State of Louisiana Versus Byron Franklin

STATE OF LOUISIANA NO. 24-K-502

VERSUS FIFTH CIRCUIT

BYRON FRANKLIN COURT OF APPEAL

STATE OF LOUISIANA

November 22, 2024

Linda Wiseman
First Deputy Clerk

IN RE STATE OF LOUISIANA

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE RAYMOND S.
STEIB, JR., DIVISION "A", NUMBER 22-822

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.

WRIT GRANTED, IN PART; DENIED, IN PART

On February 22, 2022, the Jefferson Parish District Attorney’s Office (“the
State”) charged the defendant/respondent, Byron Franklin, with one count of
manslaughter in violation of La. R.S. 14:31. On March 27, 2024, the State filed a
“Motion for Hearing on Admissibility Under Article 704” related to the testimony
of proposed defense expert Charles “Scott” Courrege. The court was asked to
determine the acceptable parameters of Mr. Courrege’s potential testimony,
including whether he should be qualified and accepted as an expert witness at trial.

After a hearing on April 30, 2024, the court determined that it would
potentially allow Mr. Courrege to testify that the victim’s actions in this case
created a reasonable fear of imminent threat of danger or bodily harm. However,
Mr. Courrege would not be allowed to testify that the victim’s actions justified Mr.
Franklin’s use of deadly force. The court also found it permissible for Mr.
Courrege to opine that the three shots fired by Mr. Franklin at the victim should be
considered as one action. On October 10, 2024, during a separate motion on the
State’s proposed jury charges, the court clarified that Mr. Courrege could testify,
based on his review of the evidence, whether the victim’s actions would have
created a fear of bodily harm for a reasonable person. Still, Mr. Courrege will not
be allowed to testify whether deadly force was reasonable or justifiable under those
circumstances. This timely writ application by the State followed.

The State contends that the trial court’s ruling will allow Mr. Courrege to
give the jury an opinion of Mr. Franklin’s innocence. Conversely, Mr. Franklin
argues that Mr. Courrege’s proposed testimony does not violate La. C.E. art. 704

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because his findings of fear apply to a “reasonable person” and not to Mr. Franklin
specifically.

Reasonable belief

The context of Mr. Courrege’s proposed testimony is La. R.S. 14:20, which
provides in part that a homicide is justifiable “[w]hen 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.” However, there is no uniform definition of what is “reasonable.” As
observed by the court in State v. Coutee, 22-665 (La. App. 3 Cir. 10/25/23), 373
So.3d 486, 493, writ granted, 23-01549 (La. 6/25/24), 386 So.3d 1076:

Because La. R.S. 14:20 requires that the use of force be reasonable,
every case must be assessed on its own facts; a blanket
pronouncement regarding reasonableness must be limited to the facts
of the case in which it was decided.

Here, Mr. Courrege’s testimony would be based on a finding of “reasonableness”
specific to this case.

In considering a defendant’s claim of self-defense argued at trial, this Court
has previously observed:

The determination of a defendant’s culpability rests on a two-
fold test: 1) whether, given the facts presented, the defendant could
reasonably have believed his life to be in imminent danger; and 2)
whether deadly force was necessary to prevent the danger. The jury is
the ultimate fact-finder in determining whether a defendant proved his
condition and whether the State negated the defense beyond a
reasonable doubt. State v. Theriot, 963 So.2d at 1020.

State v. King, 11-767 (La. App. 5 Cir. 2/28/12), 88 So.3d 1147, 1153, writ denied,
12-0660 (La. 9/14/12), 99 So.3d 35, citing State v. Theriot, 07–71 (La. App. 5 Cir.
6/26/07), 963 So.2d 1012, 1020, writ denied, 07-1598 (La. 2/1/08), 976 So.2d 715.
In the recent case of State v. Lopez, 23-335 (La. App. 5 Cir. 8/21/24), we again
observed that a determination of whether a defendant had a reasonable belief that
his life was in jeopardy, in the context of a self-defense claim, was within the
purview of the jury. In State v. Stucke, 419 So.2d 939, 945 (La. 1982), the
Louisiana Supreme Court stated that “the test of admissibility is often predicated
upon the proposition that opinion evidence cannot usurp the functions of the jury
or be received if it touches the very issue before the jury.”

An expert witness’s role

Another consideration is whether Mr. Courrege’s testimony would otherwise
be helpful to the jury. The purpose of an expert witness in a criminal case is to
provide the jurors with a basis of knowledge and background information on a
subject. State v. Myles, 04-434 (La. App. 5 Cir. 10/12/04), 887 So.2d 118, 125. The
admissibility of expert testimony is governed by La. C.E. art. 702, which states if
“scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto

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in the form of an opinion or otherwise.” State v. Bozeman, 06-679 (La. App. 5 Cir.
1/30/07), 951 So.2d 1171, 1174.

