289 So.3d 1030
La. Ct. App.2019Background
- Kirby Thomas was indicted for possession with intent to distribute cocaine; attempted second-degree murder (presented as attempted manslaughter at verdict); and being a convicted felon in possession of a firearm. He pled not guilty and went to jury trial.
- Facts: after a heated argument at a funeral repass, Lashon Brown went to Thomas’s house to continue the discussion; Nehemiah Jones arrived and was shot dead; Brown was shot multiple times in the back and survived. Spent .223 casings consistent with a rifle were found outside Thomas’s house; a 9mm was found under Jones’s body. Thomas admitted deputies found cocaine in his home and stipulated to a prior felony.
- Jury convicted Thomas of amended count one (possession of >28 g but <200 g cocaine), attempted manslaughter (responsive verdict to attempted second-degree murder), and felon-in-possession. Verdicts on counts one and four were 11–1; count three unanimous.
- Sentencing: five years for the drug conviction (concurrent), 20 years for attempted manslaughter (consecutive), and 10 years for felon-in-possession (consecutive). Thomas appealed.
- Holding on appeal: convictions affirmed. Court vacated and remanded the felon-in-possession sentence for resentencing (statutory amendment changed applicable minimum) and noted a sentencing-timing patent error (failure to wait 24 hours after denial of a new-trial motion), rendered moot by the remand.
Issues
| Issue | State's Argument | Thomas's Argument | Held |
|---|---|---|---|
| Sufficiency / self-defense for attempted manslaughter | Evidence (victim testimony, rifle casings, defendant’s misleading statements) supports intent to kill and disproves self-defense. | Thomas claims he fired in the moment believing he faced mortal danger when Jones arrived armed and that he only intended to stop, not kill, Brown. | Conviction affirmed. Jury could infer specific intent to kill from firing an AR-15 repeatedly (Jones died) and shooting Brown from behind; self-defense rejected. |
| Felon in possession of a firearm — justification defense | A claimed justification fails because jury rejected self-defense; possession therefore unlawful. | Thomas argued justification because he reasonably believed deadly force was necessary. | Rejected. Conviction stands; but sentence vacated and remanded due to statutory sentencing-range amendment applied retroactively. |
| Exclusion of evidence about a 2010 prior shooting (right to present a defense) | Evidence was irrelevant and not probative to the reasonableness of force in this incident. | Thomas sought to introduce a 2010 shooting to explain his fear and perceived need for deadly force. | No reversible error. Trial court did not abuse discretion excluding remote/unrelated prior incident; right to present a defense not violated. |
| Non‑unanimous jury verdicts and venire composition | State relied on Louisiana precedent upholding non‑unanimous verdicts; Attorney General later briefed potential Ramos implications. | Thomas argued non‑unanimous verdict requirement was unconstitutional and challenged venire as under‑representing African‑Americans. | Non‑unanimous verdict claim denied (not preserved and Bertrand controls); venire challenge waived for failure to move to quash pre‑voir dire (majority). A concurrence/dissent would have remanded to hold an evidentiary hearing on systematic exclusion. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- Apodaca v. Oregon, 406 U.S. 404 (case addressing jury unanimity precedent relied on historically)
- Chambers v. Mississippi, 410 U.S. 284 (right to present a defense principle)
- Washington v. Texas, 388 U.S. 14 (compulsory process / right to present witnesses)
- State v. Bertrand, 6 So. 3d 738 (La. 2009) (Louisiana Supreme Court upholding non‑unanimous jury verdicts)
- State v. Blache, 480 So. 2d 304 (La. 1985) (felon’s limited right to possess a weapon in imminent peril — justification defense)
- State v. Cousan, 684 So. 2d 382 (La. 1996) (specific intent may be inferred from circumstances)
- State v. Mose, 412 So. 2d 584 (La. 1982) (elements of felon‑in‑possession offense)
- State v. Mollerberg, 260 So. 3d 599 (La. App. 1st Cir. 2018) (discussion of self‑defense burden and credibility issues)