State of Louisiana v. Jimmy Lynn Keen

Judgment rendered November 20, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,915-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

JIMMY LYNN KEEN Appellant

*****

Appealed from the
Eighth Judicial District Court for the
Parish of Winn, Louisiana
Trial Court No. 45,363

Honorable Anastasia Stacy Wiley, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Paula Corley Marx

RICHARD CHRISTOPHER NEVILS Counsel for Appellee
District Attorney

STEVEN D. CREWS
Assistant District Attorney

*****

Before HUNTER, MARCOTTE, and ELLENDER, JJ.

MARCOTTE, J.

This criminal appeal arises from the Eighth Judicial District Court,

Parish of Winn, the Honorable Anastasia Wiley presiding. Defendant,

Jimmy Lynn Keen, was convicted of manslaughter and sentenced to 40

years at hard labor, with 25 years suspended, and 5 years of probation. For

the following reasons we affirm defendant’s conviction, vacate his sentence,

and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

On April 13, 2022, Jimmy Lynn Keen was charged by bill of

indictment with second-degree murder, in violation of La. R.S. 14:30.1. The

crime occurred on March 16, 2022, and the victim was Thomas K. Spillers,

Jr. (“Spillers”). Keen pled not guilty. On October 21, 2022, Keen filed a

motion for a speedy trial, and following the empaneling of a 12-member

jury, a trial was held February 13-16, 2023, where the following evidence

was adduced.

Lacey Moody (“Moody”) testified that she had been friends with

Keen for about four years. She stated that the relationship was not romantic,

and Moody dated Spillers during her friendship with Keen. Moody stated

that on the day of his death, Spillers had been drinking all day, starting in the

morning. Moody said that she would not have been surprised if a toxicology

screen for Spillers showed the presence of methamphetamines in his system.

Moody testified that, on the day he died, she told Spillers he should not drive

due to his intoxication.

On March 16, 2022, Spillers, Moody, and Spillers’ son, Tristen

Spillers (“Tristen”), completed errands and, while driving home around 4:30

p.m., they saw Keen and Howard Marshall Smith (“Smith”) in the yard of

Smith’s home; Keen lived with Smith. The home was located on the same

block as Spillers’ residence. Spillers got out of the vehicle, while Moody

stayed in the car with Tristen. Keen and Spillers had a verbal altercation,

and Keen pulled out a knife. Moody said Keen was threatening Spillers with

the knife, and she was trying to get Spillers back in the car. Spillers returned

to the car, and they went home. Spillers’ mother, Kathy Price (“Price”),

came to the house and left with Tristen. Moody tried to calm Spillers.

Moody testified that she took the screwdriver Spillers used to start his car

because she feared what Spillers might do given how upset he was.

Moody said that Josh Allwell (“Allwell”) arrived at Spillers’ home on

a dirt bike around 6 p.m. and said something about Smith, which made

Spillers mad again. Spillers used Allwell’s dirt bike to drive to Smith’s

home. Moody heard them “start screaming,” so she followed Spillers in his

car. Moody could clearly hear someone screaming after Spillers left his

house, but she was not sure who it was. When she arrived at Smith’s

residence, she saw Keen covered in blood and standing over Spillers’ body.

Moody had not seen Spillers with a weapon, and she did not see a weapon

near his body. She stated that the first thing she heard Keen say was, “It’s

self-defense.” Moody contacted the police.

Lieutenant Charles Curry (“Lt. Curry”), of the Winnfield Police

Department (“WPD”), testified that he responded to a call around 9 p.m. on

March 16, 2022, that a man had been stabbed at 401 North Saint John Street

in Winnfield, Louisiana. He arrived within a few minutes of receiving the

call. He could tell that Spillers was deceased by the condition of his body

and the fact that he could see that he had lost a lot of blood. Lt. Curry

observed a puncture wound in Spillers’ chest. Lt. Curry took Keen into
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custody. Lt. Curry said that Keen began to speak with him at the scene, but

he stopped him, informed him of his Miranda rights, and then took his

statement.

Keen told Lt. Curry that he threw the knife somewhere in the house

after stabbing Spillers. Lt. Curry found the knife, which he described as a

“butcher’s knife” or “chef’s knife.” The knife was eight inches long. He

also collected a cloth or old shirt Keen said he used to try and stanch

Spillers’ bleeding.

Lt. Curry said that Keen told him Spillers had a two-by-two with him,

which he later described as a piece of wood. Lt. Keen found the handle of a

posthole digger near the door to the house, which Smith later said belonged

to him. The handle weighed about three pounds. Lt. Curry said that no

other witness told him Spillers was armed with anything that could be used

as a weapon.

Lt. Curry testified that Keen told him that he was sitting on the couch

in the living room when Spillers “busted in the front door and he had to

defend himself from the stick.” Lt. Curry stated that he did not observe any

defensive wounds on Keen. He said Keen did have a cut on his finger,

which appeared infected, and which Keen said happened while he was

sharpening a knife. Lt. Curry said that he examined the front door to 401

North Saint John Street and did not see that anyone had broken in or forced

the door open. He said that the police were familiar with that house and that

the door did not shut or lock properly.

