State of Louisiana v. Darrin Kashy Duhon -Aka- Darrin Duhon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-19
STATE OF LOUISIANA
VERSUS
DARRIN KASHY DUHON
AKA DARRIN DUHON
KKK KKK KE
APPEAL FROM THE

SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 12-243406
HONORABLE CURTIS SIGUR, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

FOR ACRE RR

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Van H. Kyzar,
Judges.

AFFIRMED.

Chad M. Ikerd

Louisiana Appellate Project

P.O. Box 2125

Lafayette, LA 70502

(225) 806-2930

COUNSEL FOR DEFENDANT/APPELLANT:
Darrin Duhon

Jeff Landry

Attorney General

Marty L. White

Andrea Barient

Assistant Attorneys General

Louisiana Department of Justice

P. O. Box 94005

Baton Rouge, LA 70804-9005

(225) 326-6200

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

The defendant, Darrin Kash Duhon,’ pled guilty to one count of manslaughter,
a violation of La.R.S. 14:31, and two counts of attempted manslaughter, violations
of La.R.S. 14:27 and La.R.S. 14:31. He was sentenced by the trial court to forty
years at hard labor on the manslaughter conviction and eight years at hard labor on
each count of attempted manslaughter, with the two eight year sentences to run
concurrently with each other, but consecutively to the forty-year sentence. The
defendant appeals his sentences. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

The facts presented at the guilty plea proceeding reveal that the defendant
and his wife lived in Breaux Bridge, Louisiana, next door to his wife’s
grandmother, Mildred Hebert, and her aunt and uncle, Emmaline and Charlie
Thibodeaux. On the morning of September 1, 2012, Mrs. Hebert and Mrs.
Thibodeaux were in the kitchen while Mr. Thibodeaux was working in the yard.
The defendant entered the home, retrieved a 9mm handgun from a closet, shot Mrs.
Hebert twice, and shot Mrs. Thibodeaux multiple times. As Mr. Thibodeaux
entered the home, the defendant also shot him. After shooting his victims, the
defendant called 911 and then returned to his home and collected his nine-year-old
son, who he drove to his brother’s job site and dropped off.

Thereafter, the defendant drove onto I-10 from the Breaux Bridge exit and
began following a vehicle driven by Allison Spikes until she exited onto
Ambassador Caffery Parkway in Lafayette. When Ms. Spikes pulled into the

parking lot of the Ambassador Caffery Inn, the defendant parked next to her and

' The defendant was identified as Darrin Kashy Duhon in the November 2, 2012 Bill of
Information, charging him with three counts of attempted first degree murder, and the February 1,
2013 Bill of Indictment, charging him with first degree murder. In various court documents, the
defendant was also identified as Darrin Duhon, Darrin K. Duhon, and Darrin Kash Duhon.
Based on a September 17, 2013 Motion for Bond Reduction, which was filed by the defendant in
proper person, we will identify the defendant as Darrin Kash Duhon.

attempted to carjack her car. He fled the scene when Ms. Spikes locked her door
and contacted the Lafayette Police Department on her cell phone. He was later
apprehended by the Abbeville Police Department following a high-speed chase,
after which he was turned over to the St. Martin Parish Sheriff's Office.

The defendant was originally charged by bill of information with three
counts of attempted first degree murder. Upon the death of one of the victims, the
state dismissed one of the attempted first degree murder charges, and a grand jury
indicted the defendant on one count of first degree murder. Both charging
instruments were filed under the same docket number. The defendant initially
entered a plea of not guilty and not guilty by reason of insanity to the three counts
of attempted first degree murder and filed a motion to form a sanity commission to
determine his sanity both at the present and at the time of the offenses. However,
after the grand jury indictment on the charge of first degree murder, the defendant
withdrew his motion for a sanity commission. The defendant entered a plea of not
guilty to the charge of first degree murder, but later changed his plea to not guilty
and not guilty by reason of insanity. Thereafter, a joint motion for a sanity
commission was filed by the state and the defendant. The defendant later entered a
guilty plea to one count of manslaughter and two counts of attempted manslaughter
pursuant to a plea agreement and was sentenced as stated.

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 find there is
one error patent concerning the withdrawal of the request for the appointment of a
sanity commission.

Louisiana Code of Criminal Procedure Article 642 states:

The defendant’s mental incapacity to proceed may be raised at
any time by the defense, the district attorney, or the court. When the
question of the defendant’s mental incapacity to proceed is raised,
there shail be no further steps in the criminal prosecution, except the
institution of prosecution, until the defendant is found to have the
mental capacity to proceed.

