STATE OF LOUISIANA * NO. 2023-KA-0022
VERSUS * COURT OF APPEAL DAMOND SCOTT * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 537-253, SECTION “0” Honorable Camille Buras, Judge ****** Judge Nakisha Ervin-Knott ****** (Court composed of Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge Nakisha Ervin-Knott)
Jason R. Williams District Attorney Brad Scott Assistant District Attorney Chief of Appeals Thomas Frederick Assistant District Attorney ORLEANS PARISH 619 South White Street New Orleans, Louisiana 70119
COUNSEL FOR STATE OF LOUISIANA
Kevin V. Boshea ATTORNEY AT LAW 2955 Ridgelake Drive, Suite 207 Metairie, Louisiana 70002
COUNSEL FOR DEFENDANT/APPELLANT
CONVICTIONS FOR SECOND DEGREE MURDER AND ATTEMPTED SECOND DEGREE MURDER AFFIRMED; CONVICTION FOR OBSTRUCTION OF JUSTICE VACATED; SENTENCE FOR SECOND DEGREE MURDER AFFIRMED AS AMENDED; SENTENCE FOR ATTEMPTED SECOND DEGREE MURDER AFFIRMED.
AUGUST 30, 2023 NEK The defendant, Damond Scott (hereafter “Defendant”), seeks review of his
SCJ convictions and sentences for second degree murder, attempted second degree
murder, and obstruction of justice. For the reasons that follow, we affirm the PAB Defendant’s convictions for second degree murder and attempted second degree
murder; vacate Defendant’s conviction and sentence for obstruction of justice;
affirm Defendant’s sentence for attempted second degree murder; and affirm as
amended Defendant's sentence for second degree murder to reflect parole eligibility
in line with La. R.S. 15:574.4(F).
STATEMENT OF THE FACTS
On the afternoon of January 17, 2017, a vehicle driven by Tommie Mahoney
(hereafter “Mr. Mahoney”) with David Wimberly (hereafter “Mr. Wimberly”) in the
passenger seat was travelling down the 1600 and 1700 blocks of Mandeville Street,
near the intersection with North Derbigney Street. As Mr. Mahoney travelled down
Mandeville Street, Defendant began firing shots at the vehicle. This incident resulted
1 in the untimely death of Mr. Wimberly, the attempted murder of Mr. Mahoney, and
injury to a bystander.
Sergeant Nicholas Williams (hereafter “Sgt. Williams”), the lead homicide
detective in this case, responded to the scene of the shooting. NOPD was able to
obtain video surveillance from cameras located in the area. Video surveillance
depicted a white Chevrolet Camero traveling in the 1600 block of Mandeville Street.
The Camero parked, and the driver handed an assault rifle to Defendant and another
firearm to Defendant’s associate. The investigation revealed that the Camero
belonged to Defendant’s mother, Linette Richardson (hereafter “Ms. Richardson”),
although she was not the driver of the Camero during this incident. Defendant
concealed the assault rifle under his jacket, crossed the street, and entered an alley
of one of the houses in the 1600 block of Mandeville Street.
Minutes later, a black SUV1, driven by Mr. Mahoney with Mr. Wimberly in
the passenger seat, travelled down the 1600 block of Mandeville Street, and the
Defendant emerged from the alley firing his weapon at the SUV. Defendant
continued shooting at the SUV as the vehicle travelled through the 1700 block of
Mandeville Street until Mr. Mahoney lost control of the SUV. The SUV hit a parked
car in the 1700 block of Mandeville Street, pinning a bystander to the ground. When
the shooting ceased, Defendant fled the area on foot. Police officers recovered an
assault rifle from the SUV; however, they never recovered the assault rifle
Defendant used during the shooting.
1 The black SUV, a Hyundai Sante Fe, driven by Mr. Mahoney was in fact a stolen vehicle at the
time of the shooting.
2 During the course of the investigation, Mr. Mahoney provided the nicknames
of the individuals who shot at him and Mr. Wimberly in the SUV. Although Mr.
Mahoney did not identify the Defendant by his name “Damond Scott”, he identified
Defendant by his nickname “D-Man” as one of the shooters. Additionally, Germaine
Hood (hereafter “Ms. Hood”), an eyewitness to the shooting incident, observed
Defendant having an assault rifle delivered to him and identified Defendant as a
shooter of the SUV. At the time of the shooting, pursuant to Defendant’s bond in an
unrelated case2, there was a court order prohibiting Defendant from being in the City
of New Orleans unless he was accompanied by his mother for drug tests, doctors’
appointments, and court dates.
Subsequent to the January 17, 2017 shooting incident, on March 15, 2017,
Defendant was arrested for illegal possession of a firearm and resisting arrest. The
NOPD body-worn camera system provided footage of Defendant’s March 15, 2017
arrest and showed his face. Detective Ryan Aucoin (hereafter “Det. Aucoin”), who
assumed the lead investigator role in the shooting incident after Sgt. Williams took
a leave of absence from the police department, compared the March 15, 2017 arrest
footage to the video surveillance from the January 17, 2017 shooting and was able
to positively identify Defendant as the shooter. Based on the identification from the
surveillance video, body-worn camera, and the witness identification, Det. Aucoin
determined probable cause existed for Defendant’s arrest. On June 6, 2017,
Defendant was arrested in New Orleans, Louisiana, while he was already in jail on
2 The case was ultimately dismissed in July 2020 by the previous District Attorney’s administration.
3 the March 15, 2017 arrest. At the time of the January 17, 2017 shooting incident,
Defendant was seventeen years old.
