State of Louisiana v. Alexander D. Kirby

STATE OF LOUISIANA * NO. 2022-KA-0757

VERSUS *
COURT OF APPEAL
ALEXANDER D. KIRBY *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 546-713, SECTION “SECTION E”
Judge Rhonda Goode-Douglas,
******
Judge Daniel L. Dysart
******
(Court composed of Judge Daniel L. Dysart, Judge Rachael D. Johnson, Judge
Karen K. Herman)

Jason R. Williams, District Attorney
Brad Scott, Chief of Appeals
Thomas Frederick, Assistant District Attorney
ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE
619 South White Street
New Orleans, LA 70119

COUNSEL FOR STATE OF LOUISIANA/APPELLEE

Sherry Watters
LOUISIANA APPELLATE PROJECT
P. O. Box 58769
New Orleans, LA 70158

COUNSEL FOR DEFENDANT/APPELLANT

VERDICT AFFIRMED
SENTENCE AFFIRMED

APRIL 26, 2023

DLD This is an appeal of a jury’s July 20, 2022 verdict which found
RDJ
Defendant/Appellant, Alexander D. Kirby (hereinafter “Kirby”), guilty of
KKH
aggravated battery as a responsive verdict to the charge of attempted second degree

murder as well as the trial court’s August 25, 2022 imposition of the maximum

ten-year sentence at hard labor in relation to the guilty verdict. After review, we

affirm the jury’s guilty verdict and the trial court’s imposition of a ten-year

sentence.

BACKGROUND

On May 16, 2019, Kirby entered the Clover Grill, located on Bourbon Street

in New Orleans, with a concealed handgun and sat at the counter. Testimony as

well as a video of the event captured by Clover Grill surveillance cameras revealed

that after a brief verbal confrontation with Dylan Pennington (hereinafter

“Pennington”), a Clover Grill employee and acquaintance of Kirby, Kirby

followed Pennington outside to the Clover Grill courtyard. Shae de St. Germain

had been sitting in the courtyard when Kirby and Pennington entered. As the

verbal confrontation between Kirby and Pennington intensified, Kirby brandished

his handgun, aimed it at Pennington, and shoved Pennington multiple times.

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Pennington attempted to dislodge the weapon from Kirby’s grasp and during the

ensuing scuffle the firearm discharged, the bullet striking Ms. de St. Germain, and

she succumbed to the injury shortly thereafter.

Kirby was indicted by a grand jury as follows: one count of second degree

murder of de St. Germain in violation of La. R.S. 14:30.1; one count of attempted

second degree murder of Pennington in violation of La. R.S. 14:27 and La. R.S.

14:30.1; one count of second degree kidnapping in violation of La. R.S. 14:44.1;

and one count of carrying a concealed weapon (to wit, a firearm) while committing

a crime of violence in violation of La. R.S. 14:95(B)(2). Count four, carrying a

concealed weapon while committing a crime of violence, was amended on August

29, 2019, to delete the firearm reference. On September 5, 2019, Kirby pled not

guilty to the charges lodged against him. Count three, the second degree

kidnapping charge, was dismissed on July 18, 2022.

A jury trial commenced on July 19, 2022, and on July 20, 2022, the jury

reached verdicts of not guilty as to the charge of second degree murder of Ms. de

St. Germain and not guilty as to the charge of illegal carrying of a weapon used in

the commission of a crime of violence. As to the charge of attempted second

degree murder of Pennington, the jury found Kirby guilty of the responsive verdict

of aggravated battery. On August 25, 2022, the trial court denied Kirby’s motion

for new trial as well as Kirby’s motion for post-verdict judgment of acquittal.

Kirby received the maximum sentence of ten-years at hard labor.1 No objection

was lodged as to the sentence at that time. However, Kirby timely appealed both

the jury’s responsive verdict and the imposition of the ten-year sentence.

