State of Louisiana v. Deonta Ware

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-271

STATE OF LOUISIANA

VERSUS

DEONTA WARE

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 14-K-2521-A
HONORABLE JAMES PAUL DOHERTY, JR., DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

AFFIRMED.

Earl B. Taylor
Twenty-seventh Judicial District Court District Attorney
Jennifer Ardoin
Assistant District Attorney
P. O. Drawer 1968
Opelousas, LA 70571
(337) 948-3041
COUNSEL FOR STATE-APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P.O.Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT-APPELLANT:
Deonta Ware

PICKETT, Judge.

FACTS

On March, 29, 2010, while driving a truck, the defendant, Deonta Ware,

struck the victim, Tryell Jenkins, who was riding a bicycle. The defendant left the

scene of the crash. The victim died as a result of the injuries suffered when the

truck hit his bicycle.

The defendant was indicted on July 23, 2014, for the second degree murder

of Tryell Jenkins. A jury trial commenced on January 20, 2016. However, on

January 22, 2016, the trial court granted the defendant’s motion for a mistrial. A

second jury trial commenced on September 19, 2016. On September 21, 2016, the

jury returned a unanimous verdict of manslaughter, a violation of La.R.S. 14:31.

The defendant was sentenced on November 3, 2016, to thirty years imprisonment

at hard labor, with credit for time served. While the defendant objected to the

sentence in open court, he did not file a motion to reconsider the sentence.

The defendant has perfected a timely appeal., wherein he alleges insufficient

evidence to convict him of manslaughter, the trial court erred by not granting a

mistrial, the sentence was excessive, and the trial court erred when it allowed

evidence of other crimes to be admitted at trial. For the following reasons, we find

no merit to the defendant’s allegations of error.

ASSIGNMENTS OF ERROR

On appeal, the defendant asserts four assignments of error:

1. The State failed to sufficiently prove that Deonta Ware
was guilty of manslaughter.

2. The trial court erred by not granting a mistrial during the State’s
rebuttal when the State impermissibly shifted the burden of proof to
Deonta Ware.

3. The thirty-year sentence in this case is constitutionally
excessive.

4. The trial court erred in allowing the State to introduce
impermissible other crimes evidence.

ERRORS PATENT

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

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

we find there are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant argues that the evidence was insufficient to sustain the

verdict. In brief, he contends that “[t]he State’s case for manslaughter at trial was

to argue that Deonta acted with specific intent to kill Mr. Jenkins. He asserts

“[t]here was a lack of physical evidence that pointed to Deonta intentionally killing

Mr. Jenkins — as opposed to it being an accident.”

The defendant was charged with second degree murder. Louisiana Revised

Statutes 14:30.1 defines second degree murder as “the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm[.]”

The defendant, however, was found guilty of the responsive verdict of

manslaughter. Manslaughter, in pertinent part, is defined 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.

(a) When the offender is engaged in the perpetration or
attempted perpetration of any felony not enumerated in Article 30 or
30.1, or of any intentional misdemeanor directly affecting the
person[.]
2

La.R.S. 14:31.

When the defendant does not object to a legislatively established responsive

verdict, the defendant’s conviction will not be reversed, “whether or not that

verdict is supported by the evidence, as long as the evidence is sufficient to support

the offense charged.” State ex rel. Elaire v. Blackburn, 424 So.2d 246, 252

(La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432 (1983). Manslaughter is a

legislatively established responsive verdict to second degree murder. La.Code

Crim.P. art. 814(A)(3). The defendant did not object to the responsive verdict of

manslaughter prior to the jury rendering its verdict. Therefore, it is only necessary

to consider if the evidence was sufficient to support the offense of second degree

murder. State v. Johnson, 11-336 (La.App. 3 Cir. 2/14/12), 91 So.3d 365.

At trial, the following evidence and testimony was submitted to the jury for

consideration:

Brodie Ortego, a sergeant with the Opelousas Police Department, was on

patrol the night of March 29, 2010. He and Officer Catina Guilbeau were called to

the scene of an accident. Upon arrival, Sgt. Ortego observed a deceased, black

male lying alongside the roadway. The sergeant identified several photographs of

the scene. The photographs showed the victim’s body, scattered bike parts, pieces

of plastic picked up from the roadway that the sergeant speculated were pieces of

the vehicle that struck the victim’s bike, and a gouge in the roadway the sergeant

speculated was the impact site. These photographs were published to the jury.

