State of Louisiana v. Ray Donald Brister, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-507
STATE OF LOUISIANA
VERSUS
RAY DONALD BRISTER, JR.
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APPEAL FROM THE

THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. CR-108-17
HONORABLE STEVE GUNNELL, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of John E. Conery, Van H. Kyzar, and Candyce G. Perret, Judges.

AFFIRMED IN PART; REVERSED IN PART; CONVICTIONS AND
SENTENCES SET ASIDE; AND REMANDED

Paula Corley Marx

Louisiana Appellate Project

P. O. Box 82389

Lafayette, LA 70598-2389

(337) 991-9757

COUNSEL FOR DEFENDANT/APPELLANT:
Ray Donald Brister, Jr.

Michael Cade Cassidy

District Attorney - 31st JDC

Bennett R. LaPoint

Assistant District Attorney

P. O. Box 1388

Jennings, LA 70546

(337) 824-1893

COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

KYZAR, Judge.

Defendant, Ray Donald Brister, Jr., appeals following his convictions and
sentences for manslaughter and possession of a firearm by a convicted felon. For
the reasons herein assigned, we affirm in part, reverse in part, set aside the
convictions and the sentences on each, and remand to the district court for
proceedings consistent herewith.

FACTS AND PROCEDURAL HISTORY

Defendant was charged by Bill of Information filed February 13, 2017 with
one count of manslaughter in violation of La.R.S. 14:31(1) and one count of
possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1. On
November 13, 2018 Defendant entered an A/ford' plea to both counts of the bill of
information, with an agreed upon sentencing cap of thirty-five years. The plea was
entered pursuant to State v. Crosby.’

The facts of the case leading to the plea show that on December 25, 2016,
Lake Arthur police received a report that a person had been shot. Upon arrival,
Officer Scott Patch found a male lying on the ground with a gunshot wound to his
chest. There were a number of people around the victim, and the officer asked if
anyone saw who had shot the victim. Certain members of the crowd responded that
Defendant was the shooter, after which Officer Patch placed Defendant under arrest.
Police interviewed Defendant and learned that he and the victim, Shaft Quinn
Francis, were first cousins, that Defendant and Francis had been arguing prior to that
date, and that the two had continued to argue on Christmas day. Defendant later shot

the victim while arguing again. Defendant claimed the shooting was in self-defense.

' North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970).
? State v. Crosby, 338 So.2d 584 (La.1976).

During the course of the case, Defendant filed a motion to suppress his confession
or inculpatory statement given to Assistant Police Chief Terrie Guillory of the Lake
Arthur Police Department on the date of the homicide. He urged in the written
motion filed in the trial court that “[t]he statements which may incriminate the
defendant were made within a short time of the incident[,]” that “ the video recording
shows the defendant was crying, his hand were shaking, he was having trouble
breathing and was obviously highly emotional disturbed and mentally upset by what
had just transpired[,]” and that “because of his highly distraught state and the short
time lapse between the incident and the interview any waiver of his [Miranda] rights
and agreement to speak to police without an attorney present was not knowingly and
intellectually done.” Following the hearing on November 13, 2018, the trial court
denied the motion.

Defendant also filed a motion in support of his claim of self-defense to permit
him to introduce at trial evidence of hostile acts of the victim towards Defendant,
including overt acts immediately preceding the crime and two previous incidents.
That motion was also heard on November 13, 2018. At the conclusion of the
testimony of Defendant and arguments of counsel, the trial court denied the motion.

Defendant later entered his plea reserving his right to appeal the rulings of the
trial court denying his motions. The plea was entered with an agreement that the
maximum sentence Defendant was exposed to would be a total of thirty-five years
in prison. He was sentenced on January 28, 2019 to serve twenty-five years at hard
labor for the offense of manslaughter and, in addition, he was ordered to serve ten
years at hard labor without the benefit of parole, probation or suspension of sentence
for the offense of possession of a firearm by a convicted felon, with the two
sentences to run consecutively with each other. Defendant filed a motion to vacate

his sentence and for resentencing; which motion was denied.

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This appeal followed, wherein Defendant urges three assignments of error as

follows:

1. The trial court erred in denying the Motion to Suppress the statement

of Ray Donald Brister, Jr. which was not freely and voluntarily given

due to the circumstances and Ray Brister’s highly emotional state at the

time.

2. The trial court deprived Ray Donald Brister, Jr. of his constitutional

right to present a defense when it denied the defense motion to present

evidence of the victim’s dangerous character, including evidence of

prior hostile encounters.

3. Should this honorable court find review of the adverse rulings

discussed in assigned errors No. | and 2 precluded due to the failure of

defense counsel to specify on the record which rulings were preserved

pursuant to State v. Crosby, Mr. Brister was denied effective assistance

of counsel for counsel’s failure to articulate which rulings were being

preserved for review on appeal.

ERRORS PATENT

This Court reviews the record for errors patent and finds two. See La.Code
Crim.P. art. 920(2). First, the sentencing court failed to impose the sentence for
possession of a firearm by a convicted felon at hard labor even though a sentence for
that offense must be served at hard labor. La.R.S. 14:95.1. Thus, the sentence is
illegally lenient. See State v. Perkins, 13-245 (La.App. 3 Cir. 11/6/13), 124 So.3d
605. Second, the sentencing court was required to impose a fine of not less than one
thousand dollars nor more than five thousand dollars for Defendant’s conviction of
possession of a firearm by a convicted felon. La.R.S. 14:95.1. The trial court failed
to impose the mandatory fine, rendering the sentence for possession of a firearm by
a convicted felon illegally lenient for this reason as well. However, considering our

decision herein vacating Defendant’s convictions and sentences, these errors are

moot.

