State of Louisiana v. Jason Wright

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 19-456

STATE OF LOUISIANA

VERSUS

JASON WRIGHT

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 203701-B
HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery,
Judges.

CONVICTIONS AFFIRMED; SENTENCES AMENDED IN PART;
AND CASE REMANDED WITH INSTRUCTIONS.

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Jason Wright

Anthony F. Salario
Assistant District Attorney
12th Judicial District
Post Office Box 503
Marksville, Louisiana 71351
(318) 240-7123
COUNSEL FOR APPELLEE:
State of Louisiana

CONERY, Judge.

On November 8, 2017, Defendant, Jason Wright, was charged by bill of

information with three counts of attempted first degree murder in violation of

La.R.S. 14:27 and 14:30. The victim in each count was accurately described as “a

peace officer engaged in the performance of his lawful duties.”

On December 29, 2017, Defendant filed a motion to enter dual pleas of not

guilty and not guilty by reason of insanity and requested a sanity commission be

appointed. On March 15, 2018, the trial court appointed a sanity commission. Both

doctors found Defendant was sane and competent to proceed to trial.

On January 16, 2019, a jury found Defendant guilty of the attempted second

degree murder of Detective Mike Simmons, as well as the attempted manslaughter

of Captain Jeremiah Honea and Detective Casey Threeton. All three convictions

were 10-2 verdicts.

On February 11, 2019, Defendant filed a “Motion for Post Verdict Judgment

of Acquittal with Incorporated Memorandum of Law.” On February 12, 2019, the

motion was denied, Defendant waived sentencing delays, and was sentenced to forty

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

for the attempted murder conviction, and twenty years at hard labor for each count

of attempted manslaughter, with all three sentences to run concurrently. Defendant

filed a motion to reconsider sentence on February 13, 2019, alleging generally “that

the sentence imposed upon him is excessive.” The trial court denied Defendant’s

motion to reconsider sentence on February 14, 2019.

Defendant now appeals his convictions and sentences, alleging four

assignments of error: (1) the State failed to prove specific intent to kill Detective

Simmons and failed to prove that Defendant’s actions were not justified and not

committed in self-defense; (2) the State failed to prove Defendant had specific intent

to kill Captain Honea or Detective Threeton; (3) the trial court erred in denying a

requested jury charge regarding justification; and (4) his sentences are excessive.

FACTS:

As two of Defendant’s assignments of error concern the sufficiency of the

State’s evidence with regard to specific intent, we will highlight the testimony

presented at trial. The State’s first witness was Detective Mike Simmons of the

Avoyelles Parish Sheriff’s Office, the victim in count one of the bill of information.

Detective Simmons stated he spent sixteen years with the St. Tammany Sheriff’s

Department before spending the next fourteen years with the Avoyelles Parish

Sheriff’s Department.

Detective Simmons testified that on September 13, 2017, he was pursuing a

Mr. Shawn Morris in connection with several burglary and theft cases he was

investigating. After failing to locate Mr. Morris at his grandmother’s house,

Detective Simmons and a number of other detectives and patrol officers went to the

residence of James and Maria Gaspard based on knowledge that Mr. Morris

frequented the residence. Detective Simmons testified that he “had recovered stolen

property from that residence in the past involving Shawn Morris as well as the

occupants or residents.” He indicated he was wearing a criminal investigations

uniform, which consisted of a tan shirt with a sheriff’s officer logo, dress slacks, and

a duty belt with his weapon. Although the detectives were in unmarked vehicles,

Detective Simmons stated they had marked patrol vehicles with them and the

deputies driving those vehicles were in standard uniforms.

Detective Simmons testified that when he, Captain Jeremiah Honea, and

Detective Casey Threeton knocked on the door, there was initially no answer

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although people could be heard moving around inside. At that point, he stated they

loudly announced that it was the sheriff’s office. Detective Simmons stated they

announced themselves several times “because it took awhile for anyone to come and

answer the door.” Detective Simmons testified he subsequently spoke with Mr.

James Gaspard, the owner of the residence, who granted him permission to enter and

look for Shawn Morris. Upon entry, Detective Simmons observed there were three

or four people in the living room.

