State of Louisiana v. David Bourg

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-915

STATE OF LOUISIANA

VERSUS

DAVID BOURG

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ON APPLICATION FOR SUPERVISORY WRITS FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. 2014-2706
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and Phyllis M. Keaty, Judges.

WRIT GRANTED; ORDER GRANTING NEW TRIAL REVERSED;
REMANDED TO TRIAL COURT FOR SENTENCING.

H. Todd Nesom
District Attorney – 33rd Judicial District Court
Joe Green
Assistant District Attorney – 33rd Judicial District Court
P. O. Box 839
Oberlin, LA 70655
Telephone: (337) 639-2641
COUNSEL FOR:
Plaintiff/Applicant - State of Louisiana

Chad Guidry
P. O. Box 447
Kinder, LA 70648
Telephone: (337) 738-2280
COUNSEL FOR:
Defendant/Respondent - David Bourg

THIBODEAUX, Chief Judge.

The State of Louisiana (State) filed a writ application for supervisory

review of the trial court’s ruling granting the defendant, David Bourg, a new trial

following the jury’s verdict that the defendant was guilty of manslaughter. We

docketed the State’s writ application for full briefing and argument. Upon review,

we find that the trial court legally erred and abused its discretion in granting the

defendant a new trial. Accordingly, we grant the State’s writ application and

reverse the ruling of the trial court. We remand this case to the trial court for

sentencing of the defendant in accordance with the manslaughter statute, La.R.S.

14:31.

I.

ISSUE

We must decide whether the trial court erred in granting the

defendant’s motion for new trial on the grounds that the State failed to prove

specific intent beyond a reasonable doubt.

II.

FACTS AND PROCEDURAL HISTORY

On June 1, 2014, David Bourg drove Michael Pitre home from target

practice. While parked in front of Pitre’s mother’s house, Bourg shot Pitre in the

head with Bourg’s nine millimeter Ruger handgun, killing Pitre. Pitre did not have

a gun. The bullet entered Pitre’s left temple and exited above and behind his right

ear. Pitre slumped forward in the passenger seat. The blood from Pitre’s head

wound soaked the right edge of the passenger seat in Bourg’s truck and ran into the

passenger door sill. Bourg immediately lit a cigarette and paced outside his truck

with his still-loaded gun and cell phone in hand, attempting repeatedly to call his

sister, his sister’s boyfriend, and his brother. He did not attend to Pitre or call 911.

Pitre’s brother and his mother heard the shot from Pitre’s mother’s house and went

outside. Pitre’s brother saw the gun and sent his mother back inside. She called

911. Pitre’s brother asked Bourg repeatedly to put the gun down so he could lend

assistance to his brother.

Police officers arrived, as did Pitre’s son and daughter-in-law, who

began CPR. Bourg put the gun to his own head. Officer Frank Restivo arrived

first and heard Bourg say, “I will kill myself” and “I will kill ya’ll.” Officer

Restivo and Officer Matthew Hebert ordered Bourg to throw the weapon down at

least ten times. Bourg ultimately de-cocked the gun and threw it on the ground.

Officer Restivo saw Bourg look toward the weapon again, and he ran at Bourg and

tackled him to the ground, briefly, or almost, rendering him unconscious. Officer

Restivo is six feet five inches tall and weighs 280 pounds. Bourg’s head and back

hit the pavement hard, and his body bounced. Dr. Jude Agendia treated Bourg at

Kinder Hospital and noted ecchymosis around the eye, which is bleeding or

draining under the skin. Dr. Christopher Tape testified that Bourg’s ecchymosis1

around the eyes was consistent with his head hitting the pavement very hard.

When asked why he shot Pitre, Bourg told the arresting chief of

police, Grady Haynes, that Pitre threw his laptop or iPad out of the window. An

Allen Parish Grand Jury charged David Bourg with the second-degree murder of

Michael Pitre, a violation of La.R.S. 14:30.1. Two years later, a jury convicted

1
Dr. Tape explained that ecchymosis occurs when blood drains away from the area of
contact and settles somewhere else.

2

Bourg, eleven to one, of the responsive verdict of manslaughter, a violation of

La.R.S. 14:31.

