State v. Dill

• Decision Date: 11 December 1984
• Docket Number: No. 84-KA-147,84-KA-147
• Citation: 461 So.2d 1130
• Parties: STATE of Louisiana v. Robert L. DILL.
• Court: Court of Appeal of Louisiana — District of US

Page 1130

461 So.2d 1130

STATE of Louisiana v. Robert L. DILL.

No. 84-KA-147.

Court of Appeal of Louisiana Fifth Circuit.

Dec. 11, 1984.

John M. Mamoulides, Dist. Atty., Dorothy Pendergast, Asst. Dist. Atty., Parish of Jefferson, Gretna, for plaintiff-appellee.

John H. Craft, I.D.B., Gretna, for defendant-appellant.

Before BOUTALL, KLIEBERT and DUFRESNE, JJ.

DUFRESNE, Judge.

The defendant, Robert L. Dill, was charged with first degree murder. After he was arraigned and entered a plea of not guilty; the State amended the indictment to second degree murder R.S. 14:30.1. He was again arraigned and again entered a plea of not guilty. Extensive discovery was requested by the defense and satisfied by the State. The defendant waived his right to a trial by jury and trial was held. He was found guilty of manslaughter and sentenced to five years in the custody of the Department of Corrections. From this conviction and sentence he now appeals.

FACTS

After work on January 23, 1981, Andrew Lauchlan and Terry Greenwood went to Lauchlan's house for a few beers. After a time the two men left and Greenwood accompanied Lauchlan to a friend's house. They remained there a while and departed late in the evening with Lauchlan driving his 1976 Ford pickup truck. Greenwood asked Lauchlan to give him a ride to the Miki Lounge to see someone about money owed to him. Lauchlan complied with the request and the two men arrived at the lounge a little before midnight. Lauchlan was having trouble with his truck and because Greenwood had indicated that he wasn't going to stay in the lounge any length of time, Lauchlan stayed outside in the truck. Several minutes later Greenwood exited the bar carrying two beers. Lauchlan told him that the truck wasn't running, apparently because of a low battery, and Greenwood said he would try to get a "jump" from another car in the parking lot.

While Lauchlan watched, Greenwood approached a car about fifteen feet away and engaged in conversation with the three occupants. From what he overheard, one of the passengers offered to assist Greenwood for $5.00. The conversation became more heated and Lauchlan stepped out of his truck to observe the situation more closely. As Greenwood walked toward the driver's door of the car, Lauchlan saw the driver simultaneously open the door and reach down between the front seats. As the driver exited the car, he pointed an object at Greenwood. Almost instantaneously Lauchlan heard a gun shot and saw Greenwood fall to the ground. He ran to the body of his friend and exclaimed to the driver of the car, "You shot him". The driver hurriedly reentered his car and began to back out of the parking lot. As he did so, Lauchlan reached out, straightened the bent license plate on the car, and memorized the license number. This he later gave to the investigating officer along with a description of the vehicle. Following the shooting, he left his friend momentarily to call an ambulance.

The Jefferson Parish Sheriff's Office was notified of the shooting at approximately 12:08 a.m., on the morning of January 24th. Deputy Tureaud arrived at the scene several minutes later. The victim, Terry Greenwood was removed to West Jefferson General Hospital where he was pronounced dead on arrival from a gunshot wound to the head. Tureaud broadcast a description of the wanted vehicle and the Homicide Division was notified.

Detective Steve Buras began his investigation at 12:45 a.m. on the 24th of January. At 4:22 a.m. Dill's car was located at Rose's Lounge, apparently abandoned. Detective Buras proceeded to that location to examine the vehicle. He found both an empty gun holster and an empty knife sheath inside the car. After interviewing Andrew Lauchlan and Jerry Meadows, Detective Buras secured an arrest warrant for Robert Dill on January 27, 1981. He was arrested in late October or early November of 1981 in Miami, Florida.

