State of Louisiana v. Demetrice Dontrell Welch

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 19-4

STATE OF LOUISIANA

VERSUS

DEMETRICE DONTRELL WELCH

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 330,770
HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie,
Judges.

AFFIRMED.

J. Phillip Terrell, Jr.
9th Judicial District Court District Attorney
P. O. Box 7358
Alexandria, La 71306-7358
(318) 473-6650
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Bruce G. Whittaker
Louisiana Appellate Project
1215 Prytania Street, Suite 332
New Orleans, LA 70130
(504) 554-8674
COUNSEL FOR DEFENDANT/APPELLANT:
Demetrice Dontrell Welch

Catherine L. Davidson
Assistant District Attorney, 9th Judicial District Court
P.O. Box 7358
Alexandria, LA 71301-7358
(318) 473-7338
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

EZELL, Judge.

On July 26, 2017, a Rapides Parish grand jury indicted Defendant Demetrice

Dontrell Welch for second degree murder, a violation of La.R.S. 14:30.1. The

parties conducted the selection of the trial jury on August 28, 2018; said jury began

hearing evidence the next day.

On August 30, 2018, the jury found Defendant guilty of the lesser charge,

manslaughter, in a responsive verdict. On October 8, 2018, the trial court denied

Defendant’s motion for post-verdict judgment of acquittal, Defendant waived

sentencing delays, and the trial court ordered Defendant to serve twenty years at

hard labor.

Defendant now seeks review by this court.

FACTS

On May 20, 2017, the victim, Elijah Guidry, was a passenger in his cousin’s,

Corday Taylor’s, car. The victim saw Defendant walking nearby and got out of the

car when Taylor stopped at a stop sign. The victim and Defendant conversed,

apparently in regard to a prior incident when Defendant broke up a fight between

two females, one of whom was related to the victim. The victim was displeased

with Defendant’s intervention and, according to Defendant, threatened violent

consequences, such as “shooting up” the home of Defendant’s mother. When the

victim walked back to the car, Defendant followed him. As the victim moved to

either reach into or get back into the car, Defendant shot him.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we find there

are no errors patent.

ASSIGNMENT OF ERROR

In his sole assignment of error, Defendant argues that the State failed to

prove beyond a reasonable doubt that he did not act in self-defense. Defendant

does not deny shooting the victim and thus causing his death. Therefore,

justification, i.e., self-defense, is the only issue before this court for review.

Defendant cites a number of cases that generally address sufficiency of the

evidence and related issues. However, the State quotes a more specific case:

The defendant’s first two assignments of error concern the
sufficiency of the evidence. Specifically, the defendant contends that
the State failed to disprove his assertion of self-defense and that the
State failed to establish that the defendant possessed the necessary
intent to kill required for second degree murder or manslaughter.
When a defendant raises multiple assignments of error including
sufficiency of the evidence, the reviewing court should first address
the sufficiency of the evidence. State v. Hearold, 603 So.2d 731
(La.1992). In State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d
1280, 1285-86, the supreme court reiterated the standard of review for
sufficiency of the evidence claims on appeal, stating:

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

Although initially charged with second degree
murder, the defendant was convicted of the lesser charge
of manslaughter. As relevant herein, manslaughter is
defined in La.R.S. 14:31(A) as:

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(1) A homicide which would be murder
under either Article 30 (first degree murder)
or Article 30.1 (second degree murder), but
the offense is committed in sudden passion
or heat of blood immediately caused by
provocation sufficient to deprive an average
person of his self-control and cool reflection.
Provocation shall not reduce a homicide to
manslaughter if the jury finds that the
offender’s blood had actually cooled, or that
an average person’s blood would have
cooled, at the time the offense was
committed; or

(2) A homicide committed, without any
intent to cause death or great bodily harm.

Second degree murder is defined, in pertinent part, as “the killing of a
human being: (1) When the offender has a specific intent to kill or to
inflict great bodily harm[.]” La.R.S. 14:30.1(A).

