State of Louisiana v. Dwane Edward Fox

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-692

STATE OF LOUISIANA

VERSUS

DWANE EDWARD FOX

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 7277-13
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and David Kent Savoie,
Judges.

AFFIRMED WITH INSTRUCTIONS.

John F. DeRosier
District Attorney
Karen C. McLellan
Assistant District Attorney
Christy Rhoades May
Assistant District Attorney
Bobby L. Holmes
Assistant District Attorney
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Dwane Edward Fox

Dwane Edward Fox
Allen Correctional Center
3751 Lauderdale Woodyard Road
Kinder, LA 70648
IN PROPER PERSON

AMY, Judge.

The defendant was charged with second degree murder in connection with

the death of Mychel Cleaver. A jury found the defendant guilty of manslaughter,

and the trial court sentenced the defendant to forty years at hard labor with credit

for time served. The defendant appeals. For the following reasons, we affirm,

with instructions.

Factual and Procedural Background

The body of the victim, Mychel Cleaver,1 was discovered in a ditch outside

Lake Charles, Louisiana in January of 2012. Dwane Edward Fox, Mychel‟s “on-

again, off-again” boyfriend and the defendant herein, was identified as a suspect.

Thereafter, the defendant claimed that Mychel had attacked him. The defendant

admitted that he knocked Mychel to the floor, choked her when she was not

moving, and thereafter disposed of her body and belongings. The State charged

the defendant with second degree murder, a violation of La.R.S. 14:30.1. A jury

subsequently found the defendant guilty of the responsive verdict of manslaughter,

a violation of La.R.S. 14:31. The trial court sentenced the defendant to forty years

at hard labor with credit for time served.

The defendant appeals, asserting as error that:

I. The State failed to prove beyond a reasonable doubt that the
killing was not justified to prevent either great bodily harm or death to
Appellant, Dwane Fox.

II. The evidence introduced at the trial of this case, when
viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979)[,] standard, was insufficient to prove beyond a
reasonable doubt the specific intent element of either manslaughter or
the original charge of second degree murder.

1
The victim‟s name is also spelled as “Mychele” in the record; we use the spelling on the
death certificate.

III. The trial court failed to consider the applicable factors set
forth in La. Code Crim. P. art. 894.1, and considered factors not
supported by the record.

IV. The maximum sentence of forty years at hard labor imposed
upon Dwane Fox is excessive and is a violation of the Eighth
Amendment to the United States Constitution and Article I, § 20 of
the Louisiana Constitution.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for

errors patent. An error patent is one “that is discoverable by a mere inspection of

the pleadings and proceedings and without inspection of the evidence.” La.Code

Crim.P. art. 920(2). Our review of the record reveals one such error. Namely, the

transcript of the sentencing hearing does not indicate that the trial court advised the

defendant of the prescriptive period for post-conviction relief as required by

La.Code Crim.P. art. 930.8. Accordingly, we direct the trial court to advise the

defendant of the provisions of Article 930.8 by sending appropriate written notice

to him within ten days of the date of the rendition of this opinion and to file written

proof in the record that the defendant received the notice. See State v. Malbrough,

11-1241 (La.App. 3 Cir. 6/20/12), 94 So.3d 933.

Sufficiency of the Evidence

The defendant‟s first two assignments of error concern the sufficiency of the

evidence. Specifically, the defendant contends that the State failed to disprove his

assertion of self-defense and that the State failed to establish that the defendant

possessed the necessary intent to kill required for second degree murder or

manslaughter. When a defendant raises multiple assignments of error including

sufficiency of the evidence, the reviewing court should first address the sufficiency

2

of the evidence. State v. Hearold, 603 So.2d 731 (La.1992). In State v. Macon,

06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86, the supreme court

reiterated the standard of review for sufficiency of the evidence claims on appeal,

stating:

The standard of appellate review for a sufficiency of the
evidence claim is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988).
A determination of the weight of evidence is a question of fact, resting
solely with the trier of fact who may accept or reject, in whole or in
part, the testimony of any witnesses. State v. Silman, 95-0154
(La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on
the factfinding function of the jury only to the extent necessary to
assure the Jackson standard of review. State v. Bordenave, 95-2328
(La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate
court to assess credibility or re-weigh the evidence. Id.

