State of Louisiana v. Randall Paul Burton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-935

STATE OF LOUISIANA

VERSUS

RANDALL PAUL BURTON

************
APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 91186
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

************
SYLVIA R. COOKS
JUDGE
************

Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.

AFFIRMED IN PART AND REMANDED.

Conery, J., concurs in the result and assigns reasons.

Paula C. Marx
Louisiana Appellate Project
P.O. Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
Attorney for Appellant, Randall Paul Burton

Asa A. Skinner, District Attorney for Vernon Parish
Terry W. Lambright, Assistant District Attorney
P.O. Box 1188
Leesville, LA 71446
Attorney for Appellee, State of Louisiana

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Randall Paul Burton (Burton) shot and killed Cody T. Fletcher (Cody) on

February 1, 2017. Burton was subsequently charged with second degree murder, a

violation of La.R.S. 14:30.1, and possession of a firearm by a convicted felon, a

violation of La.R.S. 14:95.1. Burton was previously convicted of unauthorized entry

of an inhabited dwelling and of aggravated battery. He was still on probation at the

time of the shooting. A jury unanimously found Burton guilty of both offenses on

April 19, 2018. He does not appeal his conviction and sentence for possession of a

firearm by a convicted felon.

The trial court sentenced Burton to life imprisonment without benefit of

parole, probation, or suspension of sentence for second degree murder, and to twenty

years at hard labor without benefit of parole, probation, or suspension of sentence

for felony possession of a firearm, to run concurrently.

Burton filed a motion for new trial on April 24, 2018, asserting the trial court

erroneously sustained the State’s objection which prohibited him from presenting

evidence of the victim’s character and reputation. He also maintained he should

have been allowed to present evidence of his knowledge of the victim’s bad

character. The trial court denied the motion. It also denied Burton’s motion for

reconsideration of his sentence on May 1, 2018, without a hearing.

Burton seeks review of his conviction for second degree murder. He argues

the trial court unconstitutionally deprived him of his right to present evidence

supporting his plea of self-defense. He further contends the evidence was

insufficient to convict him of second-degree murder and that a verdict for the lesser

offense of manslaughter was appropriate.

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 one error

patent regarding the trial court’s statement that Burton’s sentence is not subject to

diminution of sentence.

After stating the number of years imposed for each of Burton’s sentences, the

trial court stated (emphasis added):

Those are going to be concurrent with one another. Okay. The sentence
is not subject to diminution for good behavior, sir. Was not enhanced
upon any type of habitual offender or any commission of firearm while
in the possession. You did - - you were found guilty of possessing a
firearm while a convicted felon. Also, under Code of Criminal
Procedure Article 914 an appeal must be written - - by written or oral
motion in open court made no later than 30 days after the judgment or
ruling from which the appeal is taken.

The minutes of sentencing state: “The defendant was advised that the sentence

is not subject to diminution for good behavior and was not enhanced upon the basis

of the habitual offender laws or other provisions of law.”

Although La.Code Crim.P. art. 894.1(D) previously required the trial court to

advise a defendant of whether his sentence was subject to diminution for good

behavior, the article was amended in 2010 to delete that requirement. 2010 La. Acts.

No. 350, § 1; See also State v. D.G.H., 07-524 (La.App. 3 Cir. 10/31/07), 969 So.2d

1254. Thus, at the time the trial court imposed the present sentences, La.Code

Crim.P. art. 894.1(D) no longer required such an advisement. Prior to the

amendment this court distinguished between an advisement and an actual denial of

diminution of sentence, finding no corrective action was needed if the trial court

merely advised a defendant that his sentence was not subject to diminution. State v.

James, 09-606, p. 3 (La.App. 3 Cir. 12/9/09), 26 So.3d 915, 917.

2

We find the trial court’s statement is couched in terms of an actual denial of

diminution of sentence. Because the trial court was no longer required by La.Code

Crim.P. art. 894.1(D) to advise a defendant of whether his sentences were subject to

diminution of sentence we can only conclude the trial court was not merely advising

Burton. Additionally, contrary to what the minutes of sentencing reflect, the

transcript of sentencing indicates the trial court did not specifically state that it was

merely “advising” Burton regarding diminution of sentence. “[W]hen the minutes

and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4

(La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797

So.2d 62.

We therefore order the trial court to amend Burton’s sentences to delete the

statement regarding diminution of sentence as the trial court was not authorized to

deny diminution of sentence. “‘[A] trial judge lacks authority under La.R.S.

15:571.3(C) to deny a defendant eligibility for good time credits against his sentence,

because that statute is “directed to the Department of Corrections exclusively.”’”

State v. Fallon, 15-1116, p. 4 (La.App. 3 Cir. 4/6/16), 189 So.3d 605, 608 n.2

(quoting State v. Narcisse, 97-3161, p. 1 (La. 6/26/98), 714 So.2d 698, 699). “This

court and the supreme court have repeatedly stated that trial judges lack authority to

deny good time eligibility.” State v. Toups, 17-792, p. 1 (La.App. 3 Cir. 11/22/17)

(unpublished opinion.)1 The trial court is instructed to make an entry in the minutes

reflecting the amendment. See State v. Drummer, 17-790 (La.App. 3 Cir. 6/6/18),

245 So.3d 93, writ denied, 18-1139 (La. 2/11/19), 263 So.3d 413.

1
This case is cited at 2017 WL 5627774.

3

Sufficiency of evidence.

Burton asserts the evidence was insufficient to convict him of second-degree

murder. He contends he was afraid, provoked and that he shot the victim in the heat

of blood thus making him guilty of the lesser offense of manslaughter, a violation of

La.R.S. 14:31.

The standard of review in a sufficiency of the evidence claim is “whether,

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found proof beyond a reasonable doubt of each of the essential

elements of the crime charged.” State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d

108, 170, (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), cert.

denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007); State v. Captville, 448 So.2d 676,

678 (La.1984)). The Jackson standard of review is now legislatively embodied in

La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own

appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p.

6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.

10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). It is

the factfinder’s role, in this case the jury, to weigh the credibility of witnesses. State

v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. It is not the appellate

court’s function to assess the credibility of witnesses or to reweigh the evidence.

State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. Thus, other than insuring the

sufficiency evaluation standard of Jackson, “the appellate court should not

second-guess the credibility determination of the trier of fact,” but rather, it should

defer to the rational credibility and evidentiary determinations of the jury. Ryan,

969 at 1270. (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720

So.2d 724, 726-27). Our supreme court has stated:

4

However, an appellate court may impinge on the fact finder’s
discretion and its role in determining the credibility of witnesses “only
to the extent necessary to guarantee the fundamental due process of
law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining
the sufficiency of the evidence supporting a conviction, an appellate
court must preserve “‘the factfinder’s role as weigher of the evidence’
by reviewing ‘all of the evidence . . . in the light most favorable to the
prosecution.’” McDaniel v. Brown, 558 U.S. ___, ___, 130 S.Ct. 665,
674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an
appellate court, the relevant question is whether, on the evidence
presented at trial, “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson,
443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on
circumstantial evidence, . . . this fundamental principle of review means
that when a jury “reasonably rejects the hypothesis of innocence
presented by the defendant[ ], that hypothesis falls, and the defendant
is guilty unless there is another hypothesis which raises a reasonable
doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378.

