Judgment rendered May 21, 2025. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 56,273-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
CARLOS DEMOND ARY Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 385,451
Honorable Donald E. Hathaway, Jr., Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Chad Ikerd
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
JASON W. WALTMAN ERIC M. WHITEHEAD Assistant District Attorneys
Before STONE, MARCOTTE, and ELLENDER, JJ. MARCOTTE, J.
This criminal appeal arises from the First Judicial District Court,
Parish of Caddo, the Honorable Donald Hathaway, Jr., presiding.
Defendant, Carlos Demond Ary (“Ary”), was convicted of second-degree
murder and sentenced to life at hard labor without benefits. He now appeals
his conviction and sentence as well as the trial court’s ruling that he was
competent to stand trial. For the following reasons, we affirm.
FACTS
On November 18, 2021, Ary was charged by bill of indictment with
the second-degree murder of Wendy Akins (“Ms. Akins”), in violation of
La. R.S. 14:30.1. The offense occurred on September 25, 2021. Ary pled
not guilty.
Ary filed a motion to appoint a sanity commission on November 27,
2023. The motion requested that the commission “examine and report upon
the present mental condition of the defendant in accordance with provisions
of La. C. Cr. P. Art. 644 and that the issue of the defendant’s mental
capacity to proceed be determined.”
On the same day the motion was filed, the trial court signed an order
granting the request and appointing Drs. Joshua D. Sanderson and Jennifer
Russell to the commission. The appointment letter asked the doctors to
assess Ary’s “present mental condition,” and “mental condition at the time
of the alleged offense.”
Dr. Russell, a psychologist, drafted a report finding that Ary could
understand the nature of the proceedings, assist in the defense, and
distinguish between right and wrong at the time of the offense. Dr.
Sanderson, a forensic psychiatrist, also drafted a report with similar findings. The trial court scheduled a hearing on the sanity commission’s
findings on March 4, 2024. At the competency hearing, Drs. Sanderson and
Russell submitted their reports opining that Ary was competent to stand trial.
The trial court stated, verbatim: “Okay. So Dr. Russell and – or
Psychologist Dr. Russell and Psychiatrist Dr. Sanderson, both, have said that
he is competent to assist in his case. And the prosecution will commence
again at this time.” Ary’s counsel made no objection to the trial court’s
ruling.
On April 22-24, 2024, a jury trial was held where the following
evidence was adduced. Devin Dodson (“Dodson”) testified that on
September 25, 2021, he was living with his mother, Ms. Akins, and Ary on
the third floor of the Knights Inn on Monkhouse Drive in Shreveport,
Louisiana. Dodson said that Ary and his mother were not romantically
involved, but rather that Ary was subletting a portion of the motel room
from her. Dodson also stated that Ary only slept in the room, and to his
recollection, never showered there, used the closet, or watched television.
Dodson testified that earlier that day, he was sitting outside of the
motel room while Ary was asleep inside. He then observed a man known as
“Jimmy” enter the room and leave about a minute later. Dodson did not see
that “Jimmy” was carrying anything. A few hours later, Ary awoke and
asked Dodson if he had seen anyone enter the room. He informed Ary that
“Jimmy” had gone in the room earlier. Dodson then helped Ary search the
hotel complex for “Jimmy,” to no avail. Approximately 30 minutes to an
hour later, Dodson said he heard Ary and his mother arguing outside on the
walkway. Apparently Ary believed that Ms. Akins had something to do
with his missing firearm. After hearing them argue for less than five 2 minutes, Dodson went outside and saw Ary hit Ms. Akins in the head.
Dodson testified that he saw his mother hit the ground and start bleeding.
He said he then chased after Ary but was unable to find him. Dodson
identified Ary in the courtroom.
Victor Dolmo (“Dolmo”), a homeless man in the area, was on the
third floor of the Knights Inn on Monkhouse on September 25, 2021, and
witnessed the attack on Ms. Akins. He testified that he saw a black male and
a white female arguing. He recognized the black male as Ary because he
had seen him in the area multiple times.
Dolmo stated that he had seen the woman several times at the motel,
often accompanied by her son. Before the argument became heated, Dolmo
heard the woman tell her son to go inside the motel room. He testified that
he heard the female say something about “you’re getting me fired.” Dolmo
then observed Ary walk downstairs and then back up with a metal pipe.