1 Though the trial court did not observe the twenty-four-hour sentencing delay required by La.

C.Cr.P. art. 873, Kirby affectively waived said delay by stating, “We’re ready to proceed with
sentencing.” See State v. Kisack, 2016-0797, p. 7 (La. 10/18/17), 236 So.3d 1201, 1205.

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ERRORS PATENT

We find no errors patent.

STANDARD OF REVIEW

Appellate courts abide by the Jackson standard when reviewing the

sufficiency of evidence used to support a conviction. See Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “The principal criteria of

a Jackson review is rationality.” State v. Dukes, 2019-0172, p. 7 (La. App. 4 Cir.

10/2/19), 281 So.3d 745, 753; citing State v. Mussall, 523 So.2d 1305, 1310 (La.

1988). Further, the Jackson standard applies to both direct and circumstantial

evidence. Id. at p.8, 752. Under this standard, “the relevant question is whether,

after 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, 443 U.S. 307 at 319. Accordingly,

“irrational decisions to convict will be overturned, rational decisions to convict

will be upheld, and the actual fact finder's discretion will be impinged upon only to

the extent necessary to guarantee the fundamental protection of due process of

law.” State v. Alexis, 2014-0327, p. 6 (La. App. 4 Cir. 12/3/14), 157 So.3d 775,

778, quoting State v. Wilson, 2009-0304, p. 3 (La. App. 4 Cir. 2/17/10), 68 So.3d

1031, 1033 (internal citations omitted).

DISCUSSION

Kirby alleges the following four (4) assignments of error:

1. The trial court erred by denying Kirby’s motion for post-verdict judgment of

acquittal because the State failed to prove the charged offense of attempted

second degree murder of Pennington as well as the responsive verdict of

aggravated battery;

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2. The trial court erred by denying Kirby’s Sixth Amendment right to confront

his accuser, Pennington, as the State failed to call Pennington to testify at

trial;

3. The trial court erred in allowing the State to comment twice on Kirby’s

failure to make a statement or present a defense, thereby violating Kirby’s

Fifth Amendment constitutional rights; and

4. The trial court erred in imposing the maximum sentence insofar as it is

constitutionally excessive for a first-time offender.

Assignment of Error No. 1 – Sufficiency of Evidence

Kirby alleges that the State presented insufficient evidence to prove that

Kirby committed either attempted second degree murder or the responsive verdict

of aggravated battery against Pennington. The jury clearly agreed with Kirby that

the elements of attempted second degree murder were not sufficiently proven by

the State, as was demonstrated by the jury’s acquittal of Kirby on that charge and

the returned guilty verdict of the lesser crime of aggravated battery. As such, we

turn to whether the evidence was sufficient to convict Kirby of aggravated battery.

“Battery is the intentional use of force or violence upon the person of

another,” and “[a]ggravated battery is a battery committed with a dangerous

weapon.” La. R.S. 14:33; La. R.S. 14:34. Aggravated battery is designated as a

responsive verdict to attempted second degree murder. See La. C.Cr.P. art.

814(A)(4). Here, Kirby argues that the jury’s verdict of guilty of aggravated

battery is non-responsive to the charge of attempted second degree murder because

there was no evidence that Kirby used a weapon to make contact or inflict a battery

upon Pennington. While this Court agrees that Kirby never actually struck

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Pennington with the pistol itself or with a bullet therefrom, we disagree with

Kirby’s interpretation of the statute.

Kirby argues that a conviction of aggravated battery requires actual physical

contact between the victim and the dangerous weapon itself. We do not agree. In

State v. Hawkins, 93-1260, 631 So.2d 1288 (La. App. 4 Cir. 1/27/94), writ denied,

640 So.2d 1341 (La. 6/24/94), this Court reversed defendant’s conviction of

attempted second degree murder, finding that where there was evidence that

defendant grabbed the victim by the shirt, pulled a gun, and threatened to kill the

victim, defendant did not commit attempted second degree murder. Instead, the

evidence in Hawkins was sufficient to prove that defendant was guilty of the lesser,

responsive verdict of aggravated battery because defendant’s actions “constitute[d]

the use of force or violence with a dangerous weapon upon the person of another.”

