In fact, he concedes Simmons' prior statement is non-hearsay under La. C.E. art. 801(D)(1)(a). Instead, the Defendant claims that the State called Simmons as subterfuge in order to introduce his prior statement into evidence in violation of Whitehurst v. Wright , 592 F.2d 834, 839 (5th Cir. 1979) (where the Fifth Circuit held "impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.") (citation omitted).

First, the Defendant did not specifically state these grounds during his objection in the trial court. La. C.Cr.P. art. 841(A) requires that a defendant present the grounds upon which an objection is made, and a defendant is limited on appeal to those grounds made at the time of the objection. See also , State v. Jackson, 450 So.2d 621, 634 (La. 1984) (citation omitted) (a defendant must state the basis for his objection to provide the trial judge with an opportunity to make the proper ruling and prevent or cure an error.) Since the Defendant failed to object on this basis in the trial court, the issue is not preserved for appellate review.

Nevertheless, a review of the trial transcript does not suggest that the State's primary intention of calling Simmons to testify was to introduce otherwise inadmissible testimony into the record. Although the record establishes that Simmons was incarcerated at the time of trial on a material witness bond because he did not want to cooperate with the prosecution, it also reveals that the State was under the impression that Simmons was going to provide testimony consistent with the statement he provided Agent McNelis, i.e. that the Defendant was not on the second floor of the Chat Room at the time of the shooting. The State further maintained in its closing arguments that Simmons' testimony on the stand was a surprise. In particular, the State indicated that had it known that Simmons would provide the Defendant with an alibi, it would not have called Simmons as a witness for the State. Given that the record suggests that the State was unaware that Simmons' testimony was going to be inconsistent with his earlier statement, we do not find that the State merely called Simmons as subterfuge to introduce the contents of his statement to Agent McNelis into evidence.

Moreover, other witnesses placed the Defendant outside the Chat Room around the time of the shooting, which corroborates Simmons' previous statement. In particular, Kendrell Martin, who was close to the victim during the incident, identified the Defendant as the person who killed the victim. Sandy Ruffin, a security guard at the Chat Room, also testified at trial that the Defendant was one of the shooters outside the club. Charles Harris, who knew both the victim and the Defendant from his prior employment as a camp counselor, identified the Defendant as the first to shoot and testified that the Defendant killed the victim. Thus, the prior inconsistent statement was admissible as substantive evidence. See La. C.E. art. 801(D)(1)(a) ; State v. Duncan, 11-0563, p. 25 (La. App. 4 Cir. 5/2/12), 91 So.3d 504, 520 (providing that the witnesses' prior inconsistent out-of-court statements could be admitted as substantive evidence of the offense rather than solely for purposes of impeachment where there was evidence corroborating the prior inconsistent statements).

Finally, considering the plethora of evidence placing the Defendant at the crime scene, the verdict was surely unattributable to any error in admitting the evidence. See State v. Thomassie , 16-0370, p. 11 (La. App. 4 Cir. 12/21/16), 206 So.3d 311, 317, writ denied , 17-0186 (La. 2/24/17), 216 So.3d 60 (the erroneous admission of evidence is subject to the harmless error analysis). As such, any error on part of the trial court in admitting Agent McNelis' testimony as to Simmons' prior inconsistent statement was harmless.

CONCLUSION

Considering the foregoing, the Defendant's conviction is affirmed. However, the sentence is vacated and the case is remanded for re-sentencing.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED

      At the time of the offense, the Defendant was a juvenile.

      The bill charged Defendant and Taivon Aples with second degree murder. The trial court subsequently granted a motion to sever their trials on December 9, 2011.

      Though the trial court noted that the verdict was in proper form and responsive to the bill of indictment, it is unclear as to whether the verdict was unanimous.

      At the sentencing hearing, the trial court explained that the Defendant's life sentence would include the possibility of parole, pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), due to the fact that the Orleans Parish Public Defender's Office could not provide funding for the necessary expert to testify on sentencing issues.

      The record reveals that the trial court granted Defendant's motion for appeal prior to sentencing. Thus, the motion for appeal was granted prematurely. Although a defendant can take an appeal only from a conviction and sentence, this Court has held that an appeal taken prior to sentencing will not be dismissed "because '[d]ismissing the appeal would simply result in a delay of the appellate process and hinder defendant's right to appeal.' " State v. King , 15-0770, p. 3 (La. App. 4 Cir. 12/23/15), 184 So.3d 215, 217-18 (citations omitted). Therefore, the error in this regard is harmless.

      This Court granted the Defendant's motion to file a supplemental brief. The brief was due on April 5, 2018. As of the date of this opinion, the Defendant has not filed his supplemental brief.

      The victim (also known as "G" or "Gee") was a member of the Get Money Boys gang.

      The testimony specifically revealed that the Defendant shot first while Aples pointed his gun towards the crowd. As the victim was attempting to crawl to the neutral ground, Aples shot the victim again followed by additional shots from the Defendant.

      See also La. C.Cr.P. art. 511 ("[t]he accused in every instance has the right to defend himself and to have the assistance of counsel"); La. C.Cr.P. art. 514 ("[t]he minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant's right to counsel, including the right to court-appointed counsel, and that he waived such right"); and State v. Washington , unpub. 07-1474, 2008 WL 8927869, at *2 (La. App. 4 Cir. 5/21/08) (vacating the defendant's sentence when the transcript indicated only the defendant and assistant district attorney appeared and no defense counsel was present for resentencing hearing).

      The Defendant raises this issue in one of his assignments of error and the State concedes in its brief that the matter should be remanded for resentencing.

      Additionally, the trial court did not include that the sentence was to be served at hard labor without the benefit of probation or suspension of sentence. Although these issues are self-correcting, any omission is moot since the sentence is vacated.

      A defendant does not have grounds to complain about the granting of a prosecution's challenge for cause, unless the effect of the ruling is to allow the prosecution to exercise more peremptory challenges than is allowed by law. La. C.Cr.P. art. 800(B) ; see also State v. Nellum , 13-0360, p. 12 (La. App. 4 Cir. 2/12/14), 136 So.3d 120, 128. Here, the prosecution used all twelve of its peremptory challenges. Thus, the Defendant has a ground for complaint.

      Specifically, the State questioned each juror about whether he or she could render a guilty verdict knowing that the sentence for second degree murder is life in prison, and Mr. Charles responded "no, no, no."

      Mr. Charles stated :
      Did you say beyond a reasonable doubt or beyond possible reasonable-beyond possible reasonable doubt, that's where I have to be there beyond all possible reasonable, beyond possible reasonable doubt, because you are saying you have to be there. Beyond a reasonable case means your case is proven by, you know, common sense and facts. That is what you are saying?
      Then the State explained that it believed he understood correctly, explaining that jurors evaluate the evidence using common sense. Mr. Charles then explained that "the judge down stairs" described two burdens "beyond a reasonable doubt and beyond possibility."

      As noted by the State in its brief, no gun was recovered in this case.

      Though the Defendant did not raise an objection by incantation, the record establishes that the Defendant made his desire to retain Mr. Charles known at the time of the ruling. While defense counsel accepted the State's for cause strikes of other jurors without argument, he argued that Mr. Charles was rehabilitated. See La. C.Cr.P. art. 841 ; State v. Clark , 12-0508, p. 99 (La. 12/19/16), 220 So.3d 583, 663.

      Defense counsel also objected to Agt. McNelis' testifying about what Simmons' overheard on the telephone call as double hearsay. The trial court also overruled this objection.

      Defense counsel also subsequently raised the issue in its motion for new trial, which was also denied by the trial court.

