Lanard Lavigne Versus State of Louisiana

• Court: Louisiana Court of Appeal
• Decided: January 16, 2025
• Docket: 24-KH-403
• Status: Unknown

Opinion

LANARD LAVIGNE NO. 24-KH-403

VERSUS FIFTH CIRCUIT

STATE OF LOUISIANA COURT OF APPEAL

STATE OF LOUISIANA

January 16, 2025

Linda Wiseman First Deputy Clerk

IN RE LANARD LAVIGNE

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B. DARENSBURG, DIVISION "C", NUMBER 18-6525

Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.

WRIT DENIED

Relator, Lanard Lavigne (“Lavigne”) seeks supervisory review of the trial

court’s judgment denying his first Application for Post-Conviction Relief

(“APCR”), following this court’s May 24, 2023 opinion affirming his murder

conviction and the Louisiana Supreme Court’s October 10, 2023 denial of his

application for supervisory review thereafter. On October 21, 2021 Relator was

convicted and later sentenced for the second degree murder of Kerwin Connor, in

violation of La. R.S. 14:30.1.1 He has asserted six assignments of error. On the

showing made and for the reasons set forth below, we deny Lavigne’s application

for supervisory writs.

1 Lavigne also pled guilty to one count of obstruction of justice (La. R.S. 14:30.1) by tampering with evidence in a murder investigation by intentionally removing the handgun he used to commit the murder of Conner from the crime scene. He was also charged with and convicted by the jury of aggravated criminal damage to property (La. R.S. 14:55) as a result damage caused to residences in the area of the shooting by bullets fired from his gun.

24-KH-403 FACTS2 AND PROCEDURAL BACKGROUND

By way of summary, the facts leading to Lavigne’s conviction are that: On

March 14, 2018, Levigne shot Kerwin Connor a/k/a “Puddy” (“Connor”) three

times, while Conner was outside of his residence in the 300 block of Clemson Place

in Kenner, Louisiana. Connor died from his injuries.

Lavigne and his girlfriend, Darriyell Beasley (“Beasley”) lived across from

Connor, a notorious heroin addict and drug dealer, at 110 Clemson Place. Prior to

the shooting, Beasley, who was on her way to the store, passed by Connor and

another man, who were in a vacant lot on the side of the apartment complex, working

on a truck. Connor made insulting comments to Beasley as she passed. Upon leaving

the store, Beasley met up with Lavigne and they walked home together. On their

way home, Beasley told Lavigne about the comments made to her by Connor and

the other man.

When they passed by Connor, who was still in the vacant lot, but inside the

truck, Connor initiated a verbal altercation with Lavigne, which ended with Connor

telling them he was going to his apartment to get something3 and Lavigne and

Beasley proceeding into their apartment. Connor ran upstairs to his apartment,

retrieved a handgun, went to the front of the apartment building where Beasley and

Lavigne lived, and started pacing back and forth in the street.

Shortly after Connor appeared in front of their apartment building, Beasley

and Lavigne left their apartment to walk their dog in a nearby park. Not knowing

what they were going to walk out to, Lavigne armed himself with a semi-automatic

2 The facts relating to the incident in which Lavigne shot and killed Connor are set forth at length in this Court’s opinion on Lavigne’s direct appeal. State v. Lavigne, 22-282, (La. App. 5 Cir. 5/24/23), 365 So.3d 919, 927-37. The sufficiency of the evidence to convict Lavigne is discussed in detail at 22-282, 365 So.3d at 938-48. The evidence was found by this Court to be sufficient to convict Lavigne. 3 Beasley thought he said he was going to get his shoes. 2 handgun. When they exited their apartment, Connor yelled to Lavigne that he was

going to make him use his gun. Connor pointed his own gun, a revolver, at Beasley

and Lavigne. Lavigne pulled his gun out of his backpack and started firing at

Connor. Beasley ran back into their apartment. Connor began running between cars

and started to make his way back to his apartment. While continuing to fire his gun,

Lavigne chased Connor who was dodging Lavigne’s shots. The chase ended when

Connor (with his friend, known only to Connor’s fiance as “Kevin”) 4 ran up to his

apartment where he collapsed. Three of Lavigne’s shots hit Connor. Two of the

shots severed Connor’s femoral arteries in both legs.

Connor’s fiancé called 911 and fled from the apartment with their nine year

old daughter. They observed a revolver on the steps when they exited their

apartment, but the revolver was never recovered by police.5 After the shooting

Lavigne fled to Houma, where he stayed with relatives for some seven months before

being found there and arrested.

Lavigne was charged by a Jefferson Parish Grand Jury in a three count

indictment with second degree murder (Count 1), obstruction of justice (Count 2)

and criminal damage to property (Count 3). After pleading guilty to Count 2,

Lavigne’s trial on Counts 1 and 3 commenced on October 18, 2021. Lavigne claimed

that he shot and killed Connor in self-defense and/or in the heat of passion. On

October 21, 2021, the jury convicted Lavigne on Counts 1 and 3. After the trial,

Lavigne filed a Motion for New Trial and a Motion for Post-Judgment Verdict of

Acquittal, which were denied by the trial court on December 6, 2021. Thereafter,

the trial court sentenced Lavigne to serve life in prison at hard labor, without benefit

of probation, parole or suspension of sentence as to Count 1; to forty years

4 “Kevin” was later identified as Kevin Brown (“Brown”) and another man who was with “Kevin” and the victim was identified as Bernett Tibbitt (“Tibbitt”). Neither were called as witnesses at trial, nor were any search warrants ever served on the two men, even though investigating detectives believed that they had removed Connor’s gun from the scene and had disposed of it. 5 See n. 4 above. 3 imprisonment at hard labor as to Count 2, and to fifteen years imprisonment at hard

labor as to Count 3, with the sentences to run concurrently.

Lavigne timely appealed his convictions and sentences to this Court. This

court affirmed Lavigne’s convictions, but vacated the matter for resentencing,

finding the sentences to be indeterminate as the trial court failed to specify whether

the sentences were to run concurrently with specific sentences imposed or

concurrently with any other sentences that Lavigne may have been serving at the

time.6 We further found that the trial court had not properly advised Lavigne of the

prescriptive period applicable to his right to file an application for post-conviction

relief, and instructed the trial court to so advise him at the resentencing hearing.7

On July 26, 2023, Lavigne was resentenced in accordance with this Court’s

opinion and instructions. At Lavigne’s resentencing hearing, Lavigne represented

to the trial court that he had not received a copy of this Court’s opinion on his direct

appeal. The trial court stated, however, that Notice of Judgment and the Judgment

had been served on Lavigne’s appellate counsel on May 24, 2023. The trial court

provided Lavigne with a copy of this Court’s opinion at his resentencing hearing.

Lavigne then filed an application for supervisory writs to the Louisiana Supreme

Court, which was not considered because it was untimely under Louisiana Supreme

Court Rule X, § 5(a).8

On March 7, 2024, Lavigne filed his first APCR in the trial court. Therein,

Lavigne raised the following issues: (1) that his failure to be served with this Court’s

opinion on his direct appeal deprived him of the right to seek further review of this

convictions and sentences by timely filing a timely application for supervisory writs

6 22-282, 365 So.3d at 962. 7 Id, at p. 63,365 So.3d at 962-63. 8 State v. Lavigne, 23-1119 (La. 10/10/23), 370 So.3d 1086, reconsideration denied, 23-1119 (La. 1/10/24), 375 So.3d 1086. Rule X, § 5(a) provides that an application for supervisory writs must be filed within 30 days of the mailing of the Notice of Judgment by the Clerk of the appeals court or within 30 days of the mailing of the notice of the notice of denial of any application for rehearing or judgment on rehearing, if applicable. Rule X, § 5(a) further provides that no extension of the deadlines will be granted.