On January 22, 2013, defense counsel filed a pleading entitled “Motion to
Form Sanity Commission” in which he requested the appointment of a sanity
commission to examine the mental condition of the defendant both at the present
time as well as at the time of the offenses. The motion indicated that the request
was based on a defense investigator’s observation that the defendant showed
characteristics of having a mental disorder. The trial court set the matter for
hearing on February 7, 2013. The court minutes and the transcript from that day
indicate that defense counsel withdrew the motion prior to the trial court’s ruling
thereon and that the defendant was not present in court for the hearing. In
requesting to withdraw the motion, defense counsel stated:

Your Honor, the Public Defender’s Office represents Mr. Duhon. It is

set today for a Motion for Your Honor, that motion was filed a while

back when Mr. Duhon was originally arrested for three (3) counts of

attempted murder. One of the alleged victims subsequently died and

he got indicted this past week for first degree murder. So in light of

that, we are going to withdraw the motion at this time because it is a

whole new ball game with the new charge. I believe that matter is

going to be set for an arraignment later this month and we will

determine if and when we will re-file the Sanity Commission at that

time.

The appointment of a sanity commission is only required when the trial
court finds that there are reasonable grounds to doubt the mental capacity of a
defendant to proceed to trial. La.Code Crim.P. art. 643. In State v. Normand, 04-
840, pp. 3-4 (La.App. 3 Cir. 12/15/04), 896 So.2d 98, 100, writ denied, 05-231 (La.
5/6/05), 901 So.2d 1094, this court stated as follows:

The appointment of a sanity commission “is not a perfunctory

matter or a ministerial duty of the trial court nor is it guaranteed to
every accused in every case.” State v. Nix, 327 So.2d 301, 323

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(La.1975); State v. Sepulvado, 93-2692 (La.4/8/96), 672 So.2d 158.
The burden of proof lies with the defendant. The defendant must show
“by a clear preponderance of the evidence reasonable grounds for the
trial judge to believe he is mentally deficient.” State v. Cyriak, 96-
661, p. 8 (La.App. 3 Cir. 11/6/96), 684 So.2d 42, 47. Moreover, “[t}he
fact that the defendant’s capacity to proceed is called into question
does not, for that reason alone, require the trial court to order a mental
examination of the defendant.” **4 State v. Lott, 574 So.2d 417, 424
La.App. 2 Cir.), writ denied, 580 So.2d 666 (La.1991), affirmed after
remand, 27,849 (La.App. 2 Cir. 4/3/96), 671 So.2d 1182. The trial
court has great discretion in ruling on a determination of competency,
and its decision will not be overturned on appeal absent an abuse of
discretion. State v. Comeaux, 514 So.2d 84 (La.1987); State v.
Lowenfield, 495 So.2d 1245 (La.1985).

We find that the trial court erred in failing to specifically rule on the
defendant’s January 22, 2013 motion to appoint a sanity commission contesting the
defendant’s capacity to proceed before allowing counsel to withdraw the motion.

In State v. Tyler, 11-1123 (La.App. 3 Cir. 5/9/12), 89 So.3d 510, writ denied,
12-1314 (La. 11/30/12), 103 So.3d 364, the defendant claimed on appeal that the
trial court erred in allowing defense counsel to withdraw a motion to appoint a
sanity commission as it was a prohibited step in furtherance of the prosecution.
The trial court had signed an order appointing a sanity commission, but the
defendant had not yet been examined. Although the contradictory hearing on the
motion was scheduled, the motion to request a sanity commission was withdrawn
by defense counsel. This court found merit to the defendant’s claim, stating:

Louisiana Code of Criminal Procedure Article 643 requires the
trial court order a mental examination of Defendant when it has
reasonable ground to doubt Defendant’s mental capacity to proceed.
Louisiana Code of Criminal Procedure Article 644 requires the court
appoint a sanity commission to examine and report on the mental
condition of Defendant within seven days after a mental examination
is ordered. The examination was ordered in the present case,
indicating the trial court found reasonable ground to doubt
Defendant’s capacity to proceed. See State v. Strain, 42,809 (La.App.
2 Cir. 12/5/07), 972 So.2d 1184, and State v. Nomey, 613 So.2d 157
(La. 1993). Withdrawal of a motion to appoint a sanity commission
has been found to be a further step in the prosecution which
improperly removes the ultimate decision of competency from the
trial court. State v. Carney, 25,518 (La.App. 2 Cir. 10/13/95), 663

4

So.2d 470, Strain, 972 So.2d 1184, State v. Darnell, 43,048 (La.App.
2 Cir. 8/13/08), 988 So.2d 870. Thus, we find allowing the case to
move forward in the absence of a determination that Defendant had
the capacity to proceed was legal error.

