State of Louisiana v. Michael W. Hood

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-70

STATE OF LOUISIANA

VERSUS

MICHAEL W. HOOD

**********
APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT,
PARISH OF VERNON, NO. 73309, DIV. B
HONORABLE JOHN C. FORD, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Sylvia R. Cooks, J. David Painter, and David E. Chatelain,*
Judges.

AFFIRMED AS AMENDED.

Mark Kramar, Assistant District Attorney
Thirtieth Judicial District
P.O. Box 1188
Leesville, LA 71446
Counsel for Appellee:
State of Louisiana

Peggy Sullivan, Attorney at Law
Louisiana Appellate Project
P.O. Box 2806
Monroe, LA 71207-2806
Counsel for Defendant/Appellant:
Michael W. Hood

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

PAINTER, Judge.

Defendant, Michael “Mikey” W. Hood, appeals his conviction for

manslaughter, a violation of La.R.S. 14:31. For the following reasons, we affirm

Defendant’s conviction but amend the sentence to delete the denial of parole

eligibility and instruct the trial court to make an entry into the minutes reflecting this

amendment.

FACTUAL AND PROCEDURAL BACKGROUND

Early in the morning of September 6, 2007, after an evening of drinking and

ingesting various drugs, the victim, Aaron Bann, attacked Defendant with his fists.

Defendant slashed the victim on the leg with a knife and stabbed him once in the

chest. The victim died within minutes as a result of the stab wound to the chest.

Defendant was charged with second degree murder, a violation of La.R.S.

14:30.1, on October 22, 2007. A jury trial commenced on April 13, 2009, and on

April 20, 2009, Defendant was found guilty of the responsive verdict of

manslaughter, a violation of La.R.S. 14:31. On June 24, 2009, Defendant filed a

“Motion for Post Verdict Judgment of Acquittal” and “Motion for New Trial.” The

motions were heard and denied on June 24, 2009. On that same date, Defendant was

sentenced to fifteen years imprisonment, without the benefit of parole, probation, or

suspension of sentence. The State further informed the trial court that it had filed a

habitual offender bill against Defendant under a different docket number. This matter

was heard in June of 2010 and taken under advisement by the trial court. At the time

of this appeal, the disposition of the habitual offender bill was still pending in the trial

court.

Defendant filed a “Motion to Reconsider Sentence,” on July 24, 2009, and the

motion was denied on the same date without written reasons. Defendant has now

perfected a timely appeal, wherein he asserts that the State failed to meet its burden

of proving that his actions were not self-defense and that the sentence imposed was

an excessive sentence under the circumstances of the case. For the following reasons,

we find no merit in these argument and affirm Defendant’s conviction.

1

DISCUSSION

Errors Patent

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

errors patent on the face of the record. There is one error patent concerning the

legality of the Defendant’s sentence.

Defendant received an illegal sentence. The trial court imposed Defendant’s

sentence without the benefit of parole, probation, or suspension of sentence. In doing

so, the trial court stated that “the statute” did not require this but noted that there was

“another statute that says that will have to be served without benefit of parole,

probation or suspension of sentence.”

Under the portion of La.R.S. 14:31 applicable to Defendant’s case, suspension

of sentence, probation, and parole are not restricted. Although La.Code Crim.P. art.

893 prohibits suspension of sentence and probation for a conviction of manslaughter,

it does not prohibit parole. See La.R.S. 14:2 (B)(4). Thus, it was improper for the

court to order Defendant’s sentence to be served without the benefit of parole.

Accordingly, we amend Defendant’s sentence to delete the denial of parole eligibility,

and the trial court is hereby instructed to make an entry in the minutes reflecting the

change. State v. Batiste, 09-521 (La.App. 3 Cir. 12/9/09), 25 So.3d 981, and State v.

Levy, 08-1467 (La.App. 3 Cir. 6/10/09), 12 So.3d 1135.

Next, an issue regarding the sentencing delay set forth in La.Code Crim.P. art.

873 requires discussion. Louisiana Code of Criminal Procedure Article 873 requires

a sentencing delay of twenty-four hours after the denial of a motion for new trial or

motion in arrest of judgment unless the defendant expressly waives the delay or

pleads guilty.

This court has found an express waiver occurs when defense counsel responds

affirmatively when the trial court asks if he is ready for sentencing. See State v.

Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La.

1/31/03), 836 So.2d 59; and State v. Marcotte, 01-1586 (La.App. 3 Cir. 5/15/02), 817

So.2d 1245, writ denied, 02-1687 (La. 2/7/03), 836 So.2d 96.

2

On June 24, 2009, Defendant’s attorney filed a “Motion for New Trial” and a

“Motion for Post Verdict Judgment of Acquittal.” On that same day, the motions

were taken up and were denied immediately prior to the court proceeding with

sentencing. After the motions were denied, the trial court did not question the parties

as to whether they were ready to proceed, and there was nothing said regarding

waiving the delay provided in La.Code Crim.P. art. 873. Accordingly, there was not

an express waiver of the twenty-four-hour delay between the denial of the motion for

new trial and sentencing, as required by La.Code Crim.P. art. 873. However, for the

reasons discussed below, the facts of this case support an implied waiver of the

La.Code Crim.P. art. 873 delay.