Lt. Curry said he did not look for signs of a struggle inside the house,

but he stated that he would not have noticed if there was a struggle because

the house was extremely messy. He said he did not see anything that
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indicated a struggle at the front door. The only blood he observed inside the

house was on the knife used to stab Spillers. There was blood splatter in the

doorway of the home and on the porch and porch railing. Spillers’ body was

located 36 feet from the porch; he was lying on his back.

A video recorded by Lt. Curry’s body camera of the crime scene was

played for the jury. In the video, Spillers was lying near a tree in the front

yard of the house. He had a large stab wound to his chest, blood around his

mouth, and a pool of blood beside his body. The video showed that there

was blood on the porch near the front door, as well as on the porch railing.

No blood could be seen inside the house.

Lt. Curry verified that Smith and Jacob Kelly (“Kelly”), another

witness, were about one block away when the incident occurred.

At the police station, Lt. Curry again read Keen his Miranda rights,

and Keen signed a form stating he understood his rights. Lt. Curry then

interviewed Keen. The video recorded by Lt. Curry’s body camera of Keen

giving his statement was played for the jury. Keen admitted to stabbing

Spillers, stating that the victim forcibly entered his home and swung a piece

of wood at him. One of Keen’s fingers appeared swollen, but Keen had no

other visible marks or cuts on his person.

On cross-examination, Lt. Curry said that Keen informed him that

Spillers swung the handle at him from the doorway, which he said was

impossible considering the length of the handle and the height of the

doorway. Lt. Curry stated that the doorway was seven feet tall, and Spillers

could not have swung a two-by-two overhead, (as he initially told Lt. Curry)

without hitting the door frame. Lt. Curry said Keen later changed his

statement, saying that Spillers poked or shoved the handle toward him. In
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Lt. Curry’s opinion, that would have been difficult considering how the

knife would have hit Spillers.

Lt. Curry said that he did not know if Spillers went into the house, but

the violent altercation between Keen and Spillers did not occur inside the

house. Lt. Curry confirmed that Spillers was stabbed at night and that the

house at 401 North Saint John did not have any electricity, making it dark

inside. He processed the crime scene with a flashlight. Lt. Curry said that

there was blood in the doorway of the house, but no one photographed it.

Lt. Curry said that according to Keen he was sitting on the couch

when Spillers came in the door. The door was 31 feet from the couch. Lt.

Curry testified:

Now, at the point, would a reasonable man walk 31 feet to
somebody that’s waving a stick at him? There had to be some
intent there. And his own … interview where he stated he had
the knife in his hand because he was sharpening it. And, of
course, we go[t] information later from other witnesses that he
had made the statement that he wanted to kill Mr. Spillers. So,
all that played into the second-degree charge.

Lt. Curry testified that Keen told him that Spillers was throwing trash

cans and waving a two-by-two in the yard, which Lt. Curry said was

different from the handle for the posthole digger.

Lt. Curry submitted the handle to the crime lab for DNA analysis

about seven months after Spillers’ death. He said that length of time was

common, given the number of murder cases WPD had that year. The crime

lab did not perform any analysis of the handle, the knife, or the buccal swabs

obtained from Spillers’ body. Lt. Curry said that based on his interpretation

of the crime scene, Spillers was stabbed at the doorway, backed up and

leaned over the porch rail, and then walked down the steps to where he

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collapsed in the yard. No other witnesses saw the interaction between Keen

and Spillers.

Deputy Stacy Johnson (“Dep. Johnson”), of the Winn Parish Sheriff’s

Office, testified that she was called to the scene of Spillers’ death. She

confirmed Lt. Curry’s description of finding the knife and bloody shirt,

which were located inside the house, about 20-25 feet from the door, and

finding the posthole digger handle near the door of the home. She said she

noticed blood droplets in the doorway of the house. Dep. Johnson said that

she had been to 401 North Saint John Street a few times before and that

forced entry into the home was easy to accomplish given the state of the

door and its lock. Dep. Johnson testified that there was a lot of blood

located around the porch railing of the house. She said it appeared that after

Spillers was stabbed, he went to the porch railing, slumped over it, and

walked out into the yard, where he fell. There was also a large pool of blood

where Spillers fell.

Off. Zilliah Moody (“Off. Moody”), of the WPD, testified that she

was called to the scene where she observed that Spillers was deceased. Off.

Moody stated that Keen came around the corner, with his hands up,

apologizing, saying it was self-defense, and stating that the weapon was in

the house. Off. Moody noticed that there was blood in the yard, most of

which was where Spillers’ body lay, about 36 feet from the porch. She said

there was also blood on the porch and the entryway to the house.

Dr. Frank Peretti (“Dr. Peretti”) testified via Zoom as an expert in

forensic pathology. Dr. Peretti performed the autopsy on Spillers. Dr.

Peretti explained that Spillers had a scrape on the left side of his face, a

defense-type wound on his right hand, and a single stab wound to his right,
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upper chest that passed through a rib and terminated in his right lung. The

depth of the wound was four to five inches from the front of Spillers’ body,

and the knife traveled from left to right and downward. Dr. Peretti stated

that the stab wound could not have been accidental because it went

completely through Spillers’ rib, which required an “extremely sharp knife

and a lot of force.” He testified that the abrasion to Spillers’ face was

consistent with him falling on his face.