4 to the Louisiana Supreme Court; (2) prosecutorial misconduct in conjunction with

vior dire, opening statement and closing arguments, and in failing to correct

inaccurate testimony presented at trial in violation of Napue v. Illinois, 360 U.S. 264,

79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); (3) trial court errors, including errors

committed in voir dire and in connection with the exercise of juror challenges;

failing to correct the misconduct of the prosecutor; instructing jurors as to the penalty

for second degree murder and re-polling the jury; (4) ineffective assistance of trial

counsel in failing to interpose objections and in suggesting during voir dire that life

in prison is an appropriate sentence for second degree murder, and ineffective

assistance of appellate counsel in failing to adequately argue on appeal the

insufficiency of the evidence to support a conviction for second degree murder; and

(5) that the cumulative effect of all of the errors alleged in the APCR warranted

relief.

Lavigne filed a motion for an evidentiary hearing on his APCR, which was

denied by the trial court. The State filed a response to Lavigne’s APCR, contending

that most if not all of Lavigne’s claims were procedurally barred under La. C.Cr.P.

art. 930.4(B)9 and that, in any event, his claims lacked merit.

The trial court denied Lavigne’s APCR by Order issued on July 26, 2024,

finding that:

The petitioner received a fair trial by jury with reliable results. Furthermore, he has had careful legal review of the proceedings against him on direct appeal. The record establishes valid convictions and sentences authorized by law. The petitioner’s post-conviction claims are procedurally barred and unwarranted. On all claims, the petitioner has utterly failed to meet his heavy burden of proof under La. C.Cr.P. art. 930.2.10

9 La. C.Cr.P. art. 930.4(B) provides that “[i]f the application alleges a claim of which the petitioner had knowledge and inexcusably failed to raise in the proceedings leading to conviction, the court may deny relief. 10 Application, p. 325. 5 Lavigne timely filed a Notice of Intent to seek supervisory writs to this Court.

His application for supervisory writs (the “Application”) was filed on August 27,

2024. Lavigne’s Application asserts as error the issues raised in his APCR plus an

additional assignment of error based on the failure of the trial court to grant him an

evidentiary hearing on his APCR.

APPLICABLE LAW ON POST-CONVICTION RELIEF

La. C.Cr.P. art. 930.2 provides that the burden of proof in an application for

post-conviction relief is on the petitioner. If the application is based on a “claim for

relief which was fully litigated in an appeal from the proceedings leading to the

judgment of conviction and sentence,” it shall not be considered unless required in

the interest of justice. La. C.Cr.P. art. 930.4(A). Additionally, [i]f the application

alleges a claim of which the petitioner had knowledge and inexcusably failed to raise

in the proceedings leading to conviction, the court shall deny relief.” La. C.Cr.P.

art. 930.4(B). Further, “[i]f the application alleges a claim which the petitioner

raised in the trial court and inexcusably failed to pursue on appeal, the court shall

deny relief.” La. C.Cr.P. art. 930.4(C).11

DISCUSSION OF ASSIGNMENTS OF ERROR

ASSIGNMENT OF ERROR NO. 6: (Failure to Conduct a Hearing on Lavigne’s APCR)

We will consider Lavigne’s last assignment of error first. In his sixth

assignment of error, Lavigne alleges that the district court erred in failing to grant

him an evidentiary hearing on his APCR. We disagree. La. C.Cr.P. Article 929(A)

provides that no hearing is required where the court determines that the factual and

legal issues presented in the APCR can be resolved “based upon the application and

answer, and supporting documents, including relevant transcripts, depositions, and

other reliable documents submitted by either party or available to the court….”

11 See also La. C.Cr.P. art. 841(A) which provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence.” 6 In State v. Ball, 2019-0164, pp. 10-11 (La. 11/24/20), 305 So.3d 90, 98, the

Louisiana Supreme Court stated:

It is well-established that the district court may dispose of an application for post-conviction relief without conducting an evidentiary hearing, even if the application states a claim on which relief could be granted, if the issues raised can be resolved on the application, answer, and supporting documents, including relevant transcripts, depositions, and other reliable documents submitted by either party or that are available to the court…[O]nly ‘[w]hen there is a factual issue of significance that is sharply contested’ need the court hold a hearing.12

As discussed below, the issues presented by Lavigne in his APLC are issues

that can be resolved without the need of a hearing, and this assignment of error is

without merit.

ASSIGNMENT OF ERROR NO. 1 (Deprivation of full Appellate Review)

The first substantive error raised by Lavigne is that he was deprived of full

appellate review in that he was prevented from timely applying to the Louisiana

Supreme Court for supervisory writs following his direct appeal because he did not

personally receive notice of this Court’s disposition on his direct appeal. The record

reflects that Lavigne’s appellate counsel was electronically served with this Court’s

decision on May 24, 2023,13 in compliance with Uniform Rules—Courts of Appeal,

R. 2-16.4, which provides: “In every case, one copy of the opinion, when rendered,

shall be transmitted by mail or electronic transmission to the trial judge, the clerk of

the trial court, all appeal counsel of record, and all parties not represented by

counsel.” (Emphasis added). Lavigne was represented by counsel in conjunction

with his appeal. Service on his said counsel was made and was proper. The Rule

does not require that a party represented by counsel be personally served with the

Notice of Judgment and Judgment.

12 Citations and parentheses omitted. 13 See Application, p. 91. 7 Nevertheless, Lavigne claims that he should have been personally notified of

this Court’s decision, which did not occur until July 26, 2023, at his resentencing

hearing,14 by which time, the thirty-day time period for seeking supervisory writs to

the Louisiana Supreme Court had expired. Lavigne was provided by the district court

with a copy of this Court’s decision on his direct appeal at his resentencing hearing.

Lavigne then filed a pro se application for supervisory writs in the Louisiana

Supreme Court within thirty days of his resentencing hearing. The lack of personal

notice was raised by Lavigne in his argument to the Louisiana Supreme Court that

it should excuse the lack of timeliness of his application for supervisory writs. This

issue was obviously considered and rejected by the Court when it denied Lavigne’s

writ application on October 10, 2023, stating, “Not timely filed. See Louisiana

Supreme Court Rule X, § 5(a).15 State v. Lavigne, 23-119 (La 10/10/23), 370 So.3d

1086, reconsideration denied, 23-1119 (La. 10/10/23, 375 So.3d 967.

Lavigne claims that he is entitled to seek relief in his APLC to file his out-of-

time writ application under State v. Counterman, 475 So.2d 336 (La. 1975), which

held that an APLC filed in the trial court is the appropriate procedural vehicle for a

defendant who has failed to file a direct appeal to seek reinstatement of his right to

appeal. Here, Relator has received judicial review by this Court of his conviction

and sentence on direct appeal. In Talley v. Maggio, 451 So.2d 1358, 1361 (La. App.

