State of Louisiana v. Michael Andre Thomas

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-802

STATE OF LOUISIANA

VERSUS

MICHAEL ANDRE THOMAS

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 8321-20
HONORABLE KENDRICK J. GUIDRY, DISTRICT JUDGE

**********

GARY J. ORTEGO
JUDGE

**********

Court composed of Shannon J. Gremillion, Charles G. Fitzgerald, and Gary J.
Ortego, Judges.

AFFIRMED.

Hon. Stephen C. Dwight
Fourteenth Judicial District Attorney
P. O. Box 3206
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

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

David S. Pipes
Assistant District Attorney
Fourteenth Judicial District
901 Lakeshore Drive
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

ORTEGO, Judge.

On June 18, 2020, Defendant, Michael Andre Thomas, was charged by grand

jury indictment with two offenses, the second-degree murder of Timothy Wayne

Napoleon, in violation of La.R.S. 14:30.1, and the attempted second-degree murder

of Crystal C. Jones, in violation of La.R.S. 14:27 and 14:30.1. On June 11, 2021, a

unanimous jury found Defendant guilty as charged on both counts.

On June 24, 2021, Defendant filed a motion for new trial, contending the

verdicts were contrary to law and evidence and that the ends of justice would be

served by the granting of a new trial. A hearing was held on Defendant’s motion on

August 4, 2021, at which the trial court denied the motion. On August 6, 2021, the

court sentenced Defendant as follows:

For the death of Timothy Napoleon, I hereby sentence Michael
Thomas to life imprisonment at hard labor without the benefit of
probation, parole, or suspension of sentence.

For the attempted second-degree murder of Crystal Jones, for
depriving her freedom, for paralyzing her, for forcing her into a catheter
for the rest of her life; for the ruthlessness of which he committed such
crime, for the lack of remorse, I sentence Mr. Thomas to 50 years
without benefit - - 50 years of hard labor without benefit of probation,
parole, or suspension of sentence. That time to be concurrent to the
second-degree murder, life imprisonment.

On August 9, 2021, a “Motion to Reconsider Sentence” was filed on

Defendant’s behalf which contended “the sentence imposed upon him is excessive.”

Defendant now appeals his convictions and sentences, contending that the

evidence produced by the State was insufficient to prove that he was not acting in

self-defense or, alternatively, that he should have been convicted of the lesser

offense of manslaughter against Mr. Napoleon and aggravated battery upon Ms.

Jones.

For the following reasons, we affirm Defendant’s convictions and sentences.

1

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors

patent on the face of the record. We have reviewed the record, and it reveals no

errors patent.

FACTS

Given that Defendant’s first assigned error claims insufficient evidence, we

start by summarizing the evidence presented to the jury.

The offenses for which Defendant was convicted occurred on or about 6:20

p.m. the night of January 7, 2020. The shootings originated between Defendant’s

Lake Charles residence and his converted backyard garage, where Defendant and

Ms. Jones had together operated a modest second-hand “store” before Ms. Jones

broke off their relationship shortly after Thanksgiving. Defendant and Ms. Jones

had previously known each for twenty-five years and cohabited for about thirteen

years and at this home for two years.

The evidence presented to the jury included firsthand testimony of the

shootings by the only two surviving eyewitnesses, Defendant and the surviving

victim, Ms. Jones.

In addition, testimonial and other evidence was received from law

enforcement personnel involved with the incident, both contemporaneously and

later, and from the parish coroner, whose expertise was stipulated by the parties.

The State’s documentation was extensive and included contemporaneously

recorded videos and audio archives and transcripts, including those taken of

Defendant a few hours after the shootings, after receiving Miranda warnings, and

including a recorded telephone conversation that same night between Defendant and

an acquaintance that he contacted to arrange for the pick up of his car and other
2

possessions. Both recordings contained admissions by Defendant with respect to his

intent to harm alleged victims, Timothy Napoleon and Crystal Jones. Other than

Defendant, who testified last, each of the witnesses were called by the prosecution.

These included members of the Lake Charles Police Department, Ms. Jones, and the

Calcasieu Parish Coroner.

Officers Baccigalopi and Clouse

The State’s first witness, Officer Dakota Baccigalopi, a patrol and part-time

SWAT officer with the Lake Charles Police Department, testified that on January 7,

2020, he was dispatched to the 2300 block of Tulip Street in response to a call

regarding a gunshot victim, later identified as Mr. Napoleon, laying in the road, and

possibly another victim, later identified as Ms. Jones.

After rendering aid to Mr. Napoleon, Officer Baccigalopi assisted another

officer, Officer Clouse, in apprehending Defendant. His account was corroborated

by a video recording taken by Officer Clouse’s body-camera. This video shows

Defendant being directed to walk backwards with arms raised toward the officers

until Officer Baccigalopi handcuffs him.