Spillers’ toxicology report was admitted and showed the presence of

alcohol, methamphetamine, amphetamine, and marijuana in his blood at the

time of his death. Dr. Peretti said that Spillers’ BAC was .199 and the level

of methamphetamine in his blood was 920g/mL, which meant that Spillers

injected methamphetamine within 24 hours of his death. He described the

level of the drug in Spillers’ system as “high.”

Carroll Funk, Jr. (“Funk”) testified that he knew Keen and would

hang out at Smith’s house when Keen was present. Funk also knew Spillers

but was not present when he was stabbed. Funk said that the day before

Spillers died, he heard Keen say that he was going to kill Spillers, saying he

was going to “cut his fucking throat.” Funk stated that he saw Keen on

March 16, 2022, and Keen again threatened to kill Spillers. Funk testified

that when he saw Keen at Smith’s residence, he had several knives,

including a butcher knife.

Smith testified that he lived at 401 North Saint John Street and Keen

lived with him in March 2022. Smith also knew Spillers and Moody

because Spillers lived on the same block as him. Smith was in the process

of moving out of the house on the day Spillers was killed. On March 16,

2022, early in the day, Spillers and Moody drove to Smith’s house. Moody
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went in the house and asked Keen for money. Moody and Spillers left

without incident. Smith said that around midday he heard an argument in

his front yard between Spillers and Keen. Smith broke the argument up and

Spillers left.

Smith said that Spillers later returned to the house on a dirt bike. He

saw Spillers in his yard “just tearing up shit.” Smith said that Spillers was

breaking a two-by-four in the yard, but he did not see Spillers use the two by

four on Keen. He did not see Spillers carrying a stick. Smith said he did not

witness the stabbing because he left to transport some of his belongings to a

neighbor’s house. Smith heard Spillers and Keen from the neighbor’s

house; he said it sounded like “they was tearing the house in half.” He ran to

his house and saw Spillers walking in the front yard toward the minibike.

Smith called the police station but was placed on hold, so he ran to a

neighbor’s house and told them to call 911. When Smith returned to his

house, the police were there.

Smith said that Keen “would play with knives.” He testified that he

believed Kelly was in the house when Keen stabbed Spillers, but Kelly told

Smith he was locked in his room at the time. Smith said when he heard

Spillers and Keen from the neighbor’s house, “It sounded like the house was

rattling. I mean, they had to be in the house.”

Tristen testified that he was 13 years old at the time of trial. Tristen

verified Moody’s testimony about the pair being in the car with Spillers

when they drove past Smith’s house. Tristen said that Keen said something

to Spillers, who stopped the car and got out. Spillers and Keen argued, Keen

pulled out a knife, Spillers backed up, got back in the car, and they went to

Spillers’ home. Tristen said he was scared and crying, so he texted his
8

mother, who contacted Price, who picked him up. Tristen identified Keen in

court. Tristen said that his father did not have anything in his hands during

the encounter with Keen. The state rested.

Kelly testified that he heard the incident resulting in Spillers’ death,

but he did not see it. He said he was in a separate room of the house at the

time and knew there was going to be a fight. He heard a disturbance and the

noise of things crashing around, but no voices. He was certain that the

commotion came from inside the house. He left the house, saw Spillers’

body, and went to get Smith.

On cross-examination, Kelly was asked about the statement he gave to

Lt. Curry at the scene, in which he said he was not at Smith’s house and did

not see anything. Kelly said, “Well it’s kind of the same thing because

whether I was in the house or in the spot that I said I was, I would have

heard all that loud noise regardless and … it still would have played out the

same.” Kelly stated that he saw Spillers walk to Smith’s house and saw him

breaking windows, but he did not see Spillers enter the house. When asked

about which windows Spillers broke, Kelly said there were a lot of loud

noises and stuff being thrown at the house, but he did not identify which

windows were broken. Kelly clarified that he heard what sounded like glass

breaking, which could have been Spillers throwing things around, such as

trash cans.

After being informed of his right to remain silent, Keen elected to

testify in his own defense. He stated that he lived at 401 North Saint John

Street on the date of Spillers’ death. He testified that Moody came to his

house on the morning of March 16, 2022, to borrow money to buy drugs.

Keen denied her request. Keen testified that he told Moody he was done
9

“messing” with her. She told him to “come out into the yard and state it.”

Keen said that he told Moody that his problem was with her and not Spillers.

Keen said that Spillers did not exit the car at that time.

Keen said that a few minutes later, Spillers and Moody returned.

Spillers got out of the car and Moody remained inside. Keen said that

Spillers came onto the porch of Smith’s home; the door was open. Keen

said that Spillers threatened him. Keen testified that he told Spillers to leave

him alone. Spillers left, but he and Moody made several passes by Smith’s

house in their car. They left but drove by slowly a little bit later. Keen said

that Smith said something as they drove by. Spillers stopped the car and got

out. Keen said Spillers was cursing at him. Keen exchanged words with

Spillers, Moody got Spillers back in the car, and they left.

