STATE v. BOYER (2025)

On July 27, 2020, Derrionte Boyer (“Defendant”) was charged by bill of indictment with second degree murder of Justin Heath, a violation of La.R.S. 14:30.1. On July 29, 2021, the State filed a “Motion to Amend Bill of Indictment,” seeking to combine the following charges with the offense at issue herein: 1) principal to second degree murder of A'Martinez Jones, a violation of La.R.S. 14:24 and 14:30.1, filed in district court docket number 222,183; 2) attempted second degree murder of Nygee Augustine, a violation of La.R.S. 14:27 and 14:30.1, filed in district court docket number 222,181; and 3) attempted second degree murder of Terry Kyle, a violation of La.R.S. 14:27 and 14:30.1, filed in district court docket number 222,182. This charge was consolidated with charges against three other victims and tried by the same jury, and this appeal relates solely to victim Mr. Heath.

The jury unanimously found Defendant guilty of 1) manslaughter of Justin Heath, a violation of La.R.S. 14:31; 2) manslaughter of A'Martinez Jones, a violation of La.R.S. 14:31; 3) attempted manslaughter of Nygee Augustine, a violation of La.R.S. 14:27 and La.R.S. 14:31; and 4) attempted manslaughter of Terry Kyle, a violation of La.R.S. 14:27 and La.R.S. 14:31. Defendant received the following sentences: 1) forty years at hard labor for the manslaughter of Justin Heath, 2) ten years at hard labor for the manslaughter of A'Martinez Jones, 3) five years at hard labor for the attempted manslaughter of Nygee Augustine, and 4) five years at hard labor for the attempted manslaughter of Terry Kyle. These sentences were ordered to run consecutively.¹

This appeal contains one assignment of error. Defendant contends his forty-year sentence for the manslaughter of Justin Heath is constitutionally excessive.

FACTS:

On the night of November 23, 2019, and into the early morning of November 24, there was a birthday party at Club New Beginnings in Cottonport, Louisiana. Among the attendees were Defendant (DT), who was sixteen, his older brother, Brent Berry (Lil Brent), and the victims, Justin Heath, A'Martinez Jones (Monty), Nygee Augustine, and Terry Kyle. For some reason, a brawl broke out on the dance floor. Defendant was fighting Mr. Heath, some women were stomping on Mr. Jones, and men and women, perhaps fifteen to twenty, were fighting with fists, feet, and bottles. The brawl lasted for at least five minutes, and in the end, the fighting forced security to empty the club. As he was ejected by security, Defendant yelled at Mr. Heath. He said, “On my mama, I'm going to kill you.” Because Mr. Jones was still dazed by the many strikes to the head, Mr. Heath was helping Mr. Jones to the exit.

However, the fight was not over. There was just one door through which the clubgoers could exit, and at its threshold, they all started fighting again. Mr. Jones fell to the ground as he was assaulted. Then gunshots rang out. A few yards from the exit, Defendant shot into the crowd with the pistol his brother gave him. Defendant fled once Mr. Heath fell. In all, Nygee Augustine was hit in the arm and beneath the knee cap; Terry Kyle was hit in the foot; A'Martinez Jones was hit in the arm but died primarily due to the head injury he incurred during the fighting; and Justin Heath was hit eight times and died from his wounds after arriving at Bunkie General Hospital.

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 find one error patent.

It does not appear from the record that the State's July 29, 2021 “Motion to Amend Bill of Indictment” was formally granted by the trial court, nor does it appear that the amended indictment was formally filed. As the motion to amend noted, Defendant was charged with four separate offenses by four separate grand jury indictments. In the motion to amend, the State asserted that all of the charges should have been joined in the same indictment in accordance with La.Code Crim.P. art. 493.2.² Thus, the State asked for the indictments to be amended and the felonies joined, “in the interest of judicial economy and to avoid confusion of issues for the jury on the facts and circumstances of this case.” The trial court set the motion to amend for hearing on August 10, 2021, but neither the minutes of that date nor any subsequent date prior to trial indicate that it was heard. The Amended Bill of Indictment is signed by the District Attorney but has no file-date stamp or other indication (other than it being in the record) showing that it was filed. According to the minutes of May 31, 2022, the clerk read the “amended bill of information” to the jurors.