Once Ary returned to the third story, Dolmo said that Ms. Akins “started
walking away” from Ary, and that is when Ary raised the metal pipe and hit
her in the head twice from behind. Dolmo saw the female fall to the ground
after hitting an air conditioner on the way down. Ary then threw the pipe
down and fled the scene. Dolmo testified that the attack occurred
approximately five to seven minutes from the start of the argument and
when Dodson was sent inside by his mother. Dolmo said he attempted to
shield Dodson from seeing the gruesome scene of his mother lying in a pool
of blood.
Shreveport Police Department (“SPD”) officer Eric Coker (“Off.
Coker”) happened to be in the parking lot of the Knights Inn at the time of
the incident because he had just arrested another individual in an unrelated 3 case. Off. Coker testified that an individual approached him in the parking
lot and said that Ms. Akins was found in a puddle of blood from a head
injury. When Off. Coker arrived at the stairwell, he observed a stream of
blood coming down from multiple floors. Ms. Akins was located on the
third floor, lying on her right side in a puddle of blood. Off. Coker said that
the blood had pooled and coagulated around her mouth and face, and it
looked like she was struggling to breathe. Emergency medical services
(“EMS”) arrived 10 to 15 minutes later. Once Ms. Akins was removed by
EMS, Off. Coker said he began taking pictures of the scene. He was then
informed a metal pipe was believed to be involved in the attack. Off. Coker
located the pipe on the first floor and took pictures. The pictures taken by
Off. Coker of the crime scene and the weapon were admitted into evidence
and published to the jury.
On October 1, 2021, Officer Jonathan Varnell (“Off. Varnell”), a
crime scene investigator, responded to Ochsner hospital after being advised
that Ms. Akins had succumbed to her injuries. Off. Varnell photographed
and took measurements of the injuries to Ms. Akins.
Ronald Debello (“Off. Debello”) was a patrol officer for SPD at the
time of the incident. Off. Debello came on duty the day after the incident,
September 26, 2021, and was informed of the previous night’s events by
Off. Coker. Off. Coker provided Off. Debello with a picture of Ary based
on the arrest warrant obtained for attempted second-degree murder. Off.
Debello then started making phone calls and contacting businesses on
Monkhouse inquiring about Ary. On September 28, 2021, Off. Debello
received a call from dispatch advising that Ary was seen in a red Dodge
4 traveling to an Exxon gas station on Monkhouse, within eyeshot of the scene
of the crime.
After calling for additional units, Off. Debello arrived at the Exxon
station and observed Ary inside the store at the cashier’s counter. Off.
Debello proceeded inside and asked him for his name. Ary confirmed his
identity and surrendered. Off. Debello then placed him in handcuffs.
Off. Debello read Ary his Miranda rights and took a statement from
him. Off. Debello testified that Ary told him that he knew he was in trouble
and “was going to jail for a long time for hitting that woman.” Ary told Off.
Debello that he had an altercation with Ms. Akins because she helped steal a
gun from him. Ary also confirmed that during the argument, he went down
to his car, retrieved a metal pipe, then went back upstairs and struck her with
it multiple times.
Once at the police station, Off. Debello took Ary to meet with
Detective Herring (“Det. Herring”). Det. Herring produced a written
Miranda form that was read aloud to and signed by Ary. Det. Herring then
conducted a recorded video interview with Ary, which was played for the
jury. Off. Debello characterized Ary as forthcoming and said that his belief
that Ms. Akins played a part in his stolen firearm was sincere. Off. Debello
identified Ary in court as the suspect from the photo and the person he
arrested based on the warrant.
Tyler Sheets, a specialist in forensic investigation of electronics for
the Caddo Parish District Attorney’s Office, testified that he attempted to
gain access to surveillance video of the incident supplied by the motel, but
was unable to because he did not have the password to access the system.
5 DNA forensic expert Michelle Jackson (“Ms. Jackson”) testified that a
sample of blood was taken from the metal pipe and analyzed by her office at
the North Louisiana Crime Lab. Ms. Jackson stated that the DNA sample
taken from the pipe was consistent with the reference sample taken from Ms.
