State v. Trung Le
| Decision Date | 11 April 2018 |
| Docket Number | NO. 2017–KA–0164,2017–KA–0164 |
| Citation | 243 So.3d 637 |
| Parties | STATE of Louisiana v. TRUNG LE |
| Court | Court of Appeal of Louisiana — District of US |
Leon A. Cannizzaro, Jr., District Attorney, Laura Cannizzaro, Assistant District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Tiffany G. Chase )
The defendant, Trung Le, seeks review of his convictions and sentences for attempted manslaughter and manslaughter. For the reasons that follow, we affirm the defendant's conviction and sentence for attempted manslaughter, vacate the defendant's conviction and sentence for manslaughter, enter a judgment of conviction of negligent homicide, and remand the matter to the trial court for resentencing on that charge.
On June 29, 2014, sometime between 2:00 a.m. and 2:50 a.m., an exchange of gunfire between two shooters erupted in the 700 block of Bourbon Street, near the intersection with Orleans Street in the French Quarter. This incident resulted in the untimely death of Brittany Thomas (hereinafter "Ms. Thomas"), the attempted murder of an unknown male, and injury to numerous bystanders struck by bullets in the chaos. Just prior to the shooting, Justin Odom (hereinafter "Odom"), Robert Benvenuti (hereinafter "Benvenuti"), Jasmine Parent (hereinafter "Parent"), Christian Cooper (hereinafter "Cooper"), Christopher Kelley (hereinafter "Kelley"), and the defendant were all hanging out at the intersection of Bourbon Street and Orleans Street.1 At the same time, in the 700 block of Bourbon Street, an unknown male in a dark shirt, striped chef pants and a Boston Red Sox hat, made his way toward the group, a beer bottle visible in his left hand, with another bottle in his right hand.2 As the unknown male passed by, he suddenly turned back, as if something had caught his attention. He then approached the group, all while exchanging a series of glances with Odom.3 At this point, Odom and Benvenuti were closest to the unknown male, while the defendant was slightly behind both of his friends.4 Then, Odom asked "what's up?" to the unknown male as the two got in each other's faces. Odom shoved the unknown male backwards. Odom and Benvenuti noticed for the first time the unknown male had a gun underneath his left arm. As the unknown male backed away, he raised his hand to point at Odom, then lowered it, during an angry verbal exchange. During this exchange, Odom and Benvenuti testified the unknown male said "I got that .40." The large crowd surrounding the group did not react to this argument, suggesting no gun had yet been displayed.5 Suddenly, the defendant, in a red t-shirt, sprang from behind Odom and Benvenuti, pushing them aside as he fired four shots, likely striking the unknown male and three victims standing behind him.6 Once the unknown male noticed that the defendant pulled his gun, the unknown male pulled out his gun in response. At the sound of the first gunshot, fired by the defendant, the crowd scattered in various directions to escape. As the defendant fled down Bourbon Street towards St. Peter Street, the unknown male opened fire, a gun in his right hand, wildly firing ten or eleven shots towards the defendant. Then, the unknown male fled in the opposite direction, with the two beer bottles still in his left hand. Benvenuti and Kelley were shot by the unknown male and Ms. Thomas later succumbed to her injuries. It is undisputed that the bullet which struck and killed Ms. Thomas was fired by the unknown male, who was never found. Though Odom and the defendant ran in different directions after the shooting, they met up and took a taxi to the defendant's car, parked nearby. Both Odom and the defendant fled to Mississippi the following day.
Lieutenant Nicholas Gernon7 (hereinafter "Lt. Gernon") and Detective Bruce Brueggeman (hereinafter "Det. Brueggeman") handled the investigation. Neither gun was recovered but ballistics tests of the casings collected after the shooting indicated that one gun was a nine-millimeter and the other was a forty-caliber Smith and Wesson. The location where the four nine-millimeter casings were recovered established that the defendant shot a nine-millimeter gun. Ms. Thomas was killed by a bullet fired from the forty-caliber gun.
