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STATE OF LOUISIANA VERSUS LARRY R. FALKINS R coDRT OF APPEAL'
FIFTH CIRCUIT

NO. 08-KA-745 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

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ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 05-5638, DIVISION "K" HONORABLE MARTHA E. SASSONE, JUDGE PRESIDING JANUARY 27, 2009

CLARENCE E. MCMANUS
JUDGE
Panel composed of Judges Marion F. Edwards, Susan M. Chehardy, and Clarence E. McManus

PAUL D. CONNICK, JR. DISTRICT ATTORNEY
Twenty-Fourth Judicial District Parish of Jefferson TERRY M. BOUDREAUX

ASSISTANT DISTRICT ATTORNEY
200 Derbigny Street Gretna, Louisiana 70053

COUNSEL FOR PLAINTIFF/APPELLEE
BRUCE G. WHITTAKER
Attorney at Law Louisiana Appellate Project

Post Office Box 791984 New Orleans, Louisiana 70179-1984 COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED

The defendant, Larry R. Falkins, was convicted of attempted first degree urder of a police officer in violation of LSA-R.S. 14:27(30), and was sentenced
to hard labor for a term of forty years, to be served without the benefit of parole,

probation, or suspension of sentence. Thereafter, defendant filed a motion to reconsider sentence, which was denied by the trial court. Defendant now appeals. We affirm defendant's conviction and sentence.
The following was adduced at trial. On September 1, 2005, in the immediate aftermath of Hurricane Katrina', members of the Jefferson Parish

Sheriff's Office responded to reports of looting. Deputy Stanley Brown, assisted
by Deputy Andino, arrived at the Dollar Store on Airline Highway, Metairie,

Louisiana, where they found large numbers of people inside the store. A female on the scene informed officers that guns were being stolen from the Cash America Pawn Shop next door. In responding to this tip, the police found guns inside the doorway but no suspects inside. The police inventoried the guns and began to load them in police cars. Officers received a tip that the people who had broken into Cash America and stolen guns had left in a maroon Chevy, which was parked on Simon Street
with a flat tire. The tipster also stated that one of the subjects, wearing jeans, a white shirt, and a black cap, was changing the tire. Deputy Brown drove to Simon
i This Court has specifically taken judicial notice that Hurricane Katrina hit south Louisiana on August 29, 2005. In re Intra Family Adoption ofA.G. T., 06-805 (La.App. 5 Cir. 3/13/07), 956 So.2d 641.

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Street where he saw the car and the suspect, whom he identified in court as the defendant.

As the deputy pulled up behind, the defendant began to run toward the railroad tracks. Deputy Brown grabbed his shotgun for his safety and pursued the defendant down the tracks. Deputy Brown testified that, "Mr. Falkins turned with
his head and his right hand and had a black in color pistol and pointed it in my

direction." Brown saw the muzzle flash from the defendant's weapon and returned fire. Brown fired his shotgun at the defendant three times. On the third shot, the defendant fell. He popped up again, however, and ducked into the woods near the tracks. Deputy Abraham Andino also made a positive identification of the defendant as the shooter in court. He described the scene at the shopping center
and the discovery of the cache of stolen guns. He was in pursuit when the defendant fired at police. After the second shot, he realized that the defendant was

shooting at the officers. The defendant ran out of sight. When the defendant turned back and fired his pistol, he was 35 to 50 yards away from Officer Brown. Lieutenant Karl Walsdorf also described chasing the defendant on the railroad tracks. When the police got to the top of the tracks, the defendant turned and fired on the officers. When Walsdorf heard the first shot, he crouched down and heard the bullet whiz over his head. The defendant fired the first shots. There was no place to take cover and Walsdorf was afraid for his life. Walsdorf had no
doubt that the man sitting in the courtroom was the same man who had shot at the officers. The officers who testified agreed that the defendant was not captured in the

chase. After the defendant eluded police, a "perimeter" was set up with many

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units, including K-9s and helicopters, involved in searching for the defendant. The handgun was never recovered. Shortly after the exchange of gunfire and the chase down the tracks, the police received information that a black male had presented himself at the Kenner Regional Hospital with a gunshot wound. Roughly an hour after the shooting, Deputy Andino made a positive identification of the defendant as the shooter.
Major Victor Amstutz testified that he learned that a subject had presented

himself at Kenner Regional with a gunshot wound. Amstutz interviewed the subject who stated that he had been walking on West Metairie near North Sibley when he was shot from a car. Amstutz also spoke with the two men who brought the subject to the hospital. These men contradicted the defendant's story. The three officers who had been shot at, took a look at the subject and made positive identifications of him as the shooter. At Amstutz' request, a Kenner policeman conducted a gunshot residue test.
An Instant Shooter Identification Kit was performed on both of the

defendant's hands. His right hand tested positive for the presence of gunpowder residue, while his left hand did not. The test revealed a strong presumptive
positive that the defendant's right hand was "at or near a gunfire or gunpowder

source." The defendant exercised his right to testify at trial. He denied participating in the robbery of the pawn shop. He also denied driving a car, changing a tire, or shooting a gun. He testified that he began to run on the train tracks but was not
concerned until he heard an officer say that he had a gun. He denied having a gun, however, and denied firing at the police officers. He acknowledged that he was struck in the arm by shots from a police officer. The defendant stated that he ran

into a person he knew whom he asked to take him to the hospital. He denied

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having told Major Amstutz that he was the victim of a drive-by shooting. He concluded that the police were making up the account of his statement.
In his first allegation of error, defendant alleges that it was error for the trial court to deny the Motion to Reconsider Sentence as the sentence imposed was

constitutionally excessive. Both the Eighth Amendment to the United States Constitution and Article I,

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