DISCUSSION
Ineffective Assistance of Counsel

We first consider assignment of error number three wherein Defendant
contends that counsel was ineffective, in the event this court determines that no
issues were preserved for appeal due to counsel’s failure to specify which errors
were being reserved at the time of the entry of his plea pursuant to State v. Crosby.
Specifically, Defendant asserts that if this court is precluded from reviewing
assigned errors one and two, counsel was ineffective.

The Louisiana Supreme Court granted a defendant’s writ application on this
issue in State v. Joseph, 03-315 (La. 5/16/03), 847 So.2d 1196. The Joseph
defendant did not specifically reserve the pre-trial rulings on which he sought
appellate review. The court stated:

Granted. A defendant’s failure to specify which pre-trial rulings
he desires to reserve for appeal as part of a guilty plea entered pursuant
to State v. Crosby, 338 So.2d 584 (La.1976), may limit the scope of
appellate review but should not preclude review altogether. See
Crosby, 338 So.2d at 586 (“If we are not able to afford the accused their
bargained-for appellate review, we must set aside the guilty pleas... .
because of the non-performance of the plea bargain (or the
impossibility of the state to perform it) by virtue of which the plea was
obtained.”); see also State v. Singleton, 614 So.2d 1242, 1243
(La.1993) (“To the extent that counsel also reserved appellate review
of sentence as part of the guilty plea, denial of that review ... would
jeopardize the voluntariness of those pleas.”). Absent a detailed
specification of which adverse pre-trial rulings the defendant reserved
for appellate review as part of his guilty plea, an appellate court should
presume that the trial court permitted a Crosby reservation no broader
than necessary to effectuate the underlying purpose of conditional
guilty pleas, i.e., to preserve review of evidentiary rulings which “go to
the heart of the prosecution’s case” that a defendant would otherwise
waive by entering an unqualified guilty plea. Crosby, 338 So.2d at 591.
Such rulings typically include denial of a motion to suppress evidence
or a confession and exclude rulings which may affect the conduct of
trial but “which do not substantially relate to guilt, such as the denial of
a continuance or severance.” /d. In the present case, to avoid
jeopardizing the voluntariness of the defendant’s guilty plea, the court
of appeal should afford defendant review of the trial court’s denial of
his motion to suppress the evidence but need not address his second

assignment of error relating to the trial court’s denial of his motion for
a continuance.

id. at 1196-97. Nevertheless, this court distinguished Joseph, 847 So.2d 1196, in
State v. Cummings, 07-1304, pp. 6-7 (La.App. 3 Cir. 4/30/08), 983 So.2d 246, 251,
writ denied, 08-1187 (La. 2/20/09), 1 So.3d 489:

We cite Joseph in order to do a thorough review of this appeal.
Even though we cite the case, we find that it does not apply to the instant
case for two reasons. First, Defendant specifically reserved the right to
contest the ruling on his motion to suppress at the time he pled guilty,
and he was silent as to the trial court’s denial of his motions for
discovery. We shall not extend the Joseph rule to instances when, at
the time of his guilty plea, the defendant made a specific reservation of
pre-trial judgments to contest on appeal and assigned error to a
judgment not contained in that reservation.

Second, even if we would apply Joseph, Defendant is not entitled
to a review of the ruling denying him access to the recording of the drug
transaction. The only charges against Defendant arise from events
occurring on the day following the drug transaction, and examination
of the record does not reveal any notice by the State that it intended to
introduce other crimes evidence at trial, so the denial of the CI evidence
does not substantially relate to Defendant’s guilt on the charged
offenses.

Therefore, Defendant waived this claim when he failed to
specifically reserve his right to contest the trial court’s denial of his
motions for discovery.

Here, Defendant did not specifically reserve one issue for appeal and raise an
additional, unreserved issue as did the Cummings defendant. Additionally, this court
essentially found, in its second reason for not applying Joseph, 847 So.2d 1196, that
the ruling of which the defendant sought review on appeal was irrelevant to the guilt
or innocence of the defendant as to the charges for which he pled guilty. The State
did not intend to use the other crimes evidence with which the discovery motion
dealt.

The ruling in Joseph, 847 So.2d 1196, specifically allows an appeal of the
denial of Defendant’s motion to suppress even though Defendant did not specifically

preserve the issue. Further, the issue of whether Defendant could admit evidence in

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support of his claim of self defense goes to the heart of the issue of his guilt. In
contrast, in Cummings, 983 So.2d 246, the subject of Defendant’s Prieur’ motion
was not relevant to the charged offenses. Accordingly, this case is distinguishable
from Cummings, while Joseph applies to allow consideration of Defendant’s
assignment of error on appeal related to the denial of his ability to introduce evidence
of the character of the victim.

Having concluded the propriety of the consideration of Defendant’s
assignments of error as to the rulings on the motion to suppress and the denial of
evidence of the character of the victim of the offense, as discussed below, this third
assignment of error is moot.

Admissibility of the Confession

Defendant argues that the trial court erred in denying the motion to suppress
his inculpatory statement as he claims it was not freely and voluntarily given due to
the circumstances and his highly emotional state at the time it was given. At the
hearing on the motion to suppress on November 13, 2018, the State and counsel for
Defendant stipulated that the only issue that is being raised by the motion is whether
or not there was a knowing and intelligent waiver of Defendant’s rights in making
the inculpatory statements, as depicted on the DVD of the statements. After
reviewing the videotape of the statement and listening to arguments of counsel, the
trial court denied the motion, providing the following reasons:

All right. I had an opportunity to - - to review the video, okay.