Even though the motion to amend was not formally granted, the State's motion was a proper way to consolidate the charges for trial:

Assuming that the crimes are otherwise properly joined in a single prosecution as a matter of La.C.Cr.P. art. 493 or 493.2, the state may effect consolidation without the approval of the defendant or the court by filing a superceding indictment. See La.C.Cr.P. art. 706, Off'l Cmt.1966 (“[T]he state can accomplish the same result by dismissing all charges and recharging in a consolidated form.”). The state may also achieve the same end by exercising its authority under La.C.Cr.P. art. 487 to make substantive amendments to an indictment at any time before the beginning of trial, subject to the defendant's right under La.C.Cr.P. art. 489 to move for a continuance if the amendment has led to his prejudice.

State v. Crochet, 05-123, p. 5 (La. 6/23/06), 931 So.2d 1083, 1086 (per curiam) (alteration in original). Since the offenses at issue all occurred during the same act or transaction and were all triable by the same mode of trial (they were all necessarily punishable at hard labor), joinder of the offenses was proper under La.Code Crim.P. art. 493. Thus, it was proper for the State to consolidate the charges by filing a motion to amend the indictment.

Considering the proper joinder of the offenses for trial, the failure of the trial court to formally grant the motion to amend was a technical deficiency that is harmless. Addressing a technical deficiency in another case, this court stated:

Defendant was originally indicted for second degree murder. In accordance with a plea bargain, the prosecution amended the indictment to reduce the charge to manslaughter. After defendant withdrew her guilty plea, the State failed to re-amend the indictment to second degree murder. As a result, defendant contends that she was tried under an invalid indictment.

The State's failure to re-amend the indictment is an error patent and, as such, may be asserted at any time. State v. Buttner, 411 So.2d 35 (La.1982). However, errors patent are not necessarily reversible errors. It is the potential impact of the error on the fairness of the proceedings which determines whether a reversal is required. State v. Minix, 438 So.2d 1261 (La.App. 3 Cir.1983); State v. White, 404 So.2d 1202 (La.1981).

The technical sufficiency of an indictment may not be raised after conviction where the accused has been fairly informed of the charge against him and has not been prejudiced by surprise or lack of notice and will not be truly subject to any jeopardy of further prosecution. State v. James, 305 So.2d 514 (La.1974); State v. Robicheaux, 412 So.2d 1313 (La.1982). In the present case, the reduction of the original charge to manslaughter was premised on a plea bargain arrangement. There is no claim that defendant and her attorney were not fully aware that when defendant chose to withdraw her guilty plea, the prosecution's offer to reduce the charge was likewise withdrawn. The indictment for second degree murder and defendant's plea were read in open court. No objection was made on defendant's behalf at that time. No surprise or lack of notice was shown or even claimed.

Furthermore, any error in failing to re-amend the indictment to charge defendant with second degree murder was clearly harmless error. The State had amended the indictment to charge defendant with manslaughter. Since defendant was convicted of manslaughter, the fact that the indictment was never formally re-amended resulted in no harm to defendant.

State v. Cox, 474 So.2d 523, 526–27 (La.App. 3 Cir. 1985), writ granted in part on other grounds, 481 So.2d 1328 (La.1986).

Similarly, in the present case, the minutes indicate the amended indictment was read in open court without any objection by defense counsel. Furthermore, no prejudices have been alleged on appeal. Accordingly, the error is considered harmless in this case.

ASSIGNMENT OF ERROR:

In Defendant's sole assignment of error, he contends his forty-year sentence for manslaughter is excessive. Though the trial court noted an objection to the sentence, no motion to reconsider was filed. In State v. Suydam, 23-475, p. 19 (La.App. 3 Cir. 2/28/24), 381 So.3d 867, 881–82 (alterations in original), writ denied, 24-441 (La. 11/20/24), 396 So.3d 69, the court addressed a general objection and the failure to file a motion to reconsider sentence:

“The failure to timely file a written motion to reconsider sentence or to orally urge any specific ground for reconsideration at sentencing precludes a defendant from objecting to the sentence imposed.” State v. Barling, 00-1241, p. 10 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1041, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331. Louisiana Code of Criminal Procedure Article 881.1 serves as the basis for this proclamation and provides, in pertinent part:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.

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B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.

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E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

“In cases where courts have held that an oral objection alone is sufficient to preserve the issue for review, the oral objection contained the basis for the motion, such as excessiveness of sentence.” Barling, 779 So.2d at 1041–42. When there is no basis for the objection, the court is relegated to a bare claim of excessiveness. Id. at 1042.

