APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH
OF ST. CHARLES, STATE OF LOUISIANA NO. 16, 449, DIVISION
"E" HONORABLE TIMOTHY S. MARCEL, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Jeffrey M.
Landry Terri R. Lacy Matthew B. Derbes Molly K. Lancaster.
COUNSEL FOR DEFENDANT/APPELLANT, LARRY THOMPSON Prentice L.
composed of Judges Susan M. Chehardy, Marc E. Johnson, and
John J. Molaison, Jr.
E. JOHNSON JUDGE.
Larry Thompson, appeals his conviction for second degree
murder and life sentence without the benefit of probation,
parole, or suspension of sentence from the 29th
Judicial District Court, Division "E". For the
following reasons, we affirm Defendant's conviction and
sentence for second degree murder, affirm, as amended, his
sentence for obstruction of justice, and remand the matter to
the trial court with instructions.
AND PROCEDURAL HISTORY
August 1, 2016, a St. Charles Parish Grand Jury indicted
Defendant, charging him with the second degree murder of
David Scott, in violation of La. R.S. 14:30.1 (count one);
with possession of a firearm by a convicted felon, in
violation of La. R.S. 14:95.1 (count two); with aggravated
battery, in violation of La. R.S. 14:34 (count three); and
with obstruction of justice, in violation of La. R.S.
14:130.1 (count four). Defendant pleaded not guilty to the
charged offenses at his arraignment on August 5, 2016. On
October 19, 2016, Defendant's motion to sever offenses
was granted, and count two of the indictment was severed.
commenced on July 17, 2017 before a 12-person jury for the
second degree murder and obstruction of justice
charges. At trial, Deputy Steven Mahan of the St.
Charles Parish Sheriff's Office testified that he was on
patrol in the early morning hours of December 26, 2014. While
on patrol, he received a call that shots were fired at the
"Butt Cuts Bar" on Joe Louis Lane in
Hahnville. He described that, when he arrived, the
scene was very chaotic with people trying to exit the bar.
When he got inside the bar, Deputy Mahan observed the victim,
David Scott, lying on the floor in medical distress after
being shot; and, he then started CPR on the victim. He
testified that he did not observe the victim with a weapon,
there was no weapon nearby, and no one at the scene informed
him that the victim was seen with a weapon. Later, Deputy
Mahan was sent to the hospital to take a statement from a
witness, Rollan Martin. Mr. Martin advised Deputy Mahan that
he was shot in the foot while dancing in the bar. At that
time, Mr. Martin did not tell Deputy Mahan that he saw the
victim with a weapon in his hands.
Don Murray with the St. Charles Parish Sheriff's Office
testified that he and Defendant are cousins. As an assisting
detective, he reviewed the surveillance video from the bar
from the night of the shooting. He identified the victim in
the footage with the victim's cousin, Jermaine
Scott. As some point in the footage, Detective
Murray was able to identify Defendant in the video. The video
depicted Defendant exiting the bar but returning
approximately two minutes later. Approximately a minute after
Defendant re-enters the bar, the crowd disperses due to shots
being fired, and Defendant was seen exiting the bar.
Scott, the victim's cousin, testified that on the evening
of December 25, 2014, he, the victim, Kasheena Pierre, and
Keman Jacobs decided to go to "Butt Cuts Bar" to
hang out. He recalled that they were just there having fun
when he noticed Defendant. As he was returning from the
bathroom, he noticed an altercation began between David Scott
and Defendant. Defendant and Ms. Pierre were in a previous
relationship and had a child together; however, the victim
was Ms. Pierre's new boyfriend. While Mr. Scott described
the encounter as "rowdy," he did not see the victim
throw a punch at Defendant or either of them actually hit
each other. Mr. Scott further testified that the victim did
not have a gun, baseball bat, sword or knife on him that
night. He described the bar as very crowded, loud and dark,
and that he was not sure exactly what happened between the
two men. Mr. Scott stated that he heard a gunshot and saw
that Defendant "had his hands down" but did not
recognize what was in his hand. He described that he saw
Defendant shooting toward someone on the ground. Mr. Scott
ran over to the victim, and the victim subsequently died in
his arms. Mr. Scott testified that he did not see the victim
do anything to Defendant that warranted being shot. On
cross-examination, Mr. Scott testified that he told the
police that he attempted to calm down the victim and diffuse
the altercation between Defendant and the victim, but the
victim resisted his attempts.