In State v. C.S.D., 08-877 (La.App. 3 Cir. 2/4/09), 4 So.3d 204, this court

discussed the pertinent case law and found an implied waiver of the La.Code Crim.P.

art. 873 delay under similar circumstances:

In State v. Dronet, 97-991 (La.App. 3 Cir. 11/4/98), 721 So.2d
1038, this court strictly applied Article 873, finding that an
announcement, “We’re ready,” for sentencing did not constitute a
waiver. The Dronet court, relying on State v. Dauzat, 590 So.2d 768
(La.App. 3 Cir.1991), writ denied, 598 So.2d 355 (La.1992), which was
based on State v. Augustine, 555 So.2d 1331 (La.1990), found that the
failure to abide by the delay requires a sentence to be vacated simply
because the defendant challenged his sentence on appeal. See State v.
Jason, 01-1428 (La.App. 3 Cir. 7/10/02), 820 So.2d 1286.

However, in the majority of cases, this court has found an
“implied waiver” analysis to be appropriate. See State v. Schmidt,
99-1412 (La.App. 3 Cir. 7/26/00), 771 So.2d 131, writ denied, 00-2950
(La.9/28/01), 798 So.2d 105, cert. denied, 535 U.S. 905, 122 S.Ct. 1205,
152 L.Ed.2d 143 (2002).

In State v. Giles, 04-359, pp. 27-29 (La.App. 3 Cir. 10/6/04), 884
So.2d 1233, 1251-[52], writ denied, 04-2756 (La.3/11/05), 896 So.2d
62, this court found an implied waiver of the La.Code Crim.P. art. 873
delay, explaining in pertinent part:

Defense counsel voiced no objection when
sentencing was taken up immediately after the denial of the
motion for post verdict judgment of acquittal and the
motion for new trial. After arguments were presented by
the State, defense counsel argued in support of a lenient
sentence, filing letters submitted on Defendant’s behalf and
citing to the contents of one letter in particular. Defense
counsel also referred to the sentencing range and the period
of time already spent in jail by the Defendant. Although
the entire sentence could be imposed without benefit of

3

parole, probation or suspension of sentence, defense
counsel argued that only the minimum (two years) should
be imposed without these benefits.

When giving its reasons for the sentence imposed,
the trial court noted that it had sat through the trial in the
matter, had read the pre-sentence investigation report and
had read the letters and correspondence submitted. After
citing both aggravating and mitigating factors, the trial
court sentenced Defendant to a lower range sentence of
seventeen years at hard labor, with the first two years to be
served without benefits.

In State v. Taves, 02-709 (La.App. 3 Cir. 1/15/03),
846 So.2d 1, affirmed in part, reversed in part on other
grounds, 03-0518 (La.12/3/03), 861 So.2d 144, this court
found a waiver of the twenty-four-hour delay, noting that
defense counsel failed to voice an objection even though he
was clearly aware that the sentencing was scheduled to be
taken up the same day the motion for new trial would be
heard. Additionally, we noted that after the trial court
denied the motion for new trial and told the defendant to
come up for sentencing, defense counsel declared his intent
to present evidence at the hearing. In addition to
presenting evidence, defense counsel argued for a
suspended sentence and stated he had reviewed the PSI and
discussed it with the defendant. Finally, this court noted
that defense counsel did not raise as error the trial court's
failure to delay sentencing and did not allege prejudice.
Although this court found an implied waiver of the article
873 delay, we found the sentences imposed were excessive
and remanded for resentencing. In response to the State’s
application for review, the supreme court reversed this
court’s finding of excessiveness and reinstated the
sentences without any mention of the trial court’s failure to
abide by the delay required by La.Code Crim.P. art. 873.
(See also State v. Schmidt, 99-1412 (La.App. 3 Cir.
7/26/00), 771 So.2d 131, writ denied, 00-2950
(La.9/28/01), 798 So.2d 105, cert. denied, 535 U.S. 905,
122 S.Ct. 1205, 152 L.Ed.2d 143 (2002), for a thorough
discussion of the jurisprudence regarding express and
implied waivers of the twenty-four-hour delay period
required by La.Code Crim.P. art. 873).

The present case is similar to Taves in that the record
contains no colloquy between the trial court and the
Defense regarding its readiness for sentencing. However,
as in Taves, defense counsel presented arguments to the
trial court in support of a lenient sentence and the trial
court supported the sentence imposed with ample reasons.
Unlike the defense counsel in Taves, the defense counsel
in the present case did not present evidence at the
sentencing hearing. Additionally, the record in the present
case is not as clear as the record in Taves as to defense
counsel’s knowledge that sentence would be imposed
immediately after the disposition of his motion for new
trial and motion for post-verdict judgment of acquittal.

4

However, Defendant here makes no claim of prejudice
because of the failure to abide by the delay. Considering
these facts, we find Taves analogous and find an implied
waiver occurred in the present case.

Recently, in State v. Brannon, 07-431 (La.App. 3 Cir. 12/5/07),
971 So.2d 511, writ denied, 07-2465 (La.5/9/08), 980 So.2d 689, this
court found an implied waiver of the La.Code Crim.P. art. 873 delay
where the defendant did not request a continuance of the sentencing and
did not object to proceeding with sentencing. The defense presented no
evidence at the hearing, but interrupted the trial court in setting forth its
reasons for sentencing to request it not read a portion of the reasons
based upon evidence not proven at trial. On appeal, the defendant did
not assign as error the trial court's failure to abide by the La.Code
Crim.P. art. 873 delay, and he did not allege prejudice.

In the present case, after the verdict was rendered, the trial court
ordered a presentence investigation and set the sentencing hearing for
January 7, 2008. The minute entries provide that there were two
continuances of the sentencing hearing.