Keen stated that Spillers returned and he appeared to have a knife with

him. Keen testified that Spillers tried to stab Smith’s dogs because they

were barking at him. Smith told Spillers to leave, and he did. Keen said that

his friend, Patrick Carroll (“Carroll”), came over. Spillers returned on the

bike. Carroll said that he did not want to be a part of what was happening

and left. Keen testified that Spillers was in the yard threatening to kill him.

Keen said that he repeatedly told Spillers to go home and that he closed the

door. He did not lock the door because he knew Smith would return, and the

only way to lock the door was with a sliding bolt.

Keen said Spillers opened the door and came into the house. There

was no electricity in the house, and Keen said he could not see well. Keen

had some lit candles on the coffee table, but they did not provide much light.

Keen stated that Spillers was screaming that he was going to kill him. Keen

testified that he went to the door with a knife, and it was then that he saw
10

that Spillers had something in his hand which he swung at him. Keen said

the first time Spillers swung, he was able to duck, and Spillers missed him.

The second time, Keen said he had his hands up to protect his face and

Spillers hit him on his hand. Keen said the Spillers “had it in a spear-like

motion trying to stick me in the face,” which he was able to avoid. Keen

then said:

He kept trying - - and finally I got down, I came up and
knocked his hands up, when I did I hit him in the chest with
both hands trying to knock him back out the door or get him out
that way, but get him out of my face and feel like that’s when
the knife got him because he stopped talking, he looked at me,
he did an immediate about face, went toward the door, dropped
the stick, went out the door, hit the railing, uh, I’m assuming
that’s when the blood went everywhere cause I didn’t have a
flashlight I couldn’t see, and he straightened up, he made a
complete circle, went down the steps, made a right hand turn
right there past the bushes and everything and then went face
first in the ground.
Keen said he then realized Spillers was injured, so he rolled him over

and saw his wound. Keen stated that he ran back into the house, dropped the

knife, grabbed a rag, and ran outside to put pressure on Spillers’ wound.

Keen stated that he did not have a phone and screamed for help. Moody

showed up and, upon learning that Spillers was dead, began to scream. He

asked her to get help, and she left. Keen said Price showed up with a gun

and told Keen she was going to shoot him. Keen said he ran to a neighbor’s

house to find Smith, whom he asked to call the police. Smith said he could

not because his phone was not charged. It was then that the police showed

up, and he returned to the house. He was restrained and arrested.

On cross-examination, when asked why Lt. Curry said that he did not

see any defensive wounds on him, but only saw an infected wound on his

hand, Keen said that Spillers hit him directly on the wound on his hand,

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causing the scab to break open and for the wound to start oozing. Keen

again said that he did not realize that he had stabbed Spillers until he saw

him in the yard with blood running under him. The assistant district attorney

asked Keen about Dr. Peretti’s testimony that severing a rib and puncturing a

lung could not be accidental. Keen said:

I’m saying my adrenaline was pumping so hard and everything
was happening so fast, that I did not know I had stuck the man.
I just tried to get him out of my face and I … hit him hard. I
did, but I did not know that I have caught him with the blade. I
swear I didn’t. But, like I said, my adrenaline was pumping and
everything was happening and it was happening like super fast.
This whole incident from between him coming in the door and
what happened out in the yard, I feel like was probably
somewhere not much more than around 30 - - 30, 45 seconds.

Keen said that he did not know Spillers prior to the day he stabbed

him. Keen affirmed that he had a prior conviction for simple burglary and

was sentenced to eight years. After serving his sentence, he met Moody,

with whom he said he fell in love. He described their relationship as solely a

friendship. Keen said Moody had drug-related problems and had asked him

for money before. He said that he purchased a truck for Moody. Keen

affirmed that it bothered him that Moody did not return his affections. He

said Moody dating other men did not concern him, but seeing some of those

men mistreat her troubled him.

Keen said that he had physical problems as a 53-year-old man who

worked in the oil fields, including only about 40 percent use of his hand. He

said he was 6 feet tall and weighed 168 pounds when he was arrested for

Spillers’ death. Keen said he did not remember saying he was going to kill

Spillers. Keen said he pulled a knife on Spillers earlier in the day because

he was hoping to scare him.

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The posthole digger handle and a photo of it leaning against a door

were admitted, and Keen stated that it was a little over four feet long. Keen

said the handle was on the front porch, leaning against the wall of the house

before Spillers picked it up and swung it at him. Keen testified that Spillers

dropped the handle after he stabbed him. Keen said Spillers was in the

house when he stabbed him, but he did not have an explanation as to why

there was no blood in the house. The defense rested.

The state reopened its case and called Carroll to testify. Carroll stated

that on March 16, 2022, he was at Smith’s house with Keen, who was using

his cell phone. Spillers drove by the house with Moody and Tristen, saw

Keen, stopped his car, and got out. Carroll stated that Spillers appeared

drunk and said to Keen, “Hey, man, what ya doin’ texting my girl for?”

Keen and Spillers exchanged words and Spillers left. He later said that Keen

did not say much to Spillers during that altercation. Carroll said he did not

see anyone with a knife at that time.