Defense counsel filed a “Motion for New Trial and/or Motion for

Post-Verdict Judgment Granting Acquittal.” The defendant sought the acquittal

pursuant to La.Code Crim.P. art. 821, asserting that there had been insufficient

evidence to support his conviction. He requested a new trial pursuant to La.Code

Crim.P. art. 851(B)(1) and (5), arguing that the verdict was contrary to the law and

evidence and that the ends of justice would be served by the granting of a new trial.

At the hearing on the motions, the defense requested either a new trial

or an entry of a post-verdict judgment of “negligent homicide.” The trial court

denied the motion for a post-verdict judgment but granted the motion for a new

trial. The State filed an application for supervisory review by this court.

The State contends that there are issues of law and a showing of an

abuse of discretion, which warrant review and are within this court’s jurisdiction.

We granted the State’s application for supervisory review and now find that the

trial court erred as a matter of law on the issue of specific intent and upon the

granting of a new trial.

III.

LAW AND DISCUSSION

The trial for second degree murder lasted six days and ended in June

2016, with a jury’s verdict convicting the defendant of manslaughter. Second

degree murder is punishable by life imprisonment at hard labor without benefit of

parole, probation, or suspension of sentence. La.R.S. 14:30.1(B). Manslaughter is

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punishable by imprisonment at hard labor for zero to forty years. La.R.S.

14:31(B).

At the end of the trial, the jury was instructed to find the defendant

“guilty” based upon a finding of the elements of second degree murder, as charged,

or the responsive verdict of manslaughter, or the responsive verdict of negligent

homicide; or, if the jury found justification such as self-defense, it was to find the

defendant “not guilty.” The jury was given the elements of each offense.

Second degree murder was defined to the jury as “the killing of a

human being when the offender has a specific intent to kill or inflict great bodily

harm.” See La.R.S. 14:30.1(A)(1). Manslaughter was defined as “the killing of a

human being when the offender has a specific intent to kill or inflict great bodily

harm but the offense is committed in sudden passion or heat of blood immediately

caused by provocation sufficient to deprive an average person of his self-control

and cool reflection.” See La.R.S. 14:31(A)(1).

Negligent homicide was defined as the killing of a human being by

criminal negligence, which exists when there is “such disregard of the interest of

others that the offender’s conduct amounts to a gross deviation below the standard

of care expected to be maintained by a reasonably careful person under similar

circumstances.” See La.R.S. 14:32. The jury was further instructed on the

definitions of justified homicide and self-defense. The jury returned a verdict of

“guilty of manslaughter.”

Hearing on the Defendant’s Motions

The hearing on the defendant’s motion for a post-verdict judgment of

either acquittal, or of negligent homicide, or for a new trial, was held three months

4

after the June verdict, in September 2016. It appears that the trial transcript had

not yet been prepared and that the trial court did not have the trial testimony for

review on the motions. At the beginning of the hearing, Mr. Bourg’s attorney

stated, “we are relying completely on the evidence not being sufficient” for the

conviction. He very briefly argued, “I think the evidence was clear that there was a

fight. I think he was protecting himself and that he didn’t intend to kill Mr. Pitre.”

The State’s attorney briefly argued the lack of evidence of a fight and the fact that

the defendant shot Mr. Pitre in the head because Mr. Pitre threw his laptop out of

the window. He pointed out the absence of any injuries on Mr. Pitre’s hands

indicating that he had punched Bourg repeatedly, as Bourg claimed. He also

pointed out the undisturbed nature of the items in the truck, indicating that no fight

took place. This was essentially all of the argument that was presented.

After discussing the evidence in a light favorable to the defendant, the

trial court set aside the jury’s verdict of manslaughter, finding that the State had

failed to provide sufficient evidence, proof beyond a reasonable doubt, of the

“critical” element of “specific intent.” The trial court stated:

Considering that the burden is on the State to prove every
element of a crime beyond a reasonable doubt, and that
the specific intent required of this crime is one of those
elements, it is the finding of the Court that the forensic
evidence creates more than a doubt on the critical
question of specific intent.