There is nothing in the record to indicate that defense counsel for
the defendants were unaware of the date sentencing was to be taken up.
Following denial of the motions for new trial and post verdict judgment
of acquittal, defense counsel did not request a continuance of the
sentencing and did not object to proceeding with sentencing. At the
sentencing hearing, the court recessed to allow the parties to review the
letters he had received. Additionally, a review of the transcript indicates
defense counsel reviewed the presentence investigation reports. At the
sentencing hearing, the defense called Russell Castille, the coordinator
for pre-trial monitoring, who stated that the defendants were in full
compliance with their pre-trial monitoring. Moreover, the defendants’
attorneys submitted on behalf of each of the defendants sentencing
memorandums. In his brief to this court, defense counsel does not
assign the trial court’s failure to delay sentencing as error and he does
not allege any prejudice as a result of the error. Furthermore, the trial
court supported the sentences with ample reasons. Consequently we
find the facts in this case support implied waivers of the delay required
by La.Code Crim.P. art. 873.

Id. at 209-11.

In the present case, by order dated May 7, 2009, sentencing was set for May 20,

2009. On May 18, 2009, defense counsel filed a motion to continue sentencing on

the ground that he needed more time in which to submit additional materials. On that

day, sentencing was continued until June 24, 2009. As noted above, Defendant filed

a motion for a new trial and a motion for post verdict judgment of acquittal on June

24, 2009; both motions were addressed and denied, and the trial court immediately

proceeded to sentencing. The record does not reflect any objection by Defendant or

his attorney to proceeding with sentencing after the denial of the motion for new trial.

5

A comment made by the trial judge indicates that defense counsel submitted a

sentencing memorandum to the court, and the court noted that it received letters from

Defendant and his family and friends. Defendant very briefly addressed the court

prior to sentence being imposed. The trial court supplied ample reasons to support

the sentence. Finally, on appeal, defense counsel does not assign as error the trial

court’s failure to delay sentencing nor does she allege prejudice as a result of the

failure to abide by the delay. Thus, we find that the facts of this case support an

implied waiver of the delay required by La.Code Crim.P. art. 873.

Sufficiency of the Evidence

Defendant argues that insufficient evidence was submitted at trial to sustain a

verdict of manslaughter. Defendant further argues that the State failed to meet its

burden of proving that his actions were not committed in self-defense.

Pursuant to La.R.S. 14:31, manslaughter is defined, in pertinent part, as

follows:

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. . . .

In State v. Alexander, 04-788, pp. 1-2 (La.App. 3 Cir. 11/17/04), 888 So.2d

401, 402, this court held:

When reviewing the sufficiency of the evidence, appellate courts
are controlled by the standard enunciated by the United States Supreme
Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979), and must determine “whether 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. Captville, 448 So.2d 676, 678

6

(La.1984). When a defendant claims that he acted in self-defense, the
State has the burden of establishing beyond a reasonable doubt that he
did not act in self-defense. State v. Brown, 414 So.2d 726 (La.1982).
Defendant argues that the State failed to carry its burden of proof on this
issue. Therefore, we must determine 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 he did not act in
self-defense. State v. Matthews, 464 So.2d 298 (La.1985).

We find that the evidence was sufficient to sustain the responsive verdict of

manslaughter in this case. Defendant does not deny that he inflicted the fatal wound.

At the very least, Defendant committed an aggravated battery during the course of the

fight, a felony not enumerated in Article 30 or 30.1, which would fall within the

statutory definition of manslaughter provided in La.R.S. 14:31(2)(a). See La.R.S.

14:33 and 37(A), the intentional use of force or violence with a dangerous weapon.

In State v. Loston, 03-977 (La.App. 1 Cir. 2/23/04), 874 So.2d 197, writ denied, 04-

792 (La. 9/24/04), 882 So.2d 1167, the victim and Loston got into a fist fight, and

Loston fatally stabbed the victim. While he was charged with second degree murder,

he claimed self-defense, and the jury convicted him of manslaughter. Loston argued

that the evidence was insufficient to sustain the conviction. The first circuit discussed

aggravated battery and aggravated assault, finding that the evidence was sufficient

to sustain the conviction, as follows:

Alternatively, defendant was in the course of committing an aggravated
assault, an intentional misdemeanor directly affecting the person.
Assault is an attempt to commit a battery. La. R.S. 14:36. Aggravated
assault is the attempt to commit a battery while armed with a dangerous
weapon. La. R.S. 14:37 A. Thus, defendant’s conduct also constituted
manslaughter pursuant to La. R.S. 14:31 A(2)(a). See State v.
Montgomery, 499 So.2d 709, 719 (La.App. 3rd Cir.1986), writ denied,
502 So.2d 106 (La.1987). Where, as here, there is evidence that
defendant had specific intent to commit a felony or an intentional
misdemeanor not enumerated in Article 30 or 30.1, and a death results
in the course of commission of the offense, the evidence is sufficient to
support a manslaughter conviction, even if the mortal injury inflicted
was accidental. See State v. Jordan, 00-282, pp. 14-15 (La.App. 5th
Cir.10/18/00), 774 So.2d 267, 275, writ denied, 00-3329 (La.11/9/01),
801 So.2d 363; State v. Clark, 97-0359, p. 8 (La.App. 4th Cir.10/7/98),
720 So.2d 134, 138, writ denied, 99-0330 (La.6/18/99), 745 So.2d 617;
State v. Major, 96-1214, p. 9 (La.App. 4th Cir.3/4/98), 708 So.2d 813,
818-819, writ denied, 98-2171 (La.1/15/99), 735 So.2d 647. Thus, we
are satisfied that there was sufficient evidence to support defendant’s

7

conviction for manslaughter, unless the homicide was justifiable because
committed in self-defense.

