NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2020 KA 1337
VERSUS
JERRELL ALEXANDER
Judgment Rendered: OCT 1 8 2021
On Appeal from the 17th Judicial District Court In and for the Parish of Lafourche State of Louisiana Trial Court No. 583000
Honorable F. Hugh Larose, Judge Presiding
MMEM
Cynthia K. Meyer Attorney for Defendant -Appellant, New Orleans, LA Jerrell Alexander
Kristine M. Russell Attorneys for Appellee, District Attorney State of Louisiana Shaun -Philip George Assistant District Attorney Thibodaux, LA
BEFORE: WHIPPLE, C. J., PENZATO, AND HESTER, JJ. HESTER, I
The defendant, Jerrell Alexander, was charged by grand jury indictment with
two counts of second degree murder, violations of La. R. S. 14: 30. 1, and pled not
guilty on both counts. Following a jury trial, he was found guilty as charged by
unanimous verdicts on both counts. He was sentenced to consecutive terms of life
imprisonment at hard labor without benefit of probation, parole, or suspension of
sentence. He moved for reconsideration of sentence, but the motion was denied. He
also filed an untimely motion for new trial which was denied. See La. Code Crim.
P. art. 853( A). The defendant now appeals raising four assignments of error. For
the following reasons, we affirm the convictions and sentences.
FACTS
On December 15, 2018, Trevor Smith was playing pool with the victims,
Jeremiah Ballard and Marcel Turner, in the garage of a home on Market Street in
Lafourche Parish. During the early afternoon, the defendant and his brother Kerry
Razor" Alexander entered the garage wearing camouflage masks and waving
handguns. Smith was familiar with the defendant and Kerry Alexander because he
had previously seen them when he went to buy sweets and drinks from their mother,
who sold those items two streets over from where Smith lived. Smith was able to
see the faces of the defendant and Kerry Alexander through openings in the masks.
Smith saw Kerry Alexander " cock[] ... back [ his gun]" and heard him say, " Give it
up." Smith then ran from the garage. As he ran through the house, he heard " a little
bit more than five" shots fired.
Ballard and Turner were killed in the gunfire. Ballard suffered a potentially
fatal wound to the left side of his chest, a fatal wound to his back, and a wound to
his right arm. Turner suffered a fatal wound to the left side of his back.
FA The defendant testified at trial. He had prior convictions for armed robbery
and attempted second degree murder. He denied going to the scene of the crime.
He implicated Kerry Alexander and Justin Boudreaux in the crimes.
RIGHT TO FAIR TRIAL
In assignment of error number 1, the defendant contends two trial court rulings
violated his constitutional right to a fair trial. First, the defendant argues the trial
court erred in refusing to allow him to cross- examine Trevor Smith with a photo
line-up prepared by defense counsel. Second, the defendant argues the trial court
erred in accepting St. Tammany Parish Crime Laboratory Lieutenant Jodie Clements
as an expert in gunshot residue analysis.
DEFENSE PHOTO LINE- UP
A criminal defendant' s right to present a defense is guaranteed by the Sixth
Amendment of the United States Constitution and Article I, § 16 of the Louisiana
Constitution. Evidentiary rules may not supersede the fundamental right to present
a defense. See U.S. Const. amend. VI; La. Const. art. I, § 16; State v. Van Winkle,
94- 0947 ( La. 6/ 30/ 95), 658 So. 2d 198, 202. However, constitutional guarantees do
not assure the defendant the right to the admissibility of any type of evidence, only
that which is deemed trustworthy and has probative value can be admitted. See State
v. Governor, 331 So.2d 443, 449 ( La. 1976). Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the jury, or by considerations of undue
delay or waste of time. La. Code Evid. art. 403. Ultimately, questions of relevancy
and admissibility of evidence are discretion calls for the district court. Such
determinations regarding relevancy and admissibility should not be overturned
absent a clear abuse of discretion. See State v. Mosby, 595 So. 2d 1135, 1139 ( La.
1992); State v. Bridges, 2014- 0777 ( La. App. 1st Cir. 3/ 6/ 15), 2015 WL 9971629
4 ( unpublished), writ denied, 2015- 0675 ( La. 2/ 26/ 16), 187 So. 3d 467.
