State of Louisiana v. Kayla Jean Giles Coutee

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-665

STATE OF LOUISIANA

VERSUS

KAYLA JEAN GILES COUTEE

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 345-209
HONORABLE GREG BEARD, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Sharon Darville
Wilson, Judges.

CONVICTIONS AND SENTENCES AFFIRMED.

Jane Hogan
Attorney at Law
310 North Cherry Street
Hammond, LA 70403
(985) 542-7730
COUNSEL FOR DEFENDANT/APPELLANT:
Kayla Jean Giles Coutee

Honorable Jeff Landry
Louisiana Attorney General
J. Taylor Gray
M. Joseph LeBeau
Brooke Harris
Assistant Attorneys General
PO Box 94005
Baton Rouge, La 70804
(225) 326-6200
COUNSEL FOR APPELLEE:
State of Louisiana

GREMILLION, Judge.

Defendant, Kayla Jean Giles Coutee, appeals her conviction for second

degree murder and obstruction of justice, violations of La.R.S. 14:30.1 and La.R.S.

14:130.1, respectively, and her sentences of life at hard labor without benefit of

probation, parole, or suspension of sentence and thirty years at hard labor, which

were ordered to be served consecutively. For the reasons that follow, we affirm

Defendant’s convictions and sentences.

FACTS AND PROCEDURAL POSTURE1

Defendant and Thomas Coutee were married in 2014. They had one child.

Their marriage, however, would not be characterized as harmonious. In 2018,

Defendant and Thomas separated.

This separation was not amicable, to say the least. Thomas reported

Defendant to law enforcement authorities that Defendant slapped him during a

custody exchange. Defendant complained to her friend, Jennifer Dennis, that

Thomas slammed a car door on her leg during an exchange. In retaliation,

Defendant slapped Thomas. At an August 2018 custody hearing, Defendant

indicated that Thomas had jumped at her during an earlier incident.

Mrs. Dennis related that in early 2018, Defendant told her she wanted to kill

Thomas and asked if she could borrow a gun. Mrs. Dennis refused to loan

Defendant one of her guns. Later, Defendant sent Mrs. Dennis a picture of a black

handgun she had purchased. Defendant also asked Mrs. Dennis if she knew

anything about self-defense insurance. In August 2018, Defendant sent a message

indicating that she had deleted all her social media accounts and that she might

“make the news.”

1
Our recitation of the facts is derived from the testimony adduced and evidence
presented during Defendant’s trial.

Later the same month, the Ninth Judicial District Court issued mutual

protective orders that, among other things, prohibited them from possessing

firearms pursuant to 18 USC § 922(g)(8). Also in August, Defendant began

researching Louisiana self-defense law and concealed carry insurance over the

internet, both on her computer and on her mobile phone. And on August 27,

2018—contrary to the court’s protective order—Defendant purchased a Ruger LCP

handgun chambered in .380 ACP from an Academy Sports and Outdoors location

in Dallas, Texas. The Bureau of Alcohol, Tobacco, Firearms, and Explosives

Form 4473 obtained by Academy, which is required for all commercial firearms

transfers or purchases, indicates that Defendant was not subject to a criminal

background check because she held a valid Texas concealed carry permit.

Defendant also purchased concealed carry insurance from the U.S. Concealed

Carry Association on the same day.

During a custody hearing in August 2018, Defendant accused Thomas of

bringing a gun to a custody exchange. During Defendant’s trial, Jessica Giles

Austin, Defendant’s sister, confirmed this accusation.

In the meantime, Thomas filed a pleading seeking a new trial on the district

court’s custody order, along with a demand for reimbursement of money and an

order for contempt. This pleading was served on Defendant on September 7, 2018.

On September 8, 2018, Defendant and Thomas met in a Wal-Mart parking

lot in Alexandria, Louisiana, to exchange physical custody of their child.

Defendant’s children from a previous relationship were going to accompany

Thomas on this occasion, as they were going to Chuck E. Cheese’s to celebrate the

child’s birthday. After the children were in his truck, Thomas approached

Defendant’s vehicle and opened her driver’s-side door. Defendant shot Thomas in

the chest, killing him. While Defendant described Thomas jumping toward her car
2

and jerking the door open, Defendant’s daughter, A.S., stated that Thomas walked

toward the car, which contradicted a recorded statement she had given the police

earlier.

Surveillance video obtained from a nearby Sonic restaurant depicted the

incident, although the video was taken from afar, and the picture is not of the

highest clarity. Defendant was seen closing the rear driver’s side door and

proceeding to the driver’s door. Thomas can be seen walking toward the driver’s

door. He opened the door. Thomas stepped in a way that he was obscured from

the camera by the door. He then stumbled back and fell to the ground.

Defendant remained on the scene after the shooting, called 911, and

identified herself to responding officers as the shooter. She was promptly arrested

and gave a recorded statement to the police in which she claimed that she shot the

victim because she was scared of him.

Approximately two weeks before the incident, Defendant had entrusted her

laptop computer to her sister, which Defendant delivered in a flowered bag.

Defendant made calls from the jail. Among them was a call to Mrs. Austin, during

which Mrs. Austin asked Defendant if someone could take “the flowered thing”

from her. Defendant told Mrs. Austin that no one was searching for it and that “it

doesn’t exist.” Mrs. Austin told Defendant she was worried about herself, and

Defendant told her, “Give it to Jennifer. Give it to Jennifer.”

Mrs. Austin gave the laptop to Mrs. Dennis, who lived in Ouachita Parish.