Id. at 203-04.

Defendant argued at trial that he was defending himself when he stabbed the

victim. He argues in brief to this court that the jury erred when it convicted him of

the responsive verdict of manslaughter because the State did not offer sufficient

evidence to prove that his actions were not justified. Louisiana Revised Statutes

14:20(A)(1) provides that a homicide is justifiable “[w]hen committed in self-defense

by one who reasonably believes that he is in imminent danger of losing his life or

receiving great bodily harm and that the killing is necessary to save himself from that

danger.”

Defendant points to the testimony of the eyewitnesses and contends that their

testimonies established at trial that, after the victim consumed a large amount of

alcohol and drugs, he was out-of-control and viciously attacked Defendant and that,

consequently, his belief he was in imminent danger of great bodily harm, or even

death, was reasonable.

[W]hen an accused raises self-defense, the burden is on the State to
prove, beyond a reasonable doubt, that he did not act in self-defense.
“The determination of a defendant’s culpability focuses on a two fold
[sic] inquiry: 1) whether, from the facts presented, the defendant could
have reasonably believed his life to be in imminent danger, and 2)
whether deadly force was necessary to prevent the danger.” State v.
Mills, 04-489, p. 7 (La.App. 5 Cir. 3/29/05), 900 So.2d 953, 959, writ
denied, 05-1470 (La.1/13/06), 920 So.2d 235. “Factors to consider in
determining whether a defendant had a reasonable belief the killing was
necessary are the excitement and confusion of the situation, the
possibility of using force or violence short of killing and the
Defendant’s knowledge of the assailant’s bad character.” State v.
Nelson, 34,077, p. 6 (La.App. 2 Cir. 12/6/00), 775 So.2d 579, 584.

While there is no requirement that the accused must retreat from
the confrontation, the possibility of escape is a factor to be considered
in determining if the accused had a reasonable belief that the use of
deadly force was necessary to avoid the danger. State v. Woodhead,
03-1036 (La.App. 5 Cir. 1/27/04), 866 So.2d 995, writ denied, 04-598
(La.7/2/04), 877 So.2d 144.

State v. Johnson, 06-1263, pp.8-9 (La.App. 3 Cir. 2/7/07), 948 So.2d 1229, 1234-35,

writs denied, 07-467 (La. 10/12/07), 965 So.2d 398 and 07-509 (La. 10/12/07), 965

So.2d 399.

8

Two Vernon Parish Sheriff’s Office deputies, Todd Scott and Jamie Johnson,

witnessed the beginning of the fight in the parking lot of the Spot Lounge. Deputy

Scott testified that he and Deputy Johnson were parked catercorner to the lounge

watching for a patron for whom they had an arrest warrant. Deputy Scott was looking

at the front door of the lounge with binoculars. At approximately 1:30 to 1:45 a.m.,

a group of people, including the victim, exited the lounge, followed shortly after by

Defendant and two females. The victim and Defendant had words. They then all

went back into the lounge. Within a few minutes, Defendant and the two females

came out of the lounge and walked a short distance to a car, a Chevy Malibu, and

stood by the car. The victim and his friends came out of the lounge. Deputy Scott

testified that the victim was yelling and pointing his finger at Defendant and was

being held back by a couple of his friends. Defendant was pointing and yelling back

at the victim. Deputy Scott said that when he saw the victim run around the car and

up behind Defendant swinging, he dropped the binoculars and that he and Deputy

Johnson jumped into their unit and proceeded directly to the lounge.

By the time the deputies arrived at the lounge, which took no more than a few

minutes, the victim was laying on the ground, and the Chevy Malibu was backing out

of the parking space. Deputy Scott testified that everyone was “yelling and screaming

and pointing–pointed at us that–stop that car.” Deputy Johnson testified that he

ordered the driver of the Chevy Malibu to pull back into the parking space. Two

females were in the front seats, and Defendant was in the back seat. The deputy

testified that when Defendant got out of the car, he said that he “didn’t have no

dealings with that guy on the ground over there.”

The deputies testified that the victim was unresponsive, and, after the

paramedics arrived and determined that the victim had been stabbed, they searched

the Chevy Malibu for a possible weapon but found nothing that could have caused

the wound inflicted on the victim.

Ronald Wiggins, the lead detective with the Vernon Parish Sheriff’s Office,

testified that a few days later, however, one of the females who was with Defendant

9

admitted that she hid the knife on her person and gave it to someone to hide the next

day. The knife was retrieved shortly thereafter from where it had been stashed in the

woods.

Detective Wiggins conducted a taped interview with Defendant that was played

for the jury. The interview may be summarized as follows: Two girls, Jennifer

Young and a friend, whom he did not know, picked him up at his home a little after

midnight and they went to the Spot Lounge. There they had a few drinks, played a

little pool, and then decided to leave. As they walked out of the lounge, “all the dudes

jumped me. . . .They knocked me in the head. I don’t even–still don’t remember

nothing.” Defendant told the deputy that four or five “dudes” jumped him. He had

no idea who they were or why they jumped him. He said they knocked him “plum

cuckoo.” He did not remember stabbing anyone and claimed he did not have a knife.

He told the detective that the next thing he remembered was being at the police

station.

Jennifer Young testified that she has known Defendant for several years and

that he was a good friend of her fiancé. On the night of the fight, she and a friend,

Heather Clemons, went out for a girls’ night-out in Clemons’ Chevy Malibu. They

had already visited a few bars when Defendant began calling and asking her to come

and get him. He called several times. Shortly after they had arrived at the Spot

Lounge at approximately 12:30 a.m., Defendant called again; the two girls picked him

up and returned to the Spot Lounge. She testified that they had a few more drinks.

