State of Louisiana v. Gary Louis Anderson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 03-1601

STATE OF LOUISIANA

VERSUS

GARY LOUIS ANDERSON

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 262688
HONORABLE DONALD THADDEUS JOHNSON, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Oswald A. Decuir, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS.

James C. Downs
District Attorney - 9th Judicial District Court
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
Counsel for: Plaintiff/Appellee
State of Louisiana

Michael W. Shannon
Assistant District Attorney
Post Office Drawer 1472
Alexandria, Louisiana 71309
Counsel For Plaintiff/Appellee
State of Louisiana

G. Paul Marx
Attorney at Law
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
Counsel for: Defendant/Appellant
Gary Louis Anderson

Gary Louis Anderson
Avoyelles Parish Prison
675 Government St.
Marksville, LA 71351

EZELL, JUDGE.

The Defendant, Gary Anderson, was charged by bill of indictment with second

degree murder in violation of La.R.S. 14:30.1. After a bench trial, the Defendant was

found guilty of manslaughter in violation of La.R.S. 14:31. On August 12, 2002, the

Defendant was sentenced to fifteen years at hard labor. He contends the evidence was

insufficient to convict him of manslaughter.

FACTS

On July 27, 2001, a street fight erupted between the seventeen-year-old

Defendant and T.G., the fifteen-year-old victim.1 The victim was stabbed twice

during the brief fight and later died at a local hospital.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the

court for errors patent on the face of the record. After reviewing the record, we find

there is one error patent.

Although the minutes of sentencing indicate the trial court advised the

Defendant that he had “two years to file for Post Conviction Relief,” the transcript of

sentencing indicates the trial court erroneously informed the Defendant that he had

two years from the date of sentencing to apply for post-conviction relief. The trial

court stated, “[Y]ou have two years to apply for any post-conviction relief after this

sentence becomes final on this date, pursuant from this date.” “Pursuant to La.Code

Crim.P. art. 930.8, the prescriptive period for filing post-conviction relief . . . begins

to run when the judgment of conviction and sentence become final.” State v. Jones,

01-539, p. 2 (La.App. 3 Cir. 10/31/01), 799 So.2d 772, 775, writ denied, 02-3310 (La.

12/13/02), 831 So.2d 975. Thus, we find the trial court should be directed to inform

1
Pursuant to La.R.S. 46:1844(W)(1)(a), we have used the minor crime victim’s initials
throughout this memorandum.

1

the Defendant of the correct provisions of Article 930.8 by sending appropriate

written notice to the Defendant within ten days of the rendition of this opinion and to

file written proof that the Defendant received the notice in the record of the

proceedings.

ASSIGNMENT OF ERROR

The Defendant contends the evidence presented at trial was insufficient to

convict him of manslaughter because the victim was the aggressor and the homicide

was justifiable.

At trial, Roschund Swain testified he was the best friend of the victim. He

stated he lived near both the Defendant and victim his entire life and they all played

sports together. He testified that the day before the stabbing there was an argument

between the victim and Dante Sikes. Roschund stated the fight started when the

victim approached Sikes and asked him what he had said about him. Roschund

admitted that the victim threw the first punch at Sikes. Roschund testified as follows:

A. At that time. It wasn’t really a fight. But, like, like, they
exchanged punches, but it wasn’t really just a big fight. Because soon
as they exchanged punches, Gary [the Defendant] had, like, jumped in
and pushed [T.]. And he was, like, “Fight me, instead of the dude,
Dante.” That was the day before.

He stated that nothing happened between the Defendant and victim at that time.

Roschund testified that on the following night, he, the victim, and three other

friends were sitting outside when the Defendant and his brothers and friends walked

down the street and stopped in front of them. Roschund stated they all got up and

walked to the curb to meet them. He estimated there were about twenty people at the

scene. One of the guys with the Defendant said “Do what you do.” At that point

everyone backed up because the Defendant and the victim were getting ready to fight.

