State of Louisiana v. Charles Kennell

Judgment rendered June 29, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,577-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

CHARLES KENNELL Appellant

*****

Appealed from the
Fifth Judicial District Court for the
Parish of Franklin, Louisiana
Trial Court No. 2019-139F

Honorable John Clay Hamilton, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Peggy J. Sullivan

PENNY WISE DOUCIERE Counsel for Appellee
District Attorney

CAROLINE HEMPHILL
AMANDA MICHELE WILKINS
Assistant District Attorneys

*****

Before MOORE, COX, and THOMPSON, JJ.

COX, J.

This case arises out of the Fifth Judicial District Court, Franklin

Parish, Louisiana. Charles Kennell (“Kennell”) was charged with one count

of second degree murder in violation of La. R.S. 14:30.1, and one count of

possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1.

After a jury trial, a unanimous guilty verdict for both charges was returned,

and Kennell was subsequently sentenced to mandatory life imprisonment at

hard labor for second degree murder and 20 years at hard labor for

possession of a firearm by a convicted felon and ordered to pay the

mandatory minimum fine of $1,000; each sentence was to be served

concurrently and without benefit of probation, parole, or suspension of

sentence.

Kennell now appeals, challenging the sufficiency of the evidence for

his second degree murder charge and the trial court’s denial of the proffered

testimony. For the following reasons, we affirm Kennell’s convictions and

sentences. We also order that the trial court minutes be amended to reflect

the sentencing as imposed in the record.

FACTS

On March 21, 2019, Kennell was indicted by a grand jury on one

count of second degree murder, and one count of possession of a firearm by

a convicted felon, for the murder of Quintail Credit (“Credit”) on February

20, 2019.1 Kennell filed a motion to suppress his statements from his

interview with Franklin Parish Sheriff’s Office investigators on February 20,

2019. At the hearing on January 5, 2021, the State introduced the video and

1
On April 2, 2019, Kennell was arraigned and entered a plea of not guilty.

transcript of the interview, and the trial court heard testimony from Deputy

Sheriff Chief Investigator Todd Daniel Roberts (“Major Roberts”) and

Deputy Sheriff Captain Kevin Bass (“Cpt. Bass”).

Major Roberts testified that after officers received a tip about

Kennell’s location, he found him at 270 Willow Street, a few blocks away

from the crime scene. When he arrived, Precious Jones (“Jones”), Kennell’s

girlfriend, told him that the only people inside were her child and a friend;

however, after she let him search the home, she stated that her boyfriend was

also there. Jones opened the bathroom door and revealed Kennell sitting on

the toilet with no clothes on. Major Roberts told Kennell that he was not

under arrest at that time, but handcuffed and Mirandized him while he and

the other officers searched the home where he found a plastic bag with wet

clothes underneath a pile of baby’s clothing. After his identity was

confirmed identity with the ID found in the bag, Kennell was taken to the

Sheriff’s Office where he was given a rights form.

The State then presented a video of Kennell’s interview and Major

Roberts identified himself and Cpt. Bass in the video. He stated that Kennell

initially denied any involvement in the incident and requested a lawyer.

Kennell then asked if he was under arrest, and Major Roberts told him that

he was under arrest for second degree murder. Kennell asked for a lawyer

again and Major Roberts and Cpt. Bass ceased questioning and left the

room. Kennell was allowed to speak with Jones and after he was done, he

expressed that he wanted to talk with both officers again. Major Roberts

stated he Mirandized Kennell again, and Kennell voluntarily admitted that

he shot Credit and stated that he did so because it looked as if Credit was

grabbing or reaching for a gun. Major Roberts testified that Kennell was not
2

promised or given any incentive to talk about the incident and no one used

any physical violence against him.

Cpt. Bass2 testified that after he explained Kennell’s charges, he asked

Kennell if Credit had a weapon. He replied that Kennell’s only answer was

that he saw Credit reach toward his waist, and the motion made Kennell

believe that Credit had a gun. Cpt. Bass stated that he helped search the

crime scene, but no weapon was ever recovered. Finally, Cpt. Bass

reiterated that no threats, promises, or inducements were made to elicit a

statement from Kennell.

The trial court dismissed the motion to suppress finding that Kennell’s

statements were freely and voluntarily given, in part, because Kennell was

not harassed, beaten, threatened, or cajoled into speaking with the officers.