Yes, Mr. Brister was emotional in the video. He was questioned as to

knowing his Miranda rights. It was gone over with him again. He even

stated that he had been read his Miranda rights I’d say I think he said

20 times, but anyway. But what was more important for the Court is

whether or not he was able to make an intelligent waiver at that time.

And I have to look at the - - his answers to questions that were asked

were very detailed. He knew what was going on. He knew what had
happened, and he knew what he was saying. So, at this time, the Court

3277 So.2d 126 (La.1973).

finds that the waiver of an attorney was voluntary, knowingly, and
intelligently done. So I’m denying your motion to suppress, okay.

Before a confession or inculpatory statement of a defendant can be introduced
into evidence at his or her trial, “it must be affirmatively shown that it was free and
voluntary, and not made under the influence of fear, duress, intimidation, menaces,
threats, inducements or promises.” La.R.S. 15:451. Ifthe statement is a product of
custodial interrogation, the state additionally must show that the defendant was
advised before the questioning of his right to remain silent, that any statement he
makes may be used against him, and that he has a right to either retained or appointed
counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). In a hearing on
a motion to suppress, “the burden of proof is on the defendant to prove the ground
of his motion, except that the state shall have the burden of proving the admissibility
of a purported confession or statement by the defendant[.]” La.Code Crim.P. art.
703(D).

A trial court’s finding as to the free and voluntary nature of a statement
carries great weight and will not be disturbed unless not supported by
the evidence. State v. Benoit, 440 So.2d 129, 131 (La.1983); State v.
English, 582 So.2d 1358, 1364 (La.App. 2nd Cir.1991), writ denied,
584 So.2d 1172 (La.1991). Credibility determinations lie within the
sound discretion of the trial court and its rulings will not be disturbed
unless clearly contrary to the evidence. Vessell, [450 So.2d 938
(La.1984)]. When deciding whether a statement is knowing and
voluntary, a court considers the totality of circumstances under which
it is made, and any inducement is merely one factor in the analysis.
State v. Lavalais, 95-0320, p. 6 (La.11/25/96), 685 So.2d 1048, 1053;
State v. Lewis 539 So.2d 1199, 1205 (La.1989); State v. Thomas, 461
So.2d 1253 (La.App. Ist Cir.1984), writ denied, 464 So.2d 1375
(La.1985).

State v. Blank, 04-204, p. 10 (La. 4/11/07), 955 So.2d 90, 103, cert. denied, 552 U.S.
994, 128 S.Ct. 494 (2007).

The question of voluntariness of a confession, including a
determination of the defendant’s psychological state of mind, will be
answered from the facts and circumstances of each case. Brown v.
Illinois, 422 U.S. 590, 95 $.Ct. 2254, 45 L.Ed.2d 416 (1975). Thus, the
admissibility of a confession is, in the first instance, a question for the

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trial judge. His conclusions on the credibility and weight of the

testimony will not be overturned on appeal unless they are not

supported by the evidence. State v. Gaines, 354 So.2d 548 (La.1978).
State v. Williams, 383 So0.2d 369, 372 (La.1980).

At the hearing on the motion to suppress, the DVD of the questioning of the
Defendant and his responses was introduced into evidence via the stipulation of the
State and counsel for Defendant. The best evidence of the statement and the events
surrounding it is the unaltered DVD itself. State v. Auzenne, 305 So.2d 507
(La.1974); State v. Joe, 502 So.2d 270 (La.App. 3 Cir.1987). A review of that tape
shows clearly that Defendant was indeed advised of his Miranda rights and shows
his acknowledgement and waiver of those rights.

After the trial court viewed the video, Defendant argued the interview took
place shortly after the traumatic shooting. Defendant’s breath was short and labored,
and his hands were shaky. He was crying throughout the video. Defendant argued
these physical signs showed his waiver of his rights including his decision to speak
to officers without an attorney was not knowingly and intelligently made because of
his emotional state of mind.

The State acknowledged Defendant was very upset about what happened, but
It pointed out that his emotional state was caused by what Defendant had just done,
not by any actions of the State. The State argued Defendant was coherent, gave
responsive answers to questions, and corroborated details of the incident.

The trial court agreed that Defendant was emotional, but noted Defendant was
read his Miranda rights and answered very detailed questions. The trial court felt
Defendant “knew what was going on. He knew what had happened, and he knew
what he was saying.” Thus, the trial court found Defendant’s waiver of an attorney

was “voluntary, knowingly, and intelligently done[,]” and it denied the motion to

suppress.

Our review of the videotaped confession verifies the trial court’s findings.
Defendant was understandably distraught; he had very recently killed his cousin,
who he said he loved. Although much of the video shows Defendant breaking down,
crying uncontrollably, and praying for forgiveness and mercy, Defendant is alone in
the interrogation room during that time. When he is actually being questioned, he is
crying, breathing heavily, and shaking, but he is also answering each question
clearly. He describes the events and details of the evening in a clear and relatively
calm manner despite being understandably upset. Defendant says on tape that he
had been read his rights about twenty times, and he says he understands them when
they are read to him yet again. He says he wants to tell what happened.

In State v. Nargo, 15-779 (La.App. 3 Cir. 6/1/16), 193 So.3d 1263, writ
denied, 16-1313 (La. 5/19/17), 220 So.3d 748, the defendant confessed to two
murders while being questioned by deputies. During the interrogation, which was
recorded, the defendant was visibly upset and crying. He argued on appeal that his
confession was inadmissible. Therein, another panel of this court held as follows:

Although Nargo cried during questioning, we find no indication

that this emotional distress was so great that it overcame the free and

voluntary nature of Nargo’s confession. See State v. Weeks, 345 So.2d

26 (La.1977) (where the court found that despite defendant’s contention

that the statements were involuntary because she was upset and

stressed, the record amply supported a finding that the defendant was

sufficiently in possession of her mental faculties to make the statements
voluntary).
Id. at 1271.