“Second degree murder is the killing of a human being . . . [w]hen the offender

has a specific intent to kill or to inflict great bodily harm . . . .” La.R.S.

14:30.1(A)(1). “Manslaughter is [a] homicide which would be [first or 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.” La.R.S. 14:31(A)(1). A defendant must prove the

mitigating factors of “sudden passion” and “heat of blood” by a preponderance of

the evidence. State v. Watson, 15-392 (La.App. 3 Cir. 10/7/15), 175 So.3d 1192,

writ denied, 15-2046 (La. 11/7/16), 208 So.3d 897.

In reviewing an accused’s claim that he has met his burden of proof, an
appellate court must determine whether a rational trier of fact, upon
reviewing the evidence in the light most favorable to the prosecution,
could have found that the mitigating factors had not been established
by a preponderance of the evidence.

Id. at 1196 (citations omitted).

5

Burton’s own testimony defeats his argument for manslaughter. He testified

at trial that he was angrier with Deborah Keel (Deborah), his girlfriend and mother

of at least one of his children, than with Cody when he told him to leave the trailer.

He also testified he did not want to fight with Cody and says he told Cody from the

porch that he did not want to fight him and just asked that he “please leave.” Deborah

testified that after Burton shot Cody, he walked back into the trailer, sat down, and

calmly said “well, I killed him.” He did not attempt to offer any aid to Cody after

shooting him, waiting some thirty minutes or more before calling 911 to report the

shooting or ask for medical assistance. Moreover, Deborah testified Burton had

threatened in the past to kill any man he caught her involved with.

A number of witnesses testified at trial. Testimony of multiple witnesses

established that Burton and Deborah lived together in her trailer house on Joslin Pitt

Road for nine months prior to the time of this incident. She was pregnant with what

Burton believed to be his child at the time. On January 31, 2017, Deborah and

Burton went “down to the creek” on her father’s four-wheeler to discuss “some

relationship issues[.]” They took her father’s 20-gauge shotgun with them. When

they rode the four-wheeler back to the trailer, they noticed the lights on it were

“shorting in and out[.]”Burton took the shotgun inside and Deborah went to her

father’s house to return the four-wheeler and get their car. Because the car had a

dead battery Deborah rode the four-wheeler back to her home in the dark, still having

trouble with the lights.

William Robert “Billy Bob” Freeman (Billy Bob) and another man, John

Wesley Jeane (John), were at Deborah’s trailer when she arrived. They went outside

with Burton to look at Billy Bob’s motorcycle, and then John left. Because Deborah

did not like Billy Bob, she took the four-wheeler to the home of her friend, Mary

Cauley (Mary), who had some pizza ready for her around 9:30 to 10:00. On the way

6

there the lights on the four-wheeler went out, and Deborah “was driving with a

flashlight.” Thirty to forty minutes after Deborah arrived at Mary’s Cody arrived.

He was friends with Mary’s husband and a longtime friend of Burton and Deborah.

About an hour to an hour and a half later, Deborah was ready to leave. Mary asked

Cody to take Deborah home because the lights on the four-wheeler were out, and

she felt Deborah would be unsafe riding it. Deborah and Cody left for Deborah’s

trailer with the pizza Mary prepared.

Although Deborah acknowledged she and Cody were longtime friends, she

asserted they had never dated or had a sexual relationship. She also testified Cody

spent the night at her trailer four or five times in the days before February 1, 2017,

sleeping on the couch in the living room while she slept in her bedroom with Burton.

According to Deborah, Cody did not know she was in a relationship with Burton.

Burton, however, testified he and Cody worked together at a tree farm and

sometimes rode to work together and hung out with other friends.

No one was at home when Deborah and Cody arrived at the trailer. Deborah

cooked the pizza for her and Cody. Deborah testified at trial:

[Cody] had gotten up to leave and right when he went to open the door
the door swung open and [Burton] looked at me and had asked me
where the f[--]k I had been and Cody said, he said, look, man, this isn’t
what it looks like. And, he said, you leave, and he looked back at me
and went to asking me again where I’d been. And, [the victim], again,
said, look, man, this ain’t [sic] what it looks like and he said, I told you
you need to leave and he said, you want me to leave, all right. And, he
opened the door and kind of dipped out the door, and [Burton] slammed
the door behind him.

According to Deborah, Burton did not ask her where she had been in a nice

way, and he appeared to be angry and upset with her. She maintained Cody did not

appear angry when Burton told him to leave; rather, he looked “[j]ust like his feelings

were hurt.” Deborah says she explained to Burton that she had been at Mary’s house

and asked him if Billy Bob was still at the trailer. When Burton said he was, Deborah

7

told him Billy Bob needed to leave. Burton responded by saying Billy Bob was “not

going anywhere and then that’s when he turned and grabbed the gun off the couch

and opened the door and went outside,” at which point Deborah said she:

. . . heard Cody say, oh, you’re going to wave [sic] a gun at me, you’re
going to shoot me and I heard [Burton] say, I told you I wasn’t going
to fight you and then I heard Cody say, shoot me, mother[--]ker, and he
shot him.

According to Deborah, five to ten seconds elapsed between the time Cody

went out the door, Burton grabbed the gun, and she heard the shot. She was inside

the trailer, sitting on a loveseat by the front door, and she did not see how far apart

the two men were. Deborah testified Burton “walked back up to the door and he sat

the gun down in the doorway with his left hand and he shrugged his shoulder, ‘well,

I killed him.’” She described his demeanor as “[j]ust non-chalent [sic],” and she

says Burton just “sat [the gun] down in the doorway.”

Deborah also testified that Burton stood on the porch and told her and Billy

Bob, who was standing outside, “the only way that – that I don’t have to go to jail is

if we do something with his body.” Burton wanted Deborah to get her shower

curtain “to roll him up in and then he said, he doesn’t know what we could do with

his truck.” Billy Bob said, “man, you need to call the cops because he had a knife,

it was self-defense and [Burton] said, ‘oh, yeah.’” Deborah testified she never saw

the victim with a knife. She described the lighting in the yard that night as “dark.”

