STATE v. LEDAY (2025)

On June 22, 2016, a grand jury returned a true bill indicting Defendant, Joseph Jamaad Leday, with second degree murder, a violation of La.R.S. 14:30.1. After a three-day trial, a jury convicted defendant of the responsive verdict of manslaughter, a violation of La.R.S. 14:31. On April 30, 2018, the trial court sentenced Defendant to twenty-five years at hard labor. The State filed a habitual offender bill, and the trial court adjudicated Defendant a habitual offender, vacated the original sentence, and again imposed a twenty-five-year hard labor sentence. On appeal, because Defendant had been convicted by a non-unanimous jury verdict, this court reversed his conviction and remanded the case for a new trial. State v. Leday, 19-105 (La.App. 3 Cir. 6/10/20), 298 So.3d 887.

Upon his retrial, Defendant waived his right to trial by jury and elected a bench trial. On May 13, 2024, Defendant's bench trial commenced, and upon completion of the trial, Defendant was convicted of manslaughter of Wesley Anderson (“victim”) in violation of La.R.S. 14:31. On July 11, 2024, the trial court sentenced Defendant to thirty years at hard labor to run consecutively to any other sentence/time he was serving. Defendant is before this court appealing his conviction and sentence. Defendant's counsel asserts two assignments of error, and Defendant sets out one pro se assignment.

FACTS:

The facts of this case are discussed in Assignment of Error Number one.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we found one error patent. As determined below, we find that error patent is harmless.

A signed written waiver of trial by jury, as required by La.Code Crim.P. art. 780, was not filed in this case. It appears from the trial court's comments that Defendant filed a letter/pro se motion requesting a bench trial, but it is not clear whether it met the requirement of Article 780. Nevertheless, in open court, Defendant clearly indicated to the trial court that he wished to waive his right to a jury trial, and he had previously been tried by a jury in his original trial. Accordingly, we find this error to be harmless. See State v. Brown, 24-201 (La.App. 3 Cir. 10/23/24), 396 So.3d 109, writ denied, 24-1504 (La. 2/25/25), 401 So.3d 661.¹

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant's appeal alleges that the State failed to prove he is guilty of manslaughter due to the stabbing of Westley Anderson on May 14, 2016 when the victim was riding with Defendant from Beaumont, Texas to Lake Charles, Louisiana to go to the casino. Although there were no witnesses to what occurred while Defendant and the victim were inside Defendant's vehicle, the State presented several eyewitnesses as to what occurred while the two were outside the vehicle. Specifically, Defendant argues the State failed to disprove he acted in self-defense because when the victim's fatal wound was inflicted, the two were alone in his vehicle. Defendant concedes that once outside the vehicle he was no longer acting in self-defense, but the injuries he inflicted on the victim at that point were non-fatal. Defendant contends that there would be deep lacerations on the front of the victim's body had he repeatedly stabbed him with a knife while straddling him on the ground. In sum, Defendant argues that the evidence showed that the fatal injury was inflicted at a time when his actions were justified.

Manslaughter, as it relates to this case, is defined as “[a] homicide committed, without any intent to cause death or great bodily harm ․ [w]hen the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1[.]” La.R.S. 14:31(A)(2)(a). This includes aggravated battery, which is defined in La.R.S. 14:34 as “a battery committed with a dangerous weapon.”

Defendant in this case claimed he acted in self-defense, a defense included in La.R.S. 14:20(A)(1), which provides, “A homicide is justifiable ․ when 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.”

The standard of review for claims in which the sufficiency of circumstantial evidence is challenged on appeal is well-settled:

Appellate review for minimal constitutional sufficiency of evidence is a limited one restricted by the due process standard of Jackson v. Virginia [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)]. See State v. Rosiere, 488 So.2d 965, 968 (La. 1986). Under the due process standard of Jackson v. Virginia, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id., 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). “In reviewing the evidence, the whole record must be considered because a rational trier of fact would consider all of the evidence[.]” State v. Mussall, 523 So.2d 1305, 1310 (La. 1988).

State v. Alexander, 22-1205, pp. 1-2 (La. 5/5/23), 362 So.3d 356, 357–58. “The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness.” State v. Brown, 18-1999, p. 56 (La. 9/30/21), 330 So.3d 199, 246, cert. denied, ––– U.S. ––––, 142 S.Ct. 1702, 212 L.Ed.2d 596 (2022).