Officer Whalley

The State next called three-and-a-half-year veteran Patrol Officer Silus

Whalley. Officer Whalley testified that when he arrived at the scene, two officers

directed him to a man identified as Mr. Napoleon, to whom he rendered emergency

first aid until paramedics arrived and took over. His account was corroborated by

his body video camera showing Officer Whalley and a female officer rendering aid

to Mr. Napoleon for roughly eight minutes before the paramedics arrived, and

Officer Whalley could be heard to say he no longer felt Mr. Napoleon’s pulse

immediately before paramedics arrived and left with Mr. Napoleon.
3

Officer Whalley then moved to where Ms. Jones was located behind

Defendant’s house. As Officer Whalley approached, Ms. Jones could be heard to

say she could not feel anything, she could not squeeze Officer Whalley’s hand, and

she could not breathe. She further can be heard asking to die.

Officer Whalley and other officers helped the paramedics secure Ms. Jones to

a back-board, then into an ambulance to be transported to a hospital.

Officer Howell

The State next called Kristen Howell, an evidence officer with the Lake

Charles Police Department, tasked with processing and preserving evidence to be

introduced into the record, including twenty-three photographs she took at the crime

scene. These photos showed the layout of the crime scene near the house, including

the position of three spent .45 caliber casings between the house and the out-building

“store,” which were introduced into evidence.

Additionally photographs of Mr. Napoleon, taken at the hospital, were

introduced to illustrate the location of the entry wound in his chest and the exit

wound on his lower back.

Detective John Russell

The State’s next witness was Detective John Russell, a twenty-one-year

veteran of the Lake Charles Police Department who was also assigned to the

shooting the evening of its occurrence. At the scene, he was informed there were

two victims, one of which had already been confirmed dead.

When he first arrived, his colleagues informed Detective Russell that no

weapons were found on the victims and, after further investigating, he could find

“no evidence at all” to suggest that either Mr. Napoleon or Ms. Jones had committed

a crime prior to when they were shot by the Defendant.
4

Defendant’s Post Miranda Interview

The State next introduced a video recorded interview given by Defendant to

law enforcement shortly after the shooting, which was then published to the jury.

Defendant was read his Miranda rights, then signed the Miranda rights form, both

clause by clause and at its conclusion. Defendant then consented to speak with the

two interviewing law enforcement officers at 10:04 p.m, about three-and-a-half

hours after the first dispatch. This recorded and transcribed interview began with

Defendant providing, from memory and without delay, his address, phone number,

and Social Security number.

Defendant first stated that he believed Ms. Jones and Mr. Napoleon came to

his house to rob him. When asked why, he said because they were “dope fiends.”

Defendant then described how Ms. Jones had broken off their relations shortly

after Thanksgiving, how Mr. Napoleon had previously threatened him when Ms.

Jones brought Mr. Napoleon to Defendant’s home, and how after their breakup Ms.

Jones would still come to the house periodically to pick up her belongings or to wash

clothes.

Defendant said that at first he went out of his way to be nice to Mr. Napoleon,

who at first had been nice to him.

Turning to the events earlier that evening, according to Defendant, Ms. Jones

called looking to collect her $40 share from a washer and dryer he had sold and told

him they would come right over. Defendant also acknowledged that he had asked

to buy a gram of marijuana from Mr. Napoleon, who agreed to sell it to him. After

the two arrived, Ms. Jones showed the “store” to Mr. Napoleon.

From Defendant’s initial account, it would appear that originally nothing

seemed amiss on the day of the shooting. Defendant stated that Ms. Jones wanted
5

Mr. Napoleon to see what Defendant had in his “store” and that he knew Mr.

Napoleon was also coming. Defendant stated that when Ms. Jones and Mr.

Napoleon arrived, “they were cool,” and they came around to his back porch, where

he was to talk to them. When Ms. Jones asked if Mr. Napoleon could see the “store,”

Defendant recounted to his police interviewers that he had no objection, responding

“Yeah, I don’t care. Know what I’m saying? He can see that ‘store’ shit, that shit

don’t mean nothing to me.”

Shortly afterwards, however, events spiraled. According to Defendant, what

precipitated the shootings was a comment and alleged actions taken by Mr.

Napoleon when Mr. Napoleon told Defendant that he “wanted it all.” Defendant’s

account of it was that the larger Mr. Napoleon was “right here in my motherfxxxing

face, man,” when he said these words and ordered Defendant to “give it up,” at which

point Defendant “start[ed] shooting they motherfxxxing asses.”

Defendant’s account of events during the one-hour interview were not wholly

consistent.

At some points he said the ill will between himself and Mr. Napoleon caused

him to fear for his life, explaining his recent decision to purchase the gun “in the

hood.” At other times he sounded fearless, once saying with bravado “I wanted to

kill both of them.”

