State of Louisiana v. Ronald Berry Parker

Judgment rendered March 1, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,947-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

RONALD BERRY PARKER Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 368,861

Honorable Christopher T. Victory, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Sherry Watters

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

WILLIAM J. EDWARDS
KODIE K. SMITH
ALEXANDRA L. PORUBSKY
Assistant District Attorneys

*****

Before ROBINSON, MARCOTTE, AND ELLENDER, JJ.

MARCOTTE, J.

This criminal appeal arises from the First Judicial District Court,

Parish of Caddo, the Honorable Christopher Victory presiding. Defendant,

Ronald Berry Parker, was convicted of second degree murder under La. R.S.

14:30.1. Parker was sentenced to life imprisonment, to be served without

the benefit of probation, parole, or suspension of sentence. Parker now

appeals, and for the following reasons, we affirm his conviction and

sentence.

FACTS

On the afternoon of July 20, 2019, the Shreveport Police Department

received a 911 call from a man who identified himself as Ronald Parker; he

stated that he had just shot someone in the front yard of his neighbor, Ola

Mae Smith (“Ms. Smith”), following a dispute over parking. Officers were

dispatched to the scene and arrested Parker for the shooting death of

Roderick Gaut.

On October 22, 2019, Parker was charged by bill of indictment with

the second degree murder of Mr. Gaut, in violation of La. R.S. 14:30.1.

Parker waived his right to a jury trial pursuant to La. C. Cr. P. art. 780, and a

bench trial proceeded on July 1-2, and 6, 2021.

Officer Gerald Thomas (“Off. Thomas”) is a supervisor and records

custodian with the communications division of the Shreveport Police

Department (“SPD”). He testified concerning the event chronologies

generated for the 911 calls made on the day of the incident, and was able to

authenticate the event chronology report produced by his office, which was

admitted. Off. Thomas confirmed that a 911 call was made at 3:13 p.m. on

July 20, 2019, from Parker.

The state played an audio recording of the 911 call made by Parker

after the shooting. Officer Kourtney Pennywell (“Off. Pennywell”) is the

911 dispatcher for SPD who received the call, and she confirmed that the

911 call played for the court was the same one she received on the day of the

incident. In the 911 call, Parker reports that he just shot a man because that

man had pushed him to the ground. When questioned by Off. Pennywell as

to why the man pushed him, Parker first claims that he doesn’t know then

admits that it was due to a parking dispute. Also in the 911 call, Parker is

heard telling Off. Pennywell, “I only shot him once.”

Dr. James Traylor testified as an expert in the field of forensic

pathology. Dr. Traylor performed an autopsy of Mr. Gaut on July 21, 2019,

and determined that his cause of death was a single penetrating gunshot to

the chest. Dr. Traylor recovered a bullet from Mr. Gaut’s body and

determined that the bullet entered Mr. Gaut at a slight downward trajectory.

He confirmed various photographs that were admitted which he took in

connection with his autopsy showing Mr. Gaut’s face, the entry wound from

the bullet, and the bullet recovered from Mr. Gaut’s body. Finally, Dr.

Traylor authenticated his autopsy report which was admitted and which sets

forth the cause of death.

Sergeant Jennifer White (“Sgt. White”) is employed in the crime

scene investigations unit of SPD. During her testimony, she was shown and

confirmed that she took a total of 42 photographs depicting the crime scene,

the area surrounding the crime scene, and Parker’s residence. Sgt. White

was then shown a .22 caliber magnum revolver, along with four .22 magnum

cartridges, one fired .22 magnum cartridge case, and a knife, and confirmed

that they were all the same ones collected from the crime scene on the day of
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the incident. On cross-examination, Sgt. White testified that the .22 caliber

magnum revolver collected at the scene did not have a trigger guard on it

that could have blocked accidental discharge of the weapon.

Officer Natalie Zweydoff (“Off. Zweydoff”) is a patrol officer with

SPD. She testified that on the day of the shooting, she was dispatched to

block of East Washington Street in Shreveport where the incident occurred.

