STATE OF LOUISIANA v. WHITLEY GILBERT (2026)

Defendant, Whitley Gilbert (“Defendant”), appeals her conviction and sentence for second degree murder. For the following reasons, we affirm Defendant's conviction, vacate Defendant's sentence, and remand the matter back to the district court for resentencing.

PROCEDURAL HISTORY

Defendant was charged by grand jury indictment with committing second degree murder of her brother, Louis “Quinn” Gilbert (“Victim”), a violation of La. R.S. 14:30.1.¹ At her arraignment, Defendant pled not guilty.

The matter proceeded to trial on May 20, 2024, with jury selection. At the conclusion of the trial, the jury returned a verdict finding Defendant guilty as charged. Thereafter, Defendant filed a motion for new trial and a motion for downward departure. On January 10, 2025, the district court denied the motion for new trial and the motion for downward departure. After Defendant waived sentencing delays, the district court sentenced Defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence. On April 17, 2025, Defendant filed a motion to reconsider her sentence, which the district court denied on June 11, 2025.

FACTS

At trial, the State introduced two 911 calls, New Orleans Police Department (“NOPD”) Officer Jose Fuentes and Officer Jonathan Mykulak's body camera footage, and the forensic interviews of Defendant's two daughters and her cousin. The State also presented four witnesses during its case-in-chief: Officer Jose Fuentes; NOPD Detective Maurice Stewart; Jennifer Olivarez, a forensic interviewer at the New Orleans Children's Advocacy Center; and Dr. Marianna Sandomirsky, a forensic pathologist. Defendant testified as the only defense witness. On rebuttal, the State called Daria Gilbert, Defendant and Victim's mother. The witnesses’ testimony is summarized below.

Officer Jose Fuentes

NOPD Officer Jose Fuentes was the first officer to arrive at the crime scene. When he entered the house, he found Victim lying on the floor. Defendant was kneeling over Victim, pressing a towel to his chest while she spoke with the 911 operator. Officer Jonathan Mykulak arrived a few minutes later. Officer Mykulak asked where the gun was, and Defendant gave it to him. Officer Fuentes escorted Defendant to his police unit and placed her inside before returning to secure the crime scene. Officer Fuentes testified that homicide detectives soon arrived, ending his participation in the case.

Marianna Sandomirsky

Dr. Marianna Sandomirsky (“Dr. Sandomirsky”), who performed Victim's autopsy, was accepted as an expert in forensic pathology at trial. She testified that Victim died as a result of a single gunshot wound to the chest. Dr. Sandomirsky noted that Victim had what appeared to be a bite mark on the back of his shoulder and another possible bite mark on the front of his shoulder, as well as various abrasions on his body.

Detective Maurice Stewart

Detective Maurice Stewart was assigned as the lead investigator on the case. He identified photographs of the scene taken by crime lab personnel. When he arrived on the scene, he saw Victim's body lying in the living room by a sofa, and he stated that only one firearm was found in the residence. Photographs were taken of Defendant, and Detective Stewart opined that there was no indication from these photographs that she had been severely beaten or strangled. He identified the gun recovered from the scene, and testing indicated that a casing found in the living room was fired from that gun. Because children were also at the scene, forensic interviews were conducted with them later that night at the Child Advocacy Center. Detective Stewart testified that the body camera footage from the responding officers and the 911 calls showed that Defendant admitted that she shot Victim, but she never said that she did so because she was afraid for her life.

On cross-examination, Detective Stewart admitted that the magazine was still inside the gun when it was seized, and it still contained seven unused bullets. He stated that photographs were taken of Defendant to document any injuries she may have sustained during the fight. He viewed various photographs and opined that it did not appear to him that she had bruising on her neck. He admitted that people bruise at different rates. He stated that the photographs were taken approximately thirty minutes to an hour after the shooting.

Jennifer Olivarez

Jennifer Olivarez interviewed Defendant's daughters, A.G., L.G., and C.G., and M.G., and her young cousin, J.W., at the Child Advocacy Center on the evening of the shooting. At the time of their interviews, A.G. was twelve years old; J.W. and L.G. were nine years old; and C.G. and M.G., who are twins, were four years old. Ms. Olivarez stated that CAC interviewers are specially trained to solicit information from children who are victims or witnesses to crimes without asking leading questions and that only the child and the interviewer are present during the forensic interview. Ms. Olivarez testified that L.G. indicated that she did not witness anything other than hearing some of the commotion, and M.G.’s statement was difficult to understand. The State played the interviews of A.G., J.W., and C.G. to the jury.