4th Cir. 1984), the court held that “[t]here is no constitutional right to further review

[after a direct appeal] by way of rehearing or writs.”16 Counterman does not support

14 See Application, pp. 92-94 (excerpt of Lavigne’s resentencing transcript). 15 Louisiana Supreme Court Rule X, § 5(a) provides that after a direct appeal where no timely application for rehearing has been filed, an application seeking review by the high court “shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal,” and that “[n]o extension of time therefor will be granted.” 16 See also State v. Mourra, 08-KH-748 (La. App. 5th Cir. 10/23/08), writ denied, 08-2768 (La. 10/9/09), 19 So.3d 7, State v. Spikes, 20-130 (La. App. 1 Cir. 5/12/20), 2020 WL 2461517 (“[a] criminal defendant has no constitutional right to counsel to pursue discretionary state appeals or applications for review.”); Ross v. Moffitt, 417 U.S. 600 (1974) (holding that a criminal defendant does not have a constitutional right to counsel to pursue discretionary appeals); and Wainright v. Torna, 455 U.S. 586 (1982) (Respondent’s writ after direct appeal was dismissed as untimely and he filed a habeas corpus alleging the failure to timely file as ineffective assistance of counsel. Held: Respondent had no absolute right to discretionary review by the Florida Supreme Court; thus, counsel’s assistance cannot have been ineffective.). 8 the defendant’s right to seek out-of-time supervisory review from the Louisiana

Supreme Court in an APLC, which review is completely discretionary with respect

to non-capital defendants, such as Lavigne here.17

Even if this claim had merit, which it does not, the petitioner in an APCL has

the burden of proof to show that the issues raised in his application affected his

conviction and sentence. As stated by the district court, Lavigne made no showing

that a timely writ application to the Louisiana Supreme Court would have been

granted or that, if granted, his conviction would have been reversed.

ASSIGNMENT OF ERROR NO. 2 (Prosecutorial Misconduct)

Lavigne’s claim of prosecutorial misconduct is comprised of a number of

individual sub-claims relating to the conduct of the prosecution during jury selection,

in opening statements, at trial, and in its closing argument. The district court denied

all of Lavigne’s claims of prosecutorial misconduct on the grounds that they were

procedurally barred under La. C.Cr.P. arts. 841(A) and 930.4(B) because no

objections were made at trial. Although we agree with the district court’s analysis

in this regard, we will nevertheless address Lavigne’s sub-claims below.

(a) Informing the Jury of the Mandatory Sentence for Second Degree Murder During Voir Dire.

In his second substantive claim raised in his APLC, Lavigne makes several

claims of prosecutorial misconduct, including multiple improper references made

during the prosecutor’s voir dire, opening statement and closing argument relative

to the mandatory sentence for second-degree murder. This claim is without merit.

Lavigne’s counsel failed to contemporaneously object to these comments by the

prosecutor made during voir dire, opening statement, and/or closing arguments, and

17 See Article V, § 10 of the Louisiana Constitution of 1974 and LSA-C.Cr.P. 911. 9 this issue was not raised on appeal.18 Accordingly, the district court correctly found

that these claims could not be raised in Lavigne’s APCL.

Moreover, the prosecutor’s references to the mandatory sentence for second

degree murder in voir dire were not improper as they were designed to enable the

prosecution to identify potential jurors who would be unable to enter a guilty verdict

knowing that the only sentence that could be imposed was life, without benefits of

probation, parole or suspension of sentence. In State v. Frey, 568 So.2d 576, 577

(La. App. 4th Cir. 1990) the court held that the trial court was within its discretion in

allowing the prosecution to challenge for cause all jurors who stated that they could

not consider a verdict of guilty due to the mandatory life sentence that would be

required if the defendant were convicted.19 Citing State v. Jackson, 450 So.2d 621

(La. 1984), Lavigne asserts, however, that a mandatory sentence may only be

discussed at trial if the defendant requests an instruction and then, only by the court

in the jury instructions, given at the close of the evidence. He contends that because

he never requested that the jury be informed of the mandatory sentence, or initiated

discussion of the mandatory sentence during voir dire, the prosecutor’s references

to the mandatory sentence during voir dire were improper and require reversal.

Lavigne misinterprets Jackson.

Jackson has no bearing on the scope of voir dire. La.C.Cr.P. 786 states, in

pertinent part, that “[t]he court, the state and the defendant shall have the right to

examine prospective jurors. The scope of the examination shall be within the

discretion of the court.” The Louisiana Supreme Court has held that the district

court’s rulings on the issues arising in connection with counsel’s voir dire

18 La. C.Cr.P. arts. 841(A), 930.4(B) and (C). 19 Accord, State v. Wright, 618 So.2d 540 (La. App. 4th Cir. 1993); State v. Ladell, 52,847 (La. App. 2 Cir. 9/25/19), 280 So.2d 932. As discussed infra in conjunction with Lavigne’s assignment of error related to trial court errors, the trial court, over defense objection, allowed two cause challenges of jurors who expressed that they would not be able to return a verdict of guilty to second degree murder knowing that the mandatory penalty was a life sentence. 10 examination “will not be disturbed on appeal in the absence of a clear abuse of

discretion…[based] on a review of the record of the voir dire as a whole.”20

If such references made by the prosecution in voir dire were not improper,

then, they were also not improper in the prosecutor’s opening statement and closing

argument, as the jury had already been informed of the mandatory penalty in voir

dire. Finally, even if improper, the prosecutor’s references to the mandatory

sentence upon conviction did not affect the outcome of the case, since Lavigne’s

counsel alluded to the mandatory sentence in voir dire and since the district court

instructed the jury as to the mandatory sentence for second degree murder in the jury

instructions. Accordingly, any such errors would be harmless.

(b) Allegedly Improper Arguments made by the Prosecution in its Opening Statement and Closing Argument.

Lavigne also argues that the prosecution improperly argued matters that were

unsupported by the evidence in its opening statement and closing argument,

including that: (1) Connor was shot execution-style at his front door (opening and

closing); (2) Connor “bled-out” in his apartment (opening and closing); (3) Connor

knew that Lavigne was armed after his initial confrontation with Lavigne (opening

and closing); (4) Connor was not lying in wait for Lavigne and Beasley when they

left their apartment to walk their dog (opening and closing); (5) Connor never fired

his gun (opening and closing); (6) the fact that Connor’s fatal wounds were to the

front of his body prove second degree murder (closing); (7) Lavigne was not in

imminent danger when Connor got back to his own apartment (closing); (8) the

credibility of Brown and Tibbitt would have been called into question had they

testified at trial (closing); and (9) Connor never pointed his gun at Lavigne and

Beasley (closing). The district court correctly ruled that all of these claims were

20 State v. Hall, 616 So.2d 664, 669 (La. 1993); La. C.Cr.P. 786. 11 procedurally barred as no contemporaneous objections to the statements of the

prosecutors were raised at trial.

La. C.Cr.P. art. 766 provides that “[t]he opening statement of the state shall

explain the nature of the charge, and set forth in general terms, the nature of the

evidence by which the state expects to prove the charge.” “[A]bsent bad faith on the

part of the prosecutor or clear and substantial prejudice, the reference in the opening

statement to evidence later ruled inadmissible or not produced is not [reversible

error].”21

La. C.Cr.P. art. 774 provides that “[t]he [closing] argument shall be confined

to evidence admitted, to the lack of evidence, to conclusions of fact that the state or

defendant may draw therefrom, and to the law applicable to the case.” It has been

held that a prosecutor retains considerable latitude in making closing arguments 22

and is permitted to make statements during closing arguments drawn from a range

of reasonable conclusions from the facts in evidence.23 “Even if the prosecutor

exceeds this latitude, a reviewing court will not review a conviction unless

thoroughly convinced that the argument influenced the jury and contributed to the

verdict.”24 Several cases that illustrate these points are discussed below.