Although initially charged with second degree murder, the defendant was

convicted of the lesser charge of manslaughter. As relevant herein, manslaughter

is defined in La.R.S. 14:31(A) as:

(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.

Second degree murder is defined, in pertinent part, as “the killing of a human

being: (1) When the offender has a specific intent to kill or to inflict great bodily

harm[.]” La.R.S. 14:30.1(A).

3

Additionally, the defendant asserted at trial that he was acting in self-

defense. Louisiana Revised Statutes 14:20 provides, in pertinent part, that a

homicide is justifiable when “committed in self-defense by one who reasonably

believes that he is in imminent danger of losing his life or receiving great bodily

harm and that the killing is necessary to save himself from that danger.” When a

defendant in a homicide case claims self-defense, the State must establish beyond a

reasonable doubt that the defendant did not act in self-defense. State v. Perkins,

527 So.2d 48 (La.App. 3 Cir. 1988). “In examining a self-defense claim, it is

necessary to consider: (1) whether the defendant reasonably believed that he was

in imminent danger of death or great bodily harm; (2) whether the killing was

necessary to prevent that death or great bodily harm; and (3) whether the defendant

was the aggressor in the conflict.” State v. Mayes, 14-683, pp. 2-3 (La.App. 3 Cir.

12/23/14), 154 So.3d 1257, 1259, writs denied, 15-178, 15-220 (La. 11/16/15), __

So.3d __. Additionally, in determining whether the defendant had a reasonable

belief that the killing was necessary, it is appropriate to consider “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.

Thomas, 43,100, p. 5 (La.App. 2 Cir. 4/30/08), 981 So.2d 850, 854, writ denied,

08-1276 (La. 2/6/09), 999 So.2d 769.

The evidence presented at trial was that on January 10, 2013, several

passersby discovered a body in a ditch near Lake Charles, Louisiana, which was

later identified as Mychel Cleaver. Dr. Terry Welke, who was accepted as an

expert in forensic pathology, testified that he performed an autopsy on Mychel‟s

body and that he determined that the death was a homicide. Dr. Welke‟s testimony

was that Mychel‟s death was caused by blunt force injuries of the head and

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asphyxia. He later testified that he attributed her death “more so” to the asphyxia.

He also estimated that Mychel died in the evening of January 9 or in the early

hours of January 10, but was unable to give an exact time.

Dr. Welke testified as to a variety of bruises, lacerations, and abrasions on

Mychel‟s body. These injuries included a “pattern injury” on her face, which was

caused by something having a texture being pushed into her skin; a perforation

caused by her tooth poking a hole in her lip from “either been shoved into . . . from

a hit or something of that sort[;]” bruising and swelling on her hands and arms

which were consistent with defense wounds; and a laceration above her eye that

appeared to be older because there was evidence of stitches. Dr. Welke also noted

that he observed “little tiny . . . pinpoint bruises,” or petechiae, under the surface of

both eyelids. According to Dr. Welke, petechiae “helps us to tell whether someone

has died from asphyxia. Asphyxia means no oxygen, so that means we can see it

in people that have died as a result of strangulation, suffocation, hanging, things of

that sort.” Dr. Welke opined that he thought that the asphyxia was caused by

something covering Mychel‟s nose and mouth area, but that manual strangulation

would be a possibility.

Dr. Welke also testified that Mychel‟s toxicology results indicated positive

results for THC (a product of marijuana), alcohol, and caffeine. According to Dr.

Welke, Mychel‟s blood alcohol content was two-and-half times the legal limit.

Further, Mychel‟s toxicology results were positive for several prescription drugs,

including trazodone, Vistaril, and breakdown products of Tegretol and Prozac. 2

Upon questioning by the defense, Dr. Welke stated that it was a “possibility” that

2
Dr. Welke indicated that Tegretol is used to treat seizures and depression; that Prozac is
used to treat depression; that trazodone is used to treat depression; and that Vistaril is used to
treat anxiety, nausea, vomiting, and for sedation.

