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State v. Alexander11/17/2004
y factor to be considered: the excitement and confusion of the situation, the possibilities of using force or violence short of killing, and the defendant's knowledge of the assailant's bad character are other factors to be considered. State v. Nelson, 34,077 (La.App. 2 Cir. 12/6/00), 775 So.2d 579; State v. Hudson, 33,357 (La.App. 2 Cir. 5/10/00), 760 So.2d 591.
The trial court's suggestion that Defendant could have retreated does not take into account Mr. Victorian's speed in exiting from his car with his weapon and charging Defendant. Defendant testified that Mr. Victorian was in front of his car charging toward him when he first saw him in the parking lot. The trial court's conclusion also does not consider the time in which these events occurred. Ms. Coleman testified that she heard shots within five seconds of having exited the Suburban, and Officer Reese testified that she heard shots within two seconds of Ms. Coleman entering the station. The trial court's conclusion also does not consider the difficulty Defendant would have had trying to maneuver over the console of the Suburban under the circumstances: he knew Mr. Victorian had threatened his life and Mr. Victorian was in close proximity to him with a weapon that Defendant believed was a shotgun. Furthermore, Defendant's door was closer to the police station than the passenger's door, and he would have had to cross Mr. Victorian's path to get to the police station, even if he exited the passenger's door.
The physical evidence supports Defendant's claim that he was in imminent danger of death or severe bodily injury when he shot Mr. Victorian. Residue on the back of Mr. Victorian's left back shoulder indicates that Defendant's gun was in close proximity to the skin when the shot was made. This corroborates Defendant's testimony that he first shot Mr. Victorian as he charged him with his weapon raised over his shoulder to strike him. Additionally, Defendant's gun was within two feet of Mr. Victorian when his chest wound and his forearm wound were inflicted and the fatal bullet traveled in a slightly upward path. Furthermore, Mr. Victorian's body was positioned at or near the door of Defendant's Suburban, and Mr. Victorian's weapon was near the back wheel of the Suburban in a position consistent with it having fallen from his hands when he fell.
Mr. Victorian's actions justify Defendant's fear and actions. Defendant sought refuge at the Oakdale Police Station, but Mr. Victorian was not deterred. He continued his pursuit of Defendant in the parking lot, charging him with a weapon. He was also not deterred by Defendant's possession of a gun when he exited his vehicle. Mr. Victorian's blood alcohol content was .26, which probably contributed to, and may have heightened, his irrational behavior.
Lastly, Defendant's demeanor as he entered the police station also corroborates his belief that he was in imminent danger from Mr. Victorian--he was described by Officer Hutchins as nervous, scared, and trying to get away from Mr. Victorian.
The evidence leads to the conclusion that Defendant's fear and belief that he was in imminent danger of being killed or seriously injured by Mr. Victorian were reasonable.
Disposition
Defendant's conviction is reversed; his sentence is vacated and set aside, and an acquittal is ordered entered of record.
REVERSED; ACQUITTAL ORDERED.
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