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State v. Thomas

Court of Appeals of Louisiana, First Circuit

October 25, 2019

STATE OF LOUISIANA
v.
KIRBY THOMAS

          On Appeal from the 23rd Judicial District Court In and for the Parish of Assumption State of Louisiana Trial Court No. 17-123, Honorable Jason Verdigets, Judge Presiding.

          Ricky Babin, District Attorney, Napoleonville, LA, Lindsey D. Manda, Assistant District Attorney, Gonzales, LA, Attorneys for Appellee, State of Louisiana.

          Jeff Landry, Attorney General Colin Clark, J. Taylor Gray, Assistant Attorneys General, Baton Rouge, LA.

          Mary Constance Hanes, New Orleans, LA, Attorney for Defendant-Appellant, Kirby Thomas.

          BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.

          HIGGINBOTHAM, J.

         Defendant, Kirby Thomas, was charged by bill of indictment with two counts of possession with intent to distribute cocaine, violations of La. R.S. 40:967(A) (counts one and two); attempted second degree murder, a violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count three); and being a convicted felon in possession of a firearm, a violation of La. R.S. 14:95.1 (count four). Defendant pled not guilty to all counts. Before trial commenced, the State amended count one to allege possession of more than 28 grams, but less than 200 grams, of cocaine, a violation of La. R.S. 40:967(C), and dismissed count two. After a trial by jury, defendant was found guilty as charged of amended count one and count four, and guilty of the responsive offense of attempted manslaughter in violation of La. R.S. 14:27 and La. R.S. 14:31, for count three.[1] The verdicts for counts one and four were 11-1, with a unanimous verdict on count three. The trial court imposed a term of five years imprisonment at hard labor on count one, to be served concurrently with consecutive terms of 20 and 10 years imprisonment at hard labor for counts three and four respectively. Defendant now timely appeals. For the following reasons, we affirm defendant's convictions, but remand for resentencing.

         STATEMENT OF FACTS

         On January 5, 2017, several people attended a repass[2] following the funeral of Meagan Washington. Lashon Brown was barbequing chicken at the repass. After Brown was finished barbequing, defendant asked him for a ride to the liquor store to purchase alcohol. Brown offered to share the cost of a bottle of cognac with the defendant. Brown left the repass to go to the liquor store to purchase a bottle of cognac, and then he returned to the repass. Upon his return, he and defendant began talking "about some old days" and got into a heated argument. Defendant blamed Brown for taking something from him, and Brown denied any wrongdoing. The disagreement did not become physical, though at one point defendant said he would "put that chopper[3]on" Brown. After the argument, defendant asked Brown for a ride home, which Brown denied.

         On leaving the repass, Brown drove Chaquille Landry home. After dropping Landry off, Brown reconsidered his argument with defendant and because he felt "[they] were bigger than that[, ]" he called defendant and proposed resolving the matter. Brown also called his cousin Nehemiah Jones and described the argument the two men had at the repass. Brown explained to Jones that he was going to defendant's house to continue the discussion in order to resolve it. Brown acknowledged that he asked Jones to meet him there. Brown said he did not know that Jones would bring a gun nor did he ever see Jones with a gun that night.

         Brown drove to defendant's home and parked on the street in front of defendant's driveway. Defendant was already standing outside. Brown observed an AR-15 propped against defendant's home. Brown testified he and defendant began to resolve their conflict when, about ten minutes after Brown's arrival, Jones pulled behind defendant's truck. Brown shook hands with defendant, told defendant he "got" Jones, and that he and Jones would leave. As Brown walked to meet Jones near his vehicle, Brown heard gunshots coming from behind him and realized that he had been shot. Brown was shot several times in the back, buttocks, legs, and hip. Brown acknowledged that Jones was shot immediately before him. Brown testified that defendant walked up to him and told him he was going to spare Brown's life because he had children with defendant's cousin. Brown conceded, and investigators confirmed, that his truck was still running both during and after the encounter.

         Almost immediately thereafter, defendant asked his neighbor, Brittany Wiggins, a sergeant with the Assumption Parish Sheriffs Office, to "call [her] people," because there were two men lying shot in his driveway. Defendant told Sgt. Wiggins and another responding deputy that the shooter or shooters had fled either through a nearby field or in opposite directions on the nearby highway. Defendant told investigators he was inside when the shooting occurred and did not know who was there or who did the shooting. He did not tell responding officers that he acted in self-defense or that he was in fear for his life. Brown, on the other hand, told deputies that defendant shot him with a "chopper." Deputies found a 9mm firearm and car keys under Jones's body.