Additionally, the defendant asserted at trial that he was acting
in self-defense. Louisiana Revised Statutes 14:20 provides, in
pertinent part, that a homicide is justifiable when “committed in self-
defense by one who reasonably believes that he is in imminent danger
of losing his life or receiving great bodily harm and that the killing is
necessary to save himself from that danger.” When a defendant in a
homicide case claims self-defense, the State must establish beyond a
reasonable doubt that the defendant did not act in self-defense. State v.
Perkins, 527 So.2d 48 (La.App. 3 Cir.1988). “In examining a self-
defense claim, it is necessary to consider: (1) whether the defendant
reasonably believed that he was in imminent danger of death or great
bodily harm; (2) whether the killing was necessary to prevent that
death or great bodily harm; and (3) whether the defendant was the
aggressor in the conflict.” State v. Mayes, 14-683, pp. 2-3 (La.App. 3
Cir. 12/23/14), 154 So.3d 1257, 1259, writs denied, 15-178, 15-220
(La. 11/16/15), 184 So.3d 24. Additionally, in determining whether
the defendant had a reasonable belief that the killing was necessary, it
is appropriate to consider “the excitement and confusion of the
situation, the possibility of using force or violence short of killing, and
the defendant’s knowledge of the assailant’s bad character.” State v.
Thomas, 43,100, p. 5 (La.App. 2 Cir. 4/30/08), 981 So.2d 850, 854,
writ denied, 08-1276 (La. 2/6/09), 999 So.2d 769.

State v. Fox, 15-692, pp. 2-4 (La.App. 3 Cir. 2/3/16), 184 So.3d 886, 889-90, writ

denied, 16-404 (La. 3/13/17), 216 So.3d 800 (alteration in original).

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The core of Defendant’s case can be seen in his testimony:

Q. Okay. So Elijah jumps out of the car, um, what does he do at
that point?

A. Um, he started walking -- well, I guess, he got back ‘cause he
had another, he had a white car coming, and he had talked to the white
car whatever [sic] and that’s when me, the last witness, we kept on
walking but he came, him and, uh, Corday Taylor came in, like he got
back in the car and they came closer to us and that’s when he hopped
out of the car, and we started talking about the situation that happened
with my little cousin and his little sister.

Q. Okay. Um, was Mr. Guidry visibly upset about that situation?

A. Yes, sir.

Q. What did he tell you?

A. He was like -- ‘cause, uh, something had happened I guess,
guns was pulled out, and he was like, um, you was clutching a gun or
something, um, that morning. I mean, yeah that morning. I was like no,
I wasn’t. I was just telling them not to fight in front of my house and
woot de woot [sic] and, uh, that’s when he said, he said all right, uh,
stay right there. I’m fixing to come back, and I’m gonna shoot up your
house. I pulled up on you so you know I'm with that.

Q. Okay. Um, did you take Mr. Guidry’s, uh, statements seriously?

A. Of course.

Q. Did you, uh, consider them threats?

A. Of course.

Q. How long did y’all conversation last about?

A. Um, I say about three to four minutes.

Q. And do you remember how far you two were from the, the
vehicle that Mr. Taylor was driving?

A. All right. We like were right here. It was like five feet.

Q. It was, uh, pretty nearby.

A. Yeah.

Q. Um, when Mr. Guidry walks away, what does he tell you?

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A. He said I’m gonna kill you. I’m gonna shoot up your house.
I’m gonna, I’m gonna come get you, and I pulled up on you so you
know I’m about that.

Q. Okay. At that time, were you, were you scared?

A. Of course.

Q. Um, did you, um, you believe he -- your life may have been in
danger at that point?

A. Of course.

Q. So what do you decide to do?

A. I pulled out my gun which I already hid it. I hid it in my pocket
because I was, I was also robbed, um, and a gun pointed to me at gun
point [sic], uh, so I took it very seriously, and when he, when he told
me that I pulled out the gun and shot.