The Jackson standard does not permit a reviewing court to substitute its own appreciation of the facts for that of the factfinder. See State v. Robertson, 96-1048, p. 1 (La. 10/4/96), 680 So.2d 1165, 1166. It is not the province of a reviewing court to assess witness credibility or reweigh evidence. State v. Smith, 94-3116, p. 2 (La. 10/16/95), 661 So.2d 442, 443. As explained in State v. Mussall,

If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all of the evidence most favorable to the prosecution must be adopted. Thus, irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.

523 So.2d 1305, 1310 (La.1988) (emphasis in original, footnote omitted).

A court charged with reviewing whether the evidence was sufficient to convict under the Jackson standard must largely defer to rational conclusions of the factfinder. The Jackson standard “leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors draw reasonable inferences from basic facts to ultimate facts.” Coleman v. Johnson, 566 U.S. 650, 655, 132 S.Ct. 2060, 2064, 182 L.Ed.2d 978 (2012) (internal citations and quotation marks omitted). “Sufficiency review essentially addresses whether the government's case was so lacking that it should not have even been submitted to the jury.” Musacchio v. United States, 577 U.S. 237, 243, 136 S. Ct. 709, 715, 193 L.Ed.2d 639 (2016) (internal quotation marks omitted).

State v. Bourgeois, 20-883, p. 6 (La. 5/13/21), 320 So.3d 1047, 1051–52.

State v. Cooper, 24-177, p. 10 (La.App. 3 Cir. 11/20/24), 402 So.3d 572, 581–82 (first alteration added).

Where, as here, self-defense is raised as a justification, the State has an increased burden:

When a defendant claims self-defense in a homicide case, the State bears the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense. State v. Taylor, 03-1834 (La. 5/25/04), 875 So.2d 58. Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary are 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. State v. Free, 48,260 (La.App. 2 Cir. 11/20/13), 127 So.3d 956, writ denied, 13-2978 (La. 5/30/14), 140 So.3d 1174, and writ denied, 14–39 (La.9/19/14), 148 So.3d 944. Thus, the issue would be whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the state proved beyond a reasonable doubt that the defendant did not act in self-defense. State v. Rosiere, 488 So.2d 965 (La.1986).

State v. Baumberger, 15-1056, pp. 16-17 (La.App. 3 Cir. 6/1/16), 200 So.3d 817, 830, writ denied, 16-1251 (La. 5/26/17), 221 So.3d 859, cert. denied, 583 U.S. 950, 138 S.Ct. 392, 199 L.Ed.2d 290 (2017).

Discussion:

Defendant contends he inflicted the fatal knife wound in self-defense. While he admits he inflicted more wounds, he testified those additional wounds were not lethal. He contends the State failed to show beyond a reasonable doubt that he did not act in self-defense.

On May 14, 2016, Defendant contacted the victim to ride with him from Beaumont, Texas to Lake Charles, Louisiana to go to the casino. Although there were no witnesses to what occurred while Defendant and the victim were inside Defendant's vehicle, the State presented several eyewitnesses as to what occurred while the two were outside the vehicle.

First, Daniel Cox testified that near midnight on May 14, 2016, he observed a vehicle stopped in the middle of the road with two black men outside arguing and fighting. One man, the taller of the two, was slender and wearing a white shirt with a “red substance coming down” from the midriff area. The other man, shorter and stockier, wore an orange hat. Through his open window, Mr. Cox saw the man in the white shirt holding his chest. He heard him say something like, “Awe [sic] man. You stabbed me,” or “Why you stabbed [sic] me.” Mr. Cox made a U-turn, went back to the scene on Prien Lake Road, and called 911. At this point, he saw the two men on the side of the road. The man in the orange hat was on top of the man in the white shirt, making a stabbing motion with his fist toward the other man's chest. Mr. Cox could not see anything in either man's hands. According to Mr. Cox, this stabbing motion occurred between twenty-five and forty times. At first, the man on the ground was hollering, but he then became silent. When police arrived, the man in the orange hat, who had been straddling the man on the ground, rolled over and lay on the ground.

Another person on the road that night was Ms. Jeanette Domingue of Scott, Louisiana. She testified that she and her husband went to L'Auberge Casino in Lake Charles and were going back home when they came upon a car stopped in the road with two men standing near it “having words.” The two men got into the vehicle. The Domingues watched the vehicle travel a couple of feet and stop. The driver, described by Ms. Domingue as the shorter of the two men, was wearing a white shirt, and he and the passenger in the vehicle changed places. From what Ms. Domingue could tell, the white shirt was clean at that time. The car then traveled another two or three feet, and the passenger crawled out of the window. The passenger then walked toward the Domingues, and she noticed red splotches on the front of his shirt. The driver then exited the car and walked up behind the passenger. The man in the white shirt collapsed on the side of the road, and the man following him got on top of him and hit him with his fist about fifteen to twenty times. Ms. Domingue testified she could not see if he had anything in his hand, and she saw nothing in the man in the white shirt's hand when he passed by them. As police officers arrived, the man hitting the victim got off him and lay down on the road, and she saw nothing in Defendant's hands at that point.