As the case developed, the NOPD canvassed the area to obtain video surveillance from surrounding businesses which captured the moments leading up to the incident and its aftermath.8 Police located video from the 400, 500 and 700 blocks of Bourbon Street which depicted the unknown male making his way towards the group. Det. Brueggeman was tasked with locating the shooter in the red t-shirt and developed the defendant as a suspect through those videos and social media. The Louisiana State Police were tasked with locating the unknown male shooter in chef pants, but were ultimately unsuccessful. While numerous victims were questioned, none were able to identify either shooter. As a result of the investigation, both Odom and the defendant were sought by police.
Shortly after the shooting, NOPD questioned Benvenuti, who was hit by four bullets in the back of his leg, foot and buttock. Benvenuti, a longtime friend of the defendant, was initially uncooperative in the investigation. Benvenuti identified Parent, Cooper and Kelley as the group he was with that night, but failed to identify Odom or the defendant.9 He did not indicate he witnessed the shooting or saw the defendant shoot in self-defense.
On July 2, 2014, Odom turned himself in with his attorney present at the Gretna Police Station. Odom completed an eyewitness identification form where he failed to identify the defendant, who was pictured in the six person line-up. In that statement, he actively misled the police by indicating that two others pictured in the line-up had similar qualities to the shooter, such as a similar nose or skin complexion. He maintained that he did not know the defendant and did not inform investigators that the shooting was in self-defense.
The defendant was ultimately arrested on July 4, 2014 in Mississippi. While still in custody in Mississippi, the defendant made no statements to police, invoking his right to counsel. As the investigators were leaving the room, he insisted that the police had the wrong person. He fought extradition, but was ultimately returned to Louisiana, where he was indicted on August 22, 2014.
On August 22, 2014, the defendant was indicted by a grand jury charging him with one count of manslaughter, a violation of La. R.S. 14:31, relative to the death of Ms. Thomas (Count 1) and one count of attempted second degree murder, a violation of La. R.S. 14:(27)30.1, relative to shooting at the unknown male, (Count 2).10 On August 27, 2014, the defendant pled not guilty to both charges.
The case proceeded to trial on January 11, 2016, concluding on January 15, 2016.11 After the jury retired for deliberation, the defendant moved for a mistrial, based upon the State's closing and rebuttal argument, including misstatements of fact and law, which the trial court denied. The jury returned a verdict of guilty as charged of manslaughter on Count 1 and guilty of attempted manslaughter on Count 2.12 On April 1, 2016, the defendant filed a motion for new trial, which was denied. On April 4, 2016, the defendant was sentenced to forty years imprisonment at hard labor on Count 1 and twenty years imprisonment at hard labor on Count 2, with the sentences to run consecutively. This appeal followed.
A review of the record reveals no errors patent under La C.Cr.P. art. 920.
Assignment of Error No. 1:
In his first assignment of error, the defendant attacks the sufficiency of the evidence in two respects. First, he argues that there is insufficient evidence to support his conviction for attempted manslaughter because the State failed to disprove that he shot the unknown male in self-defense or in defense of others. Second, he contends there is insufficient evidence to support his conviction for the manslaughter because the unknown male fired the fatal shot that killed Ms. Thomas.
Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), this court must determine that the evidence, viewed in the light most favorable to the prosecution, "was sufficient to convince a rational trier of fact that all the elements of the crime had been proved beyond a reasonable doubt."13 The statutory test of La. R.S. 15:438"works with the Jackson constitutional sufficiency test to evaluate whether all the evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury."14
The State charged the defendant with attempted second degree murder under La. R.S. 14:(27)30.1.15 The jury found the defendant guilty of attempted manslaughter, which is a responsive verdict to attempted second degree murder.16 Whenever there is an attempt to commit any crime it is a specific intent crime.17 The defendant admits that he fired his gun four times at the unknown male, arguing only that he cannot be convicted for his actions because he fired in self-defense and/or defense of his friends and that his actions were thus legally justified.18
"This court has consistently declined to settle definitively the issue of which party bears the burden of persuasion in proving self-defense in a non-homicide case."19 While some cases suggest that the defendant must prove by a preponderance of the evidence that he acted in self-defense, others indicate the State has to establish beyond a reasonable doubt that the defendant did not act in self-defense.20 We need not resolve this issue here...
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