Id. at 513-14.

Unlike the facts in Tyler, the trial court here had not yet appointed a sanity
commission, and thus had not yet ruled on whether the defendant had presented
reasonable grounds to doubt his mental capacity to proceed. It is further noted that
the basis for the initial motion for a sanity commission was a broad, non-specific
assertion that the defendant showed “characteristics of having a mental disorder[,]”
which were observed by defense counsel’s investigator. Accordingly, the question
becomes whether the trial court should have determined whether the defendant was
competent to proceed or whether his request for the sanity commission was
without merit, rather than simply permitting defense counsel to withdraw the
motion outside of the presence of the defendant.

In State v. Carney, 25,518, pp. 4-5 (La.App. 2 Cir. 10/13/95), 663 So.2d
470, the court, in addressing the trial court’s role relative to issues of a defendant’s
capacity to proceed, stated the following:

“Due process and our statutory law require that the issue of the
defendant’s mental capacity to proceed shall be determined by the
court.” [State v.] Rogers, [419 So.2d 840, 843 (La. 1982)]. “This
cardinal principle . . . prohibits [the court] from committing the
ultimate decision of competency to a physician or anyone else.” Jd.
Furthermore, the above articles, when read in pari materia, implicitly
require the trial court to rule on the defendant’s motion and determine
whether a “reasonable ground to doubt the defendant’s mental
capacity” exists before proceeding further in the prosecution.
Withdrawing a motion to appoint a sanity commission is a further step
in the prosecution. Also, permitting such a motion to be withdrawn
takes the ultimate decision of competency away from the court. Thus,
although a mental examination may not be required in every case
where the issue of mental capacity is raised, State v. Wilkerson, 403
So.2d 652 (La. 1981); State v. Folse, 623 So.2d 59 (La.App. Ist Cir.
1993), the record must reflect that the trial court made a determination
of whether or not reasonable grounds exist to doubt the defendant’s
capacity to proceed.

After finding that the defendant had sufficiently raised the issue of his
capacity to proceed following his indictment, the court, in reversing the
defendant’s conviction, stated as follows:

After the defendant raised the issue, the trial court allowed
further steps in the prosecution to occur without making a
determination of the defendant’s mental capacity to proceed to trial.
When defense counsel withdrew the motion to appoint a sanity
commission, the defendant was not present and the trial court did not
observe or question him about his mental capacity. At the very least,
the record should reflect that the trial court should have personally
observed the defendant and questioned him as to his understanding of
the proceedings to determine if a “reasonable ground” existed to doubt
his mental capacity. Further, as noted by the United States Supreme
Court, it is contradictory to argue that a defendant may be mentally
incompetent, and yet he may knowingly or intelligently waive his
right to have the court determine his mental capacity to stand trial.
Pate [v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815
(1966)], State v. Harris, 406 So.2d 128 (La. 1981).

Once a motion to appoint a sanity commission has been made,

it takes on a life of its own as nothing further can happen without

resolving the issue of the defendant’s mental capacity. An attorney

independently waiving or withdrawing the motion is an insufficient
resolution of the issue. The trial court, not the defense attorney, is
mandated to determine the defendant's mental capacity to proceed and

rule on the motion. LSA-C.Cr.P. Arts. 642 and 643.

Id. at 473.

Accordingly, we find that the trial court erred in allowing the withdrawal of
the defendant’s motion to appoint a sanity commission without first specifically
ruling on the motion. However, unlike in Carney, we find that the trial court
specifically considered the issue when it denied a similar motion contesting the
defendant’s capacity, which was later filed by the defendant’s wife, allegedly on
his behalf.

The motion, which was filed on August 11, 2015, requested the appointment

of a sanity commission to determine both the defendant’s mental capacity to

proceed and his sanity at the time of the offenses. Court minutes from that date

reflect that a hearing was held to consider, among other issues, whether the
defendant had the mental capacity to proceed. The defendant, who was present
and represented by counsel, testified in court, and at the close of the hearing, the
trial court denied the motion in writing. In doing so, the trial court specifically
determined that there were no reasonable grounds to doubt the defendant’s
competency to proceed. This matter was further laid to rest on August 13, 2015,
when defense counsel specifically refused in open court to join in the motion.