The trial court noted that after Kennell requested a lawyer, the interview

stopped and only continued when Kennell stated he wanted to talk. The trial

court then denied Kennell’s motion for change of venue, and trial

commenced on July 19, 2021, where the following testimony and evidence

was presented to the jury:

First, Michael Credit (“Mr. Credit”), Credit’s father, testified that

around noon on February 20, 2019, he went to Mathis Credit’s3 home near

145 Washington Street and talked to Credit for approximately 15 to 20

minutes. While they spoke, he stayed in his vehicle, a white Yukon, and

Credit leaned into the window. Mr. Credit stated that at some point, he

noticed a man, whom he later identified as Kennell, walk up the street, slow

2
Cpt. Bass testified that he was the Deputy Sheriff Investigator for Franklin
Parish Sheriff’s Office.
3
Mathis Credit is Mr. Credit’s brother.
3

his pace, and continuously look over at him and Credit. He stated that after

Kennell passed his vehicle, he walked some distance, turned around, and

hollered, “What’s up?” and Credit responded in the same way. Mr. Credit

stated that because he didn’t know Kennell and was unsure whether Credit

knew him, he started “fooling around” with his radio.

He stated that he heard Credit say, “What’s up, man?” before he

yelled that Kennell had a gun. Mr. Credit explained that when he looked up,

he heard two gunshots, and from his rearview mirror, saw Credit run behind

his vehicle and attempt to run toward Mathis’ home before he fell face down

into a ditch. Mr. Credit stated that after he exited the vehicle, he saw

Kennell standing over Credit, firing approximately “four or five” shots into

Credit’s back before fleeing. After the State introduced surveillance video

from Shaw’s Corner store, which was near the area, Mr. Credit confirmed

that Kennell was the man seen in the video. He then testified that, to his

knowledge, Credit did not normally carry a weapon, that he was unarmed,

and that no one removed a weapon from the area. He also stated that he did

not hear Credit make any threats or see him make any threatening gestures.

Next, Cpt. Bass testified that he was the lead investigator for the case.

He stated that when he arrived at the scene, he found Credit’s body face

down in a ditch and began to photograph and search the area for evidence.

Cpt. Bass stated that he found fired shell casings in the middle of the street,

just east of Mr. Credit’s vehicle, in a linear path as if the person who fired

them had been moving. He stated that he also found an unfired casing near

Credit’s body, and all other casings he found were in the yard of the house

on 145 Washington Street. After the State introduced photographs of the

bullets found at the scene, Cpt. Bass stated that, based on his experience, he
4

could determine that the bullets were .40 caliber. He also noted that he

never found any other weapon or any different shell casings.

After the introduction of the surveillance video from Shaw’s Corner

store, Cpt. Bass identified Kennell and explained that as Kennell walked

north, he could be seen looking back constantly in the direction of Mr.

Credit’s vehicle. Kennell could then be seen crossing the street and

approaching the vehicle, where shortly after he made a gesture before

retrieving a gun, firing it, and running south, which was consistent with the

linear pattern of the shell casings he found. Cpt. Bass then identified

Kennell’s clothing from the video, which consisted of a dark-colored shirt,

cap, and jeans with patches on the knees and thighs, and stated that

Kennell’s gun had an attachment on the bottom.

Cpt. Bass then testified that during the investigation, he was informed

that a black male in a blue truck picked Kennell up and that the owner of the

truck lived on Willow Street in a brick home. He stated that although they

never saw a blue truck on Willow Street, he did see a brick home with shell

casings in the driveway that matched the casings found at the scene. After

Jones let him inside, he and Major Roberts told him he found Kennell, and

they identified him as the man seen in the surveillance video. He stated that

during the search, officers also found a set of wet clothing that matched the

ones seen in the video.

