STATE v. FAIR (2025)

The defendant, Justin J. Fair, was charged by bill of information with attempted second degree murder, a violation of La. R.S. 14:30.1 and La. R.S. 14:27, and pled not guilty. After a trial by jury, he was found guilty of the responsive offense of attempted manslaughter, a violation of La. R.S. 14:31 and La. R.S. 14:27. See La. Code Crim. P. art. 814(A)(4). He filed a motion for post-verdict judgment of acquittal, which the trial court denied.¹ The trial court sentenced the defendant to twenty years imprisonment at hard labor and denied his subsequent motion to reconsider sentence. He now appeals, raising the following assignments of error: (1) the evidence was insufficient to support the verdict; (2) the trial court erred in denying a Batson 2 challenge; (3) the trial court imposed an excessive sentence; and (4) the trial court gave an erroneous jury instruction on attempted manslaughter. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On March 27, 2021, Detective Chet Breaux of the Assumption Parish Sheriff's Office was dispatched to the scene of a stabbing in the parking lot of Sagona's Hardware Store, located in Paincourtville. The incident was captured on store surveillance footage. Ronnie Simon, Jr., the victim of the stabbing, arrived at the hardware store that day to rent a U-Haul with his wife, Rheshea Simon. The defendant, a childhood friend of Mrs. Simon, also entered the parking lot immediately behind them, pulled up around them, and parked, as Mr. and Mrs. Simon stopped their vehicle in front of the store. Mrs. Simon exited their vehicle and approached the defendant's vehicle to let him know that Mr. Simon was there to assist her and that she no longer needed his assistance.

However, the defendant did not leave. Mr. Simon parked next to the defendant, and Mrs. Simon entered the store while Mr. Simon and the defendant waited in the parking lot. The defendant moved out of his parking spot, positioning his vehicle between Mr. Simon's vehicle and the hardware store door. Mr. Simon then exited his vehicle and approached the defendant's vehicle to confront him. The defendant exited his vehicle, armed with a knife.³ As the two men began to tussle, Mr. Simon lifted his shirt, realizing he had been stabbed in the chest and armpit. The defendant then left the area, and Mr. and Mrs. Simon reentered their vehicle and went directly to the hospital.

COUNSELED ASSIGNMENT OF ERROR NUMBER ONE AND PRO SE ASSIGNMENT OF ERROR NUMBER TWO

In the first counseled assignment of error and the second pro se assignment of error, the defendant contends the State failed to rebut or disprove evidence that he acted in self-defense. The defendant also maintains the State failed to prove he had the specific intent to kill. He contends the jury's acquittal on the charged offense, attempted second degree murder, was based on the lack of evidence of the specific intent to kill.⁴

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV, La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Thomas, 2019-0409 (La. App. 1st Cir. 10/25/19), 289 So.3d 1030, 1037.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Currie, 2020-0467 (La. App. 1st Cir. 2/22/21), 321 So.3d 978, 982. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Southall, 2022-0746 (La. App. 1st Cir. 6/2/23), 369 So.3d 925, 930, writ denied, 2023-00875 (La. 2/6/24), 378 So.3d 750.

Manslaughter is a homicide that would either 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 cool reflection and self-control. La. R.S. 14:31(A)(1). “Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather they are mitigatory factors in the nature of a defense that tend to lessen the culpability. State v. Newton, 2014-1301 (La. App. 1st Cir. 3/6/15), 2015 WL 996250, *2 (unpublished). The defendant does not dispute injuring Mr. Simon with a knife.⁵ However, he contends the State failed to prove beyond a reasonable doubt that he had the specific intent to kill or to rebut evidence he acted in self-defense.

To support a conviction for attempted manslaughter under La. R.S. 14:31(A)(1), the State must prove beyond a reasonable doubt that defendant possessed the specific intent to kill and committed an overt act in furtherance of that goal. See La. R.S. 14:27(A); State v. Holmes, 2013-1530 (La. App. 1st Cir. 5/22/14), 2014 WL 2168837, *3 (unpublished). Specific 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 criminal intent need not be proven as a fact, but may be inferred from the circumstances and actions of the defendant. Thomas, 289 So.3d at 1038. Under all the circumstances shown, an intent to kill might be reasonably inferred from the intentional use of a deadly weapon, such as a knife, to produce injuries involving serious risk of death. See State v. Butler, 322 So.2d 189, 194 (La. 1975). Thus, specific intent to kill may be inferred when the defendant stabs a victim, especially when those wounds are to the heart or chest. See State v. Jones, 2018-0479 (La. App. 1st Cir. 11/2/18), 2018 WL 5779773, *4 (unpublished).