3 During the cross- examination of Smith, defense counsel asked whether Smith
would be able to identify the parties in the shooting if presented with another
photographic lineup. Smith answered affirmatively. Thereafter, at an on -the -record
bench conference, the trial court stated, "[ n] ot in my courtroom." The trial court
asked defense counsel to provide a factual basis and explain the relevancy of
showing Smith a new lineup. Counsel replied, "[ t]he relevance is that this witness
has testified that he chose two people on the initial lineup. He also testified that he
only saw the eyes ...." The trial court interrupted defense counsel, stating "[ o] nly
one is relevant. [ It] [ i] s the one that is used to identify. You cannot impeach his
testimony by attempting to fabricate another lineup. It' s not the same line. It' s not
under the same circumstances and not at the same time. I' m not allowing it unless
you got a case that says to the contrary." Defense counsel responded that he did not
have any such case. The trial court also asked defense counsel if he had a statute or
a] nything" that would allow admission of the new lineup, but defense counsel
answered negatively.
The new lineup was prepared by the " staff' of defense counsel. Defense
counsel described the new lineup as " just what the witness saw. Not the whole facial
features. Just the cut out of the eyes[.]" The trial court found that "[ t] his is an
absolute recreation without any control, without being able to subject it to any
testing. It was completely designed by [ defense counsel' s] staff on some kind of
Photoshop deal and that has no relevancy to the hearing today, and I will absolutely
not allow it." Defense counsel objected to the ruling and was given permission to
proffer the new lineup.
There was no clear abuse of discretion in the ruling excluding the new lineup.
The probative value, if any, of the new lineup was substantially outweighed by the
danger of unfair prejudice, confusion of the issues, misleading the jury, and by
considerations of undue delay and waste of time. Defense counsel claimed the new
4 lineup had probative value because it was "[ j]ust the cut out of the eyes" and was
just what the witness saw." Smith, however, testified that although the gunmen
wore masks under their eyes, he "[ could] see through [ the masks]" because the
masks had " openings." He indicated he could see identifying features through the
masks. He also indicated he had seen the defendant " several times" before the
incident and identified him as one of the gunmen based on his body build, and " how
he acts, mannerisms." See State v. Duncan, 99- 2615 ( La. 10/ 16/ 01), 802 So. 2d
533, 556, cert. denied, 536 U.S. 907, 122 S. Ct. 2362, 153 L.Ed.2d 183 ("[ In contrast
to true illustrations,] replications of an original event ... are admissible only if a
similarity requirement is satisfied. That is, the replication must be conducted under
substantially similar circumstances.").
This portion of this assignment of error is without merit.
QUALIFICATION OF EXPERT
Louisiana Code of Evidence article 702 addresses the admissibility of expert
testimony and, in pertinent part, provides:
A. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
1) The expert' s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
2) The testimony is based on sufficient facts or data;
3) The testimony is the product of reliable principles and methods; and
4) The expert has reliably applied the principles and methods to the facts of the case.
A determination regarding the competency of a witness is a question of fact.
It is well settled that a trial judge is vested with wide discretion in determining
questions of fact. Therefore, rulings on the qualifications of an expert witness will
not be disturbed on appeal absent manifest error. State v. Young, 2009- 1177 ( La.
5 4/ 5/ 10), 35 So. 3d 1042, 1046, cert. denied, 562 U.S. 1044, 131 S. Ct. 597, 178
L.Ed.2d 434 ( 2010).
The State offered Lieutenant Clements as an expert in the field of primer
gunshot residue testing. She earned a bachelor' s degree in forensic chemistry from
Loyola University and a master' s degree in criminal justice administration. At the
time of the trial, she had been with the St. Tammany Parish Sheriff' s Office Crime
Lab for six years and was assistant lab director, the quality manager, and a primer
gunshot residue analyst.
In regard to primer gunshot residue, Lieutenant Clements had been certified
by the St. Tammany Parish Sheriff' s Office Crime Lab to analyze gunshot residue
after completing an " intensive training program." The nine- month long training
program had knowledge- based components and practical exercises. Lieutenant
Clements worked under a field training officer in the program and had to pass a
competency test to complete the program. In order to pass the competency test,
Lieutenant Clements had to be 100% accurate when testing unknown samples
containing positives and negatives. During the training program, Lieutenant
Clements completed " twenty cases total [ of] partially observe[ d] and partially
supervise[ d] casework." Following the training program, Lieutenant Clements had
completed thirty cases for her agency.
