Opinion
2013 KA 0014
2013-09-13
STATE OF LOUISIANA v. DAMIEN HALL
Ricky Babin Donaldson ville, LA Counsel for Appellee, State of Louisiana And Donald D. Candell Jason Verdigets Gonzales, LA Mary E. Roper Baton Rouge, LA Counsel for Defendant/Appellant, Damien Hall And Damien Hall Jackson, LA In Proper Person
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Third Judicial District Court
In and for the Parish of Ascension, State of Louisiana
Trial Court Number 27369
Honorable Guy Hold ridge, Judge Presiding
Ricky Babin
Donaldson ville, LA
Counsel for Appellee,
State of Louisiana
And
Donald D. Candell
Jason Verdigets
Gonzales, LA
Mary E. Roper
Baton Rouge, LA
Counsel for Defendant/Appellant,
Damien Hall
And
Damien Hall
Jackson, LA
In Proper Person
BEFORE: WHIPPLE, C.J., WELCH AND CRAIN, JJ.
WHIPPLE, C.J.
The defendant, Damien Hall, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. He pled not guilty and, following a jury trial, was found guilty of the responsive offense of manslaughter, a violation of LSA-R.S. 14:31. The defendant filed motions for new trial and postverdict judgment of acquittal, which were denied. He was sentenced to twenty years imprisonment at hard labor. The defendant now appeals, designating two counseled assignments of error and one pro se assignment of error. We affirm the defendant's conviction and sentence.
FACTS
On January 28, 2009, Ronald Deloch, Jr., drove to the defendant's mobile home on La. Hwy. 73 in Geismar, Ascension Parish. Ronald found Dion Bell, the defendant's fiancee, in the kitchen and asked her where the defendant was. Dion testified at trial that Ronald seemed angry. She stated that the defendant was at his cousin's house, which was very close and on the same property as the mobile home. Ronald then left and made a short drive to the house of Keylon Larks, the defendant's cousin.
As the defendant heard a vehicle approaching, he went outside. According to the defendant, who testified at trial, Ronald approached him and said something about Ronald's girlfriend. The defendant claimed he told Ronald he needed to call her. Ronald said he did not need to call anybody, produced a handgun and struck the defendant in the eye with it. The defendant claimed that after he fell to the ground, Ronald stood over him and tried to "pistol whip" him. The defendant stated that he grabbed the barrel of the gun and pushed it away to keep from being shot. According to the defendant, as they struggled over the gun, it discharged and Ronald was struck in the upper left buttock. Ronald went to his car and drove away. The defendant, Dion, and their two children left. According to the defendant, he took his family to his cousin's house and he went to his aunt's house.
Wounded and bleeding, Ronald drove his car until he crashed into a truck in the TNT Chevron parking lot at La. Hwys. 30 and 73. Deputy Jason Kling, an officer with the Ascension Parish Sheriff's Office, arrived at the scene and spoke briefly to Ronald. Ronald told the deputy he did not know who shot him or why someone shot him. He also said he did not know where he was coming from. Ronald was taken by ambulance to Baton Rouge General Hospital. With doctors unable to stop the bleeding, Ronald underwent emergency surgery. Following surgery, his condition deteriorated and he died at the hospital the following morning.
The police searched Ronald's car, the defendant's car, and Keylon's residence, but no gun was found. Also, no bullet casing was found at the scene. A shopping bag containing .38 special handgun rounds was found in Larks's residence. However, the bullet that struck Ronald was either a .40 or a 10 mm round.
Derrick Parker, Ronald's cousin, testified at trial that on the day of the shooting, he saw Ronald "at the store" and that Ronald was "mad" and was going to see "what was up" with the defendant. Ronald left "peeling out" in his car. Shortly thereafter, Ronald called Derrick on his cell phone and said: "[T]hey got three dudes out here. Man, you got a gun? Bring it." Ronald told Derrick where to go. Derrick drove down the street, but saw no activity and left. About thirty minutes later, Derrick heard that someone had been shot. Derrick testified that he never knew Ronald to carry a gun.
The clothing that Ronald was wearing when he was shot was collected and introduced into evidence. Ronald was wearing blue jeans, a long-sleeved brown shirt, a white T-shirt, and underwear. A black jacket (or hoodie) was found in Ronald's car. The bullet passed through the defendant's underwear, as indicated by the hole in them. There was no bullet hole in the jeans, the two shirts, or the jacket.
