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State v. Devillier

Court of Appeals of Louisiana, Fifth Circuit

October 17, 2018





          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.


         Defendant, John Paul Devillier, was convicted by a jury of attempted first degree murder of a peace officer, Corporal Burt Hazeltine. On appeal, he argues multiple assignments of error as noted below. Upon review, for the following reasons, we find no reversible error and affirm defendant's conviction and sentence.


         On May 12, 2015, the St. Charles Parish District Attorney filed a bill of information charging defendant, John Paul Devillier, with the attempted first degree murder of a peace officer, Corporal Burt Hazeltine of the St. Charles Parish Sheriff's Office, in violation of La. R.S. 14:27 and La. R.S. 14:30. Immediately prior to the filing of the bill of information on May 12, 2015, a sanity hearing was held[1] and defendant was found competent to proceed to trial. Defendant then waived reading of the bill of information and entered a plea of not guilty.

         At a hearing on August 4, 2015, and in writing on September 14, 2015, defendant withdrew his plea of not guilty and entered the dual plea of not guilty and not guilty by reason of insanity. On October 5, 2015, a sanity commission composed of Dr. Richard Richoux and Dr. Rafael Salcedo was appointed by the trial court to determine defendant's mental condition at the time of the alleged offense.

         On August 23, 2016, the State filed a motion to produce defendant for an independent mental examination by Dr. John W. Thompson, Jr., and on September 6, 2016, the trial court granted the State's motion after a hearing. Defendant filed a writ application with this Court seeking review of the ruling to produce him for the mental examination, which this Court denied. See State v. Devillier, 16-535 (La.App. 5 Cir. 9/20/16) (unpublished writ decision).

         On January 24, 2017, the trial court held a hearing on the State's La. C.E. art. 404(B) Notice of Intent to Use Evidence of Other Bad Acts and Incorporated Supporting Memorandum. The trial court granted the State's motion to admit into evidence defendant's prior bad acts of refusing to cooperate with police commands and/or failure to surrender.

         Trial commenced before a twelve-person jury on February 8, 2017. On February 14, 2017, the jury found defendant guilty as charged. On February 23, 2017, defendant filed a motion for a new trial and a motion for post-verdict judgment of acquittal, challenging the sufficiency of the evidence presented by the State at trial. After a hearing on April 11, 2017, the trial court denied defendant's motion for a new trial and motion for post-verdict judgment of acquittal.

         On April 25, 2017, after considering a pre-sentencing investigation ("PSI") report, a victim impact statement, and La. C.Cr.P. art. 894.1, the trial court sentenced defendant to 40 years in the Department of Corrections[2] without the benefit of parole, probation, or suspension of sentence. On May 2, 2017, defendant filed a motion to reconsider sentence; the trial court denied the motion on June 13, 2017. Immediately after the motion to reconsider sentence was denied, defendant orally moved for and was granted an appeal. Defendant also filed a written motion for an appeal on June 13, 2017, which was granted that same day.


         On the morning of April 16, 2015, Corporal Burt Hazeltine with the St. Charles Parish Sheriff's Office was working a traffic control detail in a school zone at the corner of Louisiana Street and U.S. Highway 90 in Paradis, Louisiana, in St. Charles Parish. Corporal Hazeltine's assignment was to ensure that school buses serving nearby schools safely entered and exited Highway 90.[3]

         Following his usual routine, Corporal Hazeltine arrived at the intersection that morning between 7:20 a.m. and 7:25 a.m. for take-in at J.B. Martin School. He planned to leave the area around 8:45 a.m. after the buses dropped the children off at R.J. Vial Elementary, another nearby school. Corporal Hazeltine was sitting in his marked police unit parked on the shoulder of Highway 90 near a Timesaver store close to Louisiana Street with his lights activated when a pickup truck pulled up beside his unit. Assuming that the person needed directions or help, Corporal Hazeltine exited his unit and began to approach the pickup truck when defendant, John Paul Devillier, the driver of the pickup truck, [4] began yelling at Corporal Hazeltine that he did not know how to do his job and that he knew Sheriff Greg Champagne and was going to call him. Defendant, who was described as irate, flashed what appeared to be a souvenir "Navy police" keychain out of his window. Corporal Hazeltine asked if he could help defendant, who replied in the negative. Defendant then put his truck in reverse and turned down Louisiana Street.[5]