Q. Okay. Um, did you see how, um, Mr. Guidry was positioned in
the, in the vehicle? Like when he was, when he was -- did he open the
door or was the door closed?

A. No, the door, the door was already open.

Q. Okay. Uh, when he approached the car, what did he do?

A. He just went to the side like this and when he bent down that’s
when I shot.

This testimony was generally supported by the testimony of the previous

defense witness, Teddius Jones.

The State’s main witness was Corday Taylor, the victim’s cousin and driver

of the car. Taylor described the pertinent events as follows:

Q. And after you turn on Avoyelles, where did you go?

A. We turned right on West Sandy Bayou.

Q. And what happened once you got on West Sandy Bayou?

A. We was coming towards the stop sign at the, where -- at the
corner (interrupted)

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Q. Um, hmm.

A. -- we was coming towards the stop sign.

Q. Okay. And what happened as you were coming towards the
stop sign?

A. We had a car behind us so we had to make a stop, and he got
out of the car [and] said he had to holler at him.

Q. Okay. Who was the driver of the car that night?

A. Me.

Q. Who was your passenger?

A. My cousin, Elijah Guidry.

Q. And he told you to stop?

A. No, I had to stop at the stop sign.

Q. Okay. And once you stopped at the stop sign what did your
cousin, Elijah Guidry, say to you?

A. He said he had to holler at him. It was -- he was walking up
there on (indiscernible) he was walking so he said he had to holler at
him.

Q. So who was walking?

A. Um, Demetrice.

Q. And do you see him today in Court? Demetrice Welch? Do you
see him today in Court?

A. No, I don’t see him or nothing in here. Oh, right there.

Q. Could you describe what he’s wearing?

A. A black suit.

Q. Okay. Did you, um, did you know him before this night?

A. I know him from my cousin. He used to hang with my cousin
before my cousin moved to Texas like five years ago.

Q. Okay. And what did you know him as?

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A. Gee, Mimi.

Q. Okay. And so Elijah Guidry, your cousin, said he wanted to
speak with Mimi.

A. Yes, ma’am.

Q. And what did Elijah, uh, Guidry do?

A. He got out of the car, and I turned the car around and put the
lights on him ‘cause he was going like behind -- ‘cause they was
walking past the car. So once I turned the car around and put the lights
on them, I guess they had their conversation, said what they said. My
cousin was coming back in the car, I guess he trailed behind him or
whatever he did.

Q. So let’s back up. So they talked?

A. Yes, ma’am.

Q. Could you hear what they were saying?

A. I was in the car.

Q. Okay. And then you indicated your cousin started walking back
towards the vehicle?

A. Like to come get in the car.

Q. Did he say anything to you.

A. No, ma’am.

Q. When he got to the car (interrupted)

A. Like he -- by the time he got to the car, he trailed behind him
push (interrupted)

Q. Who is he?

A. Demetrice. So by the time he tried to get in the car, he was shot
three time[s].

Q. So he walks back -- Guidry walks back to the car.

A. Yeah, like to get in the car. Like now he’s op -- like with the
door (interrupted)

Q. Okay.

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A. So we’re -- as he facing like to get in the car, he shot from the
other side of the door and hit him in the chest three times. That’s how
I had a bullet hole in the car.

Q. And who shot?

A. Demetrice.

Q. Okay. And what’s been marked as State Exhibit two and nine,
could you tell me what -- what is that?

A. That’s the car.

Q. That you were driving?

A. Yes, ma’am.

Q. Okay. And what’s been marked as nine?

A. That’s the bullet like he shot from the side but that’s where the
bullet hit (interrupted)

BY THE COURT:

Speak up. I don’t think anybody can hear you.

A. This is from the side. This is the side of the car where he got
shot at so that’s why I got a bullet hole right there so as he was
shooting. I guess the bullet hit the car.