A blue shirt was also collected, but further investigation revealed that the blue shirt was not Ronald's, but belonged to someone at the crash site who placed the shirt over Ronald to shield his body from children at the scene.
Dr. Sally Brewster, a pathologist who performed the autopsy on Ronald, testified at trial that Ronald was shot in the left gluteus maximus and that the trajectory of the bullet was left to right, back to front, and upward. The bullet crossed a major artery in the left pelvis and Ronald died from exsanguination. Dr. Brewster noted that at the entrance wound, there was no soot, powder, searing of the skin, or imprint of the gun barrel. This indicated to her that the wound was a distant gunshot wound. Dr. Brewster was not aware of how many layers of clothing the bullet passed through, but stated that even with that information, her opinion that it was a distant gunshot wound would not change.
Gerald Whealton, a forensic examiner with the Ascension Parish Sheriff's Office who attended Ronald's autopsy, testified at trial that the trajectory of the bullet was back to front, slightly right to left, and slightly upper angle. Whealton also obtained a video from MasterVac Industrial on La. Hwy. 73 in Geismar, a business located eater-corner to where the shooting took place. The video of the scene was recorded at some distance, the lighting was poor, and the imagery was somewhat grainy. Aside from noting that he could see some figures moving around by a car, Whealton stated that he could not tell who was who in the video.
Patrick Lane, a bullet-markings expert with the Louisiana State Police Crime Lab, testified at trial that the bullet retrieved from Ronald's body was either a S&W .40 or a S&W 10 mm, but "in reality, probably a 40 S&W caliber." Lane examined the clothing that Ronald was wearing when he was shot. Lane stated he did not detect any gunpowder on the clothes. He added that based on the quantity of blood on the clothes, the gunpowder could have been masked or covered by that blood. Because the tail of Ronald's shirt would have been close to the bullet wound, Lane chemically processed the shirt tail for gunshot residues (GSR), but found no gunpowder particles or lead-type residues he would expect to have seen from a close proximity shot, or an eighteen-inch to a two-foot range. Thus, Lane suggested the distance between the muzzle of the gun and the target (Ronald) was a range of two to three feet or beyond.
Ascension Parish Sheriff's Office Detective Daniel Foulds testified at trial that he was the primary detective on the case. The day after the shooting, the defendant was developed as a suspect and brought to the police station for questioning. After being Mirandized, the defendant said he wanted his lawyer present. A few hours later, the defendant and his lawyer met privately in the interview room. About ten minutes later, the attorney gave Detective Foulds the defendant's written statement, which provided:
STATEMENT OF DAMIEN HALL
On or about January 28, 2009,1 was attacked at my house by Ronald Deloach or (Ronald Deloch). He hit me in the eye with a hand gun, and I was scared of getting shot so I tried to wrestle the gun from him to protect myself from possibly getting killed. He fought to try to keep the gun and during the struggle the gun somehow was discharged and Ronald was hit in the butt area, at which time he got into his car and left. I had no way of knowing how serious the shot was because he left right after it happened. At this time, I am requesting the presence of my attorney for any further interrogation.Following this statement, there was no more communication by the detective with the defendant and no subsequent interviews. Detective Foulds also viewed the video of the crime scene and testified that based on the video, it was not discernible whether or not there was a confrontation.
The defendant testified at trial that he did not have a gun. He stated he knew Ronald and that they used to work together. According to the defendant, he got home from work after 5:00 p.m., then went to his cousin's house in the front of the property. Ronald drove up and the defendant went outside. After a brief exchange about Ronald's "old lady," Ronald pulled a gun from his waistline, and hit the defendant in the eye, knocking him to the ground. He stated that during the attack, he and Ronald were "tussling." While he was trying to stop Ronald from shooting him, the gun went off. According to the defendant, the fight lasted only seconds. The defendant testified he was afraid of Ronald because Ronald was in a rage and also because he had learned while working with Ronald that Ronald had just come home from jail. When asked if Ronald had ever hurt someone, the defendant responded in the affirmative and added, "I know a while back they had went try to rob somebody and they had a big shoot out."
