State v. Braswell

• Decision Date: 23 September 1992
• Docket Number: No. 23672-KA,23672-KA
• Citation: 605 So.2d 702
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. Walter Guy BRASWELL, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 702

605 So.2d 702

STATE of Louisiana, Plaintiff-Appellee, v. Walter Guy BRASWELL, Defendant-Appellant.

No. 23672-KA.

Court of Appeal of Louisiana Second Circuit.

Sept. 23, 1992.

Rehearing Denied Oct. 22, 1992.

Daryl Gold, Shreveport, for defendant-appellant.

Richard Ieyoub, Atty. Gen., Robert W. Levy, Dist. Atty., John F.K. Belton, Asst. Dist. Atty., Ruston, for plaintiff-appellee.

Before MARVIN, NORRIS and HIGHTOWER, JJ.

NORRIS, Judge.

The defendant, Walter Guy Braswell, was charged by amended bill of information with aggravated battery arising from a macing incident. La.R.S. 14:34. After a jury trial, he was found guilty of the lesser offense of simple battery. La.R.S. 14:35. The district court sentenced him to six months in jail and a fine of $350 plus costs; however, the court suspended the sentence on payment of costs and placed Braswell on supervised probation for two years with special conditions. Braswell now appeals, urging the evidence was insufficient in that it failed to negate his claim of self defense. For the reasons expressed, we affirm.

The standard of review is whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. State v. Mussall, 523 So.2d 1305 (La.1988). A credibility call among witnesses is fully within the jury's province. State v. Trosclair, 443 So.2d 1098 (La.1983); State v. Holland, 544 So.2d 461 (La.App.2d Cir.1989). Thus we have said that in the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Emerick, 499 So.2d 195 (La.App.2d Cir.1986).

Battery is defined as the intentional use of force or violence upon the person of another or the intentional administration of a poison or other noxious liquid or substance to another. R.S. 14:33; State in Interest of W.B., 461 So.2d 366 (La.App.2d Cir.1984). Simple battery is a battery committed without the consent of the victim. R.S. 14:35. Self-defense is defined as follows:

The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense against the property in a person's lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.

La.R.S. 14:19; State v. Landry, 381 So.2d 462 (La.1980); State v. Zeno, 469 So.2d 337 (La.App.2d Cir.), writ denied 474 So.2d 1303 (1985). When self-defense is claimed by the defendant in a homicide case, the state has the burden of proving beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Green, 483 So.2d 957 (La.1986); State v. Ruff, 504 So.2d 72 (La.App.2d Cir.), writs denied 508 So.2d 64, 65 (1987). The jurisprudence of non-homicide cases, however, does not clearly state who has the burden of proving self-defense and what that burden is. In State v. Freeman, 427 So.2d 1161 (La.1983), the Supreme Court indicated in dictum that the defendant in such a case may have the burden of proving self-defense by a preponderance of the evidence. The court in Freeman did not resolve the issue, choosing instead to analyze the evidence under both standards. This court has followed the both-standards approach in State v. Zeno, supra, although other courts have placed the burden on the defendant. See State v. Barnes, 590 So.2d 1298 (La.App. 1st Cir.1991), esp. fn. 4 and 5, detailing the split jurisprudence.

For purposes of our discussion today, we note that the trial court charged the jury under the more stringent standard. R.p. 245. The charge was delivered without objection from the state. We have therefore reviewed the evidence in light of the charge, requiring the state to negate self-defense beyond a reasonable doubt, and do not today resolve the jurisprudential double standard.

The incident arose from a dispute between neighbors. The victim, Clifford Arrington, was a retiree who had recently moved to Lincoln Parish. The record is not entirely clear, but Arrington had just built or was still building a home on property his wife inherited from her mother, Mrs. Keedy; another portion of the Keedy estate (the record does not reveal the exact portion) is owned by Arrington's brother-in-law, but Arrington had control over it. The brother-in-law's lot is adjacent to defendant Walter Braswell's property. A road called Garwood Drive runs roughly along the south border of the Keedy property and dead ends; according to Arrington, Braswell has a servitude of passage across the brother-in-law's property from the road to his (Braswell's) home. Apparently Arrington wanted to run a driveway from the servitude to his new house, but this plan involved removing some trees from the servitude. The relationship between the new neighbors grew strained; Braswell testified that Arrington threatened him regularly. Braswell finally obtained a restraining order to keep Arrington from doing any acts on the servitude that impeded Braswell's passage.

In January 1990 Arrington hired a logger, Don Upchurch, to cut several trees in the right-of-way. Upchurch and his son came out early on a Sunday morning to perform the work; Arrington stood nearby to watch. When he heard the saws and skidder running, Braswell also came out to watch and take pictures of the cutting.

Both Arrington and Braswell have serious health problems. Arrington has suffered a major stroke which left him with a loss of sensation and a speech impediment, and led to his retirement; he also has arthritis and, at times, walks with a cane. Everyone described him as a large person. Braswell, also a retiree, has had at least two heart attacks (his mother-in-law said four) and suffers from hypertension; he also testified he has an aneurysm in his chest.

Each side's version of events is...