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State v. Eugene1/27/2004
Deal, 00-0434 (La. 11/28/01), 802 So.2d 1254, 1260, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002).
Defendant testified at trial that Fluence left the house on the afternoon of September 3 to complete some errands. She did not see Fluence again until 12:30 on the morning of September 4, when he appeared at Weegie's. Veronica Nicholson, defendant's neighbor, testified that she saw defendant and David Fluence at Weegie's prior to the incident, and that the couple were dancing, drinking, and having a good time.
Defendant testified that Mr. Fluence, under the influence of alcohol, initiated an argument. In her taped interview with Detective Hymel, defendant indicated it was she who started the altercation that led to Mr. Fluence's death. While they were at Weegie's, she confronted Fluence regarding where he had been that day. He told her he had taken his son to the hospital to have a sprained ankle treated. Defendant accused him of lying. She suspected he was seeing another woman. The two argued at the nightclub and continued to quarrel on the drive home.
After the couple arrived at the house, Mr. Fluence broke a broomstick in the living room, slapped her face, and shoved her against a chair. Defendant went into another room and armed herself with a knife. She returned to the living room. Her hand slipped, and the knife went into Fluence's chest.
Defendant argues that the discovery of Fluence's infidelities was a situation sufficient to deprive the average person of self-control and cool reflection. In some instances, such might be the case. However, in her statement, defendant told the officer that she suspected that Fluence was being unfaithful to her for quite some time. This argument about Fluence's infidelities was apparently a continuation of an ongoing dispute between defendant and Fluence. On the night of the stabbing, defendant provoked Mr. Fluence by questioning him about his activities.
Viewing the evidence presented at trial in the light most favorable to the prosecution, we find that the state proved the essential elements of second degree murder beyond a reasonable doubt. We also find that defendant failed to prove by a preponderance of the evidence that she acted in sudden passion or heat of blood. Accordingly, the arguments raised by defendant in this assigned error are without merit.
ASSIGNMENT OF ERROR NUMBER FOUR
In his last assignment of error, defendant requests that we review the record for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review reveals no errors patent.
For the reasons set forth herein, we hereby affirm defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.
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