He stated that after Kennell was arrested, he spoke with Prezel Martin

(“Martin”), who lived a street over from the scene of the crime, before he

went to a trailer home east of Martin’s home. He stated that the officers

pulled back the tin paneling of the home and found a Glock Model 22, .40

caliber Glock, which was similar to the gun on the surveillance video. At
5

this time, the State then presented a video collected from the Ring camera of

Keiona Wesby’s, Martin’s neighbor, home. Cpt. Bass testified that in this

video, seven gunshots are heard before Kennell is seen running across

Martin’s yard. He noted that the number of gunshots heard and the pauses

between each were significant because it confirmed the number of shells he

found at the scene.4

Outside of the presence of the jury, Cpt. Bass testified as to the origin

of the .40 caliber Glock used in this case. He stated that this particular

weapon was stolen from New Orleans and noted that Kennell was also from

New Orleans. On cross-examination, Cpt. Bass confirmed that the only

witness to the incident was Mr. Credit and that the only video evidence of

the incident came from Shaw’s surveillance video and Kieona Wesby’s Ring

camera.

Next, Troy Kendall Stracener (“Stracener”), an expert in firearm

analysis, testified that he worked for the North Louisiana Crime Lab in West

Monroe. He stated that he examined the recovered .40 caliber Glock, the six

fired .40 caliber cartridge cases,5 three bullets, and five cartridge cases. The

State then submitted, and Stracener identified, four of the fired .40 caliber

cartridge cases into evidence. Stracener explained the process he used to

determine whether the cartridges and bullets were fired from the .40 caliber

Glock. He stated that he performed four test fires of the weapon in question,

and compared those test fires to the submitted evidence.

4
Cpt. Bass explained that the pauses between fires likely meant that there was a
misfire and that Kennell would have had to rack the gun back and release it in order to
fire again.
5
He noted that of the six fired .40 caliber cartridge cases, one cartridge had a
firing pin impression that indicated that it had been misfired.
6

In comparing them, he explained that he looks for the same individual

markings on the fired cartridge cases and the bullets to determine if they

were fired from the same weapon; if the same markings from the submitted

evidence and the test fires were not present, he could then determine that

bullets and cartridges were not fired from that weapon. Stracener stated that

after comparing the six fired .40 caliber cartridge cases to the test fires, he

found that the cartridges were fired from the same .40 caliber Glock. He

stated that although the test fire bullets did not have sufficient

reproducibility to make a comparison to the evidence bullets, he determined

that the two bullets recovered from Credit’s body had the same class

characteristics6 as the test fire bullets. Stracener stated that in his opinion,

the only firearm that the fired cartridges could have been shot from was the

.40 caliber Glock.

Martin testified that on February 20, 2019, he was standing in his

backyard around midday “messing around” when he heard gunshots. A few

moments after he heard the gunshots, he saw a man with a gun run through

6
Stracener clarified that bullet class characteristics determine the caliber, type of
rifling present, and the twist present on the bullet. He stated that fired cartridge cases
determine:

[F]iring pin impression, shape, size, individual markings, you have
markings on the breech face, certain markings on the breech face as far as
ejector and extractor marks. Those would be considered class
characteristics.

The individual characteristics are the microscopic markings, individual
markings that are left when that bullet goes down the barrel and the barrel
leaves those markings on a bullet, or when the fired cartridge case when
the cartridge is actually fired well the force pushes it back against the
breech of the firearm itself and that breech leaves those individual
markings, or the firing pin will leave individual markings. But in this
case[,] the bullets did not reproduce, there were not enough–there was
insufficient individual markings for me to say that they were reproducible,
thus all I can say is that they are [the] same class.

7

his yard, jump his fence, and run to the other side of his house toward a

nearby trailer home. The State then presented the video from the Ring

camera. After identifying the man in the video as the one he saw on the day

in question, Martin testified that he saw the man run through a nearby

spillway, pull back the tin paneling of the trailer home, and throw the gun

underneath the home. Martin admitted that although he could not provide

officers with a physical description of the man, he stated that he remembered

the gun the man carried and stated that it was automatic, black, and had a

laser attachment.

Next, Jennifer Forsyth (“Dr. Forsyth”), an expert in forensic

pathology, who performed Credit’s autopsy, testified that his cause of death

was multiple gunshot wounds. She explained that during her examination

she documented three gunshot entrance wounds: (1) on the right temple

region of Credit’s head that exited on the left side of his forehead; (2) on the

right buttock, where the bullet was found next to his femur; and (3) on the

posterior of Credit’s right thigh. Dr. Forsyth stated that although she could

not determine which wound was inflicted first, she could confirm that the

wounds entered through Credit’s back, the projectiles were recovered

anterior to those entrances, and each contributed to Credit’s death.