Neither Mrs. Austin nor Mrs. Dennis were asked to damage the computer or delete

files from it. The police became aware of the existence of the laptop during their

investigation. Detective Curtis Gunter of the Rapides Parish Sheriff’s Office

obtained the laptop, from which he retrieved a self-defense insurance contract

dated September 1, 2018; research on self-defense law dated September 4, 2018; a
3

“Notice of Intent to Relocate with Child,” created on September 4, 2018; and a

message in August 2018, from Defendant stating that she might make the news and

might need a fundraiser for bail money. This message also stated that Defendant

had deleted all of her social media accounts.

Mrs. Austin testified that Thomas had been violent in the past and that

Defendant was fearful in the weeks leading up to the shooting. She had, however,

never witnessed these incidents, though Defendant told her about them. For

comparison, it was noted that Thomas was 6’1” tall and weighed 215 pounds and

had fought in about a half-dozen mixed martial arts matches. By contrast,

Defendant was 5’2” tall and weighed 114 pounds.

The matter proceeded to trial by jury, after which Defendant was found

guilty of second degree murder and obstruction of justice. The trial court

sentenced Defendant to life imprisonment without benefit of probation, parole, or

suspension of sentence for second degree murder and thirty years at hard labor for

obstruction of justice. The trial court ordered that the sentences be served

consecutively.

ASSIGNMENTS OF ERROR

Defendant asserts the following as errors of the trial court warranting

reversal:

1) The trial court erroneously denied Kayla Giles’ motion to strike
potential jurors Wilfred Loewer and Brandon Headrick for cause.

2) Kayla Giles received ineffective assistance of counsel due to her trial
counsel’s refusal to move for a change of venue and failure to consult
an expert in intimate partner violence.

3) The trial court erred by failing to grant a hearing on Kayla Giles’
motion for new trial.

4) The evidence is insufficient to convict Kayla Giles of second-degree
murder or obstruction of justice.

4

5) The trial court improperly included the aggressor doctrine in the jury
instructions.

6) Defendant’s thirty-year sentence for obstruction of justice is
constitutionally excessive.

DISCUSSION AND ANALYSIS

Assignment of error 4:

When a defendant challenges the sufficiency of the evidence to support her

conviction, that issue must be resolved first. State v. Hearold, 603 So.2d 731

(La.1992). In reviewing the sufficiency of the evidence, this court must determine

“whether, 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.” State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir.

5/7/97), 695 So.2d 1367, 1371. We are not allowed to usurp the trier of fact’s

credibility assessments. Id.

Defendant was convicted of second degree murder, a violation of La.R.S.

14: 30.1. The elements of second degree murder are 1) the killing of a human

being and 2) when the offender has specific intent to kill or inflict great bodily

harm. Defendant does not deny killing Thomas; rather, she has maintained from

the beginning that his killing was justified pursuant to La.R.S. 14:20(A)(4)(a):

A. A homicide is justifiable:

....

(4)(a) When committed by a person lawfully inside a dwelling,
a place of business, or a motor vehicle as defined in R.S. 32:1(40)
when the conflict began, against a person who is attempting to make
an unlawful entry into the dwelling, place of business, or motor
vehicle, or who has made an unlawful entry into the dwelling, place of
business, or motor vehicle, and the person committing the homicide
reasonably believes that the use of deadly force is necessary to
prevent the entry or to compel the intruder to leave the dwelling, place
of business, or motor vehicle.

5

Subsection (B) creates a presumption that:

a person lawfully inside a dwelling, place of business, or motor
vehicle held a reasonable belief that the use of deadly force was
necessary to prevent unlawful entry thereto, or to compel an unlawful
intruder to leave the dwelling, place of business, or motor vehicle
when the conflict began, if both of the following occur:
(1) The person against whom deadly force was used was in the
process of unlawfully and forcibly entering or had unlawfully and
forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used deadly force knew or had reason to
believe that an unlawful and forcible entry was occurring or had
occurred.

However, the presumption created by subsection (B) is rebuttable. State v. Ingram,

45,546 (La.App. 2 Cir. 6/22/11), 71 So.3d 437, writ denied, 11-1630 (La. 1/11/12),

77 So.3d 947; State v. Gasser, 18-531 (La.App. 5 Cir. 7/3/19), 275 So.3d 976, writ

granted on other grounds, 19-1220 (La. 6/3/20), 296 So.3d 1022. The State is

entitled to present evidence that the killing was not reasonable. Id. Indeed, when a

defendant asserts that she acted in self-defense, 2 the State bears the burden of

proving beyond a reasonable doubt that the killing was not justified. State v.

Miller, 98-642 (La.App. 3 Cir. 10/28/98), 720 So.2d 829, writ denied, 98-3119 (La.

5/14/99), 741 So.2d 659.

Reasonableness of the force employed by one claiming self-defense is

determined in part by whether the force is proportional to the threat. State in the

Interest of R.R.B., 22-397 (La.App. 3 Cir. 10/26/22), 353 So.3d 883, writ denied,

22-1725 (La. 3/28/23), 358 So.3d 496. Whether the person committing the

homicide reasonably believes that the use of deadly force is necessary to prevent

the entry or to compel the intruder to leave the dwelling, place of business, or

2
As a practical matter, the issue presented is broader than “self-defense.” Defendant
claims Thomas’s death was justified pursuant to La.R.S. 14:20(A)(4)(a) to prevent him from
unlawfully entering her vehicle. For brevity’s sake, however, we will refer to this justification as
“self-defense.”
6

motor vehicle requires the consideration of a number of factors, including relative

size of the intruder in comparison to the person; the relative combative skills of the

intruder and person; the relative physical strength of the two, whether the intruder

is armed, and many more. See State in the Interest of D.S., 29,554 (La.App. 2 Cir.

5/7/97), 694 So.2d 565. Whether the victim of the homicide was armed is not

dispositive of a defendant’s claim that she acted in self-defense, but that fact is a

relevant consideration for the trier of fact. State v. Griffin, 06-543 (La.App. 3 Cir.