Akins. She said that the probability of error was minuscule.
Expert forensic pathologist Dr. Long Jin (“Dr. Jin”) testified that he
performed the autopsy of Ms. Akins. Dr. Jin observed “very deep”
lacerations to the back of Ms. Akins’s head. Based on the location of the
injuries, Dr. Jin opined that the lacerations were likely caused by “at least
three” strikes to the head. An examination of the skull revealed fractures to
multiple sides directly caused by the strikes to the head. Dr. Jin also
observed multifocal subdural and subarachnoid hemorrhaging, bleeding
across multiple lobes and “depth” spaces of the brain membrane. He
classified the death as a homicide and opined that the cause of death was
blunt force injury to the head.
The state rested. Following a colloquy, Ary opted not to testify in his
own defense, and the defense rested.
A unanimous jury found Ary guilty of second-degree murder. The
jury was polled, and the polling slips were placed into the record under seal.
On April 30, 2024, Ary filed a motion for post-verdict judgment of acquittal
and a motion for a new trial. The trial court denied both. On May 9, 2024,
Ary was sentenced to life imprisonment without benefit of probation, parole,
or suspension of sentence. The trial court informed him of his appellate and
post-conviction relief time constraints. Ary now appeals.
6 DISCUSSION
Insufficient Evidence
Because Ary’s argument claims insufficient evidence in addition to
trial court error regarding the competency hearing, we will address
sufficiency of the evidence first. See State v. Hearold, 603 So. 2d 731, 734
(La. 1992) (“When issues are raised on appeal both as to the sufficiency of
the evidence and as to one or more trial errors, the reviewing court should
first determine the sufficiency of the evidence.”)
Ary avers that the trial court erred in denying his post-verdict
judgment of acquittal because the evidence at trial proved that Ary was
guilty of manslaughter rather than second-degree murder. While there was
sufficient evidence to show that he struck and killed Akins, Ary claims that
the facts showed he acted “in sudden passion or heat of blood immediately
caused by provocation sufficient to deprive an average person of his self-
control and cool reflection.”
Ary claims the evidence showed that he was highly upset about his
physical safety after his gun was stolen from his room while he was
sleeping. Ary argues that because he believed Ms. Akins allowed someone
into their room to steal the gun, which was crucial to his personal safety, he
had a legitimate reason to be upset. Ary asserts that his gun had been
“insurance for self-autonomy in the dangerous world of the Monkhouse area
of Shreveport,” and when it went missing, he became “vulnerable and
exposed.”
Ary also argues that because he and Ms. Akins continued to argue
after he returned to the third floor with the metal pipe, the pipe was retrieved
for intimidation purposes and not to bludgeon her. Ary notes that it was 7 only after Ms. Akins turned to walk away from him, essentially ending the
argument and his options for finding his gun, that he “snapped.” Ary asserts
that while he may have intended to intimidate Ms. Akins, he only formed the
intent to harm her when she turned to walk away, and such intent was
formed “during the heat of blood and desperation.” Ary requests that this
court reverse his conviction for second-degree murder, enter a new
conviction for manslaughter, and remand for resentencing.
The state contends that it proved the elements of second-degree
murder beyond a reasonable doubt. The state notes the “overwhelming
evidence” of Ary’s guilt, including the fact that: (1) he admitted to walking
up behind Ms. Akins and striking her over the head multiple times with a
metal pipe; (2) the pipe strikes fractured her skull in multiple places and
caused multifocal subdural and subarachnoid hemorrhaging; and (3) Ms.
Akins died as a direct result of the blunt force injury to her head.
The state concedes that evidence was introduced at trial that Ary was
upset that his handgun was missing and that he believed Ms. Akins was
somehow involved in its disappearance. However, the state notes that no
evidence, testimonial or otherwise, was presented linking Ms. Akins to the
firearm’s disappearance. The state also notes that the jury was instructed
that manslaughter was an available alternative to acquittal but instead
returned a unanimous verdict of guilty of second-degree murder. The state
contends that Ary’s request for this court to reverse the fact finder’s
determination and enter a manslaughter verdict would require this court to
reweigh the evidence and credibility assessments already made by the trier
of fact, which is prohibited on a sufficiency of the evidence review.
