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State v. Gasser

Court of Appeals of Louisiana, Fifth Circuit

July 3, 2019

STATE OF LOUISIANA
v.
RONALD GASSER

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-7108, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Darren A. Allemand

          COUNSEL FOR DEFENDANT/APPELLANT, RONALD GASSER Dane S. Ciolino

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

          ROBERT A. CHAISSON JUDGE

         Defendant, Ronald Gasser, seeks review of his conviction and sentence for manslaughter. On appeal, he challenges the sufficiency of the evidence used to convict him and contends that his conviction by a non-unanimous jury violated his constitutional rights. In addition, defendant raises issues relating to the trial court's alleged improper admission of other crimes evidence, improper admission of evidence and argument relating to the possibility of retreat, and failure to properly instruct the jury. We have carefully considered defendant's arguments in light of the entire record and the applicable law and find them to be without merit. Accordingly, we affirm defendant's conviction and sentence for manslaughter.

         PROCEDURAL HISTORY

         On February 2, 2017, a Jefferson Parish Grand Jury filed an indictment charging defendant with the second degree murder of Joseph McKnight, in violation of La. R.S. 14:30.1. Defendant pled not guilty, and following the resolution of various pre-trial pleadings, the matter proceeded to trial before a twelve-person jury on January 16, 2018. After considering the evidence presented, the jury, on January 26, 2018, found defendant guilty of the lesser included offense of manslaughter, in violation of La. R.S. 14:31. As a result of this conviction, the trial court sentenced defendant to imprisonment at hard labor for thirty years.[1]Defendant now appeals.

         FACTS

         In the afternoon hours of December 1, 2016, defendant, the driver of a blue Infiniti, and Mr. McKnight, the driver of a grey Audi SUV, were involved in a road rage incident. The encounter between the two drivers apparently began on the Crescent City Connection, continued onto General DeGaulle Avenue and Behrman Place, and then culminated in the shooting death of Mr. McKnight at the intersection of Behrman Highway and Holmes Boulevard on the westbank of Jefferson Parish.

         No witness observed the entire occurrence; however, the State presented a multitude of witnesses at trial to detail the interaction between the two vehicles on various portions of the route. While on the Crescent City Connection, Patricia Scarborough observed, through her rear view mirror, a grey SUV driving "really fast and aggressively," weaving in and out of traffic, cutting people off, and trying to maneuver its way down the bridge. Ms. Scarborough also noticed a bright blue vehicle at the top of the bridge trying to change lanes, and as it was doing so, almost came into contact with the back part of the grey SUV because the SUV was merging over so fast. As the grey SUV passed the blue vehicle, the two drivers started to engage in "some type of road rage, "[2] with the blue vehicle sometimes behind the grey one and the grey vehicle sometimes behind the blue one.

         Jerrod Jones also noticed the two vehicles speeding, weaving in and out of traffic, and attempting to catch up with each other on the Crescent City Connection. Mr. Jones described that this interaction between the two drivers continued onto the General DeGaulle exit ramp[3] and down General DeGaulle Avenue. He detailed that the two vehicles were side by side jockeying for position down General DeGaulle Avenue, that the grey vehicle pulled over to turn right at Behrman Place, and that the blue vehicle came around it, also made the turn, and moved in front of the grey vehicle.

         The two drivers continued to engage in mutually antagonistic behavior down Behrman Highway with witnesses observing speeding, changing lanes, hand gestures, and cursing. The two vehicles ultimately came to a stop at a red light at the intersection of Behrman Highway and Holmes Boulevard. According to the evidence presented at trial, the two vehicles were situated side by side approximately two feet apart. The blue vehicle, driven by defendant, was in the lane going straight into Jefferson Parish on Behrman Highway. The grey Audi, driven by Mr. McKnight, was located partially in the turn lane that veered to Holmes Boulevard. This position placed the driver's side of Mr. McKnight's vehicle next to the passenger's side of defendant's vehicle.

         Veronica Hoye was stopped at the red light next to the driver's side of the blue vehicle and heard loud arguing and fussing. Getting scared, Ms. Hoye looked around to see where the noise was coming from and noticed the blue vehicle and the grey SUV. Ms. Hoye described that both men were in their vehicles, having words back and forth, and she particularly heard the black male in the SUV saying, "Why are you f'ing doing this," and "This is crazy." She further heard him say, "You get out the car. No. You get out the car," and "it doesn't have to be this way."[4] Afterward, the black male got out of his vehicle, went to the open passenger-side window of the blue vehicle, and leaned on it. According to Ms. Hoye, she heard no yelling or arguing at that point, and the situation appeared to have calmed down. Ms. Hoye then heard three gunshots.