In a non-homicide situation, a claim of self-defense requires a dual inquiry: (1) an objective inquiry into whether the force used was reasonable under the circumstances; and (2) a subjective inquiry into whether the force used was apparently necessary. See La. R.S. 14:19(A)(1)(a). Self-defense is not available to “[a] person who is the aggressor or who brings on a difficulty ․ unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” La. R.S. 14:21.

The Louisiana Supreme Court has recognized that statutory law does not address the burden of proof for defenses. State v. Cheatwood, 458 So.2d 907, 910, n. 4 (La. 1984). In previous cases dealing with the burden of proving or disproving a claim of self-defense in a non-homicide case, this court has analyzed the evidence under both standards of review, that is, whether the defendant proved self-defense by a preponderance of the evidence or whether the State proved beyond a reasonable doubt that the defendant did not act in self-defense. See Jones, 2018 WL 5779773 at *3. However, La. Code Crim. P. art. 390(A), as recently enacted by the Louisiana Legislature and effective August 1, 2024, provides: “In any criminal proceeding in which the justification of self-defense is raised pursuant to R.S. 14:19 or 20, the state shall have the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense.” Thus, the legislature has resolved the previous uncertainty in Louisiana law as to who has the burden of proving or disproving self-defense in a non-homicide case. See State v. Morrison, 55,869 (La. App. 2d Cir. 11/20/24), 400 So. 3d 1254, 1260-1261, 2024 WL 4830543, *4.

The instant offense occurred prior to the effective date of La. Code Crim. P. art. 390(A). A two-fold inquiry is required by La. Civ. Code art. 6 in deciding whether a law should be applied retroactively. First, it must be ascertained whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends. If no such intent was expressed, the second step is to classify the enactment as either substantive, procedural or interpretive. Substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Interpretive laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of laws. Laws that are procedural or interpretive may be applied retroactively. State v. Washington, 2002-2196 (La. 9/13/02), 830 So.2d 288, 290 (per curiam).

The legislature did not express its intent regarding retrospective or prospective application of La. Code Crim. P. art. 390. Thus, as no such intent was expressed, we must classify La. Code Crim. P. art. 390 as either substantive, procedural, or interpretive. As it prescribes a method for enforcing a defendant's substantive right to assert the justification of self-defense in relation to the operation of La. R.S. 14:19 or La. R.S. 14:20 at trial, we find La. Code Crim. P. art. 390 is procedural law that may be applied retroactively. Therefore, the relevant inquiry on appeal is whether, viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense.

At trial, the State presented video surveillance footage of the incident, along with testimony by Detective Breaux, Mr. Simon, and the emergency room physician.⁶ Mr. Simon testified his wife first told the defendant she no longer needed his help prior to their arrival at the hardware store. Mr. Simon further testified he was startled to see the defendant when they arrived at the hardware store. As shown in the video, prior to entering the store, Mrs. Simon approached the defendant's vehicle, seemingly making a brief statement to the defendant. According to Detective Breaux and Mr. Simon, at that point, Mrs. Simon again told the defendant he was not needed because Mr. Simon was there. Mr. Simon testified he wondered why the defendant was still there, as he waited for his wife to come out of the hardware store.

As shown on the video, Mr. Simon and the defendant initially remained in their cars, parked side-by-side, while Mrs. Simon was in the store. Moments before she exited the store, the defendant pulled up in front of the store door and stopped. At that point, Mr. Simon exited his vehicle and approached the defendant's vehicle, according to his trial testimony, to “see what [the defendant's] problem [was].” Mr. Simon further clarified that he wanted to know why the defendant was still there and why he blocked his vehicle.

Before Mr. Simon could ask any questions, the defendant exited his vehicle as well, and the confrontation immediately became physical. As shown in the video, once the defendant exited his vehicle, the defendant lifted his arm, and Mr. Simon then swung his arm at the defendant. Mr. Simon then stepped back, as the defendant moved towards him. Mrs. Simon exited the store and quickly positioned herself between the two men. The defendant pushed Mrs. Simon to the ground,⁷ Mr. Simon swung at the defendant in response, and the defendant swung at Mr. Simon's chest area. Mr. Simon stepped back, lifted his shirt, then got back in his vehicle on the driver's side. The defendant got back in his vehicle and drove off, as Mrs. Simon entered their vehicle on the driver's side, after Mr. Simon.