Forensic Interviews

In her interview, A.G. stated that the altercation between Defendant and Victim started after Victim took a drink that Defendant had put in the refrigerator. Defendant entered Victim's room, where he was sleeping, and began yelling at him about taking her drink. Defendant and Victim argued, and then Defendant picked up Victim's expensive watch and threw it. They then began fighting. A.G. stated that she and the other children were in another room watching a movie, but she went out to investigate when she heard the yelling and things crashing. She explained that the physical fight broke out when Victim either pushed or punched Defendant, and Defendant fought back. During the fight, Defendant bit Victim. A.G. stated that Victim then picked up Defendant, put her outside, and locked the screen door.

A.G. stated that Defendant continued to yell and ordered her to unlock the door. A.G. did so, and Defendant entered the house holding a gun, which A.G. initially thought was a taser. A.G. stated that while the fighting had stopped, Defendant and Victim continued arguing. Victim asked Defendant, “You really gonna shoot me?” Defendant then shot Victim, and he fell to the ground. A.G. stated that at the time of the shooting, Victim was at the end of the couch, and Defendant was near the door. A.G. stated that Defendant told her that Victim would be “fine” and began looking for her shoes.

In her interview, J.W. stated that on the evening of the shooting, Defendant was planning on attending a wedding. Defendant became upset because she could not find a drink she had placed in the refrigerator. Defendant went into Victim's bedroom and woke him up. After Defendant threw Victim's watch on the ground, they began fighting, and the fight continued into the kitchen. J.W. told the interviewer that Defendant was wearing a coat, and Victim grabbed the coat and swung her into the stove, causing her to fall into the washer and cleaning supplies. She stated that Victim hit Defendant and busted her lip. Then Victim picked up Defendant and moved her outside to stop the fighting. J.W. stated that she then went into another room where her cousins were watching a movie in order to distract them. J.W. stated that she heard a shot, and when she went to the living room, she saw Victim lying on the floor bleeding.²

Defendant

Defendant testified that on the evening of the shooting, she was getting ready to go to a wedding when she discovered that a bottle of vodka that she had been saving to take to the wedding was missing from the refrigerator. She woke up Victim to ask if he knew where it was, and he replied that “we” had drunk it. She became annoyed and told him to pay for the missing vodka. He refused and tried to go back to sleep, and she insisted he replace the vodka. Defendant testified that Victim became belligerent, cursed her, and told her to get out of his room and that he was not going to pay her anything for the vodka.

Defendant stated that she then picked up Defendant's new watch, told him she would keep it until he paid her for the bottle of vodka, and started to walk out of the room. Victim got up and struggled with Defendant to get the watch. She told him that if he wanted the watch to catch it, and she then threw it into the wall. Defendant insisted that Victim then punched her in the face. They started fighting, moving into the laundry room, where Victim grabbed Defendant's coat and “slung” her into the washer, and then into the kitchen. Her oldest daughter, who had been watching a movie with the other children in another bedroom, tried to break up the fight, and she told her daughter to go back into the bedroom and close the door. Defendant stated that after her daughter left, Victim grabbed her around the neck with his arm and started choking her. She stated that she bit him on the arm and then ran outside.

Defendant testified that as she ran to her car, she realized that she had left her keys on the bookshelf in the living room. She also realized that her shoes had come off during the fight. She stated that she reentered the house to get her shoes and keys, and she retrieved her gun from her purse to keep Victim away from her. She stated that she did not see Victim when she opened the door and that when she reached her bedroom, Victim appeared, saw the gun in her hand, and shouted, “You gonna shoot me?” Defendant insisted that although she told Victim she was not going to shoot him and to leave her alone, Victim ran at her as if to continue the fight, and she shot him once. She stated that she originally did not think the shot hit Victim or that if it did, it struck him in the arm because he was still walking around, and she did not see any blood. A few seconds after the shooting, Defendant grabbed her shoes, went outside and phoned her mother.