While acknowledging he had a gun and fired it more than once, the gun he

fired was not found the evening of the shooting. Defendant agreed to identify a gun

similar to the one he used from a chart, then casually asked, “The one I shot them

motherfxxxers with?”

This was not Defendant’s only admission the night of the shootings. At

another point, Defendant stated he shot the victims “as soon as they came out [his]
6

garage.” He described the incident as “Bam, bam, bam niggx. I’m fixin to eat y’all

asses up, motherfxcker! YEAH, hell yeah.” He then stated “I wanted to kill’em. I

wanted to kill’em, man.”

Defendant stated he believed he shot Ms. Jones first, then when Mr. Napoleon

took off running, and he shot at Mr. Napoleon twice. He then stated he did not really

want to shoot Ms. Jones, but that “bxtch should have never had that niggx over at

my motherfxxxing house in the first place.” When asked what Ms. Jones did after

being shot, Defendant stated she was crying out for help, to which he responded

“bxtch, shut up.”

At another point, Defendant said he was not sure that he hit Mr. Napoleon,

but he “was sure hoping to.”

While discussing the documents related to the permission to search his

phones, Defendant said he did not want to read it, claiming he was “ready for this

life sentence. You know, so I can go to sleep.”

Defendant vacillated over whether he moved his car or left it where it was

after the shootings, blaming it for the first time on consuming “maybe a pint of

vodka”. He then interjected that “I remember when I was shootin’ at them

motherfxxxers, I can tell you that.” He stated he then “stayed there and waited for

the police to come.”

Defendant stated Mr. Napoleon ran around the side of the house while

Defendant shot at him. Defendant stated he did not know how many rounds the gun

held, claiming that he had only had it for about three days prior to the shooting and

stating he bought the gun with bullets already in it.

When asked if he bought the gun for the sole purpose of shooting Mr.

Napoleon, Defendant nodded his head “yes” before again claiming it was for his
7

protection. He again stated, “I wanted to kill these motherfxxxers, man, you know

what I mean?” Defendant admitted he asked Ms. Jones and Mr. Napoleon to bring

him some weed, although he never saw any.

When asked for his reasoning in shooting Ms. Jones, Defendant could only

say that when Mr. Napoleon said he wanted it all, “Shxt niggx I’m fixin’ to kill you

motherfxxxers, man. I wanna kill you motherfxxxers, niggx.” While discussing

disrespect rather colorfully with law enforcement, Defendant stated he should have

killed Mr. Napoleon a long time ago. When law enforcement noted that Defendant

invited Mr. Napoleon over to “mow his ass down,” Defendant simply nodded his

head in agreement. After again saying Mr. Napoleon “wanted it all,” Defendant

stated he was “waiting to kill these motherfxxxers.”

Defendant acknowledged that he never saw Ms. Jones or Mr. Napoleon

produce any kind of weapon.

Later in the interview, Defendant’s tone shifted considerably after being told

Mr. Napoleon died in the shooting later in the interview.

Defendant’s Telephone Admissions

The State’s next witness was Lieutenant Roy Malone, a twenty-six-year

veteran of the Calcasieu Parish Sheriff’s Office as its “facility security officer,”

which placed him in charge of “the video of all the facilities” and “access to the jail

phone calls.”

Following his post Miranda interview the night of the shooting, Defendant

was permitted to make a call on January 8, 2020, in part to request someone to pick

up his possessions.

The recording of the jail call was played to the jury. At its beginning, the

recording clearly provides notice to the caller, Defendant in this case, that “All phone
8

calls are subject to monitoring and recording.” Nevertheless, Defendant

immediately told the woman on the other end of the line that he had been charged

with second degree murder and attempted second degree murder, that he had shot

both Ms. Jones and Mr. Napoleon, and in response to the other party’s apparent

surprise, Defendant made such remarks as “Yeah, I killed them motherfxxxers, on

my mama,” and “I got them motherfxxxers, man.” When asked whether Ms. Jones

was in the hospital Defendant replied, “Oh yeah, they said she fxcked up.” He also

stated he “wanted both of them motherfxxxers, man. I ain’t bullshxtting,” and that

he was alright now, noting he had a “permanent roof.”

When the woman asked Defendant if “they came to your house and tried to

rob you?” Defendant responded, “Hell yeah, that’s my story.” Defendant

subsequently stated that if he had to do it all over again, he “would do it all-over

motherfxxxing again.” He repeatedly stated that he did not “give a fxck” about the

trouble he was in.

Detective Willie Fontenot

The State also called Detective Willie Fontenot, an eleven-year veteran of the

Lake Charles Police Department with eight years as a detective, who also responded

the night of the shootings to assist with the investigation. He likewise found no

evidence that Mr. Napoleon was trying to rob Defendant, but rather that Defendant

had invited “his ex of thirteen years over” for her share of an appliance sale, and to

have “Mr. Napoleon bring some marijuana as well.”