Mr. Simon testified he “was feeling defensive” when the defendant opened his door, and he blacked out when the defendant first exited his vehicle and began to swing at him. Regarding the defendant's knife, Mr. Simon testified it was shiny, pointy, silver, “like a shank,” with a green handle. Detective Breaux, who viewed the surveillance footage while at the scene and testified regarding still photographs from the footage, also testified it appeared to be a six-inch blade knife. Mr. Simon testified they went straight to the hospital after exiting the parking lot, where he was treated for his injuries and photographed by Detective Breaux. Mr. Simon testified his injuries were sustained as the knife entered his chest and struck his armpit while exiting.

Dr. John Tosh, the emergency room physician who treated Mr. Simon, testified Mr. Simon had two knife wounds to the left side of his chest. He noted Mr. Simon's chest X-ray showed a pneumothorax or hemothorax. A CAT scan was taken to ensure Mr. Simon's wounds did not penetrate into the thoracic cavity, located just to the side of the sternum, where the heart is located. The CAT scan showed Mr. Simon's thoracic cavity was not violated. Dr. Tosh testified he then sewed up Mr. Simon's injuries.

Dr. Tosh testified Mr. Simon's chest wound was approximately six centimeters long and described it as a “pretty good size wound.” He testified the heart would be the main concern for such an injury, located an inch or two away from the wound. Dr. Tosh further estimated Mr. Simon's armpit wound as three centimeters. He agreed Mr. Simon's injuries were not life threatening but confirmed that if the knife had gone a little deeper or if it had gone between the ribs or gone in at a different angle, the wound could have turned deadly. The defendant did not testify at trial.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Williams, 2001-0944 (La. App. 1st Cir. 12/28/01), 804 So.2d 932, 939, writ denied, 2002-0399 (La. 2/14/03), 836 So.2d 135. The reviewing court does not determine whether another possible hypothesis has been suggested by the defendant which could explain the events in an exculpatory fashion; rather, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational factfinder could not have found proof of guilt beyond a reasonable doubt. State v. Jones, 2016-1502 (La. 1/30/18), 318 So.3d 678, 682 (per curiam).

In his counseled brief, the defendant initially argues Mr. Simon approached him aggressively, and he acted in self-defense. However, the testimony and surveillance footage presented at trial shows the defendant remained in the area after being told his assistance was no longer needed. He initially parked alongside Mr. Simon, but then positioned his vehicle between Mr. Simon's vehicle and the door where Mrs. Simon would exit the store. Mr. Simon approached the defendant's vehicle just before the defendant got out of the car, armed with a knife. Further, the defendant extended his arm toward Mr. Simon prior to any contact. Arguably, the defendant was the aggressor under the circumstances. Mr. Simon batted the defendant's hand away, and the defendant then pushed Mrs. Simon down to the ground. It was at that point that Mr. Simon swung at the defendant, and the defendant inflicted the knife wounds. Based on our review of the evidence, we cannot say the jury acted irrationally when it found the testimony and surveillance footage was inconsistent with the defendant's claim that his use of force was reasonable under the circumstances. After viewing the evidence in the light most favorable to the prosecution, we find that a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense.

Next, the defendant contends the State failed to prove beyond a reasonable doubt he had the specific intent to kill Mr. Simon. Surveillance footage and testimony presented at trial showed the defendant stabbed Mr. Simon in the chest, inflicting a wound only an inch or two from his heart. The defendant pushed Mrs. Simon out of the way in order to stab Mr. Simon. Dr. Tosh agreed that had the puncture been slightly deeper, the wound could have been deadly. Further, the defendant fled the scene after the stabbing. Flight and attempt to avoid apprehension indicate consciousness of guilt, and therefore, are circumstances from which a juror may infer guilt. Southall, 369 So.3d at 933. Under the facts and circumstances presented in this case, we cannot say that the jury was irrational in determining the defendant had the specific intent to kill Mr. Simon. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; Jones, 2018 WL 5779773 at *5 (conviction upheld based on evidence the defendant chased after the victim and stabbed him in the chest before stabbing him in the legs); State v. Brunet, 95-0340 (La. App. 1st Cir. 4/30/96), 674 So.2d 344, 348, writ denied, 96-1406 (La. 11/1/96), 681 So.2d 1258 (conviction upheld based on evidence the defendant stabbed the victim with a six-inch long knife in the lower right side of her back as she was bent over, causing a wound that penetrated into her chest, and possibly punctured a lung).

An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, the elements of attempted manslaughter. Accordingly, we find no merit in counseled assignment of error number one and pro se assignment of error number two.