On cross-examination, the prosecutor had the defendant exit the stand and demonstrate for the jury his position and the position of the victim at the time when the gun went off. The prosecutor played the role of Ronald. The defendant explained that when he fell to the ground, Ronald tried to pistol whip him again. The defendant grabbed Ronald's arm, they wrestled, and the defendant tried to turn the gun away from him. When questioned by the prosecutor, the defendant confirmed that Ronald was over him, facing him, and he was facing Ronald, when the gun went off. The defendant described the gun as a black semi-automatic pistol. The defendant also stated that Ronald was wearing a jacket, or a hoodie. The defendant stated that he left his house with his family after the shooting because he was scared and did not know if Ronald was coming back. The defendant had prior convictions for possession of marijuana, possession of cocaine, possession of 28 grams or more of cocaine, possession with intent to distribute marijuana, and illegal possession of stolen things.
Dion Bell testified that she did not see the fight, but only heard the gunshot from inside. When she ran to the door, she saw the defendant on the ground. She did not see any weapon. She stated that Ronald was wearing a jacket or a hoodie. Keylon Larks testified the shooting occurred at his house. He stated that he saw part of the fight, namely a bunch of yelling and wrestling on the ground.
Max Scott, an expert for the defense in the field of forensic reconstruction, testified at trial that based on his examination and evaluation of the evidence, particularly the trajectory angles of the gunshot wound, the gun was fired from a position down on the ground. In reconstructing the relative positions of the defendant and Ronald during their struggle, Scott stated:
Then, if I may, I will be the person with the gun and I'm trying to shoot somebody and somebody is down below me and they are attempting to push or push the gun out of the way and my hands are on the trigger as you see, so, what happens is, eventually the gun gets turned around like this and because of the rotation of the finger, the trigger gets pulled and the gun discharges.
Scott testified that his conclusion was that this was an accidental gunshot. Ronald had the pistol with his finger on the trigger and as the pistol got pulled up, according to Scott, Ronald's hand underwent hyperextension, which caused the trigger finger to pull the trigger.
On rebuttal, the State recalled Patrick Lane. Lane stated he had heard the testimony of the defendant and Max Scott. Lane thought the angle of the bullet entry as described by Scott was "too steep." Using Scott's diagram, Lane stated: "And if 1 were to take this diagram and stand and allow this to represent my spine and we looked at that angle, it would actually be that the bullet projecting [sic] through my rectum, which we know anatomically is shifted downward some significant amount." When asked if his evaluation of the angle of entry was consistent with the defendant's testimony regarding how the struggle occurred, Lane responded: "For demonstration purposes, if I'm struggling in front, high or low, I can't have a wound that's coming from lower to higher, right to left, back to front. It's physically impossible. That aspect of his testimony alone is incorrect, inconsistent with the facts." On redirect examination by the prosecutor, the following exchange took place:
Q. Mr. Lane, two things. One, specifically with regard to the evaluations you have done today or the last days or your test, evaluation of records and everything, you stand by your opinion regarding the angle?
A. I do. Again, it's my not my opinion. It's obvious. Stand there, put yourself anatomically in that position, standing upright, look where the lines go. I mean, they speak for themselves.
That's not just my opinion. That's just how it is.
* * * * *
Q. You've heard Mr. Hall's testimony; is that correct?
A. Yes, I have.
Q. And how he alleged the incident took place?
A. Yes, sir.
Q. In your training and experience, would a shot consistent with the distance you testified to, would there be markings on the body beyond a bullet hole?
A. Absolutely.
Q. If you will, can you explain that to the jury?
A. Certainly, It's part -- again, it's what was not present in my examination of the underpants. It was what is not present in the autopsy report where they talk about wounds around the bullet track itself ~ no stippling, no tattooing, any of that type of thing. Those are close proximity where you've got those unburned and partially burned gunpowder. They are secondary projectiles that [sic] at that distance. I've seen hundreds of times in the course of my work through the years, you get a wound from a gunshot that is that close proximity, you will have a pattern that embeds into the skin. You cannot wash it off, can't rub it off. It's literally like a tattoo. It's in there.
As the distance increases, you get what you can think of as bruising or burn marks from the impact. Again, you cannot wash that off or take it away. The absence of it is significant and it's noted in the autopsy report and it's noted in my report that those type of things don't exist. Period.
Q. Lastly, based on everything you've done in this case and your experience, is Mr. Hall's narrative as to what happened possible?
A. I would answer your question in two parts. It's A, very inconsistent with the physical evidence; and, B, it's impossible.