Sgt. Ortego, a certified accident reconstructionist, testified that the victim and the

vehicle that struck him were both travelling northbound. The initial impact was to

the bike’s rear tire. He testified the bike had reflectors on the pedals and the victim

had reflectors on the heels of his shoes. There were no eyewitnesses to the crash.

3

Mark Dupont, a paramedic for Acadian Ambulance and a death investigator

for the St. Landry Parish Coroner’s Office, testified that when he observed the

victim’s body on the ground, it was extremely contorted. The victim’s body was

arched, like in a backbend, and his neck was bent backwards. The victim suffered

multi-organ system trauma. The injuries were extensive. Mr. Dupont speculated

the victim was hit at high speed by a vehicle.

Mark Kuroski, a forensic scientist with a specialty in trace analysis, testified

that an examination of the pieces of plastic and other particles picked up from the

roadway at the crash site came from a Dodge or Chrysler pickup. Mr. Kuroski

agreed there was never a vehicle identified as the vehicle that struck the victim.

Greg Leblanc, a lieutenant with the Opelousas Police Department, was in

charge of investigation. He testified that he interviewed the defendant as a witness

about a week after the crash. The defendant told him that he was “passing through

the scene and he seen a dually truck, a low-rider dually truck, possibly a Dodge,

strike the victim.” Lt. Leblanc stated that at one point, he went to Levergne’s

Towing to view a badly burnt-up Dodge, dually truck found a several days after the

crash, but he was unable to connect the truck to the victim’s death.

Donald Young was Chief of Detectives for the Opelousas Police Department

at the time of the investigation. He testified that in March 2012 he and Detective

Zachary went to Jackson, Mississippi, where the defendant was incarcerated at the

time to interview him regarding the hit and run in 2010. Detective Zachary had

received information that the defendant may have been the driver of the vehicle

that struck and killed the victim. The defendant gave the detectives three different

statements. First, he told the detectives that he witnessed the hit and run while

walking down the street. He said the vehicle was heading south, came across the

road, and struck the victim who was riding his bike north along the roadway.
4

When Detective Zachary told him that scenario was impossible, the defendant

changed his story to the victim was riding a bike and a Dodge truck going

northbound hit the victim. Again, there was a logistics problem with the

defendant’s story because the way he described it, the truck would have ended up

on the other side of the ditch immediately off the roadway. The third story the

defendant told the detectives was that he was riding as passenger in a four-door,

Chevy Capris. He said the driver was a man named Green. The lieutenant stated:

[H]e [Defendant] remembered the car [was] either dark green or blue,
had some 24’s or 26’s on it and he said that he was sitting down. He
said the car was headed northbound on Bullard Street and he was
sitting down behind the driver and the driver of the car said, “look at
that nigger, Tyrell. Somebody need to take this dude out,” so he
would veer out to the right. The driver veered out to the right, hit
Tyrell knocking him over into the ditch and the car veered into the
ditch and he came - - the car came out the other side of the ditch,
which is a lie, so that’s why I intervened.”

Later, when the lieutenant suggested that it may have just been an accident,

the defendant became angry and told the officers:

“[N]ah, this is a murder wrap.” He say, “I’m not taking that murder.”
He say, “Well, why you claiming it to be a murder?” He said, “it was
an accident.” He said, “Nah, I’m not taking that lick. Y’all wanting
me to take that lick.” So once again he refused to talk to us.

Brittany Berry, the defendant’s aunt, testified that in 2014 the defendant

called her from where he was incarcerated. She said he was crying and upset

because he did not make parole. She stated that during the conversation she asked

him if he was the one who killed Tyrell Jenkins. She said she asked because she

was tired of people asking her if he was the one who did it. She testified that he

told her he did hit the victim while driving a truck. She testified he said: “Yeah, I

killed the lit’ nigga (sic).” The defendant said “I killed once and I’ll kill again.”

He told her he did it because the victim had spit in the defendant’s grandmother’s

face. The defendant told Ms. Berry he had been driving a white, dually truck. Ms.

5

Berry stated that following this conversation she was very upset. She said she met

Hazel Mayon in the grocery store one day, and Ms. Mayon asked her if the

defendant killed the victim. Ms. Berry said she told Ms. Mayon what the

defendant said when Ms. Mayon came to her house a few days later. Ms. Mayon

was once the defendant’s girlfriend.