On appeal, the defendant thru counsel makes the following assignments of error:

1. The evidence presented by the state was not sufficient to justify a verdict of guilty of manslaughter.

2. The state failed to meet its burden of proving beyond a reasonable doubt that defendant did not kill the victim in self-defense.

3. Also assigned as error, are any and all errors patent on the face of the record.

ASSIGNMENT OF ERROR NO. 1 & NO. 2

Because of their similarity, these two assignments are consolidated for our review.

The thrust of the defense argument is that the state failed to offer sufficient evidence to support the verdict of manslaughter rendered by the trial judge. More specifically, the defense contends the state failed to negate the defense assertion that the homicide was committed in self defense.

"A claim of insufficient evidence is judged by whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Brown, 414 So.2d 726 (La.1982); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." State v. Freeman, 447 So.2d 1145, 1158 (La.App. 3rd Cir.1984).

The defendant was convicted of manslaughter, in violation of R.S. 14:31. Manslaughter, as relevant to the instant prosecution is defined as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed; ....

The defendant has urged that the homicide was justified under the theory of self-defense.

La.R.S. 14:20 at the time of the offense was committed stated:

A homicide is justifiable:

(1) 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; or

(2) When committed, for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm, by one who reasonably believe that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business while committing or attempting to commit a burglary of such dwelling or business. The homicide shall be justifiable even though the person does not retreat from the encounter.

"A defendant in a homicide prosecution who asserts that he acted in self defense does not have the burden of proof on that issue because the state bears the burden of establishing beyond a reasonable doubt that the homicide was not perpetrated in self defense. State v. Patterson, 295 So.2d 792 (La.1974); State v. Collins, 306 So.2d 662 (La.1975). " State v. Brown, 414 So.2d 726, 728 (La.1982). See also State v. Howard, 443 So.2d 632 (La.App. 3rd Cir.1983) writs denied 444 So.2d 1215 (La.1984); State v. Freeman, 447 So.2d 1145 (La.App. 3rd Cir.1984) writs denied 449 So.2d 1356 (La.1984).

To meet its burden of proof, the state offered the testimony of two witnesses, Andrew Lauchlan, the companion of the victim at the time of the shooting, and Detective Steve Buras, the investigating homicide officer from the Jefferson Parish Sheriff's Office. Lauchlan testified that the victim was unarmed at the time of his encounter with the defendant and made no overt offensive gesture toward Dill to provoke the shooting. Although he stated that just prior to the shooting he heard raised voices, he was unable to recognize any of the words said by either party. He offered that the victim usually carried a pocket knife while working, but was unarmed on the night of his death. He stated that Greenwood's pocket knife was found the day after his death in the van of a friend, and given to his mother on the day of the funeral. Detective Buras testified as to the progress of the investigation from his arrival on the scene to the issuance of the arrest warrant for Mr. Dill several days later. He additionally identified an empty knife sheath and an empty gun holster found in the defendant's apparently abandoned automobile shortly after the shooting.

The defense offered several witnesses to establish that the homicide was justifiable. Eugene Kirk, a mutual friend of both the victim and the defendant, admitted that after the shooting he found a pocket knife and some coins under the victim's leg and took them. He confessed that when the police asked about a knife, he denied taking it and later threw it away. On cross-examination he testified that the knife resembled one owned by Jerry Meadows, a passenger in the defendant's car at the time of the shooting.

Ross McCord, a friend of Dill's testified that he observed the incident from the parking lot between the Happy Landing Bar and the Miki Lounge. He indicated he heard a lot of shouting and "bad words " and noticed a man near the car make a lunge toward the car window with a knife and then he heard a shot. On cross-examination he acknowledged that he said nothing to the police regarding the incident. He stated that he only knew the defendant was accused of the shooting when they met in the Correctional Center several months prior to trial. It was coincidentally noted by the state that Dill and McCord were represented by the same defense counsel. Jerry Meadows, a passenger in Dill's...