Defendant testified she did not call 911 right away because she did not believe Victim's injuries were serious or even that he had been struck by the shot. In her call to her mother, her mother told her to go back inside the house and check on Victim. When Defendant returned to the living room, Victim was lying on the floor and did not answer her. Her grandfather was on the phone with 911. Defendant grabbed his phone and spoke to the 911 operator. She began trying to aid Victim, and then the police and EMS arrived. Defendant stated that she told the police that she shot Victim and gave the officers the gun, which she had placed in her pocket.

Defendant testified that the police allowed her to retrieve her glasses (her contacts had been knocked out during the fight), and then she was placed in the back of a police unit. The police subsequently took photos of her body to record any injuries she may have sustained. Defendant stated that she had injuries to her lip and eye, had a broken fingernail, and sustained bruising to her neck that got darker the next day.

Daria Gilbert

On rebuttal, the State called Daria Gilbert, Defendant and Victim's mother. She described Victim's personality as laid back and stated that he avoided confrontation “at all cost[s].” She stated that Defendant was a good child, but as she grew older, she became aggressive and combative and bullied her younger brothers, including Victim. Ms. Gilbert testified that Defendant called her after the shooting and told her that she had shot Victim because “he was fighting [her] like a man, over [her] stuff.”

ASSIGNMENTS OF ERROR

On appeal, Defendant raises the following assignments of error:

1. The evidence was insufficient to support Defendant's conviction because the State failed to show the shooting was not in self-defense.

2. The district court erred by allowing the State to introduce videos of forensic interviews in lieu of the witnesses’ testimony, thereby violating Defendant's right to confrontation.

3. The State misled the jury during closing argument concerning self-defense.

4. The district court erred by denying Defendant's motion for downward departure of mandatory sentence pursuant to Dorthey 3.

5. Counsel was ineffective for failing to object to the introduction of the forensic videos in lieu of the witnesses’ testimony.

ERRORS PATENT

In accordance with La. C.Cr.P. art. 920, all appeals are reviewed for errors patent on the face of the record.⁴ After a review of the record, we have detected none.

DISCUSSION

Assignment of Error No. 1: Sufficiency of the Evidence

In her first assignment of error, Defendant asserts that the State failed to present sufficient evidence to sustain her conviction for second degree murder, as it failed to prove that she did not act in self-defense.

In reviewing a sufficiency of evidence claim, this Court is required to determine whether the evidence is sufficient to convince a rational trier of fact that all the elements of the crime have been proven beyond a reasonable doubt, when viewed in a light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Lightfoot, 18-0336, p. 4 (La. App. 4 Cir. 12/12/18), 318 So.3d 1033, 1038. As an appellate court, we must review the record as a whole just as the trier of fact would do. State v. Wilson, 22-0346, p. 4 (La. App. 4 Cir. 12/9/22), 353 So.3d 389, 393 (citation omitted). “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Huckabay, 00-1082, p. 32 (La. App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111 (quoting State v. Smith, 600 So.2d 1319, 1324 (La. 1992)). If conflicting testimony is presented, the conflict of testimony regarding factual matters affects the weight of evidence, not its sufficiency. State v. Sterling, 24-0160, 24-0161, p. 8 (La. App. 4 Cir. 7/17/24), 398 So.3d 80, 88 (citation omitted). “[S]uch a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness.” Wilson, 22-0346, p. 5, 353 So.3d at 393 (quoting State v. McGinnis, 19-0381, p. 11 (La. App. 4 Cir. 3/11/20), 364 So.3d 172, 180). If believed by the trier of fact, the testimony of a single witness is sufficient to support a conviction absent internal contradiction or a conflict with physical evidence. State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369 (citation omitted). As such, “[c]redibility determinations are entitled to great weight and will not be disturbed unless contrary to the evidence.” State v. Rainey, 15-0892, p. 9 (La. App. 4 Cir. 1/27/16), 189 So.3d 439, 444 (citation omitted).

The State charged Defendant with second degree murder, a violation of La R.S. 14:30.1, which is defined as “the killing of a human being․[w]hen the offender has a specific intent to kill or to inflict great bodily harm.” Defendant acknowledges that she shot Victim. She insists, however, that she did so in self-defense because they had been fighting, and he was advancing on her when she fired the shot that killed him.