Crystal Jones

The State next called Ms. Crystal Jones, who testified that she was born and

raised in Lake Charles and had known Defendant for twenty-five years before

moving to a nursing home as a result of her shooting related injuries.
9

Ms. Jones testified that by Thanksgiving 2019, their relationship had grown

“rocky,” leading her to break up with Defendant. Working as a cook at a restaurant

in Lake Charles, she befriended and started dating co-worker Mr. Napoleon right

after Thanksgiving. She testified that after she moved out, she periodically collected

her personal items from Defendant. She had a small car, so she could not carry a lot

at one time.

Ms. Jones testified that on the day of the shooting, Defendant had called her.

She chose not to answer, but then Mr. Napoleon suggested she call back to see what

Defendant wanted, and she did. Ms. Jones said Defendant had called to tell her she

could come collect money he had for her from the sale of a washing machine

previously purchased with her own money, plus her dog, since he was getting ready

to move out of state. According to Ms. Jones, Defendant then called again to ask if

Mr. Napoleon had any marijuana. She gave the phone to Mr. Napoleon, who after

speaking to Defendant, turned to Ms. Jones to say “I’m gonna go with you.” Until

then, Ms. Jones had intended to drop Mr. Napoleon off at his sister’s house and go

alone to pick up the money and dog.

According to Ms. Jones, Mr. Napoleon was driving and parked her car behind

Defendant’s Cadillac. Defendant was not outside, so she called to let him know she

and Mr. Napoleon had arrived. She testified that Defendant asked her to come

inside, which she found a little unusual because Defendant had never invited both of

them inside before. Ms. Jones testified that Mr. Napoleon was interested in buying

a go-kart for his son that Defendant had for sale, and Defendant said he would give

him a good deal when he was ready to buy it.

Defendant had been having trouble selling some women’s jewelry, Ms. Jones

testified, so Defendant invited her and Mr. Napoleon to come inside his “store” to
10

remove the jewelry. Once inside the two-room “store,” Defendant showed Mr.

Napoleon around briefly, then Ms. Jones and Mr. Napoleon gathered up three pieces

of jewelry to bring to her car, but once they got outside the garage, one of the pieces

of jewelry Mr. Napoleon was carrying “came aloose and fell to the ground.” Ms.

Jones testified that she and Mr. Napoleon then “both bent down to pick it up.” This

is when the shootings occurred. Here is the testimony she provided to the jury about

the shooting:

So, once Tim dropped the fixture, we both bent down to pick it
up -- cause it was earrings on it so we was picking up the earrings
and – because it fell. And, as we raised up, that's when he shot
Tim. He shot Tim in the chest and all I saw was smoke coming
out of his chest. And then Tim turned running.’ He got a ways, a
little bit, in the yard -- in a neighbor's backyard. He took off
some, and then I turned to take off after I looked at Mike, and
when I turned to take off, he shot me in the side.

And then he stood over me with that gun pointed at my face, but
then he saw Tim moving or something. Cause then he left -- he
got away from me and he went to Tim -- I assume that’s what he
did – I’m just making assumptions cause all I heard was another
pop, like another gunshot. So I just assumed that he went after
Tim again. And then he comes back toward me and he looks at
me with this weird look on his face, but he didn't point the gun
back at me. He decided to jump in the car.

So his Cadillac -- he had a little, bitty Ford truck parked by the
garage door, and then it was his Cadillac, and then it was my car.
So he decides to jump in the Cadillac and he was coming towards
me, but then the police showed up and told him -- for him to get
out the car. At first, he hesitated and I just -- I just thought he was
gonna speed up just run over me, but he didn’t. They -- and they
got him out of that car before he could do anything else.

Q..After they got him out of the car, what do you remember
thinking while you're laying on the ground?

A. That he’s gonna come back and kill me.

Q. Did you think you were gonna live?

A. No. No, not at all.

11

Ms. Jones said she believed the bullet fractured her vertebrae, and pierced her

liver. She was told she would never walk again. She was in a wheelchair when she

testified, and she identified Defendant in open court.

On cross examination, Ms. Jones testified that Defendant was upset “in the

beginning” after she told him she was moving out after thirteen years of living

together, and that she and Mr. Napoleon had been to Defendant’s house “[p]robably

more than five” times after she started dating Mr. Napoleon.

Ms. Jones testified she lived with Defendant on Tulip Street for about two

years, and that Defendant pretty much always kept a little “store.” Ms. Jones

testified that she never heard Mr. Napoleon say anything to Defendant about wanting

stuff in his “store” before being shot.

Dr. Welke, Coroner

The State’s final witness was the Calcasieu Parish Coroner, Dr. Terry Welke,

who Defendant stipulated to be an expert in forensic pathology. Dr. Welke

performed an autopsy early on the afternoon of January 8, 2020. Dr. Welke

concluded that Mr. Napoleon died of a gunshot wound which entered his chest and

exited above his left buttock.