Jeannette Domingue's husband, Patrick Domingue, testified and described the men's behavior when they first came upon the stopped car as “tussling” or “debating or arguing.” Mr. Domingue testified the two men then entered their car, moved it a bit, then stopped again. They then got out and switched places while pushing and exchanging words with each other. The vehicle then moved again and stopped, and the passenger in the white shirt (now with a lot of blood on it) jumped out of the window, fell to the ground, and began running toward the Domingues vehicle. Mr. Domingue identified the person in the driver's seat wearing a red cap as Defendant and testified that Defendant was chasing the man in the white shirt. Mr. Domingue further testified that Defendant passed their vehicle and hit the Domingues passenger side mirror. He then stopped, pointed his finger at Mr. Domingue, and said something that Mr. Domingue did not understand. However, Mr. Domingue testified it was not a “will you help me face” but rather, it was an “ugly face,” and “looked like if I opened my mouth, I was gonna[sic] get hurt.” Defendant then straddled the man in the white shirt, and Mr. Domingue saw him pick up something. Mr. Domingue did not know what it was. He testified he did not see anything “come from the other guy's [the victim's] hand,” and he then saw Defendant's hand going straight up and down more than thirty times in the general area of the victim's chest.

Sergeant Bradley Pucket of the Lake Charles Police Department testified that on May 14, 2016, he was dispatched to the scene where he observed two men lying on the side of the road. One was covered in blood, motionless and without a pulse. Sergeant Pucket observed a pocketknife in the victim's hand when he first approached, and he kicked it off to the side for safety purposes. The other man was mumbling, and Sergeant Pucket believed he said he was defending himself. Sergeant Pucket testified that pictures of Defendant taken later at the police station showed he had no defensive wounds.

Dr. Terry Welke, Calcasieu Parish Coroner, was accepted by the court as an expert in medicine and forensic pathology. Dr. Welke performed an autopsy on the victim. The major injuries he noted were a chip in the outer surface of the skull, a U-shaped portion of lifted skin on the forehead, a stab wound on the frontal chest, an injury to the lung, and a “through and through” injury to the bicep. There were also cuts on the back of the victim's head and injuries to his hands consistent with defensive wounds. Dr. Welke determined the cause of death to be multiple stabs and incise wounds to the head, trunk, and upper extremities made by a sharp instrument. Although he could not say definitively, he believed the injury to the chest was the most severe, and he suspected it was the fatal injury. In total, there were approximately thirty cuts and stab wounds on the victim's body, with eighteen being on the head. Toxicology testing indicated the presence of ethanol, phencyclidine (which causes hallucinations and violence if “the amounts are high enough”), nicotine, and caffeine.

Finally, Defendant testified in his own defense and stated that early on the day of the incident the victim asked Defendant to pick him up. The two planned to go out that night. Defendant bought a bottle of alcohol before he went to get the victim. Defendant testified that at the victim's suggestion they bought some PCP. On their way to Lake Charles, they smoked the PCP and drank the alcohol. Defendant did not remember much of the drive, including crossing the bridge into Lake Charles. Defendant testified that at some point while he was driving, the victim forced him against the door. He panicked and “was in fear for [his] life” because he did not know what the victim was going to do. Defendant testified that he was trying to keep the victim off him, and he said the victim was “grabbing and pushing and pulling” and that his long fingernails are what caused the wounds on the victim's face and head. Defendant testified that he did not remember what caused the victim to stop. He said it was possible he had his knife on the side of him in the seat, but he did not remember for sure. When the victim came at him again, Defendant testified that he felt his life was in danger, and he had to protect himself.

Defendant further testified that he believed some of the victim's wounds could have possible been inflicted inside the car, stating “it's possible that all three of the wounds were inflicted inside my car as far as the fatal stab wound.” Defendant also said he did not recall the chase outside the car. Rather, the next thing he remembered was being on the ground with the victim, and he believed he lost consciousness from being “choked out” by the victim. He recalled that when he straddled the victim on the ground, the victim choked him. Defendant used his cell phone “trying to pound and I'm trying to knock that hand down.” Defendant explained if “you're at a distance, it's going to appear that I'm swinging a knife.”