8 The state also argues that Ary failed to meet his burden of proving the
mitigating elements of manslaughter. The state notes that the essential
question is whether an argument regarding a missing firearm is sufficient
provocation to deprive the average person of self-control and cool reflection.
Since Louisiana appellate courts have long held that “an argument alone
does not constitute sufficient provocation to reduce murder to
manslaughter,” the state argues that Ary has not met his burden. The state
further argues that Ary had sufficient “time for cooling” when he walked
down multiple flights of stairs, retrieved a pipe, then walked back up
multiple flights of stairs. The state requests that this court affirm Ary’s
conviction and sentence.
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Tate, 01-1658
(La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124 S. Ct. 1604,
158 L. Ed. 2d 248 (2004). This standard, now legislatively embodied in La.
C. Cr. P. art. 821, does not provide the appellate court with a vehicle to
substitute its own appreciation of the evidence for that of the fact finder.
State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517; State v. Dotie,
43,819 (La. App. 2 Cir. 1/14/09), 1 So. 3d 833, writ denied, 09-0310 (La.
11/6/09), 21 So. 3d 297.
The trier of fact makes credibility determinations and may accept or
reject the testimony of any witness. Id. The appellate court does not assess
credibility or reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 9 661 So. 2d 442; State v. Morehead, 55,825 (La. App. 2 Cir. 10/23/24), 400
So. 3d 302, writ denied, 24-01434 (La. 2/19/25), 400 So. 3d 932. A
reviewing court accords great deference to the trier of fact’s decision to
accept or reject the testimony of a witness in whole or in part. State v.
Jackson, 53,497 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1156.
Second-degree murder is the killing of a human being when the
offender has a specific intent to kill or to inflict great bodily harm. La. R.S.
14:30.1(A)(1). Specific criminal intent is that state of mind which exists
when the circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act. La. R.S.
14:10(1). Specific intent may be inferred from the circumstances
surrounding the offense and the conduct of the defendant. State v. Walker,
53,975 (La. App. 2 Cir. 6/30/21), 321 So. 3d 1154, writ denied, 21-01334
(La. 11/23/21), 328 So. 3d 83. Specific intent to kill can be inferred by the
intentional use of a deadly weapon. State v. Fields, 42,761 (La. App. 2 Cir.
1/9/08), 973 So. 2d 973, writ denied, 08-0469 (La. 9/26/08), 992 So. 2d 983.
A pipe heavy enough to fracture the victim’s skull is a deadly weapon. State
v. Eaton, 524 So. 2d 1194 (La. 1988). The determination of whether the
requisite intent is present in a criminal case is for the trier of fact, and a
review of this determination is guided by the standards of Jackson v.
Virginia. Id.
Regarding Ary’s claim that he should have been convicted of the
lesser offense of manslaughter, La. R.S. 14:31(A) provides, in pertinent part,
that:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or 10 heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood had actually cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
Accordingly, for murder to be reduced to manslaughter, the following
must be proved: (1) the homicide was committed “in sudden passion or heat
of blood”; (2) that sudden passion or heat of blood was immediately caused
by provocation sufficient to deprive an average person of his self-control and
cool reflection; (3) the defendant’s blood did not cool between the
provocation and the killing; and (4) an average person’s blood would not
have cooled between the provocation and the killing. State v. Kennell,
54,577 (La. App. 2 Cir. 6/29/22), 342 So. 3d 437; State v. Efferson, 52,306
(La. App. 2 Cir. 11/14/18), 259 So. 3d 1153, writ denied, 18-2056 (La.
4/15/19), 267 So. 3d 1131.
A defendant who claims provocation, as a means of reducing murder
to manslaughter, bears the burden of proving these elements by a
preponderance of the evidence; additionally, provocation and the time for
cooling are questions for the jury to determine according to the standard of
the average or ordinary person. State v. Leger, 05-0011 (La. 7/10/06), 936
So. 2d 108, cert. denied, 549 U.S. 1221, 127 S. Ct. 1279, 167 L. Ed. 2d 100
(2007). The question for the appellate court on review is whether a rational
trier of fact, viewing the evidence in the light most favorable to the
prosecution, could have found that the mitigatory factors were not
established by a preponderance of the evidence. State v. Burse, 19-381 (La.
