KA-0011-0955 Nonprecedential Remanded Processed

State of Louisiana v. Bryce Perkins

Louisiana Court of Appeal, Third Circuit · Filed March 7, 2012

Authorities cited

Identified automatically; this list may not be exhaustive.

State v. Sedlock 882 So. 2d 1278
State v. Adams 894 So. 2d 1131
State v. Coleman 20 So. 3d 1163
State v. Coleman 38 So. 3d 298
State v. Savoy 999 So. 2d 285
State v. Savoy 25 So. 3d 785
State Ex Rel. Graffagnino v. King 436 So. 2d 559
State v. Duncan 420 So. 2d 1105
State v. Moody 393 So. 2d 1212
State v. Richardson 425 So. 2d 1228
State v. Bolden 680 So. 2d 6
State v. Bolden 683 So. 2d 286
State v. Voorhies 590 So. 2d 776
State in Interest of LH 650 So. 2d 433
State v. Ellis 961 So. 2d 636
State v. Durand 973 So. 2d 753
State v. Baker 962 So. 2d 1198
State v. Leger 936 So. 2d 108
State v. Robinson 754 So. 2d 311
State v. Robinson 787 So. 2d 1008
State v. Jackson 774 So. 2d 1046
In the Interest of DS 802 So. 2d 1254
State v. Lombard 486 So. 2d 106
State v. Ruff 504 So. 2d 72
State v. Young 508 So. 2d 64
State v. Mitchell 889 So. 2d 1257
State v. LeBlanc 901 So. 2d 1063
State v. Massey 535 So. 2d 1135
State v. Wright 978 So. 2d 1062
State v. Wilder 994 So. 2d 532

Opinion text

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 11-955

STATE OF LOUISIANA

VERSUS

BRYCE W. PERKINS

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 29877-09
HONORABLE RONALD F. WARE, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Billy Howard Ezell, Judges.

REVERSED AND REMANDED FOR RESENTENCING WITH
INSTRUCTIONS.

John Foster DeRosier
District Attorney
Carla Sue Sigler
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana

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Thomas L. Lorenzi
Lorenzi & Barnatt, LLP
518 Pujo Street
Lake Charles, LA 70601
(337) 436-8401
COUNSEL FOR DEFENDANT/APPELLEE:
Bryce W. Perkins

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EZELL, Judge.

Defendant, Bryce W. Perkins, was convicted by a jury of second degree

murder after being indicted by a Calcasieu Parish Grand Jury. The trial court then

granted Defendant’s motion for post verdict judgment of acquittal, which requested

a reduction to manslaughter, a violation of La.R.S. 14:31. Defendant then waived

sentencing delays, and the court sentenced him to thirty years at hard labor, the

first twenty without benefit of parole, probation, or suspension of sentence.

The State now appeals the trial court’s ruling on the motion for post verdict

judgment of acquittal, assigning a single error.

FACTS

On the night of July 4, 2009, a large group of people in their late teens and

early twenties gathered at a house in Lake Charles for a party. A fight broke out

involving a young man named Taylor Johnson. After Johnson fell to the ground,

various people began kicking him, and he assumed a fetal position. Some

testimony indicated that the victim, Daniel Gueringer, and a young man named

Devionte Edmonson intervened and stopped the fracas. Defendant, Johnson’s

friend, arrived and stood near the fallen man; he produced a pistol, raised it over

his head, and chambered a round. Although there was conflicting testimony

regarding which young men took what actions, some partygoers attempted to

subdue Defendant. They were unsuccessful. Defendant leveled the pistol and

fired a shot. The victim fell to the ground with a head wound and later died.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we submit one

error patent.

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The record before this court does not indicate that the trial court advised

Defendant of the prescriptive period for filing post conviction relief as required by

La.Code Crim.P. art. 930.8. Thus, the trial court should be directed to inform

Defendant of the provisions of Article 930.8 at resentencing.

ASSIGNMENT OF ERROR

In its sole assignment of error, the State argues the trial court erred by

reducing the jury’s verdict of second degree murder to manslaughter. Further, the

State contends the trial court used the wrong legal standard in its analysis of the

motion. As the State observes, La.Code Crim.P. art. 821 explains:

A. The defendant may move for a post verdict judgment of
acquittal following the verdict. A motion for a post-verdict judgment
of acquittal must be made and disposed of before sentence.