A bare excessiveness review typically addresses the nature and background of the defendant, the nature of the offense, and sentences imposed for similar offenses. State v. Latique, 18-622 (La.App. 3 Cir. 2/20/19), 265 So.3d 93, writ denied, 19-707 (La. 10/8/19), 280 So.3d 593.

Here, Defendant received forty years for his conviction of manslaughter. Thus, Defendant received the maximum sentence. La.R.S. 14:31(B). At the sentencing hearing, the trial court provided extensive reasons for imposing a maximum sentence, as follows:

In preparation for this sentencing, I read sentences from the mother, letters from the mother and relatives of the defendant. Relatives from the sentences ․ sorry, from the mother of the victim Justin Heath and relative [sic]. The pre-sentence investigation was simply a criminal history. The entire record of the proceeding, I reviewed the criminal history of this defendant which included a juvenile record and that he has a pending felony charge in LaSalle [P]arish for introduction of contraband into a penal institution.

I also looked at the statutory law and sentencing provisions set forth in Article 894.1 of the Code of Criminal Procedure. And I reviewed similar cases that had been reviewed by our higher courts, some very, very similar to this one, which I'll get to in a minute.

The evidence at trial indicates clearly that on November 24th, 2019, one 16 year old Derrionte Boyer participated in the beating of A'Martinez Jones that was being inflicted by several people. This occurred inside a club during a party. During the process according to the evidence, Justin Heath pulled Boyer away from the beating and Heath and Boyer got into it and according to the testimony of the bouncer, Boyer then told Heath on his mama he was going to kill him.

A'Martinez Jones who was unconscious was dragged out of the building by friends, including Heath, they were concerned about his well-being and as soon as they exited the club, right on the doorstep according to the evidence submitted, Derrionte Boyer who was standing a short distance away, shot a gun multiple times striking the obvious intended target Justin Heath, striking A'Martinez Jones a defenseless individual, and striking Nygee Augustine and Terry Kyle, bystanders.

As a result of this senseless act of violence Justin Heath died. A'Martinez Jones died as a result of the beating and also the gunshot wound based on the testimony of the professionals.

Nygee Augustine and Terry Kyle were injured. But clearly were not targets but the intent of shooting at Justin Heath was transferred to them by applicable law.

Evidence was clear that Justin Heath was the intended victim. The evidence indicated these facts. The multiple witnesses who testified at trial identified Derrionte Boyer specifically as being at the party with Brent Berry and that he was involved in the beating of A'Martinez Jones and that he fired a gun multiple times.

I've said this countless times in my career as judge. Why, why do people carry guns. What is the purpose of a gun? Why are guns made? Guns are made to kill. They aren't made to make people feel good. They are made to kill. And unfortunately in this situation in this cowardly act of shooting someone with a gun when that person is standing simply trying to help someone who is on the ground, unconscious is simply a cowardly act.

While these acts clearly could have resulted in a jury verdict of guilty as charged on all counts, for some reason the jury returned the responsive verdicts mentioned earlier, which was a big benefit to this defendant; manslaughter instead of second degree murder. Why did they do such, I don't know and may never know, we can only speculate; maybe it was because of his youth.

The defendant exercised his constitutional right not to testify, and if [sic] he made a statement here today which indicates and backs up some information received in the letters from his family but that's not an excuse to commit a senseless act of violence.

The sister of Justin Heath wrote a letter that was very, very insightful that Mr. Heath has a one year old son he'll never see. She also related that Mr. Meter, if I said it right, that walked in the hallway, crossing the defendant and the defendant laughed at him, which made her feel like the defendant was not taking this case seriously or this incident seriously. The mother of Justin, Ms. Catherine Hood, clearly not happy with the verdict of manslaughter, writing in a letter how can it be manslaughter when my son was shot 8 times. The mental suffering that she and family members have suffered, the loss of her son and this was a brutal murder. Her grandson Justin's son will never see his father. She's recommending and requesting a life sentence. But that would have been for the conviction of second degree murder which is not available to this court.

Ms. Nykeisha Berry, the mother of Derrionte Boyer wrote also a very impactful letter about how sweet child he was to find [sic], with no father figure as he just mentioned. That he is respectful and helpful as a child, even to the point that she was worried about obviously his behavior. She moved him to Alexandria and attended Peabody High and that he was going to be involved possibly in basketball. When you look at Derrionte such a good looking young man, I mean it's just no doubt that he could have done a lot of things with his life.