In addition to addressing the defendant on August 11, 2015, the trial court
had the benefit of having him before it on numerous other occasions when his
competency to proceed was discussed. On July 29, 2013, after the withdrawal of
the initial motion to appoint a sanity commission, defense counsel informed the
trial court that he would be filing another motion for a sanity commission to
determine the defendant’s sanity at the time of the offenses. On September 30,
2013, defense counsel, in the presence of the defendant, informed the trial court
that he had filed a motion for a sanity commission to determine the defendant’s
sanity solely at the time of the offense. In doing so, defense counsel stated, “[w]e
are conceding that he is competent to proceed. The motion was very specific on
that.” Defense counsel further indicated that the defendant wished to change his
plea on the charge of first degree murder from not guilty to not guilty and not
guilty by reason of insanity. In light of this change, the state agreed with the
appointment of a sanity commission and agreed to submit an order for the trial
court’s signature.

The October 17, 2013 order appointed Dr. Michelle Garriga, M.D. and Dr.
Rafeal Salcedo, Ph.D. to determine the defendant’s sanity at the time of the
offenses. Court minutes dated August 10, 2015 and November 2, 2015, indicate

that defense counsel informed the trial court that the defendant had been found
7

competent to stand trial by these experts. The defendant’s capacity to proceed is
further reflected in Dr. Garriga’s January 20, 2014 report and in Dr. Salcedo’s
November 13, 2015 report, which references his November 4, 2013 finding that the
defendant was competent to stand trial.

The defendant’s competency was also addressed at the January 22, 2016
hearing on defense counsel’s motions to withdraw as counsel and to continue the
hearing. During the hearing, the trial court read from Dr. Salcedo’s November 4,
2013 report, including the finding that the defendant was competent to stand trial.
The state further relied on Dr. Garriga’s October 11, 2015 and Dr. Salcedo’s
November 13, 2015 reports as part of its factual basis during the defendant’s
February 12, 2016 guilty plea proceeding. Although these reports address the
defendant’s mental state at the time of the commission of the offense, Dr. Salcedo,
as stated previously, referenced his earlier finding that the defendant was
competent to stand trial. During this hearing, a separate trial judge found, after an
extensive Boykin examination, that the defendant acted knowingly, intelligently,
and voluntarily in waiving his constitutional rights before accepting his guilty plea.
Thus, the trial judge acknowledged that the defendant was, in fact, competent to
enter his plea.

In State v. Bonicard, 98-665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, writ
denied, 99-2632 (La. 3/17/00), 756 So.2d 324, one of the two physicians who
examined the defendant testified he was competent to proceed, and the parties
stipulated that the remaining physician’s testimony would be the same. After the
matter was submitted, the trial court set the case for trial without specifically
stating that it found the defendant competent. The fourth circuit held that the trial
court’s setting of a trial date indicated that it found the defendant competent to

proceed. Additionally, the court minutes and the docket master both indicated the
8

defendant was found competent. The instant case presents an even stronger
rational for our conclusion in that the trial court specifically determined that the
defendant had the mental capacity to proceed at the August 11, 2015 hearing.

Accordingly, while we conclude that it was error for the trial court to allow
defense counsel to withdraw the motion to appoint a sanity commission at the
hearing on January 22, 2013, we find that error to be harmless in light of the trial
court’s denial of the August 11, 2015 motion for a sanity commission. Given this
ruling, together with the overwhelming evidence in support thereof, we find that
there can be no doubt that the defendant was competent during the entirety of these
proceedings. Therefore, while this court concedes the error of the trial court, we
find this to be a harmless error in light of the trial court’s subsequent actions.

ASSIGNMENTS OF ERROR

The defendant alleges two errors on appeal:

1. The trial court erred by sentencing [the defendant] to forty-
years [sic] at hard labor for Manslaughter and not fully
considering the mitigating factors in this case.

2. ‘The trial court erred by making the sentence for one charge
consecutive to the others when all three charges resulted from
one act of violence.