Finally, Brittain Vercegeay (“Vercegeay”), Kennell’s probation

officer, testified that at the time of the incident, Kennell was on probation for

three years following his sentence for simple robbery and possession of

stolen property on December 20, 2017, and that Kennell was not scheduled

to complete his full term until January 2021. He stated that he was unaware

that Kennell was in Franklin Parish because Kennell did not have permission

to leave New Orleans where he was sentenced.
8

Next, the State introduced pictures of the bullets found at the scene

and Major Roberts testified that one of the markers in the picture identified a

spent .40 caliber hull and the other was a .40 caliber bullet that had been

fired but did not discharge because the firing pin struck the primer. He

explained that this meant that the person who fired the gun would have had

to eject the bullet, where it would have fallen on the ground, in order to fire

the gun again. Major Roberts then reiterated his testimony from the motion

to suppress and explained that during his investigation, he was given a tip

that the person responsible for the shooting was a man named Charles and

that he left the scene in a blue truck and headed toward Willow Street. He

stated that he was initially looking for a blue truck at a brick home, but

stopped at 270 Willow Street because he saw shell casings in the driveway

that matched the ones found at the scene.

Major Roberts explained that Jones allowed him and the other officers

to search the home where he eventually found Kennell and a bag of wet

clothes that matched the clothing seen on the surveillance video. He

testified that after Kennell was arrested, and during his interview, he

admitted that he shot Credit, fled the scene, and dropped his gun before he

swam across a creek and fled to the house on 270 Willow Street. Kennell

stated that he was walking to a friend’s home when he saw Credit, and

because of a prior altercation he had with Credit and two other men, he

wanted to let Credit know that he was not afraid of him. Kennell stated that

he shot Credit because Credit made a grabbing motion under his shirt as if

he had a gun. On cross-examination, Major Roberts testified that, based on

the location of the bullets and misfired cartridges, he would have logically

9

concluded that the person who shot Credit stood over his body and fired

down at him.

Defense counsel then moved for a proffer of proof, and the jury was

removed; at the conclusion of the proffer, the trial court denied the

admissibility of the testimony defense counsel sought to introduce. The jury

then returned a unanimous verdict of guilty for both counts. On September

14, 2021, the trial court, after reviewing Kennell’s PSI, sentenced him to

mandatory life imprisonment at hard labor for second degree murder and 20

years at hard labor for possession of a firearm by a convicted felon and

ordered him to pay the mandatory minimum fine of $1,000, each to be

served concurrently and without the benefit of probation, parole, or

suspension of sentence. Kennell now appeals.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Kennell argues that the evidence

presented at trial was insufficient to support his conviction for second degree

murder. He argues that the State failed to negate the possibility that he acted

in self-defense because the surveillance footage the State partially relied on

was visually limited and did not show the entirety of his encounter with

Credit. Specifically, Kennell contends that he only fired his gun because

Credit lifted his shirt, and made a grabbing motion as if he were going to

retrieve a gun; however, Credit’s actions were concealed by Mr. Credit’s

vehicle.

Alternatively, Kennell argues that, at most, he should have been

convicted of manslaughter, claiming that he acted in sudden passion and/or

heat of blood, the basis for which is discussed in greater detail in his second
10

assignment of error. Kennell argues that he and Credit had been involved in

a previous altercation, during which Credit allegedly stated that he would

kill Kennell the next time he saw him. He contends that this statement,

coupled with Credit purportedly making a grabbing motion under his shirt

served as the catalyst for the shooting.

The standard of appellate review for a sufficiency of the evidence

claim 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 proven beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979);

State v. Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S.

905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Steines, 51,698 (La.

App. 2 Cir. 11/15/17), 245 So. 3d 224, writ denied, 17-2174 (La. 10/8/18),

253 So. 3d 797. This standard, now codified in La. C. Cr. P. art. 821, does

not afford appellate courts with a means to substitute its own appreciation of

the evidence for that of the fact finder. Steines, supra.

The Jackson standard is applicable to cases involving both direct and

circumstantial evidence. An appellate court reviewing the sufficiency of the

evidence in such cases must resolve any conflict in the direct evidence by

viewing that evidence in the light most favorable to the prosecution. When

the direct evidence is thus viewed, the facts established by the direct

evidence must be sufficient for a rational trier of fact to conclude beyond a

reasonable doubt that defendant was guilty of every essential element of the

crime. State v. Sutton, 436 So. 2d 471 (La. 1983).