She says however in this letter he's not capable of anything he's been accused of. The jury found otherwise. The evidence indicated otherwise. I must note however that Ms. Berry specifically offers condolences to the family.

Also a letter from Lisa Harbor, aunt of Derrionte requesting leniency saying that Derrionte was always a respectful, smart, and kind young man. And the move to Alexandria was good for him. Even to the point that Derrionte did well in school and helped her daughter with science classes. Lisa Harbor says Derrionte deserves a second chance at life and manhood. But don't Justin Heath and A'Martinez Jones deserve a second chance? They can't get it.

These letters indicate [sic] how a nice young man with so much potential could do such a thing that he has been found guilty of. Is it influence by Brent Berry or others? Did he have a problem with A'Martinez Jones? Based on his statement here today, no, they were good.

He did have a juvenile record and clearly that's part of the reason for the move to Alexandria. As stated he has a pending charge of Possession of Contraband in LaSalle parish.

After reading these letters I then looked at the law and in fact the sentencing guidelines set forth in Article 894.1 of the Code of Criminal Procedure and you follow these guidelines it's clear that there's an undue risk that Mr. Boyer has to be sentenced to a correctional facility or custodial environment [sic] that can be provided most effectively by commitment to an institution [sic]. And any lesser sentence than the sentence that I issue this date would lessen or deprecate the seriousness of the crime, that being two manslaughters and two attempted manslaughters.

In looking at the aggravating factors, the following set forth in our law are applicable. Number one, the conduct of this defendant during the commission of the offense manifested deliberate cruelty to all of the victims. This defendant knowingly created a risk of death or great bodily harm to more than one person and in fact two people died and two more were seriously injured. Actual violence was used in the commission of the offense, which is an aggravating factor. The offense resulted in a significant permanent injury that being the death of two individuals. The offense used a ․ the offender used a dangerous weapon which is another aggravating factor.

And the actions that were committed, there's another aggravating factor, this defendant foreseeably endangered human life by discharging a firearm and put several people in danger and in fact struck four separate people.

In looking at the mitigating factors set forth in Article 894.1 none apply to Derrionte Boyer. The only mitigating factor that this court can consider is that he was only 16 at the time and it was clear [sic] on the wrong path. What is a 16 year old doing at a club fighting and then having a gun handed to him after he told somebody he was going to kill him. Just doesn't make any sense.

So after I went through those factors, I looked through cases that have been to the higher courts. And I'm going to cite several. In State versus Little, 253 So3d 1038, a 17 year old individual pled guilty to manslaughter. He was charged with second degree murder and the court in that case gave him the maximum of 40 years. Because in the gravity of the offense the culpability of the offender [sic] and said specifically that even though it's the maximum to serve ․ saved for worst offenders this was light in that case because the evidence actually supported second degree murder but the defendant received the benefit of the reduced conviction of manslaughter.

And what's important in that case even though he got the maximum that defendant apologized to the family of the victims and showed extreme remorse for his actions.

In State versus Wright 136 So3rd 288, a 19 year old first offender charged with second degree murder was convicted of manslaughter. In that case the victim and the defendant had a fight, sound familiar? Two others walked away, the defendant came back with a gun and shot the unarmed victim, sound familiar? Sentenced to the maximum of 40 years.

State versus Harris, an 18 year old first offender who accepted responsibility, two counts of second degree murder and he was convicted of manslaughter and negligent homicide. The judge gave 40 years on the manslaughter and five on negligent homicide to run consecutive.

In State versus Maze, 36 So3rd 1072 a plea to attempted manslaughter in that case brought a sentence of 20 years, which was upheld.

A lot of people talk about how young Derrionte was at the time this occurred, 16 years old. These cases contain the specific statement that say the defendant's youth is outweighed by the severe danger and the results that this danger and his actions brought. And that the leniency in this second degree murder case that brings back the verdict of manslaughter that is the leniency, instead of second degree murder life, manslaughter with a maximum of 40.

So after all of those things, the letters, looking at his record, the law, prior cases, with long and hard thought about this, Derrionte Boyer committed serious unprovoked acts of violence upon defenseless persons, clearly cowardly acts. And has shown no remorse. Others involved in this case will be tried and they will be dealt with accordingly if they are found guilty. Including Brent Berry, and various females who based on the testimony inflicted beating on A'Martinez Jones.