         Sherry Champagne, the administrative assistant for Sheriff Champagne, received a phone call from defendant asking to speak to the Sheriff. Ms. Champagne informed defendant that the Sheriff was unavailable, upon which defendant explained that he wanted the Sheriff to meet him in the Timesaver's parking lot because he was upset with the way a deputy was directing traffic. Defendant became "more and more agitated" because Ms. Champagne would not put him through to the Sheriff.

         Approximately fifteen or twenty minutes after defendant initially left the area, as Corporal Hazeltine was finishing his detail, he stepped out of his unit to remove his reflective vest when he saw that defendant's pickup truck had returned and was located in the driveway of the Timesaver. Remembering that defendant had been upset, Corporal Hazeltine walked from behind his unit to approach defendant's truck to converse with him. As Corporal Hazeltine approached the front of defendant's truck in which defendant sat, he saw a revolver laying on the dashboard of the truck.[6] Given defendant's previous irate behavior and the visibility of the gun, Corporal Hazeltine, who was standing approximately fifteen feet from his unit, drew his service weapon, began to move back towards his unit, and told defendant to show his hands. Corporal Hazeltine testified that in response, defendant's "right hand went up in the air and his left hand went out the driver's side window with a black semi-automatic pistol hanging from - with it hanging from the trigger guard." Corporal Hazeltine ordered several times for defendant to drop the weapon, but defendant refused.

         At the time of defendant's return to the corner of Highway 90 and Louisiana Street, he contacted OnStar. In the call which was published to the jury, defendant identified himself and his location and can be heard yelling to Corporal Hazeltine not to approach and to call Sheriff Champagne. Defendant yelled to Corporal Hazeltine that he would "find out who [he (defendant) was] in a second." Corporal Hazeltine can be heard ordering defendant to show his hands and to put the gun down, and defendant is heard refusing to do so since he was "federal law enforcement."[7]

         In a second OnStar call that was published to the jury, defendant told the OnStar operator that he needed the Sheriffs Office immediately. Defendant is heard saying: "I know what you need but I'm going to tell you what I need, see, I'm showing you mine your showing me yours you got yours pointed at me go ahead and fire it mother f**ker." At that time, gunfire can be heard, and the recording seems to indicate that defendant yelled: "I got two of them." After a lapse in the recording, defendant again requested assistance from the Sheriff because there was an officer who had a "problem" with him "pinned down." Defendant then appears to say to Corporal Hazeltine that he had a right to defend himself against anybody in this country and "here they come" as sirens are heard approaching in the background. He stated that Corporal Hazeltine was going to lose his job, was "f**kin done," and "this [was his] parish you mother f**cker." He apologized for shooting him but said "god damnnit don't shoot at me."

         Meanwhile, Corporal Hazeltine had radioed to dispatch that a suspect had a gun and was refusing to drop it. As Corporal Hazeltine focused on defendant's left hand hanging out the window with the weapon, he saw "the barrel of a gun coming up over the dashboard pointed at [him]."[8] Feeling that his life was being threatened, in response, Corporal Hazeltine fired his service weapon, a 40 caliber semi-automatic Glock Model 22, at defendant.[9] Defendant returned fire at Corporal Hazeltine and a gunfight ensued. Corporal Hazeltine was shot in the chest and in his arm just above his elbow, and a fragmented bullet passed through his left eye.[10] As the gunfight continued, Corporal Hazeltine fell to the ground in front of his patrol unit and dropped his service weapon, which landed several feet away from him. In order to not further expose himself, Corporal Hazeltine crawled behind his unit.