The entrance wound was on the left frontal chest and it entered -
- it entered there and then exited above the left buttocks. So the
trajectory is from front portion of the body to the back portion of
the body, and then it’s called from left to right. So it’s left portion
of the body towards 'the right portion of the body. And then, also,
it's -- and the manner is downwards. It was a sharp, downward
trajectory, so that was consistent with – when someone says --
talks about trajectory, what you have to do is imagine if someone
were to take a` spear and run it through a body.

Dr. Welke’s detailed testimony described the condition and position of Mr.

Napoleon’s entrance and exit wounds, after which he concluded that the trajectory

of the bullet meant that Mr. Napoleon was shot at a downward angle, consistent with
12

a scenario in which Mr. Napoleon may have been bending down when he was shot

as follows:

Q. Let me ask you this: If I were holding something, say
jewelry, and I were to drop it and I'm picking it up as I’m shot,
would that be consistent with the injuries that You see in Mr.
Napoleon?

A. Yes, sir.

We concluded that Dr. Welke’s testimony was supported by the photographic

evidence presented to the jury and by Ms. Jones’ sworn testimony.

Defendant’s Trial Testimony

After the State rested its case, Defendant then took the stand in his own behalf.

Defendant testified that he was born in Kansas City, Kansas; moved to Oklahoma

City as a young child; and dropped out of school in the twelfth grade while living in

Altus, Oklahoma. According to Defendant, he met Ms. Jones while he was serving

a ten-year sentence in Colorado for either kidnapping or assault. Defendant

described the circumstances of the charges as resulting from an argument between

himself and his girlfriend when she got out of a car at a redlight and him driving off

with her child in the car. Defendant claims he drove to his brother’s apartment

complex, got out the car and took off running not knowing the child was in the car.

According to Defendant, he spent ten years incarcerated for the kidnapping, during

which time he married this girlfriend while he was in prison, and they divorced after

he was released from prison. Defendant said he was also charged with kidnapping

in Oklahoma and eventually pled guilty to a lesser assault charge, for which he

served two or three months. On the stand, Defendant also acknowledged being

arrested for an incident with Ms. Jones in Texas in which he claimed to have thrown

13

a basketball that hit a shelf, causing a hammer to fall and hit her in the head while

they were arguing.

Defendant claimed he was depressed when Ms. Jones left him. According to

Defendant, Ms. Jones told him after Thanksgiving that she was leaving to find a new

place after she had gone out of town with Mr. Napoleon and that she told him,

“Thanksgiving was the first time that they had ever messed around and stuff.” He

testified he thought she was joking when she said she was leaving, but she left and

was gone for about a week before coming back with Mr. Napoleon and one of his

relatives to get some of her things. Defendant testified things were fine until he

refused to give Ms. Jones the title to her car until she transferred the utility bills from

her name to his since she had moved out. He stated at that point, Mr. Napoleon

started cursing him and demanding the title to the car.

Defendant testified Mr. Napoleon threatened to “‘F’ [him] up” and that he

would “come drag [Defendant’s] ass from up there right now.” Ms. Jones told

everyone to calm down and they left. Defendant testified Ms. Jones came by his

house five or six more times and that he told her not to bring Mr. Napoleon. He

stated Mr. Napoleon came to his house three more times without ever getting out of

the car.

Defendant then claimed that on one occasion, when the couple came to get a

pair of air conditioners that belonged to Ms. Jones, Mr. Napoleon’s son played on a

go-kart at the “store,” and Ms. Jones played with her dog. Then Defendant told Mr.

Napoleon that Defendant was “good people” and Mr. Napoleon surprised him by

telling him he knew everything about Defendant.

According to Defendant, on one occasion when he told Ms. Jones she needed

to get her stuff so nothing would happen to it, Mr. Napoleon snapped, yelling and
14

threatening to “light you up and everything back here.” Defendant believed it was

to intimidate him, and said he already felt intimidated by Mr. Napoleon’s tattoo and

greater physical size. Defendant stated he was not sure how much prison time Mr.

Napoleon had done, but that Mr. Napoleon claimed he had spent twenty-eight years

in prison.

According to Defendant, Ms. Jones initiated contact with him on the day of

the shooting. He denied telling her to bring Mr. Napoleon, but admitted that he was

going to give her forty dollars for the washer and ten dollars for marijuana, claiming

“she had real good weed.”

Defendant, when asked about his state of mind when Ms. Jones was coming

to his house, said he “was cool.” According to Defendant, he had been drinking and

“might’ve drunk about a pint [of vodka] that day.” He testified he was scared to live

in his house because of Mr. Napoleon, so he went looking for a gun and “somebody

sold [him] one.”

Defendant testified that his gun was in the house, but he put it in his pocket

when he heard “a man’s voice” outside that day. According to Defendant, when he

came outside, Mr. Napoleon was already looking through his “store,” which he

claimed was locked.

