STATE OF LOUISIANA VERSUS KIRBY THOMAS
NO. 2019 KA 0409
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
OCT 25 2019
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
Jeff Landry
Attorney General
Colin Clark
J. Taylor Gray
Assistant Attorneys General
Baton Rouge, LA
Attorneys for Appellee, State of Louisiana
Mary Constance Hanes
New Orleans, LA
Attorney for Defendant-Appellant, Kirby Thomas
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
Defendant, Kirby Thomas, was charged by bill of indictment with two counts of possession with intent to distribute cocaine, violations of
STATEMENT OF FACTS
On January 5, 2017, several people attended a repass2 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 chopper3 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.
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.
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
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
Attempted Manslaughter
Louisiana Revised Statutes 14:31(A) provides, in pertinent part:
Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender‘s blood had actually cooled, or that an average person‘s blood would have cooled, at the time the offense was committed;
Additionally,
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
In order to obtain a conviction for attempted manslaughter under
Here, there is little doubt defendant intended to kill Brown by aiming an AR-15 at him and firing it several times, striking Brown in the back, hips, legs, and buttocks. Defendant‘s identical conduct directed toward Jones resulted in Jones‘s death. That defendant was unsuccessful in killing Brown does not obviate his specific
Additionally, we find no merit in defendant‘s claim of self-defense. The use of force or violence upon the person of another is justifiable under
Louisiana law is unclear as to who has the burden of proving self-defense or defense of others in a non-homicide case, and what the burden is. See State v. Barnes, 590 So.2d 1298, 1300 (La. App. 1st Cir. 1991). In previous cases dealing with this issue, this court has analyzed the evidence under both standards of review, that is whether defendant proved self-defense (or defense of others) by a preponderance of the evidence or whether the State proved beyond a reasonable doubt that defendant did not act in self-defense (or defense of others). In this case, like in State v. Mollerberg, 2018-0256 (La. App. 1st Cir. 9/24/18), 260 So. 3d 599, 605-06, we need not and do not decide the issue of who has the burden of proving (or disproving) self-defense because under either standard the evidence sufficiently established that the defendant did not act in self-defense.
Defendant did not testify at trial, but through defense counsel‘s argument, he advanced the theory that he was afraid he was going to be killed because of the argument he and Brown had been having during the course of the day. Jones‘s unexpected arrival, in defendant‘s view, reasonably caused him to fear both men were acting in concert to kill him. After defendant shot and killed Jones, Brown started walking toward Jones, and defendant contends he was afraid Brown was going to retrieve Jones‘s weapon. The jury obviously rejected this hypothesis of innocence as unreasonable.
As an initial matter, Brown testified that he was unaware Jones had a weapon, and there was no testimony or evidence indicating defendant had knowledge Jones was armed. There was no evidence that Brown or Jones made any threats to defendant at any point during the day, notwithstanding Brown and defendant‘s heated verbal conflict. To the contrary, it was defendant who was heard threatening to “put that chopper” on Brown. Brown testified that defendant had a rifle visibly propped against his house upon Brown‘s arrival. Defendant concedes that Brown was moving away from him at the time he shot Brown. Further, Brown
An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the trier of fact. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Having carefully considered the evidence, we cannot say that the jury‘s determinations were irrational under the facts and circumstances presented. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662.
Felon in Possession of a Firearm
Louisiana Revised Statute 14:95.1 makes it unlawful for any person who has been convicted of certain felonies to possess a firearm. To prove a violation of
While
Defendant concedes he is the one who fired at Brown with an AR-15. However, as noted above, the jury rationally found that defendant did not have a valid claim of self-defense for the attempted manslaughter of Brown. Consequently, he similarly does not have a self-defense claim regarding his possession of the firearm used to commit that attempted manslaughter. This claim is also without merit.
ASSIGNMENT OF ERROR # 2: RIGHT TO PRESENT DEFENSE
In his second assignment of error, defendant asserts the trial court erred when it denied him the right to present evidence relative to his claim of self-defense. Specifically, defendant alleges that in 2010 he was shot in his yard, and that this event contributed to his attempted use of deadly force against Brown. Defendant argues that the danger he perceived at Jones‘s arrival with a weapon was due in part to his previous experience. The State responds that defendant is not entitled to present irrelevant or non-probative evidence.
The Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee the criminally accused a meaningful opportunity to present a complete defense. State v. Dressner, 2008-1366 (La. 7/6/10), 45 So.3d 127, 137, cert. denied, 562 U.S. 1271, 131 S.Ct. 1605, 179 L.Ed.2d 500 (2011). Fundamental to due process of law is the right to present a defense, and to have it fairly considered by the jury. State v. Wilson, 2017-0908 (La. 12/5/18), ___ So.3d ___, 2018 WL 6382169, at *3 (citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) and Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)). A defendant has the right to present any and all relevant evidence bearing on his innocence, unless prohibited by our federal and state constitutions, by law or by jurisprudence. State v. Ludwig, 423 So.2d 1073, 1077 (La. 1982); State v. Magee, 2017-1217 (La. App. 1st Cir. 2/27/18), 243 So.3d 151, 163, writ denied, 2018-0509 (La. 2/11/19), 263 So.3d 434. It is well settled that evidentiary rules may not supersede the fundamental right to present a defense. State v. Nagi, 2017-1257 (La. App. 1st Cir. 4/9/18), 2018 WL 1704253 at *15 (unpublished), writ denied, 2018-0739 (La. 3/25/19), 267 So.3d 602 (citing State v. Van Winkle, 94-0947 (La. 6/30/95), 658 So.2d 198, 202).
However, the right to present a defense does not require the trial court to admit irrelevant evidence or evidence with such little probative value that it is substantially outweighed by other legitimate considerations. State v. Nixon, 2017-1582 (La. App. 1st Cir. 4/13/18), 250 So.3d 273, 280, writ denied, 2018-0770 (La. 11/14/18), 256 So.3d 290 (citing State v. Coleman, 2014-0402 (La. 2/26/16), 188 So.3d 174, 197, cert. denied, ___ U.S. ___, 137 S.Ct. 153, 196 L.Ed.2d 116 (2016)). The trial court is vested with broad discretion in determining whether evidence is relevant or, even if relevant, has such little probative value that it is substantially outweighed by other considerations. See
Based on our careful review of the entire record, we find no reason to disturb the trial court‘s ruling on the State‘s motion in limine. The trial court did not deny defendant due process of law by prohibiting the defense from introducing evidence of an incident that allegedly occurred in 2010. Louisiana Code of Evidence article 404(B)(2) provides, in pertinent part, that “[i]n the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of ... the accused‘s state of mind as to the victim‘s dangerous character is not admissible[.]”
ASSIGNMENT OF ERROR #3: NON-UNANIMOUS JURY VERDICTS
In the third assignment of error, defendant contends that the non-unanimous jury verdict required to convict him under
In the trial court, at the conclusion of the State‘s case, defendant objected to being subject to a non-unanimous jury verdict, but did not do so with any specificity or alleging any specific constitutional ground. It is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below. In order to do so, a party must raise the issue of unconstitutionality in the trial court, the alleged unconstitutionality must be specially pleaded, and the grounds outlining the basis of unconstitutionality must be particularized. See State v. Hatton, 2007-2377 (La. 7/1/08), 985 So.2d 709, 718-19. The claim has arguably been waived here due to the manner in which it was raised at trial.