COUNSELED ASSIGNMENT OF ERROR NUMBER TWO

In counseled assignment of error number two, the defendant contends trial counsel made a prima facie case that African Americans and young people were excluded from the jury venire, in violation of his right of due process. The defendant also maintains the trial court erred in not finding a prima facie case of discriminatory practices, based on the State's use of peremptory challenges to strike four of the five African American potential jurors. He argues he is entitled to a new trial, or alternatively, the case should be remanded for a hearing on these issues.

The proper procedural vehicle for alleging that the general or petit jury venire was improperly drawn, selected, or constituted is a motion to quash. La. Code Crim. P. art. 532(9). A motion to quash based on the ground that the petit jury venire was unconstitutionally drawn should be filed in writing prior to the beginning of the jury selection. See La. Code Crim. P. arts. 521, 532(9), and 535(C); see also State v. Smith, 2017-1333 (La. App. 1st Cir. 2/21/18), 2018 WL 1007350, *4 (unpublished), writ denied, 2018-0405 (La. 2/18/19), 265 So.3d 771. A defendant who does not file a motion to quash on the ground the jury venire was improperly drawn, selected, or constituted in accordance with the timeliness and form requirements set forth in the Louisiana Code of Criminal Procedure waives his objection. State v. Tipton, 2024-0078 (La. App. 1st Cir. 12/10/24), 404 So.3d 730, 734.

In this case, the defendant concedes he did not file a motion to quash but argues he preserved the issue by raising it after the State used peremptory strikes to remove two potential jurors from the third panel of prospective jurors. Specifically, defense counsel stated, “[t]hey didn't have that many blacks in the panels anyway. But he struck all of them except for one.” Counsel then noted he was not given notice of the race of the prospective jurors until he was present for trial. Thus, counsel argued he was unaware of any basis for filing a motion to quash the jury venire. The trial court then gave defense counsel an opportunity to make an argument in order to preserve it in the record for purposes of appeal. However, defense counsel did not attempt to present any argument or evidence to show the venire was improperly drawn and did not move to quash the venire.⁸ The defendant now notes the petit jury list ⁹ shows only seven potential jurors were born in the year 2000 or after. He further notes five African American jurors appeared to be called for voir dire.

In State v. Thompson, 2020-0023 (La. App. 1st Cir. 4/16/21), 324 So.3d 113, 117, writ denied, 2021-00730 (La. 11/3/21), 326 So.3d 893, this court noted the defendant's jury was assembled therein from the same venire the Louisiana Supreme Court found defective in State v. Cannon, 2019-590 (La. 4/18/19), 267 So.3d 585 (per curiam). Specifically, it was noted in Thompson, those born after June 2, 1993, were excluded from the jury pool. However, this court further found the defendant's claim of a defective jury venire was not properly before this court, as the defendant did not file a pretrial motion to quash or raise the issue before voir dire began, and did not raise the issue until the appeal. Thus, the defendant's claim therein was denied as waived. Id.

Herein, the defendant argues the instant case is distinguishable from Thompson in that he raised the issue below during voir dire. However, we find the Cannon decision does not provide grounds to disregard the defendant's failure to follow the proper procedure for raising a jury venire challenge. State v. Armentor, 2019-1267 (La. App. 1st Cir. 7/31/20), 309 So.3d 762, 771, writ denied, 2020-01032 (La. 2/17/21), 310 So.3d 1149. Initially we note there is no indication Assumption Parish employed an improper system. Moreover, as the defendant concedes, the record shows the defendant did not move to quash the petit jury venire by oral or written motion and did not raise the issue before voir dire began. Therefore, we disagree with the defendant's contention that the issue was preserved in this case and find the defendant did not properly raise his challenge to the jury venire's composition. Thus, any potential grounds for a motion were waived. See La. Code Crim. P. art. 535(D); Thomas, 289 So.3d at 1043-44.

The defendant next contends the trial court erred in not finding a prima facie case of discrimination under Batson when the State used peremptory challenges as back strikes during the third round of the selection of jurors. He notes he raised the Batson challenge as four of the State's peremptory strikes were at that point used to remove all but one of the five prospective African American jurors.

Systematic exclusion of a specific class in the source or sources from which the jury venires are chosen is precluded by law. This principle does not mean that a defendant is entitled to a petit jury which reflects the population of the community in every respect. Defendants are not entitled to a jury of any particular composition. A venire reflecting exactly the complete representation of every group within a community would be virtually impossible to seat. An equal protection violation occurs if a party exercises a peremptory challenge to excuse a prospective juror on the basis of that person's race. State v. Kitts, 2017-0777 (La. App. 1st Cir. 5/10/18), 250 So.3d 939, 960.

