STATE OF LOUISIANA * NO. 2025-KA-0191
VERSUS * COURT OF APPEAL
CHARLES PENN * FOURTH CIRCUIT
* STATE OF LOUISIANA
*******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 555-791, SECTION “E” Judge Rhonda Goode-Douglas ****** Judge Karen K. Herman ****** (Court composed of Judge Joy Cossich Lobrano, Judge Rachael D. Johnson, Judge Karen K. Herman)
Christopher A. Aberle LOUISIANA APPELLATE PROJECT P.O. Box 8583 Mandeville, LA 70470
COUNSEL FOR DEFENDANT / APPELLANT
Jason R. Williams DISTRICT ATTORNEY Brad Scott CHIEF OF APPEALS Peter J. Vesich ASSISTANT DISTRICT ATTORNEY 619 S. White St. New Orleans, LA 70119
COUNSEL FOR STATE OF LOUISIANA / APPELLEE
AFFIRMED AND REMANDED WITH INSTRUCTIONS FEBRUARY 10, 2026 KKH JCL RDJ Defendant, Charles Penn (“Defendant”), appeals his conviction and sentence
for second degree murder. For the following reasons, we affirm Defendant’s
conviction and sentence. We further remand the matter for the purpose of
correcting the minute entry of November 8, 2024 and the commitment order, if
needed, to conform with the sentencing transcript and accurately reflect the
sentence received.
PROCEDURAL HISTORY
On October 13, 2022, Defendant and Travis C. Scott (“Scott”) were indicted
with one count of second-degree murder of Derrell Brooks (“Brooks”), in violation
of La. R.S. 14:30.1; one count of obstruction of justice in a homicide investigation,
in violation of La. R.S. 14:130.1; and one count of possession of a firearm by a
convicted felon, in violation of La. R.S. 14:95.1.1
On December 1, 2022, the Defendant and Scott appeared for arraignment
and entered pleas of not guilty on all charges. The same date, Defendant filed
several pre-trial motions, including a motion to suppress.
1 The record shows that Defendant and Scott were jointly charged for second degree murder and
obstruction of justice. They were separately charged with possession of a firearm.
1 On June 13, 2023, Scott entered into a plea agreement with the State,
wherein Scott withdrew his prior pleas and pled guilty to obstruction of justice and
felony possession of a firearm in exchange for a sentence on each count of twenty
years, with fifteen years suspended, and three years active probation, to run
concurrently. Also, as part of the plea agreement, the State entered a nolle prosequi
on second degree murder charge and agreed not to file a multiple offender bill
against Scott.
On September 29, 2023, the trial court denied Defendant’s motion to
suppress. Defendant sought writs, which was denied by this Court. See State v.
Penn, unpub., 2023-0750 (La. App. 4 Cir. 12/18/23).
A jury trial commenced on September 4, 2024 and continued through
September 9, 2024.2 At the conclusion of trial, the jury found Defendant guilty as
charged on all counts.
On November 8, 2024, Defendant filed a motion for a new trial and motion
for post-verdict judgment of acquittal. The trial court denied the motions the same
date. Thereafter, the trial court sentenced Defendant to life at hard labor for second
degree murder; forty years at hard labor for obstruction of justice in a homicide
investigation; and twenty years at hard labor for felony possession of a firearm. All
the sentences were imposed without the benefit of parole, probation, or suspension
of sentence.3
2 Prior to proceeding to trial, Defendant filed a motion to quash jury venire and motion for new
trial based on an alleged late disclosure by the State. Both motions were denied by the trial court.
3 As noted later in the errors patent section, there is a discrepancy in the record regarding the
sentences imposed.
2 Defendant filed a motion to reconsider, which was denied by the trial court.
Defendant then filed a motion for appeal and motion to withdraw counsel. The trial
court granted the motions. This appeal followed.
FACTS
Defendant’s conviction stems from the murder of Brooks on June 8, 2022.
The record shows that Brooks was contacted by Scott to purchase marijuana.
Defendant and Scott went to Brooks apartment at 8002 Trapier Avenue to obtain
the drugs. Once there, Defendant shot Brooks twice in the back. The men fled the
scene with the drugs and Brooks’s cell phone.4
At trial, the State offered the testimony of six witnesses.5 The defense did
not call any witnesses.
Detective Nicholas Davis (“Det. Davis”) of the NOPD Homicide Division
testified that he investigated the shooting in the 8000 block of Trapier Avenue. He
was made aware of the incident following a 911 call at 3:23 p.m. on June 8, 2022,
advising that a male had been shot. The 911 call was introduced and played before
the jury.6 He stated he was not on the initial crime scene because it was classified
as an aggravated battery. After the victim died at the hospital at 7:30 p.m., the case
was assigned to him and he investigated the crime scene the following day.