She did not see Defendant have any arguments or confrontations with anyone inside

the lounge. When the bar closed, she walked outside. Defendant and Clemons had

already left the lounge. As she walked out, she saw Defendant fighting with

someone. “They were just kind of in this bear hug.” She said she went up to the two

men and pulled on Defendant’s shirt and told him “to come on,” but he pushed her

away. She went over to the car where Clemons was standing and got into the car.

Within a few minutes, Defendant jumped into the back seat and told us “you need to

get out of here.” He then tossed a knife into the front seat and told her to get rid of

10

it. She tucked the knife into the waistband of her pants. She said that Clemons tried

to back the car out of the parking space, but the police made them stop and get out of

the car. The next day she gave the knife to her brother-in-law and told him to hide

it. However, the following day, she admitted that she had hidden the knife and told

the police to whom she had given the knife.

Lelin Porter, a friend of the victim, testified that Defendant silently but

insidiously provoked the victim by smiling at him with “a grill1 in his mouth.” He

stated that he was out bar hopping with the victim, a few other friends, and the

victim’s uncle, Raymond Bann, on the night of the fight. They arrived at the Spot

Lounge around 1:45 a.m. Porter testified that he did not know Defendant prior to that

night, but that Defendant kept grinning at the victim in a way that meant “have it on

your mind because I’m going to get you.” He testified that he and the victim went

outside the bar “[t]o get away from the drama,” and Defendant came out while

speaking on his phone and stated “yeah, I just called my boys and they’re coming up

here to beat y’all up and Aaron, you know, me and Aaron.” He testified that “they”

had to calm the victim down because he wanted to fight with Defendant right there

and then. He said that Defendant kept talking to the victim, cussing at him, and

finally, suddenly, they ran toward each other and “clashed.” They fell to the ground

with the victim on top. Porter testified that he could see a knife clipped to

Defendant’s pants, that Defendant then pulled the knife, and that he saw Defendant

“jug two times.” He said that he ran over and attempted to help the victim, but

Defendant cut him on the arm. While Porter testified that the victim did not carry a

knife, he stated that the victim had been arrested for fighting on other occasions. He

also described the victim as being six-foot-one-inch tall and weighing approximately

one hundred eighty pounds.

Doctor Shawn Granger, an orthopedic surgeon and coroner for Vernon Parish,

examined the victim’s body and documented his death. However, James Taylor, a

1
Porter interpreted “grill” as meaning that gold teeth, when flashed, signaled that the fight
was on.

11

forensic pathologist at Louisiana State University, performed the autopsy on the

victim. Doctor Taylor testified that the four, almost five, inch deep stab wound to the

chest was the cause of the victim’s death. He also testified that, according to the

toxicology report, the victim had a blood alcohol content of .159, a very high level

of alprazolam, otherwise known as Xanax, and tetrahydocannibinol (marijuana), in

his system. While both doctors testified that Xanax normally acts as a “disinhibitor”

and a relaxant, they both agreed that a “paradoxical” effect could take place when

high amount of Xanax, like that found in the victim’s system, is coupled with other

drugs, such as alcohol and marijuana, and cause aggressive behavior as opposed to

relaxation.

The victim’s uncle, Raymond Bann, testified that he accompanied the victim

to the Spot Lounge around 1:15 a.m. to wait for the victim’s girlfriend to get off work

from the strip bar next door to the lounge. They had been drinking at various bars

before arriving at the Spot Lounge. He remembered seeing Defendant in the lounge,

but he did not know him prior to the morning of the fight. At first he stated that he

did not see any transactions between the victim and Defendant inside the bar.

However, later he testified that inside the lounge Defendant provoked the victim by

staring at him. Around 1:45 a.m., he went outside and sat in the car for about ten

minutes because he was getting “pretty drunk” and had also ingested Xanax.

Although Bann testified that he kind of “blacked out” in the car and did not see the

beginning of the fight, he remembered seeing Defendant walk out of the lounge and

stand by a car. He remembered seeing “Big Mike” Kunzel holding on to the victim.

The next thing he remembered was seeing his nephew stumble and grab a girl around

the waist and then fall.

“Big Mike” Kunzel testified that he had known the victim for about six months,

that they had become good friends and often partied together. On the night of the

fight, he was driving home around 1:30 a.m. when he saw Raymond Bann’s car

outside the Spot Lounge and decided to stop. He said that as soon as he walked into

the lounge he could feel tension. He said he knew most of the people in the lounge,

12

except for Defendant. He stated that outside of the lounge he held the victim back

from fighting with Defendant. Once the victim calmed down they all went back inside

the lounge, but the victim “was going off at the mouth.”

Kunzel’s testimony indicated that, when they all went back outside, the victim

began saying “like, what you looking at” – trying to say it in different terms. “I’ll

beat you up,” things like that. Kunzel said that Defendant was walking back and

forth between two cars. When the victim assured Kunzel that he was not going to do

anything, Kunzel let go of him and turned to talk to someone, and suddenly heard a

“punch.” He turned and ran around to the car where Defendant had been standing.

Defendant was on the ground with the victim standing over him, swinging down at

him, “[l]ike jabbing straight down, up and down.” When asked what Defendant was

doing, Kunzel said, “defending himself.” He testified that he heard the police sirens

and turned away, and when he turned back, the victim was laying on the ground. He

stated that he thought the victim had overdosed because the victim had told him

earlier that he had taken seven Xanax pills that night. Finally, Kunzel testified that

he was not at all surprised by the fight, stating that it was not unusual for the victim

to get into fights.