PROCEDURAL HISTORY
On September 14, 2017, Defendant was charged by grand jury indictment
with second degree murder, a violation of La. R.S. 14:30.1; attempted second degree
murder, a violation of La. R.S. 14:30.1; and obstruction of justice, a violation of La.
R.S. 14:130.1.3 On September 29, 2017, Defendant pled not guilty to all charges.
A four-day trial commenced with jury selection on August 1, 2022, and
concluded on August 4, 2022, with the jury finding Defendant guilty of second
degree murder, attempted second degree murder, and obstruction of justice. On
October 18, 2022, prior to sentencing, Defendant filed a motion for new trial, which
was denied. On the same day, the trial court sentenced Defendant to life without the
benefit of probation, parole, or suspension on the second degree murder conviction;
fifty years without the benefit of probation, parole, or suspension on the attempted
second degree murder conviction; and forty years on the obstruction of justice
conviction, with the sentences to run concurrently. After sentencing, on October 18,
2022, Defendant filed a motion to reconsider sentence that was denied by the trial
court. This appeal followed.
3 Elijah Ben, an original co-defendant in this mater, was charged with the same offenses as
Defendant. However, Elijah Ben pled guilty to reduced charges pursuant to a plea agreement and has no part in this appeal.
4 ERRORS PATENT
In accordance with La. C.Cr.P. art. 920(2), all appeals are reviewed for errors
patent on the face of the record.4 A review of the record reveals two errors patent,
one of which is also raised as assignment of error number three.
First, the record evidences that the trial court sentenced Defendant less
than twenty-four hours after denying his motion for new trial. Thus, the trial court
erred in failing to observe the twenty-four hour delay required by La.C.Cr.P. art.
873. La. C.Cr.P. art. 873 states that if “a motion for 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,” unless the defendant “expressly waives” the delay or pleads
guilty. Nevertheless, if a defendant waives the twenty-four hour sentencing delay,
then the district court’s failure to wait at least twenty-four hours after a motion for
new trial constitutes harmless error. State v. Robinson, 21-0254, p. 21 (La. App. 4
Cir. 2/18/22), 336 So.3d 567, 580, writ denied, 22-00437 (La. 5/24/22), 338 So.3d
1185, reconsideration not considered, 22-00437 (La. 9/7/22), 345 So.3d 430.
Defendant was convicted by jury on August 4, 2022. On October 18, 2022,
Defendant filed a motion for new trial, which the trial court denied at a hearing that
same day. Following the denial of the motion for new trial, the trial court asked
whether Defendant was invoking his right to a sentencing delay, to which Defendant
responded that he was waiving the delay. The trial court proceeded to sentence
Defendant. When the district court sentenced Defendant on the same day as the
denial of the motion for new trial, the district court failed to comply with the twenty-
4 La. C.Cr.P. art. 920(2) provides that an error patent is “[a]n error that is discoverable by a mere
inspection of the pleadings and proceedings and without inspection of the evidence.” State v. Duckett, 2019-0319, p. 8 (La. App. 4 Cir. 12/18/19), 288 So. 3d 167, 174 n.3.
5 four hour sentencing delay found in La. C.Cr.P. art. 873. However, Defendant
waived the twenty-four hour sentencing delay when he expressly waived the delay
in open court following the denial of his motion for a new trial. Accordingly,
although the trial court erred in failing to observe the twenty-four hour delay required
by La.C.Cr.P. art. 873, we conclude the error was harmless.
Second, the trial court’s sentence imposed for Defendant’s second degree
murder conviction failed to comply with La. R.S. 15:574.4(F). La. R.S. 15:574.4(F)
states, in pertinent part, “…any person serving a sentence of life imprisonment for a
conviction of second degree murder (R.S. 14:30.1) who was under the age of
eighteen years at the time of the commission of the offense and whose indictment
for the offense is on or after August 1, 2017, shall be eligible for parole consideration
if all of the following conditions have been met….”
At the time of this shooting incident, Defendant was seventeen years old.
Additionally, he was indicted after August 1, 2017, convicted of second degree
murder, and sentenced to life without parole. In this case, the trial court erred in
imposing a sentence of life imprisonment without benefit of parole because this case
clearly falls within the scope of La. R.S. 15:574.4(F), which mandates that juveniles
convicted of second degree murder after August 1, 2017, be eligible for parole
consideration. Accordingly, as discussed infra in conjunction with Defendant’s third
assignment of error, we amend Defendant’s sentence for second degree murder to
reflect parole eligibility in line with La. R.S. 15:574.4(F).
