On May 26, 2005, the Defendant, Wade C. Griffin, was charged in an indictment with second degree murder, a violation of La.R.S. 14:30.1. The Defendant entered a plea of not guilty on June 2, 2005.
The matter proceeded to trial by jury on October 18, 2005, and on October 19, 2005, the jury returned a verdict of guilty of manslaughter, a violation of La.R.S. 14:31. A motion for new trial was filed on November 10, 2005, and denied on January 30, 2005.
Also, on January 30, 2005, the Defendant was sentenced to serve thirty-five years at hard labor. A motion to reconsider sentence was filed on February 3, 2006. The motion was denied on February 23, 2006.
A notice of appeal and designation of record were filed on February 2, 2006. The Defendant is now before this court asserting three assignments of error. The Defendant contends the jury erred in rejecting the affirmative defense of self-defense and finding him guilty of manslaughter, the sentence imposed was constitutionally excessive, and the prosecution for second degree murder constituted double jeopardy. We find these assignments lack merit.
On March 22, 2005, the Defendant stabbed Marcus Conway, who subsequently died as a result of his injuries.
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.
ASSIGNMENT OF ERROR NUMBER ONE & PRO SE ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, the Defendant contends the jury erred in rejecting the affirmative defense of self-defense and finding him guilty of manslaughter.
This court discussed the state of the law regarding self-defense in State v. Alexander, 04-788, pp. 1-2 (La.App. 3 Cir. 11/17/03), 888 So.2d 401, 402, as follows:
The Defendant has two stepchildren, Jill Washington and Chad Washington. Marcus Conway, the victim, was Jill's longtime boyfriend. The Defendant admitted that he stabbed Marcus on March 22, 2005, and, as a result, Marcus died. Although Marcus was stabbed in the abdomen, an autopsy revealed that he died as a result of an injury to an artery located at the back of the spinal column.
At approximately noon on March 22, 2005, the Defendant returned home after being out all night. Jill and Chad testified that at that time the Defendant and his wife, their mother, began to argue. However, the Defendant testified that he and his wife were merely talking. During the course of the argument, the Defendant referenced Jill's relationship with Marcus. Jill testified that the Defendant said Marcus got her on drugs, Marcus used drugs, and Marcus was having sexual relations with other girls. The Defendant testified that during the argument Jill began ranting and raving and his wife told him to be quiet, that he was going to make Jill hemorrhage, as she was seven months pregnant at the time.
Between 3:00 and 3:30 p.m., Jill and Chad brought their mother to work. Jill then went to see Marcus and told him about her argument with the Defendant. Jill and Chad then left to return home and Marcus left right behind them. However, Marcus arrived at the apartment before Jill and Chad.
The Defendant testified that after Jill, Chad, and his wife left, he heard a knock at the door and looked outside to find Marcus standing by his car. Marcus asked the Defendant if there was something the Defendant needed to speak to him about. During that time, Marcus and the Defendant were standing in the parking lot of the apartment building on the left side of Marcus' car near the area by a concrete parking stop. Jill and Chad then pulled up. Jill testified that when she drove up Marcus was standing on the side of the concrete parking stop closest to his car and the Defendant was standing on the other side of the concrete stop. Chad testified that when he and Jill arrived, the Defendant and Marcus were near the apartment window. The Defendant testified that Jill got out of the car and told Marcus, "this m____r f____r here he said you get me high, [he] said you out screwing people and this that and the other." The Defendant testified that Jill then told Marcus the Defendant said Marcus' mother bought his car. In response, Marcus said, "we're going to take this to the next level." Marcus then went to his car and the Defendant testified that at that time he heard the trunk pop and looked to see Marcus at the trunk of the car. The Defendant further testified that Marcus then ran into him and he "went back" and then threw his hands up to block his face and head. The Defendant then testified as follows:
However, the Defendant was questioned regarding whether, on the date of the offense,
The following exchange occurred regarding when the Defendant pulled out the knife he used to stab Marcus:
The Defendant testified that when he stabbed Marcus, Marcus was coming straight at him. The Defendant further testified that when he pulled out the knife he and Marcus were in the area of the concrete parking stop in the "front vicinity of the car." He then indicated they were by the car door at that time.