Id. at 1291. In State v. Howard, 94-0023 (La. 6/3/94), 638 So.2d 216 (per curiam),

the Louisiana Supreme Court concluded that “[a]ny rational factfinder could have

determined…that the defendant had intentionally used force or violence against the

victim with a dangerous weapon when [defendant] took his gun in hand, grabbed

[the victim] by her shoulders, and attempted to pull her out of the [the vehicle].”

Thus, aggravated battery does not require physical contact be made with the

dangerous weapon itself; rather, aggravated battery occurs when an offender exerts

physical force or violence upon a victim by any means while also employing a

dangerous weapon.

Here, video evidence in the record depicts Kirby aggressively shoving

Pennington while simultaneously aiming his weapon at Pennington. Though Kirby

neither pistol-whipped nor shot at Pennington during this altercation, he

nonetheless exerted physical force or violence upon the person of Pennington

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while continuously shoving and aiming the pistol at Pennington. Any rational

factfinder could have determined that the evidence here sufficiently proved each

element required to convict Kirby of aggravated battery. As such, we find that

Kirby’s first assignment of error is without merit.

Assignment of Error No. 2 – Right of Confrontation

Kirby contends that his Sixth Amendment right to confront his accuser was

violated when Pennington did not testify at trial. It is axiomatic that the State

“has entire charge and control of every criminal prosecution instituted or pending

in his district, and determines whom, when, and how he shall prosecute.” La.

C.Cr.P. art. 61. This discretion includes authority over the presentation of

witnesses. See Hayes v. Par. of Orleans, 98-2388 (La. App. 4 Cir. 6/16/99), 737

So.2d 959 (where this Court held that “the summoning of witnesses for trial is

incidental to the preparation for trial[,]” which falls within the district attorney’s

authority to prosecute “whom, when, and how…” he/she so chooses). This

assignment of error further lacks merit, as Kirby himself had the opportunity to call

Pennington as a witness at trial but failed to do so.

Moreover, this Court has previously held:

Article 841 of the Louisiana Code of Criminal Procedure provides that
“[a]n irregularity or error cannot be availed of after verdict unless it
was objected to at the time of the occurrence” and requires that the
party state the grounds for the objection. See State v. Richards, 99–
0067, p. 4 (La. 9/17/99); 750 So.2d 940, 942. Moreover, a defendant
is limited on appeal to those grounds for the objections which he
articulates at trial. See State v. Brooks, 98–0693, p. 9 (La. App. 4 Cir.
7/21/99); 758 So.2d 814, 819. There are two purposes behind La.
C.Cr.P. art. 841(A)'s contemporaneous objection rule: 1) to put the
trial court on notice of the alleged irregularity or error, so that the
court can cure the error; and 2) to prevent a party from gambling for a
favorable outcome and then appealing on errors that could have been
addressed by an objection if the outcome is not as hoped. See State v.
Lanclos, 07–0082, p. 6 (La. 4/8/08), 980 So.2d 643, 648.

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State v. Armstead, 2014-0036, p. 18, (La. App. 4 Cir. 1/28/15) 159 So.3d at 515–

16. See also State v. Ciravola, 2015-0032 (La. App. 1 Cir. 8/5/15), --- So.3d ---,

2015 WL 4657546 at *10, writ denied, 2015-1604 (La. 9/6/17), 226 So.3d 434

(citations omitted). The record reflects that Kirby failed to lodge any objections to

Pennington’s absence at trial. As such, this assignment of error not only lacks

merit, but Kirby is also statutorily precluded from raising it on appeal. See La.

C.Cr.P. art. 841(A).