5

certain drugs could cause respiratory levels leading to petechiae, but, with regard

to the substances discovered in Mychel‟s toxicology results, “in the levels that

came back that were in her body at the time of death, no.”

There was also testimony indicating that the police contacted Mychel‟s

sister, Lisa Lavergne, who informed them that Mychel had been with her

boyfriend, the defendant. According to Ms. Lavergne, sometime after noon on

January 9, Mychel came home, loaded her dog and its puppies up in a box and put

them in the defendant‟s car. Ms. Lavergne also testified that the defendant called

their home on January 10, apparently looking for the victim. Ms. Lavergne

testified that Mychel lived in a cabin behind their mother‟s house, but had

previously lived in the “tent city,” which was a community for homeless people.

Detective Brent Young with the Calcasieu Parish Sheriff‟s Office testified

that he contacted the defendant and that the defendant provided a statement.

Detective Young testified that in his first statement—a video of which was played

for the jury—the defendant claimed that “he had—had picked [Mychel] up on the

afternoon of the 9th; they had gone to a local eatery, had gotten some sandwiches,

had gone back to their house. During that time, she was not allowed to stay at the

home in which [sic] he had driven her to a campsite located off Mount Talbot

Drive in Lake Charles.” Detective Young also testified that the defendant told the

detectives that Mychel had “taken all of her things, including her pets, with her.”

Detective Young also testified that the defendant denied that there had been a

physical argument between him and Mychel.

Further, Detective Young testified that they had the defendant take them out

to the “tent city,” and that a few deputies walked into the wooded area. However,

according to Detective Young, the area was surrounded by water because of the

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recent rains and, although there was evidence of people living there, there was no

one there at that time. Thereafter, the police obtained permission to search the

defendant‟s house and vehicle. The State offered testimony from several officers

who collected evidence from those locations.

According to Detective Young, after the forensics technicians informed him

that “possible blood” had been found during the search, the defendant agreed to

speak with him again. Detective Young testified that the defendant claimed he did

not know whose blood was in his house and vehicle, denied that it was Mychel‟s

blood, and continued to claim that there had been no altercation between the two of

them. A recording of the defendant‟s second statement to the police was played

for the jury.

However, Detective Young testified that the defendant later changed his

account and said that there was an altercation. Detective Young‟s testimony was

that “[the defendant] said, „She came at me. She came at me and was swinging her

arms at me, and I guess just came up from sleep and having some alcohol in me

and from there, it got worse.‟” Detective Young also testified that the defendant

stated that “[h]e went to the living room, and he used his fist to hit her, and that

Mychel Cle[a]ver had fallen and she wouldn‟t move.” According to Detective

Young‟s testimony, when he confronted the defendant about Mychel having

petechiae, the defendant admitted that “she was still alive when she fell and that he

choked her” with his hands. Detective Young further testified that the defendant

also admitted that he put Mychel‟s body in his car, drove around for an hour, or

possibly longer, and then discarded the body. Additionally, Detective Young

testified that the defendant admitted that he discarded Mychel‟s belongings near

his work site in Westlake.

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There was testimony that the police collected evidence including items

belonging to Mychel from that location. Further, there was testimony that the

police retrieved various data from the defendant‟s cellular phones. Detective

Young testified about the contents of that data, which indicated viewing of various

online advertisements in Lake Charles, Cincinnati, and Los Angeles, and media

reports about the discovery of Mychel‟s body. Detective Young considered the

advertisements as possible locations to flee.3

There was testimony from several witnesses about various altercations that

Mychel was involved in. Ms. Lavergne testified that Mychel got in an argument

with Ms. Lavergne‟s son the day after Christmas. According to Ms. Lavergne‟s

testimony, she and their mother were trying to calm Mychel down and Mychel

punched Ms. Lavergne and knocked her down. Ms. Lavergne testified that after

she fell, she grabbed a statue and threw it at Mychel, and it “caught her above her

eye, and it busted her eye open, and she ended up having to have stitches.”

