Lead Opinion
hThе defendant, David Mahler, was indicted for the second degree murder of Craig Zimmer. At his arraignment, the defendant pled not guilty. After a jury trial, the defendant was found guilty of manslaughter. The trial court sentenced the defendant to serve twenty years at hard labor, with credit for timе served. The defendant’s conviction and sentence were affirmed by this Court. State v. David Mahler, unpub.,
The defendant filed an application for post-conviction relief based upon the failure of the State to provide statements of two witnesses. The district court denied relief, and the defendant sought supervisory review. This Court denied writs. State v. David Mahler, unpub.,
| Subsequently, the State amended the bill of indictment to charge the defendant with manslaughter. On July 23, 2010, after a five day jury trial, the defendant was found guilty of manslaughter. A motion for new trial was filed and denied. On the same day, the trial court sentenced the defendant to serve twenty years at hard labor, with credit for time served. The
STATEMENT OF FACT
In August 1997, a group of friends, including the victim Craig Zimmer, attended а fishing rodeo in Venetian Isles. At some point during the rodeo a large fight ensued and the police had to intervene. Subsequently, the rodeo was closed and the patrons departed. On the way out of the rodeo, the victim was approached by Nick Mahler who struck him in the face.
After the encounter with Nick, Craig insisted on going to Nick’s house to discuss the altercation. He was accompanied by several friends.
The testimony given by Chris Mahler indiсated that Craig was shot while he was struggling to get the gun away from Chris. David Mahler also testified at trial and stated that he believed the group of men had weapons and that he was fearful |3for his and his family’s safety. He claimed that he shot Craig while he was trying to take Chris’ gun away from him.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant contends that the trial court erroneously instructed the jury that it should consider whether the defendant had an opportunity to retreat before shooting the victim. At both trials, the factual issue for the jury to decide was whethеr Mr. Mahler acted in self-defense. The defendant contends that the trial court should have charged the jury with the 2006 amendment to La. R.S. 14:20 in the later trial. The trial court did not apply the amendment because it determined the amendment was substantive and had only prosрective application. Because the incident occurred in 1997, the trial court charged the jury with the applicable law at the time of the incident.
In 1997 when the incident occurred, the relevant provisions of La. R.S. § 14:20(A) provided that a homicide cоmmitted outside of a home, business, or motor vehicle, is “justifiable:”
(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.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
. This definition of justifiable homicide provided for in A(l) and (2) is exactly the same now as it was in 1997 when the shooting occurred. However, additional language was added in 2006, when the Louisiana Legislature amended La. R.S. |414:20 to include the following two provi
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.
La. R.S. 14:20.
The sole issue before this Court is whether La. R.S. 14:20, as amended, should be applied retroactively or prospectively. Thе defendant argues that the 2006 amendment clarifies the statute by providing that a defendant claiming self-defense has no duty to retreat. Because it does not change the statute, but merely interprets the existing definition of self-defense, it should be applied retrоactively. We disagree.
According to La. R.S. 1:2, the governing rule of statutory construction, “[n]o Section of the Revised Statutes is retroactive unless it is expressly so stated.” However, La. R.S. 1:2 has been construed as coextensive with La. C.C. Art. 6 {Pierce v. Hobart Carp.,
In the absence of.contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.
|fiIn Cole v. Celotex Corp.,
In St. Paul Fire & Marine Ins. Co. v. Smith,
A review of the legislative history here reveals that there is no stated legislative intent indicating that the 2006 amendment to La. R.S. 14:20 should be applied retroactively. The legislative history only reveals that the statute became effective on August 15, 2006. Thus, a determination of whether the amеndment is procedural, interpretive or substantive must be made.
There is ample jurisprudence, prior to and after the amendment, substantiating that before August 15, 2006, the possibility
With these provisions, the legislature has curtailed the evidence that may be offered by the State in proving the use of force unreasonable, and specifically has forbidden the consideration of the possibility of retreat vis-a-vis the use of forcе. This represents a change in the law, which formerly allowed the consideration of the possibility of escape; see, e.g., State v. Brown,414 So.2d 726 (La. 1982).
Ingram, supra, p.10,
Further, district and appellate courts have applied the prior law in cases where the offense occurred bеfore August 2006 and trial in the matter occurred after August 2006, evidencing a recognition that the 2006 amendment to La. R.S. 14:20 is substantive and may only be applied prospectively. In State v. Seals, the defendant was indicted for first degree murder of a cab driver on August 15, 1991. The defendant was found guilty as сharged in 1993. However, the defendant filed an application for post-conviction relief in 1998, which was granted. On June 27, 2006, the original indictment was amended to second degree murder. After a jury trial, the defendant was found guilty as charged. On appeal, the defendаnt argued that the trial court erred when it refused to give a jury instruction that the defendant 17had no duty to retreat. The Court held that the defendant’s assignment of error was without merit because the “jury instruction required a further explanation as to the possibility of escaрe being a recognized factor in determining whether defendant had a reasonable belief that deadly force was necessary to avoid the danger.” Seals, p. 74,
The Fifth Circuit in State v. Franklin, supra and State v. Patterson,
In State v. Wright, 42,956, pp.
Thus, the 2006 amendment to La. R.S. 14:20 changеs the existing jurisprudence and is substantive in nature. As such, the 2006 amendment can only be applied prospectively. The trial court did not err when it refused to apply the 2006 amendment to the present case. This assignment is without merit.
¡^CONCLUSION
Accordingly, the defendant’s conviction and sentence are affirmed.
AFFIRMED.
LOMBARD, J., dissents.
Notes
. Brett Schurr, Mark Schurr, TJ. Willis, Jimmy Amato, Matt Parsons, Chad Nicholls, Conner Prigmore and Jason Martin were at the Mahler house and witnessed the incident.
. The amendment became effective on August 15, 2006. See Acts 2006, No. 141 § 1.
. La. C.C. article 6 states:
Dissenting Opinion
dissents.
|J respectfully dissent.
This matter, arising out a 1997 murder, was remanded for retrial in 2008. Mahler v. Kaylo,
Prior to the 2010 retrial, the State asserted (by motion in limine) that the jury would not be instructed in accordance with La.Rev.Stat. 14:20(C) and (D) because those provisions had been added to the statute by amendment in 2006 аnd the defendant sought a jury instruction in accordance with La.Rev.Stat. 14:20(C). The trial judge granted the State’s motion and,
in direct contravention to La.Rev.Stat. 14:20(D), instructed the jury that one of the factors to be considered in determining “whether the defendant had a reasonable belief that the killing as alleged was necessary are as follows: the possibility of avoiding the necessity of taking human life by retreat; that is by leaving the scene.... ”
|2For obvious reasons, substantive changes in the law, i.e., changes in a law governing a defendant’s сonduct at the time an offense is committed, cannot be applied retroactively, but that is not an issue here. La.Rev.Stat. 14:20 does not prohibit conduct but rather provides scenarios where prohibited conduct (murder) may be justified. The state legislature hаs never enacted a statute imposing a duty to retreat before using deadly force and La.Rev.Stat. 14:20(0 merely clarifies the fact that no such duty exists in Louisiana. See State v. Ingram, 45,546 (La.App. 2 Cir. 6/22/11),