Assignment of Error No. 3 – Right Against Self-Incrimination

Kirby’s third assignment of error focuses on two comments made by the

prosecutor during trial. First, during opening statements, the prosecutor stated to

the jury “we are here today because the defendant, Alexander Kirby, will not own

up to the actions….” Kirby objected to that statement and the court sustained said

objection. Kirby then avers that while examining Sergeant Harrelson, the Officer

who conducted witness interviews in relation to the incident, the prosecutor

elicited a second prejudicial statement. To wit, Kirby takes issue with the

following colloquy:

Q. Who did you – or what did you learn as a result of those witness
interviews?
A. I spoke with the 911 caller, who gave – told us what he saw when
he called it in. I also spoke with Mr. Fowler, who was working that
night…. I attempted to speak with the defendant. But he invoked his
right to remain silent.

Kirby then moved for a mistrial based on both statements, which was denied, with

the trial court opting instead to admonish the jury that Kirby invoking his right not

to provide a statement to Sergeant Harrelson should not in any way be taken “as

any sort of indication of [Kirby’s] guilt in this particular case.”

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La. C.Cr.P. art. 770 governs prejudicial remarks as the basis for mistrial as

follows:

Upon motion of a defendant, a mistrial shall be ordered when a
remark or comment, made within the hearing of the jury by the judge,
district attorney, or a court official, during the trial or in argument,
refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense.

La. C.Cr.P. art. 770(3). “However, when the reference is indirect, it constitutes

reversible error only when the prosecutor intended to emphasize the defendant's

failure to testify.” State v. Gatch, 27,701, p. 6 (La. App. 2 Cir. 2/28/96), 669 So.2d

676, 680, writ denied, 96-0810 (La. 9/20/96), 679 So.2d 429 (citing State v.

Jackson, 454 So.2d 116 (La. 1984)); see also La. C.Cr.P. art. 771. The standard

for overturning a trial court’s judgment granting or denying a motion for mistrial is

clear abuse of discretion. See State v. Adams, 2007-0977, p. 5 (La. App. 4 Cir.

1/23/08), 976 So.2d 757, 760.

Here, the prosecutor’s remark during opening statements indirectly referred

to Kirby’s failure to acknowledge his role in the death of Ms. de St. Germain. The

record in no way indicates an attempt to emphasize Kirby’s decision to forego his

right to testify. Rather, the prosecutor’s statement alluded to a fact expected to be

proven by the evidence presented at trial, such as when Kirby denied responsibility

for Ms. de St. Germain’s death, repeatedly denied shooting her, blamed Pennington

for pulling the trigger, and questioned repeatedly why Pennington had not been

handcuffed and arrested – all occurring immediately after Kirby himself had been

detained. As such, we find that the prosecutor’s remark during opening statements

was merely commentary on what was made readily apparent by the evidence – that

Kirby was unwilling to admit the role he played in Ms. St Germain’s death and the

statement was not meant as a denunciation of Kirby’s decision not to testify.

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Kirby also argues that Sergeant Harrelson’s reference to Kirby’s post-arrest

silence should have resulted in a mistrial under the standard espoused in Doyle v.

Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The Doyle Court held

that a defendant’s Fourteenth Amendment Due Process right is violated when the

State refers to defendant’s post-arrest silence for purposes of impeachment. Id.,

426 U.S. at 619, 96 S.Ct. at 2245. Moreover, this Court has previously explained

that La. C.Cr.P. art. 771 governs references concerning a defendant’s post-arrest

silence, and that pursuant thereto, “the trial court has the discretion to grant a

mistrial or simply admonish the jury…where a prosecutor or a witness makes

[such] a reference….” State v. Braneon, 2019-0743, p. 13 (La. App. 4 Cir. 2/5/20),

289 So.3d 271, 280, writ denied, 2020-00376 (La. 5/26/20), 296 So.3d 1064; see

also La. C.Cr.P. art. 771; contrast with La. C.Cr.P. art. 770(3) (mandating a

mistrial if the State comments in front of the jury regarding defendant’s failure to

testify in his own defense).