         Lieutenant Roddy Landry, Lieutenant Rory Champagne, and Sergeant Jose Alvarenga with the St. Charles Parish Sheriff's Office heard Corporal Hazeltine's radio in that a subject in the school zone had a weapon followed by shots being fired. They proceeded to Paradis in each of their police vehicles, and upon arrival, they exited their units with weapons drawn and assumed tactical positions.

         Defendant initially refused the officers' commands to drop his weapons, but finally tossed the weapons out of the open front driver's side window and into a grassy area. Sergeant Alvarenga, Lieutenant Landry, and Lieutenant Champagne surrounded defendant's truck and ordered him to exit the vehicle, which defendant refused to do. Defendant continually refused to obey the officers' commands. Eventually, Sergeant Alvarenga and Lieutenant Landry were forced to tase defendant to get him out of the vehicle. Once out of the vehicle, defendant continued to resist, falling into an adjacent ditch as he struggled with the officers.[11] Eventually, the officers secured defendant in handcuffs and removed him from the ditch.

         Both Major Rodney Madere and Sergeant Lance Richards responded to the scene as well and recalled defendant cursing and threatening the officers' jobs. Major Madere recalled that defendant screamed: "Man, I didn't want to hurt that officer, but he made me shoot him." Major Madere directed the officers to take defendant to headquarters. Sergeant Richards testified that as the officers tried to take defendant to headquarters, he "refused to stand up and wouldn't assist us in any way to walking him to a unit that was nearby." He continued to be uncooperative even after they reached headquarters.

         Meanwhile, Sergeant Giovanni Tarullo with the St. Charles Parish Crime Scene Division arrived and began photographing and documenting the scene. A 9-mm Glock handgun and a 357 Smith & Wesson revolver were located next to defendant's truck near the ditch. Photographs reveal eleven spent 9-mm shell casings located on the cowl, [12] roof, and windshield wipers of defendant's truck and seven bullet holes in the truck's windshield. Also, 40 caliber casings were found around defendant's truck and Corporal Hazeltine's unit.

         Inside defendant's truck, gun cases for the Glock handgun and the Smith & Wesson revolver, multiple boxes of various ammunition, and an empty magazine for the Glock were found on the floorboard of the front driver's seat. Near the center console was a brown fanny pack containing a 40 caliber Smith & Wesson handgun and two magazines containing 21 live rounds. The center console contained six fired 357 casings. Photographs of the passenger side of Corporal Hazeltine's unit depict six bullet holes lodged in various areas of the unit, including the driver's side headrest. It was learned that Corporal Hazeltine had seven bullets remaining in his gun chamber following the gunfight.

         Technicians Joseph Marroccoli and Jason Troxler also took photographs to document the scene. Mr. Marroccoli went down Highway 90, away from the incident, and observed an AT&T van that contained a projectile. Mr. Troxler also recovered a projectile lodged into the upper story of a vacant residence located directly across Highway 90 from defendant's truck. On the following day, Technician Anthony Wetta discovered one projectile in the driver's side of Corporal Hazeltine's unit.[13]

         Jeff Goudeau with the Louisiana State Police Crime Lab, an accepted expert in shooting reconstruction and crime scene investigation, examined the windshield of defendant's 2013 Chevrolet Silverado. Through his assessment of the radial fractures and coning effects[14] of the bullet strikes in the windshield, Mr. Goudeau was able to ascertain the sequence of the bullets and whether they entered or exited the windshield. In his opinion, the first bullet fired entered from the outside of the windshield and travelled inside the vehicle, and the remaining six bullet strikes were shot from inside the vehicle and traveled out. Mr. Goudeau examined Corporal Hazeltine's unit and determined that based upon the manner in which a Glock 9-mm ejects its casings, those bullets entered the unit from the outside.