Photographs were taken of the crime scene, identified by Det. Davis, and offered
into evidence. In the photographs, there are numbered markers indicating
4 As discussed herein, there was also testimony that Brooks was disarmed during the encounter.
Brooks’s gun, however, was not recovered.
5 Prior to proceeding with witnesses, the parties stipulated that Defendant had previously pled
guilty to one count of second-degree battery on December 12, 2013 and received two years imprisonment, suspended, and placed on two years active probation.
6 In the 911 call, the caller advises that a man had been shot at 8002 Trapier Avenue. The 911
operator instructs the caller to apply pressure to the victim’s gunshot wounds with a clean towel.
3 individual pieces of evidence, which included, a spent TelaAmmo 7.62x39 shell
casing.
Det. Davis stated that he contacted the manager of the apartment building
where the crime took place and was advised that a black Nissan Infinity SUV was
seen arriving and fleeing the scene. He stated as part of his investigation he
reviewed the June 8, 2022 surveillance video from 8002 Trapier Avenue, which
was introduced into evidence.
The surveillance video depicted a black Infiniti in a driveway of the Trapier
apartments and Scott speaking with a female neighbor at 1:33 p.m. who said she
does not have “any” and to come back later. The vehicle departed at 1:37 p.m.
The car returned to Trapier Avenue at 2:55 p.m. Video footage at 3:22 p.m.
showed Brooks on the ground after the shooting. One voice says “come on, man”
and another shouts “let’s f*cking go, man.” The car pulled off and the victim
yelled for help. A neighbor came to help Brooks at 3:26 p.m.
Det. Davis also testified that during his investigation he reviewed the leasing
documents of Trapier apartments and learned that Defendant’s sister, Courtney
Penn (“Courtney”) had previously leased an apartment with her boyfriend, Scott.
The leasing documents also listed 7512 Jonlee Drive as Courtney’s previous
address. Det. Davis relocated to Jonlee Drive and observed a black Nissan Infinity
SUV parked in front of the residence.
A search warrant of the vehicle was obtained and introduced into evidence
for recording keeping purposes. The search warrant revealed an extended black
nine-millimeter magazine for a firearm under the driver’s seat of the vehicle.
A search warrant was also obtained for the Jonlee residence, which was
introduced for record keeping purposes. Body cam footage of Det. Davis’s partner,
4 Detective Walter Edmond, documenting the search was presented and offered into
evidence.
Det. Davis testified that during the search, the police found a red Jordan
backpack in a bedroom closet. Inside the backpack the police recovered a rifle,
with a bandanna wrapped around; live rounds of TelaAmmo, which matched the
casing found at the crime scene; and a check stub, dated May 7, 2022 addressed to
Defendant at 7512 Jonlee Drive. In the closet, the police also found a black nine-
millimeter handgun with a green grip, which matched the magazine seized from
the vehicle. A magazine for the rifle was also found on the chair in the bedroom,
containing live rounds.
Det. Davis said the police also found numerous gun box cases in another
bedroom. The boxes did not contain firearms but contained empty magazines. The
backpack, bandanna, check stub, rifle, ammunition, magazine for the rifle
handgun, and gun boxes were introduced into evidence.
Later, Det. Davis obtained surveillance from motion activated cameras at
7512 Jonlee Drive, which showed Defendant and Scott enter a black SUV at 12:50
p.m. on June 8, 2022. Defendant entered the driver’s side; Scott entered the
passenger side. The car pulled out of the driveway at about 12:52 p.m. Det. Davis
noted the white handkerchief on the dashboard is consistent with the surveillance
video obtained from the Trapier Avenue apartments. Additional footage showed
Defendant leaving the residence on Jonlee Drive with a red backpack at 2:43 p.m.,
and driving off in the vehicle alone. At approximately 3:39 p.m. Defendant and
Scott returned to the Jonlee home. The video depicted Defendant taking a red
backpack out of the backseat of the car and then both Defendant and Scott entered
the residence at 3:40 p.m.
5 Det. Davis stated that Defendant and Scott appeared at the police station
voluntarily on June 23, 2022, for questioning. The taped interviews were shown to
the jury and entered into evidence.
