State v. Tompkins

Decision Date22 June 1981
Docket NumberNo. 80-KA-2372,80-KA-2372
Citation403 So.2d 644
PartiesSTATE of Louisiana v. George TOMPKINS.
CourtLouisiana Supreme Court

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeanette T. Knoll, Asst. Dist. Atty., for plaintiff-appellee.

Donald R. Wilson, Gaharan & Wilson, Jena, for defendant-appellant.

LEMMON, Justice. *

This case involves an unfortunate incident outside of a barroom which left one man dead and resulted in a manslaughter conviction and a 15-year prison sentence for another. The primary issues raised on appeal are insufficiency of evidence, error in refusing a special jury instruction, and excessiveness of sentence.

Facts

The victim (Keller) and another barroom patron (Turner) became embroiled in an altercation at a lounge operated by defendant. The two initial antagonists went outside to fight, but Turner soon fled back inside to get a pool cue, claiming that Keller was armed with a knife. Defendant, apparently bent on disarming Keller, secured a pistol and went outside to confront him.

Conflicting versions of ensuing events were presented at trial. Defendant testified that he encountered Keller outside the door, where Keller was waiting for Turner, and asked Keller to drop the knife (which all agreed was not being pointed at defendant). Defendant claimed that he was then struck from behind by a door, causing the pistol in his hand to discharge and kill Keller. Defendant thus explained the shooting as accidental and unintentional.

On the other hand, two eyewitnesses testified that defendant cocked his pistol, pointed it at Keller, advised him thrice to drop the knife, and then shot Keller dead when he failed to heed the command. After the shooting defendant turned himself in to the police and surrendered the pistol and knife.

Defendant was charged with manslaughter. The jury returned a non-unanimous verdict of guilty, obviously disbelieving defendant's assertion of an accidental shooting.

Sufficiency of Evidence

Defendant's principal argument on appeal is that the state produced insufficient evidence of the essential elements of manslaughter. He contends the state did not prove (1) that defendant had the specific intent to kill or inflict great bodily harm, (2) that defendant shot Keller without justification, or (3) that defendant committed the homicide in sudden passion or heat of blood.

The evidence, viewed in the light most favorable to the prosecution, was clearly sufficient to convince a reasonable juror beyond a reasonable doubt that defendant specifically intended to kill or to inflict great bodily harm. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Defendant's version that he accidentally shot the victim simply was not accepted by the jury, which apparently chose to believe the two witnesses who testified that defendant pointed the pistol at Keller and fired when Keller did not drop the knife. The choice not to believe defendant was one based on the resolution of conflicting testimony, and that choice cannot be upset by this court on the basis that the conflicting version constituted insufficient evidence. La.Const. Art. V, § 5(C) (1974).

As an alternative to the defense of accidental shooting, defendant asserted the defense of justification. See R.S. 14:20 and 22. These defenses are somewhat inconsistent, in that an accidental shooting will not usually occur when one undertakes to protect or defend another person. Nevertheless, defendant's own testimony defeats the defense of justification in this case.

Defendant's testimony established that Keller was outside the bar and that Turner was still inside when defendant fired the fatal shot. Furthermore, although Keller had a reputation as a dangerous person and had shortly before the shooting pulled a knife during the fight with Turner, no witness (including defendant) stated that Keller, at the time the shot was fired, was threatening to attack Turner or defendant or was taking any action which would place Turner or defendant in any apprehension of immediate attack. The uniform evidence simply showed the Keller, while Turner was inside the bar, held his knife by his side after defendant, with cocked pistol, ordered him to drop it and that defendant then shot him without further warning.

We conclude the evidence is sufficient to establish lack of justification. See State v. Patterson, 295 So.2d 792 (La.1974).

As to defendant's contention that the evidence does not establish he acted in a "heat of blood" and "sudden passion", defendant perhaps is arguing that those factors are essential elements of the crime of manslaughter. 1 Nevertheless, this court on several occasions has stated that "heat of blood" and "sudden passion" are not elements of the offense of manslaughter, but rather are factors in the nature of mitigating circumstances which may reduce the grade of homicide. State v. Temple, 394 So.2d 259 (La.1981); State v. Peterson, 290 So.2d 307 (La.1974); State v. McAllister, 366 So.2d 1340 (La.1978).