         Michelle Cazes with the Louisiana State Police Crime Lab firearms section, [15] and an expert in the field of firearms examination and analysis, compared the firearms, bullet cartridges, and the bullets collected from the scene. After review of the evidence, Ms. Cazes determined that the six bullet cartridges collected from the center console of defendant's truck were fired from the 357 Smith & Wesson revolver. She testified that there were fourteen bullet cartridges and seven damaged brass jacket bullets found which were fired from defendant's Glock 9-mm. She determined that the brass jacketed bullet collected from the AT&T van, as well as the brass jacketed bullet collected from the vacant house across the street, were fired from defendant's Glock 9-mm. Ms. Cazes was able to determine that at least seven shots were fired from Corporal Hazeltine's 40 caliber Glock. There were three projectiles found that could have been fired from the 40 caliber Glock, but she could not definitively state whether they were or were not.[16]It was determined that no shots were fired from the loaded 40 Smith & Wesson semi-automatic found in the brown fanny pack in the center console of defendant's truck.

         At trial, Corporal Hazeltine testified that he had scars on his arms and chest from the incident and was blind in his left eye, which required a lot of adjustment due to the lack of depth perception and peripheral vision that resulted. Corporal Hazeltine could no longer work traffic duty due to his lack of peripheral vision, as that is necessary to spot oncoming traffic and to remain aware of his surroundings. At the time of trial, Corporal Hazeltine worked in the Sheriff's Office training academy as a training officer.

         Several passersby observed the incident and provided their accounts at trial of what transpired. While in route to bring his daughter to school, Armand A. Troulliet, Jr. observed in his mirror a truck close behind him with the flashers on and the driver[17] of the truck motioning to him. Eventually, the driver moved to the side of Mr. Troulliet's vehicle and began to flash a badge at him. After the truck moved ahead of him and both vehicles were stopped in the turning lane, Mr. Troulliet observed the driver waving, blowing his horn, making erratic hand gestures, and trying to get the attention of the officer parked adjacent to Highway 90 who routinely directed morning bus traffic. Mr. Troulliet described that once the traffic cleared, the driver erratically took off in such a way that his tires screeched as he turned into the Timesaver. Mr. Troulliet recognized the driver's truck on social media and on the news following the incident with Corporal Hazeltine.

         As he slowed down near the school zone, Cary Morrell, another witness, also noticed a truck in the turning lane. The driver was blowing his horn and flailing his hands.

         Louis Dufrene testified that he was headed westbound on Highway 90 from Boutte to Des Allemands when he observed the confrontation. Mr. Dufrene testified that he saw the police officer approach the truck with his gun drawn and noticed the driver of the truck's hand between the mirror of the truck and the window frame when he began to first shoot at the officer with the hand hanging out of the window. He recounted that the officer dove to the ground and then shot into the windshield of the truck. Mr. Dufrene parked his truck on the shoulder of Highway 90, exited his vehicle, and attempted to distract the driver "so the police officer could get a shot on him, but he was just had [sic] his mind set on that police officer." He maintained that the driver continued to shoot at the officer even after hitting him three times and after the officer crawled back towards his unit.

         Janice K. Candella, who drives school bus number 125 for St. Charles Parish, provided that at approximately 8:45 a.m. to 8:50 a.m. that morning, she was at a stop sign on Louisiana Street waiting to turn onto Highway 90 when she noticed Corporal Hazeltine[18] with his gun drawn walking towards a silver truck. She then observed that the person sitting in the truck was holding a gun out of the window. Ms. Candella was unable to hear what was being said. As she was calling for backup, Ms. Candella heard the shots start and saw Corporal Hazeltine fall and then crawl to his unit. She provided that both the driver and Corporal Hazeltine were shooting at each other.