In Casey, supra, the prosecutor, in his closing argument, referred to serial

killers Wayne Williams and Ted Bundy and compared the defendant to them. 25 In

State v. Martin, 539 So.2d 1235, 1240 (La. 1989), the prosecutor’s closing argument

referred to “smoke screen” tactics and the defense as “commie pinkos.” In Soler,

21 State v. Horne, 554 So.2d 820, 824 (La. App. 5 Cir. 1989), citing State v. Bell, 279 So.2d 164 (La. 1973); State v. Green, 343 So.2d 149 (1977). 22 State v. Casey, 1999-0023 (La. 1/26/00), 775 So.2d 1022, 1036; State v. Byrne, 483 So.2d 564 (La. 1986), cert. denied, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168 (1986); State v. Morris, 404 So.2d 1186 (La. 1981); State v. Soler, 93-1042 (La. App. 5 Cir. 4/4/94), 636 So.2d 1069; State v. Cole, 15-358, p. 18 (La. App. 5 Cir. 12/23/15), 182 So.3d 1192, 1204. 23 Cole,15-538, p. 18, 182 So.3d at 1204, citing, State v. Breza, 394 So.2d 254, 256 (La. 1981). 24 Id., citing Frank, 99-553, 957 So.2d at 741; State v. Martin, 93-0285 (La. 10/17/94), 645 So.2d 190, 200; see also, Byrne, 483 So.2d at 1357; Soler, 636 So.2d at 1082 (“Before reversing a jury verdict because of a prosecutor’s closing remarks…the appellate court must be convinced the objectionable statements were so inflammatory or prejudicial that they influenced or contributed to the guilty verdict. (citations omitted)). 25 1999-0023, 775 So.2d at 1036. 12 supra, the prosecutor stated in her closing that the defendant was “no longer

presumed innocent.”26 In Cole, the appellant argued that prosecutor’s closing

argument contained conclusory statements that were not supported by any evidence

that was introduced at trial.27 In State v. Gray, 351 So.2d 448, 460 (La. 1977), the

prosecutor called the defendant an “animal” in his closing argument. In State v.

Bridgewater, 2000-1529 (La. 1/15/02), 825 So.2d 877, 903, the prosecutor referred

to the defendant in closing argument as a “cold-blooded killer” and as an “animal.”

In none of these cases was reversal granted based on a prosecutor’s statements in

opening statements or closing arguments.

The appellant in State v. Taylor, 93-2201 (La. 2/28/96), 669 So.2d 364,

claimed that he was entitled to a reversal on the grounds of prosecutorial misconduct

as a result of several allegedly improper statements made by the prosecutor during

closing, including (1) invoking his personal status as a representative of the people

of Louisiana; (2) making the “Angola lifestyle” argument; (3) stating that if the death

penalty was imposed, the defendant, not the jury was to blame; (4) making

statements relative to the defendant’s remorse or lack thereof, comparing defendant

to other murderers that he had prosecuted and comparing the murder weapon to

others that he had observed, when no evidence relative to these issues had been

introduced at trial; and (5) commenting on the credibility of the witnesses, including

the defendant.28 In denying the requested relief, the Louisiana Supreme Court

observed that:

While the complained of comments may constitute errors, they do not require reversal under the deferential ‘firmly convinced’ standard…Similar comments have been reviewed, condemned and found harmless by this Court.

26 636 So.2d at 1082. 27 15-538, 182 So.3d at 1203. 28 The Louisiana Supreme Court has held that comments on the credibility of the witnesses is proper and within the scope of closing argument. State v. Sayles, 395 So.2d 695, 697 (La. 1981). 13 Here, the district court expressly instructed jury prior to the jury’s

deliberations that:

The statements and arguments made by the lawyers are not evidence. In the opening statements, the lawyers were permitted to tell you the facts they expected to prove. In closing arguments, the lawyers were permitted to present for your consideration their contentions regarding what the evidence has [shown] and what conclusions they think may be drawn from the evidence. The opening statements and the closing arguments are not to be considered as evidence.29

Further, the jury heard all of the evidence presented at trial. On Lavigne’s

direct appeal, this Court reviewed all of that evidence in detail and found it to be

sufficient to sustain his conviction. This Court has held that:

In determining whether admission of the allegedly impermissible statements [made by the prosecutor during closing] constitutes reversible error, we are obliged to give credit to the good sense and fair- mindedness of the jury that has seen the evidence and heard the argument, and has been instructed that the arguments of counsel are not evidence.30

Lavigne has not alleged and the record does not demonstrate any bad faith on

the part of the prosecution during its opening statement; nor has he shown how the

prosecutor’s alleged improper opening statement clearly and substantially

prejudiced his right to a fair trial. Nor are we “thoroughly convinced” that the

prosecutor’s remarks made in closing arguments, even if impermissible, influenced

the jury and contributed to the verdict. In the case at hand, for all that appears, the

prosecution’s arguments to the jury were within the bounds of permissible argument.

Accordingly, Lavigne has failed to carry his burden of proving that the complained

of comments made by the prosecutor during opening statement and closing

arguments require a reversal of his conviction.

(c) Failure of the Prosecutor to Correct False Testimony.

Lavigne argues that Detective Engler falsely testified at trial that he lacked

probable cause to obtain a search warrant for areas under the control of Brown and

29 Supp. R., Lavigne (direct appeal), 22-KA-282, p. 510. (Emphasis added). 30 Cole, 15-358,182 So.3d at 1205. (Internal quotations and citations omitted). 14 Tibbett because he did not have direct evidence that Brown and/or Tibbitt removed

Connor’s gun from the crime scene. Lavigne asserts that the prosecutor’s failure to

correct Detective Engler’s testimony was prosecutorial misconduct under Napue,

supra. In Napue, the Supreme Court held that where a prosecutor allows a state

witness to give false testimony without correction, a reviewing court must reverse

the conviction if the witness’s testimony reasonably could have affected the jury’s

verdict, even if the testimony goes only to the credibility of the witness.31

As an initial matter, there was no contemporaneous objection to Detective

Engler’s testimony or any assertion at trial that Detective Engler’s testimony was

false or that the prosecutor knew the testimony was false and failed to correct it. Nor

was this issue raised on appeal. Thus, this claim is procedurally barred under

La.C.Cr.P. arts. 841(A) and 930.4(B) and (C).

Even if not procedurally barred, Lavigne has failed to demonstrate that

Detective Engler testified falsely, and there is no evidence in the district court record

that supports Lavinge’s contention to the contrary. Detective Engler testified that

Connor had been armed with a revolver on the day of the shooting but that the

revolver was never recovered. Detective Engler further testified that he believed that

Brown and/or Tibbett removed the gun from the scene; however, both men denied

any knowledge of the gun when initially questioned. Detective Engler had no direct

evidence, only his belief, that one or both of them had removed the gun. When

Detective Engler attempted to follow up with Brown and Tibbett at a later date, he

was unable to make contact with either of them. On those facts, Detective Engler

testified that he did not believe there was sufficient probable cause to obtain search

warrants for areas that may have been under the control of Brown and/or Tibbett.

31 360 U.S. at 269, 79 S.Ct. at 1177. 15 The prosecutor’s statement in his closing argument that Brown and Tibbett

were not called as witnesses because their testimony would have been challenged on

the basis that they were friends of Conner does not discredit Detective Engler’s

testimony. Moreover, the prosecutor also stated in his closing argument that Brown

and Tibbitt committed a felony by removing Connor’s gun from the scene. This

claim lacks merit.

(d) In his Closing Arguments, the Prosecutor Referred to Lavigne as a “Liar,” and Discredited Beasley, his own Witness.