According to Ms. Lavergne, she was arrested in connection with this incident.

Further, Ms. Lavergne testified that this was not the first physical fight that she had

had with Mychel.

Jeal Fazzio, a coworker of the defendant‟s at Alfred Palma Construction,

testified that in September of 2012, the defendant came to work with injuries to his

face and ear. Mr. Fazzio, the company safety officer, inquired about the source of

the injuries to make sure they were not work related and took photographs.

3
Additionally, the State played for the jury two recordings of phone calls between the
defendant and his wife, Sheila Fox. The defendant was incarcerated, and the phone calls were
recorded by the jail telephone system.

8

According to Mr. Fazzio‟s testimony, the defendant told him that Mychel and her

boyfriend “came by his house and beat him up.”

Donald Henry testified that he lived with Mychel for approximately three

months and that they were both using crack cocaine at that time. According to Mr.

Henry, Mychel had been diagnosed with multiple personality disorder and was

taking medication for that diagnosis. Mr. Henry testified that one of those

personalities, “Mikey,” was the “protector” personality and that “Mikey” was “an

angry child, and it didn‟t take much to set him off and make him angry. Now,

when he was angry, he might pull a knife on you.” Mr. Henry also stated that

when Mychel was “Mikey,” she would leave the house and come back “beat up”

because “Mikey” would “challenge anybody.” Mr. Henry also testified that

“Mikey” had gotten in multiple fights, specifically noting a fight with one of Mr.

Henry‟s girlfriends and one involving a mutual friend over a lawnmower.

Michael Mott testified about an incident he witnessed in a mobile home park

involving Mychel and her nephew. According to Mr. Mott, he was inside his

residence and heard Mychel yelling at her nephew, who had physical disabilities

that required him to use a wheelchair. Mr. Mott testified that Mychel had been

walking up and down the street and “yelling and cussing” at another visitor.

According to Mr. Mott‟s testimony, the nephew asked Mychel to calm down. Mr.

Mott stated that Mychel then walked over to the nephew, who was not in his

wheelchair at the time and could not defend himself, and that she started

threatening her nephew, grabbed his arm, and took his cell phone away.

Additionally, Mr. Mott testified that Mychel later returned to the trailer park and

was threatening other residents.

9

Having reviewed this evidence in the light most favorable to the prosecution,

we conclude that there was sufficient evidence for a rational trier of fact to reject

the defendant‟s assertion of self-defense and to find beyond a reasonable doubt that

the defendant was guilty of manslaughter. The evidence presented at trial indicates

that Mychel was the aggressor in the conflict that ultimately led to her death.

Further, it is clear that the defendant was aware that Mychel had been involved in

several aggressive incidents and violent conflicts before this one. However, the

defendant admitted that he hit Mychel and that she fell to the floor and was not

moving before he began choking her. Thus, there is sufficient evidence that a

rational trier of fact could have concluded that Mychel was no longer a threat after

she became unconscious. Of particular note is the fact that Dr. Welke attributed

Mychel‟s death to blunt force trauma and asphyxia, and in fact considered it due

“more so” to the asphyxia. A rational trier of fact could therefore consider the

defendant‟s actions in choking Mychel after she became unconscious as a

disproportionate use of force that went beyond self-defense. See Mayes, 154 So.3d

1257. Additionally, the State offered evidence that tended to prove that the

defendant attempted to conceal Mychel‟s death by hiding the evidence; that he did

not tell anyone about the altercation between himself and Mychel and in fact called

Mychel‟s sister and inquired about her whereabouts while knowing that she was

dead; and lied to the police repeatedly about his involvement in Mychel‟s death.