Spillers later returned on a bike, and Carroll testified that he pointed

him out to Keen from inside the house. Carroll said he spoke to Spillers

from inside the house, telling him that he was the person exiting the house.

Carroll said that he was concerned because Spillers could have been armed,

and the house was dark; he did not want Spillers to hurt him believing him to

be Keen. Carroll did not testify that he saw Spillers with a weapon. Carroll

said that Smith told him to leave, which he then did. Carroll affirmed

several times that Keen had a cell phone and was using it shortly before

Spillers was stabbed. Carroll said that Keen had a knife with him when

Spillers returned to Smith’s house. The state rested.

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During closing arguments, defense counsel, James Calhoun (“Atty.

Calhoun”), said, while discussing the posthole digger handle, “Not only that,

it’s been wrapped up in a bag, I guess, for nine months. The defense doesn’t

have access to it.” Atty. Calhoun later said about the handle, “I asked the

officer, ‘When was this submitted?’ ‘October 7, 2022,’ over six months after

the homicide and of course, we now have no results. So, we don’t know if

there’s DNA on the … stick showing it was … being used or being wielded

by the decedent.”

Assistant District Attorney Christopher Nevils (“Atty. Nevils”) said

the following during the state’s rebuttal:

There’s also, afforded to a defendant in a criminal case, the
right to a speedy trial. We have like Detective Curry said,
we’ve got at least four pending murder cases and we’ve got
hundreds other felony cases, and it doesn’t give me any
pleasure for anybody that’s detained pretrial to have to stay in
jail waiting on their day in court. And in fact, nothing bothered
me more than when we were in Covid and there are some folks
that should have gotten out and as soon as they cleared that up,
as soon as we got through this pandemic and we could start
having trials again, we did and we had four criminal jury trials
last year, but the criminal code allows a defendant, if he wants
to, to certify that he’s ready for trial and he wants to go to trial.
So, that motion was filed and that’s why we’re here today, for
trial. That being said, when we have to do that, we had to get
some evidence back from the crime lab.

Atty. Calhoun objected, arguing that Atty. Nevils claimed the reason

the state did not have more evidence was because Keen made a demand for a

speedy trial. Atty. Calhoun then moved for a mistrial. Atty. Nevils

responded:

I don’t know of any case or law that says I can’t reference a
motion for a speedy trial any more than I can reference his
request for discovery or any other motion that’s been filed. I
don’t see the basis for a mistrial on that…. I’m not saying he’s
right or wrong for making his motion for a speedy trial, but I
didn’t even mention the three letters, D N A. He brought it up
to suggest to this jury that we didn’t test this evidence as to

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somehow say that we are hiding evidence from this jury. And
I’m entitled to explain why.
The trial court denied the motion. The trial court later said in its jury

instructions:

The statements of the state and of the defense attorney are not
to be considered by you as evidence. The attorneys have
argued their interpretation of the law, the facts they think have
been proven from the evidence and from inferences based on
that evidence, and on their conclusions from their interpretation
of the law and the facts. These opposing viewpoints are
presented to you in argument by the attorneys to assist in your
deliberations. However, the statements of the attorneys must be
separated by you from evidence admitted in this case.

The trial court also instructed the jury about the justifications and duty

to retreat found in La. R.S. 14:20. The jury found Keen guilty of the

responsive verdict of manslaughter. The jury was polled, and the verdict

was unanimous. The trial court ordered a presentence investigation report

(“PSI”). Keen filed a motion for a new trial, arguing his killing of Spillers

was justified and that the state’s closing argument was not confined to the

evidence admitted, making the same claims he made in his motion for a

mistrial. Following a hearing, the trial court denied the motion for a new

trial.

On August 7, 2023, Keen was sentenced. The trial court noted that

Keen showed remorse at the scene of Spillers’ death and during his

testimony. Spillers’ family provided a statement saying that he went to

Keen to confront him about stalking and harassing Moody. The trial court

provided Keen’s criminal history and considered the factors found in La. C.

Cr. P. art. 894.1. The court sentenced Keen to 40 years at hard labor, with

25 years suspended, and 5 years of probation. Keen was given credit for

time served. The trial court noted that manslaughter is a crime of violence

15

and imposed court costs on Keen. The trial court then stated, “You are

advised that you have a right to post-conviction relief and that you have two

years after your sentence is final to make an appeal.”

Keen filed a motion to reconsider sentence arguing that his sentence

was excessive. Following a hearing, the motion was denied. Defendant now

appeals.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Keen argues that he proved that he

reasonably believed he was in imminent danger of losing his life or

receiving great bodily harm when he stabbed Spillers. Keen claims that he

had a right to be in his home and had no duty to retreat under La. R.S. 14:20.

He states that Spillers, who was under the influence of methamphetamines,

alcohol, and marijuana, was the aggressor in their encounter; he pushed his

way into Keen’s home and swung the posthole digger handle at him.

Keen asserts that multiple witnesses testified that they heard a loud

commotion before he stabbed Spillers, and Smith testified that Spillers was

in the yard throwing things around and trying to break a two-by-four.