Lavigne claims that the prosecutor committed egregious misconduct when, in

his closing arguments, he referred to Lavigne as a “liar,” and insinuated that

Beasley’s testimony was not credible. This claim is procedurally barred because no

contemporaneous objections to these statements were made at trial, nor were these

issues raised on appeal.32 Further, as discussed above, a prosecutor retains

considerable latitude in making closing arguments33 and is permitted to make

statements during closing arguments drawn from a range of reasonable conclusions

from the facts in evidence.34 “Even if the prosecutor exceeds this latitude, a

reviewing court will not review a conviction unless thoroughly convinced that the

argument influenced the jury and contributed to the verdict.”35 Comment on the

credibility of witnesses is proper and within the scope of closing argument.36

The district court instructed the jury that it was to decide the case based solely

on the evidence, which consisted of the testimony of the witnesses and exhibits

introduced at trial, not the arguments of counsel, which were not evidence. The jury

was also instructed that it was the sole judge of the credibility of the witnesses,

including the defendant. Giving credit, as we must, to “the good sense and fair-

32 La. C.Cr.P. arts. 841(A), 930(B) and (C). 33 Casey, 1999-0023, 775 So.2d at 1036; Byrne, 483 So.2d at 571-71, Morris, 404 So.2d at 1191; Soler, 93-1042, 636 So.2d at 1082; Cole, 15-358, 182 So.3d at 1204. 34 Cole, 15-538, 182 So.3d at 1204. 35 Id., citing Frank, 957 So.2d at 741; Martin, 645 So.2d at 200; see also, Byrne, 483 So.2d at 1357; Soler, 636 So.2d at 1082. 36 Sayles 395 So.at 697. 16 mindedness of the jury that has seen the evidence and heard the argument, and has

been instructed that the arguments of counsel are not evidence,”37 and in light of the

fact that, on Lavigne’s direct appeal, we found ample evidence in the record to

support his conviction, we are convinced that the statements of the prosecutor

referring to Lavigne as a “liar,” and Beasley as not credible did not influence the

jury’s verdict. Accordingly, even if Lavigne’s claim of prosecutorial misconduct

based on these statements made during closing argument were not procedurally

barred, it is without merit.

(e) In his Rebuttal Argument, the Prosecutor Allegedly Testified as an Expert on Heroin.

Lavigne’s trial counsel argued in his closing that the reason Connor -- a known

heroin addict, who it was demonstrated at trial had taken heroin on the day of the

shooting. had run to his apartment and armed himself after his initial altercation with

Lavigne was attributable to his heroin use. In rebuttal, the prosecutor countered that

Connor’s heroin use was irrelevant and characterized heroin as “a narcotic drug that

knocks people out.” Lavigne characterizes this comment as inadmissible “expert

testimony” by the prosecutor; however, no contemporaneous objection was made to

this comment by the prosecutor and the claim is therefore procedurally barred under

La. C.Cr.P. art. 930.4(B).

Even if not procedurally barred, however, Lavigne has not carried his burden

of proving that the prosecutor’s comment about the effects of heroin influenced the

jury’s verdict. The prosecutor was allowed to rebut defense counsel’s closing

argument about the possible effects of heroin on Connor on the day of the shooting.38

Further, the jury was instructed that the arguments of counsel were not evidence and,

after careful review of Lavigne’s conviction on his direct appeal, we found the

37 Cole, 15-358, p. 20, 182 So.3d at 1205. (Internal quotations and citations omitted). 38 See La. C.Cr.P. art. 774. 17 evidence introduced at trial sufficient to sustain his conviction. This claim is without

merit.

ASSIGNMENT OF ERROR NO. 3 (Failure of Trial Court to Correct Obvious Prosecutorial Misconduct)

Lavigne identifies two areas in which the district court erred in failing to

correct allegedly obvious instances of prosecutorial misconduct: (1) it failed to

correct the prosecutor’s remarks during voir dire regarding the mandatory sentence;

and (2) it sustained the prosecutor’s challenges for cause of two prospective jurors

who stated that they would be unable to render a verdict of guilty to second degree

murder because of the mandatory life sentence. Lavigne argued these two issues in

conjunction with his claims of prosecutorial misconduct discussed above and his

arguments on them are largely a rehashing of those that he advanced in support of

his claims of prosecutorial misconduct related to voir dire and the exercise of

peremptory challenges. These claims may be referred to hereinafter as the “Jury

Selection Claims.”

Lavigne identifies two additional alleged district court errors, related to jury

deliberations. First, he claims that the district court erred in instructing the jury as

to the mandatory sentence for a conviction of second degree murder (the “Jury

Instruction Claim”). Second, he alleges that the district court erred in repolling the

jury after the jury had indicated that it had reached a unanimous verdict as to Count

1 (second degree murder) but polling showed that one juror had marked something

other than second degree murder (the “Jury Polling Claim”).

The district court rejected all of these claims, stating:

As to the complaints regarding failure to correct prosecutorial misconduct, excusal for cause and an incorrect jury charge, there were no contemporaneous objections made during the trial39 and no

39 In fact, after trying to rehabilitate the two jurors who stated that they could not convict Lavigne of second degree murder knowing that he would receive a mandatory life sentence, defense counsel noted an objection when the district court allowed the prosecution to excuse the jurors for cause. This fact does not affect our ruling on this Application because the prosecution was within its rights to exclude the jurors on this basis, as discussed above. 18 arguments were made in connection with the petitioner’s appeal. Review of these claims by the district and appellate court[s] has been bypassed, as the reviewing courts had no opportunity to consider these issues previously. As to the complaint asserting reversible error in polling, this issue was raised on direct appeal. After consideration, the Fifth Circuit Court of Appeal found no merit in the complaint….

The mandatory provisions of La. C.Cr.P. art. 930.4(B) and (C) prohibit consideration of defaulted issues in this post-conviction proceeding. The mandatory provision of La. C.Cr.P. art. 930.1(1) prohibits an unwarranted revisiting of an issue fully litigated on appeal.

Although the court finds these complaints procedurally barred, in addition, even a review of the merits of these complaints is unavailing as the court is unpersuaded that any reversible errors in fact occurred.40

We agree with the district court and find no basis for reversal on the ground

of trial court error, as discussed below.

(a) The Jury Selection Claim.

Lavigne’s claim that the prosecution should not have been permitted to inform

potential jurors in voir dire of the mandatory sentence that would be imposed if

Lavigne were convicted of second degree murder has been discussed above. We

note, additionally, that Jackson does not impose a “gatekeeping” function on the

district court to exclude references to mandatory sentencing during voir dire in the

absence of a request by the defendant. As no contemporaneous objection to the

prosecutor’s remarks to potential jurors was made, Lavigne’s claim for a reversal

based on those remarks are procedurally barred under La. C.Cr.P. art. 930.4(B). The

same is true of Lavigne’s related claim that the district court erred in allowing the

prosecution to so inform potential jurors during voir dire. The district court did not

err in failing to sustain an objection that was not made.41

Further, as we discussed above, the prosecutor was entitled to discuss the

mandatory sentence during voir dire in order to determine whether the mandatory

sentence would affect the ability of any potential juror to find Lavigne guilty on the

40 Application, p. 322. 41 La. C.Cr.P. arts. 841(A) and 930.4(B) and (C). 19 charge of second degree murder. Two jurors expressed that they would not be able

to convict Lavigne of second degree murder knowing that he would receive a

mandatory life sentence. The prosecution challenged those jurors for cause. After

objections by defense counsel, lengthy discussions among the prosecutors, defense

counsel and the court, and attempts by defense counsel to rehabilitate the two jurors,

the prosecution’s challenges for cause were granted over defense counsel’s

objections. The granting of the prosecution’s challenges for cause was not assigned

as error in Lavigne’s direct appeal and is procedurally barred under La. C.Cr.P. art.