See State v. Sprinkle, 01-137 (La.App. 1 Cir. 10/17/01), 801 So.2d 1131, writ

denied, 01-3062 (La. 10/25/02), 827 So.2d 1174, cert. denied, 123 S.Ct. 1358, 537

U.S. 1235 (2003). “Fabrication is evidence of consciousness of guilt, not self-

defense.” State v. Russell, 42,479, p. 9 (La.App. 2 Cir. 9/26/07), 966 So.2d 154,

162, writ denied, 07-2069 (La. 3/7/08), 977 So.2d 897. Similarly, concealment of

10

evidence is indicative of guilty knowledge. Id. Accordingly, we conclude that the

State offered sufficient evidence to disprove the defendant‟s assertion of self-

defense.

The defendant also asserts that the State failed to establish that he had the

specific intent to kill or inflict great bodily harm. As detailed previously, the State

offered the defendant‟s own admission that he manually strangled Mychel after

knocking her unconscious. “The act of choking another person has been

repeatedly recognized as indicative of a specific intent to kill.” State v. Guillory,

10-1175, pp. 12-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 801, 809. Accordingly, a

rational trier of fact could have concluded that the defendant‟s actions in knocking

Mychel unconscious and then choking her until she died to be sufficient to

conclude that the defendant had the specific intent to kill or inflict great bodily

injury.

Thus, we conclude that a rational trier of fact could have concluded that the

State proved beyond a reasonable doubt the elements of the responsive verdict of

manslaughter with regard to the death of Mychel Cleaver. Accordingly, we find no

merit to the defendant‟s assignments of error with regard to the sufficiency of the

evidence.

Sentencing

The defendant also assigns error to the trial court‟s imposition of sentence,

contending that the trial court erred in failing to adequately consider the sentencing

factors contained in La.Code Crim.P. art. 894.1 and that his sentence is

unconstitutionally excessive.

As an initial matter, we note that although the defendant filed both a

counseled and pro se motion to reconsider sentence, neither of those motions raised

11

any grounds for reconsideration other than the bare assertion that his sentence was

excessive. We conclude that, pursuant to State v. Mims, 619 So.2d 1059

(La.1993), this is insufficient to satisfy the requirements of La.Code Crim.P. art.

881.1(E). Accordingly, we decline to consider the defendant‟s assignment of error

concerning the trial court‟s consideration of the sentencing factors contained in

La.Code Crim.P. art. 894.1, and conclude that the defendant is limited to a bare

excessiveness review of his sentencing claims. Mims, 619 So.2d 1059.

The law concerning appellate review of excessive sentencing claims is well-

settled. In State v. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153

So.3d 1002, 1005, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261 (alteration in

original), a panel of this court reiterated the standards for appellate review of

excessive sentencing claims, stating:

Sentences within the statutory sentencing range can be
reviewed for constitutional excessiveness. State v. Sepulvado, 367
So.2d 762 (La.1979). In 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, a panel of this court discussed the
review of excessive sentence claims, stating:

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,

12

cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d
539 (1996).

Further, in reviewing the defendant‟s sentences, the appellate
court should consider the nature of the crime, the nature and
background of the offender, and the sentences imposed for similar
crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183.

However, although sentences for similar crimes may be of some use, the

reviewing court should keep in mind that it is well-settled that sentences must be

individualized to the particular offender and the particular offense committed.

State v. Smith, 02-719 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, writ denied, 03-

562 (La. 5/30/03), 845 So.2d 1061. Similarly, as the trial court is “in the best

position to assess the aggravating and mitigating circumstances presented by each

case,” it is within the trial court‟s purview to particularize each sentence. Id. at

739. As a general rule, maximum sentences are appropriate for the most serious

violations and the worst type of offender. Russell, 966 So.2d 154.

The defendant herein was indicted for second degree murder, a violation of

La.R.S. 14:30.1. That statute provides that “[w]hoever commits the crime of

second degree murder shall be punished by life imprisonment at hard labor without

benefit of parole, probation, or suspension of sentence.” La.R.S. 14:30.1(B).

However, the defendant was convicted of the lesser offense of manslaughter, a

violation of La.R.S. 14:31. As relevant herein, the sentencing provisions of

La.R.S. 14:31 provide that “[w]hoever commits manslaughter shall be imprisoned

at hard labor for not more than forty years.”