Roschund testified about the fight:

Q Who started fighting?

2

A [T.] and Gary. But it wasn’t really a fight. Because [T.], like,
swung a blow at him, like, one or two blows. And while he did, like, he
-- he had his little hand down . . .

Q He--he--

A . . . here by his pocket -- well, Gary --

Q Well, when you said, “He had his little hand down,” who? Who?

A Gary had his hand down by his pocket, and one of his fists up, like this
(Demonstrating), but he never swung. As soon as --

Q You’re indicating he’s holding up his left fist, and his right’s hand
down.

A Yeah, his right hand was down.

Q Okay. And --

EXAMINATION BY COURT

Q And did you say [T.] swung at -- at the defendant? That [T.]
swung at Gary?

A Yes, sir.

Q Okay. Go ahead.

A And, like, when he was, like -- like, when they was, like, fixing to
do it, like, fight, he was like -- it seemed like he waited till [T.] got close
to him. And, like, when they got close, he just stabbed him.

Q Okay, did you see him actually stab the defendant?

A Yes, sir.

Q What did you see in his hand?

A I seen a knife in a little -- it was wrapped up in a little white towel.

Roschund testified the victim said “He stabbed me,” and ran off. Then the Defendant

told him to “come on” and he saw the knife in his hand.

Roschund stated that he had seen the Defendant pull out the knife from his right

front pants pocket. He said the Defendant and the victim were standing very close to

one another when the stabbing occurred. He said the Defendant just had to reach out

3

of his pocket and stab him.

Roschund explained that he did not expect a weapon to be used in the fight.

He testified that everyone at the scene that night knew each other, played ball together

every day, and had disagreements. Roschund testified that the only person beside the

Defendant who had a knife at the time of the fight was the Defendant’s brother,

William. He stated he did not see William with a knife, but after the victim was

stabbed William told him he had a knife and would stab him if he started something.

Roschund Swain’s older brother, Desmond Vernon Swain, testified that he is

a Southern University student who grew up playing ball with the victim and

Defendant. Just before the stabbing occurred, Roschund told Desmond not to leave

as the Defendant and his group were coming down the street. Desmond saw the two

groups of boys in a circle with the Defendant and the victim in the middle fighting.

Desmond testified that after a few punches, the victim stepped back and said the

Defendant stabbed him. Desmond stated Roschund yelled at the Defendant and the

Defendant and his brother then threatened to stab Roschund. He stated he was

surprised by the stabbing because the two boys knew each other and did not have any

great animosity toward each other.

On cross-examination, Desmond stated he did not see the Defendant stab the

victim, but did see the Defendant holding a bloody knife afterward. He described the

knife as having about a six-inch blade with the handle wrapped in a towel. Desmond

was shown the knife in evidence (J-1) and he stated it looked like the knife the

Defendant was holding.

Kerrell Dunbar testified he was a friend of the victim and knew the Defendant.

He testified: “Well, we was in the street, and they met up with each other. And, then,

4

[T.] walked up to Gary, and he threw a lick, and he raised up and said he stabbed

him.” Dunbar testified he heard the victim say he was stabbed and saw the Defendant

with a knife wrapped in a white rag. He stated he assumed the Defendant dropped the

knife because he did not see him with it after the stabbing. He also stated the

Defendant’s brother said he would stab someone too.

Lonnie Murray testified he witnessed the fight as follows:

So, “later on” came. I happened to be in the neighborhood around
there. [T.] was with us, and Gary and his brothers walked up. And Gary
asked him, “What’s up? What you going to do, now?” So [T.], they
both went in the middle of the street, and they start fighting. [T.] swung.
Gary swung. It was about three or four licks passed, and [T.] broke out
running. And everybody was, like, “Man, what’s wrong with you?”
And he said, “He stabbed me.” And when I looked at Gary, I seen the
knife in his hand. And all the rest of them was, like, all his brothers,
Gary’s brothers was, like, “Y’all come on. Y’all can get stabbed, too.”
So.