All of the witnesses agreed that on the night Cody was killed it was a very dark,

moonless night. In fact, when the first Deputy Sheriff walked past Cody’s body

lying on the ground, he did not see it because it was so dark. Cody’s truck was

parked about twenty-five to thirty feet from the porch but Burton claims he saw Cody

in the light given off by the truck cab dome light and he maintained he saw what he

thought was a knife as Cody walked toward him in the dark. DNA evidence

8

presented at trial showed three possible persons’ DNA on the handle of the knife

with the majority contributor’s DNA indicating Burton as the most likely source.

None of the other minor DNA contribution could be attributed to Cody, Billy Bob

or Deborah.

Deborah gave multiple statements to police. She wrote a statement at the

scene shortly after the shooting. She maintained in her first statement that she “was

scared and in shock and [she] kind of remembered more about what happened in the

other statement that [she] made.” She later contacted Detective Sylvester Denmond

(Denmond), Vernon Parish Sheriff’s Office, on February 7, 2017, to give him

additional information she remembered and felt “was necessary to the case.” In that

statement she said she heard Burton tell Cody he needed to leave while they were

outside. At trial she did not recall saying that, but instead said she heard Burton tell

Cody to leave twice when they were inside the trailer. During rebuttal, she testified

she spoke with Denmond on June 7, 2017, regarding her conversations with Burton

and informed him that on a number of occasions Burton: “said if he ever caught me

with another man he would kill them [sic] and make me watch.”

Billy Bob testified he knew Burton “[s]ince about 2012,” and he had known

Cody since high school for about sixteen years. Burton, Billy Bob, John, and Cody

frequented a “big gathering spot” on a sandbar in the Sabine River where about fifty

people would congregate, mostly on weekends. The group would “swim, fish, listen

to music, drink beer, have fun.” Many people in the group knew Cody and according

to him Cody was well-liked among the group.

Billy Bob further testified that around 10:00 P.M., he sent a text to John

informing him Deborah had not returned home and asking when he would return.

Billy Bob claimed his cellphone “died soon thereafter,” and he had no way to charge

it. According to him, Deborah was gone “[a] couple hours.” Around 10:30 or 11:00

9

P.M., Burton decided to walk to Deborah’s parents’ house “right up the hill just 200,

250 yards up the yard[.]” Whenever he returned he told Billy Bob the four-wheeler

was not there and his keys were not in his vehicle.

According to Billy Bob, he and Burton walked up the road about a mile,

following the tracks of the four-wheeler, “past where Hickman Road intersects Joslin

Pitt.” They saw a vehicle behind them turn from Hickman Road toward the trailer.

Billy Bob says he thought it was John returning with gasoline for the motorcycle.

But he and Burton soon discovered it was not John’s vehicle in the driveway, it was

Cody’s truck. Billy Bob testified he was carrying his pistol with him in his backpack,

but Burton did not have a weapon. He also testified he was aware that Burton and

Deborah had experienced “relationship problems in the past,” but he was “not aware

of anything at that very moment.”

The motorcycle was located at the end of the trailer on the back side. Billy

Bob stopped at the motorcycle, and Burton walked around the trailer to the front

door. Billy Bob testified:

Once he opened the door I heard a man and a woman, both elevated
voice tones, sounded as if they were arguing and I can [sic] of eased
towards the end of the trailer where I could see what was going on.
Naturally, I think, and I got to where I could see in the door and I seen
[sic] [Cody] come out the door.

Billy Bob testified that he heard Burton tell Cody to “get the F out of my house

and don’t never [sic] come back ever. And he slammed the door behind [him].” The

victim was carrying a “jacket or a [sic] over coat or over shirt of some sort. He

walked to the hood of his truck and he looked [Billy Bob] dead in the eye and he

said, Bob, I’m no cur dog, he can’t make me run with my tail tucked,” whereupon

Cody threw his jacket on the hood of the truck.

Billy Bob described what happened next:

10

I said, Cody, man, come on, just leave the man’s house, you know. And
he - - he had stated he’s - - he said, I’m not going to run off. He opened
the truck door, fumbled around for a minute and started screaming,
Paul, you’re a bad man, I’m a bad man too, get your ass back out here.2

According to Billy Bob, who was standing “[s]even steps” away from Cody,

he spoke in “an elevated voice tone, he was challenging [Burton].” He was

“[y]elling at the top of his lungs.” Billy Bob further testified:

And [Cody] proceeded to scream. The last thing I heard him say
was, don’t make me come in there and drag you out by the hair of your
head. And, at that time Mr. Burton opened the door to the trailer house
and stepped out with a firearm not pointing it at anybody and not in any
way, I think, threatening. He just said, boy, I done [sic] told you once
to carry your ass down the road, the best thing you can do is carry your
ass. And at that time [Cody] looked him in the eye and said, you’re
going to bring a gun out here. [Burton] said, I don’t want to fight you,
you just need to carry your ass. [Cody] reached in the door of his truck,
grabbed something out, turned towards Mr. Burton. We’re up on top
of a sand hill, there was digging tracks and the man lunged forward at
a rapid pace towards the corner of the porch where Mr. Burton was
standing. Mr. Burton then come [sic] up with a shotgun, shot him in
the chest.

Billy Bob explained how Cody made tracks in the sand when he went toward

the porch at “not just a slow walk.” He described the marks made in the sand as

“digging tracks,” and as “[k]ind of like when you leave home plate, what you leave

behind you, you leave a digging track.”

When asked if he knew what the victim took out of his truck, Billy Bob

replied, “I did not know what he grabbed. There’s one thing I’m certain of, he didn’t

grab the Holy Bible, go up there and witness to Paul Burton’s wretched soul to save

him from eternal hell fire. He grabbed something with malicious intent” and then

ran toward Burton who was standing on the porch holding a shotgun. Billy Bob

said Burton did not make any threats directed at Cody but only asked him to leave.

But, he says, he believed Cody “was definitely in the mind set for a confrontation[,]

2
Defendant was known as “Paul.”
11

and [Burton] did not appear to want conflict at all.” According to Billy Bob, Burton

came out of the trailer with the shotgun, but he never left the porch. Cody was “about

six steps” away from Burton, “[a]bout three steps off the porch,” when he fired the

gun. Billy Bob described Cody’s truck as being parked roughly fifteen to twenty

yards from the porch. This is more than double the distance estimated by other

witnesses. Billy Bob says he was about as physically close to Cody as Cody was to

Burton, “about six steps,” when Burton shot Cody. Billy Bob testified: “As soon as

the confrontation started[,] I was trying to back away from the situation, but I left

walking. I had walked down the road where I flagged down deputies.” He says

Burton told him he “was dialing 911[.]” Law enforcement officers encountered Billy

Bob on Joslin Pitt Road about half to three-quarters of a mile from the scene when

he flagged down officers and the ambulance to give them directions to the trailer

house. He then walked back to the scene.