Other cases have found that expert testimony is generally unnecessary when
a jury’s standard in judging such evidence is within their training and experience.
State v. Young, 09-1177 (La. 4/5/10), 35 So.3d 1042, 1047, cert. denied, 563 U.S.
1044, 131 S.Ct. 597, 178 L.Ed.2d 434 (2010). For example, in State v. Marlowe,
10-1116 (La. App. 4 Cir. 12/22/11), 81 So.3d 944, writ denied, 12-231 (La.
5/18/12), 89 So.3d 1191, the Fourth Circuit held that the trial court did not abuse
its discretion in excluding expert testimony concerning use of force in lethal and
non-lethal encounters after a Daubert1 hearing, upon finding that the expert’s
testimony would not assist jury as finder of fact to understand or determine facts of
whether defendant acted in self-defense but would serve only to bolster the
defendant's credibility. In State v. Sly, 23-60 (La. App. 5 Cir. 11/2/23), 376 So.3d
1047, 1075, writ denied, 23-01588 (La. 4/23/24), 383 So.3d 608, citing State v.
Hidalgo, 95-319 (La. App. 5 Cir. 1/17/96), 668 So.2d 1188, we observed that a
jury was perfectly capable of determining whether the act of a victim “would not
have placed a reasonable person in fear of death or great bodily harm.”

For the purposes of analyzing the court’s ruling, it is problematic that it is
not clear what Mr. Courrege’s proposed area of expertise will be. It also places us
at a disadvantage that his methodology has not yet been made the subject of a
Daubert hearing. Without more, we are called to rule on a somewhat abstract
question of whether a presumed expert, using accepted methods, can give an
opinion of whether a “reasonable person” would have been in fear for his life
under the exact facts presented in this case. The trial court correctly referenced the
guidelines of La. C.E. art. 704, which provides that “in a criminal case, an expert
witness shall not express an opinion as to the guilt or innocence of the accused.”
However, as discussed above, the finding of “reasonableness” in this case falls to
the trier of fact alone. Also, based on the application before us, Mr. Courrege’s
proposed testimony would not necessarily provide knowledge and background
information to a jury that it did not already possess. There is no evidence here to
support the conclusion that a juror requires an expert’s opinion to help form an
assessment of whether certain circumstances would lead a person to conclude that
their life was in danger reasonably.

Conclusion

For the reasons stated, the trial court erred in ruling that Mr. Courrege, if he
is qualified as an expert at trial, can give an opinion on whether the victim’s
actions created reasonable fear for a generic person. We find no error in the portion
of the trial court’s ruling that the State does not challenge regarding three shots
fired being considered a single act. For the preceding reasons, the State’s writ
application is granted in part and denied in part.

Gretna, Louisiana, this 22nd day of November, 2024.

JJM
SMC

1
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
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STATE OF LOUISIANA NO. 24-K-502

VERSUS FIFTH CIRCUIT

BYRON FRANKLIN COURT OF APPEAL

STATE OF LOUISIANA

JOHNSON, J., DISSENTS WITH REASONS
I, respectfully, dissent from the majority disposition in this matter. The trial

court found that Defendant’s witness, Charles “Scott” Courrege, if qualified as an

expert at trial, can testify as to whether the victim’s actions would have created a

fear of bodily harm for a reasonable person, based on his review of the evidence.

For the following reasons, I would uphold the trial court’s ruling.

The purpose of an expert witness in a criminal case is to provide the jurors

with a basis of knowledge and background information on a subject. State v. Lloyd,

21-645 (La. App. 5 Cir. 8/24/22), 348 So.3d 222, 241, writ denied, 22-1354 (La.

11/22/22), 350 So.3d 499, reconsideration not considered, 22-1354 (La. 2/14/23),

354 So.3d 1220. The jury as the ultimate fact-finder should relate background

knowledge received from the expert to the facts established by the evidence at trial

and make a determination of the defendant’s guilt. Id.

At the time the ruling was made, La. C.E. art. 702(A) provided:

A. A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:

(1) The expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the
facts of the case.

La. C.E. art. 704 provides, “Testimony in the form of an opinion or

inference otherwise admissible is not to be excluded solely because it embraces

24-K-502

an ultimate issue to be decided by the trier of fact. However, in a criminal case,

an expert witness shall not express an opinion as to the guilt or innocence of the

accused.” This prohibition applies even if the opinion is solicited through the

presentation of a hypothetical situation. Lloyd, supra. The fact that an opinion or

inference embraces an ultimate issue in a case does not preclude its admissibility.

La. C.E. art. 704, Comment (c); State v. King, 99-1279 (La. App. 5 Cir. 4/25/00),

760 So.2d 540, 543, writs denied, 00-1452, 00-1498 (La. 3/16/01), 787 So.2d 298.

The trial judge is vested with broad discretion in determining the scope of expert

testimony. State v. Achelles, 16-170 (La. App. 5 Cir. 12/21/16), 208 So.3d 1068,

1077. The trial court’s decision to admit or exclude expert testimony is subject to

the abuse of discretion standard. State v. Thompson, 22-497 (La. App. 5 Cir.