In the interview, Defendant denied being aware of shooting or knowing
Brooks. He stated that he drives the black Infiniti and that it previously belonged to
his father. Defendant said Scott did not have permission to drive the Infiniti. He
stated that his mother lives on Jonlee Drive. Defendant initially stated the car was
parked all day at the Jonlee residence on the day of the incident, but later indicated
he may have run some errands that day. Defendant denied being with Scott the day
of the shooting. However, later Defendant stated he brought Scott to the Trapier
apartments so that Scott could retrieve some items from his apartment. He said
when he was there he observed two men come “from the back” of his vehicle and
shoot at Brooks. Defendant denied purchasing drugs from Brooks. Defendant
denied knowledge of the rifle in the backpack and denied that it was involved in
the shooting of Brooks.7
Det. Davis stated, contrary to Defendant’s statement, the Trapier
surveillance videos do not show two men come from behind the car and shoot
Brooks. He noted that at no point during the interview did Defendant implicate
Scott as the shooter.
In the taped interview of Scott, he said that Defendant had contacted him
about getting weed. Scott called Brooks several times to purchase marijuana but he
7 Det. Davis also testified regarding the statements made by Defendant in his interview. He noted
that Defendant admitted that the vehicle belonged to his recently deceased father and Defendant drives it. Defendant also advised Det. Davis that he never left the house on the day in question. Det. Davis said when confronted with the surveillance video of leaving the residence, Defendant backtracked and said he just went to the store and came right back. Defendant also denied being with Scott that day.
6 did not answer. Scott said they went to apartment 1-B on Trapier Avenue to see
about obtaining weed. Defendant said he wanted to get an ounce or two of weed.
Scott said Brooks was nearby working under the hood of the car and indicated he
did not have any weed at the time. Scott said Brooks later called him and said he
was ready. Scott said that he contacted Defendant. Defendant then picked him up
in the car. He said he observed a handgun with a green handle in Defendant’s car
and took it because he did not want any trouble. They returned to the Trapier
apartments and Scott exited the car. Scott said he was on the phone when Brooks
arrived with the weed. He stated all of a sudden, he heard a commotion and then
grabbed the handgun and pointed it towards Defendant and Brooks. Scott stated
that he then observed Defendant had a gun. Scott said he was in shock and shouted
at Defendant. Defendant then yelled at him to get the weed, which was on the
ground. Scott said that Brooks had a gun in his waistband and also handed it over
to Defendant while at gunpoint. Defendant then told Brooks to run, Brooks turned,
and Scott heard two gunshots. Scott said when they drove off, he noticed that
Defendant had a red backpack in the backseat. He also stated that Defendant threw
Brooks phone off the interstate by Crowder Blvd. Scott said after the shooting, they
went to the store for beer, went to his home, and then returned to the Jonlee
residence.
Det. Davis testified that Brooks’s phone was tracked to the intersection of
Crowder Blvd. and I-10. The screen shot of the phone’s location was introduced
into evidence.
Det. Davis testified that he obtained an arrest warrant for Defendant for
second degree murder based on the surveillance videos and Scott’s statement
describing Defendant as the shooter and the firearm used, and “then our locating
7 that same firearm that was described in the shooting.”8 The arrest warrant was
entered into evidence for record keeping purposes.
On cross-examination, Det. Davis admitted that an arrest warrant was also
issued for Scott. He noted Scott advised that at one point during the incident, he
became startled and took “the firearm from his waistband and point[ed] it in the
direction of [Defendant] and [ ]Brooks and ask[ed] what’s going on.” Det. Davis
explained that Scott indicated that he discovered this handgun in Defendant’s car
on the way to the Trapier apartments.
Det. Davis acknowledged that Defendant’s DNA was not found on the gun
or the backpack. Det. Davis also admitted that Brooks was Scott’s neighbor and
Scott frequently purchased marijuana from him in the Trapier apartments. He
conceded that there was no cell phone data linking Brooks and Scott. When
questioned about Scott’s demeanor in the Jonlee surveillance videos, Det. Davis
conceded that Scott did not appear fearful or angry. However, Det. Davis noted
Scott indicated that he chose to arm himself the day of the shooting because he
“knew [Defendant] was armed… [a]nd based on [Defendant’s] behavior in the past
with firearms, [Scott] thought it was safer for him to be in possession of a
handgun.” Det. Davis testified that Defendant did not have a relationship with
Brooks prior to the incident.
Det. Davis denied there was no evidence aside from Scott’s statement that
indicated Defendant was the individual who had fired the weapon that had killed
Brooks. He noted that, in addition to Scott’s statement identifying Defendant as the
shooter, Defendant was in possession of a red backpack containing the murder
8 Det. Davis also described why Defendant was charged with obstruction and felon in possession
of a firearm.
8 weapon, and the weapon and backpack were recovered from the Defendant’s
home. Det. Davis explained: “[t]he only living witness identified [Defendant] as
the shooter and that’s corroborated by the evidence.”