         Kecia Henchman was driving school bus number 54 that morning when she heard bus 125 call for assistance for an officer. Ms. Henchman looked in the direction Corporal Hazeltine normally stood and noticed he was standing off to the side of a gray truck with his gun drawn; she could see that he was yelling at the driver of the truck. Ms. Henchman provided that at first, defendant's hand was out of the window and laid against the mirror. She could not see what was in his hand. Ms. Henchman watched as the shots began, and the windshield of the truck shattered as Corporal Hazeltine stumbled backwards. She observed that Corporal Hazeltine fell to the ground and tried to move back towards his unit as the driver "stood up out of the truck" with a gun, between the door and the side of the truck, while continuing to shoot across the door at Corporal Hazeltine who was on the ground. Ms. Henchman estimated that the driver of the truck shot around a dozen times, but it was "just so much it's hard to count."

         Thomas Y. Joseph, the custodian at J.B. Martin Middle School, was at the stop sign on Louisiana Street at Highway 90 during this incident. Mr. Joseph pulled his vehicle over and watched as Corporal Hazeltine was talking to the driver as he went to the door of the driver's truck. He then jumped back, grabbed his weapon, and continued talking to the driver. Mr. Joseph testified that Corporal Hazeltine started backing up with his gun pointed at the driver and that he began to fire his weapon when the driver "went down in the truck." He provided that the driver then "came out of the side window with his weapon, and pow, pow, pow." Mr. Joseph provided that the driver continued to shoot after Corporal Hazeltine was shot the first time.

         Cindy L. Breaux was stopped at a stop sign about one block from the Timesaver that morning. As she looked around before proceeding onto the highway, she observed a deputy walking around the front of his unit, and she heard gunshots. Panicked, she exited her truck and hid behind it. She observed someone drag the deputy around his unit out of the line of fire, and officers arrived and attempted to pull someone out of the truck. Ms. Breaux confirmed in her statement given to the police following the incident that she reported the first thing that she saw was Corporal Hazeltine approach with his weapon and then heard "pow-pow-pow-pow." Ms. Breaux provided that it was her impression that the deputy shot first, and she thought she heard shots after he fell to the ground. She admitted that she could not see inside the truck from her position, so she could not know what the driver of the truck was doing.

         Willie Wayne King, the driver of the AT&T van from which a projectile was recovered, was on Highway 90 when he heard what sounded like firecrackers and noticed that a police officer was on the ground in front of his unit reaching for what appeared to be his weapon. As he was directly in front of the scene, Mr. King observed that the door of a truck was open, and the driver was standing on the "door jamb" of the truck with "[b]oth arms out between the door by the windshield." The driver was "just shooting, shooting, shooting." Mr. King's AT&T van was located across the four lanes of traffic from defendant's vehicle and was struck as it passed the scene.

         In light of defendant's dual plea of not guilty and not guilty by reason of insanity, the defense presented the testimony of three expert witnesses as to defendant's sanity at the time of the gunfight. First, Dr. Richard Richoux, an expert in the field of forensic psychology and a member of the appointed sanity commission, evaluated defendant on May 12, 2015 for competency, and on November 3, 2015 as to whether he was legally sane at the time of the offense. Dr. Richoux reviewed defendant's employment history, education background, a summary of past medical records, police reports, transcripts of interviews with parties with knowledge of defendant, and the report of Dr. Daphne Glindmeyer. Dr. Richoux noted defendant's reported history of depression, post-traumatic stress disorder ("PTSD"), and prescription of Neurontin, which he described had mood stabilizing effects in certain individuals. He also noted defendant's position as a Navy military policeman for nine years and his position with the Transportation Security Administration ("TSA") for a period of time.

         Dr. Richoux testified that at the May 12, 2015 competency evaluation, he did not perceive that defendant manifested a clinical level of depression, nor did he view defendant as being psychotic or abnormal in his thought processes. However, on November 3, 2015, Dr. Richoux found that defendant suffered from an unspecified psychotic[19] disorder on the date of the offense due to a combination of prescription drugs, which manifested through symptoms of paranoia and grandiose delusions.