11 App. 5 Cir. 2/12/20), 289 So. 3d 690, writ denied, 20-650 (La. 11/24/20),
305 So. 3d 104.
In the present case, the evidence presented at trial established that a
man referred to as “Jimmy” walked in the hotel room for “about a minute”
and walked out. When Ary woke up a few hours later and determined that
his firearm was missing, he enlisted Dodson to help him locate “Jimmy.”
Approximately half an hour to an hour later, Ary confronted Ms. Akins. For
less than five minutes, Ary argued with Ms. Akins and accused her of having
something to do with his missing firearm. He then walked down from the
third story of the hotel, retrieved a metal pipe from his car, walked back up
to the third story, and struck Ms. Akins over the head multiple times from
behind. We find that these facts are more than sufficient to show that Ary
had specific intent to kill or inflict great bodily harm on Ms. Akins.
As noted above, provocation and the time for cooling are questions for
the jury to determine according to the standard of the average or ordinary
person. Hearing the testimony and observing the evidence adduced at trial,
the jury was able to decide whether: (1) the argument constituted sufficient
provocation, and (2) Ary walking down multiple flights of stairs, retrieving a
pipe from his car in the parking lot, and walking back up multiple flights of
stairs was sufficient “time for cooling.”
In our view, an argument concerning possible missing property would
not deprive the average, ordinary person of self-control and cool reflection.
In other words, this was not a homicide committed in “sudden passion or
heat of blood.” The decision to walk downstairs, retrieve a deadly weapon,
walk back up, and deliver lethal strikes to the back of Ms. Akins’s head
12 while she walked away was a cool, intentional act. Manslaughter does not
fit with these facts.
We find that Ary failed to meet his burden of proving the mitigating
elements of manslaughter and that the state sufficiently proved Ary
committed second-degree murder by specifically intending to kill or inflict
great bodily harm upon Ms. Akins. Accordingly, the trial court did not err in
denying Ary’s post-verdict judgment of acquittal. This assignment of error
is without merit.
Competency Determination
Ary also argues that the trial court erred in failing to issue a ruling
finding that he was competent to stand trial. Rather than ruling on his
competency, Ary asserts the trial court “merely observed” that the sanity
commission doctors found he was competent to assist in his case. Ary’s
position is that the trial court should have made an independent legal finding
of competency rather than ceding that authority to the commission doctors.
Ary claims that because the trial court never made a legal finding of
competency and abdicated its responsibility to the commission doctors, all
proceedings should have been halted. In support, Ary points to La. C. Cr. P.
art. 642, which provides that “when the question of the defendant’s mental
incapacity to proceed is raised, there shall be no further steps in the criminal
prosecution … until the defendant is found to have the mental capacity to
proceed.”
The state argues that since no contemporaneous objection was made at
trial, Ary failed to preserve this issue for appeal. However, even if a timely
objection had been made, the state argues that the trial court’s determination
of competency in this case was identical to the determination recently upheld 13 by this court in State v. Harper, 55,363 (La. App. 2 Cir. 1/10/24), 377 So. 3d
1283, another case where the trial court relied on the reports of the sanity
commission doctors.
This court has held that a defendant may waive a full hearing and
submit competency based on the uncontroverted reports of the appointed
doctors. State v. Darnell, 43,048 (La. App. 2 Cir. 8/13/08), 988 So. 2d 870,
876; State v. Wry, 591 So. 2d 774 (La. App. 2 Cir. 1991). However, the
motion for a sanity commission cannot be withdrawn because that would
remove the ultimate decision regarding competency from the trial court.
Darnell, supra. Indeed, it would be contradictory to simultaneously argue
that a defendant may be mentally incompetent to proceed and that he may
also knowingly and intelligently waive his right to have the trial court
determine his competency to stand trial. Id.
Here, the trial court made a judicial determination of competency.