On redirect, Det. Davis said it is common when people sell drugs to use a
burner phone to conduct their business. He stated that there is no testimonial
evidence nor physical evidence suggesting that Scott shot Brooks.
Scott testified that he knew Defendant because at the time he was dating
Defendant’s sister Courtney. He also has a baby with Courtney. Scott stated his
testimony was part of his plea agreement with the State. The plea form was
introduced for identification purposes.
Scott testified that he had previously lived with Courtney at 8002 Trapier
Avenue for about two months. He said he visited the Trapier apartments with
Defendant the day of the murder on two occasions.9 He first went to a female
neighbor’s apartment to purchase marijuana but was told to come back later. Scott
said he and Defendant later returned to the apartments after learning Brooks had
marijuana.
Scott identified himself and the neighbor to whom he initially spoke in the
Trapier surveillance video. He also identified the vehicle Defendant was driving.
Scott also identified Defendant in the Jonlee surveillance video and stated that
Defendant lived at 7512 Jonlee Drive.
Scott stated that after he and Defendant left Trapier Avenue the first time,
Brooks had called him and told him to advise his “brother-in-law” that he was
“ready.” Scott called Defendant to pick him up from his house and they returned to
9 Scott’s trial testimony is similar to the statement he provided to the police.
9 the Trapier apartments. Scott said when they arrived, he was on a phone call but
advised Brooks that Defendant was going to “cop the weed from [Brooks].” Scott
said he heard commotion and as a “natural reflex” he “upped the gun, and pointed
it at both of them.” He then noticed that Defendant had a rifle pointed at Brooks.
Scott also indicated that Defendant had disarmed Brooks. According to Scott, as
Brooks knelt on “one knee” he handed over a gun that was “behind his back” to
Defendant.10 Scott said he then heard two shots and observed Brooks fall down.
Scott indicated that Defendant “ordered” him to “get the weed” off the ground.
Scott also took Brooks’s phone and gave it to Defendant. Scott stated that
Defendant threw Brooks’s phone out of the vehicle’s window near Crowder Blvd.
and the interstate. After the shooting, Scott and Defendant went to a store for beer
and cigarettes, dropped beer off at his house,11 then returned to Defendant’s house
on Jonlee.
Scott identified the voices heard in the Trapier surveillance video. He said
that he was the one who shouted “come on, man” because he did not expect that to
happen because they were just there to purchase marijuana. Scott testified that he
did not know that Defendant intended to rob and shoot Brooks. Scott identified
Defendant’s voice as the one who screamed “now, let’s f*cking go.” Scott also
identified the rifle as well as the handgun that Scott had in his possession had at
trial.
10 Scott testified “Your client got him at gunpoint, Mr. Boshea. He's demanding everything from
him. The man on one knee. He went behind his back, got the gun, and handed it to him.” Scott did not know what happened to Brooks’s gun.
11 The record reflects that at the time of the incident Scott lived on Curran Road “right around the
corner” from Jonlee Drive.
10 On cross-examination, Scott stated that after the shooting he did not call
911. He stated he was more worried about his own family. Scott conceded that
despite being shocked by the incident, he got himself a beer and cigarettes after the
shooting. He also admitted to smoking Brooks’s weed. Scott acknowledged that he
did not come forward for over two weeks after the shooting. He conceded that he
was the one that had contacted Brooks the day of the shooting and that he had a
handgun in his possession at the time of the incident. Scott insisted that it was
Defendant’s handgun that he was holding. He also stated he was not aware
Defendant had a rifle when they arrived at the apartments.
On redirect, Scott stated that he did not bring a gun to the weed transaction.
He again stated that he observed the handgun, that he later possessed, in
Defendant’s vehicle.
Dr. Marianna Sandomirsky (“Dr. Sandomirksy”), a forensic pathologist at
the Orleans Parish Coroner’s Office and expert in the field of forensic pathology
testified that she conducted an autopsy of Brooks. She stated that his cause of death
was the result of “multiple gunshot wounds of the abdomen and pelvis.”
Dr. Sandomirsky stated that there were two entrance wounds near Brooks’s
buttocks; and one exit wound in his abdomen. She stated that one of the bullets
was lodged in Brooks’s right lumber spine, near the tailbone. She removed the
projectile and it was processed by the NOPD crime lab. Dr. Sandomirksy said the
other bullet hit “one pretty large artery as well as something called the ‘mesentery,’
which is a tissue around our bowels.” The autopsy report, photographs of the
autopsy, and the projectile recovered from Brooks were introduced into evidence.
