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.
Babin, District Attorney, Napoleonville, LA, Lindsey D.
Manda, Assistant District Attorney, Gonzales, LA, Attorneys
for Appellee, State of Louisiana.
Landry, Attorney General Colin Clark, J. Taylor Gray,
Assistant Attorneys General, Baton Rouge, LA.
Constance Hanes, New Orleans, LA, Attorney for
Defendant-Appellant, Kirby Thomas.
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
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. 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.
January 5, 2017, several people attended a
repass 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 chopperon" Brown. After the
argument, defendant asked Brown for a ride home, which Brown
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.
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.
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.
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.
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.
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.
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
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.
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.
OF ERROR #1; INSUFFICIENT EVIDENCE
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
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.
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 ___.
Revised Statutes 14:31(A) ...