“When a defendant asserts that he acted in self-defense in a homicide case, it is settled law that the [S]tate bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.” State v. Lehmann, 23-0386, p. 19 (La. App. 4 Cir. 2/5/24), 385 So.3d 268, 279 (quoting State v. De Gruy, 16-0891, p. 18 (La. App. 4 Cir. 4/5/17), 215 So.3d 723, 733). Under La. R.S. 14:18, “[t]he fact that an offender's conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct [under certain circumstances].” 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.” La. R.S. 14:20(A)(1). However, the defense of justification is unavailable to an offender “who is the aggressor or who brings on a difficulty ․ unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” La. R.S. 14:21; State v. Abbott, 17-0016, p. 17 (La. App. 4 Cir. 6/14/17), 222 So.3d 847, 857. In keeping with La. R.S. 14:21, this Court has explicitly provided that “the justification defense may not apply to a defendant who acts as the aggressor and provokes the situation.” State v. Wright, 24-0349, p. 7 (La. App. 4 Cir. 3/19/25), 418 So.3d 63, 69 (citing State v. Bethley, 22-0849, p. 6 (La. App. 4 Cir. 6/21/23), 368 So.3d 1148, 1154).

Here, Defendant argues that the evidence presented supports that she was acting in self-defense when she shot Victim. She asserts that Victim was the aggressor because he started the physical fight after she took his watch and threw it against the wall. She claims that during the fight, Victim tried to choke her. She claims that she was able to break free and then ran outside to get in her car, but after realizing that her keys and her shoes were still inside the house, she reentered the house to retrieve these items. Defendant testified that she drew her gun only to keep Victim away from her while she retrieved her belongings. She insisted that Victim ran at her as if to start the fight again, and she shot him once.

Defendant's account of her re-entry into the house and of the shooting conflicts with the account given by A.G. during her forensic interview. A.G. stated that after Victim picked up Defendant, relocated her outside, and locked the door, Defendant started screaming to be let back inside. A.G. stated that she only unlocked the door because Defendant ordered her to do so. She insisted that when Defendant shot Victim, there was no physical fighting at that point. She stated that Victim was standing in the living room at the end of the couch, while Defendant was standing by the door. A.G. stated that Victim saw the gun and asked if Defendant was really going to shoot him. She stated that Defendant then shot him.

Defendant argues that she remained on the scene, giving aid to Victim, which she asserts supports that the shooting was in self-defense. However, her mother, Daria Gilbert, testified that when she asked Defendant on the phone if she had called 911, Defendant told her that she was not going to do anything for Victim, and she, Daria Gilbert, needed to call the police. In addition, the 911 tapes reveal that only after the Defendant's grandfather called 911 and was having trouble communicating with the operator that Defendant calmly got on the line, admitted she had shot Victim, and attempted to stop his bleeding.

Defendant argues that the “medical proof established a single chest wound with no soot or stippling[, which is] consistent with a sudden, close-quarters domestic struggle and not inconsistent with a reasonable belief of imminent danger.” However, the coroner testified that the fact that there was no soot or stippling on Victim's body, indicated that Victim was more than two to three feet from Defendant when she shot him.

Defendant next argues that Victim had tried to choke her. The photographs of Defendant taken by the police about an hour after the shooting revealed faint marks on her neck, although Detective Stewart admitted that strangulation marks can appear later. Further, neither A.G., nor J.W. stated in their forensic interview that Victim tried to choke Defendant.

Lastly, Defendant argues that she had no duty to retreat during the fight and had the right to stand her ground. However, the fight had stopped after Victim picked Defendant up, put her outside, and locked the door. Defendant went back inside the house and re-started the argument with Victim. At that point, she was the aggressor.

Given these circumstances, the jury could have reasonably found that Defendant did not reasonably believe that she was in imminent danger of losing her life or receiving great bodily harm at the time of the shooting that could only be averted by shooting Victim. The jury's determination was reasonable, and thus the State presented sufficient evidence to show beyond a reasonable doubt that the shooting was not in self-defense. Although Defendant presented evidence that Victim struck her, moved her by force, and may have caused injuries during the fight, the jury could reasonably find that the fatal shot occurred after that physical encounter had ended. This assignment of error has no merit.

Assignment of Error No. 2: Denial of Defendant's Right to Confrontation

In her second assignment, Defendant asserts that the district court erred by allowing the State to introduce videos of the forensic interviews of A.G., J.W., and C.G. in lieu of their live testimony. She argues that by introducing only their interviews, she was denied her constitutional right to confrontation because she could not cross-examine these witnesses.