According to Defendant, when he came outside, he also stated Ms. Jones

could take whatever she wanted “cause it was going to the trash anyway, all

[Defendant] couldn’t take with [him].” Defendant claimed he was trying to move to

either Texas or Oklahoma with his sisters. Defendant testified:

Q. Where was the gun when they showed up?

A. When they showed up, it was in the house. But she was
supposed to be showed up by herself. I didn’t -- I didn’t get that
gun til I heard a man’s voice out there.
15

Q. And what'd you do with it?

A. I put it in my pocket.

Q. Where were you when they showed up?

A. I had just went -- she came back to the backdoor by herself. I
only seen her at first, and then I went in the house cause I wanted
to get her her mail, and then I was taking a -- I was taking a leak
and then I went to go back out to give it to her. And when I heard
a man's voice, you know what I’m saying, I came out there and I
had my gun in my pocket. And then I heard -- I could hear him
say, damn, he got it going on like this out there? And then she
say, can he see the inside of your store? I said, yeah, right, he
already in there, ain’t he? And then they was looking –

Q. Okay, let’s back up a little bit. When you came out of the
house, where was Tim Napoleon?

A. He was in my store.

Q. So it was not locked?

A. No, it wasn’t locked at all.

Q. And he was inside?

A. Yeah, cause she had asked me, could she go get some jewelry
or a handbag or something that she wanted out of the store, so
yeah, you can go -- you can go get whatever -- whatever she
wanted out there, she could have it cause it was going to the trash
anyway, all I couldn't take with me. I didn't want none of the stuff
no more, so I was -- she could have whatever.

When asked what happened next, Defendant claimed:

He -- I guess waiting on me to respond. He said give it up,
little niggx. He said -- then he said you ain’t gonna make
it back to that back door -- cause I’m sitting up right there
by my backdoor -- by my backdoor, sitting up on my stool
and stuff. I wanted to run, you know what I’m saying, but
I had that gun in my -- in my pocket. I didn’t want to
accidentally trip and -- and fall and hurt myself and shoot
myself. But when I was fixin’ to run, that’s when he
started coming toward me. And that’s when I pulled out
the pistol and I started shooting.

16

Defendant claimed Mr. Napoleon tried to change directions and run away

once he saw the gun. He testified the porch was about seventeen inches off the

ground. Defendant then claimed Mr. Napoleon might have already been shot when

he turned and ran. Defendant then claimed he “had to have stepped off that porch”

before firing any other shots. When asked at trial if he tried to shoot Ms. Jones,

Defendant claimed he “really didn’t try to shoot Crystal.” When asked about his

radically different statement in his interview, Defendant claimed he “was delusional,

delirious,” “[i]n a state of shock.” Defendant again claimed he “was just high,

drunk” and did not remember what he told law enforcement.

Defendant acknowledged telling Ms. Jones, “Bxtch, shut up” after shooting

her. Defendant claimed he was mad because if she had not brought Mr. Napoleon

to his house, Defendant “would’ve never been in this trouble.” He then reiterated

that he did not want to shoot Ms. Jones because if he did, he would have killed her.

After testifying that he was only about three inches from his backdoor,

Defendant claimed he was not sure if the door was locked or unlocked because he

could not “get it to go inside.” Defendant claimed that he was scared because Mr.

Napoleon should not have been at his house, testifying that he “never invited them

people to [his] house. Never.” He then acknowledged that he invited Ms. Jones

over multiple times.

On cross-examination, the State noted Defendant had failed to mention two

convictions in 2006, one for violation a protective order and one for trespassing, and

Defendant acknowledged his altercation with Ms. Jones in 2010 resulted in a

conviction for assault that causes bodily injury against a family member. Defendant

acknowledged that he told detectives Ms. Jones had told him “we’re on our way,”

but claimed he had no idea why she said “we” in the interview but claimed only she
17

was coming to his house at trial. According to Defendant, Mr. Napoleon was already

in Defendant’s “store” when he came outside, contrary to telling detectives that Ms.

Jones asked him first and he said he did not care if Mr. Napoleon went in the “store.”

Defendant stated he never mentioned being on his porch when he shot Mr.

Napoleon because he “didn’t know it made a difference where [he] was standing at

or whatever” until Dr. Welke testified Mr. Napoleon was shot at a downward angle.

Defendant continued to claim he had no idea Mr. Napoleon was coming to his house,

and answering the State’s question of who was selling “weed” with “both of them,

maybe.” Defendant repeatedly claimed that he loved Ms. Jones and that it hurt him

to see her in a wheelchair. He then acknowledged telling his sister that “Crystal got

fat” after seeing her testify. Defense counsel called no further witnesses.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, Defendant contends there is insufficient

evidence to support his conviction because the State failed to disprove his claim that

he was acting in self-defense.