In State v. Beck, 445 So.2d 470 (La.App. 2 Cir.), writ denied, 446 So.2d 315
(La.1984), the defendant also argued that her emotional upset and condition negated
the voluntariness of her confession. The trial court denied her motion to suppress.

On appeal, the decision was upheld, with the second circuit elaborating as follows:

Emotional distress is not grounds for rendering a confession
inadmissible unless it is so severe that the party confessing is unable

9

to voluntarily do so. See State v. Williams, 383 So.2d 369 (La.1980).
While defendant cried and trembled during her interrogation, she did

not become overly emotional or lose control. The record supports the
trial court’s finding that defendant’s emotional distress did not affect

the voluntariness of her confession.

Id. at 474.

In State v. Smith, 11-638 (La.App. 5 Cir. 3/13/12), 90 So.3d 1114, the
defendant argued that statements given to police were not free and voluntary because
of her emotional state and the use of improper questioning methods. She claimed
that the shock and distress she was experiencing in the immediate aftermath of the
victim’s death caused her to be visibly upset and sometimes non-responsive during
her questioning, and nothing was done to ascertain her mental condition or to insure
that she understood her rights.

In regard to her distressed emotional state, this Court addressed
a similar scenario in State v. Terrick. There, a sixteen-year-old boy was
convicted of second degree murder and argued on appeal that his
statement to police was not given knowingly and voluntarily. The
detective testified that the defendant appeared upset during the
statement and that he cried following the statement. Although this
Court’s focus was on the effect of the defendant’s age on the
voluntariness of his statement, this Court still took note of his distress,
stating: “Defendant, who was apparently upset by the circumstances in
which he found himself, at no time sought to discontinue the
statement.” We concluded that his statement was freely and voluntarily
given.

In the instant case, although Smith was upset and cried
intermittently throughout her statements, a review of the transcript
reveals no indication that she wished to stop talking. In addition, the
interviewing detective in the present case testified that Smith was of
clear mind and that she understood what was transpiring. This is further
corroborated by a review of the cassette tapes, in which Smith’s
statements appear voluntary and devoid of any invocation of her rights.
Consequently, we find that Smith’s distressed, emotional state did not
render her statements involuntary.

Id. at 1122 (footnotes omitted).
In State v. Lundy, 15-776, pp. 11-12 (La.App. 4 Cir. 5/25/16), 195 So.3d 587,

594-95, writ denied, 16-1198 (La. 5/19/17), 219 So.3d 335, the fourth circuit found

10

that the district court did not abuse its discretion in determining, after listening to the
recorded statement and the testimony at trial, that the defendant there knowingly and
intelligently waived his Miranda rights, and in so doing, reviewed a multitude of
jurisprudence as to the issue.

The State further argues that emotional distress is not a ground
for rendering a statement inadmissible unless the emotional distress is
so acute that the statement is not voluntary, citing State v. Moseley, 587
So.2d 46, 51 (La.App. 2 Cir.1991) (holding that a defendant charged
with second degree murder who cried and was upset when giving a
confessional statement presented no evidence that he was hysterical and
thus unable to make a voluntary choice to confess); State v. McKnigh,
539 So.2d 952, 956 (La.App. 2 Cir.1989) (holding that a defendant’s
emotional distress following stabbing of former husband was not so
severe as to render subsequent confession involuntary; although
evidence indicated that defendant had consumed beer previously,
officers testified that she exhibited no signs of intoxication, she was not
hysterical, and was sufficiently rational to be concerned for
granddaughter); and State v. Wiley, 513 So.2d 849, 854 (La.App. 2
Cir.1987) (finding that the inculpatory statements of a defendant who
claimed he was in a confused mental state when the statements were
made were admissible. “Emotional distress is not grounds for rendering
a confession inadmissible unless it is so severe that the party confessing
is unable to voluntarily do so.”).

Additionally, the State relies upon State v. Knowles, 444 So.2d
611, 612-13 (La.1984), in support of its argument that emotional
distress, while receiving a Miranda warning or giving a statement, does
not automatically invalidate a statement. In Knowles, after being read
his Miranda rights, the Defendant spoke to relatives on the telephone,
“during which [time] he became emotionally upset and wept,” and the
Defendant subsequently “blurted out” in the presence of the
investigating officer that he killed the victim. /d. at 611-12. Defendant
argued in part that his waiver of rights was not knowing or intelligent,
and his confession was not voluntary, “because he was emotionally
upset.” /d. at 612. However, the Court noted that both officers testified
“that although the Defendant was upset he composed himself and
intelligently responded to questions” when the Court affirmed the
district court’s finding that the Defendant’s waiver was valid, and his
confession was voluntary. /d. at 612-13.

Similarly, we find that there was no error in the trial court’s decision that the
Defendant’s statement was freely and voluntarily given after being fully advised of
his rights. The videotaped confession does not show a mental state that precluded a

free and voluntary confession. Although Defendant does appear emotional in the

1]

video and highly stressed by what he had done, he also appears to understand what
was going on around him and the consequences of what he had done. The video
shows no intimidation, menaces, threats, inducements, or promises from the officer
questioning Defendant. Accordingly, we find no error in the decision of the trial
court denying Defendant’s motion to suppress the confession.
Denial of Evidence of Hostile Demonstrations/Overt Acts of the Victim

Defendant next asserts that the trial court erred when it denied his motion to
present evidence of the victim’s dangerous character, including evidence of his prior
hostile encounters, such that he was denied his constitutional right to present a
defense to the charges against him.* We agree.