In any event, in actions properly challenging the constitutionality of a statute, but not resulting in a declaratory judgment, the Louisiana Supreme Court has held that the Attorney General should be served a copy of the pleadings. Vallo v. Gayle Oil Co., 94-1238 (La. 11/30/94), 646 So.2d 859, 864. Additionally,
Here, even assuming defendant properly raised the issue at trial, there is nothing in the record indicating that the Attorney General was given any notice of defendant‘s constitutional challenge. On May 24, 2019, this court notified the Attorney General of the pending constitutional claim in accordance with
Defendant concedes that this and other courts have rejected the arguments regarding non-unanimous jury verdicts. Our supreme court in Bertrand, 6 So.3d at 742-43, found that a non-unanimous twelve-person jury verdict is constitutional and that
In any event, the United States Supreme Court on March 18, 2019, granted certiorari in State v. Ramos, 2016-1199 (La. App. 4th Cir. 11/2/17), 231 So.3d 44, writ denied, 2017-2133 (La. 6/15/18), 257 So.3d 679, and writ denied sub nom., State ex rel. Evangelisto Ramos v. State, 2017-1177 (La. 10/15/18), 253 So.3d 1300, and cert. granted, ___ U.S. ___, 139 S.Ct. 1318, 203 L.Ed.2d 563 (2019), to address the question of whether the unanimous jury verdict requirement of the Sixth Amendment to the United States Constitution applies to the states through application of the Fourteenth Amendment. Depending on the Court‘s ultimate holding in Ramos, defendant may have grounds to raise this issue again in a future proceeding. At this time, this claim is without merit.
ASSIGNMENT OF ERROR #4: DEFECTIVE JURY VENIRE
In his final assignment of error, defendant argues that the trial court erred when it denied his motion for new trial on the ground that the racial makeup of the jury venire was not representative of the parish population. Specifically, counsel noted that the venire members primarily from Pierre Part and Bayou L‘Ourse were served with jury duty summons, communities defendant contends are mostly white. Defendant cites the roll of prospective jurors, noting that only 56 of 275 proposed panel members were served with jury duty summons and were present. Defendant posits that communities with a larger African-American population were systematically not served with jury duty summons, notwithstanding the fact there were residents of those communities on the list. Defendant
Before the trial court‘s final ruling on his motion for new trial, defendant proffered the list of venire members dated September 26, 2018, which contained the names and addresses of the petit jury venire. Defendant also proffered a list of Assumption Parish polling places and the number of registered voters by party and race. (Ex. “Assumption Parish Poll Place Name and Location & Registered Voters by Party and Place“). The trial court denied the motion on the basis that it “does not show the defendant will call witnesses or submit evidence and/or new evidence not presented at trial,” citing State v. Kitts, 2017-0777 (La. App. 1st Cir. 5/10/18), 250 So.3d 939, 960. As defendant notes, this was likely for the purpose of highlighting the legal proposition that defendant bears the burden of proving the grounds for setting aside the venire. Kitts, 250 So.3d at 960.
In State v. Smith, 2017-1333 (La. App. 1st Cir. 2/21/18), 2018 WL 1007350, at *4 (unpublished), writ denied, 2018-0405 (La. 2/18/19), 265 So.3d 771, this court noted:
The proper procedural vehicle for alleging that the general or petit jury venire was improperly drawn, selected, or constituted is a motion to quash.
La. C.Cr.P. art. 532(9) . A motion to quash based on the ground that the petit jury venire was unconstitutionally drawn should be filed in writing prior to the beginning of the jury selection. SeeLa. C.Cr.P. arts. 521 ,532(9) , and535(C) ; see also State v. Pooler, 96-1794 (La. App. 1st Cir. 5/9/97), 696 So.2d 22, 39, writ denied, 97-1470 (La. 11/14/97), 703 So.2d 1288. Herein, the record shows that the defendant did not move to quash the petit jury venire by oral or written motion. Thus, the defendant did not properly raise his challenge to the jury venire‘s composition. Any grounds for that potential motion were waived. SeeLa. C.Cr.P. art. 535(D) .
Here, defendant did not file such a pretrial motion to quash and did not raise the issue before voir dire began. Consequently, this claim is not properly before the court and is denied as waived.