      La. C.E. art. 801(D)(1)(a) provides a statement is not hearsay if the "declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is *** [i]n a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness' attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement."

      La. C.E. art. 607(A) provides that a witness's credibility may be attacked by any party, including the party calling him. Article 607 Subsection (D)(2) specifically allows the introduction of prior inconsistent statements to contradict a witness's testimony. However, the Defendant points out that the comments to the La. C.E. art. 607(A) provide that "the court should prohibit a party's attacking the credibility of his own witness when it is clear that he is doing so primarily with the intention or effect of adducing otherwise inadmissible evidence, typically a prior inconsistent statement, on the pretext of attacking credibility." La. C.E. art. 607, 1998 Comment (a) (citations omitted).

      The transcript provides, in part:
      Ladies and Gentlemen, if he had told me that the defendant was with him at the time of the murder upstairs in the club, he certainly wouldn't have been a State witness, we wouldn't have been calling him. That day in court was the first time he had ever said anything like that and it was when he got into court and took that stand and was facing Joseph Morgan and his entire group that was sitting behind him.

      In particular, Harris, Ruffin, and Martin all identified the Defendant as one of men who shot the victim. Ronnie Jessemy, Jr., the owner of the Chat Room, described one of the perpetrators as "small and skinny" "with twists, with dreads" and a photograph taken the night of shooting shows that Defendant had braids or dreads. The 911 calls introduced by the State also indicated that one suspect in the shooting was slim, had dreads, and was light skinned, which was consistent with other witnesses' description and the Defendant's appearance at the time.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    Alice HENDERSON, Plaintiff-Appellant v. STATE FARM MUTUAL, Defendant-Appellee Automobile Insurance Company
    No. 51,567-CA
    Court of Appeal of Louisiana, Second Circuit.
    August 9, 2017
    ANTHONY BRUSCATO Counsel for Appellant
    DAVENPORT, FILES, & KELLY, LLP Counsel for Appellee By: Martin Shane Craighead
    Before DREW, STONE, and BLEICH (Pro Tempore), JJ.
   STONE, J.

Alice Henderson appeals the trial court's judgment finding State Farm Mutual Automobile Insurance Company was not arbitrary, capricious, or without probable cause in denying her insurance claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 6, 2015, Alice Henderson ("Henderson") backed her 2005 Lincoln Town Car into a concrete pillar ("pole"). Henderson alleged her insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), instructed her to take the vehicle to Hixson Ford of Monroe ("Hixson Ford") for an estimate of the damages. On March 17, 2015, Henderson's vehicle was inspected by Bridget Moseley, who estimated $1,748.77 in damages. The estimate included damage to the vehicle's left rear bumper and replacement of the impact bar and a deflector.

According to State Farm, Henderson was not instructed to take her vehicle to Hixson Ford, but to Lee Edwards Mazda in Monroe. After becoming aware of the miscommunication, State Farm told Henderson to take the vehicle to Lee Edwards Mazda. On May 18, 2015, Henderson took the vehicle to Lee Edwards Mazda where it was inspected by Lisa Chain ("Chain"). Chain estimated the damages to the left rear bumper at $1,167.77. Chain wrote a check to Henderson totaling $916.77, which was the estimate minus Henderson's $250 deductible.

Three weeks later, Henderson contacted State Farm to complain that the vehicle had "sat down" on its tires, and State Farm had the vehicle towed to Hixson Ford. On April 7, 2015, Donnie Vocker ("Vocker") inspected the vehicle's air suspension system, including the vehicle's air compressor that inflates the rubber bladders when the vehicle is cranked. Vocker explained that the air compressor seized up because it was working too hard and activating more often to compensate for air loss in the rubber bladders. Vocker attributed the air loss to uniform "dry rot" cracks in the rubber bladders. Vocker determined the dry rot cracks were not a result of the accident, but the result of normal wear and tear based on the age of the vehicle. Vocker shared his diagnosis with State Farm adjuster, Randy Debruhl ("Debruhl"), who also observed significant dry rotting in the rubber bladders. Ultimately, Henderson's insurance claim was denied.

Henderson subsequently filed suit against State Farm claiming that State Farm unreasonably failed to repair the vehicle. A trial on the matter was held on May 3, 2016. On July 7, 2016, the trial court found there was insufficient evidence to prove the vehicle's air suspension system failed because of the accident. The trial court rendered a final judgment declaring State Farm was not arbitrary, capricious, or without probable cause in denying Henderson's insurance claim. Henderson now appeals.

DISCUSSION

Henderson claims State Farm breached its duty under La. R.S. 22:1892 and 1973 to adjust her insurance claim fairly and in good faith. According to Henderson, State Farm had a statutory obligation to perform adequate tests on the vehicle's air suspension system and not simply rely on Vocker and Debruhl's "visual inspection." Despite hearing testimony from mechanic Frank Walters ("Walters") that the rubber bladders were not suffering from air loss, Henderson argues State Farm continues to arbitrarily deny her insurance claim.

An insurer owes its insured a duty of good faith and fair dealing. As such, an insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims. La. R.S. 22:1973(A). Both La. R.S. 22:1892(B)(1) and La. R.S. 22:1973(B)(5) and (C) provide for penalties, including attorney fees, against an insurer whose failure to pay a claim after receiving satisfactory proof of loss is found to be arbitrary, capricious, or without probable cause. Both statutes are penal in nature and must be strictly construed. Cooper v. Farmers Ins. Exch. , 50,978 (La. App. 2 Cir. 11/23/16), 210 So.3d 829, 832 ; Jones v. Johnson , 45,847 (La. App. 2d Cir. 12/15/10), 56 So.3d 1016, 1021.

To prevail under 22:1892(B)(1), the claimant must establish that the insurer received satisfactory proof of loss, failed to pay the claim within the applicable statutory period, and that the failure to timely tender a reasonable amount was arbitrary and capricious. Cooper, supra ; Jones, supra . Satisfactory proof of loss within the meaning of the statute is that which is sufficient to "fully apprise the insurer of the insured's claim." McDill v. Utica Mutual Ins. Co. , 475 So.2d 1085 (La. 1985) ; Cooper , supra ; Jones , supra .

Moreover, for the court to assess penalties and attorney fees, the claimant must show that the insurer was in fact arbitrary, capricious, or without probable cause in refusing to pay. Cooper , supra . The phrase "arbitrary, capricious, or without probable cause" is synonymous with "vexatious" and means a refusal to pay that is unjustified and without a reasonable or probable cause or excuse. Reed v. State Farm Mut. Auto. Ins. Co., 2003-0107 (La. 10/21/03), 857 So.2d 1012, 1021 ; Cooper , supra . Thus, penalties and attorney fees are inappropriate when the insurer has a reasonable basis to defend the claim and was acting in good faith reliance on that defense. Guillory v. Lee , 2009-0075 (La. 06/26/09), 16 So.3d 1104 ; Cooper , supra . This is especially true when there is a reasonable and legitimate question as to the extent and causation of a claim; bad faith should not be inferred from an insurer's failure to pay within the statutory time limits when such reasonable doubt exists. Guillory, supra ; Cooper , supra .

Whether the insurer's actions were arbitrary, capricious, or without probable cause is a question of fact, and the trial court's finding should not be disturbed absent manifest error. Cooper , supra ; Jones, supra.

At trial, Vocker testified he had over 40 years of experience working on air suspension systems. He stated that after five to six years, a Lincoln Town Car's air suspension system will begin experiencing issues. According to Vocker, as a vehicle ages, the rubber bladders in the vehicle's air suspension system gradually deteriorate or "dry rot" and cracks develop in them. Vocker asserted as a result of the cracks the rubber bladders will suffer air loss, which forces the air compressor to work harder in order to keep the rubber bladders inflated.