The Sixth and Fourteenth Amendments to the United States

Constitution and Article I, § 16 of the Louisiana Constitution guarantee
the criminally accused a meaningful opportunity to present a complete

defense. State v. Blank, 04-0204, p. 49 (La.4/11/07), 955 So.2d 90,

130, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).

Under La.Code Evid. art. 403, relevant evidence “may be excluded if

its probative value is substantially outweighed by the danger of unfair

prejudice....” A district court judge enjoys broad discretion in admitting

or excluding evidence on relevancy grounds. State v. Miles, 402 So.2d

644, 647 (La.1981).

State v. Dressner, 08-1366, p. 15 (La. 7/6/10), 45 So.3d 127, 137-38, cert. denied,
10-752 (La. 3/7/11), 562 U.S. 1271, 131 S.Ct. 1605.

Generally, evidence of the good or bad character of the victim of a crime is
inadmissible and more specifically, “in the absence of evidence of a hostile
demonstration or an overt act on the part of the victim at the time of the offense
charged, evidence of his dangerous character is not admissible[.]” La.Code Evid.

art. 404 (A)(2)(a). Further, and more specific to the case at hand, “[iJn the absence

of evidence of a hostile demonstration or an overt act on the part of the victim at the

* Defendant’s motion sought introduction of evidence of prior threats and acts by the victim
towards him, in addition to evidence of a prior conviction of the victim for aggravated battery.
Defendant’s appeal, however, does not address the aggravated battery conviction, thus waiving
any alleged error in the trial court’s ruling in connection therewith.

12

time of the offense charged, evidence of the victim’s prior threats against the accused
or the accused’s state of mind as to the victim’s dangerous character is not
admissible[.]” La.Code Evid. art. 404 (B)(2).
A trial court’s ruling on the admissibility of evidence is reviewed
for an abuse of discretion. State v. Cosey, 97-2020 (La.1 1/28/00), 779
So.2d 675, 684. This same standard is applied to rulings on the
admission of other crimes evidence and evidence under La. C.E. art.
412.2. State v. Merritt, 04-204 (La.App. 5 Cir. 6/29/04), 877 So.2d
1079, 1085, writ denied, 04-1849 (La.11/24/04), 888 So.2d 228; State

v. Humphries, 40,810 (La.App. 2 Cir. 4/12/06), 927 So.2d 650, 656,
writ denied, 06-1472 (La.12/15/06), 944 So.2d 1284.

State v. Wright, 11-141, pp. 10-11 (La. 12/6/11), 79 So.3d 309, 316.

At the hearing on the motion, Defendant set forth the details of the previous
encounters with the victim that he asserts amounted to evidence of the victim’s
dangerous character by hostile demonstrations or overt acts by the victim towards
him that should have been admitted in his defense. He testified that in November
2016 he was with another couple at 533 New Orleans Street, which was family
owned property, when he had an encounter with the victim Francis, whom Defendant
referred to as Shaft, and that Francis told him that “when he gets his hands on me he
is going to kill me for using --- letting his name come out of my mouth.” He stated
further that Francis tried to physically grab or assault him by reaching into the car
where Defendant sat in the rear passenger area, but that Defendant moved to the
other side of the car to a place that Francis could not reach him. He then detailed
the events of a second incident, as follows:

It occurred on December the 23rd of 2016. I was backed in on

the family property. It was around 2:00 o’clock in the morning, and

[Francis] pulled up and told me I couldn’t be parking on that property.

Don’t know why, but he said I couldn’t be on that property. And I told

him I didn’t have to go anywhere because it was family property. So

he told me one more time he said either you going to move this car or

I’m going to do something to you. So I said I’m not going nowhere.

So he went to his car and popped the trunk, and he came back with

something he was hiding on the side behind his back and he swung the
hammer - - it was a hammer that he was trying to hit me in the head

13

with, and I closed the door, and it put a dent in my girlfriend’s car on
the top side of the driver’s side.

Defendant further testified that on December 25, 2016, the date of the offense,
he and another individual went to his Uncle Augie’s house to bring his uncle some
beer, and stated that “[Francis] had came[sic] from down the road and was walking
towards me making threats toward me, so I got in the car, closed the door, and I
called my mother to see if she could come down there and try to talk to him to defuse
the situation.” Defendant then left the area and, while away, armed himself with a
pistol, but returned a short time later to a location approximately two blocks from
where the victim was. Thereafter, Defendant stated the following occurred:

When I pulled up, [Francis] was down there talking to my mother

and them, and I could hear him screaming and cursing at them, and he

got up and took his shirt off and started walking towards me, and my

sister was trying to stop him, and she kept on - - he kept on throwing

her from side to side, and I’m begging him to leave me alone because

there’s no reason he should be messing with me. I’ve never done

anything to him. But he constantly messes with me. He constantly
picks on me and threatens me.

As he approached me, I never did move from inside the -- the
door, the driver’s side door and the car. I never moved from there. The
only thing I did was whenever he got close to me he -- I turned and he
grabbed me and he started choking me. That’s whenever I had reached
in the back - - my back and tried to shoot him in the left shoulder, but
being that I couldn’t breathe - - it’s like I was blacking out whenever I
pulled the trigger.

On cross examination, Defendant was questioned about his opportunity to
retreat from any confrontation with Francis.

A [Francis] was down the road.

Q How far down the road was he?

A I think he was, like, at the family property. I was parked like two
or three lots down.

Q Okay. So where - - where [Francis] was, he was like two or three
lots away from where you went?

14

OO F- O - HOH - HH —- H FF LO PF

Yeah, but before he was on 6th - -

No, but please answer my question.

