STATE v. FUXAN (2025)

Defendant, Cade Fuxan, appeals his conviction for second degree murder in violation of La. R.S. 14:30.1. For the reasons that follow, we affirm defendant's conviction and sentence.

PROCEDURAL BACKGROUND

On October 27, 2022, a Jefferson Parish Grand Jury returned an indictment charging defendant with second degree murder in violation of La. R.S. 14:30.1. Defendant pled not guilty at his arraignment on November 2, 2022. On January 29, 2024, the State filed a notice of intent to introduce res gestae evidence, asserting that it was giving notice of its intent to introduce evidence of defendant's behavior leading up to the victim's murder on June 1, 2022. Following a hearing, the trial court granted the State's notice of intent to introduce a note written by defendant in October 2021 and denied the State's notice of intent to introduce evidence of a domestic violence incident that occurred in March 2021. The case then proceeded to trial before a twelve-person jury. On February 1, 2024, the jury found defendant guilty as charged.

On March 12, 2024, defense counsel filed a Motion for Post-Verdict Judgment of Acquittal, a Motion for New Trial, and a Motion in Arrest of Judgment. The trial court denied all three post-trial motions on March 13, 2024. On the same date, the trial court sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On March 19, 2024, defense counsel filed a Motion to Reconsider Sentence and a Motion for Appeal. The Motion to Reconsider Sentence was denied on March 20, 2024, and the Motion for Appeal was granted on that same date.¹

FACTS

On June 1, 2022, Officer Shane Hollis of the Kenner Police Department responded to a call regarding a shooting at the Sugar Mill Apartments at 4520 Williams Boulevard.² Officer Hollis believed that the caller said his roommate attacked him, so he shot him. Officer Hollis, joined by Sergeant Donald Herrmann and Officer Christopher LeMon, walked up the stairs of building N to the third floor. There, they saw a man later identified as defendant, Cade Fuxan, standing on the landing. Defendant told them that he was on the phone with police dispatch. Sergeant Herrmann then spoke to the 9-1-1 operator and hung up the phone.

Officer Hollis and Officer LeMon went into the apartment and saw the victim, who was later identified as James Parker, lying in the hallway. Five shell casings were in the immediate area of Mr. Parker. Officer Hollis observed that Mr. Parker had sustained gunshot wounds, was bleeding, and did not seem to be breathing. EMS later came to the scene and pronounced Mr. Parker dead. Officer Hollis saw signs of a struggle in one of the bedrooms and pointed out that the room was “pretty much destroyed.”³ He testified that they located a pistol on the bed in the rear bedroom.⁴ Detective Aaron Savoie testified that the pistol was a Ruger EC9S 9 mm. An Academy sales receipt dated May 27, 2022 for the Ruger was found inside the apartment. Defendant's name was on the receipt, as well as a serial number that matched the serial number on the gun found on the bed.⁵

While the officers were inside the apartment, Sergeant Herrmann stood outside and asked defendant what happened. Sergeant Herrmann recalled defendant telling him that his roommate attacked him with a hammer ⁶ and he shot him. He recalled that defendant appeared to be in shock. Sergeant Herrmann subsequently advised defendant of his rights. Officer Hollis averred that they detained defendant, seized his cell phone, and placed him in handcuffs. He was transported to the Kenner Police Department.

At the police station, defendant was photographed by a crime scene technician, who documented defendant's injuries. Detective Brad Ricke provided that defendant had scratches on his neck, face, chest, arms, shoulder area, and back. He also had a black eye, an injury to one hand, and scratches on the other hand. Detective Ricke told defendant he was not under arrest, and he advised him of his rights again. He asserted that defendant understood his rights, waived them, and gave a recorded statement.

In his statement given on the night of June 1, 2022, defendant said that he knocked on the door of Mr. Parker's bedroom that night to give him his mail and to give the cat his medicine. When he stepped inside, Mr. Parker started punching him, after which they fell on the desk. Defendant recalled that Mr. Parker stuck his fingers in his eye sockets. Defendant then ran out the bedroom door, and Mr. Parker ran after him. Defendant pointed a gun at Mr. Parker and told him to stop. Mr. Parker kept coming, so defendant shot him. Defendant asserted that after the first shot, Mr. Parker kept coming at him. After the second and third shots, he heard Mr. Parker grunt and saw him fold. Defendant said that he was standing in front of the sofa and did not really move the whole time. When asked why the five casings were found on both sides of Mr. Parker's body, defendant said that he may have closed the distance. He stated that he may have been walking towards Mr. Parker at some point, but he did not remember. Defendant did not think that he stood over Mr. Parker and fired; however, he said that if that was where the casings were located, he supposed he did so. Defendant stated that Mr. Parker did not have a hammer and he never told anyone that Mr. Parker did.

Defendant also said that he put the gun in his pocket at approximately 7:30 p.m. that night for self-protection since Mr. Parker had beaten him up badly two or three days prior. He recalled that in the prior incident, he overheard Mr. Parker saying something on the phone about a middle class “white boy” and two guardian angels. Defendant also recalled Mr. Parker telling that person to “set it up.” Defendant stated that a lot of his injuries were from that previous fight, which Mr. Parker apologized for.⁷

Detective Ricke recalled that he also interviewed defendant's girlfriend, Terryniqca Lowery. Ms. Lowery testified at trial that Mr. Parker and Robert Johnson were her brothers. In December 2020, the three of them moved into the Sugar Mill Apartments where they lived with defendant. At that time, defendant got along with her siblings. At some point, the relationship between defendant and Mr. Parker changed. She observed Mr. Parker treating defendant differently than before and stated that it bothered defendant that Mr. Parker ignored him.

Ms. Lowery recalled an incident in October 2021 where some items were taken out of Mr. Parker's room. She explained that Mr. Parker forwarded to her a picture of a note that defendant had sent to him. The note stated that Mr. Parker owed defendant money, Mr. Parker's missing belongings were a security deposit, and defendant would return Mr. Parker's belongings when a deposit was made to defendant's account. Additionally, the note stated that if Mr. Parker entered defendant's room and took the confiscated items or tampered with his belongings, the situation would escalate and it would “be ugly.” When Ms. Lowery got home from work, she found Mr. Parker's belongings in her and defendant's bedroom and gave them back to Mr. Parker. She later told defendant that taking Mr. Parker's belongings was not right, after which defendant calmed down. Ms. Lowery testified that the note caused the relationship between defendant and Mr. Parker to deteriorate.

Ms. Lowery testified that in May 2022, defendant bought a gun at Academy for protection. He kept it in their closet on the floor and did not carry it around. Ms. Lowery averred that on the night of May 30, 2022, another incident occurred at the apartment. Defendant went into Mr. Parker's room and returned with a note from Mr. Parker telling defendant not to touch his belongings. Defendant then put the note back in Mr. Parker's room. Ms. Lowery provided that when Mr. Parker came home, he got upset because defendant had written something on the note like “come f*cking find out.”