The Defendant testified that when he realized he had stabbed Marcus, he ran behind Marcus to check on him. The Defendant testified that when he went to Marcus, he picked up Marcus' head and put his hand over Marcus' wound. He also told Marcus "don't die."
Jill testified that when she and Chad drove up, Marcus was telling the Defendant that the Defendant should not be saying things about him in front of Jill's mother. Jill further testified that Marcus then walked by his car door, which was open, and the Defendant came up to Marcus, who had his hand on the car door, and pointed his hand in Marcus' face. Marcus then pushed the Defendant back and the Defendant went back toward Marcus and Marcus said, "man you stabbed me." Jill testified that after Marcus was stabbed he ran across the street. Jill further testified that the Defendant ran after Marcus stating, "I told ya'll." The Defendant then picked up Marcus' head and said "don't die on me n____r, n____r don't die." At that time, the Defendant was crying.
Jill testified that she never heard Marcus say "we're going to take this to the next level or we're going to handle this right now." She did not see Marcus pop the trunk of his car. Additionally, she did not see the knife used to stab Marcus and did not see Marcus with a weapon.
Chad testified that upon arriving home, Jill got out of the car and screamed, "[t]hat b___ch and that m____r f____r he said it and all that" at Marcus. Marcus then told the Defendant "keep my name out of your . . . f____g mouth." Chad also testified that the Defendant was not angry or physically aggressive toward Marcus at that time. Chad heard Marcus say, as Marcus walked toward his car, "we can handle this right here if you want to." Chad later testified that Marcus said, "Right now if you want to." Marcus then sat in his car and Chad entered the apartment.
Chad testified that he was in the apartment for five minutes then went outside and saw Marcus running. The Defendant then ran behind Marcus and later went over to Marcus and told him it would be all right. Chad did not see a weapon in Marcus' hand and did not see him pop the trunk of his car, although the trunk had been popped. Additionally, he did not see Marcus hit the Defendant that day.
Officer Teronda Augustine responded to the 911 call regarding the incident at 4:03 p.m. on March 22, 2005. When she got to the scene, the Defendant was in the door of the apartment crying. At that time, Jill approached the Defendant and yelled, "you didn't have to stab him." The Defendant then told Officer Augustine, "I did it, I stabbed him" and handed her a knife. On the way to the police car, the Defendant told Officer Augustine he did not mean to do it and that it was self-defense. Officer Augustine's report indicated Jill stated the Defendant felt that Marcus was going to get a gun from the trunk of his car; therefore, the Defendant felt threatened.
Officer Augustine searched Marcus and the area surrounding him and found no weapons. Officer Augustine was told the trunk of Marcus' car had been popped. Upon approaching the car, Officer Augustine noticed that the trunk was open, so she looked inside the trunk and found no weapons. Officer Augustine testified that the trunk was not fully opened, and that
The State had the burden of proving the Defendant did not stab Marcus Conway in self-defense; therefore, we must determine whether the Defendant reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm and that killing Marcus was necessary to save himself from that danger. The standard in La.R.S. 14:20 is whether the Defendant's subjective belief that he was in danger was reasonable. State v. Brown, 93-1471 (La.App. 3 Cir. 5/4/94), 640 So.2d 488.
State v. Spivey, 38,243, p. 6 (La.App. 2 Cir. 5/12/04), 874 So.2d 352, 357.
State in Interest of D.S., 29,554, p. 3 (La.App. 2 Cir. 5/7/97), 694 So.2d 565, 567.
The Defendant argues that he reasonably believed he was in imminent danger of losing his life or receiving great bodily harm and that the killing of Marcus Conway was necessary to save himself from danger. The Defendant further contends that the measurements performed by Officer Augustine at the crime scene give an accurate picture of the small distance between Marcus' vehicle and where the Defendant was located and these measurements had a direct bearing on his ability to retreat or make judgments as to the gravity of the situation.