Moody testified that when she, Spillers, and Tristen were returning to their

home and Spillers got out of his car to confront Keen, she had to make him

get back into the car. She also testified that she tried to prevent Spillers

driving his car to confront Keen again. Keen argues the evidence presented

shows that he killed Spillers in self-defense.

The state argues that it proved beyond a reasonable doubt that Keen

stabbed Spillers after being repeatedly provoked. The state also maintains

that the evidence was insufficient to show that Keen was justified in killing
16

Spillers. The state claims that Keen’s testimony was inconsistent with his

initial statement to the police and there was overwhelming evidence that

Keen intended to kill Spillers.

The state points out that multiple witnesses testified, but it was only

Keen who claimed that Spillers held a stick. The state argues that this is not

a “stand your ground” type of case because the parties knew each other and

had exchanged words earlier that day. Keen made his intentions of stabbing

Spillers clear. The state argues that the record is replete with testimony that

defendant was sufficiently provoked to warrant a lower grade of homicide.

The state contends that the jury made a credibility determination and found

that Spillers was not killed in self-defense. The state asks that this court

affirm Keen’s conviction.

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, 99 S. Ct. 2781, 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). This standard, now legislatively

embodied in La. C. Cr. P. art. 821, does not provide the appellate court with

a vehicle to substitute its own appreciation of the evidence for that of the

fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517; State v.

Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1 So. 3d 833, writ denied, 09-0310

(La. 11/6/09), 21 So. 3d 297.

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),
17

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

62 (2000); State v. Ramsey, 55,491 (La. App. 2 Cir. 2/28/24), 381 So. 3d

308, writ denied, 24-00379 (La. 10/1/24), __So. 3d__, 2024 WL 4355004.

The appellate court does not assess credibility or reweigh the evidence.

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

supra. A reviewing court accords great deference to a jury’s decision to

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

Jackson, 53,497 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1156.

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

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 would have cooled, at the time the
offense was committed.
“Sudden passion” and “heat of blood,” which distinguish

manslaughter from homicide, are not elements of the offense, but mitigatory

factors exhibiting a degree of culpability less than is present when the

homicide is committed without them. State v. Tompkins, 403 So. 2d 644

(La. 1981); State v. Ramsey, supra. Provocative acts held to rise to the level

of mitigating conduct involve physical threats or actions on the part of the

victim. State v. Heard, 22-378 (La. App. 3 Cir. 11/23/22), 353 So. 3d 326,

writ denied, 22-01829 (La. 4/18/23), 359 So. 3d 508. Mere words or

gestures, however offensive or insulting, will not reduce homicide from

murder to manslaughter. State v. Mitchell, 39,202 (La. App. 2 Cir.

12/15/04), 889 So. 2d 1257, writ denied, 05-0132 (La. 4/29/05), 901 So. 2d

1063.

18

La. R.S. 14:20 states in pertinent part :

A. 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.
….

(4)(a) When committed by a person lawfully inside a dwelling,
a place of business, or a motor vehicle as defined in R.S.
32:1(40) when the conflict began, against a person who is
attempting to make an unlawful entry into the dwelling, place
of business, or motor vehicle, or who has made an unlawful
entry into the dwelling, place of business, or motor vehicle, and
the person committing the homicide reasonably believes that
the use of deadly force is necessary to prevent the entry or to
compel the intruder to leave the dwelling, place of business, or
motor vehicle.
….

B. For the purposes of this Section, there shall be a presumption
that a person lawfully inside a dwelling, place of business, or
motor vehicle held a reasonable belief that the use of deadly
force was necessary to prevent unlawful entry thereto, or to
compel an unlawful intruder to leave the dwelling, place of
business, or motor vehicle when the conflict began, if both of
the following occur:

(1) The person against whom deadly force was used was in the
process of unlawfully and forcibly entering or had unlawfully
and forcibly entered the dwelling, place of business, or motor
vehicle.

(2) The person who used deadly force knew or had reason to
believe that an unlawful and forcible entry was occurring or had
occurred.

C. A person who is not engaged in unlawful activity and who is
in a place where he or she has a right to be shall have no duty to
retreat before using deadly force as provided for in this Section,
and may stand his or her ground and meet force with force.

19

D. No finder of fact shall be permitted to consider the
possibility of retreat as a factor in determining whether or not
the person who used deadly force had a reasonable belief that
deadly force was reasonable and apparently necessary to
prevent a violent or forcible felony involving life or great
bodily harm or to prevent the unlawful entry.

In any criminal proceeding in which the justification of self-defense is

raised pursuant to R.S. 14:19 or 20, the state shall have the burden to prove

beyond a reasonable doubt that the defendant did not act in self-defense. La.

C. Cr. P. art. 390(A). In determining whether a defendant had a reasonable

belief that the killing was necessary, factors that may be considered include

the excitement and confusion of the situation, the possibility of using force

short of killing, and the defendant’s knowledge of the assailant’s bad

character. State v. Lensey, 50,242 (La. App. 2 Cir. 11/18/15), 182 So. 3d

1059, writ denied, 15-2344 (La. 3/14/16), 189 So. 3d 1066. The question on

a sufficiency of the evidence review is whether, 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 homicide was not committed in

self-defense or in the defense of others. Id.