Therefore, after all of this, it's the sentence of the court on count one manslaughter of Justin Heath that Derrionte Boyer serve forty years at hard labor without benefit of probation or suspension of sentence but with credit for time served since November 24, 2019. On count two for his participation and involvement and the actions which resulted in the death of A'Martinez Jones sentenced to serve on the principle to manslaughter sentenced to serve ten years in the Louisiana Department of Corrections at hard labor without benefit of probation or suspension of sentence to run consecutive to any other sentence. On count three, the attempted manslaughter of Nygee Augustine five years Louisiana Department of Corrections to run consecutive to any other sentence. Count 4, Terry Kyle attempted manslaughter five years in the Louisiana Department of Corrections to run consecutive to any other sentence for a total sentence of 60 years.

On appeal, Defendant argues that maximum sentences are to be reserved for the most egregious and blameworthy of offenders, citing State v. Jones, 398 So.2d 1049 (La.1981). Defendant notes his maximum sentence is to run consecutively to three other sentences, namely: the ten-year sentence for the manslaughter of A'Martinez Jones, the five-year sentence for the attempted manslaughter of Nygee Augustine, and the five-year sentence for the attempted manslaughter of Terry Kelly. Defendant contends, that in total, he is to serve sixty years in prison even though he was sixteen when he committed his crimes. Defendant further contends the trial court failed to give proper weight to his youth, saying the signature qualities of youth are transient, individuals mature, and the impetuousness and recklessness that may dominate in younger years can subside, which is why youth is relevant as a mitigating factor. Defendant argues that not only was he very young, but he was also without positive guidance. Defendant points out that as Rhondita James testified, on the night of the shooting, Defendant's brother, instead of defusing Defendant who was threatening others in the charged and chaotic environment of the party, handed Defendant a handgun, which Defendant did not know how to use. Also, Defendant argues he lacked a father figure.

Beyond his young age, Defendant argues he is intelligent and has much potential for rehabilitation. Defendant acknowledged his mistakes and expressed sorrow for his actions. At the sentencing hearing, his mother described him as sweet, respectful, and helpful, and his aunt described him as smart, and that he attended high school and did well in school. He was possibly going to be involved in basketball. Defendant submits he can reenter society as a productive member before he is almost eighty years old. Lastly, Defendant argues the jury found the responsive verdict of manslaughter fit the crime committed in this case rather than second degree murder. For these reasons, Defendant says he is not the most egregious and blameworthy of offenders deserving of a maximum sentence.

Analysis

Defendant argues that the nature of the defendant and the nature of the crime committed are not sufficiently expressed. After a review of the record, and noting the trail court's extensive reasons for sentencing, we find the trial properly and sufficiently articulated the factors of La.Code Crim.P.art. 894.1, and that the nature of the defendant, including his youth and other mitigating factors presented, along with the nature of the crime committed are sufficiently expressed and addressed by the trial court.

As for the remaining factors, including the sentences imposed in similar cases, we note the following cases.

In State v. Lewis, 09-1404 (La. 10/22/10), 48 So.3d 1073, the supreme court considered a thirty-year manslaughter sentence imposed on a sixteen-year-old defendant who was originally charged with second degree murder. This sentence had been vacated by the fifth circuit on appeal, since the court found the sentence excessive; it even instructed the trial court that the maximum sentence it could affirm was twenty years. On reviewing the fifth circuit's decision, the supreme court noted the trial evidence showed the defendant (Larry Lewis), the victim (Lionel Crain), and their two friends (Issac Bush and Deverrick Johnson) were students at the Metro Outreach Christian Academy.

The boys decided that they needed a cigar to use as a “blunt” and Crain supplied the dollar bill used to make the purchase. The victim then left the scene briefly to check on his girlfriend who worked at a nearby restaurant. When Crain returned, he discovered that Isaac had split the cigar in half. Incensed that his dollar had, in effect, purchased only half of a cigar, Crain stripped off his t-shirt and challenged Isaac Bush to a fight. However, Deverrick Johnson intervened on Crain's behalf and struck the first blow, punching Bush in the back of his head. Accounts varied as to whether Johnson continued to fight with Bush, or whether Crain then interceded and began swinging at Bush. However, in the end, a 22–caliber handgun concealed in the pocket of Bush's jacket slipped out and fell to the ground. Defendant, who had watched the fight as a bystander, picked up the gun and in a manner that was sharply disputed at trial, fired a single fatal shot into Crain's left temple. According to Deverrick Johnson, defendant then turned in his direction, looked him in the eye, and asked, “You want some too?”