When questioned by the State, Defendant acknowledged that when he testified in 2018, he never mentioned the victim attacking him. Defendant explained that he was not asked certain questions and was not allowed to tell his story at the first trial. Defendant acknowledged that he was high on the night this occurred and that PCP causes hallucinations. Moreover, he agreed that it was possible that both he and the victim were being aggressive and hallucinating. However, he was adamant that he did not hallucinate the victim's attack but insisted it happened. Defendant said he was first attacked inside the car and then a second time when the victim came around to the driver's side of the car. He also acknowledged that the knife was his.

Action by Trial Court:

In convicting Defendant of manslaughter, the trial court specifically found the State proved beyond a reasonable doubt that the killing occurred as a result of an aggravated battery wherein Defendant used a knife to stab the victim. Additionally, the trial court expressly rejected Defendant's claim of self-defense, finding no credible evidence that Defendant was in threat of losing his life, that the killing was necessary, or that the victim was the aggressor. Noting the possibility of the attack on Defendant being a hallucination, the court found no evidence to suggest that the victim was the aggressor. Rather, the trial court found the evidence, including Defendant's pursuit of the victim as he fled and the lack of choke marks on Defendant, pointed to Defendant as the aggressor. The trial court found the injuries to the victim were caused by a knife, not by Defendant's fingernails, and rejected Defendant's assertion that he used a cell phone to pound the victim's chest. Further, the trial court specifically noted no evidence of Defendant's blood anywhere. Finally, the trial court noted the rage Mr. Domingue observed on Defendant's face.

Based on the testimony of three witnesses, the first police officer on the scene, the coroner, and Defendant himself, the trial court rejected Defendant's claim of self-defense. The trial court found the victim's death resulted from an aggravated battery where Defendant stabbed the victim with a knife and found no evidence to suggest the victim was the aggressor. Rather, the trial court found Defendant was the aggressor, and the trial court rejected all of Defendant's testimony as lacking credibility.

Analysis:

As discussed above, the Jackson standard does not permit a reviewing court to substitute its own appreciation of the facts for that of the factfinder. See State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165. Further, it is not the province of a reviewing court “to assess witness credibility or reweigh the evidence.” State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.

Here, there is no indication that the victim was armed with any type of weapon, as no weapon was found other than the knife belonging to Defendant. Eyewitness description of Defendant and the victim indicated the victim was a smaller/slighter build than Defendant. Additionally, the evidence shows that the victim crawled out of the car window to escape Defendant and then was pursued by Defendant as he fled, and the look on Defendant's face was angry.

After reviewing the record, we find the evidence, when viewed in the light most favorable to the prosecution, establishes that any rational trier of fact could conclude the State proved beyond a reasonable doubt that Defendant committed the crime of manslaughter on the victim, and that Defendant did not act in self-defense. Accordingly, we find that this assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant contends the increase in his sentence to thirty years from his previously imposed sentence of twenty-five years establishes “actual vindictiveness” by the trial court, and his sentence should be vacated. Defendant claims that the court's perception of his lack of remorse stemming from his claim of self-defense was used as an aggravating factor, essentially punishing him for exercising his constitutional rights.

In North Carolina v. Pearce, [395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)], the Supreme Court held that neither the double jeopardy provision nor the Equal Protection Clause imposed an absolute bar to a more severe sentence upon a reconviction. However, the court found that the due process clause of the 14th Amendment prohibited increased sentences when the increase was motivated by vindictiveness on the part of the sentencing judge. “And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id.

The Supreme Court has clarified its holding in Pearce in several subsequent cases. According to these cases, Pearce established a prophylactic rule by which a presumption of vindictiveness is deemed to exist when a judge imposes a more severe sentence upon a defendant who successfully exercised his right to appeal or to attack his conviction collaterally. This presumption of vindictiveness may be overcome only by objective information in the record justifying the increased sentence.

That decision, as we have said, was premised on the apparent need to guard against vindictiveness in the resentencing process. Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with a need for flexibility and discretion in the sentencing process. The possibility of a higher sentence was recognized and accepted as a legitimate concomitant of the retrial process.

However, “the presumption of vindictiveness is inapplicable where, as here, different sentencers have imposed the different sentences against the defendant, because a sentence ‘increase cannot truly be said to have taken place.” Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 979, 89 L.Ed. 2d 104 (1986); State v. Rodriguez, 550 So. 2d 837 (La. App. 2 Cir. 9/27/89).

Where the presumption does not apply, the defendant may still be entitled to relief, but he must affirmatively prove actual vindictiveness. Wasman v. United States, 468 U.S. 559, 104 S. Ct. 3217, 82 L.Ed. 2d 424 (1984); State v. Rodriguez, supra.