Yes, sir.

Am I right in saying that?

Yes, sir.

He was two blocks away, right, to the place you were going to?
Uh-huh (yes).

And you knew that Shaft Francis was there, didn’t you?
Yes, sir.

And you went there knowing that you had a gun?

Yes, sir.

And so when you got there, I think you said you saw [Francis]

coming, right?

‘OO - HH -— OH FF H FP H YF

a
ga

>

3

A

Q

After we had got out of the car.

But you saw [Francis] coming, right?
(Witness nods head affirmatively.)
Yes?

Yes.

And you were in your car, right?

] was standing outside of my car.

It was your car, right?

I was standing outside of my car.

When you saw [Francis], you could have gotten in your car,

Yes, sir.

But you didn’t get in your car, did you?

15

No, sir.

You decided to stay there and confront him, didn’t you?

> HO +}

It wasn’t about that.

Q But you decided to stay there and confront him, right? You
didn’t leave, so you decided to stay there and wait for him to come to
you, right?

A Yes, sir.

Q And you knew you had a gun?

A Yes, sir.

Q And so you were waiting for him to come back to you, weren’t

you?

A No, sir.

Q You could have left, couldn’t you?

A Yes, sir, but I - -

Q There was nothing to stop you from leaving, right?

A Yes, sir.

Q So when you saw him coming towards you, you made no efforts

whatsoever to withdraw from what you see was a_ possible
confrontation between you and [Francis]? You did nothing to
withdraw, right?

A No, sir.

However, on re-direct, the following colloquy was exchanged adding

additional detail to Defendant’s testimony:

Q How long do you - - do you estimate it was from the time
[Francis] saw you until he got to your car?

A About two or three minutes.

Q ___ And during that time, weren’t your sister and your mother - -
your sisters and your mother out there as well?

A Yes, sir.

Q __ And, in fact, didn’t he shove them out the way to get to you?

16

A Yes, sir.

Q Now to leave the property, wouldn’t you have had to drive
towards where [Francis] was - -

A Yes, sir.
Q -- was coming from?
A Yes, sir.

The State introduced no evidence at the hearing. However, the trial court had
just listened to the videotaped confession of Defendant in connection with the
motion to suppress heard immediately prior to the hearing on Defendant’s motion.
In the videotaped confession, Defendant said he told the victim he had a gun, and he
asked the victim to please stop. He said he was standing between the car and the car
door, and he picked up the gun after he stood up to get out of the car. The victim
was coming toward him at that time. Defendant said he was afraid of the victim,
who had beaten him up before. In the videotaped statement, Defendant states that
he fired the gun only after Francis told Defendant he would have to “pop me to stop
me” and only after Francis had grabbed him by the neck.

The trial court denied the motion, commenting:

From the testimony I’ve heard, testimony on the Prieur hearing, okay,

he was an aggressor ‘cause he came back, all right. So if - - if I find

under Prieur that he was the aggressor, then the - - the other incidents

will not come in, okay. All right. Now, you can argue in front of the

jury, and they - - they’Il get jury instructions as to that, okay, but as for

you introducing these other statements is denied under the Prieur, okay.

Defendant argues that he established that the victim committed an overt act
just prior to the offense that would allow evidence of the previous acts to be admitted

at trial. Keeping the evidence out, he asserts, severely limited his ability to argue a

self-defense claim to the jury.

17

In contrast, the State contends Defendant’s testimony established he was the
aggressor. Thus, he could not claim the victim’s death was in self-defense without
showing he withdrew from the conflict. The State argues Defendant’s testimony
showed he had the opportunity to withdraw but made no effort to do so.

Defendant’s brief further contends that the testimony of Evelyn and Shonita
Brister supports his claim of self-defense and his argument that the trial court erred
in denying his motion. That testimony, however, was not offered at the hearing of
the motions but instead was elicited at the sentencing hearing on January 28, 2019.
The trial court did not have the benefit of the testimony in ruling on the motion. It
is well settled that a new basis for an objection cannot be raised for the first time on
appeal. State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Williams, 343 So.2d
1026 (La.1977); State v. Robertson, 358 So.2d 931 (La.1978). This includes new
evidence offered for the first time on appeal as an additional basis for Defendant’s
objection. /d. Thus, we do not consider the testimony of these two additional
witnesses.

Defendant sought a plea of self-defense and attempted to offer in support the
evidence presented at the hearing of the prior threats and acts and the alleged hostile
actions of the victim at the time of the offense. Louisiana Revised Statutes 14:20
A(1) and (2) provide that 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” or “[w]hen committed for the purpose of preventing a violent or forcible
felony involving danger to life or of great bodily harm by one who reasonably
believes that such an offense is about to be committed and that such action is

necessary for its prevention.”

18

When self-defense is raised as an issue by the defendant, the state
has the burden of proving, beyond a reasonable doubt, that the homicide
was not perpetrated in self-defense. A homicide is justifiable when
committed in self-defense by one who reasonably believes he is in
imminent danger of losing his life or receiving great bodily harm and
the killing is necessary to save himself from that danger. La.R.S.
14:20(A)(1).. A person who is the aggressor or who brings on a
difficulty cannot claim the right of self-defense unless he withdraws
from the conflict in good faith and in such a manner that his adversary
knows or should know that he desires to withdraw. La.R.S. 14:21.

When the defendant challenges the sufficiency of the evidence in
such a case, the question becomes whether, viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could
have found beyond a reasonable doubt that the homicide was not
committed in self-defense or in defense of others.

