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State v. Ducksworth

Court of Appeals of Louisiana, Fifth Circuit

December 13, 2017

STATE OF LOUISIANA
v.
AKANDO DUCKSWORTH

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-6406, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA PAUL D. CONNICK, JR., TERRY M. BOUDREAUX

          GAIL D. SCHLOSSER COUNSEL FOR DEFENDANT/APPELLANT, AKANDO DUCKSWORTH HOLLI A. HERRLE-CASTILLO

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson

          G. GRAVOIS, JUDGE

         Defendant, Akando Ducksworth, appeals his conviction and sentence for attempted manslaughter, a violation of La. R.S. 14:27 and 14:31. On appeal, defendant argues that the evidence was insufficient to establish that he had specific intent to kill the victim, and that the appropriate verdict is aggravated battery. He also argues that his sentence of twelve years imprisonment at hard labor is unconstitutionally excessive. For the following reasons, we affirm defendant's conviction and sentence and remand the matter for correction of the Uniform Commitment Order, as noted herein.

         PROCEDURAL HISTORY

         On November 10, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Akando Ducksworth, with one count of attempted second degree murder of Joshua Hardin, in violation of La. R.S. 14:27 and 14:30.1. Defendant pleaded not guilty at his arraignment on December 11, 2015.

         The matter proceeded to trial before a twelve-person jury on August 30, 2016. The following day, the jury returned a verdict of guilty of the responsive verdict of attempted manslaughter.

         On September 6, 2016, the trial court denied defendant's motion for a new trial and post-verdict judgment of acquittal, and after a waiver of delays, sentenced defendant to twelve years imprisonment at hard labor. Immediately after sentencing, defendant filed a motion for an appeal, which the trial court granted that same date.[1] Defendant now appeals, arguing first that the evidence was insufficient to support his conviction of attempted manslaughter, but instead supports a verdict of aggravated battery, and second, that his sentence was excessive.

         FACTS

         At the time of trial, defendant was thirty-three years old, had a bachelor's degree from Mississippi State University and a master's degree in sports administration, and had served eight years in the Mississippi National Guard. In this matter, he was convicted of attacking Joshua Hardin with a machete in a bar fight. Defendant testified that as of August 11, 2015 (the date of the incident in question), he had been in a relationship with Michelle Marsh for two and one-half years. That night, after he had been drinking and watching football most of the day, Ms. Marsh suggested that they go out to JR's Sports Bar in Metairie and meet her friend, Amanda Golden, who was also friends with the victim, Joshua Hardin. The victim had been scheduled to work at JR's that evening, but when he arrived, he was informed that they were overstaffed; he was given the night off. While at JR's, the victim met up with Ms. Golden. Shortly thereafter, Ms. Marsh and defendant arrived at JR's and Ms. Marsh introduced the victim to defendant. Unbeknownst to defendant at that time, the victim and Ms. Marsh had been having a sexual relationship for three years, the entire length of time that Ms. Marsh had been dating defendant.[2]

         After a few drinks, the four continued on to Daiquiris and Creams, a nearby bar on Veterans Boulevard. While there, defendant attempted to dance with Ms. Marsh, who became annoyed and "stormed off, " leaving the bar. The victim then followed Ms. Marsh outside to inquire as to whether she was all right, with defendant following close behind.

         Once outside, defendant asked "what's going on?" The victim testified that at this point, there was no arguing or yelling taking place. The men spoke for a few minutes before Ms. Golden pulled Ms. Marsh away from them, as things began to grow louder and more "heated." Defendant then told the victim "hell, no, you're not going to talk to my girl." The victim responded by shoving defendant and telling him to "back up off" of him because it looked like "he was getting a lot more aggravated than what it was before."

         Defendant remembered the conversation differently, however, recalling that when he went outside to check on Ms. Marsh, he told the victim that he was going to take Ms. Marsh and leave, at which time the victim told him that Ms. Marsh was going to stay at the bar with him. Defendant then told the victim that he could not tell his girlfriend where to go. According to defendant, the victim then pushed defendant, calling him a n****r and telling him he would "take his woman" if he wanted to.