9/27/06), 940 So.2d 845, writ denied, 07-2 (La. 9/14/07), 963 So.2d 995. Because

La.R.S. 14:20 requires that the use of force be reasonable, every case must be

assessed on its own facts; a blanket pronouncement regarding reasonableness must

be limited to the facts of the case in which it was decided.3

An aggressor may not claim self-defense. La.R.S. 14:21. This will be more

fully addressed when we turn to Defendant’s fifth assignment of error.

The first element of the charge of second degree murder was not contested

by Defendant; she freely admitted that she killed Thomas. Defendant does not

contest the intent element, either. Rather, she maintains that her actions were

justified.

The jury heard evidence that in the weeks leading up to the incident,

Defendant told Mrs. Dennis that she wanted to kill Thomas and asked if she could

borrow a gun. The jury heard that shortly before the incident, Defendant

3
For example, in State v. Mincey, 08-1315, p. 5 (La.App. 3 Cir. 6/3/09), 14 So.3d 613,
616, this court stated, “responding to an oncoming punch by shooting the other person in the
chest is an excessive response.” This statement must be taken in the context of two men engaged
in a somewhat voluntary altercation outside a bar. The jury convicted the defendant of
manslaughter, who argued on appeal that the evidence was insufficient. This court concluded
that given the evidence, viewed in the light most favorable to the prosecution, any rational trier
of fact could conclude that the use of force was not reasonable. In the context of other situations,
this court might conclude that responding to a punch is reasonable under circumstance, for
instance, in which the victim of the shooting is more physically robust, possesses greater
combative skills, has a reputation for violence, has perpetrated violence on the defender in the
past, or any number of other relevant factors. Furthermore, cases such as Mincey did not involve
the justification found in La.R.S. 14:20(A)(3) at issue in the present matter, and the facts
establishing justification are differentiated in the statute.
7

purchased a handgun out-of-state; conducted research into the legality of self-

defense in Louisiana; and purchased a policy of self-defense insurance. The jury

heard that Defendant messaged a friend and said that she might make the news and

might need a crowd-sourced bail fund. It also heard the testimony of Defendant’s

daughter that Thomas walked to the car and opened the door, rather than lunging or

jumping toward it.

More importantly, the jury saw the surveillance video from the Sonic

restaurant that showed Thomas approach the car and open the door. The video did

not show Thomas lunge or jump at the car or open the car door violently.

Defendant got into the car and closed the door. Thomas opened the door and

within seconds fell backward to the ground.

Viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found beyond a reasonable doubt that Defendant

did not act in self-defense. Any reasonable juror could have concluded that

Thomas’s entry into the vehicle was not forcible pursuant to the presumption

established by La.R.S. 14:20(B). The jury was also entitled to reach the conclusion

that Thomas was not making an entry into the vehicle such that the use of force

resulting in his homicide was justified. This assignment of error lacks merit.

Assignment of error 1:

Defendant argues that potential jurors Wilfred Loewer and Brandon

Headrick should have been stricken for cause. Pursuant to La.Code Crim.P. art.

797:

The state or the defendant may challenge a juror for cause on
the ground that:

(1) The juror lacks a qualification required by law;

(2) The juror is not impartial, whatever the cause of his
partiality. An opinion or impression as to the guilt or innocence of the
8

defendant shall not of itself be sufficient ground of challenge to a
juror, if he declares, and the court is satisfied, that he can render an
impartial verdict according to the law and the evidence;

(3) The relationship, whether by blood, marriage, employment,
friendship, or enmity between the juror and the defendant, the person
injured by the offense, the district attorney, or defense counsel, is such
that it is reasonable to conclude that it would influence the juror in
arriving at a verdict;

(4) The juror will not accept the law as given to him by the
court; or

(5) The juror served on the grand jury that found the
indictment, or on a petit jury that once tried the defendant for the same
or any other offense.

A trial court’s rulings on challenges for cause are reviewed for abuse of its

broad discretion. State v. Holliday, 17-1921 (La. 1/29/20), 340 So.3d 648, cert.

denied, __ U.S. __, 141 S.Ct. 1271 (2021). However, an erroneous ruling that

deprives a defendant of her peremptory challenge represents a violation of her

substantive rights and is reversible error. Id. “’[A] challenge for cause should be

granted, even when a prospective juror declares his ability to remain impartial, if

the juror’s responses as a whole reveal facts from which bias, prejudice or inability

to render judgment according to law may be reasonably implied.’” State v. Hallal,

557 So.2d 1388, 1389-90 (La.1990)(emphasis added)(quoting State v. Jones, 474

So.2d 919, 926 (La.1985)). A defendant’s case is presumed to have been

prejudiced when a challenge for cause was denied and the defendant exhausted her

peremptory challenges. State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278.

Defendant exhausted her peremptory challenges during jury selection.

Mr. Loewer testified that his wife had been a victim of crime. His place of

business is across the street from the Walmart parking lot. Thomas had been a

customer of his employer, Loewer Power Sports, and Mr. Loewer knew him,

though not socially. Also, Mr. Loewer was a friend of a witness, Mike Bozeman.

9

Mr. Loewer saw the extensive pretrial publicity in local media and saw posts on

social media about the incident. He had developed an opinion on Defendant’s guilt

but stated that he could put aside his opinions and information he had seen or read

and reach a fair verdict.