We find that the evidence was sufficient for the jury to convict Keen

of manslaughter. The jury was given instructions about justifiable homicide

and Louisiana’s “Stand Your Ground” Law. Keen admitted that he stabbed

Spillers. The jury was free to accept or reject Keen’s testimony that he acted

in self-defense, and the jury members chose not to give credence to what he

said on the stand. Furthermore, the physical evidence did not align with

Keen’s statements about what happened between himself and Spillers. The

only blood found in the home was on the knife and the bloody rag Keen said

20

he used to try to stanch Spillers’ bleeding. The remaining blood was at the

doorway of the home, on the porch, and in the front yard near Spillers’ body.

Keen and Spillers had an altercation earlier in the day in which Keen

pulled a knife on Spillers, and witnesses said that Keen had threatened that

he was going to kill Spillers. The state established and Keen admitted that

he was in love with Moody, and Keen said in his statement to Lt. Curry that

he often contacted her, gave her money, did her favors, and did not like the

men she dated. Lt. Curry said he was skeptical of Keen’s account of how he

stabbed Spillers because Keen’s story changed. First, Keen said that Spillers

swung a stick at him, but later he said that Spillers poked the stick at him

attempting to hit him with it. Lt. Curry said it would have been very

difficult for Spillers to swing the posthole digger handle where his blood

was found near the doorway to the house because the doorway was only

about seven feet tall, and the handle was about four feet long.

Keen was the only witness to state that Spillers held a stick, and he

did not have any defensive wounds. Smith said that Spillers was breaking

up a two-by-four in the front yard when he left the house, but he did not see

him go to the house with a stick or handle. No other witnesses testified that

they saw Spillers with a weapon of any sort or stated that he went inside the

house.

Kelly said that the altercation sounded like it was coming from inside

the home, but he did not see the exchange between Spillers and Keen.

Kelly also gave inconsistent testimony about his whereabouts at the time of

Spillers’ death and was unable to identify the specific sounds he heard

coming from the two men and their actions. Furthermore, Keen said that he

wanted to call 911, but he did not have a phone. Keen said that he left the
21

scene to get someone to call an ambulance. He said he asked Smith to call

911, and he responded that he could not do so because his phone was

uncharged. Smith, however, testified that he did call 911 and was placed on

hold. Also, Carroll affirmed that Keen did have a phone and was using it

just before the altercation with Spillers.

Dr. Peretti testified that great force was required to cause the damage

done to Spillers’ body. The knife cut through Spillers’ rib, its path

terminated in his lung, and the depth of the wound was four to five inches.

Lt. Curry questioned Keen’s narrative about the events that led to Spillers’

death, and we too find Keen’s story suspicious that he traveled more than 30

feet from the couch to the front door to confront a man swinging a four-foot-

long handle who had just been breaking things outside and yelling. The

state proved beyond a reasonable doubt that Keen did not act in self-defense

in killing Spillers.

The jury did find that Keen was provoked by Spillers coming to his

home with alcohol and methamphetamine in his system and wreaking havoc

in the yard, warranting the responsive verdict of manslaughter. We agree

and find the evidence sufficient to uphold the jury’s verdict.

Motion for a Mistrial

In his second assignment of error Keen claims that the trial court erred

in refusing to grant a mistrial when, during closing arguments, the state told

the jury that it had more evidence but could not present it because he filed a

motion for a speedy trial. Keen argues that closing arguments are confined

to the evidence admitted, to the lack of evidence, to conclusions of fact that

the state or defendant may draw therefrom, and to the applicable law. The

law does not allow the argument to appeal to prejudice and the state’s
22

rebuttal must be confined to answering the argument of the defendant. Keen

contends that blaming the lack of evidence on the defense is prejudicial and

contrary to the law. He asks this court to vacate his conviction and remand

his case for a new trial.

The state contends that the defense knew that the handle was taken

into evidence and could have asked the crime lab to test it, but the defense

chose not to. Instead, the state argues, Atty. Calhoun suggested that the state

hid evidence from the defense and later claimed that the evidence was

insufficient because no DNA testing results were available at the time of

trial. The state argues that, in filing the motion for a speedy trial, the

defense was certifying that defendant was ready for trial. The state

maintains that Keen cannot then fault the state when evidence was not

returned from the crime lab. The state reasons it was entitled to rebut those

errors in defendant’s closing argument.

The argument shall be confined to evidence admitted, to the lack of

evidence, to conclusions of fact that the state or defendant may draw

therefrom, and to the law applicable to the case. The argument shall not

appeal to prejudice. The state’s rebuttal shall be confined to answering the

argument of the defendant. La. C. Cr. P. art. 774.

However, even if closing arguments go beyond the scope of La C. Cr.