Specific Intent

Specific intent is ultimately a legal conclusion to be resolved by the

trier of fact. State v. Graham, 420 So.2d 1126 (La.1982); State v. Lewis, 525 So.2d

215 (La.App. 1 Cir.), writ denied, 531 So.2d 469 (La.1988). “Specific criminal

intent is that state of mind which exists when the circumstances indicate that the

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offender actively desired the prescribed criminal consequences to follow his act or

failure to act. La.R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert.

denied, Lindsey v. Louisiana, 494 U.S. 1074, 110 S.Ct. 1796 (1990). Specific

intent can be formed in an instant. State v. Harris, 01-2730 (La. 1/19/05), 892

So.2d 1238, cert. denied, Harris v. Louisiana, 546 U.S. 848, 126 S.Ct. 102 (2005);

State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382. Specific intent need not

be proved as fact; it may be inferred from the circumstances of the transaction and

the actions of the defendant. State v. Graham, 420 So.2d 1126.

The discharge of a firearm at close range and aimed at a person is

indicative of a specific intent to kill or inflict great bodily harm upon that person.

State v. Seals, 95-0305 (La. 11/25/96), 684 So.2d 368, cert. denied, Seals v.

Louisiana, 520 U.S. 1199, 117 S.Ct. 1558 (1997). The defendant does not dispute

that his gun was the only weapon in the truck or that he pulled the trigger and fired

the bullet that killed Michael Pitre. While not evident in his words or actions at the

scene of the crime, Mr. Bourg argued at trial that the gun discharged accidentally

while he was defending himself against the victim and trying to use it as a

bludgeoning device. But the jury heard much testimony and saw photographic

evidence that contradicted the defendant’s assertions.

Sufficiency of the Evidence and Standard of Review

In reviewing the sufficiency of the evidence, an appellate court must

determine that the direct and/or circumstantial evidence, viewed in the light most

favorable to the prosecution, was sufficient to convince a rational trier of fact that

all of the elements of the crime have been proved beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Neal, 00-674 (La.

6

6/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323 (2002). This

is a question of legal sufficiency of the evidence. State v. Combs, 600 So.2d 751

(La.App. 2 Cir.), writ denied, 604 So.2d 973 (La.1992). This standard of review is

applicable to the trial court as well. See Hudson v. Louisiana, 450 U.S. 40, 101

S.Ct. 970 (1981). Here, where the trial court found the evidence insufficient but

did not view the evidence in the light most favorable to the prosecution, as required

by Jackson, there was error of law, and the motion must be reconsidered. State v.

Chapman, 438 So.2d 1319 (La.App. 3 Cir. 1983).

The trial court began its comments making reference to the State’s

theory, but not discussing the State’s evidence, on second degree murder:

The State is not required to prove a motive for a
killing. But in the face of the confusing evidence or lack
thereof regarding what did transpire in the truck, the
State sought to flesh out a theory of specific intent based
on anger toward the decedent. This was grounded on
defendant’s own testimony and earlier statements to law
enforcement that as he and the decedent were
approaching their final destination the decedent threw an
iPad or a laptop or similar device out of the truck. The
State contended that this act enraged the defendant to the
point that he reached into the space between the console
and his seat, pulled the pistol, and shot the decedent once
in the head. The defendant dismissed the idea that he
could have been so angry about the loss of the device.

Next the trial court made various comments that were contrary to the

defendant’s own testimony and the evidence at trial:

While his denials on the stand can be explained as self-
serving testimony, it is true that there is no indication in
any of the evidence of the trial that the defendant had a
violent or explosive disposition. While it is not part of
the trial evidence the Pre-Sentence Report does not
contradict that conclusion. The defendant’s criminal
record is devoid of any felonies or even misdemeanors,
violent or otherwise.

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The defendant himself admitted at trial that he had been “ticketed” for

fighting, or disturbing the peace, decades before this incident. The record contains

a printout showing that David Bourg had four previous arrests before this shooting:

an arrest in Allen, Louisiana, in 1989 for disturbing the peace (fight); another arrest

in Allen for disturbing the peace in 1991; an arrest in Lafayette in 1992 for

refusing to move on; and an arrest in Lafayette in 2004 for a traffic violation. The

victim, on the other hand, was revealed to have thrown one single punch in a bar

many years before this incident. The only witness called by the defendant at trial

was the man who received that punch, Bon Manuel. Mr. Manuel testified that

while playing pool with Mr. Pitre, Mr. Pitre punched him once, and that was it—

nothing more.