Ms. Mayon suggested they set up a three-way phone conversation with the

defendant. Ms. Mayon spoke with the defendant first, then Ms. Berry was added

to the conversation. The defendant was angry with his aunt because she told Ms.

Mayon that he had admitted to killing the victim. At some point, Ms. Berry

thought that Ms. Mayon disconnected from the conversation. She said that while

the defendant did not repeat the admission to her at the time, he did not retract his

statements either. Finally, Ms. Berry testified that right after the crash, she had

asked the defendant if he knew the victim. The defendant told her that he did and

that he had seen a dually truck hit the victim and that “white boys” were driving

the truck. Ms. Berry then called the police and told them her nephew had

information regarding the accident.

Ms. Mayon testified regarding her conversations with Ms. Berry and with

the defendant via text messaging and phone. She testified that she had been the

defendant’s girlfriend when she was thirteen or fourteen years old. At the time of

trial, she was married. After she discussed the defendant with Ms. Berry, she

exchanged text messages with the defendant wherein she told him that Ms. Berry

told her he killed Tyrell Jenkins. Shortly after the text conversation with the

defendant, she initiated a three-way phone conversation with the defendant and

Ms. Berry. She stated that when the three-way conversation began, the defendant

said ‘“Brittany, why you told Hazel ‘bout everything I told you about killing

Tyrell?”’ Ms. Mayon stated her phone died after this and she did not hear the
6

remaining conversation between Ms. Berry and the defendant. She indicated,

however, that she interpreted the above statement as an admission that he killed the

victim.

Travis Turner was temporarily incarcerated with the defendant in March

2014 at Hunt Correctional Center. He testified that the defendant told him he had

struck and killed a man with a truck because the man had spit in the defendant’s

grandmother’s face and slapped his mother. He stated the defendant mentioned

that the truck was a dually. Mr. Turner identified a note he kept for himself, dated

March 12, 2014, which summarized what the defendant had told him about the

killing, and a statement dated May 2014 that he wrote for the police, which

mentioned that the defendant said he burned the truck after the crash. Sergeant

Crystal Leblanc, with the Opelousas Police Department, interviewed Mr. Turner at

the correctional facility. She showed him a photographic lineup. Mr. Turner

identified the defendant immediately.

Another inmate, Jonathan Johnson, testified that he met the defendant at

Angola State Penitentiary. In June 2014, Mr. Johnson wrote a letter to the District

Attorney’s Office which stated the defendant had told him that he had run a man

down in a stolen vehicle and killed him. Mr. Johnson said that the defendant said

the incident happened in March 2010. The defendant told Mr. Johnson he did it

because the victim had struck his grandmother.

Finally, Anitra Ware, the defendant’s mother testified that no one ever

slapped her in the face. Furthermore, no one ever spit in the defendant’s

grandmother’s face. Ms. Ware’s mother was deceased at the time of trial.

In brief, the defendant seemingly argues that the state failed to prove all the

elements of the offense of manslaughter. He points out that “[t]he State’s case for

7

manslaughter at trial was to argue that Deonta acted with specific intent to kill Mr.

Jenkins. . . .The evidence, however, did not prove specific intent.”

The defendant was charged with second degree murder, which required the

state to prove that he had the specific intent to kill or inflict great bodily harm. We

find there was sufficient evidence to establish specific intent for the purpose of a

second degree murder conviction. “Specific criminal intent is that state of mind

which exists when the circumstances indicate that the offender actively desired the

prescribed criminal consequences to follow his act or failure to act.” La.R.S.

14:10(1). Specific intent to kill or inflict great bodily harm may be inferred from

“the extent and severity of the victim’s injuries.” State v. Dickerson, 14-170, p. 9

(La.App. 3 Cir. 6/4/14), 140 So.3d 904, 909, writ denied, 14-1466 (La. 3/13/15),

161 So.3d 638, citing State v. Patterson, 10-415 (La.App. 5 Cir. 1/11/11), 63 So.3d

140, writ denied, 11-338 (La. 6/17/11), 63 So.3d 1037. As noted above, there was

testimony that the victim’s body was extremely contorted; his neck bent

backwards, his back bent as if he was performing a backbend, and he had extensive

internal organ damage. Mr. Dupont, the death investigator for the St. Landry

Parish Coroner’s Office, testified it appeared that the victim was hit from behind

by a speeding car. If the jury believed there was sufficient evidence that the

defendant was the driver of the truck that struck the victim, the jury could easily

have found, beyond a reasonable doubt, that the defendant had the specific intent

to, at the very least, inflict serious bodily harm on the victim.