Through photographs taken by Debruhl, Vocker showed the trial court the uniform dry rot cracks he observed in the rubber bladders of Henderson's vehicle. Vocker asserted the dry rot cracks caused the rubber bladders to lose air, which resulted in the air compressor seizing up. Vocker testified that the rubber bladders were "really" dry-rotted, and observed no gashes or cuts in them indicative of collision damage. Vocker maintained that Henderson's accident could not have caused the cracks in the rubber bladders, and called the air suspension system's failure soon after Henderson's accident a "coincidence."

Debruhl has been a State Farm adjuster for 13 years inspecting damaged and wrecked vehicles. Debruhl stated he often relies on experts in assessing collision-related damages, especially on mechanical and electrical issues. After speaking with Vocker and inspecting the vehicle, Debruhl opined the vehicle's suspension issues were not caused by Henderson's accident. Like Vocker, Debruhl observed significant dry rotting around both rubber bladders in the vehicle, and uniform dry rot cracks around the rim of the rubber bladders. Debruhl did not observe any damage to indicate the cracks in the rubber bladders were collision-related. Since the vehicle's suspension issues were the result of normal wear and tear, Debruhl reported to State Farm that Henderson's claim was not covered under her insurance policy.

A day after trial concluded, Henderson filed a motion to allow additional testimony in order to rebut the testimony of Vocker and Debruhl. The trial court granted the motion, and Henderson presented Walters' testimony. Walters testified Henderson invited him to her home on May 5, 2016, to diagnose the issue with the vehicle's air suspension system. Upon arriving, Walters stated he replaced the vehicle's air compressor with a new one Henderson purchased earlier in the day. After cranking up the vehicle, the new air compressor turned on and the rubber bladders inflated.

Thirty minutes after installing the new air compressor, Walters noticed the rubber bladders were not suffering air loss. However, Walters admitted the vehicle was not lifted in order for him to actually inspect the condition of the rubber bladders. From his experience, Walters claimed the majority of air compressors fail because of water getting sucked into them. Walters could not say if the air compressor in Henderson's car failed because of the collision. He claimed his only experience with a collision-damaged air compressor was from a front-end collision and not a rear-end collision as in the instant case.

After a review of the record, we find State Farm was not arbitrary, capricious, or without probable cause in denying Henderson's insurance claim. The trial court concluded Henderson failed to meet her burden of proving the accident caused the failure of her vehicle's air suspension system. The trial court was obviously persuaded by the only qualified expert in this case, Vocker, and by Debruhl's testimony that the failure of the air suspension system was due to dry rot cracks in the rubber bladders. Although Walters testified the rubber bladders did not suffer any air loss after he installed a new air compressor, he never inspected the vehicle to determine whether or not the dry rot cracks in the rubber bladders could have caused the air compressor to seize up.

Debruhl testified in order for Henderson to recover under her State Farm insurance policy, she had to show the failure of her air suspension system was due to the accident, and not the result of wear and tear or mechanical malfunction. Neither Vocker, Debruhl, nor Walters could testify that the air suspension system's failure was caused by the accident. Accordingly, we find no manifest error in the trial court concluding State Farm was not arbitrary, capricious, or without probable cause in denying Henderson's insurance claim.

CONCLUSION

For the foregoing reasons, the trial court's judgment declaring State Farm was not arbitrary, capricious, or without probable cause in denying Henderson's insurance claim is affirmed. Costs of this appeal are assessed to Henderson.

AFFIRMED.

      Henderson testified that she hit the pole on March 6, 2015. However, State Farm documented the date of loss as March 12, 2015. Henderson admitted that the accident "could have" occurred on March 12, 2015.


author: MOORE, J.

text:
    Angela M. WELCH, Plaintiff-Appellant v. Norman A. WELCH, Defendant-Appellee
    No. 51,566-CA
    Court of Appeal of Louisiana, Second Circuit.
    August 9, 2017
    MAMIE FRANKLIN, Counsel for Appellant
    RON CHRISTOPHER STAMPS, Counsel for Appellee
    Before BROWN, MOORE, and STONE, JJ.
   MOORE, J.

Angela Welch appeals a judgment that denied her claims for interim and final spousal support. For the reasons expressed, we affirm.

FACTUAL BACKGROUND

The Parties' Pleadings

According to Angela's petition, she and the defendant, Norman Welch, got married on September 14, 2012, in Shreveport; they had no children together; they established a marital home on Bert Kouns, in the Summer Grove area of Shreveport; and Norman left that home on December 16, 2015.

Angela filed this petition for Art. 102 divorce on April 12, 2016. She demanded interim and final spousal support. In an income-and-expense affidavit filed in August 2016, she claimed she was drawing unemployment benefits ("UI") of $660 a month and earning about $800 a month cleaning people's houses; she claimed monthly expenses of $2,311. Notably, her expenses included rent or house note of $1,000, auto insurance of $150, and utilities (gas, water, electric) of $312.

Three months later, Norman filed his income-and-expense affidavit, claiming income of $2,150 a month (in brief, he asserts this was actually a bimonthly amount), less withholdings and deductions of $1,516, leaving him only about $258 net. He claimed monthly expenses of $7,189, creating a monthly deficit of $6,930. Notably, his expenses also included a house note of $1,400 and utilities of $370, both for the house on Bert Kouns, and auto insurance of $350, covering the car Angela was driving.

Shortly before the hearing, Angela filed an amended affidavit that her housecleaning income had dropped to $200-$400 a month, so her total income was now a mere $860-$1,060.

Trial Testimony

At the hearing on final divorce and spousal support, December 5, 2015, the district court granted the parties' Art. 102 divorce and reserved their rights to partition any community property. The court also addressed various discovery matters. Both parties testified that this was their second time to be married to each other.

Angela testified that they got remarried because Norman told her he wanted to get back together; during their marriage, Norman worked and paid all the bills, and was "happy" for her to stay home. She admitted that her two adult sons of a prior marriage, ages 34 and 27, were living with her at the house on Bert Kouns. However, she insisted this was not why Norman "wouldn't live there," and, in fact, he usually drove them to work with him at International Paper (where they were all employed). She also admitted that most of the time, her sons were not contributing to household expenses.

She also admitted that as a result of a fall, she was treated by a Dr. Boyd, in Shreveport, who gave her Tramadol, which she insisted was not a narcotic, and that she then went to a pain-management doctor in Center, Texas, Dr. Florencio Singson, who was giving her Lortab, also an opioid. She agreed that Dr. Singson advertises himself as an "addiction doctor," but maintained that he was also a general practitioner. She denied ever being treated for opiate addiction or having any problems with opiates.

Norman testified that he had never actually lived in the marital home on Bert Kouns. He had intended to, and had placed some clothes and belongings there, but he would not move into a house with two grown men: "You cannot have grown men in the house and live together. It does not work." He admitted knowing about Angela's sons before they remarried, but he "figured" they would move out if he moved in; he considered this a "condition" of their remarriage, and it did not happen. The sons were there "24-7," as he put it. He added that he was renting that house to own, and had always paid the rent, utilities, and Angela's car insurance, but he could not afford to continue. He quit paying water and electricity in February 2016, leading DOWAS and AEP Swepco to disconnect the services.

Norman also testified that Angela had "always had an issue" with Lortab, the situation being at times "intolerable." Although she had legitimately injured her neck, he felt she was taking much more medication than was needed for the pain, and he knew (from an Internet search) that Dr. Singson is an "addiction doctor." On cross-examination, he admitted smoking marijuana occasionally and giving Angela money to buy Lortab, "off the street" at times. He summarized that Angela's addiction and two grown sons living at the house were the source of the marital problems.

