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Simon v. Cain

United States District Court, W.D. Louisiana

November 13, 2014

MALCOLM JAMES SIMON LA. DOC # 532876,
v.
NATHAN CAIN, WARDEN, SECTION P

REPORT AND RECOMMENDATION

C. MICHAEL HILL, Magistrate Judge.

Pro se petitioner Malcolm James Simon filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 12, 2013. Petitioner is an inmate in the custody of the Louisiana Department of Public Safety and Corrections. He is incarcerated at the Avoyelles Correctional Center in Cottonport, Louisiana. Petitioner attacks his 2008 manslaughter conviction entered by the Fifteenth Judicial District Court for Lafayette Parish, for which he was sentenced to thirty years imprisonment.

This matter has been referred to the undersigned in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the court. For the following reasons, it is recommended that this habeas corpus petition be DENIED AND DISMISSED WITH PREJUDICE.

STATEMENT OF THE CASE

The Lafayette Parish Grand Jury indicted petitioner on the charge of second degree murder for the September 22, 2007 shooting of Michael Onezine. On September 9, 2008, petitioner was found guilty of the responsive verdict of manslaughter. On December 16, 2008, petitioner was sentenced to serve thirty (30) years imprisonment.

Court-appointed appellate counsel directly appealed petitioner's conviction and sentence to the Louisiana Third Circuit Court of Appeal arguing four assignments of error: (1) insufficiency of the evidence; (2) trial court erred in denying a motion for mistrial when the State attempted to introduce evidence of petitioner's prior bad acts; (3) the trial court erred in denying a motion for mistrial based upon the prosecutor's failure to timely provide transcripts of the interviews of witness; and (4) excessiveness of sentence. Petitioner filed a pro se supplemental brief on direct appeal arguing four additional assignments of error: (1) trial court erred when it denied petitioner's motion to suppress his confession; (2) insufficiency of the evidence; (3) prejudicial admission of circumstantial evidence (a spent and unspent cartridge and picture of a mailbox where the spent cartridge was found); and (4) trial court failed to articulate a factual basis to support the sentence imposed. On December 9, 2009, the Louisiana Third Circuit Court of Appeal affirmed petitioner's conviction and sentence in an unpublished opinion. State of Louisiana v. Malcolm James Simon, 2009 WL 4653743, 25 So.2d 255 (La.App. 3 Cir. 12/9/2009) (Table) [rec. doc. 22-1, pg. 1-31].

On December 30, 2009, petitioner sought a writ of certiorari in the Louisiana Supreme Court. He asserted the following claims for relief: (1) trial court erred in denying petitioner's motion to suppress his confession; (2) insufficiency of the evidence; (3) prejudicial admission of circumstantial evidence (a spent and unspent cartridge and picture of a mailbox where the spent cartridge was found); (4) trial court erred in denying a motion for mistrial based on the prosecutor's failure to timely provide transcripts of witness interviews; (5) trial court erred in denying a motion for mistrial when the State attempted to introduce evidence of prior bad acts; and (6) excessiveness of sentence. On September 3, 2010, the Louisiana Supreme Court denied writs without comment. State of Louisiana v. Malcolm James Simon, 44 So.3d 696 (La. 9/3/2010).

On January 25, 2011, petitioner filed a pro se application for post-conviction relief in the District Court. Petitioner raised three claims for relief: (1) the prosecutor violated petitioner's due process rights by untimely disclosing interviews of new witnesses; (2) the prosecutor allowed perjured testimony to go uncorrected; and, (3) ineffective assistance of trial counsel including claims that counsel was ineffective because counsel (a) failed to introduce a police report for the victim's prior attempted murder of petitioner, (b) failed to tell petitioner that his co-defendant had made a statement against him, (c) failed to interview witnesses, (d) failed to obtain an expert to testify about petitioner's state of mind given the victim's prior attempt on his life, (e) failed to properly file a Motion for Speedy Trial, and (f) failed to object to jury charges. [rec. doc. 22-4, pg. 5-31].

On June 27, 2011, the District Judge, noting the State's objections to the application "on the grounds that the issues raised are repetitive, because they were addressed by the court of appeal, or they would have been addressed but for petitioner's inexcusable failure to pursue them on appeal..." denied relief pursuant to La. C.Cr.P. art. 930.4(A) and (C). [rec. doc. 1-14, pg. 3].