State v. Gilcrease, 54,905, pp. 11-13 (La.App. 2 Cir. 11/30/22), 352 So.3d 153, 160, writ denied, 22-1845 (La. 5/31/23), 361 So.3d 467, cert. denied, ––– U.S. ––––, 144 S.Ct. 306, ––– L.Ed.2d –––– (2023).

At sentencing, Defendant addressed the court as follows:

I didn't know if this would be able to get out Wesley [sic] family. I didn't know if they would be present or not, but I just had wanted to say to his mother, and to his family that I wanted to apologize for what I put them through and for the hurt I had caused their family. And that I wish, you know, we had never used the drugs we used that night. Because we wouldn't be in this position or be here today. And, Your Honor, I just want to say, these past eight years have been tough on me, but it's helped me make a lot of important decisions and changes in my life.

Being that I been [sic] around some of the same drugs in the streets, I just thank God that I can say that I've been drug-free, Your Honor. Because I don't ever want to be in the position I was -- altered mentally and physically the way I was that night. But, Your Honor, after a 24 year sentence for the same charge in 2018, and being sent to a DOC facility, though the Court nor the District Attorney recommended it, I signed up for every class available at Dixon Correctional Institute. Successfully completing living in balance in the process, and attending AA classes, in addition to working on trades toward welding and carpentry before the appeals court's decision in order to make some of the necessary changes in my life. And I have bettered myself, Your Honor.

And I'm just asking and praying, Your Honor, that you would be as lenient as possible and make a downward departure from the original 25 year sentence that I had, Your Honor. And I wish Wesley Anderson's family could have been present -- where I could address them. Because I most definitely took this serious and not toying about the situation. Because I was put in a terrible position, in which I afford [sic] to protect myself, Your Honor.

After hearing argument presented by the prosecutor and defense counsel, the trial court imposed a sentence as follows:

I hereby sentence Mr. Leday to 30 years Department of Corrections for these reasons. First and foremost, under the sentencing guidelines, Mr. Leday had a drug history, prior drug convictions with regard to drug use. He certainly understood the implications of drugs. He certainly understood the implications of PCP. I take his criminal history, prior history, into account. I do not find that he's accepted responsibility for his crime. He has spent all of his time with the Court, and it's the Court's opinion he's not showing any remorse whatsoever. It's always been excuses and not accepting responsibility. And showing up on the day of sentencing, with regard to a letter to talk to the Anderson family, is not persuasive to the Court.

Imprisonment is warranted, because a lesser sentence would deprecate the seriousness of the Defendant's crime. I find the crime of deliberate cruelty resulted in a death with the use of a dangerous weapon. I do not find any evidence of self-defense, which has been Mr. Leday's claim from [the] start. But he can't truthfully testify to that, because he doesn't know what happened. And we put, I think, a better record with regard to that defense on Monday, when he was here before. And that is the sentence of the court.

After defense counsel objected to the increased sentence, the trial court first questioned the point of having a new trial, stating, “He has a new trial. I mean, if that's the case, then I would have automatically had to sentence him from the get-go. What's the point of having a trial.” Defense counsel explained the conviction was at issue in the new trial, and the court responded:

My only response, Mr. Richard, is I'm not aware that I was restricted to the limit to his -- in fact, when I wrote down -- I had forgot, honestly, that his prior sentence was 25 years. I wrote down, as I analyze all of this -- this didn't come willy-nilly to me. I've studied this for quite some time, obviously. I wrote down 25 to 30. I would have imposed 25 years had I heard a little bit more -- not a little bit more, had I heard some sincerity and some type of acknowledgment of responsibility. Then I was gonna [sic] do the 25. I didn't hear that, and that's why he got the 30. And that's the justification for the difference of where I came from with that. My sentence is gonna [sic] stand until –

․

I don't know that to be -- I don't know that I'm restricted. So until I'm told I'm restricted, or there's a ruling that I'm restricted, then I'm gonna [sic] stick to 30 years. Obviously if I can't, then a higher court is gonna [sic] tell me, or resentence him themselves, or do the 25 I suppose.

Defense counsel orally objected and subsequently filed a motion to reconsider sentence reiterating the same position, that the trial court could not impose a greater sentence than the one imposed after the first trial. Defendant requests this court re-impose a twenty-five-year sentence which was what would have been imposed but for the sentencing court's actual vindictiveness.