In his first assignment of error, the defendant argues that the trial court erred
in sentencing him to the maximum forty-year sentence for manslaughter without
fully considering the mitigating factors in his case, such as his mental illness, his
documented pleas for help with his mental issues, his lack of a criminal record
demonstrating violence toward people, and the lack of evidence demonstrating that
he was wicked or malicious in his normal life and interactions. He noted that the
only evidence of prior violence arose from a protective order obtained by his step-

father, after he evicted the defendant and his family from a home owned by his

mother after her death. The defendant also questions the trial court’s failure to
9

mention the mitigating fact that he immediately called 911 to obtain help for the
victims and its conclusion that his attempt to ask directions from a motorist was, in
fact, an attempted carjacking. The defendant claims that there is nothing in the
record to establish that the car at issue had a Mississippi license plate or any other
feature that would indicate that the driver was from another state and would not be
a good candidate to provide directions.

In his second assignment of error, the defendant contends that the trial court
erred in ordering the sentences for attempted manslaughter to run consecutively,

rather than concurrently, to the manslaughter sentence, as these three offenses

resulted from a single incident. We will address these two assignments together.

“[MJaximum sentences are generally reserved for the worst offenders and
the worst offenses.” State v. Fallon, 15-1116, p. 6 (La.App. 3 Cir. 4/6/16), 189
So.3d 605, 609. The standard of review applicable to a claim of excessive
sentence was set out by this court in State v. Barling, 00-1241, 00-1591 p. 12
(La.App. 3 Cir. 1/31/00), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.
2/1/02), 808 So.2d 331:

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

*The defendant’s plea agreement was “open ended” as to his sentence for manslaughter.
The defendant’s plea agreement as to the attempted manslaughter charges was “capped” at
fifteen years. The decision of whether to run the sentences concurrently or consecutively was
left up to the court, but the agreement required that the combined sentences must not exceed fifty
years. The plea agreement expressly reserved the defendant’s right to appeal the excessiveness
of any sentence imposed.

10

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).

In State v. Frazier, 14-1132, pp. 14-15 (La.App. 3 Cir. 3/4/15), 157 So.3d
1266, 1275-76 (alteration in original), writ denied, 15-657 (La. 2/26/16), 187 So.3d
467, this court stated:

Even though a penalty falls within the statutory sentencing
range, it may still be unconstitutionally excessive:

In deciding whether a sentence is shocking or
makes no meaningful contribution to acceptable penal
goals, an 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. 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.” 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. 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 (citations
omitted). “[T]he trial judge need not articulate every aggravating and
mitigating circumstance outlined in [La.Code Crim.P.] art. 894.1[;]
the record must reflect that he adequately considered these guidelines
in particularizing the sentence to the defendant.” State v. Smith, 433
So.2d 688, 698 (La.1983) (citing State v. Ray, 423 So.2d 1116
(La.1982); State v. Keeney, 422 So.2d 1144 (La.1982); State v.
Duncan, 420 So.2d 1105 (La.1982)). “The appellate court shall not
set aside a sentence for excessiveness if the record supports the
sentence imposed.” La.Code Crim.P. art. 881.4(D).

At the sentencing hearing, the state introduced the victim impact statements
and the sanity commission reports of Drs. Salcedo and Garriga into evidence. The
defense presented the testimony of several witnesses at the hearing.

Bobbie Leblanc, who met the defendant when he began living in her home

with her daughter, shortly after his discharge from the Marines, testified that he

11

experienced issues from his time in Iraq. These included flashbacks to scenes he
witnessed, including the deaths of children; dealing with the death of a close friend;
his fear of sudden noises; and his need to sleep with the door open and a light on.
Ms. LeBlanc testified that loud noises caused a “wild look” to come over the
defendant and that she spent twenty minutes trying to calm him down from one
such incident. She testified that the defendant was unable to obtain treatment from
the Veterans Administration (VA) because he did not have an honorable discharge.
Instead, she stated that he self-medicated by taking Adderall and using marijuana
and that he started using alcohol extensively when he quit smoking marijuana in
order to pass urine tests.

Ms. LeBlanc testified that she was not surprised by the shootings. She said
that although she tried to help him, the defendant had nowhere to turn, and nobody
would help him. On cross-examination, she stated that he was not violent toward
anyone in her family except her daughter. She stated that there were a few fights
between them where she had to intervene.

The defendant’s wife, Robyn Duhon, testified that they were living in a
barbeque house behind the victims’ home at the time of the incident. She stated
that on the morning of the incident, a noisy weed eater and blower were being
operated outside of their home and that a rock hit the window. Mrs. Duhon
testified that the defendant, who had been sleeping, got up and “walked out like in
a daze.” When he returned home, she stated that he was running, and he said to his
son, “Come on, Bennett, let’s go, let’s go.”