He testified that he did not see the Defendant stab the victim.

Murray testified there was no one else close enough to have stabbed the victim

other than the Defendant. He stated the fight between the kids was ordinary and he

did not think the Defendant was in such danger that he had to use deadly force to

protect himself. Murray stated that the two were going to fight earlier that day, but

the Defendant said to wait until later because he was high. Murray testified he told

this to the police when he gave his statement, but when given a copy of his statement,

he could not find a mention of it. Murray also stated he was surprised by the stabbing

and did not see the knife in the Defendant’s hand until after the victim was stabbed.

He stated he saw the Defendant’s two brothers with knives after the fight. He stated

he told police the Defendant had five guys with him and they all had knives. Murray

testified that he meant the majority of them had knives.

Dominique Teasley testified he saw the brief fight. He stated only a few

5

punches were thrown and the victim ran off saying “This nigger stabbing me.”

Teasley testified that at the time of the stabbing no one but the Defendant was close

enough to the victim to have stabbed him. He did not see the knife during the fight.

After the stabbing, the Defendant told Roschund Swain to “come on” as he held the

knife. The Defendant’s brother, William, acted like he had a knife as well.

Khalilah Ferrell testified that she did not see the stabbing, but after the stabbing

she saw the Defendant standing and holding a knife behind his back leg. She stated

the Defendant’s hand was covering the black handle of the knife, and he looked like

he was going to swing the knife. She stated she was about five to ten feet away from

him at the time. She stated she never saw the victim with a knife.

Mr. Ronnie Dunbar, father of Kerrell Dunbar, testified that he was standing in

his yard when the victim came walking toward him. The victim said, “That nigger

stabbed me.” When Mr. Dunbar saw blood on the victim’s shirt, he ran to him, saw

the wound and immediately took him to the hospital. Later, he flagged down an

officer and brought him to the crime scene.

Alexandria Police Corporal Farrell Gaspard testified that he was flagged down

and told there was a possible gang fight on Felker Street. He arrived at the scene

along with Officer Lachney and found several people standing around and blood on

the ground. The Defendant’s father, Gary Piper, Sr., advised Corporal Farrell that his

son was involved in an altercation with another boy. The Defendant was advised of

his rights and agreed to cooperate. The Defendant told him that there was a circle of

about eight to twelve boys arguing when a fight broke out and somebody got stabbed.

Corporal Farrell testified the Defendant did not say who got stabbed, but did say he

did not stab the victim. He said he did not know who had stabbed the boy.

Officer Randy Lachney testified that Ronnie Dunbar showed him the

bloodstained area and told him he had taken the stabbing victim to the hospital. He

6

was present when the Defendant was advised of his rights. Neither officer noticed any

injuries on the Defendant. Officer Lachney corroborated Corporal Farrell’s

conversation with the Defendant. However, Officer Lachney stated he remembered

the Defendant mentioned that he heard gunshots during the altercation, but stated he

did not have any weapon on him. We note that neither the Defendant nor the

witnesses at the scene indicated that a gun was involved in the altercation.

Detective Cedric Green testified that when he arrived at the crime scene officers

were holding the Defendant as a suspect. The Defendant was taken to the police

department where he was advised of his rights at 11:00 p.m. The Defendant signed

a rights form that was introduced as S-1. The Defendant’s transcribed statement was

introduced as S-2. In his statement, the Defendant told Detective Green that he was

fighting the victim in a crowd when the victim stopped and said someone stabbed him

and ran off. The Defendant stated he did not have a knife and did not see anyone else

with a knife. Detective Green did not notice any injuries or blood on the Defendant.

He testified the Defendant did not complain of any injury during either of his

interrogations.

The Defendant was released and arrested later the same night. Detective Green

testified he reread the Defendant his rights and questioned him at 3:40 a.m. The rights

form was introduced as S-4. The second transcribed statement was introduced as S-5.

