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.
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Robert A. Chaisson
A. CHAISSON JUDGE
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.
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.Defendant now
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.
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, " with the blue vehicle sometimes behind the
grey one and the grey vehicle sometimes behind the blue one.
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 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.
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.
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." 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
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.
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
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 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.
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.
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.
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
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
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.
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.
OF THE EVIDENCE
of Error Number Two)
appeal, defendant challenges the sufficiency of the evidence
used to convict him. 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).
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.
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.
instant case, defendant was charged with second degree murder
but convicted of the lesser included offense of
manslaughter. 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
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.
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
(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.
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.
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
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).
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. 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.
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.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).
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
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
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). 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.
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, ...