Johnson and Isaac Bush both testified that defendant brought up his arm, aimed at the victim's head, and without hesitation fired deliberately in what pathologist Dr. Susan Garcia, who performed the autopsy, described as an intermediate shot of somewhere between 18 and 24 inches from the victim's left temple, as evidenced by the tell-tale powder stripling around the wound. The track of the wound, from left to right through the victim's cerebral hemispheres, “was essentially horizontal” and somewhat forward as if the victim's head had been turned slightly to the right. The pathologist also expressed her opinion that the shot almost certainly had been fired from Crain's left side because it inflicted the wound to his left temple and that it was therefore highly unlikely that Crain had been advancing on defendant from the front when the weapon discharged. According to the state's firearms expert, the gun was in good working order and had a normal trigger pull, which meant that “you have to physically pull this trigger to discharge the weapon.” In addition, the expert testified that the gun had a loaded chamber indicator and a cocked indicator, which make it “pretty obvious [when] this weapon is cocked and loaded and ready to fire.”

On the other hand, defendant testified that after Deverrick Johnson knocked Isaac Bush to the ground and the gun spilled out of his friend's jacket, he picked up the weapon because it threatened everyone. Defendant testified that he had not brought the gun up all of the way and had not fully extended his arm when the weapon discharged accidentally. However, because he and Lionel Crain were approximately the same height, defendant could not account for how the bullet traveled left to right through the victim's head on an essentially flat trajectory. Nevertheless, defendant denied aiming the gun at Crain and he testified that the victim was advancing on him, perhaps in an attempt to grab the weapon for himself, when the gun discharged.

At the close of the evidence, the trial court remarked on the “utterly, totally stupid, waste of not one life now ․ one definitely gone ․ another one that's potentially gone forever,” and found defendant guilty of the lesser offense and responsive verdict of manslaughter. The court thereby spared defendant from a mandatory life sentence at hard labor without parole that would result from a conviction for second degree murder. La.R.S. 14:30.1(B). However, when it turned to sentencing, the court did not lose sight of the fact that defendant had claimed a human life under circumstances for which only the recklessness and immaturity of youth could account. The court thus noted at sentencing that, “We're talking about some marijuana and a one dollar cigar,” and that, while “we have a sixteen-year-old tried as an adult,” 16–year–old juveniles:

still think with sixteen-year-old brains. They don't think with thirty-year-old brains. If they thought with forty-or fifty-year-old brains, they wouldn't be fighting over a one dollar cigar with marijuana. But a life was lost, a young life that was a value to the people who loved him, and he lost his chance. So I don't take it lightly at all. I think a sentence which will serve the purpose of justice in this matter, and ․ because any lesser sentence ․ would deprecate the seriousness of the crime, is thirty years at hard labor.

Id. at 1075–76 (alterations in the original).

Additionally, the supreme court noted the fifth circuit's review of similar cases, like State v. Weatherspoon, 06-539, p. 33 (La.App. 5 Cir. 12/12/06), 948 So.2d 215, 235–36, writ denied, 07-462 (La. 10/12/07), 965 So.2d 398, where the initial charge of second degree murder resulted in a conviction for manslaughter, where the crime(s) involved a gun, and where the imposed sentences were between twenty-nine to forty years. In Weatherspoon, the sixteen-year-old defendant took part in a drive by shooting that was apparently provoked by an object hitting the car in which the defendant was riding. After the object struck the car, the defendant exited, fired into a crowd of people playing basketball, and killed a fourteen-year-old boy. The boy “sustained a single gunshot wound to the back base of his head that severed his spinal cord.” Id. at 219. For his actions, the defendant was charged with second degree murder but convicted of the responsive verdict of manslaughter, and he received the near maximum sentence of thirty-five years. Despite the defendant's youthful age, his seventh-grade education, and his low IQ, the fifth circuit affirmed his sentence. In Weatherspoon, the defendant “fired several shots into a crowd of people with no regard for human life.” Id. at 235–36. He “had a criminal history consisting of a juvenile adjudication for aggravated assault involving an incident with a knife and his mother.” Id. Further, his “alleged diminished mental ability was questionable.” Id. Additionally, the Weatherspoon court noted State v. Bowman, 95-667 (La.App. 4 Cir. 7/10/96), 677 So.2d 1094, 1101–02, writ denied, 96-2070 (La. 1/31/97), 687 So.2d 400, in which the fourth circuit upheld a sixteen-year-old defendant's thirty-three-year sentence on a manslaughter conviction.