         Dr. Richoux testified that there was a "buildup" of events that occurred near the date of the offense that led to defendant's behavior on the day of the shooting. Dr. Richoux detailed that the week prior to the incident, defendant was residing in a hotel in Gulfport and told the hotel proprietor that "something big" was about to occur in his life and insisted that no one access his room or a box in his room he said contained something very important. After leaving Gulfport, defendant attended a wedding and reception where the wedding guests, several of whom were his relatives, reported that defendant was behaving oddly, was suspicious of others, and was alluding to being a federal law enforcement agent. Dr. Richoux recounted that after the wedding, defendant drank energy drinks, took stimulants and narcotic analgesics, and drove all night to St. Charles Parish to attend the funeral of another relative.

         Dr. Richoux opined that while in that frame of mind, defendant's interaction with an individual with a weapon may have triggered defendant's paranoia to escalate, and he may have thought firing a weapon was an appropriate response. After discussing the concepts of legal sanity and of paranoia, Dr. Richoux concluded that defendant was legally insane at the time of the offense.

         Dr. Rafael Salcedo, an expert in forensic psychology and the second member of the appointed sanity commission, testified that at the May 12, 2015 competency evaluation, defendant did not exhibit any overt symptoms of psychosis, depression, PTSD, or any other mental disorder. At that time, defendant had ceased taking the prescribed pain, anti-anxiety, and psychostimulant medications and had ceased receiving the steroid injections for spinal problems.

         Like Dr. Richoux, Dr. Salcedo evaluated defendant's sanity at the time of the offense on November 3, 2015, and found that defendant suffered a psychotic disorder on the date of the offense. More specifically, Dr. Salcedo believed that defendant was suffering from substance induced delusional grandiosity and paranoia which resulted from the combination of medication, sleep deprivation, and a low grade level of paranoia; this impaired defendant's ability to distinguish right from wrong. Dr. Salcedo believed that defendant thought he was lawfully acting in self-defense.

         Dr. Salcedo noted defendant's past problematic behavior, resulting in multiple divorces and an incident of domestic violence. He referenced defendant's statement to the hotel proprietor that no one should enter his room without his permission and "something big was about to happen," which he believed indicated defendant's increasing paranoia shortly before the date of the incident.

         Last, Dr. Daphne Glindmeyer, an expert in the field of psychiatry and forensic psychiatry, testified for the defense that when she conducted a mental status evaluation of defendant on May 15, 2015, defendant exhibited strong symptoms of grandiosity and paranoia, and it was her opinion that defendant had a delusional disorder. In her meeting with defendant, defendant believed that he was a very important undercover officer of the law, started the TSA, owned St. Charles Parish, and was involved in a sting operation with the Gulfport police. Dr. Glindmeyer asserted that defendant also suffered from this delusional disorder at the time of the shooting, which impacted his ability to distinguish right from wrong at that time, and that having a gun pointed at him could have made him more paranoid and delusional. In her study of defendant, Dr. Glindmeyer learned that he was prescribed Neurontin, Oxycontin, and a Lidocaine patch for pain, as well as the psychotropic medications[20] of extended release Effexor, Seroquel, Provigil, and Valium. She testified that defendant took the medications as prescribed.

         To further form her opinion, Dr. Glindmeyer reviewed defendant's medical history and learned that he saw a psychotherapist, Dr. Susan Niemann Hightower, from 2012 to 2014, and Dr. Hightower relayed that defendant had been progressively deteriorating over time. Dr. Hightower had diagnosed defendant with moderate depression. Dr. Glindmeyer also learned that defendant saw a psychiatric nurse practitioner, Ralph Barrows, but was unable to reach him. She also spoke with "Dr. Lou," a pain management doctor who gave defendant an epidural steroid injection the week before the shooting. She also spoke to several of defendant's siblings, defendant's father, and a friend.

         Dr. Glindmeyer believed that defendant was exposed to significant stressors the week before the incident, such as contact with relatives at the wedding and the funeral, the steroid epidural injection, and lack of sleep, which exacerbated his illness and created "a perfect storm" for his delusional disorder to manifest on the date of the offense. She denied that defendant suffered from a major depressive disorder or from an opiate overuse disorder at the time of the shooting.