Detective Green testified as to what the Defendant told him:

A. He advised that he did, in fact, have a knife. He had gone into the
house, and picked up the knife out of the kitchen because one of the --
one boy had came to his house and told him that -- that -- that [T.]
wanted to fight him. So he picked up a knife, and then he went outside.

Q. Did he indicate, in that second statement, that had[sic] in fact
stabbed the victim, [T.G.]?

A. He stated that he, when him and [T.] started fighting, he pulled out
the knife, and turned around, and [T.] ran into the knife.

7

The Defendant stated the knife was in his backyard.

After obtaining permission from the Defendant’s father, the backyard was

searched and the bloody knife recovered. Detective Green testified that they searched

the house and did not find a bloody towel or anything else with blood on it.

As a former juvenile detective, Detective Green testified that he did not recall

the Defendant being involved in any kind of trouble before this incident. After

running a criminal background check, Detective Green stated the Defendant had a

prior arrest for a “traffic ticket or something” and another charge for contempt of

court.

Sergeant Ronald Beeson, crime scene investigator, testified that he took the

photographs of the blood spatters in the road at the scene. He testified that it was not

unusual that there were not any blood droplets from the immediate area of the fight

until about one hundred feet away. He explained that the blood droplets would

depend on what the victim was wearing and the amount of bleeding involved. A

search of the street area did not reveal any weapons. Sergeant Beeson testified that

he went to the hospital and took photographs of the victim’s dead body. He

photographed a knife wound to the chest and a small cut on the victim’s finger.

After obtaining a search warrant, Sergeant Beeson saw a knife by the sidewalk

in the Defendant’s backyard. The knife was photographed and collected as evidence.

Sergeant Beeson identified J-1 as the knife from the backyard. He stated it had a

small amount of blood on it and that he would normally find more blood on a knife

used in a stabbing. A swab of the blood was collected and sent to the crime lab for

DNA testing. Michelle Gaines of the North Louisiana Criminalist Laboratory testified

as a DNA expert that the swabs taken from the bloody knife matched the Defendant

and not the victim.

Sergeant Beeson stated he also collected a second knife from under the stereo

8

in the Defendant’s bedroom. Sergeant Beeson testified that both knives had similar

handles and appeared to be a matched pair. On cross examination, Sergeant Beeson

stated he was not aware of any search for weapons of the bystanders at the scene. He

testified that he did not attempt to match the stab wound on the victim to the bloody

knife in the Defendant’s backyard.

Forensic pathologist George M. McCormick testified the autopsy of the victim

revealed he had two stab wounds to the left side of his chest. One wound was

superficial, but the fatal stab wound was three-and-one-half inches deep and had

entered the heart. Both wounds had one sharp end and one blunt end. McCormick

testified the size and shape of the common kitchen knife (J-1) was consistent with the

wounds on the victim.

McCormick testified as follows:

Q Okay. And I understood -- also, doctor, in this case, a number of
statements had been introduced that the defendant made shortly after his
arrest. And, in one of those statements, the defendant told the arresting
officers that he was engaged in a fight or altercation with the victim, and
that he pulled a knife. And at the time he pulled the knife, the victim
swung at him, and fell into the knife. The defendant, therefore,
suggesting this was an accidental stabbing. Is that story, put forth by the
defendant, consistent with the wounds you found?

A It’s possible to do that if the victim swings, turns to his left and
falls down. Because the wound goes upward, and from his left to his
right.

Q Uh-huh.

A So, if he falls forward, it won’t do that. If he falls to his right, it
won’t do that. He’s got to fall to his left, and be high enough that his
blade can go for approximately three inches up into his chest. He’s got
to fall . . .

Q He’d have to swing, and, . . .

A . . . up and on it.

Q . . . and falling toward the ground, all the way down, . . .

A Correct.

9

Q . . . for that . . .

A Correct.