Circumstantial evidence consists of proof of collateral facts and

circumstances from which the existence of the main fact may be inferred
11

according to reason and common experience. State v. Broome, 49,004 (La.

App. 2 Cir. 4/9/14), 136 So. 3d 979, writ denied, 14-0990 (La. 1/16/15), 157

So. 3d 1127. If a case rests essentially upon circumstantial evidence, that

evidence must exclude every reasonable hypothesis of innocence. La. R.S.

15:438; Broome, supra; State v. Gipson, 45,121 (La. App. 2 Cir. 4/14/10),

34 So. 3d 1090, writ denied, 10-1019 (La. 11/24/10), 50 So. 3d 827.

Appellate courts neither assess the credibility of witnesses nor

reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442.

Rather, the reviewing court affords great deference to the jury’s decision to

accept or reject the testimony of a witness in whole or in part. State v.

Gilliam, 36,118 (La. App. 2 Cir. 8/30/03), 827 So. 2d 508, writ denied, 02-

3090 (La. 11/14/03), 858 So. 2d 422. Where there is conflicting testimony

concerning factual matters, the resolution of which depends upon a

determination of the credibility of the witnesses, the matter is one of the

weight of the evidence, not its sufficiency. State v. Allen, 36, 180 (La. App.

2 Cir. 9/18/02), 828 So. 2d 622, writ denied, 02-2595 (La. 6/27/03), 847 So.

2d 1255.

In the absence of internal contradiction or irreconcilable conflict with

physical evidence, one witness’s testimony, if believed by the trier of fact, is

sufficient support for a requisite factual conclusion. State v. Elkins, 48,972

(La. App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied, 14-0992 (La. 12/8/14),

152 So. 3d 438; State v. Wiltcher, 41,981 (La. App. 2 Cir. 05/09/07), 956 So.

2d 769. When a defendant challenges both the sufficiency of the evidence,

and other trial errors, the reviewing court first reviews sufficiency, as a

failure to satisfy the sufficiency standard will moot trial errors. State v.

McGee, 51,977 (La. App. 2 Cir. 4/3/19), 316 So. 3d 1196.
12

In the present case, Kennell was convicted of second degree murder in

violation of La. R.S. 14:30.1, which is defined, in pertinent part, as “the

killing of a human being: (1) When the offender has a specific intent to kill

or inflict great bodily harm[.]” Regarding Kennell’s claim that he should

have been convicted of the lesser offense of manslaughter, La. R.S. 14:31(A)

provides, in pertinent part, that:

(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 had actually cooled, at the time the
offense was committed; or

(2) A homicide committed, without any intent to cause death or
great bodily harm.

Accordingly, for murder to be reduced to manslaughter, the following must

be proved: (1) the homicide was committed “in sudden passion or heat of

blood”; (2) that sudden passion or heat of blood was immediately caused by

provocation sufficient to deprive an average person of his self-control and

cool reflection; (3) the defendant’s blood did not cool between the

provocation and the killing; and (4) an average person’s blood would not

have cooled between the provocation and the killing. McGee, supra; State v.

Efferson, 52,306 (La. App. 2 Cir. 11/14/18), 259 So. 3d 1153.

A defendant who claims provocation, as a means of reducing murder

to manslaughter, bears the burden of proving these elements by a

preponderance of the evidence; additionally, provocation and the time for

cooling are questions for the jury to determine according to the standard of

the average or ordinary person. State v. Leger, 05-0011 (La. 7/10/06), 936

13

So. 2d 108, cert. denied, 549 U.S. 1221, 127 S. Ct. 1279, 167 L. Ed. 2d 100

(2007); McGee, supra.

However, when self-defense is raised, the State must prove, beyond a

reasonable doubt, that the homicide was not perpetrated in self-defense.

State v. Allen, 50,703 (La. App. 2 Cir. 8/10/16), 200 So. 3d 376, writ denied,

16-1734 (La. 9/6/17), 224 So. 3d 981. The aggressor or person who creates

a difficulty cannot claim self-defense unless he withdraws from the conflict

in good faith and in such a manner that his adversary knows or should know

that he desires to withdraw and discontinue the conflict. La. R.S. 14:21.