Detective Simmons testified that he entered the residence with Captain Honea

directly behind him and Detective Threeton bringing up the rear. Detective

Simmons stated he followed Mr. Gaspard down a hallway because he was moving

“in a very hasty manner.” He testified that partway down the hall, he came to a

slightly ajar door and pushed the door open while keeping his body out of the

doorway. He then testified:

So[,] as I pushed the door open[,] I saw a subject sitting there with a
shotgun. And as the door came all the way open[,] I saw the shotgun
level down towards me with the barrel, it wasn’t pointed to the left or
to the right, it was pointed right at me. And I saw the barrel come down
you know pointed right at me.

Detective Simmons clarified the shotgun was initially upright, that he and

Defendant saw each other at the same time, then Defendant lowered the shotgun at

him. Detective Simmons yelled “gun” to warn Captain Honea and Detective

Threeton and drew his weapon, firing two shots as he backed away. At about the

same time, the shotgun was discharged and went through the wall inches from where

Detective Simmons had been standing. Detective Simmons testified that they then

cleared the residence, with only himself and Captain Honea remaining in the living

room. They eventually exited the house when Defendant would not surrender

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himself, although he had surrendered the shotgun by throwing it into the hallway.

Detective Simmons testified his involvement with the Defendant ended then.

Detective Simmons stated he had never encountered Defendant prior to

September 13, 2017. He said the residence was known for drug activity and moving

stolen property. Detective Simmons stated he did not announce the Sheriff’s

Department’s presence once they entered the house, although it had been announced

loudly and repeatedly prior to their entrance into the home. He indicated there was

about fifteen to twenty seconds between entering the home and the shooting.

The State then called James Gaspard. He testified that his kids woke him up

and told him the “cops” were present, so he went to answer the door. Mr. Gaspard

was unsure how many people were in the living room of the home but believed there

were five. Mr. Gaspard testified that Defendant was living in the second bedroom

in the home and stated he had previously told Defendant he could not have guns in

the residence because Mr. Gaspard is a convicted felon. He testified he had never

before seen the shotgun Defendant fired at law enforcement. He testified he and

Detective Simmons were walking together when Detective Simmons opened Jason’s

door and shoved Mr. Gaspard as shots began to be fired, at which time he ran to his

bedroom in the back of the home. He stated he did not know Defendant before one

of his kids introduced them and Defendant asked if he could stay with Mr. Gaspard.

Mr. Gaspard indicated that Defendant had been living in the trailer awhile before the

shooting occurred.

The State then called Temica Littleton, Defendant’s former fiancé. Ms.

Littleton testified that on the morning of the shooting, she was in bed with

Defendant. While in bed, she heard knocking, looked out the window and saw

uniformed deputies and sheriff’s department vehicles at the scene. She testified she

4

tried waking Defendant, but he would not wake up initially. She testified she told

him the police were there. Ms. Littleton testified she did not see the shotgun until

Defendant grabbed it and fired toward the door where Detective Simmons was

located. She testified Defendant grabbed the shotgun “as the detective was like

coming towards the bedroom door there.”

Ms. Littleton stated she did not know Defendant to use or abuse any type of

drugs. She testified that when Defendant picked up the gun she yelled “no” because

she thought he was going to harm himself, as he had previously told her “he wasn’t

going back to jail.” She stated it was at that time the shots occurred between

Defendant and Detective Simmons. Ms. Littleton testified she was right next to

Defendant on the bed when she yelled and said Detective Simmons shot first. She

also stated that Defendant did not typically grab a shotgun as soon as he woke up

and heard people in the hallway.

The State’s next witness was Ms. Morgan Murray, a booking officer with the

Avoyelles Parish Sheriff’s Department. On September 14, 2017, she encountered

Defendant during his 72-hour hearing. She testified that when Defendant was

informed that he was charged with three counts of attempted first degree murder, he

responded that he “only tried to kill one.” Ms. Murray testified that her mother,

Crystal Brown, was also present and heard Defendant’s statement. She

acknowledged that the 72-hour hearings were not recorded.