Here, the court admonished the jury that Sergeant Harrelson’s comments

should not be construed “as any sort of indication of [Kirby’s] guilt in this

particular case.” Such an admonishment is statutorily permissible and within the

trial court’s broad discretion under La. C.Cr.P. art. 771. Further, the court’s

instruction succinctly explained that Sergeant Harrelson’s statement was in no way

intended to be an ascription of guilt. The comment was neither elicited by the

prosecution; nor was it offered for the purpose of impeaching Kirby. As such, we

find that Sergeant Harrelson’s remarks on Kirby’s post-arrest silence did not

warrant a mistrial and that the trial court did not abuse its discretion in denying

Kirby’s motion.

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Assignment of Error No. 4 – Excessiveness of Sentence

Kirby argues that his ten-year, maximum sentence for aggravated battery is

excessive for a first-time offender and that the court improperly considered impact

statements from friends and family of Ms. de St. Germain, even though Kirby had

been acquitted of all charges related thereto.

Appellate courts review excessive sentence claims under the abuse of

discretion standard. State v. Alridge, 2017-0231, p. 39 (La. App. 4 Cir. 5/23/18),

249 So.3d 260, 287-288, writ denied, 2018-1046 (La. 1/8/19), 259 So. 3d 1021.

Accordingly, reviewing courts must consider whether the imposed sentence is

proportionate to the crime, or “whether the penalty is so disproportionate as to

shock the court's sense of justice.” State v. Wilson, 2011-0960, p. 9 (La. App. 4

Cir. 9/5/12), 99 So.3d 1067, 1073 (quoting State v. Bonnano, 384 So.2d 355, 358

(La. 1989)).

La. R.S. 14:34(B) states “[w]hoever commits an aggravated battery shall

be…imprisoned with or without hard labor for not more than ten years….” La.

C.Cr.P. art. 894.1 provides guidelines for the court to consider when determining

the severity of a sentence.

Here, the court imposed a ten-year sentence upon Kirby for aggravated

battery and cited La. C.Cr.P. art. 894.1(A)(3), finding that a “lesser sentence

[would] deprecate the seriousness of the defendant's crime.” Considering this, we

find that a ten-year sentence is appropriate for the crime committed by Kirby. This

Court’s sense of justice is not shocked by the trial court’s sentence, as Kirby was

convicted of an aggravated battery that led directly to the untimely death of Ms. de

St. Germain.

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Kirby further argues that the trial court erroneously considered statements

from Ms. de St. Germain’s cousin, sister, and two friends at his sentencing hearing,

because Kirby had already been acquitted of second degree murder of Ms. de St.

Germain. We disagree. This Court has previously held that “[a]s long as there was

a preponderance of the evidence against the defendant, the trial court could

consider…other offenses in sentencing the defendant[,]” whether said offenses

resulted in convictions or acquittals. State v. Berry, 630 So.2d 1330, 1334-1336

(La. App. 4th Cir. 12/30/93). Here, a jury acquitted Kirby on the charge of second

degree murder of Ms. de St. Germain. However, the trial court did not err in

considering impact statements from Ms. de St. Germain’s family and friends

because a conviction is not a prerequisite for the consideration of other offenses.

Id. Moreover, the trial court afforded Kirby the opportunity to speak in mitigation

of his actions and the impact statements elicited at his sentencing hearing. The

trial judge found Kirby’s statement unpersuasive, however, noting “again, you

[Kirby] started blaming other people.” As such, we find that Kirby’s final

assignment of error is without merit.

DECREE

Considering the foregoing, we affirm the jury’s July 20, 2022 verdict finding

Alexander D. Kirby guilty of aggravated battery of Dylan Pennington and we

affirm the trial court’s ten-year sentence for this conviction.

VERDICT AFFIRMED
SENTENCE AFFIRMED

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