Louisiana courts have considered the issue of whether maintaining a defendant's innocence at sentencing demonstrates a lack of remorse, depending on the circumstances presented. For example, in State v. Davenport, 06-363, pp. 5-7 (La.App. 3 Cir. 9/27/06), 941 So.2d 629, 632—33 (first alteration added) (footnotes omitted), this court granted relief where the sentencing court impermissibly relied on what it perceived to be a lack of remorse:

Additionally, the trial court also stated that it based its sentence partly on what it concluded was the defendant's obvious lack of remorse. This conclusion was apparently based on comments made by the defendant in the presentence investigation report, the argument of his counsel at the sentencing hearing, and the fact that Plowden entered a guilty plea to accessory after the fact for his involvement in the offense.

We make no comment concerning the contents of the presentence investigation report. However, the statements of the defendant's attorney relate to an attempt to introduce evidence of the victim's condition immediately prior to the accident as well as his prior criminal history. These offerings were rejected as being irrelevant. The trial court erred in concluding that the trial strategy of the defendant's attorney equated to a lack of remorse on the part of the defendant.

Additionally, regarding [codefendant] Plowden's plea, the trial court stated that this act “apparently [showed] some remorse and some acceptance rather than denial of his guilt,” as opposed to the defendant's decision to go to trial. One cannot necessarily equate Plowden's plea bargain as being an indication of remorse. Plowden's situation was different than that of the defendant. Importantly, while the defendant had a spotless criminal record, Plowden's was extensive. Thus, the incentive for entering into a plea agreement with the state and testifying against the defendant was significant, and the trial court erred in relying on Plowden's plea agreement as a basis for concluding that the defendant showed a lack of remorse. Essentially, the trial court punished the defendant for maintaining his innocence and requiring the state to prove his guilt. This was improper.

While the trial court acknowledged that the defendant was a candidate for probation, the trial court nevertheless sentenced him to a hard labor sentence, primarily based on its disbelief in the uncontradicted version of the surrounding circumstances, its finding of lack of remorse on the part of the defendant, the fact that Plowden had been sentenced to five years at hard labor, and the feelings of the victim's family. When the improper considerations are removed from the trial court's reasons for sentencing, we are left with only the recognized mitigating factors and the comments from the victim's family. Because the trial court was improperly influenced in sentencing the defendant by its conclusions with regard to the evidence presented as well as the remorse issue, we find it necessary to vacate the sentence and remand the matter to the trial court to resentence the defendant without consideration of those factors as they were originally presented.

The supreme court has considered a lack of remorse as a sentencing factor. In State v. Brown, 16-998, p. 122 (La. 1/28/22), 347 So.3d 745, 830, cert. denied, ––– U.S. ––––, 143 S.Ct. 886, 215 L.Ed.2d 404 (2023), the court stated:

With respect to the issue of remorse, the court has recognized that lack of remorse is relevant to the character and propensities of the defendant. See State v. Juniors, 03-2425, p. 63 (La. 6/29/05), 915 So.2d 291, 336 (“Evidence that a capital defendant shows lack of remorse does not inject arbitrariness into the proceedings, as a lack of remorse is ‘relevant to the character and propensities of the defendant.’ ”). In this case, while defendant declined to give Dr. Welner permission to interview him, Dr. Welner did note the sources he relied on in formulating his opinion regarding the lack of remorse, including prison records and mental health records. Dr. Welner testified to the absence of any references to remorse in any of the records, as well as a lack of change in defendant's personality after the incident, defendant's failure to speak out about violence, his failure to suffer a prolonged depression, and his failure to stop the murder of Capt. Knapps, all of which he testified were indicia of lack of remorse.

A lack of remorse is a relevant factor in sentencing a defendant; however, maintaining one's innocence does not inherently demonstrate a lack of remorse. As for what constitutes judicial vindictiveness in sentencing, the Fifth Circuit Court of Appeal in State v. Morgan, 08-1299, pp. 8-10 (La.App. 5 Cir. 5/26/09), 15 So.3d 1026, 1030—32, stated:

In State v. Garrett, 08–1752 (Ohio App. 2 Dist. 4/11/08), 2008 WL 1115246, the appellate court concluded that vindictiveness had been established. Garrett was convicted of five counts of aggravated robbery and 10 counts of kidnapping and sentenced to a total term of 39 years. The supreme court remanded the matter to the trial court for resentencing, and defendant was resentenced by a different judge to a total term of 53 years. On appeal, defendant argued that she was deprived of her constitutional rights when the resentencing court imposed a harsher sentence upon remand. The appellate court concluded that vindictiveness had been established because: (1) there was a complete absence in the record of any relevant facts subsequent to Garrett's first sentencing to suggest a harsher sentence was warranted; (2) although the judge referenced the serious nature of the offenses, those facts had not changed since Garrett was originally sentenced; (3) the length of the increase was a substantial 14 years; (4) the trial judge's comment that there was nothing stopping the defendant from getting more time than she got before indicated that the increased sentence was imposed merely because the judge concluded he had the unbridled discretion to impose it; and (5) the State did not recommend any increase in sentence. With nothing before them beyond an assertion by the trial judge of a ‘ “naked power to impose” ’ a harsher sentence, the appellate court inferred a personal animus against Garrett. As such, the appellate court reversed the judgment of the sentencing court and modified Garrett's sentence to a total term of 39 years. Id., pp. 3–7.