Lieutenant Clements indicated she had completed her training program on
May 24, 2019, and had never previously been either offered or been qualified as an
expert in the field of primer gunshot residue testing. Defense counsel objected to
Lieutenant Clements being qualified as an expert " for the reasons that she' s never
testified before, never been certified before, and is — has not been doing this even a
year, yet." The trial court ruled, " based upon [ Lieutenant Clements' s] training, her
stated certification, and other things[,] that she is qualified in fact to give opinion
testimony as an expert in the gunshot residue analysis."
0 At trial, Lieutenant Clements testified she analyzed potential gunshot residue
in the instant case. She indicated primer gunshot residue is formed when a firing pin
hits the back of ammunition —the primer cap. There is then a small explosion in the
firearm and the particles that are in the primer are heated up and melded together.
Those particles then rapidly cool as they exit the firearm and fall to the surfaces or
people in the vicinity. Gunshot residue analysis looks for those particles, i.e.,
antimonium, barium, and lead, that have melded together. The analysis also looks
for the specific shape of the melding event.
In regard to the gunshot residue kit performed on the defendant, Lieutenant
Clements identified two gunshot residue particles taken from the back of his left
hand. In regard to the gunshot residue kit performed on Kerry Alexander, Lieutenant
Clements identified four gunshot residue particles. Lieutenant Clements indicated
that when less than four gunshot residue particles were identified in a sample, it was
considered to be of limited evidentiary value because "[ i] f you are an individual or
someone who fires a lot of firearms on a regular basis, it' s possible that you would
be a person that might have one particle on you in a typical collection. So at that
point to be perfectly clear about the importance of the number of particles on the
hand, we included that statement so those factors can be taken into account when
interpreting the results."
There was no manifest error in the trial court' s ruling. Lieutenant Clements
had scientific, technical, or other specialized knowledge that would help the jury in
understanding the evidence concerning gunshot residue and was qualified as an
expert by her knowledge, skill, experience, training, or education to testify thereto
in the form of an opinion or otherwise. Her testimony was based on sufficient facts
or data; was the product of reliable principles and methods; and she had reliably
applied the principles and methods to the case. See La. Code Evid. art. 702( A).
This portion of this assignment of error is also without merit.
7 JURY CHARGE
In assignment of error number 2, the defendant contends the trial court erred
in charging the jury as to the elements of the responsive verdict of manslaughter. He
argues the language regarding unauthorized entry of an inhabited dwelling was
neither pertinent to the case nor supported by the evidence because the victims and
the defendant grew up in the same neighborhood and the garage where the shooting
occurred was a gathering place for the victims and their friends.
Louisiana Revised Statutes 14: 31, in pertinent part, provides:
A. Manslaughter is:
2) A homicide committed, without any intent to cause death or great bodily harm.
a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30. 1, or of any intentional misdemeanor directly affecting the person[.]
The trial court charged the jury on manslaughter as follows:
Because a verdict of guilty of manslaughter is a responsive verdict in this case it is my duty to explain the law as it applies to manslaughter. Manslaughter is the killing of a human being when the
defendant has a specific intent to kill or inflict great bodily harm, but the killing is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.
Also manslaughter is the killing of a human being when the defendant is engaged in the commission or attempted commission of unauthorized entry of an inhabited dwelling even though there is no intent to kill. [ R.S.] 14: 62. 3( A) of our criminal code provides that unauthorized entry of an inhabited dwelling is the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.
Thus, in order to convict the defendant of a manslaughter, you must find under number one that the defendant killed Jeremiah Ballard and/ or Marcel Turner, and that the defendant had a specific intent to kill or inflict great bodily harm but that the killing was committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Or second, the defendant killed Jeremiah Ballard and/ or Marcel Turner whether or not he had an intent to kill and that the killing took place while the defendant was engaged in the commission of or attempted commission of unauthorized entry of an inhabited dwelling.
Prior to the charging of the jury, the defense objected to the latter part of the
manslaughter jury charge " which basically says any felony or misdemeanor is
committed and that person dies as long as it is not a felony enumerated in first-degree
murder or second- degree murder." The defense objected to the charge containing a
chosen crime." The defense argued, "[ i] f the Court is inclined to say no, I think
there should be a single crime chosen as in second- degree murder we' ve chosen
arm[ ed] robbery for ease of the jury and not confusion things like that."