Ms. Lowery and defendant could hear Mr. Parker talking loudly about defendant. She recalled that Mr. Parker was upset, and he may have been talking to someone else about his anger. Mr. Parker talked about “doing something to a middle class white boy.” Ms. Lowery averred that defendant became alarmed, knocked on Mr. Parker's door, and screamed at Mr. Parker. Mr. Parker opened the door and punched defendant. Defendant and Mr. Parker subsequently started fist fighting in the hallway by Mr. Parker's door. She recalled that they threw punches and ended up on the ground in the living room. Ms. Lowery got between them to stop the fight. After the fight eventually stopped, Mr. Parker went to his room.

Ms. Lowery testified that defendant had bruises all over his face and that there was blood in the apartment. She called defendant's parents, and they came and picked up defendant. She also called Mr. Johnson. Mr. Johnson and Lauren Chisholm, Ms. Lowery's best friend, then came over. She stated that Mr. Parker was sad, crying, and upset that the fight happened. She recalled that Mr. Parker was not bleeding. Ms. Lowery identified text messages between her and defendant that were sent after she talked to Mr. Parker. Therein, defendant asked if Mr. Parker had left. She told defendant that everyone was there and Mr. Parker would apologize and leave.

Ms. Lowery testified that defendant came back to the apartment later that night. The next day, Mr. Parker apologized to defendant for what had happened. Defendant did not really say anything to Mr. Parker in response. Ms. Lowery stated that defendant was very upset about how he had lost the fight. Later that night, defendant took his gun and went to the nearby lake to test it. When defendant returned, they went to bed.

The next morning, she awakened and saw defendant, who was mad, throwing fists in the air and being aggressive with the doors. Ms. Lowery saw defendant at lunchtime, and he was still upset about the fight. While she was at work later that night, she became concerned when she saw on her Life360 app that defendant had left the apartment and was at the Kenner Police Department. She tried calling defendant and Mr. Parker, but they did not answer. Ms. Lowery, Mr. Johnson, and Ms. Chisholm then went to the apartment complex where they saw a lot of police cars and learned that Mr. Parker had died.

Mr. Johnson testified that at some point, tensions began rising between his brother and defendant. On May 30, 2022, his sister called him to come home because his brother and defendant were fighting. When he went inside the apartment, he saw blood on the wall and his and his brother's belongings everywhere. Mr. Johnson explained that his brother was upset and started crying. He remembered exchanging text messages with defendant that night and defendant telling him that his pride was hurt. On the next day, his brother apologized to defendant, and defendant did not say anything. Mr. Johnson knew that defendant had a firearm in the house. He did not recall seeing defendant carry the gun. He denied that he or his brother had any guns in the house.

Ms. Chisholm testified that Ms. Lowery was her best friend. She described Mr. Parker as a quiet person. On May 30, 2022, she was at work when she heard about the fight between Mr. Parker and defendant. She went to the apartment where she saw blood on the wall. She explained that Mr. Parker was upset, pointing out that his eyes were red and he was crying. Ms. Lowery showed her a note that night that said, “f*uck around and find out.” Ms. Chisholm did not see defendant that night. On June 1, 2022, Ms. Chisholm saw Mr. Parker while they were working at Home Depot. Mr. Parker did not tell her about the fight, and he seemed normal. Ms. Chisholm acknowledged that after Mr. Parker's death, she gave a statement. She denied that Mr. Parker had anger issues or that she told the police he had anger issues. Ms. Chisholm testified that Ms. Lowery and Mr. Johnson did not tell her that Mr. Parker had anger issues or that he “would go off about anything.”

Adriana Washington, an expert in the field of forensic DNA analysis, testified that she found defendant's DNA under the fingernails of Mr. Parker and that indicated defendant may have been scratched by Mr. Parker.

Dr. Dana Troxclair, a forensic pathologist at the Jefferson Parish Coroner's Office and an expert in the field of forensic pathology, conducted the autopsy of Mr. Parker on June 2, 2022.⁸ She stated that Mr. Parker sustained seven gunshot wounds ⁹ and blunt force injuries to his face. She testified that he had a “defense-type” wound on his right hand. She recovered two projectiles during the autopsy. Dr. Troxclair testified that the cause of death was multiple gunshot wounds and the manner of death was homicide. She asserted that the gunshots came from more than one direction, so there was evidence of movement. She could not tell what position Mr. Parker was in when he was shot. Dr. Troxclair did testify that as to the wound to Mr. Parker's head, it was not possible for Mr. Parker and defendant to be facing each other when the wound was created. However, she indicated that the wound could have been sustained if the victim was bent over or on the floor. She also testified that eye gouging could cause blindness.

Timothy Scanlan testified as an expert in the field of crime scene reconstruction and as an expert in the field of firearm and toolmark examination. He formerly worked for the Jefferson Parish Sheriff's Office as the deputy chief of the Technical Services Bureau. Dr. Scanlan testified that there was mobile and stationary gunfire at or near the hallway in the instant case. He could not tell where the shooter was standing at any given moment. The evidence showed there was multi-distant and multi-directional gunfire. He explained that the evidence was not consistent with defendant's claim that he stood in front of the sofa the whole time. Dr. Scanlan indicated that defendant standing over the victim and firing would be consistent with his crime scene reconstruction and the location of the casings. He testified that a backward motion of the shooter was as consistent as a forward motion. He provided that there were five shots fired, two re-entry wounds, and four bullets recovered (two from the crime scene and two from the autopsy).

After the State rested its case, defendant testified. Defendant graduated from Jesuit High School where he was the captain of the swim team, after which he studied mechanical engineering at LSU and UNO.¹⁰ In December 2020, he moved into the apartment with his girlfriend, Ms. Lowery, and her two brothers, Mr. Parker and Mr. Johnson. On May 30, 2022, he heard Mr. Parker on the phone in a very angry tone referencing “gangster stuff” and “set it up.” He did not know who defendant was talking to. He also heard Mr. Parker reference a “middle class white boy” with two guardian angels. He said he heard Mr. Parker say “he better keep his mouth shut.” Defendant stated that Mr. Parker opened the door and hit him. He recalled Mr. Parker accusing him of cutting off his Internet.

Defendant testified Mr. Parker “blitzed” him with everything he had and that it was very fast with a flurry of activity and fists. Mr. Parker bit his hands and tried to poke at his eyes. He recalled that Ms. Lowery got Mr. Parker off of him. He then went into the bathroom. He checked his face and cleaned up the blood in the sink and in the bathroom. When he left the bathroom, Mr. Parker was still pointing, yelling, and cursing. Ms. Lowery got between them, but Mr. Parker reached around her and began to beat him again. Defendant lost his balance and fell sideways and backwards; Mr. Parker continued to beat him. He stated that he started to see black and nearly lost consciousness. Ms. Lowery pulled Mr. Parker off of him again.

Defendant stated that he went to his parent's house afterwards and washed all the blood off in the bathroom. His body was in extreme pain, but he did not go to the hospital or the doctor that night. He testified that he later told Detective Ricke that he had gotten his “ass kicked.” Defendant further testified that the Jefferson Parish Correctional Center would not admit him due to his injuries, so they transported him to the hospital. He believed the hospital personnel ran tests, including an MRI scan.