Defendant challenged Mr. Loewer for cause. The following colloquy

occurred between counsel and the district court:

MR. WILLSON: Judge, it - this is basically totality of the
circumstances. Mr. Loewer was a friend of the victim. He apparently
was somewhat of a witness to the incident. As the Court’s aware,
that’s a facility next to Walmart, and he works inside. I - no reason for
him to be out there, other than to observe what was going on. He - and
his relationship with one of the witnesses is Mr. Bozeman, as well as
his relationship with the victim. I, I - you know, I - as I asked him,
I’ve been in there a number of times, and he don’t [sic] know me. He
knows, he knows Mr. Coutee, and he, and, and he knows Mr.
Bozeman for, I think he said, fifteen to twenty years. We just think it -
his relationship to the facts in this case is a little too close for him to
be fair.

THE COURT: Ms. Harris, your response?

MS. HARRIS: Your Honor, Mr. Loewer was questioned
extensively on how he knew the victim, the extent of their
relationship, the extent of their communication, and he was adamant
that it was really just a professional relationship. He didn’t even have
the man’s phone number, wasn’t friends with him on social media. I
don’t think that that’s a sufficient reason to strike him. Also, with
Mike Bozeman, I don’t - he was adamant that that also wouldn’t
influence him in any way. And he stated that he could follow the law
as applied.

THE COURT: Mr. Loewer was questioned by the Court. He
did answer questions that he knew Mike Bozeman, which was a
witness - potential witness in this matter, that he is friends, that he
does meet him on [sic] social basis, he’s last seen him maybe three or
four months ago in passing, that this would not affect his ability to be
fair and impartial. Also he had known the victim in this matter. That
was not socially, but only on a business related matter of the nature of
his business with ATVs. Further questioning from the State, Ms.
Harris asked him if he would - if he knew the victim could he put that
aside, and he answered yes. I did know that - he could put all things
aside and, and solely base it on the evidence, he answered yes that [he]
would give the defendant the presumption of innocence, answered yes,
that he could, if so, render a not guilty verdict. Also in reference to Mr.
Bozeman, he would not give greater weight to the testimony of Mr.
10

Bozeman when Mr. Willson questioned him. Said it was a long time
ago that he worked with him, two to three years ago. They had mutual
friends. They do nothing together. Again, knew that [sic] the victim -
by his business. Based upon the responses of Mr. Loewer, those
challenges for cause would be somewhere along the lines of a juror
not being impartial whether the cause - whatever the cause of
impartiality, that the juror declares that the Court is satisfied that he
can render [sic] impartial verdict according to the law and evidence.
The Court has watched Mr. Loewer’s demeanor as he has answered
questions and believes that Mr. Loewer is credible to [sic] his answers,
not in any way trying to hide anything or exaggerating that, that the
Court will take him for that, his word, and the challenge for cause will
be denied. So Mr. Loewer will be juror number twelve at this time.

Mr. Loewer affirmed his ability to put aside his opinions and properly apply

the law. We find no merit in the trial court’s denial of Defendant’s challenge of

him.

Brandon Headrick’s voir dire examination proved more problematic. Mr.

Headrick seemed reluctant to accept the premise that, under Louisiana law, one

might be justified in using deadly force “to prevent unlawful entry thereto, or to

compel an unlawful intruder to leave the dwelling, place of business, or motor

vehicle when the conflict began[.]” La.R.S. 14:20(B). However, on further

questioning, Mr. Headrick indicated that he believed that he could apply the law as

written. The trial court accepted this and found that Mr. Headrick could apply the

law as instructed.

We contrast this with the individual examination of another potential juror,

Patrick Williams. Mr. Williams, too, had a problem with the justification statute.

He personalized his own divorce and acrimonious relationship with his ex-wife,

and indicated that, in his mind, had the justification statute existed at the time of

his divorce, his ex-wife would have taken advantage of the law to rid herself of

their conflicts. Even though Mr. Williams testified that he thought he could be fair,

the court was not convinced that Mr. Williams could put aside his views of

statutory justification and render a fair verdict.
11

Mr. Headrick, on the other hand, testified that he had difficulty with the

concept that one could “just open a door and shoot somebody.” However, he

repeatedly indicated that he could follow the law as instructed by the court. He

opined that whether the law applied depended upon the circumstances.

This is exactly what jurors are expected to do: take the law as instructed by

the court and apply it to the facts they find have been proven by the evidence.

A trial judge’s refusal to excuse a prospective juror for cause is not an
abuse of his discretion, notwithstanding that the juror has voiced an
opinion seemingly prejudicial to the defense, when subsequently, on
further inquiry or instruction, he has demonstrated a willingness and
ability to decide the case impartially according to the law and the
evidence.

State v. Taylor, 03-1834, p. 6 (La. 5/25/04), 875 So.2d 58, 63. The trial court

found that Mr. Headrick could follow the law as instructed, and we see no reason

to disturb that finding.

Lastly, Michael Chatelain served as the jury foreman. Mr. Chatelain had

followed news coverage of the incident and had discussed it with his wife, who

knew Thomas and held a favorable opinion of him. Defendant urges that Mr.

Chatelain should not have been empaneled because he was biased, but she could

not strike him, as she had exhausted her peremptory challenges. However,

Defendant made no attempt to challenge Mr. Chatelain for cause; therefore, she

failed to preserve any objection to his service or to make Mr. Chatelain’s service

an exemplar of prejudice because of having to exercise peremptory challenges to

Mr. Loewer and Mr. Headrick. This assignment of error lacks merit.

Assignment of error 2:

Defendant’s case received extensive coverage in local media. She maintains

that her trial counsel rendered ineffective assistance in failing to request that the

venue of her trial be changed. The failure of counsel to retain an expert in

12

domestic violence is another ground Defendant cites for the proposition that she

received ineffective assistance.