The State responded:
Louisiana Code of Criminal Procedure] 814 does list the responsive verdicts. Manslaughter is one that is included. We are entitled to have the entire manslaughter verdict. If it be a person just charged with manslaughter, the State would pick the enumerated felony not listed in 30. 1, and we would charge him as such. Here the Court and the jury
has heard all the evidence and unauthorized entry of an inhabited dwelling certainly fits as the underlying felony should manslaughter become a responsive verdict and there is literally case law that says that is perfectly fine.
The trial court overruled the defense, objection, noting " by limiting it, it
actually puts a higher burden on the State and does not in any way lead the jury to
an inconcise [ sic] understanding of the law as it applies to the case."
There was no error. Initially, we note " arm[ ed] robbery" could not be used in
the jury charge concerning La. R.S. 14: 31( A)(2) ( a) because it is a felony enumerated
in La. R.S. 14: 30( A)( 1) and La. R.S. 14: 30. 1( A)(2). See La. R.S. 14: 31( A)( 2)( a)
a] ny felony not enumerated in Article 30 or 30. 1" ( emphasis added)). Further,
we are not persuaded by the argument that because the victims and the defendant
grew up in the same neighborhood, and the garage where the shooting occurred was
a gathering place for the victims and their friends, there could be no unauthorized
entry of an inhabited dwelling in this case. Whatever the relationship between the
L' victims and the defendant, there was nothing presented at trial to indicate the victims
authorized armed gunmen wearing masks to enter the garage to rob and/ or kill them.
The evidence in this case supported the manslaughter charge provided to the jury,
and thus, the trial court properly charged the jury on that offense. See La. Code
Crim. P. art. 802( 1) (" The court shall charge the jury: ( 1) [ a] s to the law applicable
to the case[.]")
This assignment of error is without merit.
UNCONSTITUTIONALLY EXCESSIVE SENTENCES
In assignment of error number 3, the defendant contends the consecutive life
sentences are excessive. He argues the convictions arose from a common scheme
that occurred over the span of a few minutes and La. Code Crim. P. art. 883 requires
that concurrent sentences must be imposed under these circumstances unless the trial
court expressly directs that the sentences are to be served consecutively. Relying on
State v. Cornejo-Garcia, 2011- 619 ( La. App. 5th Cir. 1/ 24/ 12), 90 So. 3d 458, 465,
defendant also argues that if a court elects to impose consecutive sentences for
crimes arising from a single course of conduct, it must articulate the reasons it feels
the sentence is necessary; however, the trial court gave no reasons for imposing
consecutive sentences.
Louisiana Constitution Article I, Section 20 prohibits the imposition of
excessive punishment. Although a sentence may be within statutory limits, it may
violate a defendant' s constitutional right against excessive punishment and is subject
to appellate review. Generally, a sentence is considered excessive if it is grossly
disproportionate to the severity of the crime or is nothing more than the needless
imposition of pain and suffering. A sentence is considered grossly disproportionate
if, when the crime and punishment are considered in light of the harm to society, it
is so disproportionate as to shock one' s sense ofjustice. A trial judge is given wide
discretion in the imposition of sentences within statutory limits, and the sentence
10 imposed should not be set aside as excessive in the absence of manifest abuse of
discretion. State v. Parker, 2013- 1050 ( La. App. 1st Cir. 2/ 20/ 14), 2014 WL
687992, * 2 ( unpublished), writ denied, 2014- 0631 ( La. 10/ 24/ 14), 151 So. 3d 601,
cert. denied, 575 U.S. 941, 135 S. Ct. 17141 191 L.Ed.2d 687 ( 2015); State v.
Harper, 2007- 0299 ( La. App. 1st Cir. 9/ 5/ 07), 970 So. 2d 592, 602, writ denied,
2007- 1921 ( La. 2/ 15/ 08), 976 So. 2d 173.
The Louisiana Code of Criminal Procedure sets forth items which must be
considered by the trial court before imposing sentence. La. Code Crim. P. art. 894. 1.
The trial court need not recite the entire checklist of Article 894. 1, but the record
must reflect that it adequately considered the criteria. In light of the criteria
expressed by Article 894. 1, a review for individual excessiveness should consider
the circumstances of the crime and the trial court' s stated reasons and factual basis
for its sentencing decision. Remand for full compliance with Article 894. 1 is
unnecessary when a sufficient factual basis for the sentence is shown. Parker, 2014
WL 687992 at * 2; Harper, 970 So. 3d at 602.