On July 26, 2011, petitioner sought review in the Third Circuit Court of Appeal. On June 26, 2012 the Third Circuit denied writs as follows:

"There was no error in the trial court's ruling as to Relator's Claim One. The issue was fully litigated on appeal. La.Code Crim.P. art. 930.4(A). As for Claim Two, Relator failed to meet his burden of proof. La.Code Crim.P. art. 930.2. Finally, in claim Three, Relator asserted ineffective assistance of counsel. However, he offered no proof in support of his claim and failed to prove that, even if counsel's performance was deficient, he was prejudiced by the deficiency. He failed to demonstrate that there was a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052 (1984); State v. Fuller, 454 So.2d 119 (La. 1984)"

State of Louisiana v. Malcolm James Simon, No. KH 11-00934 (La.App. 3rd Cir. 2012) (unpublished). [Doc. 1-12, pg. 3].

On July 26, 2007, petitioner applied to the Louisiana Supreme Court for writs. Petitioner directed the Louisiana Supreme Court to refer to attached exhibits, namely the application for post-conviction relief filed in the District Court, the writ application filed in the Third Circuit, and the judgments of both courts. He argued that the trial court erred in ruling that petitioner's application for post-conviction relief was repetitive, and that the trial court erred in denying petitioner an evidentiary hearing. [rec. doc. 22-3, pg. 1-10]. On September 16, 2012, the Louisiana Supreme Court denied writs without comment. State of Louisiana ex rel. Malcolm James Simon v. State of Louisiana, 102 So.3d 34 (La. 11/16/2102).

Petitioner filed the instant petition on April 12, 2013. Petitioner presents seven claims for relief, three of which petitioner alleges were raised in his post-conviction application and four of which petitioner alleges were argued on direct appeal: (1) late disclosure of witness interviews violated petitioner's Constitutional rights; (2) State allowed perjured testimony to go uncorrected; and (3) ineffective assistance of trial counsel because counsel (a) failed to introduce a police report for the victim's prior attempted murder of petitioner, (b) failed to tell petitioner that his co-defendant had made a statement against him, (c) failed to interview witnesses, (d) failed to obtain an expert to testify about petitioner's state of mind given the victim's prior attempt on his life, (e) failed to properly file a Motion for Speedy Trial, and (f) failed to object to jury charges; (4) insufficiency of evidence; (5) trial court erred in denying petitioner's motion to suppress evidence of his confession; (6) trial court erred in denying a motion for mistrial when the State attempted to introduce evidence of prior bad acts; and (7) excessiveness of sentence.

Noting that it appeared that petitioner had not properly exhausted available state court remedies, and thereby technically defaulted on those claims allegedly raised on post-conviction proceedings (Claims (1) through (3) herein because petitioner did not identify and argue each claim in his writ application to the Louisiana Supreme Court rather than merely referring to briefs filed in the lower courts), and that Claim 1 might be procedurally barred because both the trial court and Louisiana Third Circuit Court of Appeal found the claim barred by application of La. Code Crim.P. art. 930.4(A), the undersigned instructed the State to address these issues in its Response to the Petition.[1] Petitioner was also provided an opportunity after the State's responsive pleadings to file a Reply. [rec. doc. 8].

The State has filed an Answer and Memorandum in Opposition to Habeas Corpus Relief [rec. docs. 16 and 17] and, thereafter, the State court record was filed into this record. [rec. docs. 20, 21 and 22]. Petitioner then filed a Reply. [rec. doc. 25]. This Report and Recommendation follows.

LAW AND ANALYSIS

I. Procedural Default

The State argues that petitioner's claims were not properly exhausted in the Louisiana state courts. Given the above procedural history and the undersigned's review of the entire state court record, with respect to petitioner's First, Second and Third claims, the State's position is well taken.[2]

It is well settled that a petitioner seeking federal habeas corpus relief cannot collaterally attack his state court conviction in federal court until he has exhausted available state remedies. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Minor v. Lucas, 697 F.2d 697 (5th Cir. 1983); Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999); Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). In order to satisfy the exhaustion requirement, the petitioner must have "fairly presented" the substance of each of his claims to the state courts in a procedurally proper manner. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001). Moreover, each claim must be presented to the state's highest court, even when review by that court is discretionary. O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728 (1999); Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998) citing Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). In Louisiana, the highest court is the Louisiana Supreme Court.

The scope of federal habeas review is limited by the intertwined doctrines of procedural default and exhaustion. Procedural default exists where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, ("traditional" procedural default), or (2) the petitioner fails to properly exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred, ("technical" procedural default). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. Bledsue v. Johnson, 188 F.3d 250, 254-55 (5th Cir. 1999) citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1986) and O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

Petitioner did not argue each claim for relief in his writ application to the Louisiana Supreme Court. Instead, petitioner apparently attempted to adopt and incorporate the arguments contained in his briefs presented to the lower courts, and argued that his post-conviction claims were not repetitive, and that his application should not have been denied without an evidentiary hearing. However, the United States Supreme Court has held that "a state prisoner does not fairly present' a claim to a state court if that court must read beyond a petition or brief... that does not alert it to the presence of a federal claim in order to find material... that does so." Baldwin v. Reese, 541 U.S. 27, 29-32, 124 S.Ct. 1347, 1351 (2004); Thomas v. Cain, 2006 WL 2990083, *16-17 (W.D. La. 2006).