930.4(C). Even if not procedurally barred, however, the district court did not abuse

its discretion in allowing the prosecution to challenge these two jurors for cause.42

La. C.Cr.P. art. 800(B) provides that “[t]he erroneous allowance to the state of a

challenge for cause does not afford the defendant a ground for complaint, unless the

effect of such ruling is the exercise by the state of more peremptory challenges than

it is entitled to by law.” The state did not exercise any peremptory challenges in

excess of those permitted under La. C.Cr.P. art. 799. This claim is without merit.

(b) The Jury Charge Issue.

Our review of the official appellate record reveals that Lavigne’s counsel did

not object, either during the charge conference or in open court when the jury was

being charged, to the jury instruction given by the district court advising the jury of

the mandatory sentence for a conviction of second degree murder and the claim is

procedurally barred under La.C.Cr.P. arts. 841(A) and 930.4(B). Even if this claim

were not procedurally barred, the district court did not commit reversible error when

it instructed the jury a conviction of second degree murder carries a mandatory life

sentence. Although Lavigne contends that, under the Louisiana Supreme Court’s

decision in Jackson, supra, the jury could be so instructed only if requested by him,

42 Frey, supra, 568 So.2d at 577. See also, La. C.Cr.P. art. 800(B). 20 we have already explained that Jackson, does not prohibit the district court from

advising or instructing the jury of a mandatory sentence absent a request from the

defendant. In State v. Brent, 347 So.2d 1112, 1114 (La. 1977), the Louisiana

Supreme Court stated that “[i]t is established in Louisiana law that a trial judge may,

if he chooses to, instruct jurors on the applicable penalty in the event of conviction.”

Lavigne has not alleged that the district court’s instruction relative to the mandatory

sentence for second degree murder misstated the law. Accordingly, this claim lacks

(c) The Jury Polling Claim.

On direct appeal, Lavigne’s appellate counsel assigned as error the giving of

an impermissible Allen charge to the jury when, despite the jury’s representation that

they had reached a unanimous verdict on Count 1 (second degree murder), initial

polling did not reflect a lawful verdict. In his Application, Lavigne asserts that the

district court committed reversible error in repolling the jury because the court was

bound to declare a mistrial at that point. Lavigne contends that his Jury Polling

Claim is a different issue than that addressed by this Court in his direct appeal. We

disagree.

The Jury Polling Claim was briefed on Lavigne’s direct appeal and was

carefully considered by us and discussed at length in our opinion where we held that:

Upon review, we find that a mistrial was not required under the instant circumstances. Here, the jury initially indicated that it had reached a verdict in this matter. The judge noted that the verdict was incorrect, asked if the jurors wanted to be re-polled, and the jury indicated that they did, after which a proper unanimous verdict was returned. The record does not support a conclusion that the trial court’s actions were coercive, but were merely an attempt to clarify the jury’s signal that a proper verdict had been reached. Also, the record reflects that the judge inquired as to whether the jurors wanted to be re-polled, and all twelve agreed. This assignment of error is without merit.43

43 Lavigne, 22-282, 365 So.2d at 953-54. 21 Lavigne’s application to the Louisiana Supreme Court for supervisory writs

from this Court’s decision on his direct appeal was not considered, as discussed

above, and our decision on the Jury Polling Claim became final. Under La. C.Cr.P.

art. 930.4(A), “any claim for relief that was fully litigated in an appeal from the

proceedings leading to the judgment of conviction and sentence shall not be

considered,” unless required in the interest of justice. Lavigne’s Jury Polling Claim

was fully litigated in his direct appeal and he has not demonstrated any reasons why

the interest of justice would require us to reconsider this issue now and we have

found none. Accordingly, Lavigne’s Jury Polling Claim is procedurally barred

under La. C.Cr.P. art. 930.4(A) and lacks merit in any event.

ASSIGNMENT OF ERROR NO. 4: (Ineffective Assistance of Trial and Appellate Counsel)

In this assignment of error, Lavigne claims that his trial counsel was

ineffective because he: (1) failed to object to the prosecution’s references to the

mandatory life sentence for second degree murder during voir dire: (2) failed to

properly object when the district court granted the state’s cause challenges to two

potential jurors who expressed reluctance to convict on the second degree murder

charge because it carried a mandatory life sentence; (3) failed to object to improper

remarks made by the prosecution in its opening statement, closing argument and

rebuttal argument; (4) failed to object to Detective Engler’s false testimony and the

prosecution’s failure to correct it; and (5) suggested to the jury in voir dire that a

life sentence may be appropriate for second degree murder. Lavigne claims that his

appellate counsel was ineffective because she did not adequately present his claim

of insufficient evidence to this Court because she did not “point out that the

prosecutor admitted in a pretrial hearing that the victim committed an overt act.”44

44 Application, pp. 243-44. 22 The district court found no merit in Lavigne’s claims that his trial and

appellate counsel were ineffective. As to Lavigne’s claims of ineffective assistance

of trial court counsel, the district court found that “[c]ontrary to his assertions, the

record shows diligent advocacy and legal competence by trial counsel.”45 As to the

performance of appellate counsel, the district court found that “appellate counsel

made detailed sufficiency arguments in a careful and detailed manner…[t]he Court

of Appeal delved into the facts and law in denying relief on this claim.”46

The district court then concluded that:

After consideration of the pleadings and the record, the court finds that defense counsel at the trial and appellate stages performed to a high legal standard and that the petitioner did not suffer legal prejudice from that representation. The conviction was based on strong evidence of guilt, as explained by the Court of Appeal. The results of the jury’s verdict are reliable and fair. In addition, the petitioner has had careful appellate review, with no reversible errors found to have taken place.47

For the reasons stated below, we agree with the district court’s evaluation of

Lavigne’s ineffective assistance claims and find that these claims are an attempt by

Lavigne to “re-litigate [claims] that ha[ve] been previously disposed of, by couching

[them] as…post-conviction ineffective assistance of counsel claim[s],” which we

find unavailing.48

(a) Standard for Determining Claims of Ineffective Assistance of Counsel.

The Sixth Amendment to the United States Constitution and Article 1, § 13 of

the Louisiana Constitution guarantee a criminal defendant the right to effective

assistance of counsel. The United States Supreme Court held in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, that a defendant

asserting a claim of ineffective assistance of counsel must show: (1) that counsel’s

performance was so deficient that counsel was not functioning as counsel guaranteed

45 See Application, p. 324. 46 Id., pp. 323-24. 47 Id., p. 324. 48 See State v. Lee, 14-2374 (La. 9/18/15), 818 So.3d 631, 638. 23 by the Sixth Amendment; and (2) that the deficient performance prejudiced the

defense to the extent that the defendant was deprived of a fair trial, or a trial whose

result is reliable, and there is a reasonable probability that, but for counsel’s deficient

performance, the outcome of the proceeding would have been different.