One of Angela's sons, 34-year-old John, confirmed that he had lived in the house on Bert Kouns ever since Norman leased it; that Norman paid the electric and water bills in the house; but these utilities were cut off in the "early summer," after which he (John) and Angela had to put down new deposits to get them restored.

ACTION OF THE TRIAL COURT

The court ruled from the bench that Angela was not free from fault. The court cited the "issue with pain, prescription medication" and that an adult child living in the home "would have been reason for the parties to have argued and for him [Norman] not to have returned home."

As to interim support, the court found that the parties' affidavits did not show that Angela needed it: disallowing the rent and utilities that she claimed as expenses, but that Norman had actually been paying, Angela made enough to cover her expenses. Further, Norman paid these bills from December 2015 through June 2016, thus satisfying his obligation of interim support. Nevertheless, the court ordered Norman to make a one-time payment of $500, to reimburse the utility deposits.

The court rendered judgment denying interim and final support on December 16, 2016. Angela took this devolutive appeal, raising two assignments of error.

DISCUSSION

Interim Support

By her first assignment of error, Angela urges the court erred in denying her request for interim spousal support. She shows that such support is based on the "needs of the party, the ability of the other party to pay, and the standard of living of the parties during the marriage,"

La. C.C. art. 113, and that each party must file appropriate documentation of past and current income, La. R.S. 9:326 A. As to the parties' prior standard of living, she contends that during their marriage, she did not regularly work outside the home, and Norman preferred it that way. As to her needs, she argues that since July 2016, she has been drawing UI of $660 a month; work cleaning a lady's house for $200 a week was cut to only once or twice a month, thus reducing her total income to $860-$1,060 a month. As to Norman's ability to pay, she argues that he makes a handsome living as an HVAC technician and admitted earning twice as much as the $2,150 listed in his affidavit; in fact, she projects he must earn at least $51,600 a year, and perhaps as much as $100,000 a year, considering his claimed expenses of $7,189 a month. She concludes the court erred in denying interim support "when it is evident" that she is in need and Norman has the means to pay.

Interim spousal support is regulated by La. C.C. art. 113, which provides, in pertinent part:

A. Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, any interim allowance or child support obligation, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce.
B. If a claim for final spousal support is pending at the time of the rendition of the judgment of divorce, the interim spousal support award shall thereafter terminate upon rendition of a judgment awarding or denying final spousal support or [180] days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond [180] days from the rendition of judgment of divorce, but only for good cause shown.

The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Brown v. Brown , 50,833 (La. App. 2 Cir. 8/10/16), 200 So.3d 887. The needs of the claimant spouse have been defined as the total amount sufficient to maintain her in a standard of living comparable to what she enjoyed prior to the separation, limited only by the paying spouse's ability to pay. Amos v. Amos , 47,917 (La. App. 2 Cir. 2/27/13), 110 So.3d 1243. The trial court is vested with much discretion in determining an award of interim spousal support. Brown v. Brown , supra . This court has considered payment of the wife's house note and utilities as satisfying the "standard of living" requirement of Art. 113. Reed v. Reed , 50,191 (La. App. 2 Cir. 11/18/15), 182 So.3d 219.

The record easily establishes that Angela had a monthly income of between $860 and $1,060, and expenses (after disallowing expenses actually paid by Norman) of $849. Although the margin is admittedly slim, we cannot say the district court abused its discretion in finding that Angela had income sufficient to cover her valid expenses. The record also establishes that Norman paid Angela's house note, utilities, and car insurance for seven months after their physical separation. The district court could well consider this as discharging Norman's Art. 113 obligation.

Reed v. Reed , supra. As Norman had never even lived in the house and Angela's sons were getting the use of it, seven months was a reasonable period of adjustment. On this record, we perceive no abuse of discretion. This assignment lacks merit.

Final Support

By her second assignment of error, Angela urges the court erred in denying her request for final periodic support. She cites the requirement that the spouse be free of fault, La. C.C. art. 111, and the factors affecting the amount of support, La. C.C. art. 112 C. She contends that the court assigned "fault equally to both parties," and argues that her fault-use of prescription drugs and the "decisions" of her adult children-were not serious enough to provide an independent, contributory or proximate cause of the breakup, Gremillion v. Gremillion , 39,588 (La. App. 2 Cir. 4/6/05), 900 So.2d 262. She submits that the only conduct of a serious nature, forming an independent and actual cause of the breakup, was Norman's refusal to live with his wife. She asks this court to reverse and to fix final support.

In a proceeding for divorce or thereafter, the court may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage. La. C.C. art. 111 ; Rhymes v. Rhymes , 2013-0823 (La. 10/15/13), 125 So.3d 377, 299 Ed. Law Rep. 346. A spouse seeking support need not be perfect to be free from legal fault. "Fault" contemplates conduct or substantial acts of commission or omission by a spouse that violates his or her marital duties and responsibilities. Only misconduct of a serious nature, providing an independent, contributory or proximate cause of the breakup, will constitute legal fault. Pearce v. Pearce , 348 So.2d 75 (La. 1977) ; Brown v. Brown , supra . The trial court has vast discretion in determining entitlement to final periodic support; a finding of fact on the issue of fault will not be disturbed unless it is manifestly erroneous or clearly wrong. King v. King , 48,881 (La. App. 2 Cir. 2/26/14), 136 So.3d 941, and citations therein.

The district court faced the basic task of resolving conflicting testimony. Norman testified that having Angela's adult sons from a prior marriage move out was a condition of remarrying her, as living with two other grown men in the house was not sustainable; she failed to get them to leave. Angela testified, on the other hand, that Norman never said anything about getting the boys to leave. She felt that their continued presence in the house was not the reason why Norman refused to move in, but she offered no other reason. She felt Norman and her sons got along well, as Norman drove them to work at IP; however, a rational fact finder could conclude that this was mostly Norman's attempt to make Josh and John more independent and likely to find their own place. On this record, we cannot say the district court abused its discretion in accepting Norman's version of the parties' agreement and frustrated home life.

We recognize that a course of conduct, such as drinking, when it is approved and consented to by both spouses, cannot constitute mutual fault. Jenkins v. Jenkins , 38,873 (La. App. 2 Cir. 9/22/04), 882 So.2d 705, and citations therein. The testimony shows that Angela sustained a neck injury and used prescription opioids, and that Norman had given her money to buy Lortab"off the street." However, Norman felt that she was taking much more medicine than necessary, the situation was at times intolerable, and he criticized her going to Center, Texas, to see an "addiction doctor." Angela, by contrast, seemed oblivious that she had a problem, and even insisted (incorrectly) that Tramadol was not a narcotic. On this record, the district court could reasonably find that Norman did not condone Angela's continued drug use, and that her conduct was an independent, contributory and proximate cause of the breakup. We perceive no manifest error in the court's finding that Angela was not free from fault as required for final periodic support under Art. 111. This assignment lacks merit.

CONCLUSION

For the reasons expressed, the judgment is supported by the record. The judgment is therefore affirmed, with Angela M. Welch to pay all costs.

AFFIRMED .

      This court notes that the legal fault of a spouse prior to reconciliation cannot be the basis for denying that spouse final periodic support. La. C.C. art. 104 ; Shirley v. Shirley , 48,635 (La. App. 2 Cir. 10/16/13), 127 So.3d 935.

      Tramadol is, in fact, designated as a Schedule IV narcotic drug, La. R.S. 40:964, Sched. IV, A(3), and is considered an "atypical opioid," La. Adm. C. 40:I, § 2311 G(7)(k).


text:
    STATE of Louisiana, Appellee v. Kevin BOWERS, Appellant
    No. 51,545-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 9, 2017
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, MONIQUE METOYER, MEKISHA SMITH CREAL, ERICA N. JEFFERSON, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, PITMAN, and COX, JJ.
   MOORE, J.