This court has stated:

The issue of ineffective assistance of counsel is more
appropriately addressed in an application for post-conviction relief,
where an evidentiary hearing can be conducted in the trial court. State
in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d
1012. However, where an ineffective assistance claim is raised on
appeal, this court may address the merits of the claim if the record
discloses sufficient evidence to rule on it. Id. If this court considers a
claim of ineffective assistance of counsel on appeal, Defendant must
satisfy a two-part test. He must first show counsel’s performance was
deficient and next, that the deficiency prejudiced him. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

State v. Ervin, 17-18, p. 7 (La.App. 3 Cir. 12/13/17), 258 So.3d 677, 683.

Prior to trial, Defendant’s attorney filed a motion to be allowed additional

peremptory challenges and for individual voir dire on the grounds of the extensive

news coverage of Defendant’s case. Defendant argues that this evidences

counsel’s knowledge of the degree to which her right to a fair trial was prejudiced

by pretrial publicity. However, the record also evidences that counsel wanted to

try the case in Rapides Parish for strategic reasons and that he was concerned about

how long it might take to go to trial if the venue were changed.

Without knowing the content of pretrial discussion between Defendant and

her trial counsel, it would be inappropriate to conclude that counsel’s actions

regarding venue were deficient. Thus, it is more appropriate for any analysis

regarding effective assistance on the issue of a change of venue to be reserved for

post-conviction relief rather than on direct appeal. This court finds that the record

does not disclose sufficient evidence on this issue.

Defendant cites State v. Curley, 16-1708 (La. 6/27/18), 250 So.3d 236, as a

mandate that defense attorneys representing survivors of domestic violence must

consult with an expert in domestic violence/intimate partner violence. The
13

supreme court has indicated that Curley did not establish such a principle. “Curley

merely applied the existing principles of Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to the facts of Curley’s case and

determined that counsel rendered ineffective assistance of counsel.” State v.

Johnson, 21-1309, p. 1 (La. 12/7/21), 328 So.3d 404, 404.

This assignment of error lacks merit.

Assignment of error 3:

Defendant argues that the district court applied the wrong legal standard in

denying her motion for new trial, which was based upon ineffective assistance of

counsel, principally the failure to consult an expert in domestic violence. Pursuant

to La.Code Crim.P. art. 851(B)(3) and (5):

B. The court, on motion of the defendant, shall grant a new trial
whenever any of the following occur:

....

(3) New and material evidence that, notwithstanding the
exercise of reasonable diligence by the defendant, was not discovered
before or during the trial, is available, and if the evidence had been
introduced at the trial it would probably have changed the verdict or
judgment of guilty.

....

(5) The court is of the opinion that the ends of justice would be
served by the granting of a new trial, although the defendant may not
be entitled to a new trial as a matter of strict legal right.

In making its ruling, the district court gave extensive reasons:

RULING OF THE COURT - MOTION FOR NEW TRIAL

THE COURT: The Motion for New Trial based upon four
contentions, the Court will take them according to how Ms. Hogan
has laid it out in her motion. The first one being that the subject of
the[] failure to consult or call an expert in Battered Women’s
Syndrome. The Court has read the [State v.] Curley[, 16-1708 (La.
6/27/18), 250 So.3d 236,] decision which the defense has relied upon,
14

that being a Louisiana Supreme Court case, and has also researched
whether other courts have relied upon that given that it’s only a two-
thousand- 28 [sic] eighteen decision, and having not found any. I do
highlight the Curley decision where there is [sic] intimate partner’s
[sic], a death, and reports of abuse. The Curley decision did talk about
an extensive testimonial and documentary evidence regarding the
abuse the victim perpetrated upon the defendant. Extensive. Extensive
being reports over many years, at least six reports back to nineteen-
ninety-five. The testimony of the victim’s stepdaughter. The victim
herself. Defendant called numerous times. Trauma related to the, [sic]
blackened eyes, swollen shut. Victim once threw defendant to the
ground, kicked in the shoulder. Also in that decision, the actual trial
counsel that tried the case did testify. And that he testified that he did
not consult. He was unaware. He did not know he could introduce
testimony at a hearing. And I understand that Ms. Hogan is asking for
a hearing. But in order to do that under the Strickland standard of
ineffective assistance of counsel, the defendant must show that
counsel’s representation fell below an objective standard of
reasonableness. And the second prong is that [sic] have to show that
there was prejudice done.

MS. HOGAN: Your Honor, if I may make a comment.

THE COURT: Yes, ma’am.

MS. HOGAN: Under [State ex rel Tassin v. Whitley, 602 So.2d
721 (La.1992)], it talks, it’s not cited in my brief, but as far as making
a determination as to ineffective assistance of counsel without the
benefit of trial counsel, without the benefit of a hearing with trial
counsel’s testimony and other things presented, I think that any ruling
would sort of be in a vacuum because what the Supreme Court has
said Tassin v. Whitley is that evidentiary hearings are useful where
you can’t determine ineffectiveness on the face of the record. And so,
I think that in a case where, where testimony could help, that it’s the
ultimate legal conclusion as to whether counsel was ineffective, an
evidentiary hearing should be, should be granted. That’s Tassin v.
Whitley. So that’s what I just wanted to make the Court aware of.