Moreover, vague or fleeting references tacked on to the end of another argument in a state court brief does not sufficiently afford the state court the opportunity to address an alleged violation of federal rights and, hence, does not constitute a "fair presentation" for exhaustion purposes. Thomas, 2006 WL 2990083 at *17 citing Wilder, 274 F.3d at 260. Petitioner did not argue the merits of his post-conviction claims before the Louisiana Supreme Court in his writ application. Thus, the Louisiana Supreme Court was denied a fair opportunity to consider the merits of petitioner's First, Second and Third claims and these claims therefore remain unexhausted.

Because the state court to which petitioner would be required to return to meet the exhaustion requirement would now find the claims untimely[3], those claims are "technically" procedurally defaulted. Thomas, 2006 WL 2990083 at *17 citing Wilder, 274 F.3d at 262 citing Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001), Magouirk, 44 F.3d at 357 citing Coleman, 501 U.S. at 731-33, and 735 at fn. 1, 111 S.Ct. at 2546, Bledsue v. Johnson, 188 F.3d 250, 254-55 (5th Cir. 1999) citing Coleman, 501 U.S. at 735 n. 1 and O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728 (1999), Sones, 61 F.3d at 416 and Fuller v. Johnson, 158 F.3d 903, 905-06 (5th Cir. 1998). This court may therefore refuse to review the merits of these claims unless petitioner demonstrates that he should be excused from application of the procedural default doctrine. This he can do by showing cause[4] and prejudice for the default or by showing that a miscarriage of justice[5] will result from the denial of federal habeas review. See Finley, 243 F.3d 215, 220-221 (5th Cir. 2001); Coleman, 501 U.S. at 750, 111 S.Ct. at 2565 ; McCleskey v. Zant, 499 U.S. 467, 493-495, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Moore v. Roberts, 83 F.3d 699, 704 (5th Cir. 1996); Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); Sones, 61 F.3d at 418; Murray, 477 U.S. at 496, 106 S.Ct. at 2649; Glover, 128 F.3d at 904; Ward v. Cain, 53 F.3d 106, 107-108 (5th Cir. 1995); Callins v. Johnson, 89 F.3d 210, 213 (5th Cir. 1996) quoting McClesky, 499 U.S. at 495, 114 S.Ct. at 1471.

By Order requiring the State to respond to the instant petition and the State's response thereto, petitioner was placed on notice that the procedural default doctrine might be applicable to his claims. Accordingly, by Reply, petitioner was given an opportunity to present valid reasons why his claims are not subject to the procedural default doctrine. [rec. doc. 8].

By Reply, petitioner has failed to present any valid argument as to why his claims are not barred by the procedural default doctrine. Petitioner argues that his claims are federal in nature by virtue of his having cited federal jurisprudence. That is not the issue. Rather, the Court has found that the claims were not properly presented to the Louisiana Supreme Court in a manner which sufficiently afforded the Court the opportunity to address the alleged violations of federal rights. Under Baldwin, the Louisiana Supreme Court is not required to read beyond petitioner's writ application to determine whether to decide petitioner's federal claims in the first instance.

Because petitioner has failed to demonstrate cause for his default, this Court will not consider whether there is actual prejudice. Saahir v. Collins, 956 F.2d 115, 118 (5th Cir. 1992). Further, petitioner has failed to demonstrate that, as a factual matter, he is actually innocent of the crime of which he was convicted. Thus, he will not suffer a fundamental miscarriage of justice from this Court's failure to consider his claims. Accordingly, petitioner cannot avoid procedural default on grounds of actual innocence.

Based on the above, the undersigned finds that petitioner's First, Second and Third claims for relief, namely, that late disclosure of witness interviews violated petitioner's Constitutional rights, that the State allowed perjured testimony to go uncorrected and that petitioner received ineffective assistance of trial counsel, are technically procedurally defaulted. Therefore, this Court is precluded from reviewing the merits of these claims.

II. Merits Review

In light of the above, the only claims which are properly before this Court for review on the merits are the following: insufficiency of evidence (claim 4); trial court error in denying petitioner's motion to suppress his confession (claim 5); trial court error in denying a mistrial when the State attempted to introduce evidence of prior bad acts (claim 6) and excessiveness of sentence (claim 7). These claims are addressed below.