Mrs. Crystal Brown testified that she works for the Avoyelles Parish Sheriff’s

Department and that 72-hour hearings are held over Skype in her office. Mrs. Brown

confirmed that when informed he was facing three counts of attempted murder;

Defendant made a statement that he “only tried to shoot and kill one of them.”

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The State then called Detective Randolph Norred, who stated he had been with

the Avoyelles Parish Sheriff’s Department for five years and a detective for two

years. His involvement in the investigation of the September 13, 2017 officer

involved shooting was to photograph the crime scene and log in the evidence.

Detective Norred discussed the photographs previously entered into evidence in

conjunction with the testimony of Detective Simmons. More particularly, he

identified in the photographs the area where the shooting took place and noted the

evidence of a shotgun blast which went “through and through” the door directly

across from the bedroom door where Defendant was located when he fired the

shotgun.

Detective Norred further testified in response to a question about whether “the

closeness of the range” tells you anything as follows:

Due to the closeness of the range you can tell that he shot at close
range the bullet hadn’t had time to expand. In a shotgun the father away
you shoot the larger the pattern is going to be being that that’s really
close, the shotgun never had time to expand.

Counsel for Defendant chose not to cross examine Detective Norred.

The State called Captain Jeremiah Honea, the chief of detectives at the

Avoyelles Parish Sheriff’s Department, where he had been employed for roughly

sixteen years. Captain Honea testified the group of law enforcement officers present

at the Gaspard residence included himself, Detectives Mike Simmons, Casey

Threeton, Glenn Cammack, Randy Norred, evidence custodian Deputy Jody

Carmouche, and two patrol deputies. He confirmed the detectives were in unmarked

vehicles while the patrol deputies were in marked cruisers. Captain Honea testified

the patrol deputies were wearing body cameras, video from which would be in the

6

custody of Captain Charles Bryant, the patrol commander. None of the detectives

were wearing cameras.

Captain Honea testified that he knocked on the door, as did Detectives

Simmons and Threeton, and loudly announced that it was the sheriff’s office each

time they knocked. Captain Honea remembered three males being in the living room

and kitchen area of the trailer upon entrance. He recalled Detective Simmons

announcing the sheriff’s office’s presence upon entry. Captain Honea testified guns

are always a danger in mobile homes as, “Most firearms could penetrate the walls or

doors in those type structures.” Captain Honea gave the following description of the

shooting:

Just as soon as [Detective Simmons] pushed that door open I
heard Detective … and I was watching him and watching the doorway
because it was kind of both in my field of view. I heard Detective
Simmons say gun and I saw him draw his firearm and pretty within [sic]
a split second there were three gun shots that went off.

Captain Honea testified he and Detective Simmons retreated down the hall

and gave loud commands for the person in the room to come out. He stated

Defendant responded loudly saying “he wasn’t coming out and he was going to blow

the trailer up.” Captain Honea confirmed Defendant threw the shotgun out of the

room almost immediately after the exchange of gunfire with Detective Simmons.

On cross-examination, Captain Honea stated he could not see Defendant when

Detective Simmons opened the door and Defendant could not see him. He again

stated Detective Simmons announced their presence upon entry into the home.

The State then called Detective Michael Glenn Cammack of the Avoyelles

Parish Sheriff’s Department. Detective Cammack testified he had been in law

enforcement since 1997 and had been an investigator since 2011. He stated Captain

Honea and Detectives Simmons and Threeton were knocking at the front door for

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roughly five minutes before anyone answered the door. He testified that once the

other detectives entered the home, he could no longer hear talking.

Detective Cammack testified that once they heard gunshots, he sent the patrol

deputies into the home while he held a white male who came out of the residence at

gun point. He stated a few more individuals came out, followed by the detectives

who had entered, then eventually Mr. Gaspard, his wife, and another female. After

things settled down, Detective Cammack became the lead investigator on the case

since he was not inside the trailer during the shooting. Detective Cammack

confirmed Detective Simmons fired two rounds from his service weapon.

Detective Cammack testified that he spoke with Defendant two days later

“due to him having some illness.” Detective Cammack stated that during the

interview, Defendant told him he “had it on his mind to commit suicide by cop and

admitted that he armed himself and knew officers were in the home.” He then

testified Defendant claimed he went to put the shotgun down and that was when

Detective Simmons shot at him, so he fired back.

