STATE OF LOUISIANA v. DERRIONTE BOYER (2025)

On July 27, 2020, Defendant, Derrionte Boyer, was charged by bill of indictment with attempted second degree murder of Nygee Augustine, a violation of La.R.S. 14:27 and 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) second degree murder of Justin Heath, a violation of La.R.S. 14:30.1, filed in district court docket number 222,180; 2) 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; 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 Augustine.

The trial in all four district court docket numbers began on May 31, 2022, and ended on June 2, 2022. 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 14:31; and 4) attempted manslaughter of Terry Kyle, a violation of La.R.S. 14:27 and 14:31. On June 14, 2022, Defendant filed a motion for new trial which was denied, and he was sentenced on July 11, 2022. 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

On June 10, 2024, Defendant filed a pro se application seeking an out-of-time appeal, which was granted on August 29, 2024. Defendant's appeal presently before this court, pertaining to docket number 25-103 and his conviction of the attempted manslaughter of Nygee Augustine, contains one assignment of error. Defendant contends the trial court erred in imposing consecutive sentences when Defendant's case involved a single course of conduct.

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 helped 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. 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 no errors patent.

ASSIGNMENT OF ERROR:

Defendant contends the trial court erred in ordering consecutive sentences. Though the trial court noted an objection to the sentence, no motion to reconsider was filed. In State v. Suydam, 23-475, pp. 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.

Additionally, according to La.Code Crim.P. art. 881.1(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.

As this court noted in in State v. Pardue, 22-565 (La.App. 3 Cir. 3/15/23), 359 So.3d 158, failure to raise an argument regarding consecutive sentences in a motion to reconsider sentence precludes review. This court specifically noted:

At no time did Defendant specifically allege in his motion that the trial court erred in imposing consecutive sentences and he did not allege the trial court improperly considered the original charges of vehicular homicide before sentencing Defendant on the amended charges of negligent homicide. Furthermore, Defendant did not present any argument on these issues at the hearing on the motion to reconsider sentence. Therefore, pursuant to La.Code Crim.P. art. 881. 1(E), we find this court is precluded from addressing Defendant's arguments.

Id. at 170.

Accordingly, Defendant's claim is barred, and his sentence is affirmed.

DECREE:

Defendant's conviction and sentence for the attempted manslaughter of Nygee Augustine 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 docket number 25-101. This issue will be addressed in the separate appeals pertaining to those docket numbers.

GARY J. ORTEGO JUDGE