THE COURT: And also in the Curley decision it says the
majority, (reading) in this context we otherwise decline to set a rigid
foundation requirement, instead leaving those to the sound discretion
of a trial court on a case-by-case basis. I also see attached to the
defense motion was the proposed evidence of what Ms. Meeks would
have been testifying to. That’s part of, in fact, if you look at the
dissenting opinion in Curley, by Justice Weimer, where part of that
ineffective assistance of counsel, failure to call a witness, the petition
must name the witness, demonstrate the witness [sic] availability to
testify, context of the witness’ [sic] proposed testimony, and show the
testimony would have been favorable. Justice Weimer in his dissent
looking for that [sic]. The question became is that whether the defense
met the substantial burden of proof imposed on [sic] by what should
15

have been in a post-conviction relief proceeding but it’s in a new trial
proceeding. After being convicted by the jury that heard the evidence
including the testimony of the defendant, the claims alleging a
deficiency in attorney performance are subject to a general
requirement that the defendant affirmatively prove prejudice. That’s
in Strickland case [sic]. Not enough for the defendant to show that
counsel’s errors had some conceivable effect on the outcome of the
proceeding but the defendant must show that there is a reasonable
probability that but for the counsel’s unprofessional errors, the result
of the proceeding would have been different. Here the jury was
presented with factual issues. They were free to accept those theories
even to the point of a lesser included offense as included in
manslaughter. The jury discounted that. Did not accept that. The self-
defense was presented to the jury. The Court finds that the defense has
not demonstrated where there was a substandard conduct of
reasonableness [sic] by the trial counsel.

Defendant contends that the trial court erroneously applied the Strickland

standard in deciding the motion for new trial. However, we note that it was

Defendant who raised ineffective assistance of counsel at the hearing on the

motion for new trial. She cannot now complain because the trial court addressed

her concerns.

Defendant contends that a report prepared by Ms. Beth Meeks, a domestic

violence expert, should be considered because such an expert should have been

retained to testify on her behalf at trial. Ms. Meeks’ testimony should have been

put forward to “‛provide context to Ms. Giles [sic] behavior, interpret behavioral

cues demonstrated by Mr. Coutee and enumerate self-defense issues that are

specific to abused women.’” She argues that a new trial should be granted on the

basis of La.Code Crim.P. art. 851(B)(5).

The supreme court has held that the denial or granting of a motion for new

trial based on Article 851(B)(5), presents a question of law that is to be reviewed

under an abuse of discretion standard. State v. Guillory, 10-1231, (La. 10/8/10), 45

So.3d 612. Pursuant to Tassin, Defendant argues, at the least an evidentiary

16

hearing should be held to assess whether trial counsel’s failure to consider

retaining an intimate partner abuse expert warrants a new trial.

Again, Defendant relies on Curley for the proposition that defense attorneys

representing survivors of domestic violence must consult with an expert in

domestic violence/intimate partner violence. Again, we note that the supreme

court in Johnson limited the application of Curley to the facts of that case. We also

note that Tassin involved an application for post-conviction relief, not a motion for

new trial. We find no abuse of the trial court’s discretion. Defendant couched her

application for new trial as an issue of ineffective assistance of counsel. As with

our discussion of Defendant’s assignment of error 2, we find that her contentions

are better addressed in the context of an application for post-conviction relief.

Assignment of error 5:

The trial court instructed the jury on the aggressor doctrine:

A person who is the aggressor or who brings on a difficulty cannot
claim the right of self defense unless she withdraws from the conflict
in good faith and is in such a manner that her adversary knows or
should know that she desires to withdraw and discontinue the conflict.
In determining whether the defendant was the aggressor, you must
consider the nature of the confrontation and whether the victim's
actions were a reasonable response. Thus, if you find the defendant
was the aggressor or that she brought on the difficulty, you must reject
her claim of self defense unless you find: One, that she withdrew from
the conflict; and, Two, that her withdrawal was in good faith; and,
Three, that the withdrawal [sic] in a manner that put her adversary on
notice that she wished to withdraw and discontinue the conflict.

It is unclear exactly what words, if any, Defendant and the victim exchanged

immediately before the shooting. Part of the State’s theory of the case was that

Defendant planned the shooting in advance. Its evidence supporting this included

the fact that she purchased the weapon and researched self-defense insurance and

the law of self-defense shortly before the shooting. The State also suggested that

Defendant had her weapon in hand and effectively ambushed the victim, or at least

17

the State made this argument in supporting inclusion of the aggressor doctrine in

the jury instruction:

THE COURT: Mr. Clerk, I’ll give you that. And then the next
objection is the inclusion of the Aggressor Doctrine to the jury
instructions, is that correct, Mr. Willson?

MR. WILLSON: Yes, sir.

THE COURT: Any argument on that one?

MR. WILLSON: Well, I think I’ve already made it. We don’t
believe it’s appropriate because there’s no evidence to that effect in
the record. And, I think it would just confuse the jury and we don’t
think it should be included.
THE COURT: Mr. LeBeau, do you have any response?

MR. LEBEAU: Yes, Judge. We do believe the facts support the
inclusion of the aggressor doctrine. We also believe that the law
supports the inclusion of the Aggressor Doctrine, and as for the facts,
there has been witness testimony that the defendant was in possession
of that firearm prior to the shooting, holding and pointing a gun at
somebody is clearly an act of aggression in which somebody could
respond by approaching and attempting to disarm that person.

Attempting to disarm an armed assailant is not a reasonable response except

in the most extreme circumstance. In addition, there was no testimony that directly

demonstrated Defendant had the gun in her hand in advance, although police

officers testified that given the timing of the incident, Defendant must have had the

gun in hand, based upon the type of holster she had and the manner of drawing the

weapon from it. Nonetheless, despite whether it would be reasonable to attempt to

manually disarm another of a firearm, the jury could safely conclude that the act of

pulling a gun on someone without provocation is an inherently aggressive act.