Dr. Sandomirksy noted that there was “no soot or stippling” on the bullet
wounds. She explained when a bullet is fired in close range, the gunpowder can
11 cause markings on the body. Dr. Sandomirksy testified that the absence of such
markings on Brooks suggests that he was two to three feet away from the gun
when it was fired.
On cross-examination, Dr. Sandomirky stated that it was “possible, but
unlikely” two different weapons were involved in the shooting. She explained on
redirect that it “would be tremendously unlucky to have been struck that close by
two different weapons in a time that was … congruent with each other.”
Charles Dionne (“Dionne”) of the NOPD and an expert in cell site analysis
testified that NOPD uses a software called GeoTime to map phone records, which
gives an approximation of where the phone is located via a particular cell phone
tower. Dionne stated three reports were submitted to GeoTime for the cell phone
numbers of Defendant, Scott, and Brooks. He noted that all three phones were all
connected through the same cell phone tower in New Orleans East between 1:00
and 2:00 p.m. on the day of the shooting.
On cross-examination, Dionne testified that the GeoTime reports do not
indicate that Brooks and Defendant communicated the day of the incident. On
redirect, however, Dionne stated that the cell phone records do not track the phone
in real time, but rather note the location of the phones when they made a call. The
cell phone records and GeoTime reports were introduced into evidence.12
Kenneth Leary (“Leary”), a criminologist with NOPD Crime Lab and
expert in firearm examination and ballistics analysis, testified that the two 7.62x39
millimeter casings found at the scene belonged to the gun recovered from Jonlee
Drive. He stated that the bullet fragments found inside Brooks’s body were too
12 A power point was also used as a demonstrative tool at trial regarding the locations of the
phones the day of the murder.
12 damaged to identify the caliber. Leary testified that he did not receive any nine-
millimeter cartridges to test because none had been collected on the scene. The
firearm report, authored by Leary, was introduced into evidence.
Alan Seaton (“Seaton”) of the NOPD Digital Forensic Unit and an expert in
digital forensics, testified that the NOPD used cell phone software called Cellebrite
to process Scott’s phone. He stated that Scott’s phone called a certain phone
number four times. However, Seaton admitted on cross-examination that the phone
had not been used to call nor did it receive a call from a number associated with
Brooks. On redirect, Seaton testified that it was possible that the number Scott
called belonged to a burner phone. Seaton’s forensic report was introduced into
Angela Maher (“Maher”) of the State Police Crime Lab and expert in DNA
analysis testified that she was provided oral swabs of both Defendant and Scott.
She also received a blood sample from Brooks. Maher stated that DNA analysis
performed on the swab of the cartridge case “did not detect the presence of
amplifiable DNA.” She testified it is common that DNA is not recoverable from
casings because when a bullet is fired the heat will degrade any DNA present.
Maher also stated that DNA was not recovered from the gun grip, the trigger
guard, or the trigger. She noted that when she received the DNA, it did not denote
a particular firearm, just the areas of the gun that were swabbed. Maher’s DNA
reports were introduced into evidence. In connection with Maher’s testimony,
Defendant also offered into evidence Det. Davis’s request for DNA analysis, which
shows that three swabs (from slide/grip, trigger and trigger guard, and spent
casing) from the firearm were submitted for testing.
13 Chanterelle Brooks Mitchell, Brooks’s mother, provided testimony about
her son and identified a photograph of him.
DISCUSSSION
Error Patent No. 1/Assignment of Error No. 1
There is a discrepancy between the sentencing transcript and the minute
entry regarding sentencing. This error patent is also raised as an assignment of
error and requests that we order the trial court to correct the sentencing minute
entry and commitment order, if necessary. The State also acknowledges this error
and does not oppose Defendant’s request for amendment.
The sentencing transcript shows that Defendant was sentenced to life for
second degree murder; forty years for obstruction of justice; and twenty years for
possession of a firearm by a convicted felon. The minute entry, however, provides
that Defendant received a life sentence for all three counts. This Court has held that
where “there is a discrepancy between a minute entry and the transcript, the
transcript prevails.” State v. Lawrence, 2012-1026, p. 5 (La. App. 4 Cir. 7/3/13),
120 So.3d 812, 816 (citing State v. Randall, 2010-1027, p. 3 (La. App. 4 Cir.
6/22/11), 69 So.3d 683, 685). Nevertheless, in an abundance of caution, and in
accordance with the State’s acknowledgement of the error, we remand the matter
to the trial court to amend the minute entry, dated November 8, 2024, to conform
with the sentencing transcript and commitment order, if necessary.13 See State v.