The trial court next discussed the defendant’s version of the shooting,

omitting crucial details in the record that were part of the State’s evidence:

The version of events based on defendant’s testimony
develop a different picture. He testified that it was the
decedent who had become inexplicably angry, evidenced
by the tossing of the iPad or the electronic device. The
defendant had brought his truck to a stop in front of
decedent’s mother’s home, where the decedent was
staying at the time, when suddenly and without apparent
reason the decedent began hitting the defendant full in
the face. The defendant does not deny that he pulled the
gun from its holster, but claimed that he was trying to use
it as a club in self-protection. When pressed by the
Assistant District Attorney about whether he meant to
fire the weapon or whether it went off accidently the
defendant’s responses were generally that owing to the
excitement and bizarre circumstances of the moment he
did not know.

The trial court did not discuss the State’s evidence at all, much less in

a light favorable to the State. For example, part of the referenced “bizarre

circumstances” were created by the fact that both men had been drinking quite a bit

8

of beer on the day and evening of the shooting. However, the defendant also

admitted to having taken the prescription drugs Xanax, Oxycodone, and

Roxicodone. Several members of Mr. Pitre’s family testified that Mr. Pitre had a

drinking problem and usually drank until he passed out, often having to be helped

from someone’s vehicle or helped into bed after falling asleep at the kitchen table.

However, testimony revealed that he was never aggressive; he was always home

by dark; he did not have a vehicle or a driver’s license; and he worked at a nursing

home a few blocks from his mother’s house, as well as doing maintenance work on

rent houses in the neighborhood. The testimony overwhelmingly shows that the

victim often helped his friends with handyman tasks including plumbing, tinting

glass, and working underneath houses where others could not; and those folks

would pick him up and bring him home from these projects.

Evidence further showed that there were no drugs in Mr. Pitre’s

system when he died, but his blood alcohol level was over two times higher than

Mr. Bourg’s (.383 for Mr. Pitre and .123 for Mr. Bourg). Dr. Tape, who performed

the autopsy, testified that intoxication at the level of Mr. Pitre’s would have

resulted in impaired motor skills, lack of coordination, decreased level of

consciousness, and could have caused blurry vision among other effects.

The jury also heard evidence that Mr. Bourg was five feet eleven

inches tall and weighed 210 pounds, while Mr. Pitre was five feet seven inches tall

and weighed 166 pounds. The jury heard Mr. Pitre’s brother, Brett Pate, testify

that when he was finally allowed to go to the truck to get his brother, he physically

picked him up and “cradled” him in his arms to carry him into his mother’s yard.

The jury also saw close-up photographs of Mr. Pitre’s hands taken, as a matter of

professional habit, by Dr. Christopher Tape who conducted the autopsy. There

9

were no scrapes, contusions, broken skin or bruises on Mr. Pitre’s hands or his

knuckles, even though Mr. Bourg testified that Mr. Pitre had hit him in the face

with his fists seven times. While not discussed at all by the trial court, a rational

jury could have concluded, in light of all this evidence, that Mr. Pitre was not a

reasonable threat to Mr. Bourg and that Mr. Bourg’s assertions were not borne out

by the evidence.

Finally, the trial court discussed the evidence regarding the trajectory

of the bullet in a light favorable to the defendant, further omitting crucial details,

and misconstruing the defendant’s own testimony:

[T]he trajectory of the bullet, which was established by
x-rays, physical probes, and expert testimony, supplies
the key. If the State’s version is accepted the weapon
would have been aimed at a seated Michael Pitre and the
trajectory of the bullet would have been somewhat
horizontal unless its path was diverted by some force or
object, which was not indicated, the bullet would have
ended up hitting the window or at least the door on the
passenger side. But that is not where the spent projectile
was found. It was located in the roof of the cab, nearly
centrally located. Integrating this irrefutable physical
evidence defendant’s testimony that decedent had
aggressively attacked him and was beating on him is
supported by the location of the spent cartridge. It
indicates that the shot was fired upward toward an
assailant. This means that Michael Pitre was out of his
seat and was atop the defendant at the moment that the
shot was fired. This is also consistent with the medical
testimony of the path of the projectile as it entered and
exited the decedent’s skull.