La. R.S. 15:440.4 and 15:440.5 both allow the admission into evidence of a videotaped statement of a “protected person.” La. R.S. 15:440.4(A) provided at the time of trial as follows:

A. A videotape of a protected person may be offered in evidence either for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:

(1) That such electronic recording was voluntarily made by the protected person.

(2) That no relative of the protected person was present in the room where the recording was made.

(3) That such recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement.

(4) That the recording is accurate, has not been altered, and reflects what the protected person said.

(5) That the taking of the protected person's statement was supervised by a physician, a social worker, a law enforcement officer, a licensed psychologist, a medical psychologist, a licensed professional counselor, or an authorized representative of the Department of Children and Family Services.

La. R.S. 15:440.5 provides, in pertinent part:

A. The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if:

(1) No attorney for either party was present when the statement was made;

(2) The recording is both visual and oral and is recorded on film or videotape or by other electronic means;

(3) The recording is accurate, has not been altered, and reflects what the witness or victim said;

(4) The statement was not made in response to questioning calculated to lead the protected person to make a particular statement;

(5) Every voice on the recording is identified;

(6) The person conducting or supervising the interview of the protected person in the recording is present at the proceeding and available to testify or be cross-examined by either party;

(7) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and

(8) The protected person is available to testify.

“Protected person” was defined at the time of trial to include “any person who is a victim of a crime or a witness in a criminal proceeding and who is ․ [u]nder the age of seventeen years[.]” La. R.S. 15:440.2(C)(1).⁵ Pursuant to La. R.S. 15:440.2(C)(1), A.G., J.W., and C.G. were “protected persons” by virtue of being under the age of seventeen and witnesses in a criminal proceeding.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. The confrontation clause of the Louisiana Constitution expressly guarantees the accused the right “to confront and cross-examine the witnesses against him.” La. Const. art. I, § 16. Defendant argues that, because the State merely made A.G., J.W., and C.G. available and did not call them as witnesses in the State's case-in-chief, she was put in the “no-win” situation of either calling these child witnesses to the stand at the risk of inflaming the jury or avoiding the jury's wrath at the cost of waiving her constitutional right to confront and cross-examine key witnesses. Defendant relies on Lowery v. Collins, 988 F.2d 1364 (5th Cir. 1993), to support this contention. The Lowery court determined that placing a defendant in the untenable position of calling the child witness for cross-examination and risking inflaming the jury or, in the alternative, waiving his right to confrontation, was a choice that did not meet constitutional muster. 988 F.2d at 1369-71.

A review of the trial transcript shows that defense counsel did not object to the introduction of the forensic interview videos. In fact, upon the State's offering of each of the videos, defense counsel explicitly stated that he had no objection to its admission. In addition, at the conclusion of the State's case-in-chief, both parties agreed that the jurors could view the forensic interviews during deliberations if they asked for them.

“An irregularity or error cannot be complained of after the verdict unless it was objected to at the time of the occurrence.” La. C.Cr.P. art. 841(A). If an appellant fails to make a contemporaneous objection, the issue is not preserved for appeal. Absent a contemporaneous objection at trial, this Court will not consider an assignment of error raised for the first time on appeal. State v. Trung Le, 17-0164, p. 18 (La. App. 4 Cir. 4/11/18), 243 So.3d 637, 656. The continuous objection rule applies to claimed confrontation violations. State v. Vallo, 13-1369, p. 4 (La. 1/10/14), 131 So.3d 835, 837 (per curiam) (holding that a defendant must make a contemporaneous objection “to a claimed confrontation violation” in order to preserve it for appellate review). Because trial counsel did not object to the introduction of the forensic interviews, this argument was not properly preserved for appellate review.

Assignment of Error No. 5: Ineffective Assistance of Counsel

In her fifth assignment of error, Defendant complains that she was denied effective assistance of counsel when her trial counsel failed to object to the introduction of the forensic interviews in lieu of the presentation of the children's live testimony.

An ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Boyd, 14-0408, p. 2 (La. App. 4 Cir. 9/12/18), 318 So.3d 403, 405. We find Defendant's claim would be more properly raised by application for post-conviction relief in the trial court where, if necessary, a full evidentiary hearing can be conducted. Accordingly, we will not discuss this assignment in this direct appeal.