The defendant, a first-time offender, had been charged with second-degree murder as a principal in a drive-by shooting in which the defendant drove the vehicle from which the fatal shot was fired. The Fourth Circuit found the trial court specifically considered several mitigating factors, including the defendant's age, the fact he was a principal to the crime, and the fact the jury returned a responsive verdict, which reflected the reduced culpability of the defendant. Noting that the defendant was a principal to a drive-by shooting that resulted in the death of one person and that the shooting occurred without any provocation, the court did not find the thirty-three-year sentence to be excessive.

Weatherspoon, 948 So.2d at 235.

Though courts have upheld higher range sentences in cases such as Weatherspoon, in Lewis the fifth circuit determined the circumstances in those cases were more shocking than the defendant's shooting of his classmate in the head. As the supreme court noted, the fifth circuit reasoned the defendant's actions were not as shocking because “there was no evidence of premeditation or ‘of a plan, scheme, motive, or specific intent formed before the defendant picked up the gun during the fight.’ ” Lewis, 48 So.3d at 1077 (citing State v. Lewis, 08-1317, p. 21 (La.App. 5 Cir. 5/26/09), 16 So.3d 385, 397). Nevertheless, by finding that the defendant's sentence was disproportionate to the offense, the fifth circuit seemed to contradict its other finding “that the evidence at trial supported the responsive verdict of manslaughter because it ‘was sufficient to prove second degree murder.’ ” Id. at 1074–75. The supreme court explained

that the proper perspective from which to approach sentence review in the present case accords paramount importance to the nature of the conduct proved at trial. While comparative proportionality review taking into account sentences imposed in other similar cases is a component of sentence review under La. Const. art. I, § 20, such review serves only to “set[ ] the stage” for the “later inquiry into the nature of the offender and the offense.” State v. Telsee, 425 So.2d 1251, 1254 (La.1983). In considering the nature of the offense, both the trial court and reviewing court may assess whether the crime for which defendant has been convicted adequately describes his conduct when the conviction is for a lesser included responsive offense to the crime charged. State v. Lanclos, 419 So.2d 475, 478 (La.1982) (“In a case such as this, where the offense to which the defendant has pled guilty inadequately describes his conduct, we find no abuse of the trial court's great discretion in imposing the maximum sentence possible for the crime to which the guilty plea is entered.”); see also State v. Stevens, 06-0818, p. 5 (La.App. 3rd Cir.1/31/07), 949 So.2d 597, 601 (quoting Lanclos); State v. Waguespack, 589 So.2d 1079, 1086 (La.App. 1st Cir.1991) (same). This general sentencing principle accommodates Louisiana's responsive verdict scheme which provides the fact finder, ordinarily a jury in felony cases, the discretion to return verdicts for lesser included offenses against the weight of the evidence presented at trial. State v. Porter, 93–1106, p. 4 (La.7/5/94), 639 So.2d 1137, 1140 (“Treating the jury's prerogative to return a responsive verdict similar to the jury's power of nullification, this court has consistently held that the jury must be given the option to convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged offense.”).

In the present case, the fact finder was the trial court, not a jury, and its remarks in returning the verdict of manslaughter reflected its awareness that its verdict would have profound sentencing consequences, as the charged offense of second degree murder carried a mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. That awareness prompted its remark that one life had already been lost and another (i.e. defendant's) hung in the balance. It also apparently prompted the court's return of a verdict for the lesser offense of manslaughter, thereby accounting for the differences between the brain of a 16–year–old and an adult which may result in different degrees of culpability for the same act. Cf. Graham v. Florida, 560 U.S. [48], 130 S.Ct. 2011, 2026 (2010) (“[B]ecause juveniles have lessened culpability they are less deserving of the most severe punishments․ [D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.”).