Defendant testified that before that fight, he had saved money for a gun. He purchased the gun at Academy, where Ms. Lowery worked, a few days prior to that fight. Defendant explained that he completed the application approximately one week prior and the gun purchase had nothing to do with Mr. Parker. He stated that he bought the gun to protect himself and everyone who lived in the apartment.

On June 1, 2022, he knocked on Mr. Parker's bedroom door. When Mr. Parker opened the door, defendant gave Mr. Parker two pieces of mail and asked if he could look for the cat to give her medication. Defendant asserted that Mr. Parker began hitting him with his fists in his head and beating him. Mr. Parker also gouged him in the eyes, digging his fingers into defendant's eye sockets. They fought on the desk. Then defendant pushed off of Mr. Parker and ran out of the bedroom. Mr. Parker chased him into the hallway. Defendant showed Mr. Parker the gun and begged him multiple times to stop. Mr. Parker kept coming, and defendant fired the gun. Defendant pointed out that Mr. Parker continued to run at him even after he fired.

Defendant stated that he did not recall firing the gun five times, he was not certain where he was when he fired the shots, and he was panicked, scared, and shaking. He maintained that he did not intend to kill Mr. Parker and only fired the gun until he was sure that he was not going to be hurt anymore. Defendant testified that he called 9-1-1 thereafter, but did not tell them he was attacked with a hammer. With respect to the hammer, he explained that he was pursuing an AC career. His course indicated he needed to know where the studs were to install thermostats, and he was using the hammer that day to practice by tapping the walls looking for the studs.

Defendant testified that when the police arrived at the apartment, he followed their instructions. He later gave a statement, but did not have a clear recollection of what had happened. Defendant pointed out that he told the police that he wanted to cooperate, but he did not think that night was the best time to give a statement because he was not in a good state of mind. At the time of his statement, he was in a haze and in a state of deep distress. He testified that Detective Ricke led a lot of the questioning and he had trouble remembering the details of the incident as to where he was standing at the time of the shooting.

Defendant asserted that he was subsequently arrested, after which he was transported to the hospital due to his injuries, which included marks under his eyes caused by Mr. Parker's nails. He averred that during the fight just prior to the shooting, when Mr. Parker tried to pry out his eyeballs, he felt panicked, trapped, and miserable, and like he could not breathe.

Defendant testified that at some point prior to the instant offense, he entered Mr. Parker's bedroom and took his property because Mr. Parker owed him money. With respect to the fight on May 30, 2022, he left a note in Mr. Parker's bedroom stating, “f*ck around and find out.” Defendant averred that Mr. Parker apologized to him after that fight. He testified that he was scared of Mr. Parker.

LAW AND ANALYSIS

On appeal, defendant's appellate counsel raises the following assignments of error:

1. The verdict of guilty of second degree murder is contrary to the law and the evidence.

2. The trial court erred in the denial of the Motion for New Trial.

3. The trial court erred in the denial of the Motion for Post-Verdict Judgment of Acquittal.

4. Defendant was denied the opportunity to present a complete defense at trial.

5. The verdict is contrary to the law and the evidence (manslaughter) (negligent homicide).

Defendant filed a pro se supplemental brief, asserting the following assignments of error:

1. The trial judge erred, under La. C.Cr.P. art. 821, in failing to grant the Motion for Post-Verdict Judgment of Acquittal.

2. The trial judge erred, under La. C.Cr.P. art. 851, in failing to grant the Motion for New Trial.

3. The trial judge erred, under La. C.Cr.P. art. 859, in failing to grant the Motion for Arrest of Judgment.

4. Defendant was denied the opportunity to present a complete defense at trial, violating his 6th Amendment rights from the U.S. Constitution and his Article I, Section 16 rights from the La. Constitution of 1974.

5. Defendant was denied due process and a fair trial in violation of the 14th Amendment to the U.S. Constitution and the La. Constitution of 1974 under Article I, Section 2.

COUNSELED ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, THREE, AND FIVE

PRO SE ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

Proof of self-defense and sufficiency of the evidence as to the second degree murder conviction

Defendant's appellate counsel and defendant in his pro se supplemental brief argue that the State failed to prove beyond a reasonable doubt that defendant did not act in self-defense. They contend that defendant's subjective belief that he was in danger of death or great bodily harm was reasonable and supported by the evidence. They assert that Mr. Parker severely beat defendant two days before the shooting, including gouging defendant's eyes. Defendant argues that at the time of the shooting, he only fired his weapon to stop Mr. Parker from further beating him. Defendant's appellate counsel avers that Dr. Scanlan's testimony and report, Dr. Troxclair's testimony, and the evidence at the crime scene failed to support the assertion that defendant was standing over Mr. Parker and shooting him. Defendant's appellate counsel and defendant argue that the evidence was insufficient to support defendant's conviction of second degree murder and the trial court erred by denying the Motion for Post-Verdict Judgment of Acquittal and the Motion for New Trial. Alternatively, defendant's appellate counsel argues that the evidence only supported convictions of either manslaughter or negligent homicide.

On March 12, 2024, defense counsel filed a Motion for Post-Verdict Judgment of Acquittal, a Motion for New Trial,¹¹ and a Motion in Arrest of Judgment, arguing that the evidence was insufficient to support the conviction, among other things. Those post-trial motions were denied the next day. The question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821. State v. Nguyen, 22-286 (La. App. 5 Cir. 2/27/23), 359 So.3d 108, 118.

Pursuant to La. C.Cr.P. art. 851, a motion for a 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. State v. Paul, 15-501 (La. App. 5 Cir. 1/27/16), 185 So.3d 188, 198. When a motion for a new trial is based on the verdict being contrary to the law and the evidence, there is nothing for review on appeal. State v. Lloyd, 21-645 (La. App. 5 Cir. 8/24/22), 348 So.3d 222, 231, writ denied, 22-1354 (La. 11/22/22), 350 So.3d 499. However, both the Louisiana Supreme Court and this Court have addressed the constitutional issue of sufficiency of the evidence under this circumstance. State v. Leach, 22-194 (La. App. 5 Cir. 12/28/22), 356 So.3d 531, 541.

In reviewing sufficiency of the evidence, an appellate court must determine if the evidence, whether direct or circumstantial, or a mixture of both, 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310 So.3d 794, 804.

The directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact's rational credibility calls, evidence weighing, and inference drawing. State v. Aguilar, 23-34 (La. App. 5 Cir. 11/15/23), 376 So.3d 1105, 1108. The resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Lavigne, 22-282 (La. App. 5 Cir. 5/24/23), 365 So.3d 919, 940, writ not considered, 23-1119 (La. 10/10/23), 370 So.3d 1086. It is not the function of the appellate court to assess credibility or re-weigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442, 443. In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Sly, 23-60 (La. App. 5 Cir. 11/2/23), 376 So.3d 1047, 1072, writ denied, 23-1588 (La. 4/23/24), 383 So.3d 608.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Gatson, 21-156 (La. App. 5 Cir. 12/29/21), 334 So.3d 1021, 1034. When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Woods, 23-41 (La. App. 5 Cir. 11/15/23), 376 So.3d 1144, 1155, writ denied, 23-1615 (La. 5/29/24), 385 So.3d 700. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

Defendant was convicted of second degree murder in violation of La. R.S. 14:30.1, which is defined in pertinent part as the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. Specific criminal intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances surrounding the offense and the defendant's conduct. State v. Lopez, 23-335 (La. App. 5 Cir. 8/21/24), 398 So.3d 167, 181, writ denied, 24-1187 (La. 1/14/25), 398 So.3d 650. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person, as well as the extent and severity of the victim's injuries. State v. Bannister, 11-602 (La. App. 5 Cir. 2/14/12), 88 So.3d 628, 634, writ denied, 12-628 (La. 6/15/12), 90 So.3d 1060. Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Spears, 05-964 (La. 4/4/06), 929 So.2d 1219, 1224. Nevertheless, in the instant case, defendant argues that the State failed to disprove that the shooting was in self-defense.

When self-defense is claimed by the defendant in a homicide case, the State has the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Patterson, 10-415 (La. App. 5 Cir. 1/11/11), 63 So.3d 140, 148, writ denied, 11-338 (La. 6/17/11), 63 So.3d 1037. The fact that an offender's conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. La. R.S. 14:18; Sly, 376 So.3d at 1073. A homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” La. R.S. 14:20(A)(1). A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force and may stand his or her ground and meet force with force. La. R.S. 14:20(C).

It is well established that the aggressor or the person who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. See La. R.S. 14:21; Leach, 356 So.3d at 544. In addition, while there is no unqualified duty to retreat, the possibility of escape from an altercation is a recognized factor in determining whether the defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. Martin, 20-141 (La. App. 5 Cir. 4/28/21), 347 So.3d 1061, 1068, writ denied, 21-803 (La. 10/1/21), 324 So.3d 1054.

Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary include the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant's knowledge of the assailant's bad character. Lavigne, 365 So.3d at 941. The jury is the ultimate fact-finder in determining whether the State negated self-defense beyond a reasonable doubt. Sly, 376 So.3d at 1074.

In the instant case, in December 2020, defendant, Ms. Lowery, Mr. Parker, and Mr. Johnson moved into an apartment where they lived together. The evidence shows that the relationship between Mr. Parker and defendant deteriorated over time. Mr. Parker would not speak to defendant, and defendant was bothered by it. In October 2021, defendant took some of Mr. Parker's belongings. He left a note for Mr. Parker telling him that if he did not pay defendant the money he owed him or tried to take back his own belongings, the situation would escalate and get “ugly.” On May 27, 2022, defendant purchased a gun for protection.

On the night of May 30, 2022, defendant went into Mr. Parker's room and returned with a note from Mr. Parker stating that his belongings should not be touched. Defendant put the note back in Mr. Parker's room after writing on it, “f*ck around and find out.” When Mr. Parker returned home and saw the note, he became upset. Ms. Lowery and defendant thereafter heard Mr. Parker talking loudly and angrily on the phone in his bedroom about “a middle class white boy” with guardian angels and saying “set it up.” Defendant became alarmed and approached Mr. Parker's door, after which Mr. Parker opened the door and punched defendant. Defendant explained that Mr. Parker beat him badly, causing several injuries, including a black eye.

Mr. Parker later apologized to defendant by text and in person, saying that he would leave the apartment, but would still pay rent if his siblings could stay. Defendant declined, stating that they could work things out. Ms. Lowery recalled that defendant was still angry about losing the fight. Later that night, defendant took his gun and went to the nearby lake to test it. On June 1, 2022, defendant was still angry, punching the air with his fists and acting aggressively. Later that night, defendant fatally shot Mr. Parker five times causing seven wounds. There were no eyewitnesses to the shooting.

In his statement and in his trial testimony, defendant asserted that he put his gun in his pocket that night, at approximately 7:30 p.m., for self-protection since Mr. Parker had beaten him badly two or three days prior. He asserted that he knocked on the door of Mr. Parker's bedroom that night to give him his mail and to give the cat his medicine. When he stepped inside, Mr. Parker started punching him, after which they fought. Defendant did not explain what started the fight. He averred that he ran out of the bedroom, Mr. Parker ran after him, and he pointed a gun at Mr. Parker and told him multiple times to stop. Mr. Parker kept coming at him, so he shot him.

Defendant asserted that after the first shot, Mr. Parker kept coming at him. After the second and third shots, he heard Mr. Parker grunt and saw him fold. Initially defendant said he never moved the whole time, but when told about the location of the five casings, he stated that he may have closed the distance. He did not think that he stood over Mr. Parker and fired; however, he said that if that was where the casings were located, he supposed he did so. At trial, defendant testified that at the time of his statement, he had trouble remembering the details of the incident and where he was standing at the time of the shooting. He stated that he was in a haze, in a state of deep distress, and did not have a clear recollection of events. Sergeant Herrmann recalled that when he arrived at the scene, defendant seemed to be in shock.

Dr. Scanlan testified that there was mobile and stationary gunfire at or near the hallway, he could not tell where the shooter was standing at any given moment, and there was multi-distant and multi-directional gunfire. However, Dr. Scanlan indicated that defendant standing over the victim and firing would be consistent with his crime scene reconstruction. Dr. Troxclair testified that based on the shot to the back of Mr. Parker's head, defendant and Mr. Parker were not facing each other when that wound was sustained. However, she indicated that wound could have been sustained if the victim was bent over or on the floor.

The jury heard the witnesses’ testimony, found the State's witnesses credible, and rejected defendant's version of events that he killed Mr. Parker in self-defense. The resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Lavigne, supra.

Viewing the evidence in the light most favorable to the prosecution, we find that a rational juror could have found that defendant did not reasonably believe that he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary to save himself from that danger. Thus, we find that the State provided sufficient evidence under the Jackson standard for the jury to find that it proved beyond a reasonable doubt that defendant did not kill Mr. Parker in self-defense and that defendant committed second degree murder.

The evidence shows that at the time of the shooting, there was tension between Mr. Parker and defendant that had been going on for months. Defendant left a threatening note for Mr. Parker on May 30, 2022, two days prior to the shooting. Defendant was still angry that he had lost the fight with Mr. Parker on May 30, 2022. If defendant feared Mr. Parker, he could have stayed away from the apartment or allowed Mr. Parker to leave when he offered. Instead, defendant armed himself before going into Mr. Parker's room on June 1, 2022 and shot Mr. Parker five times—including once in the back of the head. Mr. Parker was not armed with a weapon, and defendant stated that Mr. Parker did not threaten him with the hammer. Mr. Parker had a defensive-type wound on his right hand. Defendant agreed that a lot of his injuries were from the prior fight on May 30. We find that defendant had the specific intent to kill when he pointed his gun and fired at Mr. Parker, causing his death.

Lesser verdict of manslaughter

Defendant's counsel argues alternatively that he should have been convicted of manslaughter rather than second degree murder. The offense of manslaughter is defined as a homicide that would be first or second degree murder, 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. La. R.S. 14:31; State v. Monterroso, 22-390 (La. App. 5 Cir. 4/26/23), 361 So.3d 1177, 1190, writ denied, 23-745 (La. 11/21/23), 373 So.3d 447.