Assignment of Error No. 3: Closing Argument

By her third assignment of error, Defendant alleges that the State committed reversible error in its closing argument concerning the issue of self-defense. She contends that the prosecutor's arguments were an improper attempt to “shift the burden” to the defense to show that she acted in self-defense, rather than requiring the State to prove that she did not act in self-defense. She further contends that the State's argument implied that she was guilty because she did not “retreat” from the house after Victim put her outside and locked the door.

Pursuant to La. C.Cr.P. art. 774, closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” However, prosecutors retain “considerable latitude” when making closing arguments. State v. Taylor, 93-2201, p. 19 (La. 2/28/96), 669 So.2d 364, 374; State v. Henry, 13-0059, p. 29 (La. App. 4 Cir. 8/6/14), 147 So.3d 1143, 1160. Further, the district court has broad discretion in controlling the scope of closing arguments. State v. Casey, 99-0023, p. 17 (La. 1/26/00), 775 So.2d 1022, 1036; State v. Diggins, 12-0015, p. 26 (La. App. 4 Cir. 10/23/13), 126 So.3d 770, 791.

“[E]ven if the prosecutor exceeds these bounds, the court will not reverse a conviction unless ‘thoroughly convinced’ that the argument influenced the jury and contributed to the verdict.” Casey, 99-0023, p. 17, 775 So.2d at 1036 (citations omitted). This Court has recognized that “great consideration should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence, heard the arguments, and repeatedly been instructed by the trial judge that arguments of counsel are not evidence.” State v. Lawrence, 12-1026, p. 6 (La. App. 4 Cir. 7/3/13), 120 So.3d 812, 817 (citations omitted).

Defendant raises two complaints about the State's closing argument. She first asserts that the State attempted to shift the burden to the defense through its argument as to what a person acting in self-defense would normally do after a shooting. The prosecutor stated:

That is what a person does when they kill another person in self-defense. They say that they acted in self-defense. They don't call 911 and just say, yeah, I shot him, whatever. They don't call their mom and say: Yeah, I shot him. He fought me like a man. When the police show up at the scene and ask what happened, you don't just say I shot him, with no explanation. If there is a good explanation for why you took a human life, you give that to as many people as possible, as early as possible.

The defense objected on the ground of burden shifting, and the district court overruled the objection.

We find no merit in this argument. When taken in context, by the challenged remarks, the prosecutor was merely arguing that the evidence adduced at trial did not support Defendant's theory of self-defense. The remarks did not impermissibly shift the burden of proving self-defense to Defendant. See State v. Hicks, 395 So.2d 790, 796 (La. 1981)(finding that prosecutor's statement in closing argument in second-degree murder trial that defendant “would have to show that a killing is necessary to save himself from that danger” did not wrongfully shift burden of proving self-defense to defendant).

Defendant's second complaint about the State's closing argument concerns the duty to retreat. During closing argument, the prosecutor stated: “Now again, I'm not saying [Defendant] had a duty to retreat. What I'm saying is that she had the option not to advance.” Defense counsel objected on the ground that the State was arguing Defendant had a duty to retreat, and the district court overruled the objection. The prosecutor continued:

Ladies and gentlemen, if [Defendant] had been standing on that porch and [Victim] had attacked her, as she stood on the porch, and she shot him there, that is standing her ground. However, when she pulled out a gun and banged on the door and demanded that she be allowed back in that home, that is a tactical forward advance. She is creating an altercation at that point. She's not standing her ground and meeting force with force. She is on the attack. It was not reasonable at that point to take a human life. She could have not advanced. Or even after advancing ․ she could have shot the gun in the air. She could have shot him in the knee.

With regard to the issue of retreat, La. R.S. 14:20 provides, in pertinent part, as follows:

C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.

D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

Defendant contends that the State's argument implied that she was guilty because she did not “retreat” from the house after Victim put her outside and locked the door. We disagree. A review of the State's argument shows that the prosecutor focused on the fact that the altercation had ended and Defendant was out of danger immediately prior to the shooting, but she chose to re-engage with Victim by entering the house with a drawn gun.

Defendant has not shown that the State's argument was improper or that the district court abused its discretion by overruling counsel's objections to the argument. In addition, the district court instructed the jury that Defendant had no duty to retreat. Accordingly, we find this assignment of error has no merit.

Assignment of Error No. 4: Motion for Downward Departure

Defendant next asserts that the district court erred in denying her motion for a downward departure pursuant to State v. Dorthey, 623 So.2d 1276 (La. 1993), arguing that the district court imposed the mandatory statutory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence under the mistaken belief that it lacked discretion to impose a sentence below the statutorily mandated life sentence.

