State v. Tompkins, No. 80-KA-2372

• Court: Louisiana Supreme Court
• Writing for the Court: LEMMON; DENNIS; CALOGERO
• Citation: 403 So.2d 644
• Parties: STATE of Louisiana v. George TOMPKINS.
• Decision Date: 22 June 1981
• Docket Number: No. 80-KA-2372

Page 644

403 So.2d 644 STATE of Louisiana
v.
George TOMPKINS. No. 80-KA-2372. Supreme Court of Louisiana. June 22, 1981.
Rehearing Denied Sept. 28, 1981.

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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.

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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

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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

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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...