If the defendant is convicted of two or more offenses based on the same act
or transaction, or constituting parts of a common scheme or plan, the terms of
imprisonment shall be served concurrently unless the court expressly directs that
some or all be served consecutively. La. Code Crim. P. art. 883. Thus, La. Code
Crim. P. art. 883 specifically excludes from its scope sentences which the court
expressly directs to be served consecutively. Furthermore, although the imposition
of consecutive sentences requires particular justification when the crimes arise from
a single course of conduct, consecutive sentences are not necessarily excessive.
Parker, 2014 WL 687992 at * 2.
The pertinent question on appellate review is whether the trial court abused
its broad sentencing discretion, not whether another sentence might have been more
appropriate. A trial court abuses its discretion only when it contravenes the
11 prohibition of excessive punishment in La. Const. art. I, § 20, i. e., when it imposes
punishment disproportionate to the offense. In making that determination, we must
consider the punishment and the crime in light of the harm to society caused by its
commission and determine whether the penalty is so disproportionate to the crime
committed as to shock our sense of justice. State v. Colvin, 2011- 1040 ( La.
3/ 13/ 12), 85 So.3d 663, 667- 68 ( per curiam), cert. denied, 568 U.S. 889, 133 S. Ct.
274, 184 L.Ed.2d 162 ( 2012). Consecutive sentences are justified when the offender
poses an unusual risk to public safety. State v. Barnett, 96- 2050 ( La. App. 1 st Cir.
9/ 23/ 97), 700 So. 2d 1005, 1013.
Whoever commits the crime of second degree murder shall be punished by
life imprisonment at hard labor without benefit of parole, probation, or suspension
of sentence. La. R.S. 14: 30. 1( B). In this case, the trial court imposed consecutive
sentences of life imprisonment at hard labor without benefit of probation, parole, or
suspension of sentence and expressly directed that the sentences in this matter were
to be served consecutively. Thus, they were beyond the scope of La. Code Crim. P.
art. 883. See Parker, 2014 WL 687992 at * 2.
In regard to the defendant' s claim that under Cornejo- Garcia, 90 So. 3d at
465, " if the trial court elects to impose consecutive sentences for crimes arising from
a single course of conduct, it must articulate the reasons it feels the sentence is
necessary[,]" we note the next sentence in that decision states, "[ t]he failure to
articulate specific reasons for imposing consecutive sentences does not, however,
require remand if the record provides an adequate factual basis to support the
consecutive sentences." At sentencing, the trial court stated, "[ i]n preparing for
today' s sentencing, I reviewed the facts of Article 894. 1( B)." Additionally, the
record provides a sufficient factual basis for consecutive sentences in this matter.
A thorough review of the record reveals the trial court adequately considered
the criteria of Article 894. 1 and did not manifestly abuse its broad sentencing
12 discretion in imposing the sentences herein. See La. Code Crim. P. art. 894. 1( A)( 1-
3), ( B)( 1), ( B)( 5), ( B)( 6), ( B)( 9- 12). Additionally, the sentences imposed were not
grossly disproportionate to the severity of the offenses and thus, were not
unconstitutionally excessive.
Consecutive sentences were also warranted in this case because the defendant
poses an unusual risk to public safety. See Barnett, 700 So -2d at 1013. The
defendant, a repeat offender with convictions for armed robbery and attempted
second degree murder, was at least a principal, if not the actual gunman, in the brutal
killing of two victims in broad daylight.
DENIAL OF MOTION FOR NEW TRIAL
In assignment of error number 4, the defendant contends the trial court erred
in denying the motion for new trial. He argues his right to present a defense was
hampered through no fault of his own when a subpoenaed witness failed to appear
and a witness who was subject to recall was not available during the defendant' s
case.
During trial, defense counsel stated he had intended to recall Deputy
Christopher Ryan Simmons, who had testified during the State' s case -in -chief.
Defense counsel claimed the State had indicated that Deputy Simmons would be
available by phone call. However, defense counsel indicated that Deputy Simmons
was unavailable and could not be called by the defense. The State responded that
the trial court previously stated that Deputy Simmons was free to go, but the State
added that it could get ahold of him if need be. Nevertheless, the State indicated it
had called Deputy Simmons' s supervisor and learned he was on a family vacation
in Houston.