The Defendant then discusses his ability to retreat and contends that he had no opportunity to do so. He notes that his
Lastly, the Defendant contends the evidence established the following: 1) Marcus drove to the Defendant's home seeking a confrontation; 2) Marcus was the aggressor, both verbally and physically; 3) Marcus threatened the Defendant, both verbally and physically; 4) Marcus went to his trunk and opened it, either to retrieve a weapon or to act in such a manner as to make the Defendant believe he had a weapon; 5) Marcus physically attacked the Defendant; and 6) the Defendant had no opportunity to retreat.
We will first discuss the Defendant's belief that Marcus was armed with a weapon. The Defendant testified that when Marcus mentioned the next level he thought Marcus was getting into his car to "pull off and come back and take it to the next level." The Defendant further testified that taking something to the next level meant "we're through talking. And we're going to take it to the next level, we're going to get physical." When asked what went through his mind when Marcus' trunk popped, the Defendant testified that alarms started going off in his mind. When he looked toward Marcus' car, Marcus was in the trunk and the Defendant figured he was getting a gun. The Defendant further testified that he was thinking of a way to get to his apartment or for a way out. The Defendant looked at the apartment door, but did not think he could get to the apartment door before Marcus got to him. He further testified that by the time he could take off, Marcus was already on him. The Defendant also testified that he did not see Marcus' hands during that time.
The following exchange occurred regarding whether the Defendant felt Marcus had a weapon:
The Defendant testified that at no time did he intend to kill Marcus or cause him great bodily harm. Additionally, the Defendant testified that he felt his life was in jeopardy and he acted reasonably under the circumstances.
Based on the Defendant's testimony, we find that Marcus punched or swung at the Defendant several times and the Defendant stabbed Marcus. The Defendant testified that, at that point, Marcus was in his face and he did not think Marcus had a gun. The Defendant further testified that Marcus could have had a knife; however, the Defendant then testified "I didn't have time to see a weapon." We find that this testimony indicates that, at the time the Defendant stabbed Marcus, he did not know if Marcus had a weapon or, if Marcus had a weapon, what type of weapon it was.
We find there was conflicting testimony regarding whether Marcus went to the trunk of his car, which was what the Defendant testified led him to believe Marcus was armed with a weapon. Jill testified that Marcus walked to his car door and the physical altercation began. Additionally, Chad testified that Marcus told the Defendant they could take it to the next level and then Marcus sat in his car. We note the Defendant is the only person who testified that Marcus actually went to the trunk of his car.
We will now discuss the Defendant's contention that he could not retreat and the distance the Defendant was from his apartment door at the time he stabbed Marcus. On October 17, 2005, Officer Augustine went back to the scene of the incident to take photographs. She took a photograph of the area of the parking lot where the incident took place. She drew an "X" where the Defendant's apartment was located and a rectangle where Marcus' car was parked at the time of the incident. Officer Augustine testified that Marcus' car was seventeen feet, three inches in length. From the apartment window to the concrete parking stop was nine feet, eight inches. Additionally, from the window to the apartment door was five feet.
Jill testified that the altercation and stabbing occurred by the door of Marcus' car. The Defendant gave conflicting testimony, stating that the incident occurred near the concrete parking stop in the front vicinity of the car and later stating that it occurred by the door of Marcus' car. If the Defendant was in the vicinity of the concrete parking stop, he was approximately fourteen feet, eight inches from the front door of his apartment. However, if the Defendant was by the door of the car, he could not have been more than thirty feet from the door of the apartment at the time he stabbed Marcus.
The Defendant alleges that the door of the apartment locks automatically when it is closed. However, Chad testified that only the screen door was closed when he exited the apartment and saw Marcus running.