When Billy Bob returned to the trailer house officers asked him to write a

statement and then read him his Miranda rights. He told Detective Denmond he

could not testify about what had occurred inside the trailer and made the unsolicited

remark exclaiming he had not seen anything. He later gave a recorded statement to

Detective Denmond contradicting that statement telling him that he had walked from

his motorcycle across the yard and told Cody “Man, just leave, man, just go.” Billy

Bob testified at trial he told Detective Denmond that he saw the blast from the

shotgun. He denied he had ever had a conversation with Burton or Deborah about a

knife.

At some point, Ann Fletcher (Ann), Cody’s wife, “reached out” to Billy Bob

because she “wanted to know the story of what happened to Cody that night.” She

testified that, “[f]rom the beginning of the story[,]” Billy Bob said he had a weapon

in his boot, and Burton also had a weapon on the night of the shooting. He told Ann

12

they were in possession of firearms when they were walking down the road and he

told her they saw a pickup truck they did not recognize when they returned to the

trailer. Ann says Billy Bob told her “[t]hey thought it was some dude named Mikey

and they thought he was stealing something. He also told her Burton went inside the

trailer, and he “heard a lot of hollering and stuff, screaming, going on in there and

he heard [Burton] tell Cody to get the f[--]k out of his house.” As Billy Bob was

“sitting right there by Cody’s truck door,” Cody “looked at Billy Bob and said, I’m

not a dog, I’m not running with my tail tucked.” Billy Bob told Ann that after Burton

shot Cody, “he pulled his weapon up and told [Burton] to drop the fu[--]ing gun and

[Burton] told him, I’m not going to shoot you and he said he put the gun down.”

Burton testified in his own defense. He said he had known Billy Bob about

six years, since 2012, and he had known Cody for twenty years. According to

Burton, he had been wanting to leave Deborah because they “weren’t getting along.”

The subject came up while they were down at the creek on January 31, 2017. They

returned home “right at dark.” No one was at the trailer when they arrived, and they

were not expecting anyone. John and Billy Bob “showed up together” at the trailer

house in John’s vehicle about an hour after Burton and Deborah returned from the

creek and were getting ready for bed. Deborah left and said she was going to her

father’s house to get their car.

Burton and Billy Bob stayed, working on a motorcycle. Because Deborah did

not return from her father’s house as expected, Burton walked to Deborah’s parents’

home to check on the car and found it with a dead battery. He removed the battery

and returned to the trailer with plans to charge it, place it back into the car, and use

the car to jumpstart the motorcycle. That plan did not work, so he and Billy Bob

“started walking down the road to go follow where [Deborah] went to get the four-

13

wheeler.” Burton said he suspected she was at the Cauleys’ home three or four miles

away. Deborah visited Mary almost daily.

About a mile into their walk, Burton and Billy Bob saw a truck heading toward

the trailer, and they decided to go back. He thought it was probably John, or

someone bringing Deborah home. Burton said Billy Bob had a gun that had been in

his backpack, but he thought it was on Billy Bob’s hip when they got back to the

trailer. At any rate, Burton maintained he knew Billy Bob was armed throughout

the events of the evening, as was his custom. When they arrived at the trailer, they

recognized Cody’s truck parked in the driveway. Burton had ridden to work with

the victim to a tree farm where they worked together. The last time Burton went to

work was on Monday, January 30; he did not go to work on January 31. Cody was

also at work on January 30.

Burton explained that his work required him to cut the plastic off wrapped

bundles of sheet metal. The blade kept falling out of his “box cutter knife, [his] little

utility knife,” so he borrowed a knife from Cody. Burton maintained he sharpened

that knife along with Cody’s “belt knife and his machete” on January 30 and gave

all three back to Cody. He testified that one of the detectives who questioned him

asked why his DNA would be on the knife, but, he said, no one ever asked him

directly if he had ever handled it. He did not recall telling Detective Vance that there

was no reason for his DNA to be on Cody’s knife.

According to Burton’s account “it had to be getting close to midnight” when

he and Billy Bob returned to the trailer. They were gone at least an hour, maybe

longer. He explained that he was angry with Deborah for “running off on the four

wheeler way over there and leaving it . . . .” He says he was upset because he needed

the four-wheeler, he “wanted to get all these people gone,” and he wanted to go to

bed. He too, says Billy Bob stopped by the motorcycle, and he “went on around him

14

and went up to the front door.” Burton also said Billy Bob knew he was mad about

the four-wheeler, and Billy Bob did not want to be involved in the argument between

he and Deborah. Importantly, Burton says he was not angry with Cody for being

present in the trailer alone with Deborah, he was only angry with her. Burton

maintained Cody was “miffed at him for butting into [their] argument,” and that was

the reason he asked Cody to leave. He further asserted that he knew Deborah and

Cody were friends and he was not jealous of their friendship. He says he did not

suspect them of having a romantic affair and claimed it “[n]ever crossed [his] mind

that they’d been together . . . .”

Burton denied ever telling Deborah he would kill any other man she was with

and make her watch.

Burton testified:

I asked Deborah and I may have cursed the way she said I did. I
had - - my mouth was filthy back then. But I asked her where the four
wheeler was - - where’s the four wheeler. I didn’t say, where you been
or nothing. I knew where she had been by then, I saw the tracks where
they went. I asked, where’s the four wheeler and I may have used the
F word when I said it. . .

She said she had left it at Bruce and Mary’s. She said she got
cold and it’s understandable, you know. But as far as all the cussing
and hollering that was about as loud as it got right there and Cody butted
in right then to say that she was scared because of the monkeys in our
tree-line. His exact words.

Burton explained that Cody was standing four or five feet from the front door

and he was mad when “[h]e stumped (sic) out the door.” Cody “walked out the door,

but he didn’t leave.” Burton did not recall if he or Cody closed the door. According

to Burton’s account, Deborah was getting ready for bed and asked if Billy Bob was

also going to leave. Burton told her he had to help Billy Bob get the motorcycle

going before he could leave and he had no way to leave because John “had never

showed back up.”

15

Burton testified he “heard somebody yelling outside” but he “couldn’t hear

what they were yelling, but [he] heard yelling and it sounded like somebody

slamming doors on his truck . . . .” The yelling came from the driveway, about “30

feet probably” from the trailer. When Burton “heard all the commotion going on out

there[,]” Deborah came out of the bathroom and asked if he was “going to go check

on that.” He “said, no, I’m not, and she said, you just going to let him steal all our

stuff.” Burton said he “figured it was Cody [yelling] because he was angry when he

walked out,” and he was “not at all” happy with being asked to leave. He asserted

that he considered Cody to be a threat when he was in the yard; in fact, he “felt

threatened by Cody at all times.” He further testified, “Cody’s a threat - - was a

threat to everybody at all times.”