In Batson, the Supreme Court adopted a three-step analysis to determine whether the constitutional rights of a defendant or prospective jurors have been infringed by impermissible discriminatory practices. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. See La. Code Crim. P. art. 795(C); State v. Peters, 2013-1110 (La. App. 1st Cir. 4/17/14), 2014 WL 1515757, *1 (unpublished), writ denied, 2014-1137 (La. 3/6/15), 161 So.3d 10.

To establish a prima facie case, the defendant must show: (1) the prosecutor's challenge was directed at a member of a cognizable group; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the prosecutor struck the venireperson on account of his being a member of that cognizable group. Without an inference that the prospective jurors were stricken because they are members of the targeted group, the defendant is unable to make a prima facie case of purposeful discrimination and his Batson challenge expires at the threshold. Peters, 2014 WL 1515757 at *1.

The trial court plays a unique role in the dynamics of voir dire, for it is the court that observes firsthand the demeanor of the attorneys and venire members, the nuances of questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. A reviewing court owes the district court judge's evaluations of discriminatory intent great deference and should not reverse such evaluations unless they are clearly erroneous. State v. Pope, 2017-0305 (La. App. 1st Cir. 9/15/17), 2017 WL 4082427, *5 (unpublished), writ denied, 2017-1744 (La. 6/1/18), 243 So.3d 1064.

Herein, because the trial court found no pattern, i.e., that the defense failed to make a prima facie case that the State based its peremptory challenges on race, the three-step analysis ended at that point. Our inquiry, then, is whether the trial court erred in finding that the defendant failed to present a prima facie case of purposeful discrimination. Pope, 2017 WL 4082427 at *7.

After the Batson challenge, the trial court noted the State used four strikes to remove potential African American jurors, and eight strikes to remove potential Caucasian jurors. The trial court then asked defense counsel to present an argument to support the claim of discriminatory practices by the State. However, defense counsel failed to raise any other relevant evidence that would support an inference of discrimination. The mere invocation of Batson when minority prospective jurors are peremptorily challenged in the trial of a minority defendant does not present sufficient evidence to lead to an inference of purposeful discrimination. Such an automatic finding would preclude the need for the first Batson step in the trial of any defendant who was a member of a cognizable racial group whenever a peremptory challenge was raised to a prospective juror who was also a member of that racial group. Without further argument or reasons presented by the defense, the trial court had nothing from which to draw an inference of purposeful discrimination. Pope, 2017 WL 4082427 at *7.

Moreover, the nature of the case itself presented no overt racial overtones. Both Mr. Simon and the defendant were from the same cognizable racial group. Based on the circumstances of this case, including our review of the totality of the voir dire, we find no error in the trial court's conclusion that the defendant failed to present a prima facie case of purposeful discrimination. Thus, no further inquiry is required and the subsequent steps of the Batson analysis need not be performed. See Pope, 2017 WL 4082427 at *7. Counseled assignment of error number two is precluded and/or otherwise without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

In assignment of error number three, the defendant contends the trial court's erroneous jury instruction on the specific intent to kill, as to the responsive offense of attempted manslaughter, led to his conviction. He also maintains while the trial court specifically defined attempted second degree murder, it failed to specifically define attempted manslaughter.¹⁰

The trial court must instruct the jury on the law applicable to the case. La. Code Crim. P. art. 802(1). In analyzing jury instructions, Louisiana cases caution against taking certain phrases out of context of the charge as a whole. The test articulated is whether, taking the instruction as a whole, reasonable persons of ordinary intelligence would understand the charge. State v. Leger, 2017-0461 (La. App. 1st Cir. 5/11/20), 303 So.3d 337, 346. As stated by the Louisiana Supreme Court, “a great deal of credit should be accorded to the good sense and fairmindedness of jurors who have heard the evidence and who know what was and was not proven.” State v. Brown, 2020-0150 (La. App. 1st Cir. 2/19/21), 2021 WL 650816, *14 (unpublished), writ denied, 2021-00458 (La. 6/1/21), 316 So.3d 835, quoting State v. Dupre, 408 So.2d 1229, 1234 (La. 1982).

Herein, regarding the elements of the charged offense, attempted second degree murder, the trial court defined second degree murder, in part, “as the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm.” The trial court further instructed the jury, in pertinent part, “Louisiana law defines ‘attempt’ as a person who actively desires to commit a crime and does something for the purpose of intending directly toward committing the crime is guilty of an attempt to commit that crime.” The trial court further defined specific intent as follows, “specific criminal intent is that state of mind which exists when the circumstances indicate that the defendant actively desired the prescribed criminal consequences to follow from his act or failure to act.” The court further informed the jury that criminal intent, as a question of fact, may be inferred from the circumstances.