When she arrived at the crime scene, she found a large gathering of people

standing around Mr. Gaut, who was lying in the grass in the front yard of

Ms. Smith’s house. She observed that Mr. Gaut was bleeding from a chest

wound but still had a faint pulse, so she administered CPR.

Ola Mae Smith owned the house next door to Parker where the

shooting occurred. Ms. Smith testified that as part of her preparations for

her brother’s funeral, she asked Parker if he would permit a member of her

family to park in his driveway, as she knew space at her house would be

limited. Ms. Smith testified that Parker had permitted such an arrangement

in the past in connection with her mother’s funeral. Ms. Smith testified that

Parker agreed to allow members of her family to park in his driveway. She

further testified that until the day of the shooting, Parker had been a friendly

neighbor whom she would sometimes bring food to. Ms. Smith identified

Parker in the courtroom.

Officer Christopher Collins (“Off. Collins”) is a patrol officer with

SPD. Off. Collins testified that when he arrived at the scene of the shooting,

he found Mr. Gaut not breathing and lying in the grass in the front yard of

Ms. Smith’s house with blood coming out of his face. Witnesses on the

scene then directed Off. Collins to the neighboring house on East

Washington Street, where they said Parker was located. Parker eventually
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emerged from his house and Off. Collins handcuffed him and placed him in

a patrol car. Off. Collins testified that he and other SPD officers then

entered the residence, secured it, and recovered a .22 caliber magnum

revolver from on top of Parker’s refrigerator. Off. Collins identified Parker

in the courtroom as the same man he arrested that day.

Mr. Gaut’s wife of sixteen years Christana Gaut was present at Ms.

Smith’s house on the day of the incident and witnessed her husband’s

shooting death. Ms. Gaut testified that she knew Parker as her mother’s

neighbor, and she identified him in the courtroom. Ms. Gaut testified that

she and her family were on their way to bury her uncle when her husband

called to inform her that their son Roderick J. Gaut, II (“R.J.”) needed to

move his truck from Parker’s driveway because Parker was upset about it.

Mr. Gaut stayed at the house during the funeral so that he could prepare food

for the repast following the funeral.

Ms. Gaut testified that after receiving this phone call from her

husband, she returned to her mother’s house with her son, R.J., so that he

could move his truck as requested. After R.J. moved his truck, Ms. Gaut

observed Parker continuing to pester R.J., who at that point was located in

Ms. Smith’s front yard. According to Ms. Gaut, R.J. then called to his dad

for assistance. Ms. Gaut then observed Mr. Gaut emerge from the carport of

Ms. Smith’s house and approach Parker, telling him to calm down since

R.J.’s truck had already been moved. At that point Ms. Gaut observed

Parker confront Mr. Gaut and point in his face. Ms. Gaut then saw Mr. Gaut

respond to Parker’s aggression by pushing Parker to the ground.

Ms. Gaut testified that, “Instead of just getting up, [Parker] came out

with the gun and shot [Mr. Gaut] in the chest.” Ms. Gaut specifically
4

recalled seeing Parker aim his gun at Mr. Gaut before shooting him. After

Parker shot Mr. Gaut in the chest, Ms. Gaut observed Parker point the gun at

her and at the other family members in the yard before walking over to Mr.

Gaut’s lifeless body and patting him on the head. Ms. Gaut also observed

that Parker appeared to have a knife in his other hand. When Parker had his

gun pointed at her, Ms. Gaut testified that she screamed “please don’t shoot

me” at him. She then stated that Parker “walked back to his house like

nothing ever happened.” After the shooting, Ms. Gaut testified that Parker

never said anything indicating that what he had just done was accidental.