The defendant, Kevin Bowers, was charged with one count of second degree murder for fatally shooting Dajuan Kennedy, a violation of La. R.S. 14:30.1. After trial, the jury returned a guilty verdict of manslaughter, La. R.S. 14:31. Subsequently, Bowers was adjudicated a fourth-felony offender, and the court sentenced him to life imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. Bowers' motion to reconsider sentence was denied. This appeal followed in which Bowers challenges the sufficiency of the evidence for the verdict of manslaughter. For the follow reasons, we affirm the conviction and sentence.

FACTS

During the early morning hours of August 28, 2014, Shreveport police officers were dispatched to the residence located at 4136 Jacob Street in response to a shooting reported by a 911 call. At the residence, they found DaJuan Kennedy lying face down in the driveway. Paramedics had already determined that Kennedy was dead. Including the victim and the defendant, there were five men present during the moments before and during the shooting who testified as witnesses to all or part of the incident.

Jeremy Shepard, Kennedy's uncle, testified that he and his brother, Roderic Kennedy ("Roderic"), were living in their grandparents' house at 4136 Jacob Street the night that the shooting occurred. Shepard testified that he and Roderic were sitting on a little brick patio in the front of the house. Their nephew, DaJuan Kennedy, arrived around 10:30 p.m. The three men sat in the front yard, talking and drinking beer, and were later joined by Rajohn Chapman.

Shepard testified that around midnight, Bowers drove by the house in a "burgundy Ford," and Chapman flagged him down. Bowers remained in his vehicle while Chapman went out to the vehicle to talk with him. As Roderic approached the vehicle, Bowers accused Shepard of sending Roderic out. Shepard denied sending Roderic, but Bowers began calling Shepard and Kennedy "bitch-ass niggas." Kennedy was offended and challenged Bowers to a fight. Kennedy took off his white T-shirt, stepped onto the home's driveway and asked Bowers again whether he wanted to fight. Shepard testified that Bowers got out of his vehicle and walked toward Kennedy, but Shepard stepped between the two men and broke up the fight. Shepard pulled Kennedy into the front yard and forced him to sit down. Bowers returned to his vehicle and drove off, leaving Shepard, Roderic, and Kennedy in the front yard. Shepard said that he did not observe a gun or any weapon on Kennedy when he removed his shirt. When Kennedy sat down, he put on his shirt, he, Roderic and Dajuan resumed drinking, thinking that the trouble was over. Shepard said that Rajohn was no longer with them, but they were soon joined by another man, Elijah Patton, aka "Poobie."

According to Shepard, five minutes later, Bowers returned to 4136 Jacob Street. He stopped at the front gate of the house. DaJuan and the defendant began having words again and DaJuan was ready to fight. Shepard testified that the defendant said, "y'all bitch-ass niggas really don't want to do this." He got out of the vehicle and walked toward the rear of the vehicle. Shepard stated that he was trying to grab his nephew's (DaJuan) arm and they took off running toward the back of the house. As Shepard and Kennedy ran toward the home, Shepard heard two gunshots. Shepard testified that Kennedy dropped, face first, to the ground after the second shot. Shepard saw Bowers return to his vehicle and drive away. DaJuan told him that he was hit and to call 911. Shepard called 911 and held Kennedy until the ambulance arrived. Shepard denied seeing Kennedy with a gun or removing a weapon from Kennedy's person. Shepard also noted that he was unaware of any prior altercations between Bowers and Kennedy.

Elijah Patton joined the men just before the shooting occurred. He testified that he is a friend of the Kennedy family and was present when Kennedy was shot. Patton testified that he arrived at the house around 2:00 a.m. He said that as he pulled up to the home in his vehicle, Bowers drove away from the home. As Patton got out of his vehicle, he observed Roderic, Shepard, and Kennedy sitting at a plastic table in the front yard. Patton said that no one else was present.

According to Patton, Kennedy appeared upset. The three men informed Patton of the argument between Kennedy and Bowers. About five minutes after Patton arrived, Bowers returned and jumped out of his vehicle. Bowers began calling the four men "niggas" and walked up to the fence that surrounds the home's front yard. Bowers turned back to his vehicle and retrieved something from the vehicle's trunk. Patton stated that he immediately ran toward the side of the home with Roderic, and as he ran, Patton heard two gunshots. Patton recalled that Kennedy and Shepard were walking toward Bowers when Patton ran away. When Patton returned to the front yard, he observed Kennedy face down on the ground of the driveway. Like Shepard, Patton testified that Kennedy did not have any weapons on him. Patton also testified that he did not hear anyone tell Kennedy to shoot Bowers, nor did he see Bowers with a weapon.

Like Shepard and Patton, Roderic testified that he had been sitting in the front yard of 4136 Jacob Street for several hours the night of the shooting. Roderic was sitting with Kennedy and Shepard when they were joined by Chapman. Roderic stated that Chapman spoke with them for a few minutes before leaving, and Roderic went into the house to get some beer. When he returned to the front yard, Bowers had arrived and appeared to be arguing with Kennedy. Moments later, Bowers drove off just as Patton arrived. Roderic, Kennedy, Shepard, and Patton sat down and continued drinking in the front yard. A few minutes later, Bowers returned. According to Roderic, Bowers got out of his vehicle, mumbled to himself, opened his vehicle's trunk, and pulled out a rifle. Upon seeing the rifle, Roderic told everyone to run. Roderic testified that he ran to the backyard, and as he ran, he heard a gunshot, followed by a second gunshot about four or five seconds later. Roderic heard a scream and ran back to the front yard and saw Kennedy face down on the ground. Kennedy tried to lift his head, but Roderic instructed him not to move. Roderic then called 911, and Kennedy died while waiting for the ambulance. Roderic noted that Bowers fled the scene as Roderic returned to the front yard.

Roderic denied that he had an argument with Bowers or asked him to return the scale he borrowed from Shepard. Roderic also testified that Kennedy was unarmed, and he did not tell Kennedy to shoot Bowers.

Dr. Long Jin, the forensic pathologist who performed Kennedy's autopsy, testified at trial describing the path of the bullet and the cause of death. Dr. Jin stated Kennedy was shot in his left back. The bullet moved slightly upward, through Kennedy's spinal cord, right lung, diaphragm, and liver, and exited his right chest. Kennedy bled to death as a result of being shot. Dr. Jin found that the nature of the wound was consistent with someone running. Dr. Jin also testified that he believed Kennedy was originally lying face up on the ground because of abrasions on his body that are consistent with turning him over. Dr. Jin noted that there was no soot in the wound ; therefore, Kennedy was not shot at close range.

Several other non-eyewitnesses, police officers and detectives testified at the trial regarding what they learned, knew or witnessed near or after the shooting. Sergeant Carter, one of the several Shreveport Police Department officers who were dispatched to the scene, testified that he and Corporal John Madjerick located two shell casings in the front yard about 6 to 8 feet apart. The shell casings appeared to be 5.56 casings typically used in AR-15 type assault rifles. Apparently a third shell casing of the same caliber was found nearby. Cpl. Madjerick testified that he located a total of three spent cartridges and one live round at the scene. One unfired cartridge was located near Kennedy's body in the driveway. Cpl. Madjerick testified that the live round, a 10-mm cartridge, was discovered under Kennedy's body as it was being removed from the scene. He stated that the bullet was typically used in a handgun. A gunshot residue test was not conducted on Kennedy's hands because, he said, the results are generally inaccurate. He was unable to determine from where the live round came, and no firearms were recovered. A pair of dice was also recovered but not submitted for fingerprint or DNA analysis.