Pierre testified that she had been dating the victim for a
few months and spent Christmas evening with him. She
testified that she had neither known him to carry a weapon
nor was she aware if he had a gun or weapon on his person on
the evening of the shooting. She described that around 10:30
p.m. that evening, she, the victim, and Mr. Scott went to
"Butt Cuts Bar," which happened to be very crowded.
She recognized many people in the bar, including Defendant,
her ex-boyfriend. Ms. Pierre testified that she did not see
the victim threaten, punch, provoke, or fight with Defendant.
She described that, at some point in the evening, she saw
Defendant leave the dance floor, but then later saw him
return into the bar. She recounted that she was dancing with
the victim when she heard the first gunshot, the victim
pushed her out of the way, and she fell to the ground. Ms.
Pierre heard more gunshots, and when she made it back to the
victim, she did not see a gun in his hand or anywhere near
cross-examination, Ms. Pierre testified that she told police
that she was trying to calm the victim, so they could leave
the bar. She described that, as she was dancing with the
victim, she could feel the tension between Defendant and the
victim. When asked if it was her impression that the victim
was becoming aggressive with Defendant, she responded that
she "just felt a vibe" and insisted that they
Thomas Plaisance was one of the crime scene technicians who
processed the scene at "Butt Cuts Bar." He
described that, a few days after he initially processed the
scene, he obtained a warrant to further search the bar.
During that search, he discovered a bullet hole in the dance
floor. He was able to remove that section of the flooring and
recover a lead projectile. He testified that other than this
projectile, he found no other projectiles or shell casings at
the scene that indicated the use of a revolver. Detective
Plaisance testified that he found no evidence that a second
weapon was used. At the victim's autopsy the morning
following the shooting, Detective Plaisance recovered three
additional projectiles from the victim's body,
specifically from his chest cavity, rear neck, and back spine
area. On cross-examination, Detective Plaisance admitted that
it was not impossible for another projectile to be somewhere
unknown in the building, as the police report reflected that
the security guard heard approximately five gunshots, but he
also noted that it was also not impossible that a witness
would mistake four gunshots for five gunshots. He further
testified that he believed the victim's hands were bagged
for gunshot residue testing, but to his knowledge, no such
testing was requested.
Samantha Huber, the chief forensic pathologist in Orleans
Parish, was qualified as an expert in the field of forensic
pathology. She performed the autopsy in this case. She stated
that the gunshot wound the victim sustained to the back of
his neck had a lack of stippling, which indicated to her that
the gun was at least 18 inches away from the victim's
head when fired. She opined that this wound was not lethal.
When discussing the gunshot wound the victim sustained to his
chest, she described that the bullet traveled backwards
toward the spinal cord and transected it. She stated the
entry wound sustained to the victim's back lodged itself
in his lung, as the bullet was moving from his back to the
front. Dr. Huber concluded that the victim's cause of
death was multiple gunshot wounds.
called Rollan Martin as a witness. He testified that he
arrived at "Butt Cuts Bar" on December 25, 2014, at
approximately 9:00 p.m. He described that he saw Defendant,
his uncle, at the bar. He also observed Ms. Pierre at the bar
with someone he was unfamiliar with but knew of his family.
He testified that he was shot in his foot that evening, as he
was standing on the right side of the dance floor, and that
the victim was standing by the bar. After he was shot, Mr.