R.J. was Mr. Gaut’s son and also witnessed his father’s shooting

death. He testified that on the day of the incident, he went with his family to

his uncle’s funeral at Stoner Hill Baptist Church. Before the funeral, R.J.

testified that he arrived at the house of his grandmother, Ms. Smith, driving

his grandfather’s red truck and was told by another relative to park the truck

in Parker’s driveway. R.J. stated that he was told that permission had been

obtained to use Parker’s driveway for parking. R.J. then rode in his

mother’s car to the funeral.

Following the funeral, R.J. testified that his plan had been to go to the

burial site with the rest of his family but that his father called and told him

that Parker was upset about R.J.’s truck in his driveway and that he needed

to come move it. R.J. and his mother then came back to the property so that

he could move the truck. R.J. testified that as soon as he got out of the truck

after moving it, Parker opened his garage door and came toward him. R.J.

then identified Parker in the courtroom. R.J. testified that Parker at first

thanked him for “moving your damned truck off of my property.” When

R.J. questioned Parker about what he had just said, Parker became
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belligerent and eventually patted his right pant pocket, saying “I’ve got

something for you.” R.J. then called out to his father for help.

After Mr. Gaut came outside, R.J. testified that he heard Parker and

his father exchange words, with his father telling Parker to calm down since

the truck had been moved and that Parker now needed to get off of their

property. R.J. testified that at this point Parker “bumped” his father, and his

father responded by pushing Parker to the ground. R.J. testified that he then

witnessed Parker shoot his father. R.J. stated that all of this occurred in the

front yard of his grandmother’s house. After the shooting, R.J. said Parker

waved his gun at everyone nearby and patted his father on the head before

walking back inside his house next door.

Flautesha Graham also witnessed Mr. Gaut’s shooting. On the day of

the shooting, Ms. Graham was in the funeral procession with her son, Tahj

Graham, Ms. Gaut, and R.J. when Mr. Gaut called to inform them of the

need to have R.J. come back to Ms. Smith’s house to move his truck. Ms.

Graham testified that when they arrived at Ms. Smith’s house, R.J.

immediately moved his truck from Parker’s driveway to a parking spot along

the street on the opposite side of East Washington Street.

Ms. Graham testified that as R.J. was walking back towards Ms.

Smith’s house, Ms. Graham saw Parker emerge from his house and walk

toward R.J. on Ms. Smith’s front lawn. Ms. Graham then identified Parker

in the courtroom. Ms. Graham testified that she saw Parker pestering R.J.

which caused R.J. to seek help from his father. She then saw Mr. Gaut come

out of the carport area of Ms. Smith’s house to talk to Parker. She heard Mr.

Gaut telling Parker that since the truck had been moved, Parker should just

let it go and return to his house. Ms. Graham testified that she then saw
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Parker get inches away from Mr. Gaut in an aggravated state before Mr.

Gaut pushed Parker to the ground. She then saw Parker get back up, pull out

a gun, and with no hesitation, shoot Mr. Gaut in the chest.

Phillip Stout is the firearms section supervisor for the North Louisiana

Crime Lab, and the parties stipulated that he is an expert in the field of

firearm identification. Mr. Stout tested the .22 caliber magnum revolver

used by Parker and found it to be a functional firearm. He also tested the

bullet recovered from Mr. Gaut’s body and stated that it was the same bullet

fired from the .22 caliber magnum revolver. Mr. Stout explained that the

gun used by Parker is a single action revolver, meaning that it requires the

user to cock the hammer before pulling the trigger. Mr. Stout then

authenticated a crime lab report he created setting forth his conclusions as

summarized above, which was then admitted.

Kristen McFarland is a member of Mr. Gaut’s extended family and

witnessed the shooting. She left the funeral procession early in order to help

set up Ms. Smith’s house for the repast. When she arrived at Ms. Smith’s

house, she saw Parker next door pulling items out of R.J.’s truck parked in

his driveway. Ms. McFarland testified that Parker was using vulgar

language, saying that he was mad because he couldn’t go to the store and get

alcohol due to R.J.’s truck blocking him in. Ms. McFarland witnessed

Parker “cussing out” Mr. Gaut about the truck situation. She said that about

five minutes after Mr. Gaut called to R.J. to come move the truck, R.J.

appeared and moved the truck to a parking spot on the street.