         In rebuttal, the State called Dr. John W. Thompson, Jr., the chairman of the Department of Psychiatry at Tulane University who also works at the state mental hospital in Jackson, Louisiana. Dr. Thompson was accepted as an expert in the field of forensic and addiction psychiatry. Dr. Thompson conducted competency and sanity evaluations of defendant on September 28, 2016, some twenty months after the incident, and reviewed the records in this case. He also spoke with defendant's father, who came along with defendant to the interview.

         In Dr. Thompson's meeting with defendant, defendant reported his past history of psychiatric treatment and medications for depression and pain symptoms. Dr. Thompson obtained defendant's Navy records and noted that defendant's twenty-year military record was devoid of any psychiatric issues. In his medical opinion, Dr. Thompson asserted that defendant's actions were more characteristic of his personality, rather than a major psychiatric condition. He did not believe that defendant exhibited any symptoms of a delusional disorder.

         It was Dr. Thompson's opinion that defendant believed he was in a confrontational situation where he was forced to defend himself. Dr. Thompson asserted that defendant's ideation of being a police officer was not a delusion, but rather, defendant believed he was a law enforcement officer as part of his identity. In reviewing the OnStar and 9-1-1 calls placed by defendant, wherein defendant asserted that he "owned" the parish and believed that the Sheriff would come to the scene, Dr. Thompson opined that defendant suffered the effects of a lack of sleep, the prescribed medications, and irritation. Dr. Thompson described it as "distorted thinking." Dr. Thompson administered the Minnesota Multiphasic Personality Inventory ("MMPI") test, an objective personality test, to defendant and compared the results thereof to persons with similar demographic characteristics. The results yielded from the MMPI did not indicate that defendant suffered from paranoia, nor were they consistent with a delusional disorder or any active signs of PTSD.[21]

         Dr. Thompson's final diagnosis of defendant at the time of the offense was major depressive disorder, as well as an opiate pain use disorder, neither of which included psychotic features. He disagreed with Drs. Glindmeyer, Richoux, and Salcedo's opinions that defendant suffered from a psychotic delusional disorder, as "[a] delusional disorder doesn't really go away" and is very hard to treat. Contrary to the other doctors' opinions, Dr. Thompson did not believe that defendant was taking his medications as prescribed. As to defendant's personality traits, Dr. Thompson provided that defendant had a difficult time with authority, and defendant showed obsessive compulsive, anti-social, and narcissistic personality traits, or Cluster B personality traits. He provided that these personality traits as well as the prior stressors resulted in the shooting. Dr. Thompson concluded that defendant was sane at the time of the offense.

1. The trial court erred in denying defendant's motion for post-verdict judgment of acquittal because no rational jury could have reasonably found defendant guilty beyond a reasonable doubt of: (1) the essential elements of attempted first degree murder because he lacked the necessary specific intent to kill Corporal Hazeltine and the evidence at best only supports a verdict of attempted manslaughter; (2) attempted first degree murder because he proved that he was acting in self-defense at the time of the charged crime; and (3) attempted first degree murder because he proved that he was suffering from an involuntary drugged condition, which was produced by a combination of psychotropic drugs prescribed to him by his treating doctors, under circumstances which indicate that his drugged condition was the direct cause of his commission of the charged crime because it caused him to suffer from a delusional disorder, which produced symptoms of paranoia and grandiose delusions, that impaired his ability to distinguish between right and wrong at the time of the charged crime.
2. The trial court erred in instructing the jury that it could infer that defendant intended the natural and probable consequences of his acts, even in the absence of a contemporaneous objection by defense counsel, because this erroneous instruction affected defendant's substantial rights by affirmatively shifting the burden of proof and/or burden of persuasion to him on the disputed and critical fact of whether he had the necessary specific intent to kill at the time of the offense by creating either a conclusive or nonconclusive presumption of specific intent to kill that remained in place until it was overcome or destroyed by evidence introduced by defendant to prove that he was acting in self-defense.
3. The trial court erred by including language in its jury instruction on attempt, over defense counsel's timely objection, regarding lying in wait with a dangerous weapon and searching for the intended victim with a dangerous weapon with the intent to commit a crime, because the evidence introduced at trial did not support including the objectionable language and it was likely to confuse the jury by causing them to erroneously conclude that defendant's mere presence at the scene, or his return to the scene to speak to Corporal Hazeltine, was sufficient to convict him of the offense of attempt.
4. The trial court erred by denying defendant's motion for a new trial because, due to insufficient evidence, the verdict is contrary to the law and the evidence as a matter of law, and the ends of justice would be served by granting him a new trial although he may not be entitled to one as a matter of right.
5. The trial court erred by granting the State's Code of Evidence Article 404(B) notice of intent to use evidence of other bad acts and allowing five law enforcement officers from Gulfport, Mississippi, to testify regarding other crimes evidence unrelated to the charge of attempted first degree murder.
6. The trial court erred by denying defendant's motion to reconsider his sentence because it is contrary to the sentencing guidelines, constitutionally excessive, and lacks proportionality.