         Defendant immediately exited his vehicle with his weapon drawn. After he surveyed the scene, defendant put the weapon down and waited for the police to arrive. In the meantime, Wendell Sam, who was near the intersection and heard the three shots, saw the victim on the ground and sprinted towards him to render aid. Mr. Sam, with the assistance of another individual, moved the victim from between the two vehicles and thereafter started CPR.

         Deputy Anthony Patrick of the Jefferson Parish Sheriffs Office was the first officer to respond to the scene. Upon his arrival, he observed a large crowd of people gathering, the two vehicles parked side by side at the intersection, and people crouched on the ground assisting the victim. After ascertaining the parties involved, Deputy Patrick approached defendant and asked what had happened, to which defendant replied, "He cut me off and got out on me." Deputy Patrick advised defendant that he was being detained, handcuffed him, and had him sit on the ground by the rear wheel of his vehicle. At that point, Jefferson Parish Constable John Oleaga arrived on the scene and stayed with defendant while Deputy Patrick secured the weapon and then assisted Mr. Sam with CPR. Despite their efforts, Mr. McKnight died on the scene, at which point Deputy Patrick secured the scene and contacted homicide investigators and crime scene.[5]

         In the meantime, Deputy Doris Green of the Jefferson Parish Sheriffs Office arrived on the scene and ascertained from Constable Oleaga that he had read defendant his Miranda[6] rights and that Deputy Patrick had secured the weapon. Deputy Green then took defendant into custody and placed him in the back seat of her unit. According to Deputy Green, defendant spontaneously told her that the victim exited his vehicle and placed his hand inside defendant's vehicle, after which he shot the victim. Deputy Green then took defendant to the detective bureau.

         After being advised of his rights by Detective William Roniger, defendant gave his first videotaped statement, which was played for the jury at trial. In this initial statement, defendant admitted shooting the victim after they had engaged in mutual road rage. Defendant explained that the incident began as he was driving home from work on the Crescent City Connection when an individual, who was driving aggressively in a grey Audi, zoomed across a few lanes of traffic and cut in front of him. In response, defendant called Mr. McKnight a "stupid m***** f ****," at which point the two men began making hand gestures and screaming at each other. Defendant explained that this behavior continued down General DeGaulle Avenue with Mr. McKnight yelling to defendant to pull over so they could settle this. Defendant also told the detective that Mr. McKnight threw something at his vehicle, possibly a drink, as they were traveling down General DeGaulle. Defendant further explained that he made a quick right turn onto Behrman hoping to end the situation, that Mr. McKnight followed him onto Behrman, and that the two continued to engage with each other. Mr. McKnight kept urging defendant to stop and get out of his car, and defendant kept calling Mr. McKnight a "stupid m***** f*****" and telling him that he was not getting out of his car.

         According to defendant, when they arrived at the intersection of Behrman Highway and Holmes Boulevard, Mr. McKnight pulled up very close to him, and the arguing continued through open windows with both parties still inside their vehicles. Defendant relayed in his statement that Mr. McKnight was yelling for him to get out of his car and threatening to "f*** him up." Mr. McKnight then exited his vehicle, went to defendant's open passenger window, leaned into the car, and repeatedly said, "Get out your car m***** f ****. I'm going to kill you. I'm going to f*** you up." In response, defendant told Mr. McKnight many times to "get his f***** hands off his f***** car." Defendant claimed that Mr. McKnight made an aggressive move and lunged into his vehicle with his upper body and hands. At that point, when Mr. McKnight lunged into defendant's car and threatened to kill him, defendant feared for his life, drew his gun, and fired several shots. Not knowing if he hit Mr. McKnight, defendant immediately exited his car with his gun in a police stance. After surveying the scene and ascertaining that the threat was gone, he put his gun down. In his first statement, defendant maintained that Mr. McKnight's hands and upper body were inside his vehicle, that he could not escape because there were cars on all sides of him, that he feared for his life, and that he assumed Mr. McKnight had a weapon, although he acknowledged that Mr. McKnight never produced or brandished a weapon. After this first statement, defendant was released from police custody.

         During the course of their investigation, the officers gained information that caused them to question some assertions made in defendant's first statement. As a result of this new information, Detective Roniger and Lieutenant Donald Meunier took a second statement from defendant on December 2, 2016, and a third statement from defendant on December 5, 2016, both of which were played for the jury at trial. Defendant maintained that Mr. McKnight lunged at him and threatened him, that he was fearful for his life, and that when he fired the gun, Mr. McKnight's hands and head were inside his vehicle. Defendant also relayed that Mr. McKnight was challenging him, and that he did not initiate anything and was responding to Mr. McKnight, although he admitted that neither did anything to disengage along the route. On the same date as his third statement, defendant was arrested for manslaughter.