The paramount issue at trial was who was driving the vehicle that struck and

killed the victim. There were four witnesses who testified that the defendant

admitted that he struck and killed the victim with a vehicle. In brief, the defendant

discusses only Ms. Berry’s and Ms. Mayon’s testimonies. He points out that Ms.

Berry actually did not believe him because he was so upset about not receiving
8

parole. He further argues he never stated to Ms. Mayon that he was responsible for

the victim’s death. He argues that he had “merely confirmed that he had said he

was the one who killed Mr. Jenkins to his aunt previously, not that he in fact did

kill Mr. Jenkins or that it was intentional.”

However, as noted by the state’s response brief, the defendant did not

discuss the two fellow inmates’ testimonies. Having no knowledge of the facts of

the case other than what the defendant told him, Mr. Turner testified the defendant

said he killed a man with a truck because the man had spit in the defendant’s

grandmother’s face and slapped his mother. Mr. Turner stated that the defendant

said the truck was a dually and that he disposed of the truck by setting it afire. Mr.

Johnson testified that the defendant told him that in March 2010, he ran a man

down with a stolen vehicle and killed him because the man had struck his

grandmother. Ms. Berry, Mr. Turner, and Mr. Johnson all conveyed the same

salient facts independently from each other.

Furthermore, in all the statements made by the defendant, initially to Ms.

Berry a few days after the hit and run, to Lt. Leblanc a week after the crash, and to

Detectives Young and Zachary in 2014, he admitted to seeing the victim struck by

a vehicle but reportedly made no attempt to render aid to the victim or report it to

the police. The defendant’s actions, including the conflicting, voluntary

statements, exhibited a “guilty mind.” “A finding of purposeful misrepresentation

reasonably raises the inference of a ‘guilty mind,’ just as in the case of ‘flight’

following an offense or the case of a material misrepresentation of facts by a

defendant following an offense.” See State v. Wiley, 03-884, p. 12 (La.App. 5 Cir.

4/27/04), 880 So.2d 854, 870, writ denied, 04-1298 (La. 10/29/04), 885 So.2d 585.

The jury obviously believed the state’s witnesses’ testimonies that the defendant

admitted he hit the victim with a vehicle, and together with the severity of the
9

injuries which killed the victim, the jury had sufficient evidence to find the

defendant guilty of second degree murder had they chosen to do so.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant argues that during the state’s rebuttal statement, it

impermissibly shifted the burden of proof onto the defendant. The defendant

objected to the statement and moved for a mistrial. The trial court denied the

motion. Accordingly, the defendant argues the trial court erred. The defendant

asserts that since he called several witnesses to the stand, the “jury could have

reasonably believed that since the defense put on witnesses it was supposed to

prove Deonta’s innocence[.]” During its rebuttal statement, referring to the

defendant’s closing argument, the state opened with the following:

The entire closing argument was, what’s the evidence that
corroborates. What’s corroboration? It’s stuff that proves other stuff
is true or not true. He didn’t say, what do you have to prove that what
the people said is true? Fact question, what did he have to prove –
what did you hear in this case that proved what they said was not true?

The defendant objected. After the jury was cleared from the courtroom, the

defendant argued that the state implied that the burden of proof was on the

defendant. “My objection, Your Honor, is that he went further into implying that

nothing, nothing was proven to show that it didn’t corroborate, in other words,

implying that the defendant had a duty or the burden of proving anything in the

case[.]” The trial court took the court reporter’s recording into chambers and

listened to the tape. The trial court denied the defendant’s motion for a mistrial,

ruling as follows:

All right, I went back and looked at it and there were a number
of references. The first, it started off, it says, “what do you have to
prove,” and the Court, and the context of that that was said by Mr.
Donald Richard, takes that is, just to have a rhetorical question, “what
do you have to prove,” just generally. Then he started again and he
10

said, “What did he prove,” and he stopped, and then he went on and
said, you know, he went to say that what was shown that was not
proven in this case. The Court went back and the Court has also
found the case of State versus Robinson, 480 So.2d 329, which is a
Third Circuit case, which interprets Code of Criminal Procedure
Article 774, and it permits arguments based on the lack of evidence
and allows the State rebuttal to answer the argument of the defendant
and under that case, the Court did allow the fact of the prosecutor to
mention in rebuttal the fact that the defendant had not called any
witnesses and the Court seemed to say that as long as the argument
did not appoint [sic] to the defendant not testifying, the defendant’s
right not to testify was still reserved and therefore that was not error.
Based upon what I’ve heard and the generality of it and also based
upon the Third Circuit case of State versus Robinson, the court is
going to deny the motion for mistrial.

In the case referred to by the trial court, State v. Robinson, 480 So.2d 329

(La.App. 3 Cir. 1985), writ denied, 498 So.2d 13 (La.1986), the defendant argued

during closing arguments that the State failed to call the physician who examined

the victim and a police officer to whom the victim had given his statement. The

defendant was pointing to the lack of evidence. On rebuttal, the state noted to the

jury that the defendant could have called the witnesses. On appeal, the defendant

argued that the state implied that his failure to call the witnesses was intentional

because the witnesses’ testimony would have been adverse to his defense, thereby

putting the burden of proof on the defendant. This court stated:

This issue of the propriety of rebuttal arguments was addressed
in State v. Simone, 428 So.2d 1226, 1228 (La.App. 3rd Cir.1983) by
this court, which stated:

“[i]n State v. Simms, 381 So.2d 472, 476 (La.1980)
where the prosecutor commented on rebuttal that the
defendant had failed to call a witness to the stand to
support his position, the court held this was permissible
under C.Cr.P. art. 774, saying:

‘However, La.Code Crim.P. art. 774 permits
argument based on the lack of evidence and
allows the state in rebuttal to answer the
argument of the defendant. We have
frequently held that a reference to lack of
evidence or the fact that the evidence is
unrebutted or uncontradicted is permissible
11

under art. 774. State v. Perkins, 374 So.2d
1234 (La.1979); State v. Smith, 357 So.2d
798 (La.1978). In view of the prosecutor’s
right to argue the lack of evidence and to
respond to defendant’s argument in rebuttal,
we are unable to see how defendant was
prejudiced by the prosecutor’s reference to
the presumption in the instant case.’

Also, in State v. Thomas, 406 So.2d 1325, 1330
(La.1981) at footnote 9, the court stated:

‘There was certainly no error in the
prosecutor’s calling to the jury’s attention
the failure of the other party to call a witness
(as long as the prosecutor did not improperly
comment on the failure of the defendant to
testify.)’

See also, State v. Strange, 334 So.2d 182 (La.1976).”

The prosecutor’s rebuttal comments concerning the failure of the
defendant to call witnesses was not prohibited. The prosecutor was
responding to the defendant’s comments concerning the prosecutor’s
failure to call two witnesses. The prosecutor made no improper
reference to the defendant’s failure to testify. The argument did not
deprive the defendant of a presumption of innocence.

Id. at 336-37 (alteration in original).

In State v. Jones, 15-123, pp. 44-45 (La.App. 4 Cir. 12/2/15), 182 So.3d 251,

279-80, writ denied, 16-27 (La. 12/5/16), 210 So.3d 810 (footnote omitted), while

noting that “the state’s rebuttal shall be confined to answering the argument of the

defendant,” the fourth circuit held:

However, prosecutors have wide latitude in their closing
argument. State v. Haynes, 13-0323, p. 12 (La.App. 4 Cir. 5/7/14),
144 So.3d 1083, 1090. A trial court has broad discretion in controlling
the scope of closing arguments. State v. Webb, 13-0146, p. 26-27
(La.App. 4 Cir. 1/30/14), 133 So.3d 258, 275-276, writ denied, 14-
0436 (La.10/3/14), 149 So.3d 793, cert. denied sub nom., Webb v.
Louisiana, --- U.S. ----, 135 S.Ct. 1719, 191 L.Ed.2d 689 (2015).
Even where a prosecutor exceeds the bounds of proper argument, a
reviewing court will not reverse a conviction unless thoroughly
convinced that the argument influenced the jury and contributed to the
verdict. State v. Caliste, 12-0533, p. 17 (La.App. 4 Cir. 9/4/13), 125
So.3d 8, 18. Further, common sense and logic suggests that in this
respect the reviewing court must be thoroughly convinced that the
12

improper argument influenced the jury and contributed to it rendering
a verdict based, at least in part, on prejudice or some reason other than
the weight of the evidence presented. Credit should be accorded to the
good sense and fair-mindedness of the jurors who have heard the
evidence. State v. Bailey, 12-1662, p. 8 (La.App. 4 Cir. 10/23/13), 126
So.3d 702, 707.