In Dorthey, the Louisiana Supreme Court held that a trial court may grant a downward departure from a mandatory sentence in the context of the habitual offender laws if the mandatory sentence constitutes excessive punishment. 623 So.2d at 1280. Following Dorthey, the Supreme Court held that such discretion to depart from a mandatory minimum sentence is not limited to sentences derived from the imposition of the habitual offender statute. See State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274, 1275 (per curiam) (noting that “[o]ur observation in Dorthey, that ‘the review of sentencing, including sentencing under R.S. 15:529.1, is a long established function of the judicial branch,’ does not, nor did we intend it to, restrict the sentence review principles espoused in that decision solely to the mandatory minimum penalties provided by La. R.S. 14:529.1.”) (internal citations omitted).

In State v. Green, this Court vacated the defendant's life sentence and remanded the case to the district court because the record indicated that the “trial court erroneously believed that it could not, under any circumstances, impose any sentence other than life.” 10-0008, p. 9 (La. App. 4 Cir. 11/17/10), 52 So.3d 253, 259 (citations and internal quotations omitted). The Court found that it “was error for the district court not to have at least considered an alternative sentence under Dorthey which makes it clear that a court can find a mandatory minimum sentence under the Habitual Offender Law to be constitutionally excessive and impose a lesser sentence upon the defendant's request.” Id. (citation and internal quotations omitted). Likewise, in State v. Sims, this Court vacated the defendant's life sentence and remanded the matter to the district court because “the [district] court's comments indicate[d] a belief that it had no discretion in sentencing under the Habitual Offender Law and, thus, no choice but to impose a life sentence on the defendant as a triple offender.” 13-0177, p. 12 (La. App. 4 Cir. 8/28/13), 123 So.3d 806, 814.

Defendant argues that “the [district court] erroneously concluded it lacked the constitutional discretion to deviate” from the mandatory minimum sentence in denying her motion for downward departure. A review of the transcript reveals this argument has merit. Specifically, the hearing transcript provides:

THE COURT:

So, the Court has had an opportunity to review Defense's motion for downward departure from the mandatory minimum, and I tend to agree with the State of Louisiana that it's the Court's position that the Dorthey case primarily is -- concerns those that have been multiple bill[ed] on nonviolent cases.

The legislature in the State of Louisiana has made the determination that the sentence for the crime of second-degree murder is life without imprisonment -- life imprisonment without the benefit of probation, parole, or suspension of sentence.

* * * *

So, unfortunately, the penalty is life, and so at this point, that's what I have to -- I have to sentence [Defendant] to. So at this point, I am going to deny the motion for downward departure.

It is apparent from the district court's comments that it believed that it had no discretion and that it could not impose any sentence other than that mandated by La. R.S. 14:30.1. Accordingly, we vacate Defendant's sentence and remand the matter back to the district court for resentencing to consider Defendant's claim that the mandatory minimum life sentence without benefits is unconstitutionally excessive as applied to her.

CONCLUSION

For the reasons stated above, we affirm Defendant's conviction and vacate her sentence and remand for a new sentencing hearing in accordance with the views expressed herein.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED

FOOTNOTES

1.   The indictment also charged Defendant with tampering with a monitoring device, a violation of La. R.S. 14:110.3. Defendant pled guilty to this count on May 20, 2024, just prior to the start of her second degree murder trial. She was subsequently sentenced to serve one year at hard labor, concurrent with her life sentence for second degree murder. That plea and sentence are not challenged in this appeal.

2.   The State also played the video of C.G.’s interview, but because of her young age, it is difficult to understand C.G.’s statement. She told the interviewer that Defendant was in jail because she had shot her “Aunt Quinn.” She stated that Defendant and Victim were fighting, and Victim had been mean to Defendant by taking her drink. At one point, C.G. stated that Defendant put a fork or a knife into Victim's eye.

3.   State v. Dorthey, 623 So.2d 1276 (La. 1993).

4.   An error patent is “[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La. C.Cr.P. art. 920(2).

5.   La. R.S. 15:440.2(C)(1) currently defines “protected person” to include “any person who is a victim of a crime or a witness in a criminal proceeding and who is ․ [u]nder the age of eighteen years[.]”

Judge Joy Cossich Lobrano