DISCUSSION
On appeal, Defendant assigns nine errors for this Court’s review: (1) the guilty
verdicts of second degree murder and attempted second degree murder are contrary
to the law and evidence; (2) the district court erred in denying the motion for new
6 trial; (3) the imposition of life imprisonment and fifty years sentences without the
benefit of parole, probation, or suspension of sentence was unconstitutionally
excessive and unduly harsh as Defendant was age seventeen; (4) the district court
erred in denying the motion to reconsider sentence; (5) the guilty verdict of
obstruction of justice is contrary to the law and the evidence; (6) the defendant was
convicted before an improperly constituted jury in violation of due process of law;
(7) the defendant was denied his constitutional right to testify; (8) the district court
erred in admitting Scott’s prior criminal prosecution in response to an opening
statement at trial; and (9) the imposition of the maximum forty-year sentence for
obstruction of justice is unconstitutionally excessive and unduly harsh. We discuss
Defendant’s assignments of error out of order due to the sufficiency of evidence
arguments being asserted. Further, we do not discuss Defendant’s ninth assignment
of error, as our opinion vacating Defendant’s conviction for obstruction of justice
renders the ninth assignment of error moot.
Assignments of Error Numbers One, Two, and Five
Sufficiency of the Evidence
In his assignment of error number one, Defendant contends that the guilty
verdicts of second degree murder and attempted second degree murder are contrary
to the law and evidence. In assignment of error number two, Defendant asserts that
the trial court improperly denied his motion for new trial based on the same
insufficient evidence arguments. Similar to his assignment of error number one, in
assignment of error number five, Defendant contends that the guilty verdict of
obstruction of justice is contrary to the law and evidence. We first determine whether
sufficient evidence exists to support the convictions of second degree murder,
attempted second degree murder and obstruction of justice. State v. Hearold, 603
7 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. The reason for reviewing
sufficiency first is that the accused may be entitled to an acquittal. . . .”).
Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979), this Court must determine that the evidence, viewed in the light most
favorable to the prosecution, “was sufficient to convince a rational trier of fact that
all the elements of the crime had been proved beyond a reasonable doubt.” State v.
Neal, 2000-0674, p. 9 (La. 6/29/01), 796 So. 2d 649, 657 (citations omitted). The
statutory test of La. R.S. 15:4385 “works with the Jackson constitutional sufficiency
test to evaluate whether all the evidence, direct and circumstantial, is sufficient to
prove guilt beyond a reasonable doubt to a rational jury.” Id. (citing State v. Rosiere,
488 So. 2d 965, 968 (La. 1986)).
This Court has previously set forth the applicable standard of review for
sufficiency of the evidence:
In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So. 2d 1305 (La. 1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due
5 La. R.S. 15:438 states, “The rule as to circumstantial evidence is: assuming every fact to be
proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”
8 process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So. 2d 1319 (La. 1992) at 1324.
State v. Huckabay, 2000-1082, p. 32 (La. App. 4 Cir. 2/6/02), 809 So. 2d 1093, 1111.
Second degree Murder and Attempted Second Degree Murder
The State charged Defendant with the second degree murder of Mr. Wimberly
and attempted second degree murder of Mr. Mahoney, and the jury found him guilty
as charged. La. R.S. 14:30.1(A)(1) defines second degree murder as the “killing of
a human being…when the offender has a specific intent to kill or to inflict great
bodily harm.” La. R.S. 14:10(1) defines specific criminal intent as “that state of mind
which exists when the circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or his failure to act.” “Specific
intent may be inferred from the circumstances surrounding the offense and the
conduct of the defendant.” State v. Bishop, 2001-2548, p. 4 (La. 1/14/03), 835 So.
2d 434, 437; La. R.S. 14:10(1); State v. Butler, 322 So. 2d 189 (La.1975); State v.
Martin, 92-0811 (La.App. 5 Cir. 5/31/94), 638 So. 2d 411.
“To sustain a conviction for attempted second degree murder, the state must
prove that the defendant: (1) intended to kill the victim; and (2) committed an overt
act tending toward the accomplishment of the victim’s death.” Bishop, 2001-2548,
p. 4 (La. 1/14/03), 835 So. 2d at 437 (citing La. R.S. 14:30.1; La. R.S. 14:27).
“Although the statute for the completed crime of second degree murder allows for a
conviction based on ‘specific intent to kill or to inflict great bodily harm,’ La. R.S.
14:30.1, attempted second degree murder requires specific intent to kill.” Id. (citing
9 State v. Huizar, 414 So. 2d 741 (La.1982)). Defendant argues that there is
insufficient evidence for his convictions of second degree murder and attempted
second degree murder because the State failed to prove that the shooting was not the
result of self-defense. Defendant argues that he acted in self-defense when he shot
Mr. Wimberly and Mr. Mahoney; thus, his actions were legally justified.
A homicide is justifiable “[w]hen committed in self-defense by one who
reasonably believes that he is in imminent danger of losing his life or receiving great
bodily harm and that the killing is necessary to save himself from that danger.” La.
R.S. 14:20(A)(1). “In a homicide case in which the defendant asserts he acted in self-
defense, the State has the burden of establishing beyond a reasonable doubt that the
defendant did not act in self-defense.” State v. Kirk, 2011-1218, pp. 6-7 (La. App. 4
Cir. 8/8/12), 98 So. 3d 934, 939-40 (citing State v. Taylor, 2003-1834, p. 7 (La.
5/25/04), 875 So.2d 58, 63).