Katoria Eason, Bowers' aunt, who resides at 4140 Jacob Street, was home when the victim was shot. Eason testified that her nephew, Jemarcus, woke her up in the early hours of August 28, 2014, and the two of them went outside and stood in her front yard. From her location, she observed Kennedy's body on the ground in the front yard. While standing outside, she received a cell phone call from the defendant asking her to check on Kennedy. Eason refused because Kennedy already appeared dead. Eason left her front yard, stood next to a police car, and remained there until she was brought to the police station for additional questioning. Eason said that she attempted to call Bowers again at the police's request; however, when Bowers answered his phone, a police officer took Eason's phone and began speaking to Bowers. Bowers hung up the phone and did not answer subsequent calls. Eason added that Bowers visited her home every day, but she did not see him the night of the shooting.

Police learned that Bowers was hiding within the Quail Creek apartment complex. Upon discovering Bowers in apartment 1000-B, Bowers was restrained by Cpl. McCloskey's K-9 partner, who bit Bowers in the arm. Cpl. McCloskey testified that Bowers was discovered in the rear bedroom attempting to hide in a corner of the room under bed linens.

Corporal Taywania Jackson, who accompanied Cpls. Jones and McCloskey to arrest Bowers, testified that she advised Bowers of his Miranda rights. Bowers told her that on August 28, 2014, he argued with Kennedy's uncle, who instructed Kennedy to shoot Bowers. Bowers claimed he pled with Kennedy to not shoot him and that he shot Kennedy in self-defense. Cpl. Jackson testified that several officers and marshals instructed Bowers not to speak, but Bowers continued to "babble and go on and on."

Shreveport Police Cpl. Jeff Couch testified that on October 8, 2014, he and another officer transported Bowers to the hospital after he was arrested. During transport, Bowers made additional statements recorded on Cpl. Couch's in-vehicle recording device and were delivered to the district attorney's office. During Cpl. Couch's testimony, the recording of Bowers' in-vehicle statements were played for the jury. In the recording, Bowers admitted to shooting Kennedy; however, he was adamant that he was acting in self-defense.

Finally, Detective Dailey testified that he was assigned to this case on August 8, 2014. He spoke with several witnesses. He testified that he showed Patton a six-person photographic lineup, and Patton identified Bowers as the shooter.

The defense called three witnesses: Rajohn Chapman, Katoria Eason, and the defendant. Chapman testified that he arrived at 4136 Jacob Street around 4:30 p.m., prior to the shooting. Chapman stated that Kennedy, Shepard, and Roderic were drinking, but denied seeing drug activity. According to Chapman, Bowers arrived in his vehicle at the home around 11:00 p.m. and invited Chapman to a club to see a rap group perform. Chapman testified that Bowers remained in his vehicle as they spoke, and while they were speaking, Roderic approached Bowers' vehicle and asked Bowers about a scale Shepard had loaned him.

An argument broke out between Bowers, Roderic, and Kennedy. Bowers exited his vehicle and confronted Kennedy in the home's front yard. Kennedy left the front yard, went into the home, and returned with a black handgun. Chapman stated that Bowers, upon seeing the gun, returned to his vehicle and drove away, ducking down as he drove. Chapman then witnessed Kennedy walk to the end of the driveway and point the gun at Bowers' retreating vehicle. Patton arrived as Bowers drove away, and Bowers returned a few minutes later. Chapman testified that Bowers exited his vehicle without a gun and asked Kennedy to put his gun down. Kennedy placed the gun in the back of his pants and removed his shirt, as if preparing to fight. Chapman stated the two men stared at each other for a moment, and Kennedy put his shirt back on and pulled out the gun. Chapman claimed that he heard Roderic tell Kennedy to "bust [Bowers]." Bowers moved to the passenger side of his vehicle and Kennedy pointed the gun at Bowers. Bowers then pulled a gun from his vehicle, and Chapman heard gunshots.

Chapman stated that he was sitting on the home's front porch when two or three shots were fired. After the shots were fired, Chapman claimed that he left the porch and went over to Kennedy, who was lying face down in the front yard. Chapman testified that he turned Kennedy over and, after seeing that Kennedy was bleeding, instructed Shepard to call 911. Chapman testified that he did not see Kennedy's gun, nor did he see anyone remove the gun from Kennedy's body. Chapman then went to 4140 Jacob Street and informed Eason and her family of the shooting. Chapman told Eason what he observed but left the scene without speaking to the police officers as he had several outstanding warrants.

On cross-examination, Chapman testified that he saw Bowers shoot Kennedy and that the impact from being hit propelled Kennedy backwards, but Kennedy fell face down. Chapman also stated that at some point, he turned Kennedy over to see whether he was hit.

Katoria Eason returned to the stand. She testified that she spoke to Chapman after the shooting, and Chapman told her that Kennedy pulled a gun on Bowers and tried to shoot Bowers. Chapman also told her that Kennedy's gun jammed, so Bowers shot him. Eason stated that she relayed this information to the police.

Kevin Bowers testified on his own behalf. He said that he has known the Kennedy family his entire life, and there was no bad blood between the families. Bowers stated that on August 8, 2014, he was temporarily living at 4140 Jacob Street. That night, while returning to 4140 Jacob Street to retrieve some clothes, he stopped at 4136 Jacob Street around 11:00 p.m. Bowers testified that he stopped his vehicle in front of the home at 4136 Jacob Street and observed Shepard, Chapman, Roderic, and Kennedy sitting in the front yard. Bowers, still in his vehicle, spoke to the men and invited them to a club. While Bowers spoke, Roderic approached Bowers' vehicle and asked Bowers to return a scale he borrowed from Shepard. Bowers told Roderic that he did not have the scale, which Bowers said was fine with Shepard but made Roderic angry. Roderic began to argue with Bowers when Kennedy approached Bowers' vehicle and threatened to fight him. In response, Bowers got out of his vehicle, walked to the front of his vehicle, and stood in front of Kennedy, who backed away.

Bowers said he turned to get back into his vehicle when Kennedy walked out to the driveway and pointed a gun at him. Bowers then got into his vehicle and drove away. In his rearview mirror, Bowers saw that Kennedy was still pointing the gun at Bowers' retreating vehicle, and Bowers ducked down and "hit the gas." Bowers testified that he drove for a few minutes but decided to return to 4140 Jacob Street and collect his clothes. Bowers stated that he passed 4136 Jacob Street and stopped in front of 4140 Jacob Street. As he got out of his vehicle, Bowers heard Roderic calling him names. Bowers walked to the passenger side of his vehicle and confronted Roderic. Kennedy ran into the street and yelled at Bowers, who admitted that Kennedy was not holding a gun at that point. Bowers heard Roderic tell Kennedy to shoot him, and Kennedy reached to the back of his pants and removed a black handgun. Kennedy pointed the gun at Bowers, who ducked behind his passenger door and retrieved his gun, a rifle, from the passenger side of his vehicle. Bowers testified that he did not want to "stand here and wait to see if [Kennedy's] going to shoot me" and fired his weapon at the ground. When the gun went off, Bowers stated that everyone in the front yard ran in different directions.

After the first shot, Bowers returned to the driver's side of his vehicle and observed Kennedy standing in the home's front yard, still holding the gun. Bowers claimed that Kennedy appeared to shoot and run at the same time, so Bowers ducked and fired his weapon a second time. Bowers testified that Kennedy was still holding the handgun when he fell to the ground. Bowers said he left the scene and he discarded the rifle by throwing it out of his vehicle window.