At some point, Burton opened the door and went out onto the porch with the

shotgun that had been “sitting on the couch right beside the front door.” He asserted

Deborah never told him to put down the shotgun. He further explained that he

“realized it was Cody doing all the yelling and he’s standing there with his truck

door open and he’s worked himself up into a - - into a fury now. He’s - - I said, go

home, Cody, just go home.” Burton said he did not see Billy Bob because he was

“focused entirely” on Cody. He did not hear Billy Bob say anything to Cody. All

he could say was, “There was hollering going on. I made an assumption that it was

Cody after I got outside and saw the way he was acting.”

According to Burton, Cody’s truck was positioned so that the driver’s open

door was facing the trailer. He maintains the vehicle’s interior dome light was on

and he could see Cody in the vehicle.

He turned from the vehicle - - I saw what I thought was a knife
in his hand and he came about half way back to me, stops, I don’t know,
15, 20 feet from me and started ranting and raving.

....

16

You want to come out here, pull a gun on me, you want to shoot
somebody, MF’er, shoot me, you MF’er, and that’s when he took off
running toward me.

Burton says he never left the porch. According to him he just asked the victim

“to please leave.” He admits he “may have” made statements to the victim about not

wanting to fight or argue “as [Cody] was doing all his yelling and screaming. [He

was] sure [he] probably did say [he] didn’t want to fight him.” He asserts Cody

started towards him and forced him to fire the gun because he would not stop

advancing. “[H]e was coming with a vengeance. There was - - there was no doubt

that he was on the attack.” He “couldn’t believe he wasn’t stopping.” “[I]f I waited

one more second he would have had his hand - - he would have been inside the barrel

of that gun.” He said he “didn’t want to fire that shot,” and he testified, “I did not

point the weapon at him until it was absolutely necessary. I didn’t even raise the

weapon until it was absolutely necessary.” He claims to have fired the gun from the

hip and says he “didn’t even have [his] finger in the trigger guard until [he] brought

it up.” Burton further explained that he knew Billy Bob was carrying a gun earlier,

as was his habit to do, thus he “knew there was at least one armed man” in his yard,

and he “had no way to know what was going on.” He says he grabbed the gun on

his way out knowing, of the two men outside, “one was armed and one was

dangerous.”

After Burton fired the shot, he says Cody “staggered backwards and he stayed

on his feet for a little bit and then he - - he went down. He didn’t - - he didn’t fall

like the doctor said, he kind of laid hisself [sic] down.”3 Burton did not move the

3
Dr. Terry Welke testified he felt the victim “would have just fallen to the ground” as a
result of these injuries.
17

body and he did not think anyone else did. As soon as he knew the victim was dead,

he “went back in the house and closed the door.”

Burton testified that at the time of the shooting, the moon was “probably

already set[,]” and it was “very dark.” He had to get a flashlight to check on the

Cody: “I could see where he was, but I couldn’t see any detail,” but he determined

“he was already gone, he was already deceased.” He also said he saw the knife “[o]r

something” when it flashed in the dome light of the truck. The time period from

when Burton grabbed the gun and went outside was “[v]ery quick[,]” and things

happened fast according to Burton. Although Cody “was already at his truck when

[Burton] stepped outside,” Burton asserted Cody “wasn’t trying to get to this truck,

sir, he was coming back at me and I let him get all the way across that ground nearly

to me before I pulled the trigger.” But Burton also says Cody “had already been

outside before [he] heard the rufus [sic] out there and grabbed the gun to investigate.”

And according to Burton’s own testimony, corroborated by Deborah’s testimony in

court, enough time had elapsed for Burton and Deborah to finish their discussion

and for “her to go to the bathroom on the north end of the trailer and start getting

ready and to come back as she heard it herself and asked [Burton] to go out . . . and

see what’s going on.” Burton was unable to estimate time during that period,

testifying, “Everything is jumbled up, it’s just the most - - the most horrible night of

my life and everything is - - it blurs together.” He said he could “tell you a sequence

of events probably and be right, but I am not going to be able to put a time stamp on

any of it.” His concept of time went “right out the window.”

After Burden shot Cody, he saw Billy Bob standing off to his left. He

believed Billy Bob was there at the time of the shooting because he would not have

had enough time to come from the motorcycle around the trailer. Burton claims he

did not know Billy Bob had left the scene until police arrived and asked where he

18

was. Burton went back inside and waited for police to arrive. He thought Billy Bob

had called police. He asserts that twenty to thirty minutes after the shooting he

realized the police should have arrived, and he also realized he could use his phone

to call 911 even without any minutes remaining on it. When asked if he was in a

state of shock at that point Burton responded, “Very much so, very much so and

when I - - when I realized - - when I realized that Cody was deceased everything

else just - - I didn’t have anything in my head.” After he called 911, he and Deborah

sat on the couch and waited for police to arrive. Burton maintained he made the call

knowing “I was going to jail, knowing that I was going away for a while.” He

thought he would “be going away . . . because of the felony and possession of a

firearm thing.”4

Burton asserts Deborah brought the phone to him and he made the call. He

was crying during the call, choked up while he tried to talk, and admitted he shot the

victim. He said he never discussed rolling the body in a shower curtain with either

Billy Bob or Deborah. In fact, when asked about such a comment, he asked, “Why

would I talk to [Billy Bob] about that and then call the police myself?” When the

State’s counsel suggested he might have been “trying to figure out what would

happen with the truck,” Burton responded, “That’s a ridiculous notion.” Burton

testified it was Deborah who mentioned “not calling the cops” because she did not

want him “to have to go away.” When asked why he did not render any aid to Cody

after shooting him Burton said he never tried to render aid to the victim because

“there was . . . nothing [he] could have done.”

4
Burton was previously convicted of unauthorized entry of an inhabited dwelling in 2015
and of aggravated battery in 1992 when he was nineteen years old. He was forty-six at the time
of trial.

19

Burton agreed that Cody was on the property with Deborah’s permission and

that she owned the trailer in which they were living. He also verified Cody stayed

with them a few days before the shooting. He testified Cody would not have stayed

there if he had been jealous of his relationship with Deborah. Burton admitted he

spoke to Deborah from jail after the shooting and that Deborah told him about

“people threatening [their] baby.” He says he jokingly told her, “you tell those guys,

daddy’s coming home and it will be months and not years. We all know it was

wrong, it was a joke.”

Burton’s testimony shows that although he was safely inside the trailer, he

voluntarily grabbed his shotgun, went outside, confronted Cody who was some thirty

feet away at his truck, pointed the gun at him from the front proch and fatally shot

him. He also admitted that he was not angry with Cody but just wanted him to

“please” leave. Thus, Burton’s own testimony belies his assertion that manslaughter

is a more appropriate charge for this killing.

When Deputy Jason Horton, shift supervisor for the Vernon Parish Sheriff’s

Office, arrived at the scene, he saw a mobile home with “a dim light on the porch[.]”