Heather Urban, who was a bartender at another bar, was at the Spot Lounge the

morning of the fight. She stated that she did not know Defendant prior to the fight,

but she knew the victim, who had visited her bar almost every night for the past

several months. She saw no aggression between the victim and Defendant inside the

lounge. She stated that when the lounge closed, she walked outside and saw the

victim “[b]eating the crap out of him, [Defendant],” with “[h]is fists and his feet.”

She said that when she turned away and was getting into her car, the victim grabbed

her back, then fell to the ground. She thought he had overdosed because he was

drinking a lot and had “taken a bunch of pills.”

As noted, Defendant argues that there was no evidence submitted which

demonstrated that he had any other option but to defend himself with deadly force.

He points to the fact that the victim was noted for fighting and had consumed so

13

much alcohol and Xanax that his friends all assumed that he had overdosed. The

State, however, argues in brief that Defendant cannot avail himself of the affirmative

defense of self-defense pursuant to La.R.S. 14:21, which provides:

A person who is the aggressor or who brings on a difficulty
cannot claim the right of self-defense unless he withdraws from the
conflict in good faith and in such a manner that his adversary knows or
should know that he desires to withdraw and discontinue the conflict.

While the State tentatively admits Defendant may not have been the

“aggressor” in this case, the State argues that he was the one who brought the

“difficulty” upon himself by flashing his “grill” at the victim and staring at him in

such a way as to mean that he was going to get the victim. The State further points

to Porter’s statement that when the “drama” got so bad, he and the victim went

outside, and then Defendant came outside and told them he had just called his boys

and “they’re coming up here to beat y’all up.”

Of all the testimonies, Porter’s was most equivocal. According to Porter, he

was at the victim’s side every step of the way, even though the victim’s uncle barely

remembered Porter as being there. Further, Porter stated that he had to help hold the

victim back from fighting, although Kunzel testified that the victim’s uncle had asked

him to hang on to the victim because the uncle was too intoxicated to do so himself

and that he restrained the victim alone. Moreover, Porter testified that the two men

ran at each other and “clashed” together. However, Deputy Scott, who was watching

from across the street, testified that the victim escaped from being held back when

everyone looked away, ran around the cars and up behind Defendant, and swung at

him from behind. Kunzel testified that the victim ran up on Defendant and caught

him off guard. Finally, Deputy Johnson testified that Porter went to the hospital after

the ambulance left and raised such a commotion after he was not allowed to see the

victim that he was arrested for disturbing the peace.

There was no indication that the victim and Defendant men knew each other.

None of the victim’s friends admitted knowing Defendant prior to this incident.

There was no testimony or any indication that Jennifer Young or Heather Clemons

14

knew the victim. There was no testimony given that hinted at what the animosity was

between the two men, other than Porter’s testimony that Defendant smiled

menacingly at the victim and Raymond Bann’s testimony that Defendant stared at the

victim. On the two occasions that the two men were outside the lounge together,

testimony established that they were each exchanging words and that it was the victim

who had to be held back to keep him from attacking Defendant. We find that there

was insufficient evidence to establish who was the aggressor or who caused the

difficulty in this situation, thus precluding Defendant from successfully arguing self-

defense.

As noted above, factors to be considered when analyzing a claim of self-

defense and whether a defendant had a reasonable belief that the killing was

necessary are the excitement and confusion of the moment, the possibility of force or

violence short of killing, the defendant’s knowledge of the character of the victim,

and whether escape was possible. Moreover, the absence of a weapon from the

victim is a critical element of the prosecutor’s proof. State v. Mincey, 08-1315

(La.App. 3 Cir. 6/3/09), 14 So.3d 613. In Mincey, the defendant was charged with

second degree murder after he repeatedly bumped against the victim as he walked

into and out of the bar. He argued self-defense, and the jury convicted him of

manslaughter. Outside the bar, the victim and two friends confronted the defendant,

and as the victim swung at him, the defendant pulled a gun and shot him. He argued

that he was backed into a corner and surrounded by the victim’s friends. This court

“recognize[d] that Dejean had two friends with him. Thus, Defendant may have

genuinely felt endangered; further, some level of fear was objectively reasonable”;

however, this court found that “responding to an oncoming punch by shooting the

other person in the chest [was] an excessive response.” Id. at 615-16. Further, it was

noted that the absence of a weapon on the victim was not necessarily dispositive of

the issue.

In the current case, there was no indication of what the problem was between

the two men. Testimony established that all that action took place in a very short

15

period of time, approximately between 1:15 a.m. and 1:45 a.m. Angry words were

exchanged between the two men on the two occasions outside the lounge. It was

established that the victim had to be held back by friends on each occasion. While

Defendant had a knife, there was no evidence that the victim was armed with any

weapon.

Although there was testimony that the victim was a fighter, there was no

testimony or other evidence to indicate that Defendant was aware of the victim’s

pugilistic nature. However, to support his assertion that he had reason to be afraid

for his life, Defendant points to the testimonies given by Randall Willet and Ben

Pollock, paramedics with the Acadian Ambulance Service. Willet and Pollock both

testified that the victim had an “obvious deformity of angulation” of the right wrist,

possibility indicating that the wrist had been broken during the fight. Defendant

argues that he had no options. He was on his back on the ground while the victim

punched and kicked him, and the victim was so out-of-control that even though the

victim’s wrist was broken, the victim still continued to pummel him. While neither

doctor who had examined the victim’s body had seen an obviously broken wrist, the

paramedics testified that when the victim was placed on the stretcher and strapped in

for transportation to the hospital, the fracture could have been reduced. The doctors

testified that they had no reason to examine the victim’s wrists. When asked, the

victim’s uncle testified that he was not aware of any prior injury or deformity to the

victim’s wrist.