Evidence of a person’s character or a trait of his character, such
a moral quality, is generally inadmissible for the purpose of proving
that he acted in conformity therewith on a particular occasion. La. C.E.
art. 404(A). An exception is a homicide case where the defendant
claims self-defense and at issue is whether the deceased was the
aggressor and the defendant’s state of mind. In such a case, evidence
of the victim’s dangerous character or threats against the accused is
relevant because it tends to show the victim was the aggressor and the
defendant’s apprehension of danger was reasonable.

As a condition of admissibility, the defendant must produce
evidence that at the time of the incident, the victim made a hostile
demonstration or committed an overt act against the defendant. The
term “overt act” as used in connection with prosecutions where self-
defense is asserted means any act of the victim which manifests to the
mind of a reasonable person a present intention on the part of the victim
to kill or to do great bodily harm. The overt act must be directed at the
accused at the time of the incident. Once appreciable evidence of an
overt act or hostile demonstration is established, 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 his conduct; and, (2) to help determine who
was the aggressor in the conflict.

State v. Palmer, 45,627, pp. 10-13 (La.App. 2 Cir. 1/26/11), 57 So.3d 1099, 1104-
05, writ denied, 11-412 (La. 9/2/11), 68 So.3d 526 (citations omitted).

The trial court reasoned that the decision in this case turns on who was the
aggressor, Defendant or the victim. The trial court found Defendant was the

aggressor because he returned to the scene of the conflict, armed with a firearm,

19

knowing the victim would likely be there. Thus, the trial court denied Defendant’s
motion to allow evidence of the victim’s prior acts against him at trial. The trial
court’s analysis, however, goes to the heart of the self-defense issue, rather than the
admissibility of the evidence of the victim’s prior threats and actions towards
Defendant, i.e., dangerous character evidence so as to support his self-defense plea.

Essentially, the trial court here used the aggressor doctrine to determine, as a
matter of fact, that Defendant was not entitled to urge self-defense in the first place,
rather than determining whether Defendant could further his self-defense plea by
introducing evidence of the victim’s prior threats and acts against him. This was not
the proper analysis for the issue. 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). Further, a person claiming justifiable
homicide has “no duty to retreat under certain circumstances and can meet ‘force
with force;’ however, the amount of force employed must still be reasonable under
the circumstances presented” as per the provisions of La.R.S. 14:20(C) and (D).
State v. Gasser, 18-531, p. 16 (La.App. 5 Cir. 7/3/19), 275 So.3d 976, 988. “A
person who is the aggressor or who brings on a difficulty cannot claim the right of
self-defense unless he withdraws from the conflict in good faith and in such a manner
that his adversary knows or should know that he desires to withdraw and discontinue
the conflict.” La.R.S. 14:21. However, “[n]ot every act of a defendant will make
him or her an aggressor. It is the character of the act coupled with the intent of the
defendant that determines whether the defendant is the aggressor.” State v. McGee,
51,977, p. 12 (La.App. 2 Cir. 4/3/19), writ denied, 19-761 (La. 11/19/19), 282 So.3d
1066 (citing State v. Spivey, 38,243 (La. App. 2 Cir. 5/12/04), 874 So.2d 352).

Further, “[t]he act of aggression which would thereafter preclude asserting the right

20

of self-defense must be such that the response elicited from the victim by the
aggressive act can be termed a reasonable response to that act.” State v. Gonday,
442 So.2d 703, 706 (La.App. 1 Cir. 1983). For example, “[i]f a defendant curses a
victim and the victim pulls a gun to kill the defendant certainly the defendant is not
precluded by the original aggressive act of cursing from killing the victim in order
to save his own life” and thus “[ujnder these circumstances the victim’s response to
the aggressive act would be unreasonable.” /d.

While Defendant here indeed returned to the general area after the initial
verbal confrontation on December 25, and had retrieved a weapon for his defense,
he did not in fact return to the immediate area where he had previously encountered
Francis. Although the trial court concluded that Defendant was the aggressor for
returning, it is equally clear that Francis did not have to leave the location that he
was at to approach and confront Defendant. By approaching Defendant, then
grabbing him and choking him, as alleged by Defendant without contradiction by
the State at the hearing, there was evidence of a hostile demonstration or overt act
on the part of Francis so as to allow for the admissibility of the other acts of
November 2016 and December 23, 2016.

In State v. Simmons, 349 So.2d 273, (La.1977), the supreme court reversed
the conviction of the defendant finding the trial court erred in sustaining the State’s
objection to questions concerning the dangerous character of the deceased on the
ground that no proper foundation had been laid; 1.e., there was no “evidence” of an
overt act.’ The court set forth the law and the evidence required for the admissibility

of such evidence, as follows:

> The case involved the application of La.R.S. 15:482, which at the time provided as follows: “In the
absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured,
evidence of his dangerous character or of his threats against accused is not admissible.”

21

In order to introduce evidence of the decedent’s dangerous
character or of his threats against the accused, the defendant must first
present appreciable evidence tending to establish a_ hostile
demonstration or an overt act on the part of the decedent which act or
demonstration creates in the mind of a reasonable person a belief that
he is in immediate danger of losing his life or of suffering great bodily
harm. The inquiry is not whether in fact the decedent was going to
inflict great bodily harm on the defendant, but whether the defendant
reasonably was in apprehension of an attack by the victim. In the
absence of evidence (not proof) of hostile demonstration or of overt act
by the victim, evidence of his threats or dangerous character is not
admissible.

Id. at 274 (citations omitted).