The front door was open, and light came from inside. Deputy Horton parked his

vehicle behind a pickup truck in the yard. He used a flashlight as he approached the

open front door. He found Burton and Deborah “sitting on a couch just inside the

front door.” Neither of them was “panicky”; they “[j]ust seemed kind of relaxed[.]”

He asked where the body was and they told him he had passed it in the yard. Deputy

Horton found the body cold to his touch and without a pulse. Burton identified a

shotgun “propped up just to the left side of the front door on the outside on the porch”

as the murder weapon. Deputy Horton found blood only around the body and “an

open blade pocket knife” next to Cody’s hand. According to him, nothing lit the

20

area of Cody’s truck other than “the dim light that was on the porch.” He observed

Cody’s truck was more than twenty feet away from the porch.

Deputy Horton determined Cody’s identity and asked Burton what happened.

Burton told him Cody brought Deborah home while he was “outside helping a friend

get his motorcycle running.” Burton and Deborah began to argue, and Burton asked

Cody to leave. Cody “got pissed off.” Burton explained he “heard some hollering”

and thought Cody was hollering at Billy Bob. He opened the front door and looked

outside to see Cody coming back toward the mobile home with a knife in his hand.

He told Cody to stop, but he would not. Burton said he was “about half-way across

the front porch” when he shot Cody and about thirty minutes elapsed between the

time of the shooting and when he telephoned authorities.

Deputy Cameron Smith (Deputy Smith) of the Vernon Parish Sheriff’s Office

also arrived at the rural, heavily wooded area and found Cody’s body “laying in the

yard.” He had to illuminate the area with his flashlight because “[i]t was dark,” and

he “couldn’t see without it.” He testified he was the first person to see Billy Bob at

the scene. Billy Bob told him “he had returned to the residence with the defendant

and had saw [sic] the defendant go into the trailer house at which point he saw Cody

exit the trailer house, run to the truck, throw a jacket on the hood and opened [sic]

the door.” Billy Bob said he planned to leave because “[h]e expected there to be an

altercation and did not want to be in the area.” When he heard the argument or

altercation, “he was already running down the road” and as he ran, he heard a

gunshot. Deputy Smith testified this conversation was recorded on his body camera.

Detective Denmond also came to the scene, which he described as “a rural

area, very wooded area. It was very dark, not much light at all.” He instructed the

responding deputies to position their patrol units to use their lights to illuminate the

scene. As Detective Denmond went to his patrol unit to retrieve his camera, Billy

21

Bob approached him and voluntarily “stated that he didn’t see anything.” Detective

Denmond did not solicit the spontaneous statement which he found to be “out of the

norm.” He thought “[i]t was strange that he would make that comment.”

The murder weapon was “a 20 gauge shotgun with a wooden stock and a

wooden handle.” Detective Denmond described the victim’s gunshot wound as, “if

you’re standing over the body . . . the wound would be to my left to the chest area. .

. .” He found a knife near the victim’s body. He also found a spent 20-gauge shell

in the yard and a live round on the porch. He did not know if the spent shell was

involved in this case, but he was not aware of any other shells in the yard. The live

round contained “low brass shot” normally used for birds. Detective Denmond

estimated the distance from the victim’s truck to the porch was “maybe, 25 to 30

feet, maybe.” A coat, which he was told belonged to Cody, was on the truck’s hood.

Detective David Vance (Detective Vance) of the Vernon Parish Sheriff’s

Office interviewed Burton, Deborah, and Billy Bob on February 1, 2017. Burton

understood and waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602 (1966). He admitted he shot the victim. Detective Vance said Burton

“was back and forth” about the exact sequence of events. “He stated that at one

time he grabbed the gun, opened the door. Another time he stated he opened the

door and grabbed the gun. He said it all happened pretty much simultaneously.” He

told Detective Vance he did not know why he picked up the shotgun and he said that

after he shot Cody, he went inside and retrieved a flashlight. He then went to check

on Cody and said he did not step off the porch at any other time. During the

interview with Detective Vance, Burton said he told Cody to stop, but he said,

“you’re not going to shoot me and laughed and . . . still kept coming forward.”

Burton explained that he was afraid of Cody and told Detective Vance he was about

ten feet or less away from him when he fired the shot.

22

Dr. Terry Welke (Dr. Welke), qualified at trial as an expert in forensic

pathology, performed the autopsy. He determined the cause of Cody’s death to be

“a shotgun wound to the trunk.” He retrieved pellets and the power piston of the

shotgun shell from inside Cody’s body. Cody had several broken ribs and a torn

esophagus, left lung, liver, aorta and spine. The stomach and heart were also injured.

According to Dr. Welke, these fatal injuries did not necessarily produce an

instantaneous death. He believed Cody may have lived for a short period of time,

but he could not estimate how long. He did not think immediate medical attention

could have saved Cody’s life.

Dr. Welke found no gunpowder residue around the main entrance area of the

wound. He testified the wound was “not a close contact shotgun wound or anything

like that.” Because he found no soot or gunpowder residue he opined “it was a

distance away at the time of discharge.” Dr. Welke, admitting he was not a firearms

expert, determined the distance between the end of the shotgun barrel and Cody “was

like six feet or seven feet away.” The trajectory was front to back.

Cody’s lab reports were positive for caffeine, cotinine (nicotine), marijuana,

a synthetic opiate, amphetamine, and a level of methamphetamine Dr. Welke

considered to be high. Such a level could “cause a violent type of behavior or

excitation” and it could also “cause seizures at different levels[.]” He further

explained that high doses of methamphetamine could “also elicit restlessness,

confusion, hallucinations, circulatory collapse. What that means is they get a low

blood pressure and convulsions which is [sic] essentially seizures.” Dr. Welke could

not say how methamphetamine would affect Cody because he did not know his

social background, but he testified it could possibly have contributed to his behavior.

Dr. Jessica Esparza (Dr. Esparza) testified as the DNA technical leader and

case working analyst at the North Louisiana Criminalistics Laboratory. She was

23

qualified as an expert in Forensic DNA analysis and biology. She described how

she extracted DNA from a swab collected from the handle of a pocket-knife and

from reference samples of Deborah, Burton, Billy Bob, and Cody. Dr. Esparza

obtained a partial DNA profile from the knife handle that she opined “was consistent

with being a mixture from at least two individuals.” She found only one major

contributor of the DNA and at least one minor contributor. Her results showed

Burton could not be excluded as the major contributor, meaning the only identifiable

DNA covering the knife handle was Burton’s. Deborah, Billy Bob, and Cody were

excluded as the major contributor. Dr. Esparza could make no conclusions about

the minor contributor because of an insufficient amount of DNA. She did not swab

the blade of the knife; she testified it was possible such a swab might have yielded a

different result.