The trial court’s summary is contrary to the testimony and the

evidence at trial. Mr. Bourg himself testified that Mr. Pitre was not on top of him

when the gun was fired. The trial judge said that since there was some blood on

the passenger’s side of the console, the top of Mr. Pitre’s head was probably as far

as the midline of the console at the time he was shot. Mr. Bourg also testified that

10

he got the gun out of the holster and held it back behind the seat, which indicates

that, if Mr. Pitre did reach for the gun, Mr. Bourg had it safely away from Mr. Pitre

but chose to bring it back around to the front again. Additionally, the bullet was

not centrally located in the roof of the truck; nor did the location of the spent

cartridge support an attack by the victim. The photographs showed the bullet hole

located in the ceiling toward the passenger door. Crime Scene Investigator Chris

Oakes found the spent shell casing on a towel in the middle of the back seat. He

testified that it had been ejected to the right when the gun was fired. Although

Detective Oakes could not tell the exact angle of the weapon when it was fired, he

testified that the gun was fired from the driver’s side of the truck toward the

passenger side; the gun was pointed up, and the bullet hole was off toward the

passenger side of the vehicle. Detective Oakes further testified that he tested the

gun and that the trigger had to be pulled in order for it to fire. When fired, the gun

ejected the spent bullet casing to the right.

The jury further heard Mr. Pitre’s brother, Brett Pate, testify that when

he opened the passenger door of the truck, his brother was sitting in the center of

the passenger seat of the truck, slumped forward, his hands on his legs, palms open

and facing inward. Had the victim been attacking the defendant and received the

gun shot to the head while over the defendant, he would have slumped over the

defendant and bled on him and the driver’s seat of the truck.

The jury heard Detective Chris Oakes testify that the only blood

inside the truck was on the passenger seat and passenger side of the console.

Likewise, the jury saw photographs of the interior of the truck with blood only on

the passenger’s side, with a blood-soaked passenger seat, but soaked only on the

right edge of the passenger seat and dripping into the right door sill. All of

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Detective Oakes’s testimony, as well as the defendant’s own testimony, support the

conclusion that Mr. Pitre was on the passenger side of the vehicle when he was

shot, not on top of the defendant as concluded by the trial court.

The jury also heard the defendant’s own testimony showing that he

took deliberate actions that a rational juror could have seen as forming the specific

intent to shoot the victim, if not kill him. The defendant admitted that the holster

had a strap that had to be unsnapped before the gun could be removed. While the

defendant testified that Mr. Pitre reached for the gun, the defendant not only

admitted to pulling it from its holster between the driver’s seat and the driver’s side

of the console; he admitted to taking the extra step of unsnapping the strap that

kept the gun secured inside the holster:

Q. Okay. So, while he is hitting at you, you pushed him
back.

A. I pushed him back and I pushed his right hand away
and I grabbed the gun with my right.

Q. You grabbed the gun with your right hand.

A. Yes.

Q. Okay. And you had to pull it out of the holster?

A. Yes.

Q. How did you unstrap that? With what hand did you
unstrap it?

A. With my thumb.

If Mr. Bourg had wanted to get away from Mr. Pitre and protect

himself, he could have grabbed the entire holster and thrown it out the driver’s side

window or door, and gotten out of the truck. A rational juror could easily have

found that Mr. Bourg formed the specific intent to shoot the victim when he

12

reached down by his seat, unlatched the strap of the holster, pulled the gun from its

holster, held it by its stock, not by its barrel, and placed his finger on the trigger.

Mr. Bourg himself testified that in order for the gun to fire, the trigger had to be

pulled:

Q. For that particular gun, you said that it was not
cocked. So, you had to pull the trigger for it to fire,
correct?

A. Correct. Even if it was cocked you would have to
pull the trigger for it to fire.

The jury also heard Mr. Bourg testify that he thought it was necessary

to kill Mr. Pitre at the time; however, he later tried to retract any admission of

intent:

Q. Do you believe it was necessary to kill Michael Pitre.

A. To protect myself at that point, yes.

Q. So, you intentionally shot –

A. I didn’t intentionally shoot him, no.

Q. So, was this self-defense or was this an accident?

A. It was a combination of both because I was trying to
protect myself when the gun accidently went off. I didn’t
mean to pull the trigger. You know, it is hard to say, it
just happened.