We will now discuss the relative sizes of the Defendant and Marcus. The Defendant testified that he was six feet, slightly taller and weighed approximately two hundred
Even if the jury found the Defendant was reasonable in his belief that he was in imminent danger of losing his life or receiving great bodily harm, it was not necessary for the Defendant to use deadly force against Marcus. The Defendant was larger than Marcus. Marcus was unarmed and, based on the Defendant's testimony, was merely hitting or swinging at him. There was no evidence presented that the Defendant suffered any injuries as a result of the altercation with Marcus. Further, during the time the Defendant was being struck by Marcus, he had time to retrieve a knife from his pocket, open the knife, and stab Marcus with such force as to push a three-to-four inch knife blade more than five inches into Marcus' body. Additionally, according to the Defendant's testimony, Marcus was not dangerous. The Defendant testified that he had no prior physical altercations with Marcus and, any time he had a problem with Marcus, Marcus would simply leave the Defendant's home. Also, the Defendant made no attempt to retreat and testified that he had no time to get to his apartment. However, the apartment door was, at most, thirty feet away.
By returning the guilty verdict, the jury obviously did not believe the Defendant acted in self-defense. We find that a rational fact finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the State proved the homicide was not committed in self-defense. Accordingly, this assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO & PRO SE ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, the Defendant contends the sentence imposed is constitutionally excessive.
Counsel for Defendant filed a motion to reconsider sentence stating the following: "Mover shows that this sentence is excessive and should be reconsidered by this Honorable Court." "Failure 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." La.Code Crim.P. art. 881.1(E). Defense counsel clearly failed to specify the basis for his motion to reconsider. Accordingly, the "defendant's motion failed to comply with La.Code Crim.P. art. 881.1(E), and, therefore, this court is relegated to a bare claim of excessiveness." State v. Whatley, 03-1275, p. 4 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958.
Whatley, 867 So.2d at 958-59 (alterations in original).
The sentencing range for manslaughter is zero to forty years. La.R.S. 14:31. The Defendant was convicted of manslaughter and sentenced to thirty-five years at hard labor.
At sentencing, the trial court made the following remarks:
In State v. Carrier, 95-1003 (La.App. 3 Cir. 3/6/96), 670 So.2d 794, writ denied, 96-881 (La.9/20/96), 679 So.2d 431, the defendant forcibly entered Ms. Wilson's apartment and shot the victim as he lay in bed. Shortly before the fatal shooting, the defendant pulled a gun on Shannon Lewis, sent a box of condoms to Ms. Wilson, and stalked her apartment while her friends were visiting. The Defendant was charged with second degree murder, but found guilty of manslaughter. This court noted the defendant had only two prior convictions for misdemeanor theft and possession of marijuana; however, he had been arrested on other charges including a concealed weapons charge in Texas. In finding the defendant's forty-year sentence was not excessive, this court cited the following cases:
Id. at 799-800.
Based on Carrier, we find the trial court did not abuse its discretion when imposing a sentence of thirty-five years. The trial court in the case at bar felt the evidence did not support a verdict of guilty of manslaughter, as there was not sufficient provocation by the victim. Such consideration was proper pursuant to Carrier and State v. Le, 98-1274 (La.App. 5 Cir. 6/30/99), 738 So.2d 168, writ denied, 00-2174 (La.4/12/01), 789 So.2d 587. Thus, the Defendant's sentence is not excessive. Accordingly, this assignment of error lacks merit.
PRO SE ASSIGNMENT OF ERROR NUMBER THREE
In his third assignment of error, the Defendant contends his prosecution for second degree murder constituted double jeopardy.
The Defendant submitted a copy of an indictment filed on April 21, 2005, in docket number 128207 charging him with manslaughter for the death of Marcus Conway. On May 26, 2006, an indictment charging the Defendant with second degree murder for the death of Marcus Conway was filed in docket number 128628. The Defendant alleges the first indictment was dismissed without reason and contrary to the law. The Defendant additionally asserts that because he was first indicted for manslaughter, he could not later be indicted for second degree murder based on the same set of facts, as this constitutes double jeopardy. Additionally, he was denied his right to contest the second indictment in front of the grand jury.
We find the indictment handed down on April 21, 2005, and information regarding the dismissal of same is not a part of the
We will address, briefly, the Defendant's remaining double jeopardy claim.
It appears the Defendant did not proceed to trial for manslaughter. Therefore, he was not subjected to a second prosecution for the same offense. Accordingly, double jeopardy is not applicable to the case at bar. For these reasons, we conclude this assignment lacks merit.
The Defendant's conviction and sentence are affirmed.