In the current case, the defendant’s closing argument consisted of pointing

out the lack of evidence corroborating the testimonies of the four witnesses who

claimed the defendant admitted to them that he was the driver of the vehicle that

hit and killed the victim. As noted above, La.Code Crim.P. art. 774 allows rebuttal

argument based on the lack of evidence. In this case, the state, while somewhat

inarticulately, rebutted the defendant’s argument. The trial court gave specific

instructions to the jury regarding the state’s burden of proof and the defendant’s

presumed innocence. As noted above, the jury should be credited for its “good

sense and fair-mindedness.”

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER THREE

The defendant argues that the sentence of thirty years imprisonment at hard

labor is constitutionally excessive. The defendant does not, however, state in what

manner the sentence is excessive. The defendant acknowledges in brief that while

he objected to the sentence following the sentencing hearing, he waived review of

the sentence because he did not state grounds and that there was no written motion

filed requesting reconsideration for the sentence. The defendant’s sole argument is

that he “requests a constitutional review of his 30-year, aggravated sentence as

excessive.”

This court has reviewed claims of excessiveness where no objection was

made and no motion to reconsider sentence filed. See State v. Johnlouis, 09-235

(La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10), 38

13

So.3d 336, cert. denied, 562 U.S. 1150, 131 S.Ct. 932 (2011); State v. Thomas, 08-

1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127; State v. Perry, 08-1304 (La.App. 3 Cir.

5/6/09), 9 So.3d 342, writ denied, 09-1955 (La. 6/25/10), 38 So.3d 352; State v.

H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999 So.2d 338, writ denied, 09-606 (La.

12/18/09), 23 So.3d 936; State v. Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38

So.3d 1102, writ denied, 10-1355 (La. 1/7/11), 52 So.3d 885.

Therefore, the sentence will be reviewed under a bare excessiveness claim.

See State v. Clark, 06-508 (La.App. 3 Cir. 9/27/06), 940 So.2d 799, writ denied,

06-2857 (La. 9/21/07), 964 So.2d 324.

Louisiana Revised Statutes 14:31(B) provides for a range of imprisonment

of not more than forty years for the offense of manslaughter. The defendant was

sentenced to thirty years at hard labor.

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 (alteration

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

14

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

786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court

discussed the considerations an appellate court should take into account when

reviewing excessive sentence claims, stating:

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

In the current case, at the sentencing hearing, the trial court noted that it

considered the aggravating and mitigation factors set out by La.Code Crim.P. art.

984.1 and reviewed the defendant’s presentence investigation report. The trial

court noted that the defendant, who was twenty-four years old at the time of

sentencing, had an extensive criminal history starting in 2009. The presentence

report listed several arrests and convictions which included simple burglaries,

unauthorized use of movables, aggravated assault with a firearm, resisting an

officer, illegal possession of stolen goods, and second degree battery. The trial

court also noted that while incarcerated awaiting the current trial, the defendant

was charged with misdemeanor battery on a correctional officer, resisting an

officer, and attempted felony escape. Furthermore, as noted by the second circuit

in State v. White, 48,788, p. 2 (La.App. 2 Cir. 2/26/14), 136 So.3d 280, 283, writ

denied, 14-603 (La. 10/24/14), 151 So.3d 599:

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The proper perspective from which to approach sentence review
accords paramount importance to the nature of the conduct proved at
trial. With Louisiana’s responsive verdict scheme, the jury is provided
the discretion to return verdicts for lesser included offenses against the
weight of the evidence present at trial. The trial court in sentencing
and the reviewing court may assess whether the crime for which
defendant has been convicted adequately describes his conduct when
the conviction is for a lesser included responsive offense of the crime
charged. State v. Lewis, 09-1404 (La.10/22/10), 48 So.3d 1073, 1077-
1078.