B. A post verdict judgment of acquittal shall be granted only if
the court finds that the evidence, viewed in a light most favorable to
the state, does not reasonably permit a finding of guilty.

C. If the court finds that the evidence, viewed in a light most
favorable to the state, supports only a conviction of a lesser included
responsive offense, the court, in lieu of granting a post verdict
judgment of acquittal, may modify the verdict and render a judgment
of conviction on the lesser included responsive offense.

D. If a post verdict judgment of acquittal is granted or if a
verdict is modified, the state may seek review by invoking the
supervisory jurisdiction of or by appealing to the appropriate appellate
court.

E. If the appellate court finds that the evidence, viewed in a
light most favorable to the state, supports only a conviction of a lesser
included responsive offense, the court, in lieu of granting a post
verdict judgment of acquittal, may modify the verdict and render a
judgment of conviction on the lesser included responsive offense.

There are some cases indicating that review of a trial court’s action denying

a motion for acquittal is subject to an abuse of discretion standard. See, e.g., State

v. Sedlock, 04-564 (La.App. 3 Cir. 9/29/04), 882 So.2d 1278, writ denied, 04-2710

(La. 2/25/05) 894 So.2d 1131. However, these cases apply this standard only to

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motions for acquittal arising from bench trials under La.Code Crim.P. art. 778.

See, Id. To the contrary, appellate review of such decisions arising from jury trials

requires eliminate a standard review of the sufficiency of the trial evidence, as

codified in La.Code Crim.P. art. 821. State v. Coleman, 09-106 (La.App. 3 Cir.

10/7/09), 20 So.3d 1163, writ denied, 09-2424 (La. 6/4/10), 38 So.3d 298; State v.

Savoy, 08-716 (La.App. 3 Cir. 12/10/08), 999 So.2d 285, writ denied, 09-509 (La.

11/20/09), 25 So.3d 785.

The structure of sufficiency reviews is well-established:

When the issue of sufficiency of evidence is raised on appeal,
the critical inquiry of the reviewing court 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, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibilities of the witnesses, and
therefore the appellate court should not second-guess the credibility
determinations of the trier of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

In order for the state to obtain a conviction, it must prove the
elements of the crime beyond a reasonable doubt. The Jackson
standard has been codified at La.Code Crim.P. art. 821 as the standard
for post verdict judgments of acquittal.

State v. Bolden, 95-749, p. 10 (La.App. 3 Cir. 4/17/96), 680 So.2d 6, 13-14, writ

denied, 96-1272 (La. 11/22/96), 683 So.2d 286.

As the State points out, a trial judge analyzing such a motion is not to re-

weigh the evidence. State v. Voorhies, 590 So.2d 776 (La.App. 3 Cir. 1991).

At the hearing below, the trial judge explained:

When Mr. Perkins arrives on the scene, he does not have the
gun. He gets up to the fracas. Then he tells Austin Rousseau to give
him the gun which Rousseau does. Mr. Perkins yells “Get back.”
He’s waving the gun around. There were [sic] some vulgar language

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which was used, and it was just, I think, utterly clear that Mr. Perkins
was very serious about trying to help his friend.

He now has the gun. He raises it over his head and he chambers
a bullet. He racks the gun. The gun is still over his head. Jack Hart
said that the gun was waving around or Mr. Perkins was waving the
gun around, no aiming. And Mr. Cale Brouillette said the same thing,
and others said the same thing too. The gun is still above his head.

While the gun is above his head, McCord, Justin or Judson. I
have Justin in one place in my notes and Judson in another place. But
Mr. McCord, while the gun is -- Mr. Perkins is holding the gun above
his head, squares off and punches Bryce Perkins. Everybody said that.
One or two witnesses said they didn’t see that, but it’s -- that’s been
established beyond a doubt, that McCord punched Perkins.

Perkins stumbled. One witness said that he thinks that his knee,
one knee may have even hit the ground. And at that point, Pierce
Johnson jumps on -- some said jumped on Bryce Perkins’ back.
Others said grabbed him by the shoulders from the back. And this
was done in an attempt to subdue Bryce Perkins and avoid anything
further from developing in terms of the gun firing or anything else
escalating.