The appellate courts of this State adhere to the Strickland standard in

evaluating claims of ineffective assistance of counsel.49 In evaluating a claim of

ineffective assistance of counsel, there is a strong presumption that counsel’s

performance is within the wide range of effective representation and that counsel

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.50 Effective counsel does not mean errorless

counsel, and the reviewing court should not evaluate counsel’s performance based

on hindsight but rather, should determine whether counsel was reasonably likely to

render effective assistance.51 In Strickland, the Supreme Court instructed that, “in

evaluating the performance of counsel, strategic choices made after thorough

investigation are virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.”52

Where an alleged error falls within the ambit of trial strategy, such alleged

error does not establish ineffective assistance of counsel.53 “The time and manner

of making objections is part of the trial strategy decision-making of the trial

attorney.”54 Further, “[w]hen the substantive issue that an attorney has not raised has

no merit, then the claim that the attorney was ineffective for failing to raise the issue

49 See State v. Hoffman, 98-3118 (La. 4/11/00), 768 So.2d 542, 575-76; State v. Casimer, 12-678 (La. App. 5 Cir. 3/13/13), 113 So.3d 1129, 1141; State v. Dominguez, 14-1 (La. App. 5 Cir. 8/28/14), 148 So.3d 648, 662-63. 50 See Strickland, 466 U.S. at 690; State v. Jordan, 35,643 (La. App. 2 Cir. 4/3/02), 813 So.2d 1123, 1133; State v. Wilson, 93-617 (La. App. 5 Cir. 1/25/94), 631 So.2d 1213, 1222. 51 Soler, supra, 93-1042, 636 So.2d at 1075. 52 466 U.S. at 690-91. 53 See State v. Stewart, 08-1265 (La. App. 5 Cir. 5/26/09), 15 So.3d 276, 283; State v. Singleton, 05-634 (La. App. 5 Cir. 2/14/06), 923 So.2d 803, 811. 54 State v. Moore, 15-644 (La. App. 5 Cir. 3/15/17), 215 So.3d 951, 968. 24 also has no merit.”55 General statements and conclusory allegations will not suffice

to prove a claim of ineffective assistance of counsel.56

In order to demonstrate that appellate counsel was ineffective, a defendant

must show that the appellate court would have granted relief had the issue been

raised on appeal.57 Thus, in order to evaluate a claim of ineffective assistance of

appellate counsel, a court must “counter-factually determine the probable outcome

on appeal had counsel raised the argument.”58 We have held that an appellate

attorney is not required to advance every argument, regardless of merit, urged by the

appellant.59 Instead, appellate counsel should winnow out weaker arguments on

appeal and focus, at most, on a few key issues.60

As stated above, the district court found that, not only had Lavigne not carried

his burden of proof on these claims, but that counsel had not been insufficient.

Against that backdrop, we turn to Lavigne’s specific assertions of ineffective

assistance of counsel.

(b) Claims of Ineffective Assistance of Trial Counsel Relating to the Mandatory Sentence References, Cause Challenges and the Jury Instruction as to the Mandatory Sentence.

We have already ruled that, even if not procedurally barred, Lavigne’s claims

relating to references by the prosecutor in voir dire, opening statements and closing

argument to the mandatory life sentence for second degree murder were permissible.

Accordingly, defense counsel was not ineffective for failing to object to these

references. Indeed, given that Lavigne was a young man at the time of trial, it is

plausible that trial counsel wanted jurors to be aware of the harsh mandatory

55 State v. Williams, 613 So.2d 252, 256-57; State v. Francois, 13-615 (La. App. 5 Cir. 1/13/14), 134 So.3d 41, 59. 56 State v. Fisher, 19-488 (La. App. 5 Cir. 6/24/20), 299 So.3d 1238, 1247. 57 State v. Wilt, 14-823 (La. App. 5 Cir. 4/29/15), 170 So.3d 317, 326-27. 58 United States v. Reinhart, 357 F.3d 521, 530 (5th Cir. 2004), citing United States v. Phillips, 210 F.3d 345, 350 (5th Cir. 2000). 59 State v. Castillo, 13-552 (La. App. 5 Cir. 10/29/14), 167 So.3d 624, 653, writs denied, 14-2567 (La. 9/18/15), 178 So.3d 145 and 14-1678 (La. 10/2/15), 178 So.3d 580. 60 Castillo, supra. 25 sentence when considering second degree murder and the lesser included offenses

that do not carry a mandatory life sentence. Defense counsel’s failure to object to

the prosecutor’s references to the mandatory sentence fall within the ambit of trial

strategy and does not establish ineffective assistance of counsel.

We have also already ruled that it was not error for the district court to sustain

the prosecution’s cause challenges to two jurors who expressed that they could not

consider a plea of guilty to second degree murder because of the mandatory life

sentence,61 and in any event, trial counsel did object to the allowance of these

challenges, although unsuccessfully. Trial counsel was not ineffective on that

ground.

Trial counsel was also not ineffective for failing to object to the district court’s

jury instruction relative to the mandatory sentence for a conviction of second degree

murder for the reasons already stated above. It was within the district court’s

discretion to advise the jury of the mandatory sentence and we have found no abuse

of that discretion.

(c) Claims of Ineffective Assistance of Trial Counsel for Failure to Object to Improper Statements/Arguments of the Prosecution Unrelated to the References to the Mandatory Sentence.

Lavigne claims that trial counsel was ineffective for failing to object to the

prosecutor’s characterization of the shooting of Connor as being “execution-style;”

the prosecution’s statements that: Connor “bled out in his apartment;” Connor knew

that Lavigne was armed after the initial confrontation between the two men; Connor

was not lying in wait; Connor never fired his gun; the fact that Connor’s fatal wounds

were to the front of his body prove second degree murder; Lavigne was not in

imminent danger when Connor got back to his own apartment; the credibility of

Brown and Tibbitt would have been called into question had they testified at trial;

61 Frey, 568 So.2d 577; La. C.Cr.P. art. 800(B). 26 Lavigne’s statements to police and Beasley’s testimony at trial that Connor pointed

his gun at Lavigne and Beasley was not credible; Connor never pointed his gun at

Lavigne and Beasley; and the prosecution’s comments in rebuttal on the effects of

heroin.

We have already held as to opening argument that “absent bad faith on the

part of the prosecutor or clear and substantial prejudice, the reference in the opening

statement to evidence later ruled inadmissible or not produced is not [reversible

error].”62 We have also further held that a prosecutor retains considerable latitude in

making closing arguments63 and is permitted to make statements during closing

arguments drawn from a range of reasonable conclusions from the facts in

evidence;64 and that, moreover, “[e]ven if the prosecutor exceeds this latitude, a

reviewing court will not review a conviction unless thoroughly convinced that the

argument influenced the jury and contributed to the verdict.”65

The statements and arguments of the prosecution of which Lavigne complains

were well within the bounds of acceptable commentary as to what the evidence

would show and what the evidence had shown. Trial counsel’s decisions as to

whether and when to raise objections to testimony, evidence and arguments fall

within the ambit of trial strategy and do not support a claim for ineffective assistance

of counsel.

(d) Claim of Ineffective Assistance of Trial Counsel for Failing to Object to Detective Engler’s False Testimony and the Prosecution’s Failure to Correct this False Testimony in Violation of Napue.

62 State v. Horne, 554 So.2d 820, 824 (La. App. 5 Cir. 1989), citing State v. Bell, 279 So.2d 164 (La. 1973); State v. Green, 343 So.2d 149 (1977). 63 State v. Casey, 1999-0023, p. 17 (La. 1/26/00), 775 So.2d 1022, 1036; State v. Byrne, 483 So.2d 564 (La. 1986), cert. denied, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168 (1986); State v. Morris, 404 So.2d 1186 (La. 1981); State v. Soler, 93-1042 (La. App. 5 Cir. 4/4/94), 636 So.2d 1069; State v. Cole, 15-358, p. 18 (La. App. 5 Cir. 12/23/15), 182 So.3d 1192, 1204. 64 Cole,15-538, p. 18, 182 So.3d at 1204, citing, State v. Breza, 394 So.2d 254, 256 (La. 1981). 65 Id., citing Frank, 99-553, 957 So.2d at 741; State v. Martin, 93-0285 (La. 10/17/94), 645 So.2d 190, 200; see also, Byrne, 483 So.2d at 1357; Soler, 636 So.2d at 1082 (“Before reversing a jury verdict because of a prosecutor’s closing remarks…the appellate court must be convinced the objectionable statements were so inflammatory or prejudicial that they influenced or contributed to the guilty verdict. (citations omitted)). 27 We have discussed the issue raised by Lavigne relative to allegedly false

testimony presented by Detective Engler relative to the lack of search warrants being

served for areas under the control of Brown and Tibbitt and the prosecutor’s failure

to correct the allegedly false testimony and have found that Lavigne has not met the

threshold of demonstrating that Detective Engler’s testimony was false. Detective

Engler merely testified as to his investigation and why he did or did not take certain

actions in the course of his investigation. Because there is no evidence in the record

to suggest that Detective Engler provided false testimony, Lavigne’s counsel was

not ineffective for failing to object to it. Likewise, there was no Napue violation to

which Lavigne’s trial counsel should have objected. This claim does not support

Lavigne’s claim of ineffective assistance of counsel.