         Jones's girlfriend testified at trial that she was with him when he received a call from Brown after Jones returned home from the repass. She explained that because the call was on speaker, she understood that Brown saw that defendant "got a chopper in his hand." She saw Jones leave in her car with the intention of getting Brown and bringing him back, but she said that at no point did Jones ask her for a gun. She did concede that she kept a 9mm handgun in her car.

         A search warrant for defendant's house was obtained. Numerous spent casings were recovered from the outside of the residence, which were all of .223 caliber. No rifle was ever recovered, nor were any weapons recovered from Brown's truck. Expert testimony established that the .223 bullets could not have been fired from the 9mm handgun recovered at the scene under Jones's body, but instead could only have been fired from a rifle.

         A search of the interior of defendant's house revealed a white rock-like substance later revealed to be cocaine. Though the State could not present any fingerprint evidence linking defendant to the narcotics, defendant admitted in questioning that the deputies had found his stash, but explained he was just a user.

         Relative to the felon in possession of a firearm charge, defendant stipulated to a prior conviction for possession of cocaine. Defendant was not charged by the grand jury with the killing of Jones.

         Defendant called two witnesses in his defense. The first was Landry, the gentleman Brown gave a ride home from the repass. Landry saw Brown and defendant "go [in] half for the liquor that night and witnessed them drink it together at the repass. The two men started arguing after sharing the liquor, but Landry specified it never went beyond heated words. Landry described the argument as being about "some dope or something that got took probably about two or three years ago." As Brown was driving Landry home, Landry explained that Brown told him he wanted to continue the discussion with defendant, and Landry suggested leaving it for another day. Landry testified that Brown wanted to go to defendant's house to clear up a misunderstanding, and Brown at no point expressed any threats toward defendant.

         Defendant's second witness was Chelsea Thomas, his girlfriend. She was both at the repass earlier in the day, as well as at the defendant's home when Brown arrived. She testified that before defendant returned home, someone drove under their carport in a black truck, the truck remained there for about five minutes without anyone getting out, and then eventually the truck left. After defendant returned home, she heard arguing outside. Shortly thereafter, she heard several gunshots occurring over a few seconds. She acknowledged that defendant was the person who shot people outside of his home and that defendant necessarily possessed a firearm to do so.

         ASSIGNMENT OF ERROR #1; INSUFFICIENT EVIDENCE

         In his first assignment of error, defendant contends that the evidence was insufficient to convict him of attempted manslaughter as he acted in self-defense when he shot Brown. Defendant claims that he reasonably believed he was in mortal danger when Jones arrived unexpectedly at his house in the middle of the night, and he only had moments to decide if Brown was a threat as he walked toward Jones instead of fleeing the premises. In support, defendant points to the fact he only shot Brown in the lower body and explicitly told Brown he would spare his life as proof he only intended to stop Brown rather than kill or maim him. Moreover, defendant argues that because he was justified in shooting Jones and Brown, he had a defense to the charge of felon in possession of a firearm. In turn, the State argues that when viewed in a light most favorable to the prosecution, the evidence was sufficient to prove defendant committed the offenses. The State points to defendant's misleading statements to law enforcement and to the fact that Brown was walking away from defendant when he was repeatedly shot from behind as evidence that discredits defendant's claim of self-defense. Ultimately, the State contends defendant's use of force was neither reasonable nor necessary where there was no evidence that either Brown or Jones pulled a gun on defendant.

         A conviction based on insufficient evidence cannot stand, as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The Jackson standard of review, incorporated in La. Code Crim. P. art. 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, in order to convict, the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Dyson, 2016-1571 (La.App. 1st Cir. 6/2/17), 222 So.3d 220, 228, writ denied. 2017-1399 (La. 6/15/18), 257 So.3d 685. When direct evidence is viewed in a light most favorable to the prosecution, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Brothers., 2017-0870 (La.App. 1st Cir. 11/1/17), 233 So.3d 110, 113, writ denied, 2017-2160 (La. 10/8/18), 253 So.3d 803.

         An appellate court is constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact. State v. Cockerham, 2017-0535 (La.App. 1st Cir. 9/21/17), 231 So.3d 698, 705, writ denied, 2017-1802 (La. 6/15/18), 245 So.3d 1035. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness, including an expert. The fact that the record contains evidence that conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient. Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Moultrie, 2014-1535 (La.App. 1st Cir. 12/14/17), 234 So.3d 142, 146, writ denied. 2018-0134 (La. 12/3/18), 257 So.3d 1252. Moreover, when there is conflicting witness testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Ruffen, 2018-1280 (La.App. 1st Cir. 2/28/19), 2019 WL 968412, at *4 (unpublished), writ denied, 2019-00564 (La. 9/6/19), ___ So.3d ___.

         Attempted Manslaughter

         Louisiana Revised Statutes 14:31(A) ...


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