Further, although there was dubious testimony that Defendant had called his

“boys” to come and beat up the victim, it was Defendant who was surrounded by the

victim’s friends during the beating. Finally, testimony established that Defendant’s

knife was clipped to his pants at the time he hit the ground.

In Loston, 874 So.2d 197, the victim and the defendant argued inside the house,

and were told to take it outside. Testimony established that the defendant armed

himself with a kitchen knife on the way out of the house. The first circuit noted:

16

In this case, the defendant armed himself with a knife before
leaving the Colar residence, in obvious anticipation of some kind of
confrontation with the victim. No physical confrontation occurred inside
the residence and there is no evidence that the defendant was in
imminent danger when he armed himself and went outside. Numerous
witnesses testified to what went on inside and outside of the Colar
residence. No one testified that the victim threatened the defendant with
death or great bodily harm. Once outside, the defendant did not try to
withdraw from the confrontation.

....

As the triers of fact, the jurors were free to accept or reject, in
whole or in part, the testimony of any witness. State v. Johnson,
99-0385, p. 9 (La.App. 1st Cir.11/5/99), 745 So.2d 217, 223, writ
denied, 00-0829 (La.11/13/00), 774 So.2d 971. In this case, the jurors
obviously did not choose to believe the defendant’s claim of
self-defense. They may have determined that the aggressor doctrine
applied, since the defendant escalated the conflict by arming himself
with a knife without having been threatened and before going outside to
continue a dispute. Alternatively, they may have determined that the
defendant did not reasonably believe that he was in imminent danger of
losing his life or receiving great bodily harm at the time he stabbed the
victim, and did not act reasonably under the circumstances, particularly
since the victim was unarmed and the fight was a one-on-one
confrontation with many bystanders. Either of these determinations was
reasonably supported by the evidence, viewed in a light most favorable
to the prosecution. On appeal, this court will not assess the credibility
of witnesses or reweigh the evidence to overturn a fact finder’s
determination of guilt. State v. Glynn, 94-0332, p. 32 (La.App. 1st
Cir.4/7/95), 653 So.2d 1288, 1310, writ denied, 95-1153 (La.10/6/95),
661 So.2d 464. Viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have concluded the State
proved beyond a reasonable doubt that the defendant’s conduct was not
justified.

Id. at 204-05.

On the second occasion that the two men were outside, Defendant was standing

by the Chevy Malibu when the victim and his friends exited the lounge. Defendant

could have gotten into the vehicle to escape the victim. Instead, he continued to

angrily exchange words until the victim ran over to him. As noted, there is no

unqualified duty to retreat; however, the possibility of an escape is a factor to be

looked at when determining whether deadly force was necessary to avoid harm.

Johnson, 949 So.2d 1229. Further, Defendant’s subsequent actions did not comport

with that of a man who believed he had acted in self-defense. As soon as the victim

moved away, Defendant ran to the car and attempted to flee. He gave the knife to

Jennifer Young and told her to hide it. It was evident he was aware of the fact the

17

victim was down when, as he exited the vehicle, he told the deputy that he had no

dealings with the man on the ground. He told the deputy at the police station that he

was jumped by three or four men, that he did not have a knife, and that he did not stab

anyone.

We find that the jury was correct when it discarded the charge of second degree

murder as the evidence does not establish the specific intent to kill the victim or to

impose great bodily harm as required by statute. The jury correctly determined that

mortal injury was inflicted by accident, but that the State sustained its burden of proof

that Defendant did not act reasonably under the circumstances, particularly since the

victim was unarmed.

Excessiveness of Sentence

Defendant argues that, considering the circumstances of the case, the sentence

of fifteen years is nothing more than needless and purposeless imposition of pain and

suffering. The manslaughter statute provides for a range of imprisonment of up to

forty years. La.R.S. 14:31(B). Defendant was sentenced to a little more than one-

third of the potential sentence.

To determine whether a sentence is constitutionally excessive, this court has

stated:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

18

Moreover, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d

786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061, this court held that in

order to decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, the following factors may be

considered:

[A]n appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

At the sentencing hearing, after the trial court noted that it had considered

letters from both the victim’s family and Defendant’s family, and after reiteration of

the facts of the case, the trial court stated:

The Court in examining the sentencing guidelines finds that the
following provisions apply: B(9) that is, the kind of injury the
defendant–the victim sustained. In this case it was the ultimate loss, that
of his life. B(10) there was a weapon used, it was a knife. Those are the
two circumstances the Court must consider as being aggravating.
Mitigating, B (24, 25, and 26) clearly the victim, Bann, was the
aggressor in causing the altercation which induced or facilitated the
defendant’s criminal conduct. The Court finds that the defendant acted
under strong provocation. Where two persons are attacking one the
defendant’s conduct could be justified though failing to establish a
defense for it. The defendant in B (28)–the defendant has no prior
convictions of violent or assaultive behavior. Both of his prior
convictions were in the nature of theft charges. (31) the hardship
imposed on the defendant is certainly incarceration and deprivation of
his children of the support that they had previously enjoyed by him.
Those are the factors the Court has considered in addition to the letters
that I mentioned and the statement that Mr. Hood made about–and I
believe that he is sorry for what happened. I believe he exhibited
remorse right after the incident. I base that on the testimony of his cell
mate about his conduct in the cell. Be that as it may, this defendant is a
third felony offender and the Court believes that a lesser sentence than
I’m going to impose would deprecate the seriousness of this defendant’s
conduct.