PATENT ERROR
Pursuant to
First, at the time defendant committed this offense in January 2017,
This court recently held that, subsequent to its 2017 amendment, the specific language of
Second, defendant filed a motion for new trial, and the trial court denied it on the day of sentencing, just prior to the imposition of sentence. Louisiana Code of Criminal Procedure article 873 mandates, in pertinent part, that “[i]f a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled” unless the defendant expressly waives the delay. There is no indication in the record defendant waived the twenty-four hour delay for sentencing. Herein, the trial court erred by sentencing defendant immediately after ruling on the motion for new trial. While defense counsel did not contest moving on to sentencing immediately following the denials of his motion for new trial, in State v. Kisack, 2016-0797 (La. 10/18/17), 236 So.3d 1201, 1205 (per curiam), cert. denied, ___ U.S. ___, 138 S.Ct. 1175, 200 L.Ed.2d 322 (2018), the supreme court found the defense counsel‘s participation in the sentencing hearing was insufficient to constitute a waiver of the delay required by
Nevertheless, in State v. Augustine, 555 So.2d 1331, 1333-34 (La. 1990), the Louisiana Supreme Court indicated that a failure to observe the twenty-four hour delay provided in
CONVICTIONS AFFIRMED; SENTENCE FOR FELON IN POSSESSION OF A FIREARM VACATED AND REMANDED FOR RESENTENCING.
STATE OF LOUISIANA VERSUS KIRBY THOMAS
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
PENZATO, J., concurring, in part.
While I agree with the reasons of the majority opinion as to those portions of the judgment affirming the defendant‘s convictions, vacating the sentence for felon in possession of a firearm, and remanding for resentencing, I concur and write separately regarding the assignment of error as to the defective jury venire. I agree with the majority that State v. Smith, 2017-1333 (La. App. 1 Cir. 2/21/18), 2018 WL 1007350, writ denied, 2018-0405 (La. 2/18/19), 265 So. 3d 771, is controlling in that the defendant waived his right to challenge the jury venire by failing to move to quash the venire prior to the time that voir dire began. Further, the record reflects that the jurors were qualified pursuant to
For these reasons, I respectfully concur, in part.
STATE OF LOUISIANA VERSUS KIRBY THOMAS
2019 KA 0409
COURT OF APPEAL FIRST CIRCUIT STATE OF LOUISIANA
BEFORE: HIGGINBOTHAM, PENZATO AND LANIER, JJ.
LANIER, J., dissenting in part.
I agree with the majority that defendant‘s convictions should stand on the merits, and that defendant‘s sentence on the charge of felon in possession of a firearm should be remanded for resentencing; however, I believe that before reaching the convictions and sentences, this matter should be remanded for a pretrial evidentiary hearing on whether African Americans were systematically excluded from the jury venire, as the clerk of court‘s records indicate that a very large number of residents of the Napoleonville area, which has a significant African American population, were not served.
The majority is correct that one of the permissive grounds for a motion to quash given in
Here, defendant did not file such a pretrial motion to quash and did not raise the issue before voir dire began. Defendant did raise the issue and objected before trial commenced at the conclusion of voir dire. The trial court noted defendant‘s objection. In order to preserve the right to appeal this issue, defendant had to make a timely objection and state the grounds of his objection. See Martin v. Francis, 600 So.2d 1382, 1387 (La. App. 1 Cir. 1992), writ denied, 606 So.2d 541 (La. 1992). Defendant did just that, but the trial court did not have a hearing on the issue before the jury was sworn and the trial commenced.
Defendant again raised the issue of the venire composition in his motion for new trial. Prior to defendant‘s sentencing, the trial court summarily denied the motion without a hearing on the basis that it “does not show the defendant will call witnesses or submit evidence and/or new evidence not presented at trial.” However, defendant had never claimed that new or material evidence was discovered after the trial.
Louisiana Code of Criminal Procedure art. 851 states that the motion for a new trial is “based on the supposition that injustice has been done the defendant.” In this case, defendant notes that of the 56 venire members summoned to appear and were present, 33 were from Pierre Part, a town defendant alleges is “well known to
A general jury venire “shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to the defendant, or unless persons were systematically excluded from the venires solely upon the basis of race.” State v. Lee, 559 So.2d 1310, 1313-14 (La. 1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991). Defendant‘s argument, at the very least, suggests that African Americans were systematically excluded from the jury selection process.
Systematic exclusion of a specific class in the source or sources from which the jury venires are chosen is precluded by law and, along with being denied a hearing on the matter despite raising a timely objection, would be an injustice upon defendant. Out of an abundance of caution, I would remand this matter to the trial court for a pre-trial evidentiary hearing solely on the issue of whether African Americans were systematically excluded from the jury venire by lack of service.
For the above reasons, I respectfully dissent.