COUNSELED ASSIGNMENTS OF ERROR NOS. 1 and 2:
PRO SE ASSIGNMENT OF ERROR
In related counseled assignments of error, the defendant argues, respectively, the evidence was insufficient to support the conviction for manslaughter and the trial court erred in denying the motions for new trial and postverdict judgment of acquittal, since the evidence was insufficient to support a conviction. Specifically, the defendant contends the State did not prove beyond a reasonable doubt that he did not kill Ronald in self-defense. In his pro se assignment of error, the defendant similarly argues the State did not sufficiently refute the defense theory that the shooting was committed in self-defense.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also LSA-C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654, 660; State v. Mussall, 523 So. 2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So. 2d 141, 144.
While the defendant was charged with second degree murder, he was found guilty of manslaughter. Guilty of manslaughter is a proper responsive verdict for a charge of second degree murder. LSA-C.Cr.P. art. 814(A)(3). Louisiana Revised Statute 14:31(A)(1) defines manslaughter as a homicide which would be either first degree murder or 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 factfinder 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 existence of "sudden passion" and "heat of blood" are not elements of the offense but, rather, are factors in the nature of mitigating circumstances that may reduce the grade of homicide. State v. Maddox, 522 So. 2d 579, 582 (La. App. 1st Cir. 1988). Manslaughter requires the presence of specific intent to kill or inflict great bodily harm. State v. Hilburn, 512 So. 2d 497, 504 (La. App. 1st Cir.), writ denied, 515 So. 2d 444 (La. 1987).
Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So. 2d 382, 390. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So. 2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue. 484 So. 2d 889, 892 (La. App. 1st Cir. 1986). Deliberately pointing and firing a deadly weapon at close range indicates specific intent to kill or inflict great bodily harm. See State v. Robinson, 2002-1869 (La. 4/14/04), 874 So. 2d 66, 74, cert. denied. 543 U.S. 1023, 125 S. Ct. 658, 160 L. Ed. 2d 499 (2004); see also State v. Ducre, 596 So. 2d 1372, 1382 (La. App. 1st Cir.), writ denied, 600 So.2d 637 (La. 1992).
When self-defense is raised as an issue by the defendant, the State has the burden of proving beyond a reasonable doubt that the homicide was not perpetrated in self-defense. Thus, the issue in this case is whether a rational factfinder, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the defendant did not kill the victim in self-defense. State v. Ducre, 596 So. 2d at 1382-83.
Louisiana Revised Statute 14:20 provides, in pertinent part:
A. 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.
Louisiana Revised Statute 14:21 provides:
A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.
The defendant argues in both his counseled and pro se brief that he shot Ronald in self-defense. In his counseled brief, the defendant contends specifically he did not have the specific intent to kill or inflict great bodily harm on Ronald. He points out that his was the only testimony that revealed what occurred when Ronald was shot, namely, that he and Ronald were involved in a scuffle when the gun discharged. Further, he notes that while the evidence suggested the gun was not discharged at a very close range, but was a distance shot, there was testimony that suggested the jacket Ronald was wearing during the scuffle may have blocked some of the gunshot residue (GSR) that would normally have been found on Ronald's skin at the entrance wound. Thus, the defendant implies that the gun could have discharged at a very close range, but Ronald's jacket and other layers of clothes (two shirts and underwear) deflected or absorbed much of the GSR that would normally have been found on Ronald's skin in a shooting at such a close range. In his pro se brief, the sole argument put forth by the defendant in support of his theory of self-defense is that in its reasons for sentence, the trial court stated, "There are numerous factors that suggest the victim played a part in his own death, including the fact that the victim went to the defendant's home armed with a weapon."
With regard to the pro se argument, we note that the trial court was not the factfinder at the defendant's jury trial, and that its reasons for sentencing had no bearing on the factfinding process or on the jurors' interpretation of the evidence in arriving at a guilty verdict of manslaughter. Thus, the trial court's notion of how the shooting occurred or who had the gun may have comported with or been completely at odds with the jury's understanding of what occurred. The defendant argues on the one hand that the shooting was in self-defense because he knew of Ronald's unsavory reputation and was in fear for his life, and on the other hand, that during his struggle with Ronald, the gun "went off." The defendant's own testimony at trial suggested that the shooting was accidental, rather than self-defense as argued in brief. Similar to his trial testimony, the defendant, upon meeting with his attorney, gave the police a short, prepared written statement, which suggested that the gun accidentally discharged.