Mrs. Duhon testified that when he grabbed her purse to get her keys, he held
her down and put his hands on her neck, and “[s]trangled” her, when she
questioned his actions. She testified she did not believe that he was in his right

mind at that moment. After he released her, she said that the defendant took his

12

son and left in her car. On cross-examination, Mrs. Duhon testified that the
defendant dropped his son off at his brother’s job site without harming him. She
responded affirmatively when asked if the defendant knew what he did was wrong.

During questioning by the trial court, Mrs. Duhon testified that she did not
“feel that in his heart [the defendant] intended to hurt anyone that day[,]” and she
believed he had a flashback and “was not all there.” With regard to the weapon
used in the incident, Mrs. Duhon testified that the defendant’s firearms were kept
in a closet in her grandmother and uncle’s home because he was prevented from
possessing firearms as a result of a protective order obtained against him by his
step-father. She testified that when she entered the kitchen after the shooting, she
saw the defendant’s black gun on the table.

The defendant testified that he entered the Marines straight out of high
school and provided details of his training prior to his Iraq deployment. While in
Iraq, he stated that he drove trucks for an infantry platoon on the front lines. There,
he said that he witnessed many killings. After the war, he learned that a close
friend of his was killed in Iraq. The defendant testified that he named his son after
this friend.

During the war, the defendant testified that he suffered from anxiety,
depression, and the inability to sleep, but he had “no way to get help.” After
returning stateside to his duty station, the defendant testified that he thought he was
“all right” because he was back home. Although he felt that he had a problem, he
said that he did not seek help, choosing to self-medicate with marijuana instead.
He stated that the marijuana helped with his anxiety, but it eventually caused him
to fail a drug test, resulting in his discharge. The defendant testified that he was
not offered any rehabilitation and that his later attempts to obtain treatment from

the VA were rejected because his discharge was “other than honorable.” He said

13

that he had no medical insurance at that time and that he tried unsuccessfully for
years to get his discharge upgraded.

The defendant explained that the restraining order against him was brought
by his step-father, Wilmer Hebert, after he evicted the defendant and his family
from property they were fighting over after his mother’s death. When asked what
caused his step-father to secure a restraining order, the defendant explained that
they “went over there and [were] trying to get him to let us stay and settle and he
didn’t want [to.]” He stated that Mr. Hebert told him that he would have the
defendant arrested if he went to the property again, and he subsequently obtained
the restraining order against him. The defendant testified that he owned a shotgun
and a 9mm Ruger, which he purchased after he was threatened by an employee he
had fired.

The defendant described his relationships with the two female victims as
good. He said he did not talk to Mr. Thibodeaux much because “he was never
around.” Other than a DWI, the defendant had no criminal record. When asked
why he shot the victims, he said, “I have no idea, sir. Mental illness.” He testified
that he did not recall the shootings, but that he remembered waking up in a panic in
fear for his life because he heard a noise. He said that he instinctively ran to get
his pistol. The defendant testified that the next thing he recalled was calling 911,
reporting that he shot some people, and providing the Breaux Bridge address. He
said that he then drove to his childhood home in Abbeville, where “{he] felt safe.”
This was where he was arrested. When asked if he attempted a carjacking, he said
that he remembered trying to ask some people for directions, but he had no gun
and did not ask anyone for their vehicle.

On cross-examination, the defendant testified that he did not shoot his wife

and son because he left his gun in the house. He stated that he realized what had
14

happened when he went back into the house and “Mr. Charlie said call 911...
And I called 911 because I had shot some people.” After the shooting, the
defendant admitted that he forced the car keys from his wife and then took his son
to his brother’s job site, but could not explain why, responding, “I have no idea,
sir.” He affirmed that he wanted his son to be safe and that he left to avoid arrest.
Although he admitted to using marijuana, Adderall, and also Lortab (which he was
prescribed due to a job injury), he denied using or taking any such substance on the
day of or the day prior to the shootings.

After dropping his son off, the defendant explained that he was heading to
his childhood home after the shootings. He stated that he tried to ask for directions
because he was dazed, confused, and unsure of where he was, being unfamiliar
with Breaux Bridge. He said that he followed a car off the interstate and asked the
occupants, whom he believed to be a man and a woman from Mississippi, for
directions. When asked why he would ask someone from Mississippi for
directions in Louisiana, he replied, “I wasn’t in my right state of mind.” The
defendant testified that police began following him when he reached the main
highway in Abbeville and arrested him when he arrived at his childhood home.
The defendant said he had no idea why he left the gun at the scene of the incident,
stating, “Wasn’t in my right state of mind. I mean I wasn’t trying to hide it.”