Not every act of a defendant will make him or her an aggressor. It is the

character of the act coupled with the intent of the defendant that determines

whether the defendant is the aggressor. McGee, supra; See, State v. Spivey,

38,243 (La. App. 2 Cir. 5/12/04), 874 So. 2d 352.

Here, we find that there was sufficient evidence to support Kennell’s

conviction for second degree murder; namely, the surveillance video from

the corner store, the Ring video from a nearby residence, as well as the

testimony from Mr. Credit and Major Roberts sufficiently established that

Kennell had the specific intent to kill or inflict great bodily harm on Credit.

First, the surveillance video from the corner store showed Kennell, who was

walking in the opposite direction of where Credit stood, slow down, notice

Credit, and without provocation, actively turn around and approach Credit;

thereafter, Kennell is shown pulling out a firearm and firing it multiple times

as he chased Credit.

Mr. Credit testified that he heard Credit yell that Kennell had a gun

and then attempt to run as Kennell fired two shots. He stated that after he

saw Credit fall face down into a ditch, he witnessed Kennell stand over
14

Credit’s body and fire approximately “four or five” shots into Credit’s back.

Moreover, Cpt. Bass testified that the video from the Ring camera was

significant because several shots can be heard around the time in which the

incident occurred. He explained that based on the number of shells and

spent casings found at the scene and the pauses heard in the Ring video, the

shooter would have had to take the time to “rack [the gun] back and release

it again” in order to shoot again.

In viewing the evidence in the light most favorable to the prosecution,

we find that any rational trier of fact could have found beyond a reasonable

doubt that the State proved the essential elements of second degree murder

in this case.

In this case, Kennell admitted that he shot and killed Credit; however,

he maintains that his actions were justified because he shot Credit in self-

defense. We disagree and find that the record shows that the State’s

evidence sufficiently negated the possibility that Kennell acted in self-

defense when he shot Credit, who was unarmed, multiple times. Although

Kennell argues that Credit acted as if he was grabbing a gun, this statement

is uncorroborated; however, even if we assume that Credit did make this

motion, we cannot say that Kennell was subsequently justified in pursuing

and shooting Credit multiple times. Specifically, we note that the

surveillance footage established that after Kennel pulled out a gun, Credit

fled from him and Kennell is thereafter seen chasing Credit and firing the

gun multiple times.

Mr. Credit testified that at no point did Credit have a weapon and

importantly stated that he saw Credit run away from Kennell before he fell

face down into a ditch. He stated that while Credit was still down, Kennell
15

stood over him and fired multiple gunshots into Credit’s back before fleeing

the scene. Major Roberts stated that, based on his view of the scene and the

position of the bullets, it appeared as if the shooter was positioned over the

body and, finally Dr. Forsyth confirmed that Credit was shot three times in

the back. Given the aforementioned testimony, we find that Credit

attempted to withdraw and disengage from any contact with Kennell, such

that Kennell’s actions could not be seen as an act of self-defense.

Kennell’s alternate argument that he should have been convicted of

manslaughter is also without merit primarily because the only evidence that

supports a verdict of manslaughter is Kennell’s self-serving and

uncorroborated statement that Credit acted as if he were reaching for a gun

when Kennell shot him. Although discussed in further detail in Kennell’s

second assignment of error, we note that there is no evidence to establish

that Credit acted in any manner that would have reasonably provoked

Kennell. Kennell argues that Credit previously threatened to kill him during

an altercation; we note that this incident occurred two months prior to the

present incident such that Kennell had an ample cooling off period.

Witnesses also testified that Credit was unarmed, and there was no

corroborating testimony that Credit made any threatening gestures toward

Kennell.

Accordingly, we find that the jury acted within its discretion in

finding that Kennell was guilty as charged rather than guilty of

manslaughter.

Admissibility of Proffered Testimony

In his second assignment of error, Kennell argues the trial court erred

in precluding the introduction of testimonial evidence regarding a previous
16

altercation with the victim. Kennell asserts that testimony from defense

witness, Bre Andria Robinson, would have supported his assertion that

Credit had previously threatened him and established Credit’s bad character;

and because the trial court ruled the evidence inadmissible, it unfairly

restricted his ability to present his self-defense claim.

The foundation for the admissibility of such evidence is La. C.E. art.