         Several expert witnesses also testified at trial. Specifically relevant to the issues raised in this appeal are the testimonies of Dr. Dana Troxclair, the forensic pathologist who performed the autopsy on the victim, and Chief Timothy Scanlan of the Jefferson Parish Sheriff's Office, who testified as an expert in the fields of firearm and toolmark identification, crime scene reconstruction, and blood stain pattern analysis.

         Dr. Troxclair determined that the victim died of multiple gunshot wounds and particularly noted that the victim sustained a gunshot wound on the right shoulder, the right mid-chest, and the second and third finger of his left hand. She noted that the victim's hand injury was consistent with his hand being on the door, and further that the victim's arm could not have been fully extended at the time of the shooting because the projectile did not hit the deltoid muscle in that arm. In addition, Dr. Troxclair did not see any stippling, soot, or searing on any of the wounds, and because of the lack of stippling, she determined that the victim's wounds were not contact or close range. She explained that stippling is present when a weapon is fired at an intermediate range of two to three feet but is not present if the weapon is fired at a distant range of greater than two to three feet, depending on the weapon and the ammunition used. Although there was no stippling present on the victim's wounds, Dr. Troxclair classified the range as the outer end of the intermediate range or about three feet away, taking into account that the victim was wearing clothing at the time of the shooting.

         Chief Scanlan testified that the evidence in this case is consistent with the victim's hand being at or near the edge of the door when it was hit by a projectile. He testified that based on the blood spatter, the victim's hand was kind of "dangling" and was shot as it was between the ladder that was on the front passenger seat and the passenger door. It was his expert opinion that based on the blood spatter and lack of stippling, the victim's body, head, hands, legs, or torso did not go past where the victim's hand was on the outer edge of the door.

         SUFFICIENCY OF THE EVIDENCE

         (Assignment of Error Number Two)

         On appeal, defendant challenges the sufficiency of the evidence used to convict him.[7] He contends that this Court should reverse his conviction for manslaughter and enter a judgment of acquittal because no reasonable juror could have found that his shooting of the victim was unjustified under Louisiana's "shoot-the-intruder" law as set forth in La. R.S. 14:20(A)(4)(a).

         The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See State v. Ortiz, 96-1609 (La. 10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Batiste, 16-321 (La.App. 5 Cir. 12/14/16), 208 So.3d 1028, 1032, writ denied, 17-300 (La. 11/17/17), 229 So.3d 929. Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

         When circumstantial evidence is used to prove the commission of the offense, La. R.S 15:438 provides, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

         In the instant case, defendant was charged with second degree murder but convicted of the lesser included offense of manslaughter.[8] On appeal, he does not challenge the statutory elements of the offense; rather, he admits that he shot and killed Mr. McKnight but maintains that the killing was justified.

         The fact that an offender's conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct "when the offender's conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22." La. R.S. 14:18(7); State v. Sparkman, 13-640 (La.App. 5 Cir. 2/12/14), 136 So.3d 98, 106, writ denied, 14-477 (La. 11/26/14), 152 So.3d 897. When a defendant raises justification as a defense to murder, the State must prove beyond a reasonable doubt that the killing was not justified. State v. McKinney, 99-395 (La.App. 5 Cir. 11/10/99), 749 So.2d 716, 720.

         La. R.S. 14:20(A) provides four distinct instances for which justifiable homicide may be claimed. State v. Cook, 46, 843 (La.App. 2 Cir. 1/25/12), 86 So.3d 672, 682, writ denied, 12-640 (La. 6/22/12), 91 So.3d 969. Subsections (A)(1) and (A)(4)(a) are particularly relevant to the issues raised in this appeal and provide that a homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(4) (a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.

         However, invocation of the justification defense is not unqualified. La. R.S. 14:21 provides as follows:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

         At trial, the jury was instructed on all four theories of justification as well as the aggressor doctrine. Defendant's appellate counsel acknowledges that a rational juror could have reasonably concluded that defendant was the aggressor for purposes of his self-defense claim pursuant to La. R.S. 14:20(A)(1) and raises no challenges to the jury's determination in that regard on appeal. Rather, on appeal, defendant focuses on La. R.S. 14:20(A)(4)(a) to support his argument that no reasonable juror could have found that the shooting of Mr. McKnight was unjustified, especially in light of the fact that the evidence at trial was uncontested that Mr. McKnight made an unlawful entry into his vehicle. He also asserts that the aggressor doctrine, the State's principal argument that the shooting was unjustified, did not apply to his "shoot-the-intruder" defense and thus could not have disqualified him from using force under the provisions of La. R.S. 14:20(A)(4)(a). We first address defendant's argument relating to the application of the aggressor doctrine.