Standard of Review

This habeas petition was filed on April 12, 2013; therefore the standard of review is set forth in 28 U.S.C. § 2254(d), as amended in 1996 by the Antiterrorism and Effective Death Penalty Act (AEDPA). Knox v. Johnson, 224 F.3d 470, 476 (5th Cir. 2000); Orman v. Cain, 228 F.3d 616, 619 (5th Cir. 2000).[6] AEDPA substantially restricts the scope of federal review of state criminal court proceedings in the interests of federalism, comity, and finality of judgments. Montoya v. Johnson, 226 F.3d 399, 403-04 (5th Cir. 2000) citing Teague v. Lane, 489 U.S. 288, 306, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1516, 146 L.Ed.2d 389 (2000)[7] (noting that AEDPA "placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners").

Title 28 U.S.C. § 2254(d) as amended, states as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Under the deferential scheme of § 2254(d), as amended, this Court must give deference to a state court decision for "any claim that was adjudicated on the merits in State court proceedings" unless the decision was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " 28 U.S.C. § 2254(d)(1), or the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).

A habeas petitioner has the burden under AEDPA to prove that he is entitled to relief. Ormon, 228 F.3d at 619 citing Williams, 120 S.Ct. at 1518, and Engle v. Isaac, 456 U.S. 107, 134-35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Under § 2254(d), as amended, "[t]he federal courts no longer have a roving commission to discern and correct' error in state court proceedings, but must exercise a more limited review...." Grandison v. Corcoran, 78 F.Supp.2d 499, 502 (D. Md. 2000). Federal courts may not grant the writ merely on a finding of error by a state court or on a finding of mere disagreement with the state court. Montoya, 226 F.3d at 404; Orman, 228 F.3d at 619. A decision is "contrary to" clearly established Federal law "if the state court arrives at a conclusion opposite to that reached by... [the Supreme Court] on a question of law or if the state court decides a case differently than... [the Supreme Court] has on a set of materially indistinguishable facts." Dowthitt v. Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000) citing Williams, 120 S.Ct. at 1523; Montoya, 226 F.3d at 403-04 citing Williams, 120 S.Ct. at 1523. "The contrary to' requirement refers to holdings, as opposed to the dicta, of... [the Supreme Court's] decisions as of the time of the relevant state-court decision.'" Dowthitt, 230 F.3d at 740 citing Williams, 120 S.Ct. at 1523.

Under the "unreasonable application" clause, a federal habeas court may grant the writ only if the state court "identifies the correct governing legal principle from... [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Dowthitt, 230 F.3d at 741 citing Williams, 120 S.Ct. at 1523. The standard is one of objective reasonableness. Montoya, 226 F.3d at 404 citing Williams, 120 S.Ct. at 1521-22. A federal habeas court may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly... [r]ather, that application must also be unreasonable." Williams, 120 S.Ct. at 1522.

Section 2254(d)(2) speaks to factual determinations made by the state courts. Dowthitt, 230 F.3d at 741. Federal habeas courts presume such determinations to be correct; however, the petitioner can rebut this presumption by clear and convincing evidence. Id. Thus, this court must defer to the state court's decision unless it was based on an unreasonable determination of the facts in light of the record of the State court proceeding. Id . citing 28 U.S.C. § 2254(d)(2); Knox, 224 F.3d at 476 citing Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000).

In sum, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011). Thus, under § 2254(d), "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-787. "If this standard is difficult to meet, that is because it was meant to be." Id. at 786.

Claim 4 - Sufficiency of the Evidence

Petitioner argues that there was insufficient evidence to support his conviction for manslaughter because the State failed to show that petitioner had not acted in selfdefense. Petitioner contends that the evidence established that he acted in self defense when he shot the victim and that the contrary testimony of eyewitnesses presented by the State, relied on by the Third Circuit on direct appeal, failed to rebut this theory. The State responds that this claim is without merit because it presented sufficient evidence from which a rational fact-finder could have found that petitioner committed the indicted offense of second degree murder, notwithstanding the jury's exercise of its right to render a "compromise" verdict to the legislatively authorized responsive verdict of manslaughter.

Under Louisiana law, manslaughter is a legislatively authorized responsive verdict to a charge of second degree murder. La.C.Cr.P. art. 814(A)(3). When a defendant does not object to a trial court's instruction on a legislatively authorized responsive verdict on the basis that the evidence does not support that responsive verdict, a defendant may not complain if jurors return such a verdict, whether or not that verdict is supported by the evidence.[8] The evidence must, however, be sufficient to sustain a conviction on the charged offense. This rule recognizes both the legitimacy of a "compromise" verdict and comports with the Louisiana responsive verdict scheme. State v. Schrader, 518 So.2d 1024, 1033-1034 (La. 1988) citing State ex rel Elaire v. Blackburn, 424 So.2d 246, 251-252 (La. 1982).