404, which provides, in pertinent part:

A. Character evidence generally. Evidence of a person’s
character or a trait of his character, such as a moral quality, is
not admissible in a civil or criminal proceeding for the purpose
of proving he acted in conformity therewith on a particular
occasion, except:
...
(2) Character of victim. (a) Except as provided in Article 412,
evidence of a pertinent trait of character, such as a moral
quality, of the victim of the crime offered by an accused, or by
the prosecution to rebut the character evidence; provide that in
the absence of a hostile demonstration or an overt act on the
part of the victim at the time of the offense charged, evidence of
his dangerous character is not admissible.

B. Other crimes, wrongs, or acts. (1) Except as provided in
Article 412, evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
that he acted in conformity therewith.
...
(2) In the absence of a hostile demonstration or overt act on the
part of the victim at the time of the offense charged, evidence of
the victim’s prior threats against the accused or the accused’s
state of mind as to the victim’s dangerous character is not
admissible.

Although evidence of a person’s character or trait of his character is

generally inadmissible to prove that he acted in conformity therewith on a

particular occasion, it may be introduced to support a self-defense plea. See

La. C.E. art. 404(A)(1)(a). In such circumstances, a defendant is entitled to

introduce evidence of the decedent’s prior threats or violent character “for

two distinct purposes: (1) to show defendant’s reasonable apprehension of

17

danger which would justify his conduct; and (2) to help determine who was

the aggressor in the conflict.” State v. Burton, 19-01079 (La. 6/30/21), 320

So. 3d 1117, citing State v. Lee, 331 So. 2d 455, 460 (La. 1975).

However, victim character evidence is admissible only if the accused

first produces evidence that the victim made a hostile demonstration or an

overt act against the accused at the time of the incident. Burton, supra; State

v. Johnson, 41,428 (La. App. 2 Cir. 9/27/06), 940 So. 2d 711. An overt act

is “any act of the victim which manifests in the mind of a reasonable person

a present intention on his part to kill or do great bodily harm.” La. C. E. art.

404; Johnson, supra. Moreover, evidence tending to establish an overt act

must be “appreciable.” Id. When appreciable evidence of the overt act is

presented, the trial court cannot infringe on the fact-finding function of the

jury by disbelieving the defense testimony and thereby deny the accused a

defense permitted to him by law. Id.; State v. Lee, supra. Thus, the

threshold inquiry is whether the defendant presented evidence of a “hostile

demonstration or an overt act on the part of the victim.”

In brief, Kennell notes that the Louisiana Supreme Court in State v.

Williams, 19-00490 (La. 4/3/20),---So. 3d---,2020 WL 1671569, reiterated

that a “trial court is not entitled to exercise a credibility determination to

refuse the defendant the right to have the jury determine the merits of [his]

plea of self-defense.” In Williams, supra, the trial court prohibited the

defendant from introducing evidence of the victim’s prior threats because

the only evidence before the court establishing an overt act by the victim

was the eyewitness testimony which the trial court determined lacked

credibility because he provided contradictory statements on several

occasions prior to trial. The Court found that the defendant presented
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sufficient evidence of an overt act to warrant admission of character

evidence and that while “the evidence of an overt act is almost certainly

worthy of disbelief by a jury. . . it still qualifies as appreciable within the

meaning of the article as interpreted by the jurisprudence.” Williams, supra.

Likewise, in Burton, supra, the Court found that the trial court erred

in excluding evidence of the victim’s dangerous character and in making a

credibility determination to exclude the admission of the evidence, in part,

because the defendant presented sufficient evidence of an overt act by the

victim; namely, that the defendant claimed that he was justified in shooting

the victim because the victim charged at him with a knife, and a witness

further corroborated the defendant’s testimony. The Court found that such

evidence was relevant to the issue of whether the homicide was justifiable.

In the present case, Kennell alleged that Credit made a grabbing

motion underneath his shirt as if reaching for a gun, and this action

constituted an overt act on the part of Credit. Moreover, he asserts that

Robinson’s testimony would have confirmed his belief that Credit was

reaching for a gun when he purportedly made the grabbing motion and was

justified in shooting him. We disagree and reiterate that the threshold

inquiry for the introduction of such evidence is whether the defendant

presented evidence of a “hostile demonstration or an overt act on the part of

the victim” and note that a defendant’s unsupported, self-serving testimony

which is sufficiently contradicted by other evidence does not constitute

“appreciable evidence” of an overt act or hostile demonstration on the part

of the victim. See State v. Hardeman, 467 So. 2d 1163 (La. App. 2 Cir.