The trial court asked defense counsel if he had issued a subpoena for Deputy
Simmons, and defense counsel answered negatively. The trial court stated that the
13 court reporter had listened to the tape made when Deputy Simmons testified. At the
conclusion of Deputy Simmons' testimony, the State commented that he could be
reached by phone; the defense made no comment concerning whether or not it
desired to call Deputy Simmons; and the trial court told him he was free to go. The
trial court ruled, "[ a] t that point in time, the witness was obviously not cautioned
about being subject to recall and for the record, it is what it is."
Additionally, defense counsel advised the trial court that he had subpoenaed
Chase Poindexter and domiciliary service was made on him, but he was not present
during trial. Defense counsel stated, "[ t]herefore, the Court advised that they wish I
not call him in the presence of the jury ... in my case." The trial court stated,
r] ight." Defense counsel stated he was now calling Deputy Simmons and
Poindexter. The trial court stated its only recourse in regard to Poindexter was to
issue a notice to him to appear to face contempt, and asked defense counsel if he
wanted the trial court to issue such a notice. However, defense counsel stated he
was " not requesting a contempt issue."
Following the conviction, the defense moved for a new trial on grounds that
the verdicts finding him guilty of two counts of second degree murder would result
in an injustice if permitted to stand as they were contrary to the law and the evidence:
1) because there was insufficient evidence to support the convictions; and ( 2)
because there were witnesses who were subpoenaed and unavailable to be called.
At the hearing on the motion defense counsel stated, "[ w] e just don' t simply
believe there was enough evidence based on the testimony that was given to present
that [ the defendant] was the person who committed the offense." Then defense
argued that its " most important point" was that it had been deprived of the right to
call back Deputy Simmons who was the first responding deputy to the scene of the
incident after the shooting took place. The defense reurged the objection it made at
trial concerning the unavailability of Deputy Simmons, arguing:
14 That, you know, that could have swayed as there were other people in the area and during the trial it was learned there were more people leaving the scene or the area of the scene at the time and we want to re- question that witness about that and he was unavailable. So for that reason, we would ask that a new trial be granted to allow [ the defendant] to present his whole case.
The State responded that Deputy Simmons was the first law enforcement
officer it called and defense counsel " very aggressively cross- examined him and
elicited all the testimony that he needed." The State argued the defense was not
prejudiced by the absence of Deputy Simmons for recall because " there was nothing
new or anything that happened throughout the trial that would have altered his
testimony." The State pointed out it had provided defense counsel with open -file
discovery and everything presented throughout the trial was consistent with that
discovery.
The trial court denied the motion for new trial. The trial court noted the matter
had been tried in front of a jury which had the opportunity to listen to numerous
witnesses including Deputy Simmons. The court found, while Deputy Simmons was
not available for recall by the defendant, he had testified earlier. The trial court also
found, "[ Deputy Simmons] had been cross- examined by the defendant' s attorney
and there was no showing at that time, nor now that there was any additional
information to be obtained from the testimony of [Deputy] Simmons."
The motion for a new trial is based on the supposition that injustice has been
done the defendant, and, unless such injustice is shown to have been the case, the
motion shall be denied, no matter upon what allegations it is grounded. La. Code
Crim. P. art. 851( A). The court, on motion of the defendant, shall grant a new trial
whenever the court' s ruling on an objection made during the proceedings, shows
prejudicial error. See La. Code Crim. P. art. 851( B)( 2). The denial of a motion for
a new trial is not subject to appellate or supervisory review of the supreme court,
except for error of law. See La. Code Crim. P. art. 858. Whether to grant or deny a
15 motion for new trial rests within the sound discretion of the trial court, and that
decision will not be disturbed on appeal absent a clear abuse of discretion. State v.
Eason, 2019- 0614 ( La. App. 1st Cir. 12/ 27/ 19), 293 So. 3d 61, 74- 75.
There was no clear abuse of discretion in the denial of the motion for a new
trial. The defendant failed to show injustice was done by the challenged trial court
rulings. The defendant failed to show how he was prejudiced by the unavailability
of Deputy Simmons after defense counsel had cross- examined him during the State' s
case -in -chief. In regard to Poindexter, defense counsel declined the trial court' s
offer of issuing a notice to him to appear to face contempt. Further, defense counsel
failed to set forth how he was prejudiced by the absence of Poindexter.
CONVICTIONS AND SENTENCES AFFIRMED.