“This court has consistently declined to settle definitively the issue of which
party bears the burden of persuasion in proving self-defense in a non-homicide
case.” State v. Abbott, 2017-0016, p. 18 (La. App. 4 Cir. 6/14/17), 222 So. 3d 847,
857 (citing State v. De Gruy, 2016-0891, pp. 18-19 (La. App. 4 Cir. 4/5/17), 215 So.
3d 723, 733). While some cases suggest that the defendant must prove by a
preponderance of the evidence that he acted in self-defense, others indicate the State
has to establish beyond a reasonable doubt that the defendant did not act in self-
10 defense.6 We need not resolve this issue here because we find that under either
standard, the evidence is sufficient to support a finding that the defendant did not act
in self-defense. State v. Rouser, 2014-0613, p. 7 (La. App. 4 Cir. 1/7/15), 158 So. 3d
860, 867; See also State v. Taylor, 1997-2261 (La. App. 1 Cir. 9/25/98), 721 So. 2d
929, 931.
In a non-homicide matter, a justification defense mandates a two-step review,
specifically: (1) a subjective inquiry into whether the force was apparently
necessary; and (2) an objective inquiry into whether the force used was reasonable
under the circumstances. State v. Canales, 2014-0663, p.12 (La. App. 4 Cir.
12/10/14), 156 So. 3d 1183, 1191, writ denied, 2015-0048 (La. 11/6/15), 180 So. 3d
306 (quoting State v. Cooks, 2011-0342, p. 11 (La. App. 4 Cir. 12/14/11), 81 So. 3d
932, 939, writ denied, 2012-0112 (La. 5/18/12), 89 So.3d 1189). Furthermore, “[t]he
trier of fact makes credibility determinations and may, within the bounds of
rationality, accept or reject the testimony of any witness; thus, a reviewing court may
6 This Court recognized the conflicting jurisprudence in State v. Rouser, 2014-0613, pp. 6-7 (La.
App. 4 Cir. 1/7/15), 158 So. 3d 860, 866-67; a case with one homicide victim and two non- homicide victims, stating:
It is well-settled that in a homicide case where the defendant asserts that he acted in self-defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. State v. Byrd, 12-556, p. 3 (La. App. 4 Cir. 6/5/13), 119 So .3d 801, 804, writ denied, 13-1589 (La. 1/27/14), 130 So. 3d 957. However, it is unsettled whether the burden of proof as to a claim of self-defense in a non-homicide situation is: (1) upon the defendant to establish by a preponderance of the evidence that he acted in self-defense; or (2) upon the State to establish beyond a reasonable doubt that the defendant did not act in self-defense. See State v. Fluker, 618 So. 2d 459, 463 (La. App. 4th Cir.1993) (the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self- defense); State v. Wischer, 04-325, pp. 8-9 (La. App. 4 Cir. 9/22/04), 885 So. 2d 602, 606-09 (the defendant has the burden of proving the affirmative defense of justification, i.e., self-defense, by a preponderance of the evidence).
11 impinge upon the fact finder’s discretion ‘only to the extent necessary to guarantee
the fundamental protection of due process of law.’” State v. Tate, 2001-1658, p. 6
(La. 5/20/03), 851 So. 2d 921, 929 (quoting State v. Mussall, 523 So. 2d 1305, 1310
(La.1988)).
Turning to the facts of this case, Sgt. Williams and Det. Aucoin testified at
trial that based on their investigation, which included the examination of the video
surveillance and still frame photographs, Defendant was one of the shooters on
January 17, 2017. Prior to his leave of absence from NOPD, Sgt. Williams located
the white Camero that was used to provide Defendant with an assault rifle, and he
identified the Camero as belonging to Defendant’s mother, Ms. Richardson. As Sgt.
Williams walked the jury through the video surveillance of the incident, the video
showed that Defendant was the initial aggressor as he initiated gunfire at the SUV.
Defendant maintains his argument of self-defense by utilizing Ms. Hood’s
testimony to insinuate that Mr. Wimberly and Mr. Mahoney were attempting a drive-
by shooting at the time of the incident and that he needed to protect himself. Ms.
Hood’s testimony revealed that she saw Mr. Wimberly and Mr. Mahoney circle the
block multiple times in the black SUV prior to the shooting and noted that she saw
a TEC-9 weapon, a different weapon from the assault rifle recovered from the SUV,
inside the SUV prior to the shooting. Ms. Hood’s testimony also revealed that Mr.
Wimberly and Mr. Mahoney were “hunting” prior to the shooting. Defendant asserts
that based on Mr. Wimberly and Mr. Mahoney’s actions leading up to the shooting,
12 it is more than apparent that the State failed to prove beyond a reasonable doubt that
Defendant was not acting in self-defense.
However, both Sgt. Williams and Det. Aucoin testified that the idea of Mr.
Wimberly and Mr. Mahoney possibly attempting to commit a drive-by at the time
of the shooting was unreasonable. Sgt. Williams and Det. Aucoin testified that at the
time of the shooting, the windows of the SUV were rolled up. Sgt. Williams stated
that in the course of doing his job, he has never seen a drive-by shooting where the
perpetrator left his or her windows up. He also stated that a shooter would not want
to commit a drive-by shooting with the windows up because of the possibility of
getting struck by shards of glass popping back in his or her direction. Additionally,
shooting through glass decreases the shooter’s chances of hitting the intended target
because the bullets will be thrown off by the glass.