Here, petitioner was charged with second degree murder. He was found guilty of manslaughter, a proper responsive verdict. The record reveals that petitioner did not object to the inclusion of manslaughter as a possible verdict. Thus, although the elements of manslaughter may not have been established[9], petitioner's conviction may be upheld if the State established the elements of second degree murder such that the jury could have returned the "compromise" verdict rendered in this case.

In rejecting this claim on direct appeal, citing Elaire, the Louisiana Third Circuit Court of Appeal extensively analyzed the evidence presented at trial, and found that the evidence was sufficient to support a conviction for second degree murder under the federal standard set forth by the United States Supreme Court in Jackson v. Virginia as follows:

... [T]he State was not required to prove Defendant committed manslaughter. In this case, manslaughter was a responsive verdict to the charge of second degree murder. La.Code Crim.P. art. 814(A)(3). A trier of fact may return any legislatively provided responsive verdict whether or not the evidence supports that verdict, as long as the evidence was sufficient to support a conviction of the charged offense. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 249 (La. 1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983). The charged offense was second degree murder.
Second degree murder, in pertinent part, is defined as "the killing of a human being: (1) When the offender has a specific intent to kill or inflict great bodily harm." La.R.S. 14:30.1(A). We find that Defendant's actions exhibited the specific intent to kill or inflict great bodily harm on the victim. The initial threat that Onezine allegedly made against Defendant was hours before the shooting, and testimony established that Defendant may well have been the aggressor. Defendant had the opportunity to leave the area but chose not to, armed himself, and set out to find the victim. By his own admission, he fired at the victim almost as soon as he saw him coming down the street. Witnesses reported that Defendant was exuberant afterwards, shouting out, "I got him, I got him." Defendant fled the scene immediately after the shooting, hardly appropriate actions for one who claims he meant only to protect himself by shooting warning shots into the air, then aiming for the victim's legs.
Based on the foregoing, a rational trier of fact, after viewing the evidence in the light most favorable to the State, could have found that Defendant committed second degree murder beyond a reasonable doubt. Accordingly, the responsive verdict of manslaughter was a compromise and valid verdict. Thus, we find no merit to this assignment of error.

Simon, 2009 WL 4653743 at *6-7.

The Third Circuit likewise extensively analyzed the evidence and rejected petitioner's claim that the State had not met its burden of proving that petitioner did not act in self defense under the Jackson v. Virginia standard as follows:

We first address Defendant's claims that there was insufficient evidence to sustain the verdict of manslaughter and that the State failed to prove Defendant's actions were not self-defense. Defendant was charged with second degree murder but convicted of the responsive verdict of manslaughter. Defendant argued at trial that he acted in self-defense. He argues that the State failed to meet its burden of proving that his actions were not self-defense. He contends that the victim was known for his violent tendencies. Because the victim had stabbed him in the past and had threatened him earlier in the day, Defendant argues that he reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm; therefore, he claims that his actions were justified.
Justifiable homicide is permitted "[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." La.R.S. 14:20. In the case of a homicide wherein the defendant claims self-defense, the State has the burden of proving that he did not act in self-defense. State v. Hargrave, 05-1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41, writ denied, 06-1233 (La.11/22/06), 942 So.2d 552. While reviewing the sufficiency of the evidence to support a conviction, we must determine whether the evidence, 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 had been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
At trial, twelve witnesses, excluding police officers, experts, and Defendant, testified as to the events of September 22, 2007. All the events occurred around Frank Street, between Georgia and Simcoe Streets, in Veazey, Louisiana.
The first witness to testify was Joshua McZeal, who was a co-defendant in the case. The gun used to shoot Onezine belonged to McZeal. After the shooting, McZeal disposed of the gun. The gun was never found. McZeal was originally charged as a principal in the case but pled guilty to accessory after the fact.
McZeal testified that sometime in the morning on the day of the shooting, he met Defendant in the neighborhood. They visited around the neighborhood, then in the afternoon, Defendant had his first encounter with the victim. Onezine and Defendant had words, and Defendant wanted to fight, but McZeal got between them. McZeal testified that at first Onezine did not have a knife, but then he pulled out a knife. McZeal stated that a friend of Onezine's, Emmanuel Anderson, got in between them and told Defendant that he would fight him instead. Onezine and Anderson then started to leave the ...

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