Sudden passion and heat of blood distinguish manslaughter from murder, but they are not elements of the offense. Instead, they are mitigating factors that may reduce the grade of the offense. State v. Thompson, 18-273 (La. App. 5 Cir. 11/28/18), 259 So.3d 1257, 1266, writ denied, 18-2077 (La. 9/6/19), 278 So.3d 372. In order to be entitled to the lesser verdict of manslaughter, the defendant is required to prove the mitigatory factors by a preponderance of the evidence. State v. Burse, 19-381 (La. App. 5 Cir. 2/12/20), 289 So.3d 690, 696, writ denied, 20-650 (La. 11/24/20), 305 So.3d 104. Provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person, one with ordinary self-control. Id. An argument alone does not constitute sufficient provocation to reduce murder to manslaughter. Id. at 697. The question for this Court on review is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence. Id. at 696.

Physical threats or actions on the part of the victim have been found to be sufficient provocation. State v. Wright, 42,956 (La. App. 2 Cir. 3/5/08), 978 So.2d 1062, 1072, writ denied, 08-819 (La. 10/31/08), 994 So.2d 532. Even so, mere words or gestures, no matter how insulting, will not reduce a homicide from murder to manslaughter. Id. See also State v. Arias - Chavarria, 10-116 (La. App. 5 Cir. 9/28/10), 49 So.3d 426, 432, writ denied, 10-2432 (La. 2/25/11), 58 So.3d 460.

Here, we find that a rational trier of fact could have found that defendant was not entitled to the lesser verdict of manslaughter because he failed to prove the mitigatory factors of sudden passion or heat of blood by a preponderance of the evidence. At the time of the shooting, it appears that defendant was still angry about losing the fight with Mr. Parker two days prior. We find that two days was ample time for an ordinary person with self-control to cool off. See State v. Crochet, 96-1666 (La. App. 1 Cir. 5/9/97), 693 So.2d 1300, 1307, writ denied, 97-1547 (La. 11/21/97), 703 So.2d 1305. However, instead of cooling off, defendant test fired his gun the day before the murder and acted aggressively the morning of the murder.

We find that defendant's trial counsel failed to prove by a preponderance of the evidence that Mr. Parker provoked him just prior to the shooting. Defendant testified that he armed himself with a firearm and entered Mr. Parker's room to give him the mail and look for the cat. He indicated that Mr. Parker then started beating him without provocation. It is unclear what the two men said to each other or how the fight started, as there was only defendant's self-serving testimony to consider and no eyewitnesses, and defendant did not recall the details.

Additionally, there is no evidence that Mr. Parker was armed with a firearm or any other weapon at the time of the shooting. The testimony of Dr. Troxclair and her autopsy report indicate that one of the five gunshots entered into the back of the victim's head. (Compare State v. Sinceno, 12-118 (La. App. 5 Cir. 7/31/12), 99 So.3d 712, 721, writ denied sub nom. State ex rel. Sinceno v. State, 12-2024 (La. 1/25/13), 105 So.3d 713, where this Court pointed out that the victim was shot from behind, which showed that the defendant failed to prove necessary provocation by a preponderance of the evidence.) In light of the foregoing, we find that a rational trier of fact could have found that defendant was guilty of second degree murder and he was not entitled to the lesser verdict of manslaughter.

Lesser verdict of negligent homicide

Defendant's counsel argues alternatively that at best, the evidence was only sufficient to support a negligent homicide conviction. Negligent homicide is “the killing of a human being by criminal negligence.” La. R.S. 14:32(A)(1). “Criminal negligence exists when, although neither specific nor general criminal intent is present, 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 man under like circumstances.” La. R.S. 14:12.

After reviewing the record, the jury clearly believed the State's witnesses and found that the evidence established that defendant committed second degree murder, thereby rejecting the responsive verdict of negligent homicide, the responsive verdict of manslaughter, and defendant's claim of self-defense. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

Therefore, viewing the evidence in the light most favorable to the prosecution under the Jackson standard, we find that a rational trier of fact could have found that the evidence was sufficient to convict defendant of second degree murder. For these same reasons, we further find that the trial judge did not abuse his discretion by denying the Motion for Post-Verdict Judgment of Acquittal.¹² Accordingly, we find these assignments of error raised by defendant's appellate counsel and defendant are without merit.

COUNSELED ASSIGNMENT OF ERROR NUMBER FOUR

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

Opportunity to present a complete defense

Defendant's appellate counsel and defendant in his pro se supplemental brief argue that defendant was denied the opportunity to present a complete defense at trial. They assert that the trial court would not allow defendant to call Ms. Chisholm in his case-in-chief as a witness to show that Mr. Parker had prior anger issues as she had told the Kenner Police Department in her statement. Defendant's appellate counsel contends that defendant's trial counsel established an overt act by Mr. Parker. He argues that it was reversible error to exclude her testimony since it showed that defendant was aware of Mr. Parker's violent tendencies and bad character. Counsel further argues that for these same reasons, the trial court erred by denying his Motion for Post-Verdict Judgment of Acquittal and Motion for New Trial.

Both the Sixth Amendment to the United States Constitution, and Article I, § 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Lirette, 11-1167 (La. App. 5 Cir. 6/28/12), 102 So.3d 801, 813, writ denied, 12-1694 (La. 2/22/13), 108 So.3d 763. However, this right does not require a trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. Id. The trial court is afforded great discretion in evidentiary rulings, and absent a clear abuse of that discretion, rulings on admissibility of evidence will not be disturbed on appeal. State v. Gonzales, 21-685 (La. App. 5 Cir. 2/14/22), 2022 WL 533350.

La. C.E. art. 404 provides the law regarding the admissibility of character evidence and provides in pertinent part:

A. Character evidence generally. Evidence of a person's character or a trait of his character, such as a moral quality, is not admissible in a civil or criminal proceeding for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

* * *

(2) Character of victim. (a) Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible; provided further that when the accused pleads self-defense and there is a history of assaultive behavior between the victim and the accused and the accused lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt act on the part of the victim in order to introduce evidence of the dangerous character of the victim, including specific instances of conduct and domestic violence [.]

* * *

B. Other crimes, wrongs, or acts.

* * *

(2) In the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of the victim's prior threats against the accused or the accused's state of mind as to the victim's dangerous character is not admissible; provided that when the accused pleads self-defense and there is a history of assaultive behavior between the victim and the accused and the accused lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt act on the part of the victim in order to introduce evidence of the dangerous character of the victim, including specific instances of conduct and domestic violence; and further provided that an expert's opinion as to the effects of the prior assaultive acts on the accused's state of mind is admissible.

Evidence of a person's character generally is inadmissible to prove that the person acted in conformity with his or her character on a particular occasion. However, there are several specific exceptions to this general rule. State v. Rodrigue, 98-1558 (La. 4/13/99), 734 So.2d 608, 610-11. With respect to evidence of the dangerous character of the victim of a crime, such evidence is admissible (1) when the accused offers appreciable evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged,¹³ or (2) when the accused, relying on the defense of self-defense, establishes (a) a history of assaultive behavior between the victim and the accused, and (b) a familial or intimate relationship between the victim and the accused. Id. at 611.