The State contends that the evidence in the record shows that “[t]he only

evidence of self defense put before the jury came from the self-serving testimony of

the Defendant, which was refuted by the physical evidence, the testimony of the

victim, and the Defendant’s own prior statements which were played for the jury.”

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
18

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 noted by this court in State v. F.B.A., 07-1526, p. 2 (La.App. 3 Cir.

5/28/08), 983 So.2d 1006, 1009, writ denied, 08-1464 (La. 3/27/09), 5 So.3d 138:

Furthermore, the testimony of a single witness is sufficient to
support a conviction “[i]n the absence of internal contradiction or
irreconcilable conflicts with physical evidence.” State v. Dixon, 04–
1019, p. 12 (La.App. 5 Cir. 3/15/05), 900 So.2d 929, 936. The trier of
fact may accept or reject the testimony of any witness, and the
determination of the credibility of that witness, in whole or in part, is
left to its sound discretion and “will not be re-weighed on appeal.” Id. at
936.

The supreme court has recently reiterated that:

A homicide is justifiable when it is “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). When
justification is raised by the accused, the State must prove beyond a
reasonable doubt that the crime was not committed in self-defense.

State v. Burton, 19-1079, p. 4 (La. 6/30/21), 320 So.3d 1117, 1120.

On appeal, Defendant does not allege the State failed to prove any element of

second-degree murder, only that it failed to disprove his claims of self-defense.

A review of the record shows that these convictions clearly rested entirely on

credibility determinations made by the jury after observing firsthand the demeanor

of the witnesses and the evidence presented to them.

19

Second Degree Murder Conviction

Defendant contends, “The facts show he acted in self-defense, which the State

failed to carry its burden to disprove.” This court disagrees.

This case ultimately presents a credibility call between which witness’s

testimony the jury chose to believe, Ms. Jones or Defendant. Defendant argues, as

he argued at trial, that he killed Mr. Napoleon when he attacked Defendant after

telling Defendant he wanted all of Defendant’s possessions. On the other hand, Ms.

Jones testified Defendant invited her and Mr. Napoleon over to his house to give her

money and buy some marijuana, invited her to take the women’s jewelry he had in

his store, and then shot Mr. Napoleon while he was bending down to pick up some

of the jewelry he had dropped. Dr. Welke testified Mr. Napoleon, who Defendant

repeatedly stated intimidated him because of his size, was killed by a bullet travelling

at a downward trajectory, which supported Ms. Jones’s testimony that Mr. Napoleon

was bending down when Defendant shot him. Defendant’s only explanation was his

attempted clarification at trial of his prior inconsistent statement, claiming for the

first time that he was standing on his porch when he shot Mr. Napoleon, who was

on the ground.

Additionally, Defendant’s claim that he was on the porch may explain the

downward trajectory of the bullet which hit Mr. Napoleon; however, it fails to

explain why Ms. Jones, who was shorter than Mr. Napoleon, was not shot at a

downward angle. Defendant’s contention that Ms. Jones was only hit because she

was near Mr. Napoleon, which this court will explore in detail shortly, would have

required the shot that hit Ms. Jones to have been fired in rapid succession, given that

Defendant testified Mr. Napoleon was trying to run away either immediately before

or after he was shot. In addition, Defendant’s claim that he was on his porch was
20

raised for the first time at trial, and it fails to address the fact that there was a pile of

jewelry on the ground just to the side of Defendant’s store, as can be seen in State’s

Exhibit 3. This is particularly noteworthy given that Defendant, in both his initial

interview and his trial testimony, also claimed Mr. Napoleon was not carrying any

jewelry.

Given the above, this court cannot say the State failed to disprove Defendant’s

claim of self-defense. The only evidence to support Defendant’s claim was his own

testimony. Ms. Jones’s testimony contradicted nearly every important point of

Defendant’s claims. Viewing the evidence in the light most favorable to the

prosecution, this court finds that any reasonable juror could have believed Ms.

Jones’s testimony over that of the Defendant and found that the Defendant started

shooting at Mr. Napoleon while he was bending down to pick up some of the jewelry.

As such, the Defendant’s claim of insufficient evidence lacks merit with respect to

his claim of self-defense.

For the foregoing reasons, we hold that there was sufficient evidence for the

jury to have concluded that Defendant is guilty of second degree murder of Timothy

W. Napoleon, and we find this assignment of error to be without merit.

Attempted Second Degree Murder Conviction

“To sustain a conviction for attempted second degree murder, the state must

prove that the defendant: (1) intended to kill the victim; and (2) committed an overt

act tending toward the accomplishment of the victim’s death.” State v. Bishop, 01-

2548, p. 4 (La. 1/14/03), 835 So.2d 434, 437.