Det. Aucoin testified that in course of his investigation, he did not find
anything in the video surveillance that showed that Mr. Wimberly and Mr. Mahoney
were attempting to commit a drive-by shooting or any other crime. Moreover, Det.
Aucoin testified that based on the angle of the video surveillance, there were no shots
fired from the SUV to the outside of the vehicle; rather, the only shots fired were
from the outside of the vehicle into the SUV. Kenneth Leary (hereafter “Mr. Leary”),
a firearms examiner for the NOPD and a ballistics expert, testified that it would not
make any rational sense for someone to shoot an assault rifle, such as the one
recovered from the SUV, out of a closed vehicle window. He further testified that
in his decades of experience, he did not recall ever being involved with a case, as an
13 expert nor as a police officer, in which someone attempted to shoot out of a vehicle
with the windows rolled up.
After a review of the evidence before this Court, we find that the jury made
reasonable credibility determinations in favor of the State and rationally rejected
Defendant’s assertion of self-defense. The record reveals sufficient evidence to
conclude that any rational trier of fact could have found that the State proved beyond
a reasonable doubt all the elements of second degree murder and attempted second
degree murder. Accordingly, we conclude that this assignment of error, regarding
the second degree murder and attempted second degree murder convictions, is
without merit. Motion for New Trial
Defendant contends that the guilty verdicts of second degree murder and
attempted second degree murder are contrary to the law and evidence and that the
district court therefore erred in denying his motion for new trial. Because the
evidence was sufficient to prove beyond a reasonable doubt that Defendant
committed second degree murder and attempted second degree murder, we find that
the district court did not err in denying Defendant’s motion for new trial as it relates
to his convictions for second degree murder and attempted second degree murder.
Obstruction of Justice
Defendant argues that insufficient evidence exists to convict him of
obstruction of justice because the State cannot definitively prove that he removed
the firearm from the crime scene. La. R.S. 14:130.1(A)(1)(a) pertinently defines
obstruction of justice:
14 A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as described in this Section:
(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or U.S. law enforcement officers.
“Specific intent” is the state of mind that exists when circumstances indicate the
offender actively desired prescribed criminal consequences to follow his act. La.
R.S. 14:10(1). “Specific intent [to commit obstruction of justice] need not be proven
as fact but may be inferred from the circumstances of the transaction and the actions
of defendant.” State v. Harvey, 2021-0730, p. 10 (La. App. 4 Cir. 5/25/22), 345 So.
3d 1043, 1050, writ denied, 2022-00953 (La. 9/20/22), 346 So. 3d 803 (citing State
v. Everett, 2011-0714, p. 14 (La. App. 4 Cir. 6/13/22), 96 So. 3d 605, 619).
Under La. R.S. 14:130.1(A)(1), obstruction of justice is a specific intent
crime. To support a conviction, the State must prove more than the mere removal of
evidence from a crime scene; the State must also prove that such removal was done
with “the specific intent of distorting the results of any criminal investigation or
proceeding that may reasonably prove relevant to a criminal investigation or
proceeding.” La. R.S. 14:130.1(A)(1).
Defendant asserts that his conviction for obstruction of justice is purely
circumstantial and does not exclude every reasonable hypothesis of innocence. La.
R.S. 15:438 provides that “[t]he rule as to circumstantial evidence is: assuming every
fact to be proved that the evidence tends to prove, in order to convict, it must exclude
15 every reasonable hypothesis of innocence.” In State v. Dorsey, 2020-0029, p. 17 (La.
App. 4 Cir. 12/9/20), 312 So. 3d 652, 663, writ denied, 2021-00055 (La. 4/20/21),
313 So. 3d 1255, this Court stated:
When reviewing the sufficiency of the evidence of a conviction based on circumstantial evidence, the appellate court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the reviewing court must determine whether the “alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson.
In the case sub judice, the State maintains that the evidence was sufficient to
convict Defendant of obstruction of justice because there was ample evidence for
the jury to conclude that he fled the scene with the assault rifle he used to shoot Mr.
Wimberly and Mr. Mahoney. Video surveillance shows him fleeing the scene, yet
there is no footage of Defendant leaving the rifle at the scene. Sgt. Williams testified
that the NOPD crime lab conducted a search of the crime scene, and Defendant’s
rifle was never recovered. Based on these circumstances, the State argues that a
rational juror could infer that Defendant took his rifle with him when he left the
crime scene.
However, assuming the State established that Defendant fled the crime scene
with his assault rifle, this evidence is not sufficient to prove beyond a reasonable
doubt that he possessed the specific intent to distort the police investigation. The
hypothesis that Defendant had the specific intent to distort the results of the police
investigation when he left the crime scene is contradicted by the fact that he left
behind shell casings (instead of collecting the shell casings ejected from his rifle),
video surveillance (instead of destroying the video surveillance that documented his
presence in the neighborhood shooting at the SUV), and witnesses (instead of
16 harming the witnesses that were outside on the street at the time of the shooting
incident). From this evidence, a rational juror could have inferred that, in taking the
firearm with him, Defendant gave no thought to interfering with the results of a
criminal investigation or proceeding. Accordingly, the evidence is insufficient to
support Defendant’s conviction for obstruction of justice, and we vacate Defendant’s
conviction for obstruction of justice.