The jury's verdict is a clear refutation of either theory or defense. The jurors clearly did not believe the defense claim of self-defense. The jurors apparently determined that the defendant had control of the gun when he shot Ronald and that the shooting was committed in sudden passion caused by Ronald's provocation. The jurors may have believed the defendant's story that he struggled with Ronald on the ground, but concluded that rather than the gun discharging during the struggle, the defendant managed to get control of the gun, then shot Ronald when his back was to the defendant, as he turned to run; or since no gun was ever found and the evidence never established who had the gun in the first instance, the jury may have believed it was the defendant who was armed when Ronald confronted him. The jury could have concluded that Ronald struck the defendant, knocking him to the ground; at that point, the defendant produced a gun, causing Ronald to turn to flee. The defendant then fired the gun, striking Ronald in the left buttock.
Either of these scenarios -- the defendant wrested the gun from Ronald or the defendant had the gun in the first instance and fired the gun as Ronald was turned away from him -- comport with the evidence that Ronald was shot in the left buttock from at least two feet away. The trajectory of the bullet was at a slightly upper angle, meaning the bullet traveled slightly upward through Ronald's body upon entry, which supports the conclusion that the defendant was lower than Ronald when he shot him, very possibly on the ground. The absence of GSR, stippling, or tattooing on Ronald's body near the entry wound indicated a gunshot likely from at least two feet to several feet away. On cross-examination, Patrick Lane suggested, in a hypothetical, that the lack of GSR, despite a very close gunshot range, could be caused by the several layers of clothes Ronald was wearing, including the allegedly a dark-colored jacket. The defendant and his fiancee testified Ronald was wearing the jacket during his altercation with the defendant. However, Ronald was not wearing the jacket when he crashed into the truck at the TNT Chevron. The jacket was found in Ronald's car. Further, Lane took all of these factors into account when he concluded that the gun did not discharge at pointblank range, but, rather, from a distance of at least two feet. Also, Lane examined Ronald's jacket and two shirts and found no bullet holes in them, suggesting that the bullet passed only through Ronald's underwear and not the jacket (or his jeans). Lane also made clear in his testimony that no GSR was found on Ronald's shirts or underwear.
Thus, the jury could reasonably have concluded that when shot, Ronald was some distance from the defendant, with his back toward the defendant. The defendant's depiction of events, wherein he was on the ground struggling with Ronald, who was on top of the defendant or standing over him when the gun discharged, was not plausible. The defendant testified specifically that he and Ronald were facing each other when the gun discharged. Given the relative positions of the defendant and Ronald when the gun allegedly discharged as claimed by the defendant, the bullet seemingly could not have entered Ronald from behind at a slightly upward angle from at least two feet away. Nevertheless, defense expert Max Scott suggested that such a scenario was possible to show that the shooting was an accident. Lane was recalled to the stand to respond to Scott's testimony. According to Lane, given the bullet's entry and the way it traveled through Ronald's body, the scenario as described by the defendant was impossible.
In any event, it is undisputed that at some point, the defendant was in control of a gun and shot Ronald in his back, specifically his buttock, from some feet away. The jury may have concluded that if the defendant used his own gun to shoot Ronald, then the defendant shot Ronald as he was moving away from the defendant and while he was no longer a threat to the defendant. Thus, the jury may have determined the defendant did not reasonably believe he was in imminent danger of losing his life or receiving great bodily harm when he shot Ronald, and did not act reasonably under the circumstances. See State v. Loston, 2003-0977 (La. App. 1st Cir. 2/23/04), 874 So. 2d 197, 205, writ denied, 2004-0792 (La. 9/24/04), 882 So. 2d 1167. On the other hand, if the jury concluded that Ronald brought his own gun, which the defendant gained control of, it may have determined the aggressor doctrine applied, since the defendant escalated the conflict by arming himself with the gun after he took it from Ronald. See Loston, 874 So. 2d at 205. The jury could have found that with the gun now in his possession, the defendant nonetheless chose to shoot Ronald, while unarmed and moving away from the defendant. In any event, once he had control of the gun, the defendant could have simply walked away and called the police.