Specific intent to kill may be inferred from a defendant’s act of pointing a gun

and firing at a person. State v. Rubin, 16-456 (La.App. 3 Cir. 2/1/17), 211 So.3d

532, writ denied, 17-406 (La. 12/15/17), 231 So.3d 641. Burton, a convicted felon

on probation who was prohibited from possessing firearms, pointed the loaded

shotgun at the victim and fired it. He knew the victim for many years. Although he

testified he always felt threatened by Cody, he also said he worked with Cody, rode

to and from work with him, and sharpened Cody’s knives for him on the day before

this incident. The evidence reasonably supports a finding that when Cody was

outside the trailer at his truck, and Burton was safe inside the trailer, Burton had no

reason to fear Cody. Moreover, the evidence shows the jury could reasonably reject

Burton’s theory of self-defense and could reasonably conclude that Cody was not

armed with a knife when Burton shot him.

We also find there was more than sufficient evidence for the jury to reasonably

conclude that Burton, by his own admission, was not angry with Cody and,

24

according to Burton’s testimony, more than sufficient time elapsed for his blood to

cool before he shot Cody even if he was angry with him. Manslaughter involves

“sudden passion or heat of blood immediately caused by provocation sufficient to

deprive an average person of his self-control and cool reflection.” La.R.S.

14:31(A)(1). The evidence showed Burton was angry with Deborah that night and

his anger was likely compounded by the problems in their relationship. Burton

himself testified he was not angry with Cody even though he ordered him out of the

trailer. He testified he simply did not want Cody to be involved in his argument with

Deborah. The evidence shows the jury could reasonably conclude that the facts do

not support a conflict between Burton and Cody that would reasonably deprive

Burton of his self-control and cool reflection.

Based on the evidence presented at trial, we find the jury reasonably rejected

Burton’s testimony. Burton deliberately pointed a loaded gun at Cody and shot him

with no reason to believe he might be armed, and with no consideration about

whether lesser means might prevent Cody’s progress toward him. There was more

than sufficient evidence for the jury to conclude beyond a reasonable doubt that

Burton was guilty of second-degree murder.

Self defense.

A homicide can be justifiable “[w]hen committed in self-defense by one who

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

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

La.R.S. 14:20(A)(1).

[W]hen an accused raises self-defense, the burden is on the State to
prove, beyond a reasonable doubt, that he did not act in self-defense.
“The determination of a defendant’s culpability focuses on a two fold
inquiry: 1) whether, from the facts presented, the defendant could have
reasonably believed his life to be in imminent danger, and 2) whether
deadly force was necessary to prevent the danger.” State v. Mills, 04–
489, p. 7 (La.App. 5 Cir. 3/29/05), 900 So.2d 953, 959, writ denied, 05–

25

1470 (La.1/13/06), 920 So.2d 235. “Factors to consider in determining
whether a defendant had a reasonable belief the killing was necessary
are the excitement and confusion of the situation, the possibility of
using force or violence short of killing and the Defendant’s knowledge
of the assailant’s bad character.” State v. Nelson, 34,077, p. 6 (La.App.
2 Cir. 12/6/00), 775 So.2d 579, 584.

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

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

35, writs denied, 07-467, 07-509 (La. 10/12/07), 965 So.2d 398, 399.

While it is true that the evidence showed Cody had drugs in his system that

could have caused him to behave in an aggressive, violent manner, the evidence also

shows Burton could not reasonably believe the victim was endangering his life.

Burton was safe and secure inside Deborah’s trailer when he chose to confront Cody

outside. Moreover, Burton could have chosen to use less than deadly force in the

situation. We cannot say the jury erred in finding the State met its burden of showing

Burton did not act in self-defense. The jury could conclude that the State proved

beyond a reasonable doubt that Burton was the aggressor and that he was not entitled

to a claim of self-defense.

Burton’s right to present a defense.

Burton alleges the trial court deprived him of his right to present a defense

when it excluded evidence of Cody’s dangerous character based on the totality of

the evidence and proffered to support Burton’s plea of self-defense. He contends

his own testimony and the testimony of Billy Bob established an overt act or hostile

demonstration that laid the foundation for the admission of character evidence.

Burton maintains that character evidence would have shown Burton and Billy Bob

26

knew Cody’s reputation as “a fighter and a person who was - - who would not back

down and was unpredictable.”

As a general matter, La.Code Evid. art. 404(A) provides
evidence of a “person’s character or a trait of his character, such as a
moral quality, is not admissible for the purpose of proving that he acted
in conformity therewith on a particular occasion . . . .” However, an
exception to the general inadmissibility of evidence concerning the
victim’s dangerous character arises under La.Code [Evid.] art.
404(A)(2) when there is evidence of a hostile demonstration or an overt
act on the part of the victim at the time of the offense. Consequently,
evidence of the victim’s character is not appropriate, except when the
defendant is claiming self-defense against an aggressor victim . . . .

State v. Dressner, 08-1366, p. 15 (La. 7/6/10), 45 So.3d 127, 138, cert. denied, 562

U.S. 1271, 131 S.Ct. 1605 (2011).

“Evidence of a person’s character is generally inadmissible, unless the

defendant in a homicide case claims self-defense and the issue is whether the

deceased was the aggressor or what was the defendant’s state of mind.” State v.

Ledet, 96-1521, pp. 5-6 (La.App. 3 Cir. 4/2/97), 692 So.2d 1309, 1312, writ denied,

98-362 (La. 6/5/98), 720 So.2d 678. “A homicide is justifiable . . . [w]hen committed

in self-defense by one who reasonably believes that he is in imminent danger of

losing his life or receiving great bodily harm and that the killing is necessary to save

himself from that danger.” La.R.S. 14:20(A)(1).

“Before being entitled to present evidence of the victim’s character, the

defendant must present ‘appreciable evidence’ of the overt act.” State v. Couteau,

10-1940, p. 3 (La.App. 1 Cir. 5/6/11) (unpublished opinion),5 writ denied, 11-1204

(La. 3/9/12), 84 So.3d 544.

The term “overt act,” as used in prosecutions where the plea of self-
defense is involved, means any act of the victim that manifests to the
mind of a reasonable person a present intention on his part to kill or do
great bodily harm. State v. Loston, 03–0977 (La.App. 1 Cir. 2/23/04),
874 So.2d 197, 205–06, writ denied, 04–0792 (La.9/24/04), 882 So.2d

5
The Westlaw citation is 2011 WL 2616917.

27

1167. To meet the “overt act” requirement of Article 404A(2)(a), a
defendant must introduce “appreciable evidence” in the record
relevantly tending to establish the overt act. Once the defense has
introduced such appreciable evidence, the district court cannot exercise
its discretion to infringe on the fact-determining function of the jury by
disbelieving this defense testimony and denying the accused a defense
permitted him by law. A district court’s determination that the
defendant has not laid a sufficient evidentiary foundation upon which
to introduce testimony concerning the victim’s dangerous character will
not be disturbed absent a finding of clear error. State v. Felder, 00–2887
(La.App. 1 Cir. 9/28/01), 809 So.2d 360, 367, writ denied, 01–3027
(La.10/25/02), 827 So.2d 1173.