Ms. McFarland then saw Parker harass R.J. in Ms. Smith’s front yard

before Mr. Gaut came outside to attempt to calm down Parker. She then saw

Parker and Mr. Gaut exchange words before Mr. Gaut pushed Parker to the
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ground. Ms. McFarland testified that Parker then got back up after being

pushed down, pulled out a gun from his pocket, and shot Mr. Gaut. After

shooting Mr. Gaut, Ms. McFarland testified that Parker started waving his

gun around at everyone nearby before tapping Mr. Gaut on the forehead,

saying “You dead.” She then identified Parker in the courtroom.

Tai-jah Graham (“Tai-jah”) is a member of Mr. Gaut’s extended

family and was in the car with R.J. when he got the call to move his truck.

After R.J. moved his truck, Tai-jah saw Parker saying things to R.J. that

appeared to upset him. Tai-jah then saw R.J. call out to his father for help,

which caused Mr. Gaut to walk out to Ms. Smith’s front yard to talk to

Parker. She saw the two men exchange words before Mr. Gaut pushed

Parker. Tai-jah then saw Parker get back up, pull out a gun, and shoot Mr.

Gaut. She also saw Parker wave the gun around at everyone located nearby.

After Parker went back into his house, Tai-jah called 911. She then

identified Parker in the courtroom.

Tahj Graham (“Tahj”) is also a member of Mr. Gaut’s extended

family who witnessed the shooting. Tahj was in the vehicle with R.J. when

R.J. got the call to move his truck, and was in Ms. Smith’s carport when the

shooting occurred. After they arrived back at Ms. Smith’s house, he saw

R.J. move the truck. After Mr. Gaut came outside, Tahj testified that he saw

Parker talking in an aggressive manner to Mr. Gaut. Tahj then saw Mr. Gaut

push Parker, “because [Parker] was all the way in [Mr. Gaut’s] face.” Mr.

Graham observed Parker get back up, pull a gun out of his right pants

pocket, point it at Mr. Gaut, and shoot him from a distance of four or five

feet. Tahj then identified Parker in the courtroom.

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Ysidra Lee is another member of Mr. Gaut’s extended family who

witnessed the shooting. After R.J. moved his truck, she saw Parker come

out of his house and start acting belligerent toward R.J. Ms. Lee then saw

Mr. Gaut and Parker exchanging words in Ms. Smith’s front yard. Ms. Lee

testified that she saw Mr. Gaut push Parker because Parker was “right in his

face.” Ms. Lee said she then turned to say something to her mother and

heard a loud gunshot. When she turned back around, she saw Mr. Gaut

laying on the ground and Parker standing over him holding a gun still

pointed at him. Ms. Lee said that after the shooting Parker did not appear

remorseful or upset and acted “like he hadn’t even done anything.” After

Parker went back into his house, Ms. Lee then approached Mr. Gaut and

helped his wife perform CPR on him. Ms. Lee identified Parker in the

courtroom.

Officer Maria Gardner (“Off. Gardner”) is one of the patrol officers

with SPD who responded to the crime scene. When she arrived at the scene,

she found Mr. Gaut laying on the ground in front of Ms. Smith’s house and

helped render aid to him. Off. Gardner also collected the numerous

witnesses to the shooting and brought them to the station to be interviewed

by detectives.

Corporal Troy Mayweather (“Cpl. Mayweather”) works in the patrol

division of SPD and was one of the officers who arrested Parker after the

shooting. Cpl. Mayweather testified that when he arrived at the scene, Mr.