Bowers was indicted by grand jury for the second degree murder of Dajuan Kennedy. Bowers entered a plea of not guilty at his arraignment.

After trial and deliberation, the jury found Bowers guilty of the responsive verdict of manslaughter. The trial court ordered a presentence investigation report. Bowers filed motions for new trial and post-verdict judgment of acquittal, which were denied by the trial court. Bowers was adjudicated a fourth-felony habitual offender, and on August 31, 2016, was sentenced to life imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence.

Bowers filed a motion to reconsider sentence, which was denied. This appeal followed.

DISCUSSION

In his sole assignment of error, Bowers contends that the state failed to present sufficient evidence to support the verdict. He maintains that he shot Kennedy in self-defense, and therefore, did not have the specific intent required for a conviction of manslaughter. Bowers asserts that the evidence clearly suggests that the shooting occurred due to the provocation of Kennedy, and a thorough review of the record reveals suspicious testimony on the part of the state's witnesses that is sufficient to create a reasonable doubt as to his guilt.

The state argues that despite certain discrepancies between the witnesses' testimony, there is ample evidence to support the verdict of manslaughter.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the case in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Christopher , 50,943 (La. App. 2 Cir. 11/16/16), 209 So.3d 255 ; State v. Carter , 42,894 (La. App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied , 08-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. 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. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in a light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by that 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 the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Christopher , supra ; State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 09-0372 (La. 11/6/09), 21 So.3d 299.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Broome , 49,004 (La. App. 2 Cir. 4/9/14), 136 So.3d 979, writ denied , 14-0990 (La. 1/16/15), 157 So.3d 1127. If a case rests essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Gipson , 45,121 (La. App. 2 Cir. 4/14/10), 34 So.3d 1090, writ denied , 10-1019 (La. 11/24/10), 50 So.3d 827 ; State v. Broome , supra .

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court affords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Hill , 42,025 (La. App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied , 07-1209 (La. 12/14/07), 970 So.2d 529. Likewise, a reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Thomas , 50,898 (La. App. 2 Cir. 11/16/16), 209 So.3d 234.

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. La. R.S. 14:10(1).

The defendant was convicted by the jury of manslaughter. Defined by La. R.S. 14:31.

A. Manslaughter is:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense 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 has actually cooled, or that an average person's blood would have cooled, at the time the offense was committed.

Regarding the defendant's claim that the homicide was justified by self-defense, La. R.S. 14:20 provides in pertinent part:

A. A homicide is justifiable:

(1) 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.
(2) 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.

When self-defense is raised as an issue by a defendant, the state has the burden of proving beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Allen , 50,703 (La. App. 2 Cir. 8/10/16), 200 So.3d 376 ; State v. Lensey , 50,242 (La. App. 2 Cir. 11/18/15), 182 So.3d 1059, writ denied , 15-2344 (La. 3/14/16), 189 So.3d 1066 ; State v. Johnson , 41,428 (La. App. 2 Cir. 9/27/06), 940 So.2d 711, writ denied , 06-2615 (La. 5/18/07), 957 So.2d 150. 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. Allen , supra ; State v. Lensey , supra . Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary include the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant's knowledge of the assailant's bad character. State v. Allen , supra ; State v. Lensey , supra ; State v. Johnson , supra .

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. Speed , supra ; State v. Allen , 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied , 02-2595 (La. 3/28/03), 840 So.2d 566, 02-2997 (La. 6/27/03), 847 So.2d 1255, cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). It is the province of the jury to resolve conflicting inferences from the evidence. State v. Lattin , 51,372 (La. App. 2 Cir. 5/2/17), 219 So.3d 511 ; State v. Mickens , 31,737 (La. App. 2 Cir. 3/31/99), 731 So.2d 463, writ denied , 99-1078 (La. 9/24/99), 747 So.2d 1118. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness-if believed by the trier of fact-is sufficient to support for a requisite factual conclusion. State v. Lattin , supra ; State v. Jones , 34,863 (La. App. 2 Cir. 8/22/01), 794 So.2d 107, writ denied , 01-2648 (La. 8/30/02), 823 So.2d 938. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence. State v. Mickens , supra .

After review, we conclude that the evidence is sufficient to support Bowers' conviction.

There is no question that Bowers shot and killed Kennedy. Bowers admitted to the shooting and this fact was corroborated by all witnesses present at the shooting. Therefore, this case hinges on whether the jury believed Bowers was acting in self-defense. There is significant disagreement between the witnesses as to whether Kennedy had a gun, and whether he was attempting to shoot Bowers when Bowers shot Kennedy.

The evidence at trial indicated that he police recovered three spent shell casings from Bowers' gun and no spent shell casings from Kennedy's alleged handgun. A live round was found under Kennedy's body when he was moved. While this is consistent with Bowers' testimony that Kennedy's gun jammed as he attempted to shoot Bowers, no gun was found on or near Kennedy, and the witnesses denied removing any gun from Kennedy's clothes.

Dr. Jin testified that Kennedy's wound was consistent with him running, and the physical evidence suggested that Kennedy was shot in the back while retreating from Bowers. Even if Kennedy was armed, by running away, he was disengaging from the conflict, and Bowers was no longer acting in reasonable self-defense. Additionally, Bowers demonstrated that lethal force was not immediately necessary when he shot into the ground and the men, including Kennedy, then fled the front yard.

As noted above, when a defendant charged with a homicide claims self-defense, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. By convicting Bowers of the responsive charge of manslaughter, it appears the jury gave some credence to Bowers' testimony but still found his actions did not constitute self-defense. There is a factual basis in the record to support the conviction. The jury's decision was reasonably based on a credibility call and, as such, it should not be disturbed on appeal.

CONCLUSION

For the foregoing reasons, we affirm the defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      According to Cpl. Alexander, he discovered a shell casing in the ditch across the street from the crime scene. Cpl. Alexander notified the detectives assigned to the case and remained with the shell casing until it was collected as evidence.


author: BLEICH, J. (Pro Tempore )

text:
    STATE of Louisiana, Appellee v. Lester HARRISON, Appellant
    No. 51,553-KA
    Court of Appeal of Louisiana, Second Circuit.
    August 9, 2017
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel for Appellant
    JAMES E. STEWART, SR. District Attorney Counsel for Appellee
    MONIQUE YVETTE METOYER REBECCA ARMAND EDWARDS Assistant District Attorneys
    Before BROWN, GARRETT, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Lester Harrison, was convicted of attempted manslaughter, attempted disarming of a peace officer, and resisting a police officer with force or violence. He received a total sentence of 15 years' imprisonment at hard labor. No motion to reconsider sentence was filed. Harrison now appeals, arguing that his sentence is excessive. For the following reasons, we affirm Harrison's convictions and sentences.

FACTS

On August 31, 2010, around 1:00 a.m., Lester Harrison was loitering at the Greyhound bus station in downtown Shreveport. When Romeo Hill, a bus station employee, asked Harrison to leave, he refused. Harrison even refused to leave when Hill said he would call the police. After seeing that Harrison was armed with a knife, Hill called 911.

Matthew Holloway, who was then an officer with the Shreveport Police Department (the "SPD"), was on patrol downtown and responded to the call. Shortly after he arrived at the bus station, Ofc. Holloway encountered Harrison and tried to conduct a pat-down, but Harrison was fidgety. As Ofc. Holloway attempted to place handcuffs on Harrison, Harrison began to fight him, and the men went to the ground. Harrison stabbed Ofc. Holloway with the knife, cutting his head in two places and puncturing his protective vest in five places. When Ofc. Holloway tried to stand up during the fight, Harrison reached for Ofc. Holloway's gun and the holster unsnapped. Officer Holloway was bloodied and testified that he was "literally fighting for his life." Hill again called 911 to send backup and testified that Harrison threw his knife under a bus when he saw other SPD officers arriving. Once the other officers arrived, they were able to subdue and arrest Harrison.

