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State v. Thompson

Court of Appeals of Louisiana, Fifth Circuit

November 28, 2018

STATE OF LOUISIANA
v.
LARRY THOMPSON

          ON 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. White.

          Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.

          MARC E. JOHNSON JUDGE.

         Defendant/Appellant, 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.

         FACTS AND PROCEDURAL HISTORY

         On 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.

         Trial commenced on July 17, 2017 before a 12-person jury for the second degree murder and obstruction of justice charges.[1] 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.[2] 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.

         Detective 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.[3] 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.

         Jermaine 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.

         Kasheena 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 him.

         On 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 leave.

         Detective 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.

         Dr. 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.

         Defendant 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 a gun.

         Mr. 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.

         At the 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.

         On 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.

         ASSIGNMENTS OF ERROR

         On 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 imprisonment.

         LAW AND ANALYSIS

         Sufficiency of Evidence[4]

         In this 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.

         The 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.

         Defendant filed a motion for new trial[5] 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 crowded bar.

         At 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 ...


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