The State then called Captain Charles Bryant, the patrol commander for the

Avoyelles Parish Sheriff’s Department. Captain Bryant verified he is the custodian

of body camera footage and verified that State’s Exhibit 28 was body camera footage

from Lieutenant Scandrich from the morning of the shooting. That footage was then

played for the jury. At roughly the 7:55 mark, you can hear a yell and three gunshots

in rapid succession. Based upon the sounds of the gunshots captured on the video

from the patrol deputies, the shotgun was fired after the two pistol shots. It is unclear

from the trial transcript how much of the body camera footage was played, as there

is over ninety minutes of video. The remaining hour or more of video related to law

8

enforcement’s efforts to subdue Defendant and remove him from the home

following the shooting.

The State then called Detective Casey Threeton of the Avoyelles Parish

Sheriff’s Department, who stated she has been with the department since 2009. She

testified the first person to answer the door, a Mr. Aaron Metrojean, told them there

was only one other person in the residence. Upon entering with Mr. Gaspard, they

found multiple people in the front area, and Detective Simmons told Detective

Threeton to see if one of the individuals had warrants. Detective Threeton testified

she was speaking with Larry Metrojean about warrants and was four or five feet

behind Captain Honea when Detective Simmons yelled “gun” and began firing his

weapon. She testified she pulled her weapon and exited the residence. She

acknowledged she could not see Defendant in the room. The State rested after Jody

Carmouche, the Avoyelles Parish Sheriff’s Department’s evidence custodian,

identified the shotgun recovered from the residence following the shooting.

Defendant then took the stand on his own behalf. He stated he spent about a

year in the Army before being discharged after tearing ligaments in his knee.

Defendant stated he has been to prison twice for writing bad checks and he fled

parole in Missouri after his release in 2015. He testified he has been a

methamphetamine addict since he was fourteen and his paranoia led him “to leave

before [his] parole caught up to [him] and put [him] back in prison again.” He

testified he came to Louisiana in July of 2017 at the suggestion of a distant relative

who was dating Larry Metrojean and that he had been renting a room from James

and Melissa Gaspard from then until the shooting.

Defendant testified Temica woke him, with difficulty, and was telling him

“the people are here, the people are here.” He stated he was paranoid because he

9

knew he had left Missouri illegally, so he grabbed his shotgun without knowing who

was in the residence. He testified he lowered his gun after seeing the individual

pointing a gun at him, at which point the individual fired twice and he returned fire.

Defendant testified he did not know it was the police until they started yelling at him

to come out with his hands up because it was the police. He claimed his statement

at his seventy-two hour hearing merely meant that he wanted to know why he had

three charges when he only saw one person and was the result of him “coming down

off of so much meth that [he’s] still not real sure what [he’s] at.”

Defendant acknowledged he may have mentioned “suicide by cop” because

the last year of his incarceration was in isolation and he did not want to go back to

prison. He stated he did not remember what his intentions were at the time of the

shooting, but stated that he was mad at Detective Simmons for missing when he fired

at Defendant. Defendant again stated he did not know there was law enforcement at

the door and that he was not trying to shoot an officer.

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, there is an error

patent concerning Defendant’s sentences. Additionally, the trial court minutes of

sentencing require correction.

At sentencing, the trial court stated the following regarding diminution of

sentence, “I inform you that these crimes are crimes of violence, therefore your

sentences are not subject to diminution for good behavior. They are not enhance[d]

sentences . . . .”

The trial court’s statement could be interpreted as a denial of diminution of

sentence. “[A] trial court lacks the authority to grant or deny good time. Except

10

where otherwise provided by law, the provisions of La. R.S. 15:571.3(C) are

directed to the Department of Corrections exclusively, and ‘the sentencing judge has

no . . . role in the matter of good time credit.’” State v. Braziel, 42,668, p. 12 (La.App.