         Defendant then ran off around the corner of the bar, and the others went back inside. The victim believed the altercation had ended, but a minute or so later, defendant ran back into the bar-while the victim's back was turned-with a machete, [3] "swinging" at him with "full force." The victim testified that he ducked and put his hand up to grab the machete, at which time defendant swung it, severing his right thumb. The two men ended up in a "bear hug, " as the victim feared that defendant would keep cutting him if there was any space between them, causing the victim to also suffer lacerations to his head and back.

         Ms. Golden and Traci Parker, a friend of the victim, repeatedly hit defendant over the head before the machete was eventually seized from his control. Defendant then fled the scene. The bartender, Jeanine Daigle, placed the machete behind the bar and called the police. The victim testified that as a result of the incident, he lost the use of his thumb and has several scars.[4]

         The incident was caught on the bar's video surveillance, which was played for the jury. The video corroborated the victim's account of the events, which showed defendant and the victim outside of the bar engaged in a conversation when it appears things began to escalate, at which point the victim shoved defendant prompting him to run off towards the parking lot. After defendant ran off, the victim re-entered the bar, and a few seconds later, defendant appeared running inside the bar, swinging a machete from above his head, as if in a chopping motion, down towards the victim with what appears to be significant force. The altercation continued between the two men, in what appears to be a "bear hug, " while other patrons in the bar hit defendant in an attempt to seize his weapon and neutralize the situation.

         The 9-1-1 call placed by the bartender, Ms. Daigle, was also played for the jury. On the recording, a frantic Ms. Daigle recounts what she had just witnessed, explaining that two men were involved in a fight, one had a machete, and the other one was "all cut up." In the background, screams can be heard as she tells the dispatcher that defendant had fled and "there is blood everywhere, " noting that the victim sustained a severed finger that had been put on ice. She further explained to the dispatcher that there were approximately thirty people in the bar at the time of the incident and that she had "never seen anything like this before, " recalling that the machete was "huge" and as long as her arm.

         Ms. Parker testified that at first the conversation between defendant and the victim, while outside, was not heated, but that it began to escalate. It was at that point that she went over to the victim in an attempt to defuse the situation when defendant ran off. Ms. Parker believed that defendant had left to get a gun, so she warned the victim that he ought to leave. Ms. Parker and the victim were walking back into the bar when defendant ran inside straight for the victim holding a machete in his hand. Ms. Parker testified that she tried to warn the victim, who then turned around to defend himself, putting defendant in a "bear hug, " while she attempted to break the fight up by punching defendant, from which she ultimately sustained a broken hand.

         Deputy Cleo Bridges of the Jefferson Parish Sheriff's Office was dispatched to Daiquiris and Creams, and while en route, encountered defendant approximately a block and a half from the bar. Defendant had in his possession the sleeve for the machete. He advised the officers that he had been involved in an altercation at the bar down the street.[5] Defendant was then transported to the hospital for cuts he had sustained during the altercation.

         Defendant admitted that he cut the victim once with the machete, but denied that he was trying to kill him; however, he stated that when he went to retrieve his machete, he was angry and desired to hurt the victim. Photographic evidence of the injuries the victim sustained to his hand, back, and head were introduced into evidence. The photographs depict a severed right thumb and extensive bleeding from the lacerations on the victim's back and head.

         ASSIGNMENT OF ERROR NUMBER ONE

         Sufficiency of the evidence

         In his first assignment of error, defendant argues that the trial court erred in denying his motion for post-verdict judgment of acquittal. He maintains that his motion should have been granted because the State failed to prove that he had the specific intent to kill, and thus, could not establish the elements necessary to sustain an attempted manslaughter conviction, and likewise, to establish the charged offense of attempted second degree murder. Defendant also contends the State presented no evidence that he acted in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection that would have warranted an ...


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