Dr. Marc Zimmerman, an expert in the field of psychology, testified that he
reviewed the defendant’s military records and, over the course of four hours,
interviewed and performed tests on the defendant. He concluded that the
defendant was suffering from Post-Traumatic Stress Disorder (PTSD) brought on
by his service in Iraq. He stated that Ms. Leblanc’s testimony regarding the
defendant’s behavior was consistent with his findings. Dr. Zimmerman confirmed

that someone getting up out of a sound sleep, entering a separate home, grabbing a

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gun, and shooting three people is consistent with someone suffering from PTSD.
He confirmed that it is possible to develop PTSD from being incarcerated and that
the defendant could have developed this disorder from his time in jail; however, he
said that this would not explain the defendant’s actions before he went to jail.

Dr. Zimmerman had no explanation for why the defendant would shoot the
three victims, but not shoot his wife and son. He stated that what happened was
“an illogical and irrational thing.” He said that the defendant told him that he was
afraid he was going to be harmed by someone and when he heard someone say,
“Call 911,” it brought him back to reality. Based on what the defendant told him,
Dr. Zimmerman stated that it was his opinion that the defendant could not
distinguish between right and wrong at the time of the incident. With regard to Dr.
Salcedo’s report, which concluded that the defendant was capable of distinguishing
between right and wrong and that he was legally sane at the time of the offenses,
Dr. Zimmerman said that he did not know what Dr. Salcedo based his findings on
and that the defendant’s presentation may have been different when he saw him.
His answer was the same with regard to Dr. Garriga’s report, which reached the
same conclusion as Dr. Salcedo’s. With regard to Dr. Garriga’s assertion that the
defendant appeared to be psychotic at the time of the offenses, but that the
psychosis was consistent with a substance induced psychosis, rather than PTSD or
another mental illness, Dr. Zimmerman testified that he was not aware of any
instance where a diagnosis of PTSD was based on drug use.

After hearing the evidence, the trial court summarized its reasons for
sentencing the defendant. It noted that upon the death of Mrs. Hebert, the
defendant faced the death penalty or life imprisonment for first degree murder and
fifty years on each of the two counts of attempted first degree murder. The trial

court then recounted the details of the shootings of the three elderly victims, noting
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that the defendant purposely emptied his clip as the victims lay on the kitchen floor
and that he told the investigating officer that he would have emptied another clip if
he had had it.

In addressing whether the defendant had a mental breakdown or anger issues,
the trial court stated that it felt that the defendant’s actions were evil. It then
referenced the reports of Drs. Salcedo and Garriga, noting Dr. Garriga’s finding
that the defendant’s psychosis was substance induced, rather than mentally induced,
which is necessary to qualify for the insanity defense.

The trial court then detailed the defendant’s actions following the shootings,
finding them to be “calculated well throughout.” It stated that even if the
defendant suffered from some type of disorder, it did not find, “as [Dr.
Zimmerman] did,” that it affected the defendant’s understanding of what he did.
The trial court then reviewed in detail the sentencing guidelines contained in
La.Code Crim.P. art. 894.1(A) and (B) and specifically found that all of the factors
favoring the imposition of imprisonment were applicable to the defendant’s crimes.

With regard to mitigating circumstances, the trial court stated:

This Court has searched long and hard for any mitigating
factors on behalf of Mr. Duhon. I have been unable to find any
mitigating factors except he has two children, he has a wife, he served
in the military but he was discharged due to his use of drugs, which he
continued to use during this period of time and up [till] the time he
murdered Mrs. Hebert and he shot Mr. and Mrs. Thibodeaux.

His criminal history shows in 2010 he was found guilty of
Operating a Vehicle While Intoxicated. However, any mitigating
factors he may have is [sic] overwhelmed by all of the earlier stated
aggravating factors.

The record indicates that the trial court was fully aware of the potentially
mitigating factors concerning the defendant’s mental issues, his history of non-

violent crime (DWI), the fact that the protective order against him had resulted

from a family-property dispute, and the lack of malice in his “normal life.”

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Acknowledging that the defendant might suffer from some disorder, the trial court
chose to rely on the conclusions reached by Drs. Garriga and Salcedo, rather than
the opinions of Dr. Zimmerman.

As for the defendant’s immediate call to obtain help for the victims, the
defendant testified that his call to 911 was in response to a request by Mr.
Thibodeaux; thus, it was not entirely of his own volition. Additionally, the
defendant’s assertion that the record does not establish that Ms. Spikes’ car had a
Mississippi license plate or any feature identifying it as an out-of-state vehicle was
refuted by his own testimony that the couple in the car he approached were from
Mississippi.