The defendant was charged with second degree murder and as discussed

above, the evidence was sufficient to sustain a verdict of second degree murder.

Second degree murder is punished with life imprisonment, without the possibility

of parole. The jury chose to convict the defendant of the responsive verdict of

manslaughter, which has a maximum sentence of forty years. The defendant

received only thirty years imprisonment at hard labor.

When considering the following similarly-situated defendants who were

charged with second degree murder but convicted of manslaughter, the defendant’s

sentence is not unconstitutionally excessive. In State v. Weatherspoon, 06-539

(La.App. 5 Cir. 12/12/06), 948 So.2d 215, writ denied, 07-462 (La. 10/12/07), 965

So.2d 398, the sixteen-year-old defendant with a prior history of violence received

a thirty-five-year sentence in the shooting death of a fourteen-year-old boy. In

State v. Williams, 34,359 (La.App. 2 Cir. 5/9/01), 786 So.2d 203, writ denied, 01-

2275 (La. 5/10/02), 815 So.2d 835, the second circuit upheld a sixteen-year-old’s

thirty-year sentence who was charged as a principal to second degree murder

during an armed robbery and who had a significant juvenile history. In State v.

Bowman, 95-667 (La.App. 4 Cir. 7/10/96), 677 So.2d 1094, writ denied, 96-2070

(La. 1/31/97), 687 So.2d 400, the sixteen-year-old the defendant, who drove the car

but did not pull the trigger, received a thirty-three-year sentence for an unprovoked

drive-by shooting.

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Considering the above facts and jurisprudence, the trial court did not abuse

its vast discretion when it sentenced the defendant to thirty years imprisonment at

hard labor.

ASSIGNMENT OF ERROR NUMBER FOUR

The defendant asserts the trial court permitted testimony that the vehicle the

defendant was driving when he struck the victim was a stolen vehicle. The

defendant argues that “allowing the State to refer to the vehicle as ‘stolen’ was

prejudicial and outweighed any probative value” the information may have had

pursuant to La.Code Evid. arts. 403 and 404(B).

Louisiana Code of Evidence Article 404(B), in pertinent part, provides:

Other crimes, wrongs, or acts: (1) Except as provided in
Article 412, evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident,
provided that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance of trial, of the
nature of any such evidence it intends to introduce at trial for such
purposes, or when it relates to conduct that constitutes an integral part
of the act or transaction that is the subject of the present proceeding.

Louisiana Code of Evidence Article 403 provides “Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or waste of time.”

The objection came after the state asked Ms. Berry what the defendant told

her about the vehicle that struck and killed the victim. According to the state, there

had been a bench conference the previous day regarding whether the State could

discuss whether the truck was stolen or not and the trial court had ruled the

information constituted an integral part of the act. After the jury was removed, the

trial court asked Ms. Berry if the defendant told her the truck was stolen. She said
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that he did not. However, after brief arguments by defense counsel and the State,

the trial court stated:

I have not heard any testimony accuse [sic] this particular defendant
of having stolen the truck. I just heard evidence or argument that it
may have involved a stolen truck, not saying who stole it; therefore, at
this point and time I think that any testimony concerning the truck and
how it came into possession of the defendant is part and parcel of
these proceedings, the act and the transaction, and I’m going to allow
such evidence.

In brief, the defendant then argues that “[t]hus, by its own reasoning, the

trial court was not certain whether Deonta had stolen the truck, which would

obviously be a crime, yet it allowed the truck to be deemed ‘stolen’ when

referenced to the jury.” Ms. Berry never testified that the vehicle which struck the

victim was a stolen vehicle. Later, during Ms. Mayon’s testimony, she stated Ms.

Berry told her the defendant had said the truck was stolen. The defendant did not

object at this time.

The jury had already heard testimony that the defendant had been

incarcerated without objection by the defendant. Ms. Berry testified that the

defendant was upset when he called her because he did not make parole, and

Detective Young testified that he went to where the defendant was incarcerated in

Jackson, Mississippi, to question him regarding the death of the victim. The

defendant did not object to either of these statements that were direct evidence the

defendant had committed a crime at some point. There was never direct testimony

that the defendant stole the vehicle that killed the victim. There was no evidence

that the comment was so prejudicial that it most surely attributed to the jury’s

decision to convict the defendant of manslaughter.

There is no merit to this assignment of error.

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CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

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

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