In addition to evidence that Mr. Pitre was too drunk and too small to

harm Mr. Bourg, the jury heard testimony from witnesses who saw Mr. Bourg

immediately after he exited the truck, and none of them noticed any disabling

limitations or any injuries indicating that he had been attacked.2 Wesley Pitre, Mr.

Pitre’s son who lived two doors from his grandmother, testified that when he

2
Mr. Bourg testified that he was injured at work in the 1990’s, had had two back surgeries,
and had been on disability and not worked since the injury.

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arrived at the scene, the defendant was walking around in circles, with no problems

walking. Brett Pate testified that the defendant smoked a cigarette and paced

around after exiting the truck with no trouble walking, no appearance of pain, and

no injuries to his face. When officers arrived, they noticed the same things. From

fifteen feet away, Officer Frank Restivo saw no injuries on Mr. Bourg, no

difficulty walking, and he was not acting as if he were in pain. Officer Matthew

Hebert confirmed that he saw no injuries to the defendant upon his arrival. The

only evidence of an injury to Mr. Bourg prior to Officer Restivo’s tackle was Mr.

Bourg’s verbal complaint of a chipped tooth and some blood on a cigarette found

at the scene. The photographs taken after Mr. Bourg’s arrest show only a very

light smudge of blood in the center of the front of his t-shirt. The jury heard

repeated testimony indicating that Mr. Bourg’s injuries were the result of being

tackled by the six-foot-five-inch, 280-pound Officer Restivo, who hit him with all

of his force, such that Officer Hebert saw his body bounce off of the asphalt after

hitting it.

Other testimony included Oberlin Chief of Police Grady Haynes, who

arrived at the scene and was told that Mr. Bourg wanted to see him:

A. And once he was subdued I stayed with the subject,
and they [other officers] went to the yard.

Q. Okay. And what did you do then?

A. Just stayed with the subject and tried to listen to what
was going on. But I talked to the subject.

Q. Okay. And what did he say?

A. Well, I asked him, who did he shoot. And he said
Mike.

Q. Uh huh (yes).

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A. And I asked him, I said, well, why did you do that.
He said, because he threw a laptop out of the window.

Q. Did he say anything else?

A. I asked him, I say, well, that is not worth shooting
anybody over, you know. And he told me he tried to kill
himself. And that he wasn’t worth living for.

Q. So, Mr. Bourg said he, Mr. Bourg, tried to kill
himself.

A. Yeah.

Q. Okay. Did he say anything else to you?

A. That was it.

Q. Did he say that Mike was trying to or Mike had been
hitting him, punching him, anything that?

A. Nothing at all. That was the last thing he said to me.

Q. Did he ever say Mike had the gun, tried to get my
gun, --

A. No.

Q. - - anything like that?

A. No, sir.

Q. So, he said, he threw my laptop and that was it?

A. Uh huh (yes).

Even though the defendant now denies the above statements and

argues that the shooting was in self-defense and accidental, the jury’s verdict of

manslaughter demonstrates that the jury accepted the testimony of the State’s

twenty-six witnesses, found intent and provocation in the defendant’s words and

actions immediately following the shooting, and rejected the defendant’s trial

version of the shooting. As the trier of fact, the jury was free to accept or reject, in

whole or in part, the testimony of any witness. See State v. Johnson, 99-385

15

(La.App. 1 Cir. 11/5/99), 745 So.2d 217, writ denied, 00-829 (La. 11/13/00), 774

So.2d 971. After a thorough review of the record, we are convinced that a rational

trier of fact, viewing the evidence presented in this case in the light most favorable

to the State, could find that the evidence proved manslaughter beyond a reasonable

doubt.

We further note that if the trial court had used the proper Jackson

standard and viewed the evidence in the light most favorable to the prosecution and

still found the evidence not sufficient to prove specific intent beyond a reasonable

doubt, the court would have been required to acquit the defendant on his motion

for post-verdict judgment of acquittal, due to the prohibition against double

jeopardy. See Hudson v. Louisiana, 450 U.S. 40; State v. Voorhies, 590 So.2d 776

(La.App. 3 Cir. 1991).