On October 6, 2010, the state filed a bill of information charging Harrison with attempted first degree murder, attempted disarming of a peace officer, and resisting a police officer with force or violence. On Harrison's motion, the trial court appointed a sanity commission-he had a long history of suffering from paranoid schizophrenia, mild mental retardation, and cocaine dependence. On June 14, 2011, based on the opinions of both doctors who examined Harrison, the trial court determined that Harrison was not competent to proceed, and he was placed in the Feliciana Forensic Facility. Six months later, Harrison was found competent to proceed.

On March 28, 2012, Harrison withdrew his plea of not guilty and entered a plea of guilty and not guilty by reason of insanity. Harrison filed notice of his intent to offer a mental defect defense based on his schizophrenia diagnosis. Thereafter, the state and the defense each filed motions to re-appoint the sanity commission. Harrison was evaluated by three court-appointed doctors throughout these proceedings: Dr. George Seiden, Dr. Marc Colon, and Dr. Richard Williams. Drs. Seiden and Williams concluded Harrison was competent to proceed, and he knew right from wrong at the time of the incident. However, Dr. Colon found that although Harrison was able to assist in his defense, at the time of the offense, Harrison did not understand the wrongfulness of his actions. Additionally, Dr. Mark Vigen evaluated Harrison on behalf of the defense. Dr. Vigen opined that Harrison was unable to assist counsel in his defense, noting he was not properly medicated at the time of the offense, and his symptoms of paranoia and limited cognitive abilities created a condition that distorted his perceptions and understanding.

The trial court ultimately determined that Harrison was competent to proceed, and a jury trial was held on June 13-16, 2016. As to Count One, the jury found Harrison guilty of the responsive verdict of attempted manslaughter (violations of La. R.S. 14:27 and 14:31 ). As to Counts Two and Three, the jury found Harrison guilty as charged of attempted disarming of a peace officer (violations of La. R.S. 14:27 and 14:34.6 ) and resisting a police officer with force or violence (a violation of La. R.S. 14:108.2 ). Harrison filed a motion for post-verdict judgment of acquittal and a motion for a new trial, arguing that the evidence presented established that he was insane at the time of the offense and unable to distinguish right from wrong. The trial court denied the motions at a subsequent hearing.

On August 16, 2016, Harrison's sentencing hearing was held. The trial court considered the factors of La. C. Cr. P. art. 894.1, noting that Harrison's offense was against a police officer, as well a crime of violence involving the use of a dangerous weapon. In mitigation, the trial court acknowledged Harrison's "substantial and documented history of mental illness." Ultimately, the trial court sentenced Harrison to 15 years' imprisonment at hard labor for the attempted manslaughter, 2½ years at hard labor for the attempted disarming of a peace officer, and 3 years at hard labor for the resisting a police officer with force or violence, with all sentences to be served concurrently. Further, the trial court recommended Harrison for any mental health treatment, counseling, or programs for which he is eligible.

Following the imposition of sentence, an oral objection was made by Harrison to the sentence; however, no reasons were articulated. No motion to reconsider sentence was filed. This appeal ensued.

DISCUSSION

On appeal, Harrison raises only one assignment of error and contends that his total 15-year sentence is excessive. Specifically, Harrison maintains that considering his infirmities and his condition, the trial court erred by imposing the harsh total sentence of 15 years' imprisonment at hard labor, and under the facts and circumstances of this case, his sentence violates all provisions against excessive sentences. Harrison argues that although the jury found he was able to determine right from wrong at the time of the offense, the record is full of information concerning his mental health. Harrison notes that Drs. Vigen and Colon testified that he suffers from paranoid schizophrenia and mild mental retardation, which the trial court acknowledged, and that Dr. Colon believed Harrison was psychotic at the time of the offense. Harrison argues that a sentence tailored more toward his treatment and possible rehabilitation would be more appropriate under the circumstances of this case.

The offense of attempted manslaughter is punishable by imprisonment for up to 20 years at hard labor. La. R.S. 14:27 and 14:31. The offense of attempted disarming of a peace officer is punishable by imprisonment for up to 2 ½ years at hard labor. La. R.S. 14:27 and 14:34.6. Finally, the offense of resisting a police officer with force or violence is punishable by imprisonment, with or without hard labor, for not less than one year nor more than three years. La. R.S. 14:108.2.

Louisiana C. Cr. P. art. 881.1(E) precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. Accordingly, when a defendant fails to file a motion to reconsider sentence, the appellate court's review of a sentencing claim is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims , 619 So.2d 1059 (La. 1993) ; State v. Smith , 50,342 (La. App. 2 Cir. 01/13/16), 184 So.3d 241.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato , 603 So.2d 739 (La. 1992) ; State v. Davis , 50,149 (La. App. 2 Cir. 11/18/15), 181 So.3d 200.

A sentence is illegal and violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than the purposeless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 01/15/02), 805 So.2d 166 ; State v. Smith, supra .

The trial court is given wide discretion in the imposition of sentences within the statutory limits. Such a sentence will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Hebert , 50,163 (La. App. 2 Cir. 11/18/15), 181 So.3d 795.

In this case, the trial court did not abuse its discretion by sentencing Harrison to a total of 15 years' imprisonment at hard labor despite his mental condition. Harrison did not file a motion to reconsider sentence and although defense counsel made an oral objection to the sentences, there were no specific grounds articulated for reconsideration of Harrison's sentences. Therefore, review of Harrison's sentences is limited to a bare claim of constitutional excessiveness. Nevertheless, the record shows that the trial court complied with La. C. Cr. P. art. 894.1, and considered the appropriate factors in determining Harrison's sentences, as noted above.

The trial court reviewed the serious facts of this case that "could have easily resulted in the death of a police officer" and acknowledged that Harrison suffered from a "profound chronic mental illness." The record shows that while Ofc. Holloway was attempting to conduct a pat-down, Harrison became violent and began fighting him. Harrison stabbed the officer with a knife, cutting his head in two places and puncturing his protective vest in five places. Harrison also attempted to gain control of Ofc. Holloway's gun. The jury, knowing that Harrison suffered from paranoid schizophrenia, rejected his insanity defense and found that Harrison knew that attacking Ofc. Holloway with a knife was wrong. The record shows that the trial court strove to tailor a sentence that balanced the seriousness of the offenses with Harrison's mental illness; however, there was no legal avenue for the trial court to take in that direction.

Harrison's sentences are not constitutionally excessive. He has an extensive criminal history, as noted by the state, and it appears that if not incarcerated, Harrison will continue to use illicit drugs, rather than take his prescribed medication. Notably, although he received maximum sentences for attempted disarming of a peace officer and resisting a police officer with force or violence, his sentence for attempted manslaughter is five years less than the maximum sentence that could have been imposed. Considering the violent nature of Harrison's crimes, the total 15-year concurrent sentences imposed by the trial court do not shock the sense of justice, nor are they grossly disproportionate to the severity of the offenses. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, Lester Harrison's convictions and sentences are affirmed.

AFFIRMED.

      At the time of trial, Holloway no longer was employed with the SPD.

      Prior to sentencing, in seeking to balance Harrison's criminal culpability with his mental illness, the trial court considered the possibility of a split sentence whereby Harrison would serve a period of incarceration at hard labor and then transition into a conditional release program so his mental status could be monitored until he is no longer a danger. However, after researching the issue, it was determined that such a sentence was not legal or possible under Louisiana law.