A trial judge's determination that a defendant has not laid a sufficient evidentiary foundation upon which to introduce testimony concerning the victim's dangerous character will not be disturbed on appeal, absent a finding of clear error. State v. Colby, 51,907 (La. App. 2 Cir. 5/30/18), 244 So.3d 1260, 1279, writ denied, 18-1256 (La. 3/25/19), 267 So.3d 596. Nevertheless, the erroneous exclusion of evidence is subject to a harmless error review. Under that test, the question is whether there is a reasonable possibility that the admission or exclusion of certain evidence might have contributed to the conviction. Furthermore, the error must be harmless beyond a reasonable doubt. State v. Reed, 24-59 (La. App. 5 Cir. 12/30/24), 2024 WL 5244752, * at 16.

At trial, Mr. Johnson, the victim's brother, testified that Mr. Parker did not have anger issues. The State thereafter called Ms. Chisholm as a witness in its case-in-chief. During cross-examination by defense counsel, Ms. Chisholm testified that Mr. Parker did not have anger issues, Ms. Lowery and Mr. Johnson did not tell her that Mr. Parker had anger issues or that he “would go off” about anything, and she never told the police that he had anger issues. The State did not object to any of these questions about anger issues, and defense counsel did not try to impeach her with her prior inconsistent statement to the detectives.

Before the cross-examination of Detective Ricke, the prosecutor pointed out that defense counsel had asked Mr. Johnson and Ms. Chisholm questions regarding Mr. Parker's anger issues. He made an oral motion to prohibit questioning about anger issues, arguing that it was inadmissible character evidence of the victim prohibited by La. C.E. art. 404(A)(2). The trial judge refused to allow defense counsel to ask Detective Ricke any questions regarding anger issues of the victim. The trial judge subsequently explained that anger issues were completely different from a violent propensity or tendency, which may be admissible. He explained that someone can be angry but not violent.

Later, the trial judge told defense counsel he could request that Ms. Chisholm return to court; however, he stated that he had released her from her subpoena and was not going to delay the trial. Nevertheless, the trial judge subsequently ruled he was not going to allow defense counsel to call Ms. Chisholm. He pointed out that defendant had just testified for several hours and never said he had knowledge of any kind of dangerous nature of Mr. Parker. The trial judge maintained that he would not allow any further testimony with regard to that issue. He reiterated that defense counsel had the opportunity to impeach Ms. Chisholm when she was on the stand and chose not to. The trial judge subsequently allowed defense counsel to proffer the testimony.

Defense counsel thereafter proffered the portion of Ms. Chisholm's testimony where she stated that she was not aware of Mr. Parker's anger issues namely. He also proffered pages seven and eight of her thirteen-page statement that she gave to the two Kenner Police Department detectives. Defense counsel pointed out that in her statement to the detectives, Ms. Chisholm answered “yes” when asked, “Did you say something about James had some anger issues?” He further pointed out that Ms. Chisholm also told the detectives, “Till that night it was like why, why is this even happening, it was just like because he got anger issues. They like you don't really know him, but like any little thing, it will be something little, he just gonna go off [sic].” The State requested that defense counsel put the entire transcript into evidence, and he agreed.

Following defendant's conviction, defense counsel filed post-trial motions, arguing, among other things, that the trial court erred by denying his request to call the police officers who took Ms. Chisholm's statement so they could testify that Ms. Chisholm had admitted Mr. Parker had anger issues. The trial judge denied the motions.

Upon review, we find that the trial judge did not err by refusing to allow Ms. Chisholm to be re-called. Nevertheless, even if erroneous, we find that the error was harmless beyond a reasonable doubt. We do not find that there is a reasonable possibility that the admission or exclusion of this certain evidence might have contributed to the conviction. See Reed, supra, 2024 WL 5244752, * at 16. Any evidence of the victim's anger issues, dangerous character, and/or violent propensities was presented to the jury in the form of testimony and photographs. Defendant and Ms. Lowery testified that two days prior to the shooting, they heard Mr. Parker speaking in a loud and angry tone and making threatening remarks indicating his possible intent to harm defendant and his parents. Additionally, both the photographs and the testimony established that defendant was severely beaten by Mr. Parker, causing him a black eye, as well as numerous scratches and marks on his face and body. Therefore, if any error existed in the trial judge refusing to allow Ms. Chisholm to testify again, such error was harmless. Consequently, this assignment does not have merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

Insufficient indictment

In his pro se supplemental brief, defendant argues that the indictment was insufficient to initiate a prosecution and this error was patent on the face of the record. He argues that under La. C.Cr.P. art. 859(1) and (3), his grand jury indictment lacked an essential averment. Defendant asserts that the State did not use any language in the indictment that implied any specific intent to kill or cause great bodily harm. He also asserts that since the State had not sufficiently alleged a violation of a statute, the 24th Judicial District Court was without jurisdiction. Defendant suggests that he was not sufficiently informed of the nature of the charges.

In his Motion in Arrest of Judgment, defendant argued that the verdict was not responsive to the indictment or was otherwise so defective that it would not form the basis of a valid judgment, citing to La. C.Cr.P. art. 859.

Article I, § 13 of the Louisiana Constitution requires that an indictment inform a defendant of the nature and cause of the accusation against him. State v. Chairs, 12-363 (La. App. 5 Cir. 12/27/12), 106 So.3d 1232, 1240, writ denied sub nom. State ex rel. Chairs v. State, 13-306 (La. 6/21/13), 118 So.3d 413. This requirement is implemented by La. C.Cr.P. art. 464, which provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

La. C.Cr.P. art. 465 authorizes the use of specific short form indictments in charging certain offenses, including second degree murder. La. C.Cr.P. art. 465(A)(32) provides the short form indictment for second degree murder: “A.B. committed second degree murder of C.D.” Both the Louisiana Supreme Court and this Court have consistently upheld the constitutionality of this short form. State v. Draughn, 05-1825 (La. 1/17/07), 950 So.2d 583, 624, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Kyles, 16-295 (La. App. 5 Cir. 12/7/16), 233 So.3d 150, 159.

In the instant case, the indictment complied with the short form set forth in La. C.Cr.P. art. 465(A)(32), as it provided that on or about June 1, 2022, defendant violated La. R.S. 14:30.1, in that he “did commit the second degree murder of James Parker, by discharging a firearm.” Moreover, when a short form indictment is used, it is intended that the defendant use a bill of particulars to procure details as to the statutory method by which he committed the offense. State v. Green, 19-123 (La. App. 5 Cir. 12/26/19), 286 So.3d 1230, 1242, writ denied, 21-51 (La. 3/9/21), 312 So.3d 583, cert. denied, -- U.S. --, 142 S.Ct. 206, 211 L.Ed.2d 88 (2021). Here, the record does not reflect that defendant's trial counsel filed a bill of particulars to obtain the information that defendant contends he and his counsel did not know.