Budd, 2023-0594, pp. 19-20 (La. App. 4 Cir. 7/26/24), 398 So.3d 670, 682
(remanding to trial court to amend minute entry where there was a discrepancy
between the minute entry and the transcripts, “with the minute entry listing a
13 The commitment order is not in the record and thus it is unclear what sentence it reflects.
14 conviction of third-degree rape, while the transcripts indicate a conviction of
sexual battery”); State v. Wade, 2022-260, p. 8 (La. App. 5 Cir. 2/27/23), 358
So.3d 937, 943 (ordering a correction where there was a discrepancy between the
transcript, the minute entry, the uniform commitment order, and the multiple
offender sentence minute entry).
Error Patent No. 2
There is a second error patent regarding the sentencing delay. La. C.Cr.P.
art. 873 requires a twenty-four-hour delay between the denial of a motion for new
trial and a motion in arrest of judgment unless the defendant expressly waives the
delay or pleads guilty.14 The Fourth Circuit has consistently held that a defendant
may implicitly waive the twenty-four-hour delay when the defendant announces
his readiness for sentencing. See State v. Green, 2010-0791, pp. 20-21 (La. App. 4
Cir. 9/28/11), 84 So.3d 573, 586 (citing State v. Pierre, 1999-3156, p. 7 (La. App.
4 Cir. 7/25/01), 792 So.2d 899, 903); State v. Foster, 2002-0910, p. 2 (La. App. 4
Cir. 12/11/02), 834 So.2d 1188, 1191. However, the Louisiana Supreme Court in
State v. Kisack, 2016-0797, p. 7 (La. 10/18/17), 236 So.3d 1201, 1205, noted that
“the waivers under the circumstances presented in those decisions are typically not
so much implicit as expressly made (by announcing that defendant is ready to be
sentenced) without being as fully articulated as they should perhaps have been.”
The Louisiana Supreme Court held that “[a]n implicit waiver ... runs afoul of the
plain language of Art. 873 that requires that the waiver be expressly made.” Id. The
14 La. C.Cr.P. art. 873 states:
If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.
15 Kisack Court concluded that defense counsel’s mere participation in a sentencing
hearing was insufficient to constitute an express waiver of the sentencing delay.
Id.; see also State v. West, 2022-0721, p. 20 (La. App. 4 Cir. 7/5/23), 371 So.3d 1,
14 (finding that the defendant’s participation in sentencing and advocating for a
lighter sentence was insufficient to waive the sentencing delay).
Additionally, this Court has held that the trial court’s failure to observe the
required twenty-four-hour delay is harmless error where the defendant does not
complain of his sentence on appeal. State v. Berniard, 2014-0341, p. 9 (La. App. 4
Cir. 3/4/15), 163 So.3d 71, 79, (citing State v. Celestain, 2013-1262, p. 10 (La.
App. 4 Cir. 7/30/14), 146 So.3d 874, 881; State v. Duncan, 2011-0563, p. 8 (La.
App. 4 Cir. 5/2/12), 91 So.3d 504, 511).
Here, the minutes fail to reflect that the trial court observed the twenty-four-
hour sentencing delay or that Defendant waived the delay. The sentencing
transcript, on the other hand, shows that counsel for Defendant expressly waived
the sentencing delays on behalf of Defendant after the denial of the motion for new
trial and motion for judgment notwithstanding the verdict. 15 Moreover, Defendant
does not complain of his sentencing on appeal. As such, any error in the trial
court’s failure to observe the twenty-four-hour delay before sentencing Defendant
is harmless. See Celestain, 2013-1262, p. 12, 146 So.3d at 882 (finding the trial
court’s patent error, in sentencing the defendant less than twenty-four hours after
15 The transcript provides:
THE COURT: Oh, Mr. Boshea, are you waiving delays?
MR. BOSHEA: Yeah. Let the record reflect I spoke to Mr. Penn. I told him I was waive — asked him if he wished to waive sentencing delays, and he said yes.
THE COURT: All right. So delays are waived. Okay. Perfect. Thank you
16 denying his motion for new trial, was harmless, where the defendant did not
complain of his sentence on appeal and where the defendant waived the delay by
acknowledging he is ready for sentencing).
Assignment of Error No. 2
As his second assignment of error, Defendant contends that there was
insufficient evidence to convict him of second-degree murder.
This Court in State v. Butler, 2024-0061, pp. 9-10 (La. App. 4 Cir.