Q . . . to be consistent. But there’s, if there’s -- is there anything else
you found, with the number of wounds, make the scenario given by the
defendant unlikely.

A Well, it’s hardly like that someone falls on a knife twice. I mean,
which one is first? The shallow one? And then the victim backs up again
and falls on the knife the second time?

Q And harder.

A And harder. Or he falls on the knife, and gets a fatal stab wound
in the heart? And, not having had enough, he backs off, and falls on the
wound, on the knife again, making a shallow wound? It’s not logical.

Q Not logical. Not consistent.

A Not consistent.

On cross-examination, McCormick stated that he would not necessarily expect

the knife that caused the wounds to be covered in blood. But, he stated he would

expect to find some trace of the victim’s DNA on the knife. Assuming the knife the

Defendant had that night had no DNA of the victim on it, McCormick concluded that

the knife either had been cleaned or was not used in the stabbing. He stated it was

possible that someone else stabbed the victim during this fight.

Gary Piper, Sr., the Defendant’s father, testified that on the evening in question,

he allowed his three sons to walk down to Dante Sikes’ house so Sikes could get some

clothes and spend the night. He testified his son was wearing maroon Nike shorts and

a white T-shirt. The shorts he identified were introduced as D-3. Piper noted the

shorts do not have a pocket on them. He stated he thought his son had a towel around

his shoulders when he left the house. When he returned, he did not have the towel.

When the Defendant returned to his house, he told his father there were a lot of

guys outside trying to jump them. Piper stated he went outside, separated the two

10

groups and sent his sons into the house. He did not see the victim outside. Piper said

he heard one boy say that his son, William, had stabbed the victim, and he

immediately confronted him. He stated William did not have a knife on him and he

explained the only thing he had in his pockets was a pack of cookies. Piper testified

that the Defendant never told him that he stabbed the victim or accidentally stabbed

him.

On cross-examination, Piper admitted the victim was a good kid and a friend

of the Defendant’s. He stated he never saw him in any trouble.

The Defendant’s older brother, Gary Piper, Jr., testified about the earlier

argument between the victim and the Defendant on the day before the stabbing. He

said somebody said Sikes was going to fight the victim. He explained what happened:

A All right, so, it’s, it’s me, myself, Gary, Lil’ William, and Dante.
We were going to shoot basketball. So [T.], [T.] asked Dante, “Did you
say you was going to knock me out, or you supposed to have knocked
me out?” [T.], I mean, Dante said, “Noh.” And then, before we know
it, they got into an altercation. And, all of a sudden, they start fighting.
And I’m trying to get to it to break it up. But, before I get to it, my little
brother grabbed [T.], and pushed him back, you know what I’m saying,
and I gets in between of them. And, then, Lil’ Gary holding [T.] back,
like this. [T.] knocks his arm down, and so they getting in each other
face. They having words. So I, I mean, we done separated them. So we
go on about our business, and they went about their business. So that
was the first altercation.

Piper Jr. testified that as he and the Defendant were breaking up the situation

between Sikes and the victim, the Defendant and the victim began arguing. The

argument ended without incident. The next morning, the victim was at their house

playing a video game. Piper Jr. testified that after he left somebody must have told

the victim that the Defendant wanted to fight him. Later that day, the victim asked

Piper Jr. if the Defendant wanted to fight him. Piper Jr. stated he told him no, that his

brother did not say that. Piper Jr. testified that everything was fine and nothing was

supposed to happen.

11

Later that same day, Piper Jr., William King, Sikes, and the Defendant were

walking down the street when they saw about fifteen to twenty guys by Dunbar’s

house. As they passed by on their way home, the victim asked the Defendant if he

was ready to fight now. Piper Jr. said he was trying to tell the Defendant to head to

the house when the Defendant took off his hat, beads, and towel. He stated the

Defendant threw the towel on the ground. Piper Jr. testified he was going to let them

fight to get it over with. The two “squared up” to fight, and a large crowd gathered

around them in the street. Piper Jr. stated the two fought for about twenty seconds and

suddenly the victim ran off and everyone said he had been stabbed. He testified he

did not see the Defendant with a knife, nor did he see him stab the victim. Piper Jr.

testified the Defendant was wearing a white T-shirt and maroon shorts.