         Sufficiency of the evidence

         Defendant first assigns as error the sufficiency of the evidence used to convict him of attempted first-degree murder of a police officer. His fourth assignment of error includes the argument that the trial court erred in denying his motion for a new trial as it was contrary to the law and the evidence.[22]

         Defendant filed a motion for a new trial and a motion for post-verdict judgment of acquittal in the trial court challenging the sufficiency of the evidence. The motion for a new trial is based on the supposition that injustice has been done to the defendant, and unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. La. C.Cr.P. art. 851(A). The decision on a motion for a new trial rests within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Mouton, 16-673 (La.App. 5 Cir. 4/26/17), 219 So.3d 1244, 1254, writ denied, 17-1149 (La. 5/18/18), 242 So.3d 572; State v. Delagardelle, 06-898 (La.App. 5 Cir. 4/11/07), 957 So.3d 825, 829, writ denied, 07-1067 (La. 11/21/07), 967 So.2d 1154.

         On motion of the defendant, the court shall grant a new trial whenever the verdict is contrary to the law and the evidence. La. C.Cr.P. art. 851(B)(1). When a motion for a new trial is based on the verdict being contrary to the law and the evidence, there is nothing for review on appeal. Mouton, supra; State v. Condley, 04-1349 (La.App. 5 Cir. 5/31/05), 904 So.2d 881, 888, writ denied, 05-1760 (La. 2/10/06), 924 So.2d 163. However, both the Louisiana Supreme Court and this Court have addressed the constitutional issue of the sufficiency of the evidence under this circumstance. Id. Further, the question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821. Mouton, supra; State v. Bazley, 09-358 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 18, writ denied, 11-282 (La. 6/17/11), 63 So.3d 1039. Therefore, this Court can address on review the denial of defendant's motion for a new trial based on sufficiency of the evidence.

         During argument at the hearing on the motions for a new trial and for post-verdict judgment of acquittal, defendant argued that the evidence presented at trial clearly showed that defendant was in the middle of a psychotic event, the State did not prove that defendant had the specific intent to kill Corporal Hazeltine, and that he acted in self-defense. The State responded that the jury heard the testimony of the experts and the witnesses and concluded that defendant was guilty of attempted first degree murder. The trial judge denied the motions.

         In these assignments, defendant argues that his conviction is not supported by the evidence and that the trial court erred in denying his motions for post-verdict judgment of acquittal and for a new trial. His three theories in support of his position are: 1) the evidence was insufficient to prove he had the specific intent to kill Corporal Hazeltine; 2) no rational jury could have found defendant guilty because he proved he was acting in self-defense; and 3) no rational jury could have found that he did not prove beyond a preponderance of the evidence that he was insane at the time of the offense.

         Specific ...

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