The court in Simmons reviewed the evidence that established that a fight had
already occurred between the defendant and the decedent victim on the night of the
shooting in which the defendant was badly beaten. The two men had also been
involved in a fight some months before the night of the incident. Both men left the
scene of the fight prior to the killing, promising that they would return. The
defendant testified that the decedent had told him that he was going to go home, get
his gun, and come back and kill the defendant. The defendant testified that he replied
that he could go home too. Afterwards, the defendant returned and was waiting at a
cook shed when the victim drove up with his wife. The victim’s wife testified that
she saw the defendant and that she was certain that her husband had also. The
defendant testified that when the victim and his wife drove up, he saw the victim’s
wife take a pistol out of her purse and give it to her husband, after which the victim
got out of the passenger side of the car and turned toward the defendant. The
defendant then fired at the victim. The defendant testified: “Yes, sir, when he went
to turn, that is when I shot, because I had seen the gun and knowed[sic] that he was

going to shoot me.” /d. at 275. The victim’s wife testified at trial that she had not

given her husband a gun.

In his per curiam, the trial judge in Simmons found that the only evidence of
an overt act was the defendant’s testimony that the victim had turned toward him.
The trial judge found that this testimony was uncorroborated, unsupported by other
evidence, and completely self-serving. He also found that no pistol was found at the
scene of the crime or on the victim. Therefore, he concluded that the “unsupported,
self-serving statement of defendant was not ‘evidence’ of an overt act which would
justify the introduction of the evidence offered.” Jd. However, evidence was also
adduced at trial through the testimony of a deputy off the Richland Parish sheriff's
office, called as a witness for the State. As the first deputy to arrive at the hospital
to which the victim was brought, he was informed by the treating physician that the
victim’s right hand pants pocket had been emptied. The deputy went to the victim’s
car and discovered a basket of blood-stained clothing in the back seat. The deputy
found a lighter, some money and a pistol together in the basket about midway down
in the clothing. When asked by the deputy who these objects belonged to, the
victim’s wife replied that the gun was hers but that she didn't know where the other
articles had come from. At trial, however, she testified that while she and the victim
were being driven to the hospital, she took the money out of her husband’s pocket
and put it in the basket. She also explained that it was her habit to always carry a
gun with her and that she had done her laundry that day and had left the gun in the
basket.

The testimony of Deputy Cumpton and the contradictory testimony of

Mrs. Ignont does tend to corroborate the defendant’s testimony and,

taken together with the defendant’s testimony, constitutes appreciable

evidence of an overt act or hostile demonstration. Therefore, the

defendant should have been permitted to elicit testimony as to the
victim’s dangerous character or of his threats against the accused.

Id. at 275.

23

Just as the court concluded in Simmons, we find the evidence adduced at the
hearing from Defendant constitutes appreciable evidence of a hostile demonstration
or overt act on the part of the victim so as to support the admissibility of the threats
and acts of November 2016 and December 23, 2016. The only testimony offered as
to the events that occurred that day was that of Defendant. The State produced no
testimony or evidence other than the videotaped confession to dispute Defendant’s
version of the events. Defendant left the area that night after the first encounter with
the victim. When he returned to a nearby area, he was not immediately where
Francis was but when Francis did discover that Defendant was there, he sought out
Defendant, throwing Defendant’s sister off him. He then approached the door of
Defendant’s vehicle, grabbed him, and started choking him. Defendant never left
the immediate area of his vehicle. He claims to have shot the victim after the victim
started choking him, and Defendant could not breathe.

The State has the burden of disproving the homicide was committed in self-
defense. Palmer, 57 So.3d 1099. The State’s argument and the trial court’s
determination that Defendant was actually the aggressor simply by returning to the
area goes to the ultimate issue of whether Defendant properly acted in self defense,
usurping the role of the jury. The trier of fact in this case, the jury, could find
Defendant was the aggressor in doing so such that the killing was not justified, or it
could find the victim, Shaft Francis, was the aggressor and, thus, self-defense
justified the killing. The jury must also determine whether Defendant reasonably
believed he was in imminent danger of death or great bodily harm and had to save
himself from the danger by use of the firearm. He testified he tried to shoot the
victim in the shoulder, but his aim was affected by the victim’s attack. Again, the
State offered no evidence to disprove Defendant’s version of the incident other than

the videotape, which does not totally contradict the statements as to the events

24

surrounding the incident. All of these are rightfully questions for the jury, however;
as opposed to the question of whether there was adequate evidence of an overt or
hostile act on the part of Shaft Francis at the time of the incident so as to permit the
introduction of the prior-acts evidence.

We find the trial court committed an abuse of discretion in misapplying the
standard of admissibility of the evidence of the victim’s dangerous character by
failing to determine whether there was appreciable evidence that the victim
committed an overt act directed at Defendant at the time of the incident. We find
the evidence is appreciable of such acts on the day of the crimes as alleged.
Therefore, the evidence of the victim’s prior threats and his dangerous character as
may be shown through the November 2016 and December 23, 2016 incidents as
described by Defendant in his testimony would be admissible at Defendant’s trial to
show who was the aggressor and whether Defendant had a reasonable apprehension
of danger to justify his conduct. As such, Defendant was deprived of his
constitutional right to present a potential defense at his trial. Accordingly, we
reverse the decision of the trial court as to this issue, set aside Defendant’s
convictions and sentences, and remand to the trial court for further proceedings
consistent herewith.

DECREE

For the reasons set forth herein, we affirm the decision of the trial court
finding Defendant’s confession or inculpatory statement made December 25, 2016
admissible, but reverse the decision declaring the incidents as between Defendant
and the victim in November 2016 and December 23, 2016 as described in the hearing
to be inadmissible. Accordingly, Defendant’s convictions and sentences are set
aside and this matter is remanded to the trial court for proceedings consistent

herewith.

25

AFFIRMED IN PART; REVERSED IN PART; CONVICTIONS AND

SENTENCES SET ASIDE; AND REMANDED.