On cross-examination, Piper Jr. stated that when the victim and the Defendant

fought there was no one else within arms’ length of the victim. He testified the rest

of the crowd was standing about twelve to fifteen feet away. He testified that he had

never seen the two knives that were recovered from his house.

William King, the Defendant’s other brother, testified that he saw the fight and

heard the victim say he was stabbed, but he did not see the stabbing. He testified he

did not see the Defendant with a knife. King testified that after the stabbing,

Roschund wanted to fight him so he reached into his pocket and pulled out a pack of

cookies. He testified he told Roschund “If you think I got a knife, you can come on

and run up, I’ll cut you.” He described the scene as mass confusion, with other fights

going on as well.

On cross-examination, King stated both he and Sikes were standing near the

Defendant during the fight. He testified the rest of the crowd was about ten to twelve

feet away. King testified the Defendant told him he thought he stabbed the victim and

killed him.

12

The Defendant testified that he had a knife the night of the stabbing. The

Defendant had been at Sikes’ house; when he left, he had a knife, plate, and fork he

was taking home with him. On his way home, he encountered the victim who asked

him if he wanted to fight. The Defendant testified that he lied and said he was high

to avoid the fight. He admitted he had a white hand towel around his neck that night.

He had on red Nike shorts, a white T-shirt, a straw hat and beads around his neck.

The Defendant said he had the knife and fork in his hand when he was walking down

the street. He testified that when he left his yard, he took his hat off, his chain off, and

threw the knife down with them. The Defendant stated he and the victim began

fighting, with the victim hitting him first. He testified he hit the victim, but did not

have anything in his hand. After the victim was stabbed, the Defendant picked up his

hat and hurriedly grabbed the knife by the blade and went home. The Defendant

testified he nicked his hand and got blood on the knife. He identified J-1 as the knife

he had that night. He stated the victim was nearby and told him he was bleeding and

it confused him because he saw blood on the knife and had not known at that time that

he had cut himself. The Defendant testified he then threw the knife in his backyard.

He denied wiping or cleaning the knife. He stated he was not trying to injure the

victim in the fight, and thought it would all blow over in a week or two and they

would be friends again.

The Defendant stated he originally told police he did not have a knife during

the fight. A few hours later he told police the victim fell onto his knife. He testified

as follows:

Q Why did you tell the detective that?

A Because that was the best scenario I could come up with. He kept
on screaming and hollering at me, telling me I had the knife. He said I
did stab him. So I made up a story for him. said, “If that’s what you
want to hear, that’s what I’m going to tell you.” So I made up him a little
story, right fast. And, then, after that -- the only reason I made up a

13

story, from the get-go, is because he told me they was going to charge
me with first degree murder. He said, with first degree murder, you
cannot get no bond, and, therefore, you got to sit in jailhouse until your
court date come.

Q Okay. And you told him?

A Yeah, that’s when I made up that little story for him.

Q Okay, what, what story was that?

A I told him that I had a knife. I told him [T.] hit me in the back of
my head, so then I -- I said I had a knife in my hand. And when he, I
turned around, he was in a motion of trying to hit me again, and he
stabbed himself.

Q Okay. Did you stab [T.] that night?

A No, sir. I didn’t have the knife in my hand.

Q Okay. Did you see anyone else stab him?

A No, sir.

He stated he lied to police because they were yelling at him.

The Defendant testified he told his brother, William, that he did not know what

happened. He said he only told him he had a knife, and did not know whether or not

he told him that he probably stabbed and killed the victim. The Defendant testified

that he did not stab the victim. He stated he did not have the knife in his hand when

the fight began. The Defendant testified that the only other person near enough to stab

the victim was Sikes. He also denied threatening anyone after the fight.

