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State v. Bourg

Court of Appeals of Louisiana, Third Circuit

June 22, 2017



          H. Todd Nesom District Attorney - 33rd Judicial District Court Joe Green Assistant District Attorney - 33rd COUNSEL FOR: Plaintiff/Applicant - State of Louisiana

          Chad Guidry COUNSEL FOR: Defendant/Respondent - David Bourg

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.


         The State of Louisiana (State) filed a writ application for supervisory review of the trial court's ruling granting the defendant, David Bourg, a new trial following the jury's verdict that the defendant was guilty of manslaughter. We docketed the State's writ application for full briefing and argument. Upon review, we find that the trial court legally erred and abused its discretion in granting the defendant a new trial. Accordingly, we grant the State's writ application and reverse the ruling of the trial court. We remand this case to the trial court for sentencing of the defendant in accordance with the manslaughter statute, La.R.S. 14:31.



         We must decide whether the trial court erred in granting the defendant's motion for new trial on the grounds that the State failed to prove specific intent beyond a reasonable doubt.



         On June 1, 2014, David Bourg drove Michael Pitre home from target practice. While parked in front of Pitre's mother's house, Bourg shot Pitre in the head with Bourg's nine millimeter Ruger handgun, killing Pitre. Pitre did not have a gun. The bullet entered Pitre's left temple and exited above and behind his right ear. Pitre slumped forward in the passenger seat. The blood from Pitre's head wound soaked the right edge of the passenger seat in Bourg's truck and ran into the passenger door sill. Bourg immediately lit a cigarette and paced outside his truck with his still-loaded gun and cell phone in hand, attempting repeatedly to call his sister, his sister's boyfriend, and his brother. He did not attend to Pitre or call 911. Pitre's brother and his mother heard the shot from Pitre's mother's house and went outside. Pitre's brother saw the gun and sent his mother back inside. She called 911. Pitre's brother asked Bourg repeatedly to put the gun down so he could lend assistance to his brother.

         Police officers arrived, as did Pitre's son and daughter-in-law, who began CPR. Bourg put the gun to his own head. Officer Frank Restivo arrived first and heard Bourg say, "I will kill myself" and "I will kill ya'll." Officer Restivo and Officer Matthew Hebert ordered Bourg to throw the weapon down at least ten times. Bourg ultimately de-cocked the gun and threw it on the ground. Officer Restivo saw Bourg look toward the weapon again, and he ran at Bourg and tackled him to the ground, briefly, or almost, rendering him unconscious. Officer Restivo is six feet five inches tall and weighs 280 pounds. Bourg's head and back hit the pavement hard, and his body bounced. Dr. Jude Agendia treated Bourg at Kinder Hospital and noted ecchymosis around the eye, which is bleeding or draining under the skin. Dr. Christopher Tape testified that Bourg's ecchymosis[1]around the eyes was consistent with his head hitting the pavement very hard.

         When asked why he shot Pitre, Bourg told the arresting chief of police, Grady Haynes, that Pitre threw his laptop or iPad out of the window. An Allen Parish Grand Jury charged David Bourg with the second-degree murder of Michael Pitre, a violation of La.R.S. 14:30.1. Two years later, a jury convicted Bourg, eleven to one, of the responsive verdict of manslaughter, a violation of La.R.S. 14:31.

         Defense counsel filed a "Motion for New Trial and/or Motion for Post-Verdict Judgment Granting Acquittal." The defendant sought the acquittal pursuant to La.Code Crim.P. art. 821, asserting that there had been insufficient evidence to support his conviction. He requested a new trial pursuant to La.Code Crim.P. art. 851(B)(1) and (5), arguing that the verdict was contrary to the law and evidence and that the ends of justice would be served by the granting of a new trial.

         At the hearing on the motions, the defense requested either a new trial or an entry of a post-verdict judgment of "negligent homicide." The trial court denied the motion for a post-verdict judgment but granted the motion for a new trial. The State filed an application for supervisory review by this court.

         The State contends that there are issues of law and a showing of an abuse of discretion, which warrant review and are within this court's jurisdiction. We granted the State's application for supervisory review and now find that the trial court erred as a matter of law on the issue of specific intent and upon the granting of a new trial.