1985).

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Kennell maintains that there is no evidence to contradict his statement

because Mr. Credit, the only witness to the incident, was “fooling around”

with his radio, he could not testify as to any movements Credit made;

moreover, Mr. Credit’s vehicle blocked Credit such that the surveillance

footage could not show any movements he made. He further contends that

Robinson’s testimony formed the basis for finding that he was reasonably

afraid of Credit and consequently justified in shooting him. The only

evidence purporting to show an overt act by Credit at the time of the incident

is Kennell’s own self-serving statement to Major Roberts and Cpt. Bass that

Credit made a grabbing motion as if he were reaching for a gun.

Absent Kennell’s own self-serving statement to Major Roberts and

Cpt. Bass that Credit made a grabbing motion under his shirt, there is no

other evidence corroborating this purported movement. Mr. Credit

specifically testified that although he was “fooling around” with his radio

when Kennell pulled out his gun, he never heard Credit make any threats, he

was unarmed, and did not normally carry a gun. Likewise, Major Roberts

testified that no other weapon was recovered at the scene or found on

Credit’s person. Notably, according to Kennell’s statements and the

surveillance footage, he never saw Credit with a gun, and although Credit

attempted to flee the scene, Kennell chased after Credit and fired his gun at

him multiple times. Accordingly, we find that Kennell’s self-serving

statements alone do not constitute appreciable evidence of an overt act under

La. C.E. art. 404(B)(2) to warrant the introduction of Robinson’s testimony.

Even if Kennell met his burden, Robinson’s testimony does not

purport to establish that Kennell acted out of a reasonable fear that Credit

would hurt him. During proffer, Robinson testified that on December 15,
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2018, Jones held a birthday party for her child at Pizza Hut where she,

Fredrick Cooks, and Kennell were in attendance. Robinson stated that she

heard Fredrick make a phone call and shortly after, Credit and another man,

Cedric Cooks, arrived. She stated that although Fredrick, Cedric, and Credit

argued with Kennell, she never heard any party make any threats.

Moreover, she testified that after a manager asked the men to leave, Cedric

hit Kennell, and she provided a statement to officers attesting to this fact.

Although Kennell argues that this testimony shows his fear of Credit,

we find that Robinson’s statements directly contradict this assertion as she

specifically testified that she never heard anyone make any threats and that

she only heard Credit yell that he “didn’t bring them up here to fight; I didn’t

mean for this to go down like this.” Robinson also testified that it was

Cedric rather than Credit who hit Kennell, and notably, Major Roberts also

testified that Kennell stated that he believed it was Cedric who hit him rather

than Credit. Kennell’s actions on the day in question undermine his

contention that Robinson’s testimony established that he was afraid of

Credit. Specifically, Kennell noticed Credit and without provocation,

approached him to, according to Major Robert’s testimony, show that he was

not afraid of Credit, and then proceeded to pursue and shoot Credit multiple

times.

Because there is no evidence that Credit fought or threatened Kennell,

we find that Kennell drawing his gun on Credit some two months after the

altercation at the Pizza Hut is insufficient to establish that Credit had any

dangerous characteristics and could not serve as a hostile demonstration or

overt act toward Kennell where the only established act by Credit was being

present during an altercation two months prior to the instant offense and
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allegedly reaching under his shirt. Accordingly, the trial judge did not err in

concluding there was no “appreciable evidence” of an overt act to justify the

admission of the testimonial evidence. Therefore, this assignment of error is

without merit.

Error Patent Review

Review of the record reveals that the trial court imposed both

sentences without the benefit of parole, probation, or suspension of sentence.

However, the minutes fail to note the restrictions of benefits.

We hereby order that the trial court minutes be amended to reflect the

sentencing as imposed in the record. See State v. Shelton, 50,851 (La. App.

2 Cir. 9/28/16), 207 So. 3d 549.

CONCLUSION

For the foregoing reasons, Kennell’s conviction and sentence are

affirmed.

AFFIRMED, ORDERED TO CORRECT MINUTES.

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