Defense counsel was present during the hearing and Ary was present via
video. Defense counsel had the opportunity to present evidence of Ary’s
incompetence but chose not to. The trial court relied upon the sanity
commission reports of Dr. Russell and Dr. Sanderson, finding that Ary was
competent to assist in his case. Upon this determination, the trial court
resumed criminal prosecution in accordance with La. C. Cr. P. art. 648. No
objection was made at the time. As was the case in Harper, supra, Ary
cannot complain on appeal about the trial court’s determination that Ary was
competent to stand trial based on the sanity commission reports after defense
counsel was aware that the trial court was prepared to do so. This
assignment of error lacks merit.
14 Ineffective Assistance of Counsel
In the alternative, Ary argues that if this issue is now barred on direct
appeal due to his counsel’s failure to contemporaneously object, then his
counsel was ineffective and his due process rights were fundamentally
violated.
The state asserts that Ary failed to demonstrate the failure to object
amounted to constitutionally defective assistance of counsel under the two-
prong test developed in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The state notes that Ary failed to show that
any purported defective performance deprived him of a fair trial.
Accordingly, the state’s position is that Ary has not offered any proof that
the outcome of the trial would have been different based on his counsel’s
purported errors.
We find unpersuasive Ary’s argument regarding ineffective assistance
of counsel. A claim of ineffective assistance is generally not urged on
appeal. It is usually raised in the trial court through the means of an
application for post-conviction relief. However, when the record is
sufficient, an appellate court may resolve this issue on direct appeal in the
interest of judicial economy. State v. Cooley, 51,895 (La. App. 2 Cir.
5/23/18), 247 So. 3d 1159, writ denied, 18-1160 (La. 3/6/19), 266 So. 3d
899.
The right of a defendant in a criminal proceeding to the effective
assistance of counsel is mandated by U.S. Constitutional Amendment VI.
Under the standard set out in Strickland v. Washington, supra, and adopted
by the Louisiana Supreme Court in State v. Washington, 491 So. 2d 1337
(La. 1986), a conviction must be reversed if the petitioner proves (1) that 15 counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms, and (2) counsel’s inadequate
performance prejudiced the defendant to the extent that the trial was
rendered unfair and the verdict suspect. State v. Cooley, supra.
A deficient performance is established by showing that the attorney’s
actions fell below the standard of reasonableness and competency required
for attorneys in criminal cases and is evaluated from the attorney’s
perspective at the time of the occurrence. Strickland v. Washington, supra.
A reviewing court must give great deference to the trial counsel’s judgment,
tactical decisions, and trial strategy, strongly presuming he has exercised
reasonable professional judgment. State v. Nixon, 51,319 (La. App. 2 Cir.
5/19/17), 222 So. 3d 123, writ denied, 17-0966 (La. 4/27/18), 239 So. 3d
836. A defendant making a claim of ineffective assistance of counsel must
identify certain acts or omissions by counsel which led to the claim; general
statements and conclusory charges will not suffice. Strickland v.
Washington, supra; State v. Nixon, supra.
A defendant must show that this deficient performance prejudiced his
defense. This element requires showing that the errors were so serious that
the defendant was deprived of a fair trial. Strickland v. Washington, supra.
A defendant must prove actual prejudice before relief will be granted. State
v. Pratt, 26,862 (La. App. 2 Cir. 4/5/95), 653 So. 2d 174, writ denied, 95-
1398 (La. 11/3/95), 662 So. 2d 9. It is not sufficient for the defendant to
show that the error had some conceivable effect on the outcome of the
proceeding. Rather, he must show that but for counsel’s unprofessional
errors, there is a reasonable probability the outcome of the trial would have
been different. Id. 16 The record in this case is sufficient for this court to resolve the issue
of ineffective assistance of counsel on direct appeal. Ary fails to establish
how his counsel’s alleged deficient performance prejudiced him. Moreover,
his conclusory statement that his “due process rights were fundamentally
prejudiced” does not suffice as proof of ineffective assistance of counsel.
Indeed, Ary is not able to identify any specific acts or omissions which led
to his claim. Accordingly, Ary cannot claim that but for his counsel’s
purported errors, there is a reasonable probability the outcome of the trial
would have been different. This argument lacks merit because it fails to
meet the requirements set forth in Strickland v. Washington, supra.
CONCLUSION
For the reasons expressed, Ary’s conviction and sentence are
affirmed.