Manslaughter, under subsection (1) of R.S. 14:31, is a specific intent killing. 2 The culpable state of mind required for manslaughter under subsection (1) as an element of the offense is the specific intent to kill or inflict great bodily harm. 3 Since the evidence supports a finding of that culpable state of mind, defendant may not avail himself of any alleged lack of proof that he acted in a "sudden passion" or "heat of blood". 4

We conclude that the evidence adequately supports the jury verdict of guilty of manslaughter.

Denial of Requested Special Instruction

Defendant also argues that the trial court erred in refusing to give a requested special instruction regarding the elements of negligent homicide. 5 See State v. Marse, 365 So.2d 1319 (La.1979).

We note first that the proposed instruction was not "wholly correct" and needed further explanation. See C.Cr.P art. 807; State v. Lovett, 359 So.2d 163 (La.1978). Defendant's instruction strongly implied that defendant could be later tried for negligent homicide or some other lesser offense following the jury's acquittal of defendant on the manslaughter indictment. Defendant does not cite any authority for this implication, and his requested instruction invites jury speculation as to the effect of an acquittal on a subsequent prosecution. 6 Such matters are of no concern to the jury. It is their duty to return a verdict of not guilty (without regard to double jeopardy consequences) if the state's case fails to prove every element of the offense charged or of a lesser responsive offense. 7

Furthermore, as in State v. Marse, above, and State v. Matthews, 380 So.2d 43 (La.1980), the trial judge in this case adequately instructed the jury regarding the elements which they must find in order to convict defendant. The judge enumerated the elements of the offense and clearly told the jury that the failure of the state to prove each and every element must result in a verdict of not guilty. 8 Thus, the instruction given was complete and accurate, and while the trial judge might have added that a finding of accidental shooting required a verdict of acquittal, the instruction emphasizing the necessity of finding an intentional shooting implicitly required a finding that the shooting was not accidental. Since the only verdicts given the jury for consideration were guilty and not guilty, it was not necessary to give defendant's requested instruction in order to convey to the jury that a finding of an accidental shooting must result in a verdict of not guilty. 9

Defendant also argues on appeal that the trial court erred in refusing to give a requested jury instruction on justifiable homicide. However, at trial defendant failed to object to the refusal to give this requested instruction, and he cannot avail himself on appeal of any error in this respect. See C.Cr.P. art. 841; State v. Marmillion, 339 So.2d 788 (La.1976).

Defective Indictment

Defendant moved to quash the indictment on the ground that it was returned by a grand jury in which only two of the 12 jurors were black. Citing 1970 census statistics which reveal that 29% of the parish was black, defendant urges that this mathematical disparity (29% to 16% renders the grand jury panel constitutionally defective. Defendant also contends the notation of race on the cards from which the grand jury was selected.

One who challenges jury composition on the ground of racial discrimination must show that there has been a systematic exclusion of a class of persons in the selection process or that the state has failed to comply with the statutory procedures for selection. State v. Western, 355 So.2d 1314 (La.1978); State v. Taylor, 347 So.2d 172 (La.1977); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). Thus, defendant has the burden of establishing a prima facie case of discrimination. State v. George, 371 So.2d 762 (La.1979). The court in George, above, further stated, at 764:

"While a defendant has a constitutional right to be indicted by a grand jury and tried by a petit jury chosen from a fair cross-section of the community, he is not entitled to juries reflecting with mathematical precision the composition of the community."

One of the members of the jury commission testified and explained the procedure by which the jury lists are compiled. Initially, the names are chosen at random from a wheel by the members of the commission. One of the five jury commissioners is black. Some 2500 card names are randomly chosen for the general jury venire lists. From this general venire list, names are pulled for the individual civil and criminal jury lists. Though the cards which are initially pulled from the wheel contain designation of race, no such notation is made on the general jury venire or at any other stage of the proceedings.

As noted by the United States Supreme Court in Alexander v....

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