Regardless of whether the trial court erred in instructing the jury on the

aggressor doctrine, unless that instruction poses a “structural defect[] in the

constitution of the trial mechanism, which [defies] analysis by ‘harmless-error’

standards[,]” reversal is not mandated. Arizona v. Fulminante, 499 U.S. 279, 309,

18

111 S.Ct. 1246, 1265, (1991). In those situations, the effect of the error is

“unmeasurable,” and the reviewing court must speculate on whether the error

resulted in the jury wrongly convicting the defendant. Sullivan v. Louisiana, 508

U.S. 275, 281, 113 S.Ct. 2078, 2083 (1993). These situations are distinguishable

from those “trial errors which occur ‘during the presentation of the case to the jury,

and which may therefore be quantitatively assessed in the context of other

evidence presented[.]’” Id. (quoting Fulminate, 499 U.S. at 307-08).

The State’s theory posited that Defendant set a trap for Thomas. The

evidence of premeditation has already been discussed, as has the evidence that

might indicate Defendant acted with justification. The same evidence that forces

us to conclude that any rational finder of fact could have arrived at a guilty verdict

also requires us to conclude that the complained-of instruction represents, at worst,

a trial error and not a structural defect in the constitution of the trial. This

assignment of error lacks merit.

Assignment of error 6:

Lastly, Defendant contends that the sentence of thirty years for obstruction

of justice and the consecutive sentences imposed violate the Eighth Amendment

prohibition against cruel and unusual punishments. She cites a number of cases in

which defendants convicted of homicides and obstruction of justice have been

sentenced to lesser terms for much more egregious acts of obstruction.

The potential sentence for obstruction of justice, a violation of La.R.S.

14:130.1(B)(1), is a fine of not more than one hundred thousand dollars,

imprisonment for not more than forty years at hard labor, or both. Defendant was

sentenced to a decade less than the maximum term.

Defendant objected to the sentences when they were imposed and filed a

motion to reconsider.
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“To constitute an excessive sentence, the reviewing court must find the

penalty so grossly disproportionate to the severity of the crime as to shock our

sense of justice or that the sentence makes no measurable contribution to

acceptable penal goals and is, therefore, nothing more than a needless imposition

of pain and suffering.” State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.

1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

The trial court is vested with wide discretion to sentence a defendant within the

range established by the legislature. State v. Etienne, 99-192 (La.App. 3 Cir.

10/13/99), 746 So.2d 124, writ denied, 00-165 (La. 6/30/00), 765 So.2d 1067.

Each case presents particular facts, and sentences must be particularized to the

offender and the offense. State v. Smith, 02-719 (La.App. 3 Cir. 2/12/03), 846

So.2d 786, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061.

There was evidence suggesting that Defendant sought to conceal her laptop

but not to destroy it. As mentioned during the Jackson review, Defendant’s failure

to destroy the laptop does not lessen her culpability or the seriousness of the

offense. The offense is serious because it involves the concealment of evidence

related to the commission of second degree murder. Defendant clearly killed the

victim but claimed she did so in self-defense. The research Defendant conducted

on her laptop called her justification claim into question, as it suggested the

possibility that the murder was premeditated.

As for the nature of the offender, the district court considered a number of

aggravating and mitigating factors:

For second degree murder when there is a mandatory sentence, one
that is legally required to be imposed, the Court need not justify the
sentence under Louisiana Code of Criminal Procedure Article 894.1
for aggravating and mitigating circumstances. However, for the
obstruction of justice, the Court must take into consideration the
mitigating and aggravating circumstances in the sentencing guidelines

20

which are under Article 894.1(A). When a defendant has been
convicted of a felony or misdemeanor, the court should impose a
sentence of imprisonment if any of the following occurs: (1) There is
an undue risk that during the period of a suspended sentence or
probation the defendant will commit another crime. This is the
finding of the Court. (2) The defendant is in need of correctional
treatment or a custodial environment that can be provided most
effectively by her commitment to an institution. This is a finding of
the Court. (3) A lesser sentence will deprecate the seriousness of the
defendant’s crime. This is a finding of the Court. The aggravating
and mitigating factors. This Court has looked at the aggravating
factors contained in Article 941.1(B) and finds these to be applicable
in this case: Number four (4) the offender used her position or status
to facilitate a commission of an offense, that being she’s asking her
sister to hide an important piece of evidence, that being the computer.
Eight (8), the offender committed the offense in order to facilitate or
conceal the commission of another offense. That again, hiding the
computer. Actually, the defense’s Sentencing Memorandum refers
that, agreeing to this factor as aggravation. Number eleven (11), the
offense involved multiple incidents for which separate sentences have
not been imposed. Here there is a murder sentence and then there will
be an obstruction of justice sentence. Number twenty-one (21), any
other relevant aggravating circumstances which would serve for a
more severe sentence. In February twenty-twenty, the Court granted
permission to the defendant to leave the State of Louisiana to visit her
son and his father in Oklahoma. This permission did not include
visiting one of her daughters in Oklahoma. At a bond revocation
hearing, the Court found that this was made under a false pretense and
for possibility to intimidate her daughter, the witness who testified in
trial. For this, the defendant was sentenced to thirty days in jail.
Again, even though the defendant did not have a criminal record prior
to her incarceration in this matter, she has since been arrested for
alleged crimes for identity theft, government benefits fraud, criminal
conspiracy, and money laundering, all yet to be prosecuted in East
Baton Rouge Parish. These all being considered aggravating
circumstances. Also the Court has to look to the mitigating factors
contained in Article 941.1(B) and finds the following to be applicable
to the conviction of obstruction of justice. Defense Sentencing
Memorandum refers to number twenty-two (22), the defendant’s
criminal conduct neither caused nor threatened serious harm. These
deal with Kayla and her sister’s conversations. Twenty-three (23), the
defendant did not contemplate that her criminal conduct would cause
or threaten serious harm. Twenty-nine (29), the defendant’s criminal
conduct was the result of circumstances unlikely to recur. Most likely

21

that if the defendant is sentenced to life imprisonment, this could
possibly not reoccur again. The defendant is particularly likely to
respond affirmatively to probationary treatment. With a life sentence,
there is no possibility of a probation treatment. The imprisonment of
the defendant would entail excessive hardship to herself or her
dependents. That, the Court could possibly find given that she has
small children that she was taking care of. Any other relevant
mitigation circumstances for a less severe sentence. The defendant
had a good work history. Employed by the federal government
through the Veteran’s Administration and even at one time with the
Social Security Administration. The defendant has lived an almost
completely law abiding life but for the expunged burglary charge in
the past. Other mitigating circumstance is that the defendant has been
responsible to her family obligations, has taken care of her children.
The defendant’s military record. Three years of active duty service.
Army Reserves. Honorable discharge. The Court finds that those are
mitigating in this matter.