(e) Claim of Ineffective Assistance of Trial Counsel in Stating in Voir Dire that a Life Sentence may be Appropriate for Second Degree Murder.

During voir dire a potential juror, Mr. Leon (as to whom the prosecution

subsequently exercised a peremptory challenge), had indicated on questioning by

the prosecutor that he would not be able to consider a verdict of guilty to second

degree murder in light of the fact that a guilty verdict would subject Lavigne to a

mandatory life sentence without benefits of probation, parole or suspension of

sentence. In an attempt to rehabilitate Mr. Leon as a juror, Lavigne’s trial counsel

suggested to Mr. Leon that a life sentence might be appropriate for the “worst of the

worst.”66 In context, it is clear that trial counsel was not trying to imply that Lavigne

was one of the “worst of the worst,” as counsel was also suggesting to potential

jurors that the shooting of Conner was justified or was committed in the heat of

passion. Trial counsel was merely trying to rehabilitate Mr. Leon as a juror, albeit

inartfully. An attorney’s actions during voir dire fall into the ambit of trial strategy

and do not support a claim of ineffective assistance of counsel.

66 Supp. R. p. 281-82. 28 (f) Claim that Appellate Counsel was Ineffective for Failing to Adequately Present to this Court Lavigne’s Claim of Insufficiency of Evidence.

Lavigne claims that his appellate counsel was ineffective because she did not

adequately present his claim of insufficiency of the evidence to this Court on his

direct appeal. In particular, Lavigne argues that appellate counsel’s performance

was deficient because she did not “point out that the prosecutor admitted in a pretrial

hearing that Connor committed an overt act.”67 In fact, appellate counsel presented

a lengthy and detailed argument on the issue of whether the evidence was sufficient

to sustain Lavigne’s conviction. Included in her argument on that issue was that, on

multiple occasions on the day of the shooting, Connor was the aggressor who

provoked confrontations with Lavigne and/or Beasley, that Connor was armed and

that Connor pointed his gun at Lavigne and Beasley prior to Lavigne opening fire.

Appellate counsel argued that Connor’s provocation and aggression supported

Lavigne’s claim for self-defense and/or the lesser included offense of manslaughter.

Thus, Connor’s overt acts were squarely before this Court on Lavigne’s direct

appeal. Nevertheless, we found the evidence sufficient to exclude Lavigne’s

assertion of self-defense and, indeed, to sustain Lavigne’s conviction for second

degree murder, stating:

It was undisputed at trial that defendant and Mr. Connor both had guns on the day of the shooting. In his statement defendant admitted that after having a verbal altercation with Mr. Connor, he armed himself with a weapon before going to walk his dog at the park. He claimed that [Mr. Conner] came from across the street, pointed a gun at him, and he started shooting. He also alleged that defendant shot at him eight times and that he believed the victim hit something. Despite defendant’s assertions, there was no testimony or evidence presented that Mr. Connor fired a weapon that day…[T]he gun visible in Mr. Connor’s hand in the surveillance video appeared to be consistent with a revolver. The testimony established that none of the ballistic evidence recovered from the crime scene in this case was consistent with being fired from a revolver. However…numerous fired cartridge casings found at the crime scene were fired from defendant’s Glock handgun.

67 Application, p. 73. It appears that the prosecutor’s reference to Connor having committed an overt act was made during a pretrial hearing on Lavigne’s motion to introduce evidence of the Connor’s reputation in the neighborhood as a quarrelsome, belligerent, sometimes violent, heroin addict. An excerpt of that hearing transcript appears at p. 143 of Lavigne’s Application. 29 [Investigators] were unable to determine that the copper jacket and copper projectile [found at the scene] were fired from [the Glock handgun], but indicated that they were consistent with this type of gun.

Even if the jurors believed that at some point during the incident Mr. Connor may have provoked defendant, they apparently concluded that any such provocation by him was insufficient to deprive an average person of self-control, but rather that defendant acted with deliberation and reflection, thus warranting a verdict of second degree murder rather than manslaughter…By returning a guilty verdict, it appears the jury did not find that defendant established the mitigatory factors of ‘sudden passion’ and ‘heat of blood’ by a preponderance of the evidence.

Considering the circumstances of this case, we find that the arguments raised by defendant relating to the sufficiency of the evidence are without merit. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant did not act in self-defense and that defendant failed to carry the burden necessary to reduce the conviction to manslaughter.68

Lavigne requested and was granted permission to file a pro se supplemental

brief to this Court on his direct appeal, but failed to do so. On the showing made,

Lavigne has failed to satisfy the first prong of the Strickland test in that he has not

demonstrated that the performance of his appellate counsel was deficient, much less

so deficient that appellate counsel was not functioning as counsel within the meaning

of the Sixth Amendment, and has failed to meet his burden of proof. This claim also

fails.

ASSIGNMENT OF ERROR NO. 5 (Cumulative Errors)

Lavigne asserts that cumulative errors denied him a fair trial. The exclusive

grounds for an application for post-conviction relief are set forth in La. C.Cr.P. art.

930.3 and do not include cumulative error. The district court denied this claim,

stating that “[t]he court has addressed petitioner’s claims individually, finding no

merit. The cumulating of these claims does not provide a basis for relief as each

claim still has no merit.”69 Cumulative error is not recognized as a valid basis for

68 Lavigne, 22-282, 365 So.3d at 947-48. (Footnotes omitted). 69 Application, p. 324. 30 overturning a conviction under Louisiana jurisprudence, as the combined effect of

assignments of error, none of which warrant reversal standing alone, do not deprive

a defendant of his right to a constitutionally fair trial.70 This claim is without merit.

CONCLUSION

Having found no error in the trial court’s rulings on the issues presented in

Lavigne’s APLC, the instant Application for Supervisory Writs is DENIED.

Gretna, Louisiana, this 16th day of January, 2025.

FHW SJW JJM

70 State v. Draughn, 05-1825 (La 1/17/07), 950 So.2d 583, 629, and cases cited therein, cert. denied, 522 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Rochon, 98-717 (La. .App. 5 Cir. 3/10/99), 733 So.2d 624, 633; State v. Ayo, 08-468 (La. App. 5 Cir. 3/24/09), 7 So.3d 85, 104, writ denied sub nom, State ex rel. Ayo v. State, 09-1026 (La. 3/5/10), 28 So.3d 1006. 31 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 01/16/2025 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-KH-403 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable June B. Darensburg (DISTRICT JUDGE) Thomas J. Butler (Respondent)

MAILED Lanard Lavigne #765263 (Relator) Louisiana State Penitentiary Angola, LA 70712