Martin stated he ran to the bathroom where he stayed for
about 10 minutes, until the crowd died down. Mr. Martin
testified that he saw the victim with a gun and believed that
the victim shot him. While he indicated he was "a
hundred percent sure" he saw the victim with a gun, he
did not know what happened to that gun after the shooting.
Mr. Martin also testified that he did not see Defendant with
Martin recalled that the police spoke with him at the
hospital, but that he was so intoxicated that he could not
give any information. He conveyed that, although Defendant
was related to him, he did not have a motive to lie on
Defendant's behalf. On cross-examination, Mr. Martin
admitted that he had been drinking Hennessey and beer from
the time he arrived at the bar at 9:00 p.m. until the
shooting at about 12:30 a.m., but he could not remember how
many drinks he had. He also admitted that he was under the
age of 21 years old at the time of the incident.
conclusion of the trial, on July 19, 2017, the jury found
Defendant guilty as charged on both counts. On September 6,
2017, Defendant filed a motion for new trial and motion for
post-verdict judgment of acquittal, arguing, inter
alia, that the judgment of acquittal should be granted,
finding Defendant guilty of the lesser and included offense
of manslaughter. On September 14, 2017, the trial court
denied both of the motions.
September 22, 2017, the trial court sentenced Defendant on
count one- second degree murder-to life imprisonment without
the benefit of probation, parole, or suspension of sentence,
and on count two-obstruction of justice-to 40 years
imprisonment without the benefit of probation, parole, or
suspension of sentence. The trial court further ordered that
these sentences run consecutively to each other. On the same
date, Defendant filed a motion to reconsider sentence, which
was denied by the trial court after a hearing on December 12,
2017. Subsequently, Defendant filed a motion for appeal,
which was granted on December 20, 2017.
appeal, Defendant alleges the trial court erred in denying
his motion for post-verdict judgment of acquittal because the
evidence presented at trial was insufficient to support a
conviction of second degree murder, and the trial court erred
in sentencing him to an excessive sentence of life
assignment of error, Defendant argues that the jury committed
manifest error by returning a guilty verdict for second
degree murder, when the facts at trial illustrated that the
responsive verdict of manslaughter was more appropriate; and
as a result, the trial court should have granted his motion
for post-verdict judgment of acquittal. He contends that his
blood had not cooled from the moment he engaged in a heated
argument with the victim. Defendant requests that this Court
vacate his conviction for second degree murder and enter a
verdict of the lesser and included offense of manslaughter.
State responds that there was sufficient evidence adduced at
trial to support Defendant's conviction for second degree
murder. The State contends evidence at trial proved that the
victim was not the aggressor and there was no evidence that
the victim possessed a gun. The State maintains that the
facts of the case do not fit the requirements for a
manslaughter conviction because Defendant left the bar and
returned to shoot the victim, which was enough time for his
blood to cool.
filed a motion for new trial and motion for post-verdict
judgment of acquittal. In his motion for post-verdict
judgment of acquittal, he argued that the court should have
vacated the verdict of second degree murder and convicted him
of the more appropriate verdict of manslaughter. He argued
that the State's expert was not able to exclude the
possibility that two guns were fired at the scene, and that
the State had not refuted Defendant's claim of
self-defense; therefore, the State failed to meet the burden
of excluding every reasonable hypothesis of innocence. He
maintained that the State did not eliminate the reasonable
possibility that he acted in self-defense or that the victim
was shot by a different gun fired by someone else in the
hearing on the motion, Defendant further pointed out that his
witness, Mr. Martin, testified that the victim was armed with
a gun prior to being shot. Defendant contended the State did
not refute his self-defense claim beyond a reasonable doubt.
He also argued that the court should have considered a
verdict of manslaughter to be more appropriate. Defendant
contended that he was intoxicated at the time, which could
negate the specific intent to kill. He also argued that the
victim was acting in an aggressive manner, and that the
victim was the initial aggressor. The State responded that
there was no evidence introduced that Defendant was
intoxicated at the time of the incident, and no argument
concerning the victim's ...