In U.S. v. Anderson, 440 F.3d 1013 (8th Cir.2006), cited by the State in its brief, the federal appellate court concluded that vindictiveness had not been established. In Anderson, the defendant was convicted of 49 counts of mail fraud and money laundering, among other things, and sentenced. The appellate court affirmed the convictions but remanded for resentencing. Defendant was subsequently resentenced by a different judge to an increased sentence. On appeal, defendant argued that the higher sentence was an impermissible, vindictive sentence intended to punish him for having exercised his right to appeal. The appellate court did not recognize a presumption of vindictiveness since there were different sentencers, and it found that defendant bore the burden of proving actual vindictiveness. The appellate court stated that, because defendant relied on no evidence other than the fact of the longer sentence to prove vindictiveness, his argument failed. The appellate court found that the higher sentence on remand was easily explained by the district court's views unrelated to the prior appeal. Id., 440 F.3d at 1013–17.

In the instant case, as in Garrett, supra, there was a complete absence in the record of any relevant facts subsequent to defendant's first sentencing to suggest a harsher sentence. In Garrett, the increase in defendant's sentence was fourteen years. In this case, defendant's sentence was increased by ten years since the enhanced sentences on each count were ordered to run consecutively, instead of concurrently. As in Garrett, the increase in the defendant's sentence in this case was substantial. Also, similar to Garrett, the trial judge in the instant case made a comment indicating that the sentence was being imposed merely because he concluded he had the unbridled discretion to impose it. In the instant case, the trial judge resentenced defendant, after which defense counsel objected to the sentences, noting that they were harsher than those originally imposed. Afterwards, the trial judge stated, “Well, I'm the sentencing judge, and that's what my sentence is.” Additionally, in the instant case, as in Garrett, the record does not indicate that the State recommended any increase in sentence. And, unlike [State v.] Neville[, 572 So.2d 1161 (La.App. 1 Cir. 1990), writ denied, 576 So.2d 46 (La. 1991)] and U.S. v. Anderson, the trial judge in the instant case did not provide reasons for his sentence.

We note it is possible, based on the record, that the trial judge may not have had a personal animus against defendant, but rather, he may have thought concurrent sentences were too lenient considering the disturbing facts of this case, that defendant raped his own biological daughter numerous times over a period of years. However, since the trial court did not provide reasons for the increased sentence on remand after appeal, we vacate defendant's enhanced sentence and remand this matter to the trial court for resentencing with orders that the trial court provide reasons for the sentence imposed.

In the present case, after a thorough review of the record, we find that a finding of actual vindictiveness by the trial court is not supported by the record. The trial court noted first and foremost Defendant's drug history and prior drug convictions which showed Defendant understood the effects of using PCP. The trial court further stated that it felt Defendant had not accepted responsibility for this crime or shown remorse, as supported by Defendant's statement in the presentence investigation report.

Additionally, we find the trial court properly articulated the factors, pursuant to La. Code Crim P. art. 894.4, and the reason for imposing a sentence of thirty years as opposed to twenty-five. As discussed above, a lack of remorse may be considered in sentencing a defendant. Finally, this was not a case of a significant increase without justification, and the record fails to contain any evidence indicating the trial court acted with punitive intent. Accordingly, we find that Defendant has failed to prove actual vindictiveness, and thus, this assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR:

Defendant claims his right to compulsory process was violated because both he and the victim were allegedly under the influence of PCP and alcohol. Defendant contends his right to a fair trial was denied by the absence of testimony from an expert in pharmacology.

At a motions hearing on April 19, 2024, Defendant acknowledged that he could not raise a voluntary intoxication defense because the State was pursuing a general intent provision of manslaughter, and specific intent was not a necessary element of the offense. On behalf of Defendant, defense counsel, Mr. Richard, provided the trial court with an update on where things stood with the request for Dr. George as an expert witness, stating:

Mr. George has not responded to my phone calls since -- I think I talked to him once, and it was very brief.

