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State v. Alexander11/17/2004
ictorian out of his plans. According to Mr. Paul, the stick in Mr. Victorian's possession at the time of his death fit the description of the stick he planned to use on Defendant. Ms. Dupre testified that around 2:00 or 3:00 that morning Mr. Victorian stated that, after he got off work, he was going to get his revenge against Defendant. There is no evidence that Defendant had knowledge of these threats before his encounter with Mr. Victorian.
Calcasieu Parish Coroner Terry Welke, an expert in forensic pathology, testified that Mr. Victorian had three gunshot wounds, one to the left outer chest, one to the right forearm, and one to the back left shoulder. The fatal bullet traveled from Mr. Victorian's left front chest to the right side of his back in a slightly upward position. He testified that the wound on Mr. Victorian's forearm could have been sustained if Mr. Victorian was holding an object. However, he also testified that the injury could have occurred if Mr. Victorian was standing with his arm down at his side.
Mr. Welke could not determine the exact distance between Mr. Victorian and the shooter on the chest or forearm wounds and estimated it to be at least two feet, but he acknowledged that the distance could have been a little closer than two feet. With regard to the wound on Mr. Victorian's left back shoulder, Mr. Welke testified that the barrel of the gun was in close proximity to the skin when that shot was fired because the injury contained gun powder, soot, and there was a line caused by the barrel of the gun. He also testified that Mr. Victorian's back was toward the end of the gun barrel and agreed that, hypothetically, the shoulder wound could have occurred when Mr. Victorian turned to swing an object at the shooter. This testimony was uncontradicted.
Bob Frye of the Southwest Louisiana Crime Lab testified as an expert in firearm and tool marking. He stated that the three spent shell casings in evidence were fired from Defendant's .40 caliber weapon. He determined that the weapon was approximately two feet from Mr. Victorian's chest when it was fired because there was gun powder on the T-shirt Mr. Victorian was wearing when he was shot.
The State had the burden of proving that Defendant did not shoot Mr. Victorian in self-defense; therefore, we must determine whether he reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm and that killing Mr. Victorian was necessary to save himself from that danger. La.R.S. 14:20; State v. Brown, 93-1471 (La.App. 3 Cir. 5/4/94), 640 So.2d 488. Because there were no witnesses to the shooting other than Defendant, the State had to rely on circumstantial evidence to disprove his self-defense claim. Where an essential element of a crime is sought to be proven by circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. La.R.S. 15:438.
When all of the evidence presented by the State is examined in the light most favorable to the prosecution, it is legally insufficient to meet the State's heavy burden of proof for the purpose of excluding every reasonable hypothesis that Defendant did not shoot Mr. Victorian in self-defense.
The trial court determined that Defendant could have exited the passenger's door of the Suburban and escaped to safety in the police station. While the possibility of escape is a factor to be considered when determining whether or not the defendant reasonably believed deadly force was necessary to avoid danger, there is no unqualified duty to retreat. State v. Carrier, 95-1003 (La.App. 3 Cir. 3/6/96), 670 So.2d 794, writ denied, 96-881 (La. 9/20/96), 679 So.2d 431. Furthermore, it is not the onl
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