Mr. Johnson, Pierce Johnson was shaken off and lost his grip on
Bryce Perkins. And then, Korey King grabbed the gun.

....

THE COURT:

Excuse me one second. Okay. I’m looking at some of the notes
of the testimony. Okay. Be that as it may, when Pierce Johnson tries
to intervene, the gun is still up in the air, and that’s his testimony.
Gun still pointed in the air after it was racked (reading).

And after he lost control or was shaken from Bryce Perkins, it
was his testimony, and it was on Redirect Examination, that the gun
discharged a split second later. McCord, who punched Perkins, said
on Direct Examination, that the gun discharged a millisecond later.
Dylan Grindol, who was some distance away, the motorcyclist, said
that he could see the fight, the disturbance. And he could see the gun
in the air. And he could see the wrestling going on, and he said that
the gun discharged about two seconds later. McCord said that after the
shot, Bryce Perkins was frozen like a ghost. Devon Lewis said that
the gun was up prior to being fired, that it was being waved around,
and Perkins was telling everybody to get back, back up. Jack Hart said
the same thing and also said there was no aiming at any time.

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p. 7

The focus, in this matter today, is what was Bryce Perkins’
intent on that morning, July 5th? Not only general intent but specific
intent, specific intent to kill or inflict bodily harm.

The Jury made its decision. They made the decision, but I find
that the evidence does not support Bryce Perkins having the specific
intent to kill or inflict great bodily harm at that time the gun
discharged.

His intent was to help his friend. He’s waving the gun around.
He’s telling everybody to get back. There’s some wrestling going on.
He’s caught up in the moment just as everyone else is. And I think
that he did lose possession of his cool reflection, self-control --
Manslaughter. And I don’t think that he had the specific intent to kill.

I’ve thought about it. I’ve replayed it in my mind. I may have
gotten the sequence of events involving Korey King as to what point
he grabbed the gun, but it doesn’t change my opinion. It doesn’t
change what I feel I must do.

That is correct. That is correct.

Anything else, Mr. Bryant, right now?

MR. BRYANT:

Nothing other than our intent to appeal this Ruling, Your
Honor.

The colloquy clarified that the trial court found there was insufficient

evidence that Defendant had the specific intent to kill. Thus, the court found that a

misdemeanor-manslaughter occurred.

As it is well-settled that intent may be inferred from a defendant’s actions,

the plethora of eyewitness testimony regarding Defendant’s position and actions at

the time he fired the shot is the key to the current analysis. Although the record

contains pages of testimony regarding events earlier in the evening, such as a party

on River Road that many of the witnesses attended and Taylor Johnson’s behavior

before the fight, testimony sheds no light on the issue at hand. Testimony

regarding Defendant’s actions after the shooting, such as his efforts to conceal the

weapon, arguably has some relevance. The eyewitness testimony is far more

important since it reveals his actions at the time he fired the gun.

As the trial court observed, Defendant arrived at the Prien Lake Road

location to defend Johnson. Other than a phone call that alerted him to Johnson’s
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predicament, there is no indication that any earlier events influenced his intent at

the time he pulled the trigger.

Also, while there were discrepancies among the testimonies of the various

eyewitnesses regarding details of the Johnson fight and the shooting, only the

details of the shooting itself are key to this analysis. For example, some witnesses,

including Edmonson, stated that he and the victim intervened to stop people from

kicking Johnson. Others did not recall such intervention or remembered someone

else doing it. Such discrepancies went to credibility and weight and thus were

matters for the jury, not the trial court or this court.

Regarding the fatal shot, note that witnesses Addison Nickel and Paige

Sorkow saw merely the flash it produced. Louis Hoffpauir left before the fight

involving Johnson even started. John Fayko did not see the shooting or even the

flash. Edmonson testified he was walking away from Johnson and Defendant

when he heard the shot. Ernest Celestie’s testimony was similar. Cody Marceaux

also stated he merely heard the shot.

Korey King, who started the fight with Johnson, provided details relevant to

the shooting itself. According to King, Defendant arrived with a gun; he raised it

over his head and chambered a round. King testified that he grabbed the barrel

with his left hand, but Devon Lewis grabbed him, King, from behind and threw

him down. King did not see the shot fired but heard it. Lewis’s testimony was

similar; he explained that he threw King into some bushes to keep him from

getting shot. Lewis stated they both went down; he heard the shot, looked up, and

saw the victim’s head rock back.