The defendant was sentenced to forty years at hard labor, the maximum

sentence for manslaughter. Given the nature of the crime, the nature and

background of the offender, and the sentences imposed for similar crimes, we find

13

that the trial court did not abuse its discretion in imposing the maximum sentence.

Although the jury may have found that the crime occurred during an altercation

that was instigated by the victim, the defendant first knocked the victim

unconscious and then choked her until she died. The defendant then attempted to

conceal his responsibility for her death by disposing of the victim‟s body and other

evidence, feigning ignorance of the victim‟s whereabouts, and lying to the police

about his involvement.

The record indicates that the defendant was in his mid-to-late forties, was

married and has one child, and was gainfully employed at the time of the offense.

Further, the defendant had multiple misdemeanor convictions and a prior felony

conviction, along with arrests for domestic violence and multiple batteries.

A review of comparative cases reveals that the maximum sentence has been

imposed for similar cases and offenders. In Russell, 966 So.2d 154, the defendant

was charged with second degree murder after he shot his stepfather twice, killing

him, and then buried his body in a shallow grave. Although the defendant claimed

self-defense, the jury rejected that contention and found the defendant guilty of the

lesser charge of manslaughter. Id. The second circuit upheld that sentence, noting

that the trial court‟s remarks suggested that “the trial court believed that defendant

received great lenience from the jury by being convicted of the lesser crime of

manslaughter instead of the crime charged, second degree murder.” Id. at 168.

In State v. Lanieu, 98-1260 (La.App. 1 Cir. 4/1/99), 734 So.2d 89, writ

denied, 99-1259 (La. 10/8/99), 750 So.2d 962, the defendant was also charged with

second degree murder after shooting the victim twice during an argument between

the two men. The defendant claimed that the victim appeared to be reaching for a

gun when the defendant fired the first shot. Id. However, the jury found the

14

defendant guilty of manslaughter and the trial court imposed sentence of forty

years at hard labor. Id. The first circuit affirmed that sentence, noting that:

after the defendant and the victim had argued and cursed at each
other, the defendant reached into the victim‟s car, pointed his gun
through the passenger side window and shot the victim, the driver of
the car, twice in the head. . . . Additionally, at least one witness
testified that there was a pause of one to three minutes between the
first and second gunshot. After the shooting, the defendant left the
crime scene in the victim‟s vehicle with the victim‟s body in the
vehicle. He subsequently dumped the body in a field. According to
the officer who eventually stopped and arrested the defendant, when
he pursued the defendant and turned on his police lights and siren, the
defendant fled at a high rate of speed. Additionally, we note that the
defendant received a benefit when the jury chose to convict him of the
lesser crime of manslaughter as the facts of this case were sufficient to
convict him of the charged offense of second degree murder.

Id. at 98.

Although the defendant‟s arrests and convictions primarily occurred many

years before this offense, it was still within the trial court‟s discretion to consider

the defendant‟s history in this regard, and the trial court noted that the defendant‟s

criminal history was “troubling.” Further, the trial court commented that the

defendant received the benefit of being convicted for the lesser offense of

manslaughter, which has a significantly reduced sentencing exposure than the

original charge of second degree murder. The trial court additionally noted that the

defendant asserted in the pre-trial investigation that he continued to believe that the

victim died not as a result of his actions but from a drug overdose, which the trial

court found “bizarre” and an indication that the defendant did not feel remorse for

his actions.

Thus, having reviewed the record and the sentences imposed in similar

offenses, we conclude that the defendant‟s sentence is not constitutionally

15

excessive and that the trial court did not abuse its discretion. The defendant‟s

assignments of error concerning his sentence are without merit.

DECREE

For the foregoing reasons, we affirm the conviction and sentence for

manslaughter of the defendant, Dwane Edward Fox. The trial court is directed to

advise the defendant of the provisions of La.Code Crim.P. art 930.8 by sending

appropriate written notice to him within ten days of the date of the rendition of this

opinion and to file written proof in the record that the defendant received the

notice.

AFFIRMED WITH INSTRUCTIONS.

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