Gaut was laying in the front yard of Ms. Smith’s house and Parker was

located inside his house next door. After verbal commands were made,

Parker exited his house and was taken into custody by Cpl. Mayweather and

other SPD officers. Cpl. Mayweather then entered Parker’s house to secure
9

the residence and found a .22 caliber magnum revolver on top of Parker’s

refrigerator. Cpl. Mayweather was shown the .22 caliber magnum revolver

in court and confirmed that it was the same one he recovered from Parker’s

residence.

Katrina Wright is employed as a death investigator with the Caddo

Parish Sheriff’s Office. After the autopsy took place, she collected the bullet

found in Mr. Gaut’s body and transferred it to the North Louisiana Crime

Lab. Ms. Wright was shown the bullet collected from Mr. Gaut’s body and

confirmed that it was the same one she sent to the crime lab.

Officer Montrel Jackson (“Off. Jackson”) is a patrol officer with SPD

and was one of the officers who responded to the crime scene on the day of

the shooting. Off. Jackson helped in the arrest of Parker and noticed a

strong odor of alcohol emanating from Parker in the process of arresting

him. Off. Jackson also observed that Parker had slurred speech and that his

eyes were glossy and bloodshot.

Larry Alexander was also a witness to the shooting. Mr. Alexander

did not know Mr. Gaut or Parker prior to the incident. He gave his friend

Michael Lee a ride to the funeral and came back to Ms. Smith’s house after

the funeral for the repast. He parked his vehicle across the street from Ms.

Smith’s house. Mr. Alexander witnessed the confrontation between Mr.

Gaut and Parker and heard Mr. Gaut tell Parker to get out of his yard three

times. Mr. Alexander saw Mr. Gaut push Parker to the ground. He then

heard the gunshot, saw Mr. Gaut fall down and grab his chest. Mr.

Alexander then observed Parker standing over Mr. Gaut while Parker had a

gun in his hand. After the shooting, Mr. Alexander described the scene as

“pandemonium.” He then identified Parker in the courtroom.
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Michael Lee was another member of Mr. Gaut’s extended family and

was in the carport of Ms. Lee’s house at the time of the shooting. After the

funeral he arrived at Ms. Smith’s house with Mr. Alexander. He saw Mr.

Gaut and Parker having an argument and then heard a gunshot.

The state rested. Parker elected to testify. Parker testified that at the

time of the incident, he had lived at his house on East Washington Street for

14 years and had become friendly with his neighbor Ms. Smith during that

time. Parker said that Ms. Smith would occasionally cook food for him and

care for him when he was sick. Parker testified that on the day of the

incident he was concerned that the truck parked in his driveway meant that

he was soon to be the victim of a home invasion. He also said that he

needed to go check on his mentally ill brother, and could not do so because

he was blocked in. When asked whether or not he gave consent for Ms.

Smith’s family to park a car in his driveway on the day of the funeral, Parker

said, “not that I recall.”

Due to his concerns, Parker claimed he went outside with a cocked

gun in one hand and a knife in the other. He claimed that R.J. was “rapping

a song” in his direction using expletives, but that he did not say anything to

R.J. Parker claimed that R.J.’s father, Mr. Gaut, then motioned for him to

come over to Ms. Smith’s yard, which he did. Parker said that Mr. Gaut

then poked him in the chest and pushed him to the ground. He claimed that

as soon as he hit the ground his gun went off, which is how Mr. Gaut was

shot. Parker claimed that he then got up and went to check Mr. Gaut’s pulse

before returning to his house to call 911. Regarding the 911 call, Parker

confirmed that he told the 911 operator he “only shot [Mr. Gaut] one time,”

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and that he never told the 911 operator that the shooting was unintentional.

The defense rested.

The trial court found Parker guilty of second degree murder. The trial

court then denied Parker’s motion for a new trial and sentenced Parker to life

imprisonment without benefits. No motion to reconsider sentence or motion

for appeal was filed by Parker’s counsel.

On September 3, 2021, Parker’s counsel filed a motion to withdraw,

which the trial court granted on September 15, 2021. Parker then filed a pro

se application for post-conviction relief, seeking an out-of-time appeal. The

trial court granted Parker’s request on February 7, 2022, and this appeal

ensued.