Q. Okay. Now you said he.

A. Um, hmm.

Q. Who was shooting?

A. Demetrice Welch.

Q. And where was he in reference to this car when he started
shooting?

A. He was on the opposite side of this door. BayBay was on the
side of the door like to get in the car so that’s how the bullet hole get
right there as you see. He was shooting over the door. That’s how he
was hit in the chest.

Q. Okay. So your testimony is that Mr. Welch was standing,
Demetrice or Mimi, was standing here and he started shooting?

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A. Yeah, so he was shooting like over the door.

Q. Okay. And so he was here and he shot over the door.

A. Yeah, like he was standing there like when he pointed. My
cousin, BayBay, ain’t even get in the car yet.

Q. Okay. Was -- and again, you, you call him BayBay?

A. Yeah, that’s my cousin. That’s what we called him.

Q. And he’s also known as Elijah Guidry?

A. Elijah Guidry.

Q. Okay. So when Mimi starts shooting, was your cousin facing
Mimi or was he (interrupted)

A. Facing him.

Q. Okay. And when the first shot rang out, what did you do?

A. When the first shot -- it was like I was still in the car. So like
after the third shot like that’s when I was in shock and it just reacted
to me. And then I opened the door. I got out of the car, jumped the
fence, and I didn’t know if he was gonna shoot me so I just jumped
over the fence. Came back over to my cousin, picked him up. Me and
my cousin full of blood.

Taylor testified there was no gun in the car. Defendant and Jones both

acknowledged that they did not see a gun in the car or in the victim’s possession,

although both claimed the victim had possessed a firearm in the past. Jones

claimed that the victim had pistol-whipped him during a prior robbery.

Although counsels’ arguments are not evidence, a passage from defense

counsel’s closing crystallizes his theory of the case:

Again, Mr. Guidry says he’s gonna kill him, shoot up his mom’s
house, I’m about that and I have something for you. I don’t know
what else that means besides I’m about to do something to you.
Whether that means he’s gonna kill him or just hurt him really bad,
either way it’s imminent danger -- let me get it right. The defendant
believed he was in danger of losing his life or receiving great bodily
harm. So either way whether it was just a -- whether he was gonna
kill him or hurt him -- either way it’s justifiable.

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Ms. Carter wants you to, wants you to believe that he had to
wait for a gun. He had to wait to see a weapon. I tell you if he waited
that would have been the last thing he saw -- the gun or the weapon.
You can’t wait in those situations. Kill or be killed. You can’t wait.
Sometimes it’s split second decisions.

Trial counsel’s statements did not correctly reflect the facts and law as they

apply in the current case. Even considering that the victim was making threats and

Defendant may have subjectively thought the victim was reaching for a weapon in

the car, it was not objectively reasonable for Defendant to kill him. The jury could

rationally have concluded that there were multiple steps short of homicide that

Defendant could have taken. Defendant could have given a verbal warning, fired a

“warning shot” not aimed at the victim, or fired a shot to wound the victim. Even if

Defendant’s fear was viewed as objectively reasonable, the victim in this case did

not have to die.

This court has stated: “In cases where the defendant claims self-defense as a

justification, the absence of a weapon from the victim’s person or immediate reach

is often a critical element of the state’s proof. The absence of weapon on the

victim, however, is not dispositive of the issue.” State v. Griffin, 06-543, p. 9

(La.App. 3 Cir. 9/27/06), 940 So.2d 845, 851, writ denied, 07-2 (La. 9/14/07), 963

So.2d 995 (quoting State in the Interest of D.S., 29,554, p. 3 (La.App. 2 Cir.

5/7/97), 694 So.2d 565, 567) (citation omitted).

In the current case, even if the record indicated there was a gun in the car,

Defendant lacked sufficient justification to kill the victim. The jury could

rationally have concluded that the homicide was not necessary to preserve

Defendant’s life.

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For the reasons discussed, Defendant’s conviction is affirmed.

AFFIRMED.

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

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