In discussing the responsive offense at issue, attempted manslaughter, the trial court did not make a direct reference to specific intent, though as stated, an attempt, including the definition of specific intent, had previously been defined. Specifically, the trial court stated:

Manslaughter occurs when a person kills another in sudden passion or heat of blood immediately caused by provocation sufficient to deprive and [sic] average person of his self control and cool reflection. If you find that the person's blood had actually cooled or that an average person's blood would have cooled at the time the offense was committed, the provocation is not sufficient to make an attempted killing in attempted manslaughter.

After the trial court defined the responsive offenses, defense counsel requested a bench conference and informed the trial court he was almost certain that attempted second degree murder requires specific intent to kill, not to cause great bodily harm. The parties discussed the issue further after the jury was sent to deliberate. Further, the following jury question was presented to the court during deliberations, “Can we have the possible verdict definitions[?]” The trial court then, in pertinent part, reread the above quoted definitions of second degree murder and attempted manslaughter.

However, before re-sending the jury to deliberate, the trial court further stated:

And attempt, as it regards to attempted second-degree murder or attempted manslaughter, any person who actively desires to commit a crime and does something for the purpose of intending directly toward committing the crime is guilty of an attempt to commit that crime.

The trial court then called the jury back into the courtroom and added:

I've got to go back and amend the definition of attempted second-degree murder. It does not include the specific intent to inflict great bodily harm. In order to find a defendant guilty of attempted second-degree murder, you have to find - or you must find that the defendant acted with the specific intent to kill, not with the specific intent to inflict great bodily harm.

The trial court failed to inform the jury that the requirement of proof beyond a reasonable doubt of specific intent to kill (rather than merely to cause great bodily harm) also applies to a guilty verdict of attempted manslaughter. See Thomas, 289 So.3d at 1038. While there was no contemporaneous objection at trial, issues regarding an instructional error should still be evaluated to ensure due process. State v. Cavazos, 610 So.2d 127, 128 (La. 1992) (per curiam) (substantial probability that jurors may have convicted the defendant under the incorrect definition of a crime justifies setting aside the conviction on due process grounds even in the absence of a contemporaneous objection); Jones, 2018 WL 5779773 at *6.

Instructional errors are subject to harmless-error analysis. Jones, 2018 WL 5779773 at *6. An invalid instruction on the elements of an offense is harmless if the evidence is otherwise sufficient to support the jury's verdict and the jury would have reached the same result if it had never heard the erroneous instruction. State v. Hongo, 96-2060 (La. 12/2/97), 706 So.2d 419, 421; State v. Dardar, 2014-0813 (La. App. 1st Cir. 11/7/14), 2014 WL 5801528, *5 (unpublished). The harmless error inquiry is based upon “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); Brunet, 674 So.2d at 348 (“If the jury verdict is surely unattributable to the instruction that attempted manslaughter can be based upon specific intent to commit great bodily harm, rather than specific intent to kill, there is harmless error.”).¹¹

As previously discussed in addressing the sufficiency of the evidence, the jury was presented ample evidence to infer that the defendant had the specific intent to kill Mr. Simon after exiting his vehicle armed with a knife, pushing Mrs. Simon onto the ground to have a clear aim at Mr. Simon, stabbing the knife into Mr. Simon's chest, and puncturing an area very close to his heart. The defendant then fled the scene. We find the jury's verdict is surely unattributable to the erroneous jury instruction. Thus, the instructional error was harmless in this case. Accordingly, pro se assignment of error number three lacks merit.

COUNSELED ASSIGNMENT OF ERROR NUMBER THREE AND PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In counseled assignment of error number three and pro se assignment of error number one, the defendant argues the twenty-year maximum sentence imposed herein is excessive. He contends Mr. Simon's injury was non-life threatening and that Mr. Simon instigated the conflict. He maintains this case is at the lower end of the spectrum of actions and injuries that could be involved in an attempted manslaughter incident. In his pro se brief, the defendant additionally contends his third felony conviction, by agreement with the State, should have been expunged and notes his prior felonies were not crimes of violence.

Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII; La. Const. art. I, § 20. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Scott, 2017-0209 (La. App. 1st Cir. 9/15/17), 228 So.3d 207, 211, writ denied, 2017-1743 (La. 8/31/18), 251 So.3d 410.

Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code Crim. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. The articulation of the factual basis for a sentence is the goal of La. Code Crim. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even when there has not been full compliance with La. Code Crim. P. art. 894.1. Id.

The trial judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Harris, 2022-1190 (La. App. 1st Cir. 6/2/23), 369 So.3d 447, 451. On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. Scott, 228 So.3d at 211.