DISCUSSION

Defendant’s first assignment of error is that the evidence is

insufficient to support his conviction for second degree murder. Defendant

contends that, at best, the evidence proves manslaughter during an act of

negligent homicide or under sudden heat of passion.

The state argues that it established beyond a reasonable doubt that

Parker possessed the requisite specific intent to kill or to inflict great bodily

harm when he shot and killed Mr. Gaut in front of multiple witnesses. The

state notes that the trial court was presented with both the state’s and

Parker’s version of the events leading up to Mr. Gaut’s death and weighed

the credibility of each witness in turn. And, by finding Parker guilty as

charged of second degree murder, the state argues that the trial court rejected

Parker’s contention that the revolver used to kill Mr. Gaut accidentally

misfired when he fell to the ground. The state argues that the evidence

presented at trial supports Parker’s conviction, and that his assertion on
12

appeal that he should have been convicted of a lesser included verdict is

without merit.

When issues are raised on appeal contesting the sufficiency of the

evidence and alleging one or more trial errors, the reviewing court should

first determine the sufficiency of the evidence. State v. Hearold, 603 So. 2d

731 (La. 1992). The Louisiana Supreme Court has set forth the following

standard of review of the sufficiency of the evidence:

When reviewing the sufficiency of the evidence to support a
conviction, Louisiana appellate courts are controlled by the
standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.
Ct. 2781, 61 L. Ed. 2d. 560 (1979). Under this standard, the
appellate court “must determine that the evidence, viewed in the
light most favorable to the prosecution, was sufficient to
convince a rational trier of fact that all of the elements of the
crime had been proved beyond a reasonable doubt.” State v.
Neal, 00-0674, (La. 6/29/01) 796 So. 2d 649, 657 (citing State
v. Captville, 448 So. 2d 676, 678 (La. 1984)).

State v. Brown, 03-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18.

Relevant to this case, second degree murder is “the killing of a human

being ... [w]hen the offender has a specific intent to kill or to inflict great

bodily harm.” La. R.S. 14:30.1(A)(1). Specific intent is that state of mind

which exists when the circumstances indicate that the offender actively

desired the prescribed criminal consequences to follow his act or failure to

act. La. R.S. 14:10(1). Specific intent may be inferred from the

circumstances surrounding the offense and the conduct of the defendant.

State v. Bishop, 01-2548 (La. 1/14/03), 835 So. 2d 434. Specific intent to

kill may also be inferred from the extent and severity of the victim’s injuries.

State v. Bull, 53,470 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1175, writ denied,

20-00797 (La. 12/22/20), 307 So. 3d 1040.

La. R.S. 14:31(A)(1) states that manslaughter is:

13

A homicide which would be murder under ... 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[.]

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. State v. McGee, 51,977 (La. App. 2 Cir.

4/3/19), 316 So. 3d 1196, writ denied, 19-00761 (La. 11/19/19), 282 So. 3d

1066. Provocation and the time for cooling are questions for the jury to

determine according to the standard of the average or ordinary person. Id.,

citing State v. Leger, 05-0011 (La. 7/10/06), 936 So. 2d 108, cert. denied,

549 U.S. 1221, 127 S. Ct. 1279, 167 L. Ed. 2d. 100 (2007).

The trier of fact makes credibility determinations and may accept or

reject the testimony of any witness. State v. Casey, 99-0023 (La. 1/26/00),

775 So. 2d 1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d.

62 (2000). A reviewing court may not impinge on the fact finder’s

discretion unless it is necessary to guarantee the fundamental due process of

law. Id. The appellate court does not assess credibility or reweigh the

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

reviewing court accords great deference to a fact-finder’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. 8/30/02), 827 So. 2d 508, writ denied, 02-3090 (La.

11/14/03), 858 So. 2d 422.

Viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found beyond a reasonable doubt that the

14

state proved the essential elements of second degree murder. The state

presented sufficient evidence to prove that Parker killed Mr. Gaut when he

had a specific intent to kill or to inflict great bodily harm. The testimony

from numerous witnesses established that Parker was upset at his neighbors

about his car being blocked in and went next door with a weapon. After

Parker was pushed, every eyewitness testified that Parker then drew his gun

and fired it into Mr. Gaut’s chest. This was sufficient to show Parker’s

intent. See State v. Lewis, 08-1317 (La. App. 5 Cir. 5/26/09), 16 So. 3d 390

(holding that specific intent to kill may be inferred from the act of pointing a

gun and firing at a person from close range). Parker’s claim that his gun

went off accidentally when he hit the ground after being pushed is

contradicted by Parker’s own statements in his 911 call and is simply not

supported by the evidence.

Defendant’s argument that he should have been convicted of the lesser

offense of either negligent homicide or manslaughter is without merit.

Defendant did not meet his burden of proving that he committed the

homicide in sudden passion or heat of blood immediately caused by

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

cool reflection. While Mr. Gaut did push Parker to the ground, that act,

under these facts, is not sufficient justification for the shooting, nor did it

create a sudden passion or heat of blood situation that would warrant a

finding of manslaughter, particularly since it was Parker who instigated the

confrontation. Accordingly, this assignment of error lacks merit.

For his second assignment of error, Parker argues that his life

sentence, although statutorily mandated, is excessive. He argues that

because he is a sixty-eight-year-old disabled Vietnam war veteran with no
15

prior criminal history, the mandatory life sentence should not have applied

to him, especially considering that the tragic incident which resulted in Mr.

Gaut’s death was not intentional. Alternatively, defendant argues that it was

ineffective assistance of counsel for his lawyer to withdraw without

objecting to the sentence and before filing both a motion to reconsider the

sentence and a motion for appeal.

The state contends that the circumstances do not warrant a downward

departure from the mandatory sentence of life imprisonment and that the

evidence at trial proved beyond a reasonable doubt that Parker intended to

kill or inflict great bodily harm upon Mr. Gaut when he shot him in the

chest. Regarding defendant’s ineffective assistance of counsel claim, the

state argues that defendant is unable to prove that his trial counsel’s

performance was deficient at sentencing and that he was prejudiced by trial

counsel’s inadequate performance as a result.

Where no motion to reconsider sentence is filed, the defendant is

relegated to a claim of constitutional excessiveness. State v. Nabors, 53,357

(La. App. 2 Cir. 4/22/20), 295 So. 3d 974, writ denied, 20-00709 (La.

10/6/20), 302 So. 3d 527. A sentence violates La. Const. Art. I, § 20, if it is

grossly out of proportion to the seriousness of the offense or nothing more

than a purposeless and needless infliction of pain and suffering. State v.

Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.

1980). A sentence is considered grossly disproportionate if, when the crime

and punishment are viewed in light of the harm done to society, it shocks the

sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166;

State v. Jackson, 52,606 (La. App. 2 Cir. 4/10/19), 268 So. 3d 1217, writ

16

denied, 19-00699 (La. 10/15/19), 280 So. 3d 560, and writ denied, 19-00797

(La. 1/28/20), 291 So. 3d 1056.

Where there is a mandatory sentence, there is no need for the trial

court to justify, under La. C. Cr. P. art. 894.1, a sentence it is legally

required to impose. State v. Burd, 40,480 (La. App. 2 Cir. 1/27/06), 921 So.

2d 219, writ denied, 06-1083 (La. 11/9/06), 941 So. 2d 35.

The mandatory sentence for second degree murder is punishment by

life imprisonment at hard labor without the benefit of parole, probation or

suspension of sentence. La. R.S. 14:30.1(B). The argument that the

mandatory life sentence for second degree murder is a violation of the

prohibition against excessive punishment in the Louisiana Constitution has

been repeatedly rejected. State v. Parker, 416 So. 2d 545 (La. 1982); State

v. Roberson, 40,809 (La. App. 2 Cir. 4/19/06), 929 So. 2d 789.