The Defendant has requested a sufficiency review, contending the evidence

established the defense of justification.

In considering questions of sufficiency of the evidence, a
reviewing court must consider the evidence presented in the light most
favorable to the prosecution and consider whether a rational trier of fact
could have concluded that the essential elements of the offense were
proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers
to rational credibility and evidentiary determinations of the trier of fact.
State v. Marcantel, 00-1629 (La. 4/3/02), 815 So.2d 50.

14

State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ
denied, 03-2913 (La. 2/13/04),867 So.2d 686.

The Defendant was charged with second degree murder, but the trial court

found him guilty of manslaughter. Louisiana Revised Statutes 14:31 provides, in

pertinent part:

A. Manslaughter is:

(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 would have cooled, at the time
the offense was committed; or

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

(a) When the offender is engaged in the perpetration or attempted
perpetration of any felony not enumerated in Article 30 or 30.1, or of any
intentional misdemeanor directly affecting the person; or

The trial court found the Defendant guilty, stating:

The overwhelming evidence is here. And it indicates that Gary
Anderson stabbed and killed [T.G.]. I can’t see it any other way. It is
unreasonable to assume anything else. And, as the trier of fact in this
case, I have been shown beyond a reasonable doubt that that’s what took
place. And I do believe that this was cooking a long time. This was
cooking all that day, for sure. And it was almost inevitable that [T.] and
Gary were going to meet. And like someone testified they said, “We
might as well go ahead and get it over with.” The problem is, rather than
a fist fight, someone was armed with a dangerous weapon.

And it is this Court’s belief, based upon the overwhelming
evidence that was presented here, today, Gary Anderson had the knife.
Gary Anderson stabbed [T.G.] And, for that reason, I’ll ask the defendant
to stand.

The trial court pronounced the Defendant guilty of manslaughter.

The Defendant contends that a manslaughter killing could be justified. The

Defendant argues that the State had to prove that he did not have to act in self-defense

citing La.R.S. 14:20(A)(1) as providing that a killing is justified “by one who

15

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.” The

Defendant contends the evidence shows that he had earlier refused to fight, but that

the victim threatened him and started the fight by stopping him in the street and

punching him. He stated the victim was the aggressor and that he should not have

been required to wait for the victim to finish his violent attack upon him.

We note the Defendant infers that he reasonably believed he was in imminent

danger of receiving great bodily harm in the fight. However, the Defendant does not

argue that killing the victim was necessary to save himself from that danger. The

evidence at trial showed the victim provoked the fight and threw the first punch.

Despite that, there was no evidence at trial that the stabbing of the victim was

justified. Witnesses at the scene described the fight as brief, with only a few punches

being thrown before the stabbing occurred. There was no testimony at trial that the

victim was armed with a weapon. Four witnesses testified that the victim was not

armed with any weapon that night, nor did they know him to carry a weapon. Most

significantly, the Defendant denied he stabbed the victim, and therefore, presented no

evidence that the stabbing was in self-defense.

We find the trial court clearly chose to believe the testimony of other witnesses

over that of the Defendant who denied that he stabbed the victim. The Defendant

recanted his pre-trial confession where he had stated the stabbing was an accident

when the victim fell into his knife. It is the role of the fact finder to determine witness

credibility, and this court should not second-guess those credibility determinations

beyond the sufficiency evaluations under the Jackson standard of review. We find,

based on the evidence presented by the State that a rational trier of fact could have

found the State proved the elements of manslaughter beyond a reasonable doubt, and

in so doing, that the justification defense did not apply. Accordingly, this assignment

16

lacks merit.

DECREE

The Defendant’s conviction is affirmed. The trial court is directed to inform the

Defendant of the correct provisions of Article 930.8 by sending appropriate written

notice to the Defendant within ten days of the rendition of this opinion and to file

written proof that the Defendant received the notice in the record of the proceedings.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS.

17