Regarding manslaughter, La. R.S. 14:31(B) provides that the maximum sentence which may be imposed is forty years at hard labor. Under La. R.S. 14:27(D)(3), the maximum sentence for attempted manslaughter is twenty years at hard labor. Thus, the trial court imposed the maximum sentence in this case. As a general rule, maximum sentences are to be reserved for the worst offenders and the worst offenses. Maximum sentences may also be imposed when the offender poses an unusual risk to public safety due to his past conduct of repeated criminality. State v. Nicholas, 2011-0641 (La. App. 1st Cir. 11/9/11), 2011 WL 5429572, *2 (unpublished), writ denied, 2011-2702 (La. 4/9/12), 85 So.3d 694.

At the sentencing hearing, the trial court noted it received and reviewed the presentence investigation report (PSI), which recommended the defendant receive the maximum sentence, and classified the defendant as a third-felony offender. The defendant's criminal record consists of a multitude of arrests dating from 2000 to the instant offense. In 2009, the defendant entered a guilty plea to possession of marijuana after being charged, in part, with intent to produce, manufacture, or distribute cocaine. The PSI also shows a pending aggravated second degree battery charge resulting from a 2013 arrest. Further, in 2016, the defendant was convicted of the crime of manufacturing or distributing of a Schedule I controlled dangerous substance and possession of marijuana.

In imposing the sentence, the trial court further noted it considered the nature of the crime and the sentencing guidelines and found the aggravating factors outweighed any mitigating factor. We find the trial court adequately considered the sentencing guidelines. Further, we find the reasons articulated by the trial court are sufficient to support the defendant's sentence. We note the defendant, by using a dangerous weapon, knowingly created a risk of death to Mr. Simon and could have injured Mrs. Simon in the process, as he pushed her to the ground just before violently wounding Mr. Simon with a knife. See La. Code Crim. P. art. 894.1(B)(6) and (10). Considering the facts of the offense and the defendant's lengthy arrest history and prior convictions, we find no abuse of discretion by the trial court. The imposed sentence is not grossly out of proportion to the seriousness of the offense, nor does the sentence shock this court's sense of justice. Accordingly, counseled assignment of error number three and pro se assignment of error number one lack merit.

CONVICTION AND SENTENCE AFFIRMED.

I respectfully dissent from the majority's opinion herein. The defendant made a prima facie case of purposeful racial discrimination based on the State's use of its peremptory challenges, including the use of two back strikes, to eliminate all but one African American from the jury venire. Accordingly, I would remand so that the trial court can determine whether the prosecutor can show a race neutral explanation for his action. If the prosecutor cannot make this showing, the trial court should reverse petitioner's conviction.

When a defendant makes a Batson challenge, claiming the State has used peremptory challenges in a manner that violates the Equal Protection Clause, the defendant must first make out a prima facie case of discrimination. Batson v. Kentucky, 476 U.S. 79, 91-94, 106 S.Ct. 1712, 1720-1722, 90 L.Ed.2d 69 (1986); see also La.C.Cr.P. art. 795(C).¹ If a prima facie case of discrimination is successfully established, the burden of production then shifts to the State to come forward with a race neutral explanation for its peremptory challenges. Batson, 476 U.S. at 97; State v. Brown, 2010-063 5 (La. App. 1st Cir. 10/29/10).

In Batson, the Supreme Court explained the burden-shifting process, in more detail, as follows:

The defendant who alleges discriminatory selection of the venire has the burden of proving “the existence of purposeful discrimination.” In deciding if the defendant has carried his burden of persuasion, a court must undertake “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Circumstantial evidence of invidious intent may include proof of disproportionate impact. We have observed that under some circumstances proof of discriminatory impact “may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.” For example, “total or seriously disproportionate exclusion of [African Americans] from jury venires,” ․ “is itself such an ‘unequal application of the law ․ as to show intentional discrimination[.]”

[The United States Supreme Court has] recognized that a black defendant alleging that members of his race have been impermissibly excluded from the venire may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion. The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. Rather, the State must demonstrate that “permissible racially neutral selection criteria and procedures have produced the monochromatic result.”

․

[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show ․ the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

[Citations omitted; emphasis added.] Batson, 476 U.S. at 93-96.

In this case, it is undisputed that defendant made a timely objection to the prosecutor's removal of all but one of the African American persons on the venire. This showing alone demonstrates a “seriously disproportionate exclusion” of African Americans from the jury venire, thus raising an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race, and thereby establishing a prima facie case of purposeful discrimination.² Once the defendant made the requisite showing, the burden shifted to the State to explain adequately the racial exclusion. Batson, 476 U.S. at 94. However, the trial court then rejected defendant's challenge without requiring the prosecutor to give a race-neutral explanation for his actions. These facts warrant a remand of this case for further proceedings. Upon remand, if the trial court decides that the prosecutor has not come forward with a race neutral explanation for his action, petitioner's conviction should be reversed. See Batson v. Kentucky, 476 U.S. at 100.