Defendant stated on numerous occasions during his interview that he wanted

to kill both Mr. Napoleon and Ms. Jones, including a claim that he shot them “as

soon as they came out [of his] garage.” In addition, in his subsequent telephone
21

conversation, he stated he “wanted both of them motherfxxxers, man.” Finally, Mr.

Napoleon was shot at a downward angle, but Ms. Jones was not shot at a downward

angle.

Furthermore, although both Ms. Jones and Defendant testified at trial that

Defendant shot Mr. Napoleon first, during his interview with law enforcement

shortly after the shooting, Defendant repeatedly claimed that he shot Ms. Jones first,

then Mr. Napoleon. In addition to the numerous times Defendant told law

enforcement that he wanted to kill both Mr. Napoleon and Ms. Jones, in his

subsequent discussion with his sister he again stated he “wanted both of them

motherfxxxers, man.”

We find that any reasonable juror could have found the State proved beyond

a reasonable doubt that Defendant had the specific intent to kill Ms. Jones and that

he shot at both her and Mr. Napoleon intentionally.

Additionally, Defendant’s argument that Ms. Jones was shot accidentally fails

because of the doctrine of transferred intent. The second circuit has previously

noted:

Under the doctrine of transferred intent, when a person shoots at
an intended victim with the specific intent to kill or inflict great bodily
harm and accidentally kills or inflicts great bodily harm upon another
person, if the killing or infliction of great bodily harm would have
been unlawful against the intended victim, then it would be unlawful
against the person actually shot even though that person was not the
intended victim.

State v. Brooks, 42,226, pp. 6-7 (La.App 2 Cir. 8/15/07), 962 So.2d 1220, 1223-24.

This court has previously confirmed the validity of the doctrine of transferred

intent:

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
22

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.

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.

Furthermore, in State v. Glover, 47,311 (La.App. 2 Cir. 10/10/12), 106 So.3d

129, writ denied, 12-2667 (La. 5/24/13), 116 So.3d 659, the court applied the

doctrine of transferred intent to uphold a conviction for attempted manslaughter

when it held the jury could have found the defendant injured innocent bystanders

while shooting another individual with whom he had previously quarreled.

In the instant case, Defendant acknowledged his intent to kill Mr. Napoleon,

although he later claimed self-defense. Finally, as noted 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.”

Having already found that there was sufficient evidence to find that the State

disproved Defendant’s claim of self-defense, the doctrine of transferred intent means

that even if the jury believed Defendant had shot Ms. Jones purely by accident, his

intent to kill Mr. Napoleon and the act of firing three shots at him would be sufficient

to support Defendant’s conviction for attempted second degree murder of Ms. Jones.

In view of the foregoing, we find that any reasonable juror could have found

the State proved beyond a reasonable doubt that Defendant had the specific intent to

23

kill Ms. Jones, and that he shot at both her and Mr. Napoleon intentionally and not

in self-defense.

For the foregoing reasons, we hold that there was sufficient evidence for the

jury to have concluded that Defendant is guilty of attempted of second degree murder

of Crystal C. Jones, and we find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 2:

In his second and final assignment of error, Defendant contends that if this

court finds the shooting was not justified, then he should be convicted of the lesser

included offenses of manslaughter with regard to Mr. Napoleon and aggravated

battery regarding Ms. Jones. Defendant contends the “situation and perceived

threat” should have resulted in a finding that his killing of Mr. Napoleon was done

in “sudden passion” and “heat of blood,” necessitating a manslaughter conviction

rather than second degree murder. He combines that claim with his prior claim that

there was no intent to kill Ms. Jones to argue that his conviction for attempted second

degree murder should have instead been a conviction for aggravated battery.

The jury was necessarily instructed as to the law regarding manslaughter as it

was a responsive verdict. Defendant’s argument is essentially that all of the factors

he argued should have shown justification for the killings should at least lower the

verdict to lesser included offenses. However, this court disagrees.

As previously noted, the only evidence presented to support Defendant’s

version of events, namely that he was caught unaware that Mr. Napoleon was even

coming to his house and that Mr. Napoleon subsequently was attempting to rob

Defendant, is Defendant’s own testimony. Again, Ms. Jones’s testimony was that

Defendant actually spoke to Mr. Napoleon about bringing some weed to his house,

that he invited her to take a bunch of the women’s jewelry he had, and that he shot
24

both of them while Mr. Napoleon was bent over trying to pick up jewelry he had

dropped. Her testimony was also corroborated by the pile of jewelry still laying in

the grass near where she was shot.

The jury clearly determined it believed Ms. Jones’s version of events, not

Defendant’s, when it returned verdicts of guilty as charged on both counts. As

previously noted, it is not this court’s place to reweigh the credibility of witnesses.

Accordingly, we find that a rational trier of fact could find that Defendant did not

act under sudden provocation. As such, we find that this assigned error to be without

merit.

DECREE

For the foregoing reasons, we affirm, in all respects, Defendant’s convictions

and sentences.

AFFIRMED.

25