To rebut the presumption that the mandatory minimum sentence is

constitutional, the defendant must clearly and convincingly show that he is

exceptional, namely, that, because of unusual circumstances, the defendant

is a victim of the legislature’s failure to assign sentences that are

meaningfully tailored to the culpability of the offender, the gravity of the

offense, and the circumstances of the case. State v. Johnson, 97-1906 (La.

3/4/98), 709 So. 2d 672; State v. Parker, 47,952 (La. App. 2 Cir. 4/10/13),

113 So. 3d 471, writ denied, 13-1051 (La.11/15/13), 125 So. 3d 1101.

The mandatory sentence of life imprisonment for a conviction of

second degree murder is presumed to be constitutional, and Parker failed to

demonstrate that he is an “exceptional” defendant for whom a downward

departure from the statutory minimum sentence is required. Defendant’s age

and status as a Vietnam war veteran with no criminal record are inadequate
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to show that the sentence is inappropriate for him. Moreover, when

compared to the severity of the offense, defendant’s sentence is neither

grossly disproportionate nor shocking to the sense of justice. We find,

therefore, that defendant’s life sentence is not constitutionally excessive.

We next address Parker’s alternate argument of ineffective assistance

of counsel due to his lawyer’s decision to withdraw before filing a motion to

reconsider sentence. As a general rule, a claim of ineffective assistance of

counsel is more properly raised in an application for post-conviction relief in

the trial court than by appeal. This is because post-conviction relief creates

the opportunity for a full evidentiary hearing. However, when the record is

sufficient, an appellate court may resolve this issue on direct appeal in the

interest of judicial economy. State v. Nixon, 51,319 (La. App. 2 Cir.

5/19/17), 222 So. 3d 123, writ denied, 17-0966 (La. 4/27/18), 239 So. 3d

836.

The mere failure to file a motion to reconsider sentence does not in

and of itself constitute ineffective assistance of counsel. A basis for

ineffective assistance of counsel may only be found if a defendant can show

a reasonable probability that, but for counsel’s error, his sentence would

have been different. State v. Jones, 46,712 (La. App. 2 Cir. 11/02/11), 80

So. 3d 500, writ denied, 12-0016 (La. 08/22/12), 97 So. 3d 356; State v.

Louis, 32,347 (La. App. 2 Cir. 10/27/99), 744 So. 2d 694. Parker’s sentence,

life imprisonment without the benefit of parole, probation, or suspension of

sentence, was the mandatory penalty for the crime he was convicted of.

Parker failed to allege how his age and lack of prior criminal record at the

time of the offense justified a deviation from the mandatory sentence. He

likewise did not allege any special circumstances that would support a
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deviation from the mandatory sentence provided in La. R.S. 14:30.1. Parker

failed to show that he is exceptional or that the mandatory life sentence is

not meaningfully tailored to his culpability, the gravity of the offense, and

the circumstances of the case. See State v. Collins, 09-1617 (La. App. 1 Cir.

02/12/10), 35 So. 3d 1103, writ denied, 10-0606 (La. 10/08/10), 46 So. 3d

1265.

Because Parker failed to prove that a motion to reconsider the

sentence would have resulted in a different sentence, we cannot find that the

failure of his trial counsel to file a motion to reconsider sentence constitutes

ineffective assistance of counsel. State v. Brooks, 52,334 (La. App. 2 Cir.

11/14/18), 260 So. 3d 713, writ denied, 18-2031 (La. 4/15/19), 267 So. 3d

1121; State v. Lee, 26,542 (La. App. 2 Cir. 05/12/94), 636 So. 2d 634.

Accordingly, this assignment of error is also without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of defendant

Ronald Berry Parker are affirmed.

AFFIRMED.

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