         The trial for second degree murder lasted six days and ended in June 2016, with a jury's verdict convicting the defendant of manslaughter. Second degree murder is punishable by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La.R.S. 14:30.1(B). Manslaughter is punishable by imprisonment at hard labor for zero to forty years. La.R.S. 14:31(B).

         At the end of the trial, the jury was instructed to find the defendant "guilty" based upon a finding of the elements of second degree murder, as charged, or the responsive verdict of manslaughter, or the responsive verdict of negligent homicide; or, if the jury found justification such as self-defense, it was to find the defendant "not guilty." The jury was given the elements of each offense.

         Second degree murder was defined to the jury as "the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm." See La.R.S. 14:30.1(A)(1). Manslaughter was defined as "the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm 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." See La.R.S. 14:31(A)(1).

         Negligent homicide was defined as the killing of a human being by criminal negligence, which exists when there is "such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under similar circumstances." See La.R.S. 14:32. The jury was further instructed on the definitions of justified homicide and self-defense. The jury returned a verdict of "guilty of manslaughter."

         Hearing on the Defendant's Motions

         The hearing on the defendant's motion for a post-verdict judgment of either acquittal, or of negligent homicide, or for a new trial, was held three months after the June verdict, in September 2016. It appears that the trial transcript had not yet been prepared and that the trial court did not have the trial testimony for review on the motions. At the beginning of the hearing, Mr. Bourg's attorney stated, "we are relying completely on the evidence not being sufficient" for the conviction. He very briefly argued, "I think the evidence was clear that there was a fight. I think he was protecting himself and that he didn't intend to kill Mr. Pitre." The State's attorney briefly argued the lack of evidence of a fight and the fact that the defendant shot Mr. Pitre in the head because Mr. Pitre threw his laptop out of the window. He pointed out the absence of any injuries on Mr. Pitre's hands indicating that he had punched Bourg repeatedly, as Bourg claimed. He also pointed out the undisturbed nature of the items in the truck, indicating that no fight took place. This was essentially all of the argument that was presented.

         After discussing the evidence in a light favorable to the defendant, the trial court set aside the jury's verdict of manslaughter, finding that the State had failed to provide sufficient evidence, proof beyond a reasonable doubt, of the "critical" element of "specific intent." The trial court stated:

Considering that the burden is on the State to prove every element of a crime beyond a reasonable doubt, and that the specific intent required of this crime is one of those elements, it is the finding of the Court that the forensic evidence creates more than a doubt on the critical question of specific intent.

         Specific Intent

         Specific intent is ultimately a legal conclusion to be resolved by the trier of fact. State v. Graham, 420 So.2d 1126 (La.1982); State v. Lewis, 525 So.2d 215 (La.App. 1 Cir.), writ denied, 531 So.2d 469 (La.1988). "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); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, Lindsey v. Louisiana, 494 U.S. 1074, 110 S.Ct. 1796 (1990). Specific intent can be formed in an instant. State v. Harris, 01-2730 (La. 1/19/05), 892 So.2d 1238, cert. denied, Harris v. Louisiana, 546 U.S. 848, 126 S.Ct. 102 (2005); State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382. Specific intent need not be proved as fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126.

         The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Seals, 95-0305 (La. 11/25/96), 684 So.2d 368, cert. denied, Seals v. Louisiana, 520 U.S. 1199, 117 S.Ct. 1558 (1997). The defendant does not dispute that his gun was the only weapon in the truck or that he pulled the trigger and fired the bullet that killed Michael Pitre. While not evident in his words or actions at the scene of the crime, Mr. Bourg argued at trial that the gun discharged accidentally while he was defending himself against the victim and trying to use it as a bludgeoning device. But the jury heard much testimony and saw photographic evidence that contradicted the defendant's assertions.

         Sufficiency of the Evidence and Standard of Review

         In reviewing the sufficiency of the evidence, an appellate court must determine that the direct and/or circumstantial 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 have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323 (2002). This is a question of legal sufficiency of the evidence. State v. Combs, 600 So.2d 751 (La.App. 2 Cir.), writ denied, 604 So.2d 973 (La.1992). This standard of review is applicable to the trial court as well. See Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970 (1981). Here, where the trial court found the evidence insufficient but ...

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