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In the present case, as described by Deverrick Johnson, the victim appeared all too willing to fight anybody over the dollar cigar as he ripped off his t-shirt before challenging Isaac Bush to a fistfight. However, in the melee that followed, defendant was not a combatant but a bystander. Defendant acknowledged in his testimony that Lionel Crain did nothing to provoke him, either by hitting him or his lifelong friend, Isaac Bush, as Bush grappled with Deverrick Johnson. Lionel Crain swung at Bush but, as far as defendant could tell from his vantage point, “he ain't never hit him.” Defendant testified that he approached the victim to make sure Crain did not “jump Isaac,” and “that's when the gun came out.” However, his claim for what happened next, which he repeated at sentencing, that the gun fired accidentally after he scooped it off the ground, defied the weight of the evidence presented at trial, not only by the eyewitnesses on the scene but also by the state's experts, that he held Isaac Bush's gun up near the left temple of Crain's head when the victim was turned slightly to the right and deliberately pulled the trigger of a weapon cocked and ready to fire, sending the bullet on a flat trajectory through the victim's brain. Those circumstances, which were bound to increase the odds of a lethal result from a single shot, described the offense of murder, not manslaughter. By returning the lesser verdict of manslaughter even against the weight of the evidence that defendant committed a second degree murder, and thereby taking into account that the 16–year–old brain does not work in the same manner as an adult brain, which would presumably grasp the folly of embarking on lethal conflict over a one dollar cigar, the trial court had already accorded full weight to the mitigating circumstance of defendant's youth when it then turned to the matter of sentence. Nevertheless, Louisiana law allowed for prosecution of defendant as an adult and thus held him accountable, and may hold him accountable, as an adult for the killing of Lionel Crain. Cf. Graham v. Florida, 560 U.S. [48], 130 S.Ct. 2011, 2027 (2010) (For purposes of the Eighth Amendment, which precludes life imprisonment of a juvenile offender for any crime other than murder, “[t]here is a line between homicide and other serious violent offenses against the individual.”)(internal quotation marks and citation omitted). Viewed from this perspective, the trial court's sentence of 30 years imprisonment at hard labor may be only 10 years short of the maximum term of imprisonment for the offense of manslaughter for which defendant has been convicted but it falls far short of the life term which the Louisiana legislature has deemed adequate to describe the moral culpability of his conduct.

Lewis, 48 So.3d at 1077–80 (second alteration added).

We find a review of the cases above, especially Weatherspoon and Lewis, strongly suggests the trial court in this case did not abuse its discretion in imposing the maximum sentence for manslaughter. While the sentences in the discussed cases were not the maximum, they were in the higher range. The sixteen-year-old defendant in Weatherspoon received thirty-five years for shooting into a crowd and killing a person even though he allegedly had a mental deficiency in addition to being very young. Here, and compared with this result, we find Defendant's sentence is supported by the record and thus does not appear unreasonable.

Secondly, and as the trail court states in its soliloquy and sentencing of Defendant:

While [Defendant's] acts clearly could have resulted in a jury verdict of guilty as charged on all counts, for some reason the jury returned the responsive verdicts mentioned earlier, which was a big benefit to this defendant; manslaughter instead of second degree murder. Why did they do such, I don't know and may never know, we can only speculate; maybe it was because of his youth.

Thus, and to the extent the trial court imposed the maximum sentence for those articulated reasons, we find the trial court followed the supreme court's reasoning in Lewis. As stated above, after fighting with the victim inside the club, Defendant waited, in an ambush manner, with a firearm outside and shot at the victim as he, among a crowd of people, was exiting the building through its only available door. We agree with the trial court that these circumstances would support a conviction of second-degree murder, and so the jury ultimately provided Defendant with a great benefit in returning a responsive verdict of guilty of manslaughter of Justin Heath.

Therefore, we find that the record fully supports the trial court's sentence, and we further find that even though Defendant received a maximum sentence, that sentence “falls far short of the life term which the Louisiana legislature has deemed adequate to describe the moral culpability of his conduct.” Lewis, 48 So.3d at 1080. Accordingly, this assignment of error is without merit and Defendant's sentence is affirmed.

DECREE:

Defendant's conviction and sentence for manslaughter of Justin Heath are affirmed.

AFFIRMED.

FOOTNOTES

1.   In docket numbers 25-102, 25-103, and 25-104, Defendant asserts the trial court erred in imposing consecutive sentences with this docket number 25-101. This issue will be addressed in the separate appeals pertaining to those docket numbers.

2.   Since all of the offenses were necessarily punishable at hard labor, the appropriate joinder article is La.Code Crim.P. art. 493.

ORTEGO, Judge.