Cale Brouillette saw Defendant and another young man, Austin Rousseau,

walk up to where Johnson was lying. After bumping into Edmonson, Defendant

turned to Rousseau and said, “Give it to me.” Rousseau handed a pistol to
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Defendant, who raised it over his head and chambered a round. Judson McCord

then punched Defendant. Defendant sagged, and then rose. At that point, Pierce

Johnson approached and tried to get the pistol away from Defendant. The latter

man broke free and waved the gun while holding it “out straight,” then fired.

Brouillette saw the victim fall.

Like Brouillette, Jack Hart saw Defendant obtain the weapon from

Rousseau, raise it, and chamber a round. He also saw McCord and Pierce try to

subdue Defendant. They were unsuccessful, and Defendant pointed the weapon in

the victim’s direction. Unlike Brouillette, Hart testified Defendant did not wave

the weapon before firing. The victim was “about the width of a normal driveway”

from Defendant.

Judson McCord also heard Defendant say to Rousseau “Give it to me.”

Defendant waved the gun around, then lifted it over his head and chambered a

round. While his hands were over his head, McCord punched him in the face.

Defendant went down on one knee, then rose. According to McCord, Johnson then

jumped on the gunman’s back but was shaken off. The gun was out horizontally;

Defendant waved it for “[a] millisecond, if that” and fired. McCord testified the

gun was pointed in the general direction of at least four people, counting the victim

and him. He felt the victim fall behind him. Immediately after the shooting,

Defendant “froze, looked like a ghost.”

Pierce Johnson’s testimony was generally similar to McCord’s regarding the

struggle to subdue Defendant. Johnson explained that he tried to push the gun

down, but Defendant regained control of it. He pointed in the general direction of

four or five people and fired. Johnson did not see the gun waving; he stated “it

was solid in the air” before it discharged.

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Chance Fayko also testified about the struggle; his recollection of it was

similar to those of McCord and Johnson. He testified that when Defendant got free

of Johnson, he waved the gun “just a little bit,” held it steady, then fired. There

were people “in the line of fire,” but Fayko was not sure how many. Joseph Polito

testified that when Defendant got free of Johnson, he brought the weapon up,

waved it slightly, and fired. His testimony suggested the victim was stepping

toward him from behind when the pistol fired. Dylan Grindol was driving nearby

on his motorcycle and had to stop because there were so many people in the road.

From his vantage point, he saw an arm come up and pause for two seconds. Then

a shot rang out, and he saw someone fall. He testified the weapon was not moving

around when he saw it.

Viewing the testimony of the eyewitnesses in the light most favorable to the

prosecution, a reasonable jury could have found that the State proved the element

of specific intent beyond a reasonable doubt. Although McCord’s testimony

suggested the shot could have been accidental, as it came within a millisecond of

his getting free of Johnson, Grindol’s testimony regarding the two-second pause

before the shot indicated it was deliberate. Jack Hart, Pierce Johnson, and Chance

Fayko indicated the gun was steady before it was fired; this also suggested the shot

was intentional.

It is well-settled that a jury is free to believe some, none, or all of any

witness’s testimony. Apparently, it credited testimony that Defendant paused

before shooting. As shown in Voorhies, 590 So.2d 776, the trial court could not re-

weigh the evidence in the considering the motion to acquit. Further, firing into a

crowd is indicative of a specific intent to kill. State in the Interest of L.H., 94-903

(La.App. 3 Cir. 2/15/95), 650 So.2d 433.

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As mentioned earlier, Defendant also argues the killing was manslaughter

because the actions of McCord, Johnson, and King provoked him. As observed

earlier, the trial court’s ultimate ruling was that the killing was a misdemeanor-

manslaughter. However, we will address Defendant’s provocation-based argument

out of an abundance of caution.