Assignments of Error Numbers Three, Four, and Nine
Excessive Sentence
In his assignments of error numbers three, four, and nine, Defendant maintains
that the imposition of life imprisonment and fifty years sentences without the benefit
of parole, probation or suspension of sentence for second degree murder and
attempted second degree murder and that the imposition of the maximum forty year
sentence for obstruction of justice are unconstitutionally excessive and unduly harsh,
respectively. Defendant argues that the evidence does not support the imposition of
the sentences. As such, he argues that the trial court erred in denying his motion to
reconsider sentence. This Court, having vacated Defendant’s obstruction of justice
conviction, renders assignment of error number nine moot. However, this Court will
review Defendant’s assigned error of excessive sentences as it relates to his
convictions for second degree murder and attempted second degree murder.
Under the Eighth Amendment of the United States Constitution and Article I,
§20 of the Louisiana Constitution, the imposition of excessive and cruel punishments
are prohibited. State v. Wilson, 2014-1267, p. 23 (La. App. 4 Cir. 4/29/15), 165 So.
3d 1150, 1165. “The excessiveness of a sentence is a question of law, and a
reviewing court will not set aside a sentence [for excessiveness] absent a manifest
abuse of discretion by the trial [judge].” State v. Alridge, 2017-0231, p. 39 (La. App.
17 4 Cir. 5/23/18), 249 So. 3d 260, 288, writ denied, 2018-1046 (La. 1/8/19), 259 So.
3d 1021. “The trial judge is afforded wide discretion in determining sentences, and
the court of appeal will not set aside a sentence for excessiveness if the record
supports the sentence imposed.” State v. Bradley, 2018-0734, p. 8 (La. App. 4 Cir.
5/15/19), 272 So. 3d 94, 99-100 (quoting State v. Williams, 2015-0866, pp. 12-13
(La. App. 4 Cir. 1/20/16), 186 So. 3d 242, 250); see also La. C.Cr.P. art. 881.4(D).
Although a sentence is within the applicable statutory range, a sentence may be
deemed unconstitutionally excessive if the reviewing court determines that the
sentence does not serve to complete the acceptable goals of punishment, constitutes
purposeful imposition of pain and suffering, and is disproportionate to the severity
of the offense committed. See State v. Kennon, 2019-00998, p. 10 (La. 9/1/20), 340
So. 3d 881, 888 (citing State v. Dorthey, 623 So.2d 1276 (La.1993); State v.
Johnson, 709 So.2d 672 (La. 1998)). Therefore, “[t]he relevant question is whether
the trial court abused its broad sentencing discretion, not whether another sentence
might have been more appropriate.” State v. Mathieu, 2018-964, p. 4 (La. App. 3
Cir. 11/6/19), 283 So. 3d 1041, 1045 (citing State v. Cook, 95-2784 (La. 5/31/96),
674 So. 2d 957). We will review this matter to determine whether the sentences
imposed are grossly disproportionate to the severity of the crime committed and
whether the trial court abused its vast discretion in imposing Defendant's sentences.
When reviewing a claim that a sentence is excessive, our Court must
determine whether the trial court adequately complied with the statutory guidelines
in La. C.Cr.P. art. 894.1 and whether the facts of the case warrant the sentence
imposed. State v. Rouser, 2014-0613, p. 18 (La. App. 4 Cir. 1/7/15), 158 So. 3d 860,
872 (citation omitted). “If adequate compliance with La. C.Cr.P. art. 894.1 is found,
the reviewing court must determine whether the sentence imposed is too severe in
18 light of the particular defendant and the circumstances of the case. . . .” Id., 2014-
0613, p. 18, 158 So. 3d at 872-73.
An examination of the record reflects that the trial court complied with the
sentencing guidelines in La. C.Cr.P. art. 894.1 regarding Defendant’s sentencing for
second degree murder and attempted second degree murder. Both the State and
Defendant were afforded the opportunity to be heard regarding his sentences, yet
neither party offered any evidence nor witness testimony. Additionally, the trial
court took into account mitigating and aggravating circumstances into sentencing.
While the trial court noted Defendant’s age at the time of the shooting, the trial court
also noted that he was in violation of a bond for a second class felony as he was not
supposed to be in Orleans Parish but for limited purposes and only when
accompanied by his mother. Moreover, the trial court noted the many pretrial
conferences and instances throughout the course of trial in which Defendant
consistently refused a plea deal to manslaughter.
As it relates to his sentence for the second degree murder conviction,
Defendant argues that the trial court erred in imposing his life sentence without the
benefit of parole because he was seventeen years old when the shooting incident
occurred, and he was indicted on September 14, 2017. For offenders convicted of
second degree murder in Louisiana, La. R.S. 14:30.1 mandates a sentence of life
imprisonment at hard labor without benefit of parole, probation, or suspension of
sentence. In Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.Ed. 2d 407
(2012), the United States Supreme Court held that a State’s sentencing scheme that
mandates life imprisonment without parole for offenders under the age of eighteen
at the time they committed a homicide offense violates the Eighth Amendment
prohibition against cruel and unusual punishment. State v. Crosby, 54,539 (La. App.