Defendant cites State v. Yelverton, 12-745 (La. App. 5 Cir. 2/21/13), 156

So.3d 53, writ denied, 13-629 (La. 10/11/13), 123 So.3d 1217, in which the

defendant received a forty-year sentence for manslaughter and a consecutive

sentence of ten years for obstruction of justice; and State v. Ray, 10-1126 (La.App.

4 Cir. 6/29/11), 70 So.3d 998, in which the defendant received thirty years for

manslaughter and twenty years for obstruction. She also cites the obstruction

sentence in State v. King, 11-767 (La.App. 5 Cir. 2/28/12), 88 So.3d 1147, writ

denied, 12-660 (La. 9/14/12), 99 So.3d 35, but it does not appear that Defendant

raised an excessiveness claim in that case.

Defendant also surveys three cases cited by the district court: State v.

Dungan, 54,031 (La.App. 2 Cir. 9/22/21), 327 So.3d 634, writ denied, 21-1679

(La. 1/26/22), 332 So.3d 82; State v. Calloway, 19-335 (La.App. 5 Cir. 12/30/19),

286 So.3d 1275, writ denied, 20-266 (La. 7/24/20), 299 So.3d 69; and State v.

Cawthorne, 18-155 (La.App. 3 Cir. 10/3/18), 257 So.3d 717, writ denied, 18-1899

(La. 4/8/19), 267 So.3d 607. The State also discusses Calloway and Cawthorne.

22

The sentence in Dungan resulted from a plea bargain and is not instructive.

In Calloway, the defendant was convicted of second degree murder and

obstruction of justice from a 2016 homicide in Jefferson Parish. A burned vehicle

from which all four wheels had been removed was located in Lafourche Parish and

was identified as belonging to the Jefferson Parish victim. Investigators found a

black muscle shirt and a RaceTrac drink cup in the vehicle. Surveillance video

from a RaceTrac in Houma, Louisiana, where the defendant lived, showed the

defendant wearing the shirt and holding a drink cup. A search of the defendant’s

home recovered a gas can and lug nuts of the same size as the burned car. The

defendant’s girlfriend pleaded guilty to manslaughter in exchange for her

testimony, which indicated that the defendant burned the vehicle to erase evidence

of his involvement in the crime. Even though the murder and obstruction of justice

arose from the same act or transaction, the trial court ordered the life sentence and

the forty-year sentence for obstruction of justice to be served consecutively. The

court of appeal affirmed the sentences and the consecutive service based upon the

nature of the crimes. Given that the defendant had been sentenced to life, the

imposition of a forty-year sentence for obstruction to be served consecutively had

no practical effect, and “a remand for resentencing would be ‘an academic exercise

which has no practical benefit to anyone.’” Calloway, 286 So.3d at 1280 (quoting

State v. Funes, 11-120 (La. App. 5 Cir. 12/28/11), 88 So.3d 490, 510, writ denied,

12-290 (La. 5/25/12), 90 So.3d 408).

The eighteen-year-old defendant in Cawthorne also burned his murder

victim’s car after ambushing the victim in his own home, tying and duck taping the

victim’s hands and feet, and shooting the victim. The defendant then robbed the

victim’s home of a safe using one of the victim’s vehicles, which he burned along

with the various tools and clothing used in the robbery after retrieving gold coins
23

and paperwork from the safe. The safe was dumped in a river. The defendant was

convicted of second degree murder and obstruction of justice. He was sentenced to

life imprisonment for murder and the maximum of forty years for obstruction of

justice. The trial court justified its sentence on the nature and severity of the

offence and the defendant’s refusal to admit any fault. The sentences were upheld.

In Yelverton, the defendant shot his victim with no provocation, left the

victim in the street to die, disposed of evidence, and cleaned the car in which the

victim had been shot. A jury convicted the defendant of manslaughter and

obstruction of justice. He was sentenced to forty years at hard labor for

manslaughter and ten years for obstruction of justice, to be served consecutively.

On appeal, the defendant maintained that the sentences were excessive. The trial

court determined that the murder and obstruction were two separate acts; therefore,

it imposed consecutive sentences. The fifth circuit found that this did not represent

an abuse of the trial court’s discretion.

In the present matter, Defendant turned her laptop over to her sister for

keeping before the shooting. After the shooting, Defendant’s sister told her she

was uncomfortable keeping it, and Defendant told her to give it to Ms. Dennis.

The secreting of the laptop formed the basis of the charge of obstruction of justice.

Without evidence procured from that laptop, the State would have been hampered

significantly in investigating and prosecuting the case.

The jury obviously accepted the State’s theory that the shooting of Thomas

was planned. That shooting took Thomas’s life, and Defendant shot him in the

presence of her three children, one of whom was Thomas’s daughter.

Given the totality of the circumstances, we conclude that the thirty-year

sentence for obstruction of justice was not excessive. Further, like the court in

24

Calloway, we find that the distinction between serving the sentences consecutively

or concurrently is a mere academic exercise with no practical distinction.

DECREE

Defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

25