Louisiana jurisprudence has been consistent in its treatment of the scenario where a victim/aggressor is disarmed. The appellate courts have found that during such encounters, where the defendant disarms the victim/aggressor and then kills him or uses the victim's/aggressor's own weapon against him to kill or injure him, the defendant becomes the aggressor and loses the right to claim self-defense. See State v. Bates, 95-1513 (La. App. 1st Cir. 11/8/96), 683 So. 2d 1370, 1375-78; State v. Pittman, 93-0892 (La. App. 1st Cir. 4/8/94), 636 So. 2d 299, 302-04. See also State v. Mackens, 35,350 (La. App. 2d Cir. 12/28/01), 803 So. 2d 454, 460-62, writ denied, 2002-0413 (La. 1/24/03), 836 So. 2d 37; State v. Jenkins, 98-1603 (La. App. 4th Cir. 12/29/99), 750 So. 2d 366, 376-77, writ denied, 2000-0556 (La. 11/13/00), 773 So.2d 157; State v. Stevenson, 514 So. 2d 651, 655 (La. App. 2d Cir. 1987), writ denied, 519 So. 2d 141 (La. 1988). Thus, a rational trier of fact could have reasonably concluded that the killing was not necessary to save the defendant from the danger envisioned by LSA-R.S. 14:20(A)(1) and/or that the defendant had abandoned the role of defender and had taken on the role of an aggressor and, as such, was not entitled to claim self-defense. See LSA-R.S. 14:21; Bates, 683 So. 2d at 1377.
Moreover, the defendant's actions in leaving the scene after shooting Ronald and failing to report the shooting are not consistent with a theory of self-defense. See State v. Emanuel-Dunn, 2003-0550 (La. App. 1st Cir. 11/7/03), 868 So. 2d 75, 80, writ denied, 2004-0339 (La. 6/25/04), 876 So. 2d 829; State v. Wallace, 612 So. 2d 183, 191 (La. App. 1st Cir. 1992), writ denied, 614 So. 2d 1253 (La. 1993). Flight following an offense reasonably raises the inference of a "guilty mind." State v. Captville, 448 So. 2d 676, 680 n.4 (La. 1984). Accordingly, the jury's rejection of the defense of justifiable homicide is supported by these circumstances.
The jury heard all of the testimony and viewed all of the physical evidence presented to it at trial including conflicting testimony. The jury found the defendant guilty of manslaughter. The guilty verdict rendered herein reflects the reasonable conclusion that based on the eyewitness and expert testimony, the defendant shot and killed Ronald and that such shooting was not accidental or in self-defense. See State v. Spears, 504 So. 2d 974, 978 (La. App. 1st Cir.), writ denied, 507 So. 2d 225 (La. 1987).
As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness, including an expert. State v. Ducksworth, 496 So. 2d 624, 634 (La. App. 1st Cir. 1986). Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So. 2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So. 2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So. 2d 592, 596 (La. App. 1st Cir. 1985). See State v. Johnson, 99-0385 (La. App. 1st Cir. 11/5/99), 745 So. 2d 217, 223, writ denied, 2000-0829 (La. 11/13/00), 774 So. 2d 971.
When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. Captville, 448 So. 2d at 680. The defendant's hypothesis of innocence herein was based on the theory of an accidental shooting. In defense counsel's opening statement, he suggested the defendant shot Ronald in self-defense; in his closing argument, he suggested both accidental shooting and self-defense. In finding the defendant guilty of manslaughter, the jury clearly did not believe the defendant's testimony regarding an accidental discharge or that he acted in self-defense, but found the mitigating circumstances of sudden passion and/or heat of blood. See Maddox, 522 So. 2d at 582. The verdict of guilty of manslaughter suggests the jury concluded either that the confrontation was sufficient provocation to deprive an average person of his self-control and cool reflection, or that an average person's blood would not have cooled before the defendant shot Ronald. Cf. Ducre, 596 So. 2d at 1384.
The jurors apparently concluded that the defendant's version of the events immediately preceding the fatal shot was a fabrication designed to deflect blame from him. The conclusion by the jurors that the defendant did not testify truthfully could reasonably support an inference that the "truth" if told by him as the only survivor would have been unfavorable to his accidental discharge theory. Further, in rejecting a claim of self-defense, the jury obviously concluded that the force used by the defendant against Ronald was unreasonable and unjustifiable. As such, the hypotheses of innocence presented by the defendant and the defense fall. See Captville, 448 So. 2d at 680. See also State v. Moten, 510 So. 2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So. 2d 126 (La. 1987).
After a thorough review of the record, we find the evidence supports the jury's unanimous verdict of manslaughter. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant did not kill his victim in self-defense or accidentally and, as such, was guilty of manslaughter. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam).
The trial court did not err in denying the motions for new trial and postverdict judgment of acquittal. Accordingly, the counseled assignments of error and the pro se assignment of error are without merit.
CONCLUSION
For these reasons, the defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.