In State v. Plauche, 09-400 (La.App. 3 Cir. 1/6/10), 32 So.3d 852, writ
denied, 10-302 (La. 9/24/10), 45 So.3d 1070, this court upheld the imposition of
the maximum sentence for manslaughter under circumstances where the defendant
shot his wife in the neck two weeks after he learned she was having an affair and
failed to offer her any aid after the shooting. In mitigation, the trial court noted
that the defendant had no history of criminal activity, the circumstances were
unlikely to reoccur, and it noted that imprisonment would impose excessive
hardship on the defendant’s children. The trial court concluded that although the
jury had convicted the defendant of manslaughter, the facts were more akin to a
second degree murder, the crime with which he was originally charged.

In State v. Soriano, 15-1006 (La.App. 3 Cir. 6/1/16), 192 So.3d 899, this
court held that the imposition of the maximum sentence for manslaughter was not
excessive where the defendant, a first felony offender, who was cooperative after
his arrest, stabbed the victim once and, after the victim retreated, chased him down

and stabbed him again. The defendant’s claim of self-defense was rejected by the

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trial court, which concluded that there was no explanation for the defendant’s
failure to retreat and his act of chasing the victim and stabbing him again.

In the present case, we find that the trial court did not abuse its discretion in
imposing the maximum forty-year sentence. The entry of the guilty plea to
manslaughter benefitted the defendant substantially because he faced the death
penalty or life imprisonment without the benefit of parole, probation, or suspension
of sentence for first degree murder. This was a heinous crime against defenseless,
elderly victims, and, as the trial court held, two experts concluded that the
defendant was capable of distinguishing right from wrong at the time of the
shootings. Accordingly, we affirm the defendant’s sentence for manslaughter,
finding that the trial court did not abuse its discretion by imposing a forty-year
sentence for the crime.

Turning now to the defendant’s claim that the trial court erred in ordering his
two eight-year sentences to run consecutively to his forty-year sentence, we note
that La.Code Crim.P. art. 883 provides in pertinent part:

If the defendant is convicted of two or more offenses based on

the same act or transaction, or constituting parts of a common scheme

or plan, the terms of imprisonment shall be served concurrently unless

the court expressly directs that some or all be served consecutively.
Although concurrent sentences are preferred in the imposition of sentences for
offenses based upon a common scheme or plan, the trial court has the discretion to
impose consecutive sentences provided “that the trial court articulates particular
justification for doing so at sentencing.” State v. Richardson, 16-107, p. 30
(La.App. 3 Cir. 12/28/16), 210 So.3d 340, 360. The factors upon which a trial
court may base consecutive sentences include “the offender’s past criminality,

violence in the charged crimes, or the risk he or she poses to the general safety of

the community.” State v. Thomas, 98-1144, p. 1 (La. 10/9/98), 719 So.2d 49, 49.

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In the present case, the trial court ordered the two eight-year attempted
manslaughter sentences to run concurrently, but ordered that they run
consecutively to his forty-year manslaughter sentence. When defense counsel
objected to the imposition of consecutive sentences, the trial court stated:

Mr. Legros, when somebody walks into a kitchen and kills a
ninety year old woman, I have problems with that. Then turns around

and shoot[s] a seventy-two year old man and a sixty-nine year old

woman and makes the statement to the police that he emptied his clip.

Then he goes in his house and batters his wife, brings his kid

somewhere to be safe, gets on the highway and tries to carjack a

young woman for her car, because now he knows the police [are]

looking for him, and he darts off to Abbeville.

The reasons given by the trial court amply support the imposition of
consecutive sentences. Further, even in the absence of articulated reasons for
imposing consecutive sentences, “the record as a whole can be considered in
determining whether consecutive sentences were justified.” State v. Blunt, 16-220,
p. 34 (La.App. 3 Cir. 9/28/16), 201 So.3d 358, 378. Thus, the substantial benefit
the defendant received as a result of the plea bargain can be considered and further
supports the imposition of consecutive sentences. Accordingly, we affirm the
defendant’s sentences, finding that the trial court did not abuse its discretion in
ordering the defendant’s sentences for attempted manslaughter to run
consecutively to his sentence for manslaughter.

DISPOSITION
For the foregoing reasons, the defendant’s convictions and sentences are

affirmed.

AFFIRMED.

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