19 2 Cir. 6/29/22), 342 So. 3d 458, 464, writ not considered, 2022-01645 (La. 1/11/23),
352 So. 3d 566. In 2013, in response to Miller v. Alabama, the Louisiana Legislature
enacted La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4, providing procedures for
determining parole eligibility for juvenile offenders.
La. R.S. 15:574.4(F) provides, in pertinent part:
Notwithstanding any provision of law to the contrary and except as provided in Subsection G of this Section, any person serving a sentence of life imprisonment for a conviction of second degree murder (R.S. 14:30.1) who was under the age of eighteen years at the time of the commission of the offense and whose indictment for the offense is on or after August 1, 2017, shall be eligible for parole consideration if [certain] conditions have been met. . .
La. R.S.15:574.4(F) provides for automatic parole eligibility for juvenile offenders
indicted for second degree murder on or after August 1, 2017. We find that the trial
court erred in imposing Defendant’s sentence of life imprisonment without benefit
of parole for second degree murder because this case clearly falls within the scope
of La. R.S. 15:574.4(F), which mandates that juveniles convicted of second degree
murder after August 1, 2017, be eligible for parole consideration upon meeting the
criteria enumerated in the statute. Defendant was seventeen years old when he
committed the offense of second degree murder, and he was indicted for the crime
after August 1, 2017. Accordingly, Defendant is automatically eligible for parole
consideration pursuant to the terms of La. R.S. 15:574.4(F).
“An illegal sentence may be corrected at any time by the court that imposed
the sentence or by an appellate court on review.” La. C.Cr.P. art. 882; see also State
v. Crosby, 54,539 (La. App. 2 Cir. 6/29/22), 342 So. 3d 458, 465 (declining to vacate
and remand for resentencing and instead amending sentence to life imprisonment
with the benefit of parole where juvenile was illegally sentenced to life
imprisonment without benefit of parole after pleading guilty to second degree
20 murder). Defendant’s sentence of life imprisonment without benefit of parole is an
illegal sentence as it is in clear violation of the requirements La. R.S. 15:574.4(F)
and Defendant’s Eighth Amendment right against cruel and unusual punishment as
provided in Miller. Therefore, this Court does not vacate Defendant’s sentence and
remand for resentencing; rather, we amend Defendant’s sentence for second degree
murder to reflect parole eligibility in line with La. R.S. 15:574.4(F).
As it relates to the attempted second degree murder conviction, the trial court
considered the seriousness of the offense and the danger Defendant posed to the
public. The trial court further noted the fact that an innocent bystander was injured
when the SUV crashed as a result of the shooting. Despite considering Defendant’s
age, the trial court determined that the video surveillance showing this indiscriminate
shooting at the SUV warranted the maximum sentence for the attempted second
degree murder conviction. We find adequate evidence that the trial court complied
with the statutory guidelines in La. C.Cr.P. art. 894.1 and find that the trial court did
not abuse its discretion in sentencing Defendant to fifty years without the benefit of
parole, probation or suspension of sentence for the attempted second degree murder
conviction.
Assignment of Error Number Six
Improper Jury Venire
In his assignment of error number six, Defendant argues that he was
convicted before an improperly constituted jury in violation of La. C.Cr.P. art.
401(A)(5), which provides:
In order to qualify to serve as a juror, a person shall meet all of the following requirements:
21 5. Not be under indictment, incarcerated under an order of imprisonment, or on probation or parole for a felony offense within the five-year period immediately preceding the person's jury service.
Defendant relies on State v. Preston, 2023-0039 (La. App. 4 Cir. 1/19/23)
(unpublished decision) for his contention that the Orleans Parish Jury Commissioner
failed to update jury qualifications on jury summons once La. C.Cr.P. art. 401(A)(5)
was amended to allow prospective jurors with felony convictions older than five
years. However, Preston is procedurally distinguishable from the case sub judice.
In Preston, the defendant timely filed a motion to quash the jury venire, which the
Defendant failed to do in this matter. At no point during trial was an objection lodged
about the improper jury venire composition. Therefore, Defendant is barred from
raising the issue for the first time on appeal. See La. C.Cr.P. art. 841(A); see
also State v. Armentor, 2019-1267, p. 12 (La. App. 1 Cir. 7/31/20), 309 So. 3d 762,
771-72, writ denied, 2020-01032 (La. 2/17/21), 310 So.3d 1149 (citation omitted)
(“[T]he defendant did not file such a pretrial motion to quash and did not raise the
issue before voir dire began...Consequently, the defendant’s claim of a defective
jury venire is not properly before this court. . . .”). Accordingly, this assignment of
error lacks merit.
Assignment of Error Number Seven
Right to Testify
In his assignment of error number seven, Defendant asserts that he was denied
his constitutional right to testify. But, pursuant to the applicable jurisprudence, we
find that the Defendant fails to establish that his right to testify was violated.