P. art. 774, the errors are harmless unless the reviewing court is thoroughly

convinced that the remarks influenced the jury and contributed to the

verdict. State v. Falkins, 04-250 (La. App. 5 Cir. 7/27/04), 880 So. 2d 903,

writs denied, 04-2220 (La. 1/14/05), 889 So. 2d 266, 04-2171 (La. 5/20/05),

902 So. 2d 1045. An error is harmless if it can be said beyond a reasonable

doubt that the guilty verdict rendered in the case was surely unattributable to
23

that error. State v. Robertson, 06-1537 (La. 1/16/08), 988 So. 2d 166; State

v. Campbell, 46,888 (La. App. 2 Cir. 3/14/12), 86 So. 3d 204, writ denied,

12-1059 (La. 10/26/12), 99 So. 3d 641.

The law regarding discretionary mistrials and admonitions is set forth

in La. C. Cr. P. art. 771, which provides as follows:

In the following cases, upon the request of the defendant or the
state, the court shall promptly admonish the jury to disregard a
remark or comment made during the trial, or in argument within
the hearing of the jury, when the remark is irrelevant or
immaterial and of such a nature that it might create prejudice
against the defendant, or the state, in the mind of the jury:

(1) When the remark or comment is made by the judge, the
district attorney, or a court official, and the remark is not within
the scope of Article 770; or

(2) When the remark or comment is made by a witness or
person other than the judge, district attorney, or a court official,
regardless of whether the remark or comment is within the
scope of Article 770.

In such cases, on motion of the defendant, the court may grant a
mistrial if it is satisfied that an admonition is not sufficient to
assure the defendant a fair trial.

A mistrial is a drastic remedy and, except in instances in which it is

mandatory, is warranted only when trial error results in substantial prejudice

to the defendant, depriving him of a reasonable expectation of a fair trial.

State v. Campbell, supra. Whether a mistrial should be granted is within the

sound discretion of the trial court, and denial of a motion for mistrial will not

be disturbed on appeal absent an abuse of that discretion. State v. Falkins,

supra.

We find no error in the trial court’s denial of Keen’s motion for a

mistrial. Atty. Calhoun raised the issue of DNA testing of the posthole

digger handle in his closing arguments and claimed that the state did not do

its due diligence by failing to have it tested. Atty. Nevils responded to the

24

defense’s argument in the state’s rebuttal. He did not mention DNA testing

but said that Keen had filed a motion for a speedy trial and the state was

required to get evidence back from the crime lab to proceed with trial. The

trial court also reminded the jury in its instructions that the jury members

were only to consider the evidence presented during that trial and that the

arguments of the state and the defense were separate from the evidence.

It is difficult for this court to see how Atty. Nevils’ remarks regarding

a speedy trial influenced the jury and contributed to its manslaughter verdict.

There was a surfeit of evidence in this case showing that Keen stabbed

Spillers, including Keen’s confession to police and his testimony at trial.

The posthole digger handle was admitted and presented to the jury along

with defendant’s testimony. The jury’s verdict was not attributable to the

state’s comments about defendant’s motion for a speedy trial. The trial court

had wide discretion to grant or deny the motion for a mistrial in this

instance, and this court will not disturb its ruling on appeal.

Excessive Sentence

In his last assignment of error, Keen argues that the trial court erred in

imposing an excessive sentence. Due to an error patent, this court vacates

Keen’s sentence and remands this case for resentencing. Therefore, Keen’s

final assignment of error is moot.

Errors Patent

A review of the record for errors patent indicates that the sentence

imposed upon Keen was illegally lenient. Keen was convicted of

manslaughter and sentenced to 40 years at hard labor, with 25 years

suspended, and 5 years of supervised probation. The trial court designated

Keen’s conviction a crime of violence. The court shall not suspend the
25

sentence of a conviction for an offense that is designated in the court

minutes as a crime of violence pursuant to Article 890.3. La. C. Cr. P. art.

893(A)(2). Manslaughter is designated as a crime of violence in La. C. Cr.

P. art. 890.3, making Keen’s sentence illegally lenient. Since the trial court

has wide discretion in the imposition of a sentence within statutory limits,

this court vacates Keen’s sentence and remands this case for resentencing.

Two other errors patent were found. First, the minutes for Keen’s

sentencing state that he was sentenced to 40 years at hard labor with 15

years suspended, instead of 25 years suspended as found in the sentencing

transcript. Due to the disparity between the minutes of sentencing and the

transcript of sentencing, the trial court is ordered to amend the minutes of

sentencing to accurately reflect the sentencing transcript.

Second, the trial court failed to properly advise Keen of his post-

conviction relief time limits as found in La. C. Cr. P. art. 930.8(A). That

article provides that no application for post-conviction relief shall be

considered if it is filed more than two years after a defendant’s conviction

and sentence become final. The trial court informed Keen that he has two

years to file for post-conviction relief “after your sentence is final.” Because

this court is vacating Keen’s sentence and remanding for resentencing, this

final error patent is moot. However, we note that when resentencing the

defendant, the trial court should advise him of the proper time limitations

provided by La. C. Cr. P. art. 930.8(A) for applying for post-conviction

relief.

26

CONCLUSION

Defendant’s conviction is affirmed. Defendant’s sentence is vacated,

and his case is remanded for resentencing and correction of the minutes as

noted herein.

CONVICTION AFFIRMED; SENTENCED VACATED; REMANDED
FOR RESENTENCING.

27