Moreover, even where a proper foundation is laid, the
admissibility of a victim’s character trait depends on the purpose for
which the evidence is offered. Once evidence of an overt act on the part
of the victim has been presented, evidence of threats and of the victim’s
dangerous character is admissible for two distinct purposes: (1) to show
the defendant’s reasonable apprehension of danger which would justify
the conduct; and (2) to help determine who was the aggressor in the
conflict. Only evidence of general reputation and not specific acts, is
admissible in order to show who the aggressor was in the conflict.
Evidence of prior specific acts of the victim against a third party is
inadmissible for this purpose. When evidence of a victim’s dangerous
character is offered to explain a defendant’s reasonable apprehension
of danger, such evidence may be introduced to show the accused’s state
of mind only if it is shown that the accused knew of the victim’s
reputation at the time of the offense.

State v. Maurer, 13-1643, pp. 4-5 (La.App. 1 Cir. 3/21/14) (unpublished opinion).6

The threshold question here is, as in Maurer, “whether defendant introduced

‘appreciable evidence’ into the record to establish an overt act by the victim . . . .”

Maurer at p. 5. We have already explained that the evidence is more than sufficient

for the jury to reasonably reject Burton’s assertion that Cody was “coming at him”

with a knife. The State contended evidence of “some turning around . . . some

running back, feet prints in the sand, dirt kicked up, that sort of thing” failed to meet

the burden to prove a hostile demonstration that would warrant introduction of

character evidence of the victim. The State also argued Burton was the aggressor in

6
The Westlaw citation is 2014 WL 1167511.
28

the situation because he grabbed the gun inside the trailer and exited the trailer to

confront Cody. We agree.

Defendant made a proffer outside the presence of the jury. The trial court

commented, “The Court had ruled because of the totality of the circumstances

specifically in relation to any other corroborating testimony and independent

testimony or evidence about - - I did not allow character evidence as to reputation .

. . .” The State’s counsel understood “the Court excluded the reputation evidence . .

. because there had not been a hostile or overt act.” The trial court explained:

[T]he foundation wasn’t laid and there was not enough - - now, as I said
in the sidebar, there’s been all these comments out there about specific
allegations or malicious statements that I think go beyond just
reputation and they go to specific acts. But I think [defense counsel]
wants to proffer based upon my ruling some - - a statement, I guess,
he’s going to make of what his client’s testimony would be as to the
general reputation of the defendant and maybe even the victim - - of the
victim as well as, maybe, Mr. Freeman’s testimony.

The trial court found Burton had shown nothing to support the introduction of

evidence of specific acts of the victim. It believed the only evidence of an overt act

was the victim “[r]unning towards somebody who had a shotgun that was loaded.”

It also found the required foundation was that a reasonable person would believe he

was “in threat of being killed or receiving great bodily harm.” The trial court ruled

that no foundation was laid particularly noting Burton was the major contributor of

the DNA on the knife and that there was not enough of Cody’s DNA on the knife to

include him as a minor contributor.

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

denied, 04-792 (La. 9/24/04), 882 So.2d 1167, the victim and the defendant had a

verbal dispute at a local establishment. After they left, the victim told his brother

Gregory “he had a ‘beef’ with the defendant[,]” and he knew where to find him. Id.

at 201. Later that night, the victim and Gregory rode their bicycles to a residence

29

where they thought they would find the defendant. The victim arrived first. By the

time Gregory arrived, the victim had entered the residence and was exiting it,

followed by the defendant and several other people. The victim “was hollering and

using profanities.” Id. at 202. As the group walked toward the road, they began to

argue and fight. Gregory saw a woman in the group with a knife in her hand; other

testimony indicated she then gave the knife to the defendant. Another witness said

the defendant armed himself with a knife before going outside. After a fight broke

out, Gregory saw the victim on top of the defendant, choking him. Gregory pulled

the victim off the defendant, and they left. On the way home, the victim collapsed

and died from a knife wound. Toxicology reports showed the victim had a blood

alcohol level in excess of .2 and illegal controlled substances, including cocaine, in

his system. The defendant admitted he had stabbed the victim, but he did not think

the wound was bad enough to kill him. On cross-examination at trial, defense

counsel tried to show the victim had a reputation for fighting, and the defendant had

acted in self defense. Another witness testified the victim was drunk that night and

was known for fighting. Gregory also admitted they had been drinking and testified

the victim had been in fights in the past. A different witness, however, testified the

victim was angry but not drunk or on drugs.

The first circuit found “no appreciable evidence to show that the victim

initiated the physical confrontation.” Id. at 206. Even though the victim had to be

pulled off the defendant after the struggle began, the first circuit thought “the victim

at that point might well have been reacting to the conduct of the defendant in

attacking him with a knife.” Id. Thus, the defendant failed to establish a foundation

for evidence of the victim’s reputation in the community and of specific incidences

of his conduct.

30

Likewise, according to Burton’s own testimony, he armed himself and went

out onto the porch based solely on hearing noise in the yard. This was an illegal act

for him as a convicted felon. Even though Cody may have been running toward

Burton to fight him, the evidence did not show that Burton could have reasonably

thought he was in danger of death or great bodily harm. Although he claimed he

saw something in Cody’s hand, and a knife was found near Cody’s hand after the

shooting, the only DNA on the knife handle belonged to Burton suggesting Burton

placed the knife next to Cody’s body. The evidence did not show the killing was

necessary to protect Burton or that less drastic measures to defend himself would

have been ineffective.

For these reasons, we affirm the convictions and sentences. We remand the

matter to the trial court for the purpose of amending Burton’s sentences to delete the

statement regarding diminution of sentence as the trial court was not authorized to

deny diminution of sentence.

AFFIRMED IN PART AND REMANDED.

31

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-935

STATE OF LOUISIANA

VERSUS

RANDALL PAUL BURTON

Conery, J., concurring in the result.

While I believe the proposed opinion correctly applies the standard required

by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), I nevertheless write

separately as I find that there is an abundance of evidence that the victim was the

aggressor. Either a verdict of manslaughter or not guilty based on self-defense may

have been more appropriate in this case. However, the jury had the authority to, and

apparently did, reject the testimony of Defendant and the eyewitness, Billy Bob

Freeman, indicating that the victim was the aggressor and called out and charged

toward Defendant in a threatening manner. Likewise, though the trial judge could

have allowed Defendant to introduce evidence of the victim’s bad character and

violent tendencies pursuant to La.Code Evid. art. 404(A)(2), his decision to disallow

that evidence was within his discretion.

Accordingly, in light of the standard of review, I concur in the result.