In State v. Hampton, 2000-0522 (La. 3/22/02), 818 So. 2d 720, on reh'g in part
(June 7, 2002), the Louisiana Supreme Court adopted two criteria for determining
22 whether a defendant’s right to testify was violated or waived by his silence at trial,
stating as follows:
(1) absent extraordinary circumstances that should alert the trial court to conflict between attorney and client, the court should not inquire into a criminal defendant’s right to testify. The court should assume, that a criminal defendant, by not ‘attempting to take the stand,’ has knowingly and voluntarily waived his right;
(2) the court must consider whether the petitioner has waived his right to testify ... [The defendant can only] rebut that presumption ... by showing that his attorney caused him to forego his right to testify [(a) by alleging specific facts, including an affidavit by the defendant's trial counsel] from which the court could reasonably find that trial counsel ‘told [the defendant] that he was legally forbidden to testify or in some similar way compelled him to remain silent ... ‘[(b) by demonstrating from the record] that those ‘specific factual allegations would be credible...’
Hampton, 00-0522, p. 14, 818 So. 2d at 729-30 (quoting Passos-Paternina v. United
States, 12 F.Supp.2d 231, 239-40 (D.P.R. 1998)).
In the case sub judice, Defendant’s argument relies entirely on his counsel’s
statement during the motion for new trial that counsel refused to allow Defendant to
testify although he expressed a desire to testify. However, Defendant fails to allege
or show any extraordinary circumstances that should have alerted the trial court to a
conflict between himself and his trial counsel that would have prompted the trial
court to inquire into Defendant’s right to testify. In ruling on the motion for new
trial, the trial judge stated that many recesses were allowed for Defendant to confer
with defense counsel, and that there was no indication of a contentious disagreement
or anything that showed to the Court that it should develop a further inquiry.
Moreover, on appeal, Defendant fails to rebut the presumption that he waived his
right to testify by alleging any specific facts from the record demonstrating that his
trial counsel prohibited him from testifying nor has he presented an affidavit from
trial counsel demonstrating that counsel informed Defendant that he was legally
23 forbidden to testify or in some similar way compelled him to remain silent. Thus,
Defendant has failed to support his claim that his right to testify was violated.
Assignment of Error Number Eight
Other Crimes Evidence
In his assignment of error number eight, Defendant asserts that the trial court
erred in the admission of his prior criminal prosecution in response to an opening
statement at trial. A trial court’s ruling on the admissibility of other crimes evidence
will not be overturned absent an abuse of discretion. State v. Taylor, 2016-1124, p.
18 (La. 12/1/16), 217 So. 3d 283, 296. The introduction of other crimes evidence is
governed by La. C.E. art. 404(B)(1), which provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
The Louisiana Supreme Court cautioned in Taylor “even when the other crimes
evidence is offered for a purpose allowed under Article 404(B)(1), the evidence
must have substantial relevance independent from showing defendant’s general
criminal character and thus is not admissible unless it tends to prove a material fact
at issue or to rebut a defendant’s defense.” Taylor, 2016-1124, p. 12, 217 So. 3d at
292. In offering grounds for the admissibility of other crimes evidence, “the state
cannot simply rely on a boilerplate recitation” from La. C.E. art. 404(B)(1). Id.
24 In ruling on the admissibility of the other crimes evidence, the district court
must determine the independent relevancy of that evidence to the charges against the
defendant. “The district court must also balance the probative value of the other
crimes, wrongs, or acts evidence against its prejudicial effects before the evidence
can be admitted.” Taylor, 16-1124, p. 12, 217 So.3d at 292 (citing State v.
Henderson, 12-2422 (La. 1/4/13), 107 So.3d 566, 567-68).
During opening statement, defense counsel told the jury that Defendant did
not seek to kill or harm Mr. Wimberly and Mr. Mahoney; rather, Mr. Wimberly and
Mr. Mahoney were searching for the Defendant as “prey,” and Defendant “was
legally allowed to be exactly where he was” when the shooting occurred. Through
the testimony of Ms. Richardson, the trial court allowed the State to introduce
evidence of a court order, from July 22, 2016, that was in place at the time of the
shooting, which prohibited Defendant’s presence in Orleans Parish without the
supervision of his mother.
The State presented the court order to the jury in order to refute defense
counsel’s opening statement, specifically the statement that Defendant “was legally
allowed to be exactly where he was” when the shooting occurred. Furthermore, even
in the absence of the defense’s assertion in its opening statement, the fact of the order
was independently admissible to rebut the claim of self-defense. Based on the record,
we find no abuse of the trial court’s discretion in allowing evidence of the prior court
order before the jury. This assignment of error is without merit.
CONCLUSION
25 For the foregoing reasons, we affirm the Defendant’s convictions for second
degree murder and attempted second degree murder; vacate Defendant’s conviction
and sentence for obstruction of justice; affirm Defendant’s sentence for attempted
second degree murder; and affirm as amended Defendant’s sentence for second
degree murder to reflect parole eligibility in line with La. R.S. 15:574.4(F).
CONVICTIONS FOR SECOND DEGREE MURDER AND ATTEMPTED SECOND DEGREE MURDER AFFIRMED; CONVICTION FOR OBSTRUCTION OF JUSTICE VACATED; SENTENCE FOR SECOND DEGREE MURDER AFFIRMED AS AMENDED; SENTENCE FOR ATTEMPTED SECOND DEGREE MURDER AFFIRMED.