I do have an expert who I believe would be able to -- well, I know of an expert who I believe would be able to testify about Mr. what Mr. Leday is asking about. My office has used him. I know I have used him at least once before. Maybe other attorneys have used him well, that's how I found out about him.

Dr. Thomas Arnold teaches toxicology at LSUS at the medical school.

The court then issued the following ruling on the matter:

All right. The Court is granting in part denying in part the State's motion in limine relative to the intoxication defense.

The part that I'm granting is that Mr. Leday, nor any witnesses, cannot speak to him being intoxicated to the extent that that forms a defense to the manslaughter charge or allegation.

Mr. Leday, or any witness that he has, can speak to whether or not they observed him and what was going on prior to the incident, fight, whatever, as part of the crime unfolding.

With regard to bringing an expert to talk about what drugs can do to you, now that I have not allowed the intoxication defense, that is not going to be allowed.

So, basically, he, Mr. Leday, or whatever witnesses, can talk about his state of mind if they saw what was going on, but there won't be any jury instruction about general intent, specific intent, and intoxication defense being a defense to this crime. That part is being granted by the Court.

․

So based on that ruling, I'm denying any expert, pharmacologist, to come testify about drugs and what it can do. I think the jury has general knowledge. Everybody knows that if you're on drugs, you're high, maybe your mind is not right, and I don't think an expert is going to help a jury make that decision.

Everyone has common -- that's within the common knowledge of everyday people. We don't have any measurements. I didn't see anything in the file. I'm not aware of any blood draws of Mr. Leday. I'm not aware of any mixtures or whatever he claims -- or whatever he was high on that he claims.

So pharmacology, in my opinion -- the Court's opinion, will not aid a jury in determining whether or not Mr. Leday knew what he was doing or didn't know what he was doing.

Defendant explained to the trial court that he sought the testimony of a pharmacologist to address the victim's actions on the night of the homicide. The court's ruling remained the same:

I am still denying it because -- was there any testing? Your expert is going to give general testimony about the mixture of -- I'm denying that. I don't think any of that is going to aid the -- you already wrote somewhere I read -- so I don't know how that's going to get in. But from what I read, I think either in your motion or maybe State's motion, there is some evidence that y'all both were getting high before this happened.

So any expert on the mixture of drugs and all of that is being denied.

Defendant objected to the court's ruling.

Again, on May 13, 2024, when Defendant suggested that the trial court had not ruled on a previously filed pro se motion on this issue, the court disagreed, stating:

You're asking me to issue a subpoena for Dr. George, and we have been round and round and round. I don't know how many merry-go-rounds we have, sir, about my ruling on Dr. George and what he can and can not tell me about your intoxication about PCP. So for the record, this application of indigent defendant is in the context of you issuing a subpoena to Dr. George. I've already ruled on that, I'm not gonna [sic] repeat myself. So for the extent of you needing a rule on that one and for today's purposes, denied.

This issue was also raised in Defendant's motion for new trial, but relief was again denied.

Defendant contends that an expert witness could have presented facts to explain why he could recall some of the night's events but not others. He contends that a conviction of negligent homicide, a killing by criminal negligence, is more fitting in his case.

Criminal negligence exists when “there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” La.R.S. 14:12.

Additionally, La.R.S. 14:15 provides that intoxication is generally immaterial to criminal responsibility except when the intoxication is involuntary and directly causes the commission of the crime or when the intoxication “has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime.” (emphasis added). See also State v. Leroux, 94-133 (La.App. 5 Cir. 7/26/94), 641 So.2d 656. “[I]n a crime requiring general criminal intent the requisite intent is ‘generally found in the accused's intention to become intoxicated, i.e., the accused is held to have intended, in law, all the consequences of his intoxicated condition.’ ” State v. Scott, 344 So.2d 1002, 1006 (La.1977), (citing State v. Boleyn, 328 So.2d 95 (La.1976)); See also State v. Magee, 05-171 (La.App. 5 Cir. 10/6/05), 916 So.2d 1178, writs denied, 06-461, 06-464 (La. 9/22/06), 937 So.2d 377, 937 So.2d 377.

Based on the evidence, along with the foregoing statutory and jurisprudential authority, we find the trial court did not err in its ruling denying expert testimony regarding the effects of PCP and alcohol. Therefore, this assignment of error is without merit.

DECREE:

Defendant's conviction and sentence are affirmed.

AFFIRMED.

FOOTNOTES

1.   Defendant represented himself at trial with stand-by counsel assisting; and just as in Brown, stand-by counsel was present in court with Defendant.

ORTEGO, Judge.