1/18/23), 356 So.3d 1185, 1190.

La. R.S. 14:20 provides in pertinent part that a homicide 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.

When a defendant in a homicide prosecution claims self-defense, the burden

is on the State to prove beyond a reasonable doubt that the defendant did not act in

self-defense. Factors to consider in determining whether a defendant had a

reasonable belief that the killing was necessary include the excitement and confusion

of the situation, the possibility of using force or violence short of killing, and the

defendant’s knowledge of the assailant’s bad character. The determination of a

defendant’s culpability rests on a two-fold test: (1) whether, given the facts

presented, the defendant could reasonably have believed his life to be in imminent

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danger; and (2) whether deadly force was necessary to prevent the danger. The jury

is the ultimate fact-finder in determining whether the State negated self-defense

beyond a reasonable doubt. State v. Sly, 23-60 (La. App. 5 Cir. 11/2/23), 376 So.3d

1047, 1073-74, writ denied, 23-1588 (La. 4/23/24), 383 So.3d 608.

For guidance, I turn to the United States Supreme Court’s ruling in Diaz v.

United States, 602 U.S. ---, 144 S.Ct. 1727, 1728, 219 L.Ed.2d 240 (2024). In Diaz,

the petitioner was stopped at a port of entry on the U.S. - Mexico border. A search

of her car resulted in the discovery of over 54 lbs. of methamphetamine hidden in

the vehicle. Diaz was charged with importing methamphetamine in violation of 21

U.S.C. § 952 and § 960, both which required the Government to prove that Diaz

“knowingly” transported the drugs. As her defense, Diaz claimed not to know the

drugs were hidden in the car. To rebut her claim, the Government intended to call a

Homeland Security Investigations Special Agent as an expert witness to testify that

“drug traffickers generally do not entrust large quantities of drugs to people who are

unaware they are transporting them.” Diaz objected in a pre-trial motion under Fed.

R. Evid. 704(b),2 and the court ruled that the agent could not testify in absolute terms

about whether all couriers knowingly transport drugs but could testify that most

know they are. The agent testified accordingly at trial, and Diaz was found guilty.

Diaz appealed, and the court of appeals held that because the agent did not explicitly

point out that Diaz knowingly transported the drugs, his testimony did not violate

Fed. R. Evid. 704(b). The Supreme Court found that the agent’s opinion about the

knowledge of most drug couriers did not necessarily describe Diaz’s mental state. It

stated that because the agent did not opine on whether Diaz, herself, knowingly

2
Fed. R. Evid. 704 provides:
(a) In General--Not Automatically Objectionable. An opinion is not objectionable just because
it embraces an ultimate issue.

(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element of the crime
charged or of a defense. Those matters are for the trier of fact alone.

3

transported the drugs, the agent’s testimony did not violate Fed. R. Evid. 704(b).

The court noted that the agent asserted that Diaz was a part of a group of persons

that “may or may not” have a particular mental state and that the ultimate issue of

Diaz’s mental state was left to the jury’s judgment. The Supreme Court affirmed

the appellate court’s decision. Id. at 1728.

In the instant matter, the trial court ruled that Mr. Courrege could not testify

that Defendant’s use of deadly force was reasonable or justifiable. However, the

trial court found that Mr. Courrege could testify that, based upon his review of the

videos, that the body language of the victim and others in his party would have

created a fear of bodily harm for a reasonable person. The anticipated testimony

would be distinguishable from testimony that opines Defendant was reasonable in

his actions. The trial court has limited Mr. Courrege’s testimony as to

reasonableness under the circumstances. Notwithstanding Mr. Courrege’s

testimony, the jury would still have to determine whether Defendant was reasonable

in using deadly force on the victim, given the other circumstances, evidence and

testimony that will presumably be presented at trial. While an opinion on

reasonableness under the circumstances presented may embrace the ultimate issue

of self-defense, I find that it does not preclude its admissibility, as Mr. Courrege will

be prohibited from testifying that Defendant’s use of deadly force was reasonable or

justifiable. As such, I find that the anticipated testimony permitted by the trial court

would not violate La. C.E. art. 704, as it is not an expression as to the guilt or

innocence of the accused.

Accordingly, I would deny the writ application and find the trial court did not

abuse its discretion in ruling that Mr. Courrege could testify as to the reasonableness

of the fear created by the body language of the victim and others in this matter.

MEJ

4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 11/22/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-K-502
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Raymond S. Steib, Jr. (DISTRICT JUDGE)
Davidson S. Ehle, III (Respondent) Thomas J. Butler (Relator)
Darren A. Allemand (Relator)

MAILED
Joseph A. Marino, III (Respondent) Honorable Paul D. Connick, Jr. (Relator)
Attorney at Law District Attorney
501 Derbigny Street Twenty-Fourth Judicial District
Gretna, LA 70053 200 Derbigny Street
Gretna, LA 70053