State v. Efferson

259 So.3d 1153

STATE of Louisiana, Appellee

v.McKinley EFFERSON, Appellant

No. 52,306-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered November 14, 2018

LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan Counsel for Appellant

JAMES E. STEWART, SR., District Attorney, TOMMY JAN JOHNSON, MONIQUE YVETTE METOYER, MEKISHA SMITH CREAL, Assistant District Attorneys, Counsel for Appellee

Before GARRETT, STEPHENS, and McCALLUM, JJ.

McCALLUM, J.

McKinley Efferson (the "defendant") was charged with second degree murder, but was convicted of manslaughter and sentenced to 36 years' imprisonment at hard labor. He now appeals his sentence and conviction and urges two assignments of error: (1) the trial court erred in excluding evidence of the victim's "dangerous character" pursuant to La. C.E. Art. 404 ; and (2) his sentence is unconstitutionally excessive. For the reasons stated herein, we affirm.

FACTS

Reginald Wess ("Mr. Wess"), the victim, was engaged to marry the defendant's mother, Mattie Efferson ("Ms. Efferson"). Mr. Wess and the defendant were not related. At the time of the murder, Mr. Wess had lived in the same house with Ms. Efferson, the defendant, and all or some of Ms. Efferson's other children for approximately 4½ years. At the time of the murder, the members of the household were Ms. Efferson, Mr. Wess, the defendant, and Maurice Efferson, who is the defendant's brother. Mr. Wess and Ms. Efferson shared a bedroom while the defendant and Maurice Efferson each had his own separate bedroom.

Mr. Wess's employment required him to be at work at approximately 4:00 a.m. He normally went to bed before 10:00 p.m. and woke around 2:30 a.m. to prepare for work and feed the dogs.

The defendant admitted to police in a recorded interview that he used his mother's 9 mm handgun to shoot Mr. Wess multiple times. This occurred in their home in Shreveport, Louisiana, between 2:00 and 3:00 a.m. on January 16, 2015. Awakened by the gunshots, Ms. Efferson came out of her bedroom.¹ Upon doing so, she saw Mr. Wess dressed in his work uniform lying on the floor near the doorway between the kitchen and the carport. She also saw the defendant, holding her gun, standing on the opposite side of the room from where Mr. Wess was lying. She asked the defendant what he had done, and the defendant replied that Mr. Wess was "messing with him."

Emergency services received two 911 calls regarding the shooting; one was by an unidentified male caller and the other by Ms. Efferson. Mr. Wess was transported to the emergency room where he was pronounced dead.

With Ms. Efferson's consent, the police searched the house. They found Ms. Efferson's 9 mm handgun under the defendant's mattress. They also found four spent 9 mm shell casings in his clothing hamper. The crime scene investigators had the house cordoned off and took measurements and pictures of the house, including the blood in the kitchen area.

Dr. Long Jin conducted the autopsy and, at trial, was admitted as an expert in forensic pathology. He stated that Mr. Wess was 50 years old, was 5'6" tall, and weighed 236 pounds. Mr. Wess's blood and urine tested negative for drugs and alcohol.

Dr. Jin recovered three projectiles (bullets) from Mr. Wess's body. He indicated that there were five wounds on Mr. Wess's body, and stated that one of the wounds could have been caused by a bullet's reentry into the body after passing through the arm. He also stated that two of the woundswould have been independently fatal, and that a third could have been independently fatal.

The three projectiles recovered from the Mr. Wess's body and the four spent shell casings recovered from the defendant's clothing basket were matched to Ms. Efferson's handgun.

After the jury was sworn, the trial court held a hearing (outside the presence of the jury) regarding the admissibility of evidence of Mr. Wess's "dangerous character" pursuant to the so-called "domestic violence exception" set forth in La. C.E. art. 404(A)(2).² The trial court ruled that the exception was not applicable because the defendant and Mr. Wess did not have a "familial" relationship with each other. Finding the exception inapplicable, the trial court held evidence of Mr. Wess's supposed dangerous character inadmissible pursuant to the general rule of article 404(A). The defendant did not make a proffer or otherwise make known to the court the substance of the evidence which he sought to introduce pursuant to article 404(A)(2).

The state introduced and played for the jury the recording of the defendant's interview with the police. This interview was conducted approximately 2 ½ hours after the shooting. The defendant, who was 23 years old at the time of the trial, gave his story of what transpired between him and Mr. Wess in the minutes and hours prior to the shooting. Additionally, he detailed the nature of their relationship. The defendant also described instances of prior domestic violence involving the defendant and Mr. Wess. In addition to the defendant's statement, Ms. Efferson, Marisa Efferson (the defendant's sister), Officer Glass-Bradley, and Detective Joshua Mayfield testified regarding previous domestic violence between the defendant and Mr. Wess.

The jury found the defendant guilty of manslaughter, which is a responsive verdict to the charge of second degree murder.³ The trial court sentenced the defendant to 36 years of imprisonment at hard labor.

DISCUSSION

Admissibility of evidence of victim's "dangerous character"

In relevant part, La. R.S. 14:30.1 defines second degree murder as "the killing of a human being...when the offender has a specific intent to kill or to inflict great bodily harm." It also provides that second degree murder "shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence." La. R.S. 14:20(A)(1) provides a complete defense to murder "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." When the defendant in a murder prosecution asserts self-defense, the prosecution bears the burden of proving beyond a reasonable doubt that the killing was not committed in self-defense. State v. Johnson , 41,428 (La. App. 2d Cir. 9/27/06), 940 So.2d 711, 716, writ denied , 2006-2615 (La. 5/18/07), 957 So.2d 150.

Manslaughter is defined in relevant part in La. RS 14:31 as:

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.

Thus, for murder to be reduced to manslaughter, the following elements must be proved: (1) the homicide was committed "in sudden passion or heat of blood"; (2) that sudden passion or heat of blood was immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection; (3) the defendant's blood did not cool between the provocation and the killing; and (4) an average person's blood would not have cooled between the provocation and the killing. In a prosecution for murder, a defendant who claims provocation (as a means of reducing murder to manslaughter) bears the burden of proving these elements by a preponderance of the evidence. State v. Leger , 2005-0011 (La. 7/10/06), 936 So.2d 108, 170-2.

Article 404(A)(2), in relevant part, states:

A. Character evidence generally. Evidence of a person's character or a trait of his character, such as a moral quality, is not admissible in a civil or criminal proceeding for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

...

(2) Character of victim ... [E]vidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible; provided further that when the accused pleads self-defense and there is a history of assaultive behavior between the victim and the accused and the accused lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt act on the part of the victim in order to introduce evidence of the dangerous character of the victim,including specific instances of conduct and domestic violence . (Emphasis added).

If the victim does not make a "hostile demonstration" or commit an "overt act" at the time of the offense, a criminal defendant may introduce evidence of the victim's "dangerous character" only if the defendant produces evidence sufficient to support a finding that: (1) there was a history of assaultive behavior between the victim and defendant; and (2) a familial or intimate relationship existed between the victim and the defendant. This is the so-called "domestic violence exception."

The trial court ruled that the domestic violence exception was inapplicable because there was no "familial" relationship between the defendant and Mr. Wess. In this appeal, the defendant argues that the relationship between the defendant and Mr. Wess was "familial." He characterizes his relationship with the Mr. Wess as a "stepfather-stepson type" relationship.

In relevant part, La. C.E. art. 103 provides:

A. Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or

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