APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 507-266, SECTION " A" . HONORABLE LAURIE A. WHITE, JUDGE.
LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY OF ORLEANS PARISH, KYLE DALY, ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH, New Orleans, Louisiana, Counsel for State of Louisiana.
MARTIN E. REGAN, JR., NISHA SANDHU, MARTIN E. REGAN & ASSOCIATES, P.L.C., New Orleans, LA, Counsel for Defendant/Appellant.
(Court composed of Chief Judge James F. McKay III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins).
[2014-0416 La.App. 4 Cir. 1]
JAMES F. MCKAY III, Judge.
The defendant, Durrelle Bowens, appeals his conviction for the charge of manslaughter, La. R.S. 14: 31, and his sentence. Based on the record before this Court, we affirm.
STATEMENT OF CASE
On July 8, 2011, the defendant, Durrelle Bowens, was indicted on one count of second degree murder of Toriano Livas and one count of obstruction of justice. The defendant entered a plea of not guilty at his arraignment on July 12, 2011. After a hearing on October 24, 2011, the trial court denied the defendant's motions to suppress evidence and identification. On January 23, 2012, the State amended the bill of indictment, as to the obstruction of justice charge, to reflect that the obstruction of justice charge was in regards to the second degree murder of Toriano Livas. The defendant was re-arraigned on the charge and pled not guilty. The defendant filed a motion to quash the obstruction of justice charge, which was granted by the trial court. On January 25, 2012, after a two day jury trial, the defendant was found guilty of manslaughter. On February 1, 2012, the trial court sentenced the defendant to serve forty years at hard labor, with credit for time served.
[2014-0416 La.App. 4 Cir. 2] STATEMENT OF FACT
On March 24, 2011, at approximately 11:00 a.m., the victim, Toriano " Tito" Livas, visited Eddie St. Cyr's Auto Shop
located at 2135 South Derbigny Street, to collect a payment he was owed for the rental of auto shop machinery from his auto shop that he had recently closed due to medical issues. At around the same time, the defendant, Durrelle Bowens, his girlfriend, Lashanda Watson, his brother, Chad Bowens and his girlfriend Jonece Duncan, along with their one year old son, C.B., arrived at St. Cyr's Auto Shop, to check on their mother's truck, which was being painted.
As Livas was leaving the shop, a verbal dispute ensued between him, the defendant and the defendant's brother Chad Bowens, which quickly escalated into a physical altercation. Ultimately, a gun battle erupted between Livas and the defendant. When both men ran out of ammunition, Livas attempted to run away, but the defendant reloaded his gun and shot Livas in the back of his leg. Livas attempted to get away but the defendant shot him again. As Livas was lying on the ground pleading for his life, the defendant again shot him several more times in the head and torso fatally wounding Livas. The defendant then fled in a black Acura MDX SUV with his girlfriend Lashanda Watson driving the vehicle. The vehicle was abandoned in the 2100 block of Clara Street. Before abandoning the vehicle, [2014-0416 La.App. 4 Cir. 3] the registration documents and temporary license plate were removed from the vehicle. The defendant then fled to Texas where he was ultimately apprehended.
A review for patent errors reveals none.
COUNSEL'S ASSIGNMENT OF ERROR NUMBER 1
The defendant argues that the State failed to prove sufficient evidence to sustain his conviction for manslaughter as the State failed to carry its burden to prove that the defendant did not act in self-defense. In the present case, the defendant was charged with second degree murder, but convicted of manslaughter. However, the defendant argues that the State failed to produce sufficient evidence to show that he did not act in self-defense. The defendant contends that the trial testimony shows that he shot at the defendant only to protect himself.
When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court " must determine that 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 proved beyond a reasonable doubt." State v. Neal, 2000-0674, (La. 6/29/01) 796 So.2d 649, 657
(citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
[2014-0416 La.App. 4 Cir. 4] When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that " assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)). See also State v. Brown, 2003-0897 (La. 4/12/05), 907 So.2d 1.
Conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. When testimony is conflicting, the credibility of the witnesses is a determination which is within the sound discretion of the trial court. Like all questions of fact, this determination is entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984); State v. Marshall, 2004-3139, p.9 (La. 11/29/06), 943 So.2d 362, 369. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. Even where the record contains evidence conflicting with the testimony accepted by the trier of fact, the evidence accepted by the trier of fact is not rendered insufficient. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4 Cir. 1989). Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness's testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Legrand, 02-1462, p.5, 864 So.2d 89, 94- 95 (La. 12/3/03).
Manslaughter is a homicide which would be first or 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. La. R.S. 14:31. " Sudden passion" and " heat of blood" are not [2014-0416 La.App. 4 Cir. 5] elements of the offense of manslaughter; rather, they are mitigatory factors, in the nature of a defense, which diminish the degree of culpability and reduce the grade of the offense from murder to manslaughter. State v. Lombard, 486 So.2d 106, 110-111 (La.1986). Since they are mitigating factors, the defendant has the burden of proving by a preponderance of the evidence that he acted in " sudden passion" or " heat of blood" before he is entitled to a manslaughter verdict. In reviewing a claim that the defendant acted in " sudden passion" or " heat of blood," the court must determine whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that those mitigating factors were not established by a preponderance of the evidence by the defendant. Id.
A homicide is justifiable " [w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger." La. R.S. 14:20(A)(1). In a homicide case in which the defendant asserts he acted in self-defense, the State has the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense. State v. Taylor, 2003-1834, p. 7 (La.5/25/04), 875 So.2d 58, 63; State v. Kirk, 2011-1218, pp. 6-7, (La.App. 4 Cir. 8/8/12), 98 So.3d 934, 939-940.
The question presented is whether the defendant acted without justification. Accordingly, the relevant inquiry is whether a rational factfinder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a
reasonable doubt that the defendant did not act in self-defense. State v. Rosiere, 488 So.2d 965 (La.1986).
Even if both necessary components are present, that is not sufficient for the justification of self-defense because not every person is entitled to claim the [2014-0416 La.App. 4 Cir. 6] defense. In particular, and importantly for the prosecution's contention, " [a] person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw or discontinue the conflict." La. R.S. 14:21. Thus, a person who has brought on the difficulty not only must withdraw from the conflict but the withdrawal must be in such a way that the other person " knows or should know" of the desire to withdraw. If the aggressor's withdrawal is not made sufficiently known to his adversary, he is not eligible to claim the justification of self-defense for the homicide. This precedent obligation of the one who brings about the difficulty to " withdraw" may be contrasted with the absence of an obligation of " [a] person who is not engaged in unlawful activity and who is in a place where he or she has a right to be." La. R.S. 14:20(C). Such a person " shall have no duty to retreat before using deadly force as provided for in this Section." Id. Even more so, such a person " may stand his or her ground and meet force with force." Id.
In State v. Ducksworth, 496 So.2d 624 (La.App. 4 Cir. 1986), this Court found that the State met its burden of proving that the defendant did not act in self-defense. The Court noted that there was testimony that the victim was unarmed and attempted to flee when the defendant started shooting at him. The Court stated that " such conduct negated justification for the continued use of deadly force, if [2014-0416 La.App. 4 Cir. 7] any ever did exist. . . The law will not permit even a harassed individual to take the law into his own hands, track down his enemy, assault him with a pistol, and then claim justification for a homicide which follows because of prior threats."
Ducksworth, 496 So.2d at 630.
In State v. Wells, 2011-0744 (La.App. 4 Cir. 7/11/14), __ So.3d __, 2014 WL 3398136, this Court found that the defendant had not acted in self-defense when he shot and killed the victim. The defendant did not dispute that he shot the victim. He argued at trial and on appeal that he acted in self-defense. The State was able to produce sufficient evidence for the jury to conclude beyond a reasonable doubt that the defendant did not act in self-defense.
During the course of trial, Kisyhyne Livas, the victim's wife, testified that she and the victim had been married for over ten years. They owned an auto body repair shop, but had to close it because the victim had taken ill. Mrs. Livas stated that the victim and St. Cyr had a business relationship, and that St. Cyr had rented some equipment from them. On the morning of March 24, 2011, she picked up her grandchild, went home and fixed breakfast for her husband and her grandchild. Her husband informed her that the baby had a fever and that he was ...