2 Cir. 10/24/07), 968 So.2d 853, 861 (citing State ex rel. Simmons v. Stalder, 93-

1852 (La. 1/26/96), 666 So.2d 661). Accordingly, we direct the trial court to amend

Defendant’s sentences to delete any reference to the denial of diminution of

sentence. The trial court is instructed to make an entry in the minutes reflecting

these amendments. 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

Next, the court minutes reflect that Defendant’s sentences for attempted

manslaughter were imposed without the benefit of parole, probation, or suspension

of sentence. However, the sentencing transcript contains no restriction of these

benefits. “[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. Accordingly, the court minutes of

sentencing must be corrected to delete the denial of these benefits on the two

attempted manslaughter convictions.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, Defendant contends the evidence was

insufficient to sustain his conviction for attempted second degree murder because

the State did not prove specific intent to kill and did not disprove Defendant’s claim

1
Louisiana Code of Criminal Procedure Article 890.1 previously authorized a trial court
to deny or restrict diminution of sentence for crimes of violence. However, in 2012, La. Acts. No.
160, the Legislature completely rewrote La.Code Crim.P. art. 890.1. Consequently, the trial court
is no longer authorized to deny or restrict diminution of sentence for crimes of violence.

11

he fired in self-defense. With regard to attempted second degree murder, this court

has previously stated:

Thus, although La.R.S. 14:30.1 provides that second degree murder
requires “specific intent to kill” or “to inflict great bodily harm,” in
order to be convicted of attempted second degree murder, the State
must prove that the defendant had the specific intent to kill. State [v.]
Thomas, 10-269 (La.App. 3 Cir. 10/6/10), 48 So.3d 1210, writ denied,
10-2527 (La. 4/1/11), 60 So.3d 1248, cert. denied, 565 U.S. 859, 132
S.Ct. 196, 181 L.Ed.2d 102 (2011). However, that intent may be
inferred from the specific circumstances of the offense and the
defendant’s conduct. Id.

State v. Richardson, 16-107, p. 6 (La.App. 3 Cir. 12/28/16), 210 So.3d 340, 347.

Additionally, the analysis for insufficient-evidence claims is well settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court 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, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v.
Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d
559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order
for this Court to affirm a conviction, however, the record must reflect
that the state has satisfied its burden of proving the elements of the
crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

As stated above, specific intent to kill may be inferred from the circumstances

and Defendant’s conduct. Defendant does not contest the fact that upon awakening

he jumped up and immediately armed himself with a 12-gauge shotgun. Although

Defendant contended Ms. Littleton woke him up saying “the people are here,” Ms.

Littleton testified she woke him up and immediately told him the police were there.

This conflict in testimony presented the jury with a credibility determination as to

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which witness was being truthful. Additionally, Detective Simmons testified he

reacted to Defendant lowering the barrel of the shotgun towards him while

Defendant claimed he only pointed the gun at Detective Simmons after shots were

fired. Again, the jury made a credibility determination as to who was being truthful.

Furthermore, two witnesses testified that during his seventy-two hour hearing,

Defendant asked why he was facing three counts of attempted murder when he “only

tried to kill one.” Although Defendant attempted to clarify at trial that he simply

meant he only saw one person, he did not contradict the testimony of the witnesses

as to the words he used. When asked if he said he was only trying to kill one,

Defendant merely responded, “I heard them say that yes.”

Finally, this court has previously stated that “It is well-settled that the act of

pointing a gun at a person and firing the gun is an indication of the intent to kill that

person.” State v. Thomas, 10-269, p. 7 (La.App. 3 Cir. 10/6/10), 48 So.3d 1210,

1215, writ denied, 10-2527 (La. 4/1/11), 60 So.3d 1248, cert. denied, 565 U.S. 859,

132 S.Ct. 196 (2011). Viewing the evidence in the light most favorable to the

prosecution, a rational finder of fact could have inferred Defendant had the specific

intent to kill Detective Simmons.

The second half of Defendant’s argument is that the State failed to prove

Defendant did not act in self-defense. Although Defendant contends the State bore

the burden of disproving his claim of self-defense, this court has held a Defendant

bears the burden of proving self-defense by a preponderance of the evidence in an

attempted murder case:

Until the Louisiana Supreme Court addresses and resolves the
split in the decisions of the appellate court on this issue, we will follow
our own well-settled jurisprudence and continue to place the burden of
proving justification on the defendant in a non-homicide case.
Additionally, this court has held that even when an improper burden of

13

proof may have been imposed on the defendant, courts have been
willing to uphold the conviction when the record supported a finding
that the defendant did not act in self-defense. See State v. Heider, 12-
52 (La.App. 3 Cir. 10/3/12), 101 So.3d 1025. As discussed in the
previous assignment of error, the record in the present case supports a
finding that the defendant did not act in self-defense.