12/30/24), 407 So.3d 744, 749–50, recently outlined the standard for reviewing a
claim of insufficiency of evidence as follows:
[A]n appellate court's standard of review when analyzing a sufficiency of the evidence claim is to “determin[e] whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that all of the elements of the offense had been proven beyond a reasonable doubt.” State v. Groves, 2020-0450, p. 21 (La. App. 4 Cir. 6/10/21), 323 So.3d 957, 971 (first citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); and then citing State v. Tate, 2001-1658, p. 4 (La. 5/20/03), 851 So.2d 921, 928). As this Court has further explained, the focus in this Jackson standard of review is on the rationality of the fact finder, such that the appellate court should overturn irrational decisions to convict; uphold rational decisions to convict; and impinge on the fact finder's discretion only if and when “necessary to guarantee the fundamental protection of due process of law.” State v. Hunter, 2022-0742, p. 5 (La. App. 4 Cir. 7/6/23), 371 So.3d 108, 113 (citations omitted). Thus, under this standard of review, an appellate court cannot “substitute its own appreciation of the evidence for that of the fact finder.” State v. Galloway, 55,591, p. 9 (La. App. 2 Cir. 4/10/24), 384 So.3d 1167, 1174 (first citing State v. Pigford, 2005-0477, p. 6 (La. 2/22/06), 922 So.2d 517, 521; and then citing State v. Steines, 51,698, p. 7 (La. App. 2 Cir. 11/15/17), 245 So.3d 224, 229). Stated differently, “[u]nder the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court.” State v. Williams, 2011-0414 p. 18 (La. App. 4 Cir. 2/29/12), 85 So.3d 759, 771 (quoting State v. Jones, 2011-0649, p. 3 (La. App. 4 Cir. 10/19/11), 76 So.3d 608, 611).
Additionally, this Court has held that the testimony of a single witness, if
reasonably credible and believed by the trier of fact, is sufficient to support a
17 conviction. State v. Wells, 2010-1338, p. 5 (La. App. 4 Cir. 3/30/11), 64 So.3d 303,
306 (citing State v. White, 28,095 (La. App. 2 Cir.5/8/96), 674 So.2d 1018); see
also State v. Rickmon, 2023-0766, pp. 7-8 (La. App. 4 Cir. 2/18/25), 409 So.3d
284, 290. “A victim’s or witness’s testimony alone is usually sufficient to support
the verdict, as appellate courts will not second-guess the credibility determinations
of the fact finder beyond the constitutional standard of sufficiency.” State v.
Johnson, 2013-0343, p. 7 (La. App. 4 Cir. 10/1/14), 151 So.3d 683, 689 (citing
State v. Davis, 2002–1043, p. 3 (La. 6/27/03), 848 So.2d 557, 559). “In the absence
of internal contradiction or irreconcilable conflict with the physical evidence, one
witness’s testimony, if believed by the fact finder, is sufficient support for the
requisite factual conclusion. Johnson, 2013-0343, p. 7, 151 So.3d at 689-690
(citing State v. Dorsey, 2010-0216 (La. 9/7/11), 74 So.3d 603, 534; State v.
Robinson, 2002-1869, p. 16 (La. 4/14/04), 874 So.2d 66, 79).
Second-degree murder is defined, in part, as “the killing of a human being:
(1) [w]hen the offender has a specific intent to kill or to inflict great bodily harm;”
or (2) “[w]hen the offender is engaged in the perpetration or attempted perpetration
of … armed robbery, first degree robbery, second degree robbery, [or] simple
robbery … even though he has no intent to kill or to inflict great bodily harm.” La.
R.S. 14:30.1(A)(1)(2).
Defendant first contends that the State failed to prove that he, rather Scott,
had shot Brooks. However, viewing the evidence in a light most favorable to the
prosecution, a rational juror could have found that Defendant fired the shots that
killed the victim.
As noted above, the testimony of one witness absent irreconcilable conflict
is sufficient to support a guilty verdict. Wells, 2010-1338, p. 5, 64 So.3d at 306;
18 Rickmon, 2023-0766, pp. 7-8, 409 So.3d at 290. Scott provided testimony that
while he had set up the drug deal, Defendant had brought the guns, robbed, and
shot Brooks on June 8, 2022.
Scott testified that he knew Defendant because he was dating his sister,
Courtney, with whom he had formerly resided in an apartment at 8002 Trapier
Avenue. Scott also testified that Defendant asked him for help procuring some
marijuana, so he contacted Brooks, from whom he had previously purchased
marijuana. Scott said he and Defendant later met Brooks at the Trapier Avenue
apartments. Scott stated that he was on the phone when Defendant went to speak
with Brooks. Scott heard a “commotion” shortly thereafter and observed Defendant
pointing a rifle at Brooks. Scott also testified that Defendant instructed him to take
Brooks’s marijuana. He stated that Brooks’s cell phone and gun were also taken.