In light of the foregoing, we find that the indictment was sufficient to institute prosecution, and the trial court did not err by denying the Motion in Arrest of Judgment. As such, the argument raised by defendant in this assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FIVE

Res gestae evidence

In this assignment, defendant argues that the trial court's granting of the State's notice of intent to introduce evidence of res gestae denied him a fair trial. Specifically, defendant argues that a note he wrote Mr. Parker approximately eight months before the homicide was inadmissible character evidence that should not have been admitted at trial. He further argues that the trial court erred by denying the defense a continuance to prepare for this evidence, which was only disclosed to them less than forty-eight hours before the trial.

On January 29, 2024, the State filed a notice of intent to introduce res gestae evidence, asserting that it was giving notice of its intent to introduce evidence of defendant's behavior leading up to Mr. Parker's murder on June 1, 2022. The State asserted that Ms. Lowery, defendant's girlfriend, recounted an incident where defendant was drunk and pushed her against the wall. Mr. Johnson and Mr. Parker intervened and tackled defendant to the ground, where they held defendant until his parents arrived. After this incident, defendant remained upset with Mr. Parker and Mr. Johnson, and Mr. Parker began largely ignoring defendant. The State averred that at one point, Mr. Parker owed defendant and Ms. Lowery money, so defendant went into the Mr. Parker's room, took his personal belongings, and left a note that basically said not to take back the confiscated items or the situation would escalate and “be ugly.” The tension continued, and on May 30, 2022, Mr. Parker left a note on his desk warning defendant not to touch his property. Defendant wrote a sarcastic reply. When Mr. Parker returned home and saw the reply, he loudly expressed his frustration with defendant. He and defendant then got into a physical fight, with defendant sustaining greater injuries. The State asserted that this agitation led defendant to confront Mr. Parker on June 1, 2022, resulting in defendant shooting and killing him. The State submitted that this evidence was admissible as res gestae so it could explain the relationship between Mr. Parker and defendant and the tension that escalated between them.

On January 29, 2024, a hearing was held on the State's motion. The prosecutor argued that the evidence in question was res gestae, and therefore, notice was not required; however, he stated that he wanted to obtain a ruling to avoid any issues during trial. Defense counsel responded that he had just learned that the State wanted to introduce this evidence, pointing out that they were late in discovery. He asserted that he had not had the opportunity to investigate this evidence and the trial court could exclude the evidence or grant a continuance. He argued that this was not res gestae evidence, but rather character evidence, which was not allowed.

The prosecutor responded that they had received a photograph of one of the notes over the weekend, but that the actual incidents were referenced in the original witness statements taken by the Kenner police. Defense counsel replied that there was no notice that the State was going to introduce a domestic violence charge as “404(B)” evidence. He asked the trial judge to grant him time to defend this evidence if he was going to admit it. The prosecutor further explained that in the note, defendant told Mr. Parker that Mr. Parker owed him money, defendant was taking some of Mr. Parker's property, and if Mr. Parker tried to confiscate the property, the situation would escalate and get ugly. The prosecutor argued that the note caused tension between defendant and Mr. Parker. He further argued that the note, along with defendant's shoving of Ms. Lowery, resulted in Mr. Parker not speaking to defendant and ignoring him, which escalated into the fight two days before the homicide.

The prosecutor averred that the note was not dated, but the photograph of the note was and Ms. Lowery would testify that she took the photograph near the time she discovered it, which was on October 16, 2021. Defense counsel responded that the October 2021 note was written about eight-and-a-half months before the homicide and this was stretching the concept of res gestae.

The trial judge set the matter for a Prieur ¹⁴ hearing later that day. The prosecutor called Ms. Lowery as a witness at the hearing. Her testimony at the hearing was similar to her trial testimony. Ms. Lowery explained that in December 2020, she, Mr. Parker, Mr. Johnson, and defendant moved into the apartment. Three months later, in March 2021, she and defendant got into an argument in the hallway where she told him he needed to slow down his drinking. He got angry, put his hands on her shoulders, and pushed her. Ms. Lowery recalled that Mr. Parker and Mr. Johnson saw defendant push her and ran into the hall. They pushed defendant off of her all the way back to the living room, laid defendant on the ground, and told him he could not do that to their sister. She testified that after that incident, the relationship between the Mr. Parker and defendant fell apart, and they did not talk or spend time together anymore. Ms. Lowery asserted that defendant held a grudge against Mr. Parker; he was “upset how they slapped him on the ground.”

Ms. Lowery discussed the October 16, 2021 note from defendant to Mr. Parker that was admitted at the hearing. She also discussed the note that Mr. Parker wrote two days before the homicide saying not to touch his belongings and how defendant wrote something on the note that made Mr. Parker angry. Ms. Lowery testified that she and defendant heard Mr. Parker talking (after the second note was found). Defendant knocked on Mr. Parker's door, screamed at him, and they got into a physical fight. Ms. Lowery admitted that defendant only took Mr. Parker's belongings that one time in October 2021. She also admitted that in April 2022, two months before the shooting, she and Mr. Parker went to a crawfish boil at defendant's family's house where special arrangements were made to give Mr. Parker a hamburger because he was allergic to seafood. Ms. Lowery told the trial judge that she had provided the note to the district attorney's office “last week.”

Following the hearing, the trial judge excluded the domestic violence incident from being admitted at trial. The trial judge found that the October 2021 note was admissible since it was necessary to the State's case for narrative completeness. Defense counsel noted his objection to the trial court's ruling.

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is that such evidence is not admissible to prove that the accused committed the charged crime because the defendant has committed other such crimes in the past. State v. Thomas, 19-582 (La. App. 5 Cir. 7/29/20), 300 So.3d 517, 526, writ denied, 20-1503 (La. 3/2/21), 311 So.3d 1053. However, while the State may not admit evidence of other crimes to prove the defendant is a person of bad character, evidence of prior crimes may be admitted if the State establishes an independent relevance aside from proving the defendant's criminal character. State v. Frickey, 22-261 (La. App. 5 Cir. 3/1/23), 360 So.3d 19, 49, writ denied, 23-468 (La. 11/8/23), 373 So.3d 59. Evidence of other crimes, wrongs, or acts is allowed to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct, formerly referred to as res gestae, that constitutes an integral part of the act or transaction that is the subject of the present proceeding. Id. See also La. C.E. art. 404(B)(1).

Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. State v. Rodney, 19-195 (La. App. 5 Cir. 10/23/19), 282 So.3d 395, 402-03. The res gestae doctrine is designed to allow the story of the crime to be told in its entirety by proving its immediate context of happenings in time and place. Id. at 403. Close connexity in time and location is required between the charged and uncharged conduct to ensure that “the purpose served by admission of the other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.” State v. Smith, 23-263 (La. App. 5 Cir. 12/27/23), 379 So.3d 206, 212. The test of whether res gestae evidence is admissible is not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. Id.