State v. Ross, 18-453, p. 35 (La.App.3 Cir. 3/13/19), 269 So.3d 1052, 1074.

While Defendant claims he only shot at Detective Simmons because the

detective fired first, the State contends Detective Simmons actually fired in self-

defense because Defendant committed an aggravated assault by pointing a gun at

Detective Simmons. The Defendant was the only defense witness. His argument

for self-defense essentially comes down to his word against the word of Detective

Simmons, who testified he only fired his weapon after Defendant aimed the shotgun

at him. As no other evidence was presented to support Defendant’s claim of self-

defense, Defendant failed to prove his self-defense claim when the evidence is

viewed in the light most favorable to the prosecution. Furthermore, this court should

not disturb the fact-finder’s credibility determinations. Accordingly, this assignment

of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Defendant contends the evidence was

insufficient to support his convictions for attempted manslaughter of Captain

Jeremiah Honea and Detective Casey Threeton, as the State failed to prove he had

specific intent to kill either individual. As correctly stated by the Defendant, this

court has previously ruled “that attempted manslaughter, as in attempted second

degree murder, requires a finding of specific intent to kill, a finding not necessary

for a manslaughter conviction.” State v. Porter, 626 So.2d 476, 478 (La.App. 3 Cir.

1993). Defendant’s argument in this assignment of error is that because he could

14

not see Captain Honea or Detective Threeton, or knew they were present outside the

door, he could not possibly have had an intent to kill them. Defendant’s argument

would be logical, but for the law of transferred intent.

In State v. Wright, 99-1137, p. 11 (La.App. 3 Cir. 3/1/00), 758 So.2d 301, 307,

writ denied, 00-1614 (La. 3/9/01), 786 So.2d 118, we stated:

The law of transferred intent was explained by our brethren of
the first circuit in State v. Druilhet, 97-1717 (La.App. 1 Cir. 6/29/98);
716 So.2d 422, a case similar to the case sub judice. In Druilhet, the
defendant was charged with aggravated battery and, after a trial by jury,
was found guilty of the responsive offense of second degree battery. In
his claim that the evidence was insufficient to support his conviction,
the defendant argued that he lacked the intent necessary for a conviction
of second degree battery because he meant to hit his brother and did not
mean to hit or cause serious injury to the victim. The court noted that
under the theory of transferred intent, if the defendant possessed the
necessary intent to inflict serious bodily injury when trying to hit his
brother, but missed and accidentally hit someone else instead, such
intent is transferred to the actual victim.

As noted in the prior assignment of error, the record is sufficient for the jury

to have inferred specific intent to kill Detective Simmons. Under the law of

transferred intent, the record supports the finding that Defendant’s intent to kill

Detective Simmons could be transferred to Captain Honea and Detective Threeton.

As found by this court in State v. Dubroc, 99-730, p. 6 (La.App. 3 Cir. 12/15/99),

755 So.2d 297, 303, “The law does not require that the intent to kill be of a specific

victim, but only that the defendant had the intent to kill someone.” This assignment

of error also lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE:

In his third assignment of error, Defendant contends “the trial court erred in

failing to give the jury defense counsel’s requested charge regarding justification.”

The Defendant submitted eight separate proposed jury instructions, three of which

were granted. Defendant fails to specify which proposed jury instruction he believes

15

was erroneously denied. Defendant argues that “[t]he defense of justification is

codified in La.R.S. 14:18, which lists seven circumstances under which the defense

can be raised.” Trial counsel included the statutory basis for all of his proposed jury

instructions, with the exception of the final instruction regarding the burden of proof,

which was based on fourth circuit jurisprudence. The only proposed jury instruction

which was based upon La.R.S. 14:18 was proposed instruction number 3, which was

accepted by the trial court.