         Defendant asserts, based on the wording of La. R.S. 14:21, that the aggressor doctrine only applies to self-defense claims brought under the provisions of La. R.S. 14:20(A)(1) of the justifiable homicide statute. He maintains that his "shoot-the-intruder" defense is not a self-defense claim within the parameters of the aggressor doctrine, but rather, a defense of property claim not subject to the aggressor doctrine. Defendant points out that neither La. R.S. 14:20 nor La. R.S. 14:21 provides that an aggressor cannot claim justifiable homicide for prevention of an unlawful entry into a dwelling, place of business, or motor vehicle under La. R.S. 14:20(A)(4)(a). We find no merit to defendant's argument that the aggressor doctrine does not apply to the provisions of La. R.S. 14:20(A)(4)(a).

         As noted by the State in its appellate brief, defendant cites no legal authority to support his argument that the aggressor doctrine does not apply to the "shoot-the-intruder" defense. The aggressor doctrine was enacted in 1942 and has never been amended. Paragraph (4) of La. R.S. 14:20(A) was added in 1983 and has been amended several times, including an amendment in 1997 to extend the article to motor vehicles.[9] Certainly, had the legislature intended to place La. R.S. 14:20(A)(4)(a) outside the ambit of La. R.S. 14:21, it would have specified such an exception. Further, as the State points out, defendant's assertion that the aggressor doctrine does not apply to La. R.S. 14:20(A)(4)(a) would lead to unintended consequences insofar as a defendant could possibly instigate a conflict from his vehicle, dwelling, or business, and then hide behind the "shoot-the-intruder" justification when the victim attempts to respond to the provocation.

         Lastly, we note that although Subsection (A)(1) is the only provision of La. R.S. 14:20 that actually specifies the word "self-defense," all of the provisions envision the protection of one's person and therefore can be considered self- defense claims for purposes of the application of the aggressor doctrine. Clearly, the "shoot-the-intruder" law is not strictly a defense of property claim as defendant suggests; rather, that law is a recognition of an individual's right to feel safe and secure in his own home or an extension thereof. As noted by the State, while Subsection (A)(4)(a) is based on a differing legal theory, it is still just as much a claim of self-defense as a justifiable homicide under any other provision.[10]Accordingly, we find that the aggressor doctrine is applicable to all provisions of La. R.S. 14:20(A), including the "shoot-the-intruder" justification relied on by defendant. In light of this determination, we further find that the jury could have reasonably concluded that defendant was the aggressor in this case and therefore precluded from asserting a self-defense claim under any of the provisions of La. R.S. 14:20(A).

         However, assuming that defendant was not the aggressor, we now turn our attention to defendant's argument that the State failed to carry its burden of proving beyond a reasonable doubt that his shooting of Mr. McKnight was unjustified under the "shoot-the-intruder" law. Specifically, defendant argues that the evidence at trial conclusively established that Mr. McKnight made an unlawful entry into his car, that his subsequent use of lethal force in response to the victim's entry was presumed reasonable, and that the State failed to introduce evidence to overcome the legal presumption that defendant had a reasonable belief that the use of deadly force was necessary to prevent the unlawful entry.

         In the present case, the critical items of proof under La. R.S. 14:20(A)(4)(a) are whether Mr. McKnight was attempting to or had made an unlawful entry into defendant's car and whether defendant reasonably believed that the use of deadly force was necessary to prevent Mr. McKnight from entering or to compel him to leave. Both elements need to be present in order to support a finding that defendant was indeed justified in killing Mr. McKnight. See State v. Ingram, 45, 546 (La.App. 2 Cir. 6/22/11), 71 So.3d 437, 442, writ denied, 11-1630 (La. 1/11/12), 77 So.3d 947.

         With regard to entry, defendant asserts that the evidence at trial conclusively established that Mr. McKnight made an unlawful entry into his car. At trial, Chief Scanlan testified that the evidence in this case is consistent with the victim's hand being at or near the edge of the door when it was hit by a projectile. He testified that based on the blood spatter, the victim's hand was "dangling" and was shot as it was between the ladder that was on the front passenger seat and the passenger door. We do not necessarily believe that Mr. McKnight's action of placing his hands on the open window constitutes an unlawful entry for purposes of La. R.S. 14:20(A)(4)(a).[11] While Mr. McKnight leaned on the open window and argued with defendant, we have no indication that Mr. McKnight attempted to unlock or open defendant's car door in order to enter. Nonetheless, for purposes of this opinion, we will assume that an unlawful entry occurred and turn our attention to the next part of the inquiry - whether defendant reasonably believed that the use of deadly force was necessary to prevent Mr. McKnight from entering or to compel him to leave.

         Under La. R.S. 14:20(A)(4)(a), there is no need for the person using deadly force to believe that he is in danger of losing his life; instead, the person need only reasonably believe that the use of deadly force was necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle. See State v. Cook, 86 So.3d at 682. La. R.S. 14:20(B) creates a presumption as to this belief and reads as follows:

B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the dwelling, place of business, or motor vehicle when the conflict began, if both of the following occur:
(1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, ...

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