FOOTNOTES

1.   The defendant also filed a combined pro se motion for new trial or for post-verdict judgment of acquittal. However, the record does not reflect a ruling by the trial court on the defendant's pro se posttrial motion. Nonetheless, the arguments raised in the defendant's pro se motion were also presented in the counseled motion. Thus, any error in the trial court's failure to rule on the pro se motion was harmless. See La. Code Crim. P. art. 921; State v. Johnson, 2006-1235 (La. App. 1st Cir. 12/28/06), 951 So.2d 294, 303.

2.   Batson v. Kentucky, 476 U.S. 79, 93-98, 106 S.Ct. 1712, 1721-1724, 90 L.Ed.2d 69 (1986).

3.   The knife was never recovered.

4.   In his counseled brief, in the sufficiency argument, the defendant also contends the trial court's jury instruction on specific intent caused the jury to convict him of attempted manslaughter without finding proof of specific intent to kill beyond a reasonable doubt. The argument regarding the jury instructions will be discussed in addressing pro se assignment of error number three, directly contesting the same jury instruction.

5.   In his pro se brief, the defendant initially argues the State failed to disprove his claim that he acted in self-defense, but then inconsistently argues he accidentally injured Mr. Simon. He further briefly maintains that the video and still shots presented by the State fail to show that he had a knife. As later discussed herein, after our review of the video, still shots, and testimony presented at trial, we find a rational juror could have rejected the defendant's hypotheses of innocence.

6.   While Mrs. Simon did not testify at trial, Detective Breaux testified that she was interviewed by the police.

7.   Once Mrs. Simon positioned herself between Mr. Simon and the defendant, it appears both of the men pushed her in an attempt to move her from between the two of them. She was initially pushed by Mr. Simon before the defendant then pushed her to the ground

8.   The defendant bears the burden of proving the grounds for setting aside the venire. Tipton, 404 So.3d at 734.

9.   As the defendant notes, the petit jury list does not show the race of the of the individuals.

10.   The counseled brief also raised but does not assign as a separate error, this issue in the context of the sufficiency of the evidence argument, previously addressed herein.

11.   In his pro se brief, the defendant cites State v. Porter, 626 So.2d 476 (La. App. 3d Cir. 1993), in which the appellate court reversed and remanded a conviction of attempted second degree murder due to an erroneous jury instruction on the requisite element of specific intent to kill. We note Porter predates Hongo. Prior to Hongo, there was a conflict among the courts of appeal, with some circuits holding the jurisprudence mandated reversal and remand for retrial where the trial court gave an erroneous instruction similar to the one at issue in this case. See State v. Woods, 2000-2147 (La. App. 1st Cir. 5/11/01), 787 So.2d 1083, 1096, writ denied, 2001-2389 (La. 6/14/02), 817 So.2d 1153. Other circuits, including this court in Brunet, conducted a harmless error analysis after finding the trial court gave such an erroneous instruction. See Brunet, 674 So.2d at 348. The Hongo decision settled the issue, holding, “[b]ecause the erroneous instruction at issue may be an irrelevancy and because a reviewing court can make this determination, the error is not structural such as that in Sullivan, but rather a trial error which may or may not have prejudiced defendant and thus is subject to harmless error analysis.” Hongo, 706 So.2d at 422.

1.   Louisiana Code of Criminal Procedure art. 795(C) provides,No peremptory challenge made by the state or the defendant shall be motivated in substantial part on the basis of the race or gender of the juror. If an objection is made that a challenge was motivated in substantial part on the basis of race or gender, and a prima facie case supporting that objection is made by the objecting party, the court shall demand a satisfactory race or gender neutral reason for the exercise of the challenge.[Emphasis added.]

2.   An African American defendant alleging that members of his race have been impermissibly excluded from the venire may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Batson, 476 U.S. at 93-94. Further, a defendant of any race may raise a Batson claim, and a defendant may raise a Batson claim even if the defendant and the excluded juror are of different races. Flowers v. Mississippi, 588 U.S. 284, 301, 139 S.Ct. 2228, 2243, 204 L.Ed.2d 638 (2019); Powers v. Ohio, 499 U.S. 400, 415, 111 S.Ct 1364, 1373, 113 L.Ed.2d 411 (1991).

GREENE, J.