The remaining proposed instructions were based upon La.R.S. 14:20, the

justifiable homicide statute. The trial court denied these proposed instructions on

the grounds there was no homicide at issue. Although Defendant contends the

justifiable homicide statute applies to attempts, neither trial counsel nor appellate

counsel has cited a single case to support this claim. On the contrary, in State v.

Richardson, 92-836 (La.App. 5 Cir. 12/14/94), 648 So.2d 945, writ denied, 95-343

(La. 6/23/95), 656 So.2d 1011, the fifth circuit specifically found the standard for

self-defense that is applicable when a homicide occurs is different than when there

is no homicide. The fifth circuit noted “that the charge given by the trial court is not

wholly correct because it is based on the standard applicable when a homicide

results. However, we believe this error to be harmless.” Id. at 948. We find this

reasoning to be sound and, accordingly, find that the trial court did not err in denying

the requested jury instructions 4-7.

The final requested jury instruction stated: “When a defendant asserts self-

defense, the State has the burden of establishing beyond a reasonable doubt that the

defendant did not act in self-defense.” This instruction was based upon fourth circuit

jurisprudence as stated in State v. Fluker, 91-1566 (La.App. 4 Cir. 4/28/93), 618

So.2d. 459. As previously indicated, this court does not follow the same standard as

16

the fourth circuit, as this court has repeatedly held a defendant bears the burden of

proving by a preponderance of the evidence that his crime was committed in self-

defense in non-homicide cases. State v. Ross, 18-453 (La.App. 3 Cir. 3/13/19), 269

So.3d 1052. Indeed, even trial counsel conceded the burden “should be on the

defendant to prove by preponderance of the evidence that he acted in self-defense.”

We find this reasoning to be sound, and, accordingly, it was not error to deny this

proposed jury instruction. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR:

In his final assignment of error, Defendant contends the trial court imposed

excessive sentences. Louisiana Code of Criminal Procedure Article 881.1 provides

the mechanism for preserving the review of a sentence on appeal:

A. (1) In felony cases, within thirty days following the imposition
of sentence or within such longer period as the trial court may set at
sentence, the state or the defendant may make or file a motion to
reconsider sentence.

....

E. Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or from
urging any ground not raised in the motion on appeal or review.

Defendant’s motion to reconsider sentence requested that the trial court

reconsider his sentence pursuant to La.Code Crim.P. art. 881.1 on the basis that the

sentence imposed upon him is excessive. Louisiana courts have laid out the

following guidelines with regard to excessive sentence review:

Sentences within the statutory sentencing range can be reviewed
for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02),
808 So.2d 331, a panel of this court discussed the review of excessive
sentence claims, stating:

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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).

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

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[, cert. denied, 519
U.S. 1043, 117 S.Ct. 615 (1996)].

State v. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,

1005-06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

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Furthermore, in State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d

83, writ denied, 07-320 (La. 11/9/07), 967 So.2d 496, writ denied, 07-1116 (La.

12/7/07), 969 So.2d 626, this court adopted the fifth circuit’s three factor test from

Lisotta, 726 So.2d 57, which established that an appellate court should consider the

nature of the crime, the nature and background of the offender, and the sentences

imposed for similar crimes. Because Defendant’s motion to reconsider lacked

specificity and merely alleged his sentence was excessive “in light of the facts and

circumstances in the instant matter,” we will review Defendant’s claim as a bare

excessiveness claim under Baker.

Defendant was convicted of attempted second degree murder, in violation of

La.R.S. 14:27 and 14:30.1, as well as two counts of attempted manslaughter, in

violation of La.R.S. 14:27 and 14:31. By definition, Defendant’s crimes are crimes

of violence. Although Defendant claimed self-defense and lack of knowledge of the

presence of two of the detectives, there is no question Defendant pointed a twelve-

gauge shotgun at Detective Simmons and discharged the weapon. Under La.R.S.

14:27(D)(1)(b), a defendant convicted of attempted murder against a peace officer

“shall be imprisoned at hard labor for not less than twenty nor more than fifty years

without benefit of parole, probation, or suspension of sentence.” Defendant

contends in a footnote that he was not charged with attempted murder of a peace

officer because the bill of information does not charge him with violating the specific

subsection of La.R.S. 14:30 related to the murder of a peace officer. However, the

bill specifically described each victim as “a peace officer engaged in the

performance of his lawful duties.” Furthermore, the trial court instructed the jury

regarding specific intent to kill a peace officer or when the intent “is directly related

to the victim’s status as a peace officer.”