Even when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. Frickey, 360 So.3d at 50. In order for other crimes evidence to be admitted under La. C.E. art. 404(B)(1), one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. State v. Lawson, 08-123 (La. App. 5 Cir. 11/12/08), 1 So.3d 516, 525. The State is only required to make some showing of sufficient evidence to support a finding that the defendant committed the other independently relevant acts. State v. Breaux, 22-581 (La. App. 5 Cir. 5/10/23), 366 So.3d 727, 736 (citing State v. Taylor, 16-1124, 16-1183 (La. 12/1/16), 217 So.3d 283, 291-92).

Additionally, the probative value of the extraneous evidence must outweigh its prejudicial effect. La. C.E. art. 403; State v. Shorter, 23-128 (La. App. 5 Cir. 11/29/23), 377 So.3d 421, 436, writ denied, 23-1669 (La. 5/29/24), 385 So.3d 704. The fact that the other acts or crimes occurred well before the offense for which defendant is on trial is not sufficient, in and of itself, to require the exclusion of the evidence. State v. Guidroz, 98-377 (La. App. 5 Cir. 10/14/98), 721 So.2d 480, 486, writ denied, 98-2874 (La. 2/26/99), 738 So.2d 1061. Remoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs its prejudicial effect. Generally, a lapse in time will go to the weight of the evidence, rather than to its admissibility. Breaux, 366 So.3d at 735.

The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. State v. Miller, 10-718 (La. App. 5 Cir. 12/28/11), 83 So.3d 178, 187, writ denied, 12-282 (La. 5/18/12), 89 So.3d 1191, cert. denied, 568 U.S. 1157, 133 S.Ct. 1238, 185 L.Ed.2d 177 (2013). Absent an abuse of discretion, a trial court's ruling on the admissibility of evidence pursuant to La. C.E. art. 404(B)(1) will not be disturbed. State v. Maize, 16-575 (La. App. 5 Cir. 6/15/17), 223 So.3d 633, 649, writ denied, 17-1265 (La. 4/27/18), 241 So.3d 306.

The State must provide the defendant with notice and move for a hearing before trial if it intends to offer other crimes evidence. However, the State is not required to provide the defendant with notice before introducing res gestae evidence. Frickey, 360 So.3d at 49.

In Frickey, this Court addressed prior threats made by the defendant to the victim. In that case, the State filed a notice of intent pursuant to La. C.E. art. 404(B), seeking to introduce into evidence at trial statements made by the victim during the 9-1-1 call made the night of the incident, namely, “I've had trouble with him for years,” and “He threatened to kill me several times.” Following a hearing, the trial court concluded that the statements fell within res gestae and would be admissible at trial. Id. at 48. The defendant was convicted of aggravated criminal damage to property. On appeal, this Court found that the victim's mention of prior threats demonstrated the relationship between the victim and the defendant and were relevant to showing the defendant's motive and intent. Id. at 50-51.

In the instant case, we find the trial judge did not abuse his discretion by admitting the October 2021 note into evidence as res gestae. Defendant's prior threat to Mr. Parker in October 2021 was relevant and probative in establishing the parties’ volatile relationship that escalated over time up until the homicide. The evidence provided narrative completeness to the State's case. As such, this assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent according to La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The review reveals no patent errors in this case that require corrective action.

DECREE

For the foregoing reasons, defendant's conviction and sentence are affirmed.

AFFIRMED

FOOTNOTES

1.   It is unclear whether the Motion to Reconsider Sentence was granted before or after the Motion for Appeal. Nevertheless, even if the trial judge granted the Motion for Appeal before denying the Motion to Reconsider Sentence, under La. C.Cr.P. art. 916(3), the judge retained jurisdiction to rule on the Motion to Reconsider Sentence.

2.   Lieutenant Lashonda Woodfork of the Kenner Police Department was the custodian of the 9-1-1 call records and testified that the 9-1-1 call in the instant case was made on June 1, 2022, at 9:13 p.m.

3.   Both Detective Brad Ricke and Detective Aaron Savoie of the Kenner Police Department testified that the victim's bedroom was in complete disarray.

4.   Terryniqca Lowery, defendant's girlfriend, testified that she and defendant shared the rear bedroom.

5.   Officer Joel O'Lear, a firearms examiner at the Jefferson Parish Sheriff's Office crime lab, testified as an expert in the field of firearm and toolmark examination. He testified that the five casings and four bullets that were recovered in the instant case were fired from the Ruger pistol found at the crime scene.

6.   Sergeant Herrmann testified that defendant later said in his statement that his roommate did not attack him with a hammer. Detective Savoie and Detective Ricke testified that there was a hammer located right outside the victim's bedroom.

7.   Detective Ricke testified that they extracted text messages from defendant's phone. One of the text messages was sent by Mr. Parker to defendant on May 30, 2022, where Mr. Parker apologized, said he would leave, asked defendant to let his siblings stay, and stated he would still pay the rent. In another text sent seconds later, defendant told Mr. Parker not to leave and that they could “talk things out.”

8.   Dr. Troxclair testified that Mr. Parker was twenty-two years old at the time of his death.

9.   The autopsy report indicated that wound number 1 entered on the right hand and exited on the right forearm; wound number 2 entered and exited on the right lower back; wound number 3 entered on the left chest; wound number 4 entered on the right posterior parietal scalp (head); wound number 5 was a graze wound on the right upper back; wound number 6 was a graze wound on the lateral upper left arm; and wound number 7 was a graze wound on the left third finger. Dr. Troxclair testified that there was no indication of the order in which they were sustained.

10.   The record indicates that defendant's date of birth is August 8, 1997, and therefore, he was twenty-four years old at the time of the incident.

11.   In the motion for new trial, defendant argued that the verdict was contrary to the law and the evidence (La. C.Cr.P. art. 851(B)(1)); the court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error (La. C.Cr.P. art. 851(B)(2)); and the ends of justice would be served by the granting of a new trial.

12.   See State v. Dillon, 23-423 (La. App. 5 Cir. 6/5/24), 391 So.3d 82, 93, writ denied, 24-835 (La. 11/14/24), 395 So.3d 1182, where this Court stated that because it found the evidence was sufficient to support the defendant's convictions, the trial court did not abuse its discretion by denying the defendant's motion for a new trial.

13.   In State v. Clark, 23-717 (La. App. 4 Cir. 6/10/24), 401 So.3d 171, 178, writ denied, 24-866 (La. 11/14/24), 395 So.3d 1184, the defendant argued that he was denied the opportunity to present a complete defense at trial. The Fourth Circuit found that there was no evidence of an overt or hostile act under La. C.E. art. 404(A)(2) other than the defendant's self-serving testimony, and therefore, Mr. Matlock's testimony of Mr. Price's dangerous character was inadmissible. See also State v. Favorite, 03-425 (La. App. 5 Cir. 11/25/03), 862 So.2d 208, 218, writ denied, 03-3529 (La. 4/23/04), 870 So.2d 298, where this Court observed that the defendant did not satisfy his burden of showing by appreciable evidence an overt act of the victim that would create, in the mind of a reasonable person, a belief that he was in imminent danger of losing his life or suffering great bodily harm.

14.   State v. Prieur, 277 So.2d 126 (La. 1973).

GRAVOIS, J.