We note the following analysis by the second circuit:

In the alternative, Defendant argues that the conviction should
be reduced to manslaughter because he killed Ferguson in “sudden
blood heat of passion” when Ferguson was fighting for the gun. In
pertinent part, La. R.S. 14:31(A)(1) defines manslaughter as 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.” State v. Ellis, 42,286 (La.App. 2d
Cir.7/11/07), 961 So.2d 636, writ denied, 07-1641 (La.1/25/08), 973
So.2d 753. “Sudden passion” and “heat of blood” are mitigating
factors in the nature of a defense; and, when such factors are
established by a preponderance of the evidence, a verdict for murder
is inappropriate. State v. Baker, 41,555 (La.App. 2d Cir.8/15/07), 962
So.2d 1198, citing State v. Leger, 05-0011 (La.7/10/06), 936 So.2d
108, cert. denied, [549] U.S. [1221], 127 S.Ct. 1279, 167 L.Ed.2d 100
(2007). The burden is on the defendant to prove by a preponderance
of the evidence that he acted in “sudden passion” or “heat of blood.”
State v. Robinson, 32,794 (La.App. 2d Cir.3/1/00), 754 So.2d 311,
writ denied, 00-0989 (La.3/23/01), 787 So.2d 1008. The defendant is
not obligated to establish the factors affirmatively; the jury may infer
them from the evidence presented. State v. Ellis, supra, citing State v.
Jackson, 34,076 (La.App. 2d Cir.12/6/00), 774 So.2d 1046.

Provocation shall not reduce a homicide to manslaughter if the
jury finds that the defendant’s blood had actually cooled, or that an
average person’s blood would have cooled, at the time the offense was
committed. State v. Ellis, supra. “If a man unreasonably permits his
impulse and passion to obscure his judgment, he will be fully
responsible for the consequences of his act.” State v. Leger, supra.
Questions of provocation and time for cooling are questions for the
jury to determine under the standard of the average or ordinary person
with ordinary self-control. State v. Leger, supra, citing State v. Deal,
00-0434 (La.11/28/01), 802 So.2d 1254, cert. denied, 537 U.S. 828,
123 S.Ct. 124, 154 L.Ed.2d 42 (2002). Physical threats or actions on
the part of the victim have been found to be sufficient provocation.
State v. Ellis, supra, citing State v. Lombard, 486 So.2d 106
(La.1986); State v. Ruff, 504 So.2d 72 (La.App. 2d Cir.1987), writs
denied, 508 So.2d 64, 65 (La.1987). Even so, mere words or gestures,
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p. 14

no matter how insulting, will not reduce a homicide from murder to
manslaughter. State v. Mitchell, 39,202 (La.App. 2d Cir.12/15/04),
889 So.2d 1257, writ denied, 05-0132 (La.4/29/05), 901 So.2d 1063,
citing State v. Massey, 535 So.2d 1135 (La.App. 2d Cir.1988).

Although Defendant had been shot during the struggle with
Ferguson, he was actually shot by his accomplice, Foster. Further,
when a victim is fighting back against two armed gunmen, actions of
self-defense are not provocation to reduce a charge of second degree
murder to manslaughter. Defendant fatally shot Ferguson during the
perpetration of an aggravated burglary, armed robbery and aggravated
kidnapping. Neither the fact that Ferguson acted in self-defense, nor
the fact that Defendant was shot by his accomplice constitutes
provocation to reduce the charge of second degree murder to
manslaughter. Defendant, therefore, did not meet his burden of
proving that he killed Ferguson while acting in “sudden passion” or
“heat of blood;” and, thus, he is not entitled to a reduced verdict of
manslaughter.

State v. Wright, 42,956, pp. 13-15 (La.App. 2 Cir. 3/5/08), 978 So.2d 1062, 1071-

72, writ denied, 08-819 (La. 10/31/08), 994 So.2d 532. The actions of the young

men who tried to disarm Defendant were legitimately defensive, and thus,

Defendant cannot use them to establish provocation and reduce the conviction

from second degree murder to manslaughter.

For the reasons discussed, the trial court’s ruling is reversed, and the original

conviction is re-instated.

DISPOSITION

The trial court’s ruling on the motion for post verdict judgment of acquittal

is reversed. The jury verdict is reinstated, and the case is remanded for

resentencing. The trial court is directed to inform Defendant of the provisions of

Article 930.8 at resentencing.

REVERSED AND REMANDED FOR RESENTENCING WITH

INSTRUCTIONS.

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