Scott testified that as Brooks began to walk away, Defendant shot him twice in the
back. Scott and Defendant then fled in Defendant’s vehicle and Defendant threw
Brooks’s cell phone out of the window on the side of the interstate. Scott identified
the firearm Defendant used to shoot Brooks at trial.
Moreover, the physical evidence, the surveillance videos, and testimonial
evidence corroborate Scott’s testimony. The surveillance footage depicted Scott,
Defendant, and Defendant’s vehicle at Trapier Avenue; their first unsuccessful
attempt to purchase marijuana; their return to the apartments to meet Brooks;
Brooks on the ground following the shooting; Defendant’s vehicle fleeing the
scene; and Defendant and Scott’s return to the Jonlee residence after the shooting.
Also, a search of Defendant’s residence yielded two firearms, including the rifle
Scott identified as the murder weapon. Also, Det. Davis testified that the rifle used
to shoot Brooks was found in the red backpack in the closet in Defendant’s
19 residence. The surveillance footage also showed Defendant in possession of the red
backpack the day of the shooting. Moreover, the NOPD crime lab technician,
Leary, testified that the shell casings collected from the crime scene had been fired
from the gun seized from the red backpack.
Det. Davis also testified that Brooks’s cell phone was tracked to I-10 and
Crowder Blvd., consistent with Scott’s testimony that Defendant had thrown the
victim’s phone out the window on the side of the interstate. Dr. Sandomirsky’s
testimony that the victim sustained two gunshot wounds near his buttocks also
corroborates Scott’s testimony that Defendant shot Brooks in his back.
Further, the jury heard Defendant’s recorded police interview, during which
he denied leaving his house at any time on June 8, 2022; denied meeting either
Scott or Brooks that day; and later alleged that he witnessed unknown assailants
shoot the victim, all of which was contradicted by the surveillance footage and the
ballistics evidence presented at trial. Moreover, Det. Davis stated that there was no
testimonial nor physical evidence suggesting Scott was the shooter.
Based on the foregoing, it appears that the jury decision to accept Scott’s
trial testimony and reject Defendant’s theory of innocence was supported by the
evidence presented at trial. As such, there was sufficient evidence to establish
Defendant, not Scott, was the individual who had shot Brooks.
Secondly, Defendant argues that the State failed to prove that he possessed
the specific intent to either kill or inflict great bodily harm upon the victim.
As stated above, second-degree murder is “the killing of a human being: (1)
[w]hen the offender has a specific intent to kill or to inflict great bodily harm;” or
(2) “[w]hen the offender is engaged in the perpetration or attempted perpetration of
… armed robbery, first degree robbery, second degree robbery, [or] simple robbery
20 … even though he has no intent to kill or to inflict great bodily harm.” La. R.S.
14:30.1(A)(1)(2).
“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.” State v. Duncan, 2024-0664, p.
20, --- So.3d ----, ----, 2025 WL 3706658 at *10 (La. App. 4 Cir. 12/22/25) (citing
La. R.S. 14:10(1)). “Specific intent may be proven by direct evidence, such as
statements by a defendant, or by inference from circumstantial evidence, such as a
defendant’s actions or facts depicting the circumstances.” Duncan, 2024-0664, p.
20-21, 2025 WL 3706658 at *10 (quoting State v. Hollins, 2023-0785, p. 4 (La.
App. 1 Cir. 3/19/24), 387 So.3d 641, 646 and citing State v. Meek, 2023-0362, p. 4
(La. App. 1 Cir. 11/9/23), 379 So.3d 67, 71-72).
Here, there was testimony that Defendant pointed a firearm at Brooks and
fired two shots at his lower back as he walked away. A rational jury could
conclude that Defendant possessed the specific intent to kill or inflict bodily harm
when he fired a gun at Brooks. Additionally, Scott testified that Defendant, while
armed, instructed him to take Brooks’s marijuana. There was also testimony that
Brooks’s cell phone and firearm were taken at gun point. The jury could likewise
find that Defendant was engaged in the commission of an armed robbery at the
time of the shooting. See La. R.S. 14:64 (A) (“[a]rmed robbery is the taking of
anything of value belonging to another from the person of another or that is in the
immediate control of another, by use of force or intimidation, while armed with a
dangerous weapon”). Accordingly, we find sufficient evidence was presented to
justify Defendant’s conviction for second degree murder. This assignment of error
lacks merit.
21 DECREE
For the foregoing reasons, we affirm Defendant’s conviction and sentence
for second degree murder. We also remand the matter to the trial court with
instructions to amend the November 8, 2024 minute entry, to conform with the
sentencing transcript as well as the commitment order, if necessary.
AFFIRMED AND REMANDED WITH INSTRUCTIONS