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Additionally, under La.R.S. 14:27(D)(3), a defendant convicted of attempted

manslaughter “shall be fined or imprisoned or both, in the same manner as for the

offense attempted; such fine or imprisonment shall not exceed one-half of the largest

fine, or one-half of the longest term of imprisonment prescribed for the offense so

attempted, or both.” Under La.R.S. 14:31(B), “Whoever commits manslaughter

shall be imprisoned at hard labor for not more than forty years.” Accordingly, the

twenty-year sentences Defendant received for his two attempted manslaughter

sentences were maximum sentences.

As to the second Baker factor, nature of the offender, Defendant admitted at

trial that he has been a methamphetamine addict since he was fourteen years old. At

the time of the shooting, Defendant was forty-five years old. Defendant was a

convicted felon who absconded from parole in Missouri and slept with a shotgun

within arms-reach. He also testified that he was coming down from a multi-day

methamphetamine binge.

The final Baker factor considers sentences imposed in similar circumstances.

In support of the forty-year sentence for attempted second degree murder, the trial

court cited State v. Daugherty, 15-400 (La.App. 3 Cir. 10/7/15), 175 So.3d 1164,

where this court affirmed a forty-year sentence for attempted murder. Within the

Daugherty opinion, numerous cases are cited in which high-end sentences were

upheld for attempted second degree murder. These included State v. Williams, 11-

414 (La.App. 4 Cir. 2/29/12), 85 So.3d 759 (forty-nine-year sentence for first

offender), writ denied, 12-708 (La. 9/21/12), 98 So.3d 326; State v. Camese, 00-

1943 (La.App. 4 Cir. 7/11/01), 791 So.2d 173 (maximum sentence for first

offender); State v. Ethridge, 96-1050 (La.App. 3 Cir. 2/5/97), 688 So.2d 1274 (forty-

five-year sentence for first offender).

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With regard to the two twenty-year sentences for attempted manslaughter,

these sentences are maximum sentences. As this court has previously stated, a key

aspect of sentencing is that “maximum sentences are reserved for the most serious

offenses and offenders.” State v. Morain, 07-1207, p. 9 (La.App. 3 Cir. 4/2/08), 981

So.2d 66, 72. Nonetheless, maximum sentences have been upheld for attempted

manslaughter before. See State v. Blanche, 47,014 (La.App. 2 Cir. 4/25/12), 92

So.3d 508; State v. Maze, 09-1298 (La.App. 3 Cir. 5/5/10), 36 So.3d 1072; and State

v. Boyd, 95-1248 (La.App. 4 Cir. 8/28/96), 681 So.2d 396. Although the cited cases

involved seriously injured victims, even maximum sentences for attempted

manslaughter make no appreciable difference to the amount of time Defendant

ultimately spends in prison, as these sentences are running concurrently to

Defendant’s forty-year sentence without benefits for attempted second degree

murder.

In light of the above, this court cannot say the trial court abused its great

discretion in sentencing Defendant to forty years at hard labor without benefits for

the attempted murder of Detective Simmons, and twenty years at hard labor on each

of the two counts of attempted manslaughter, all of which are to run concurrently.

The relevant question is whether the trial court abused its broad sentencing

discretion, not whether another sentence might have been more appropriate. See

State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043,

117 S.Ct. 615 (1996).

DISPOSITION

For the foregoing reasons, we affirm Defendant’s convictions. We amend the

Defendant’s sentence for attempted second degree murder to delete the denial of

diminution of sentence and remand to the trial court with instructions to amend the

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court minutes accordingly. Further, we remand this case to the trial court to correct

the sentencing minutes to delete the denial of the benefits of parole, probation, or

suspension of sentence for Defendant’s sentences for attempted manslaughter.

CONVICTIONS AFFIRMED; SENTENCES AMENDED IN PART;
AND CASE REMANDED WITH INSTRUCTIONS.

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