Defendant filed a motion to reconsider the sentence which was denied without

written reasons. In the motion, as in brief, Defendant argued that the sentence was

19

excessive since the victim was the aggressor and viciously attacked Defendant from

behind and as established by testimony, the victim was standing over him, beating

him, and Defendant had no means of escape.

While the trial court did not order a pre-sentence investigation report, the

record indicates the trial court had been informed regarding Defendant’s family, work

history, and criminal history. The trial court stated that it received and read letters

from Defendant’s family, noting Defendant had children, and was supporting them

and was employed prior to the incident. The trial court noted that Defendant had two

prior felonies but that neither was a crime of violence. The trial court then listed

mitigating and aggravating factors that were taken into consideration. Our review of

the record indicates that the trial court took adequate cognizance of the sentencing

considerations set out in La.Code Crim.P. art. 894.1.

Defendant argues that the trial court seemed to be very sympathetic to his

position. He states:

The Trial Court found as aggravation the fact a death resulted and
a knife was used. Appellant would argue it is not an aggravating factor
that a death occurred-it is an element of the offense. In mitigation the
Trial Court found Aaron Bann was clearly the aggressor, Mikey acted
under strong provocation, Mikey had no prior convictions for assaultive
behavior and that a hardship would be imposed on his family. Further,
the Trial Court believed Mr. Hood was remorseful for his conduct.

Defendant argues that the trial court imposed an excessive sentence under the

circumstances of the case.

In State v. Johnson, 94-1523 (La.App. 3 Cir. 5/3/95), 657 So.2d 178, writ

denied, 95-1397 (La. 11/3/95), 662 So.2d 9, this court affirmed a twenty-year

sentence for manslaughter. The defendant and a group of friends were standing

outside the defendant’s house when a vehicle stopped and the driver asked the men

if they knew a certain person and also asked for forty dollars. The defendant told the

police that the victim, whom he did not know, appeared angry and reached as if he

were reaching for a weapon. The defendant pulled out a gun and shot the victim. The

defendant argued that the sentence of twenty years was excessive “because his actions

were motivated by subjective fear for his life based on words and actions of the

20

victim, and because he was eighteen years old at the time of the offense with no prior

convictions.” Id. at 180. This court found no merit with the defendant’s contention,

stating:

In support of its conclusion that this case was not a typical
manslaughter case, but was more akin to second degree murder, the trial
court stated: “This situation involves a victim here, and an assailant who
didn’t even know each other, and hadn’t even encountered each other,
except apparently within minutes before the shooting occurred. It
almost has aspects of a certain arbitrariness to it, or randomness to it....
[I]t also looked like that Mr. Johnson had that pistol [in his pocket] and
was just kind of anxious to do something with it since he had it. He
never did say that he saw a gun in any of the information that I have....
I am just unable to see ... anything that comes to the point of heat of
passion.” We agree with the trial court’s assessment of the case before
us and find defendant’s contention without merit.

In this case, defendant received a twenty year sentence, which is
half of the maximum sentence under the statute. The trial court stated
that this is a “serious [offense] because of the youth of this defendant
and his lack of any serious prior record.... It is also serious because of
the death involved.” Because of the youth of defendant and defendant’s
lack of a serious record, the trial court did not impose the maximum
sentence. As discussed above, the trial court considered the lengthy
presentence investigation report, that the defendant was carrying a
concealed weapon which he used to commit the offense, other sentences
imposed in manslaughter cases which were reduced from second degree
murder, and that the manslaughter conviction was the result of a plea
agreement and was not a typical manslaughter case.

Id. 180-81.

In State v. Jordan, 94-1012 (La.App. 3 Cir. 2/1/95), 650 So.2d 407, writ

denied, 95-564 (La. 6/30/95), 657 So.2d 1027, this court affirmed a sentence of

fifteen years, with five years suspended, imposed for a conviction of manslaughter.

Jordan thought the victim, whom he saw walking in a parking lot, was the one who

attempted to burglarize his home the night before. The defendant hit the victim with

his car, he then jumped out of the car with a gun, they struggled, and the victim was

shot dead. The defendant was charged with second degree murder, but the jury

convicted him of manslaughter. The defendant argued that the fifteen-year sentence

was excessive. This court noted that to find the sentence excessive it had to find that

the sentence was so disproportionate to the severity of the crime that it shocked this

court’s sense of justice. This court found that under the circumstances of the case,

“defendant’s sentence of 15 years, five of those being suspended, makes a measurable

21

contribution to acceptable penal goals and does not shock one’s sense of justice.” Id.

at 413.

We find that the sentence of fifteen years does not shock this court’s sense of

justice. Moreover, as noted in the Error Patent section, Defendant is parole eligible

and is subject to diminution of sentence. La.R.S. 15:571.3(A)(1). The availability

of early release may be considered when reviewing sentences for excessiveness.

State v. Green, 418 So.2d 609 (La.1982). Accordingly, the trial court did not abuse

its vast discretion when it sentenced Defendant to fifteen years imprisonment. There

is no merit to this assignment of error.

DECREE

For all of the foregoing reasons, we find that the evidence was sufficient to

sustain the responsive verdict of manslaughter. Furthermore, we do not find the

sentence imposed to be excessive; however, the sentence is amended to delete the

denial of parole eligibility, and the trial court is hereby instructed to make an entry

into the minutes reflecting this amendment.

AFFIRMED AS AMENDED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts
of Appeal, Rule 2-16.3.

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