Improper Standard and Analysis in Granting New Trial

The defendant argues that the trial court granted his motion for a new

trial based upon a finding that the jury’s verdict was “contrary to the law and the

evidence,” which is a statement that the trial court made following its analysis of

insufficient evidence to support the conviction on the element of intent. The

defendant argues that the granting of a new trial on the basis that the verdict was

contrary to the law and evidence is unreviewable under State v. Guillory, 10-1231

(La. 10/8/10), 45 So.3d 612. This is a reference to La.Code Crim.P. art. 858,

which states that appellate jurisdiction cannot be invoked to review the granting or

the refusal to grant a new trial in criminal cases, “except for error of law.” Per

Guillory, legal questions and legal errors are always reviewable.

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As shown above, however, the trial court’s entire analysis was on

insufficient evidence of specific intent; the court used the wrong standard for that

inquiry as well, and it came to the wrong conclusion; i.e., that the evidence was

insufficient to prove intent beyond a reasonable doubt. Just because the trial court

stated at the end of its analysis that the verdict was “contrary to the law and the

evidence,” which uses a different standard and a different analysis, without

applying the proper standard and the proper analysis, does not remove a legal error

or supply an omitted analysis. As succinctly stated by the fifth circuit:

Pursuant to [La.Code] Cr.P. art. 851, the motion
for new trial is based upon the supposition that an
injustice has been done to the defendant, and unless such
injustice is shown, the new trial motion shall be denied
no matter upon what allegations the motion is grounded.
In a motion for new trial, the trial judge can only review
the weight of the evidence and as such make a factual
review as a “thirteenth juror,” rather than under the
sufficiency of evidence standard enunciated in Jackson v.
Virginia[.]
State v. Badeaux, 01-618, p. 6 (La.App. 5 Cir. 11/27/01), 802 So.2d 905, 908, writ

denied, 01-3403 (La. 10/4/02), 826 So.2d 1121.

Weight of the Evidence

As illustrated above, the trial court did not consider the weight of the

evidence on both sides. It discussed a very small portion of the evidence, the

trajectory of the bullet, in a light favorable only to the defendant; and it misstated

the evidence on that issue. Where there is conflicting testimony about factual

matters, the resolution of which depends upon a determination of the credibility of

the witnesses, the matter is one of the weight of the evidence, not its sufficiency.

State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied, 02-

2595 (La. 3/28/03), 840 So.2d 566, and 02-2997 (La. 6/27/03), 847 So.2d 1255,

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cert. denied, Allen v. Louisiana, 540 U.S. 1185, 124 S.Ct. 1404 (2004). The trial

court did not discuss or re-weigh conflicting testimony.

The “‘weight of the evidence refers to a determination by the trier of

fact that a greater amount of credible evidence supports one side of an issue or

cause than the other.”’ State v. Jeanlouis, 96-474, p. 9 (La.App. 3 Cir. 11/6/96),

683 So.2d 1355, 1361 (quoting Tibbs v. Florida, 457 U.S. 31, 37, 102 S.Ct. 2211,

2216 (1982)), writ denied, 96-2822 (La. 4/18/97), 692 So.2d 446. Likewise, the

trial court did not discuss a greater amount of credible evidence on either side. In

failing to weigh the evidence introduced by both the defendant and the prosecution,

or reweigh the evidence as a thirteenth juror sitting as the trier of fact, the trial

court again applied the wrong standard for determining whether a new trial should

be granted. In so doing the trial court committed legal error and an abuse of

discretion. Accordingly, the new trial should not have been granted.

IV.

CONCLUSION

Based upon the foregoing, we reverse the trial court’s ruling granting

the defendant’s motion for a new trial. We remand this case to the trial court for

the sentencing of Mr. Bourg according to the jury’s verdict of manslaughter under

La.R.S. 14:31.

WRIT GRANTED; ORDER GRANTING NEW TRIAL

REVERSED; REMANDED TO TRIAL COURT FOR SENTENCING.

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