State of Louisiana v. Kenneth Collins

• Court: Louisiana Court of Appeal
• Decided: June 18, 2025
• Docket: 2024-KA-0509
• Status: Published

Opinion

STATE OF LOUISIANA * NO. 2024-KA-0509

VERSUS * COURT OF APPEAL KENNETH COLLINS * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 554-641, SECTION “E” Judge Rhonda Goode-Douglas ****** Judge Karen K. Herman ****** (Court composed of Judge Rachael D. Johnson, Judge Karen K. Herman, Judge Nakisha Ervin-Knott)

Jason R. Williams, District Attorney Brad Scott, Chief of Appeals Zachary M. Phillips, Assistant District Attorney ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE 619 South White Street New Orleans, LA 70119

COUNSEL FOR STATE OF LOUISIANA/APPELLEE

Sherry Watters LOUISIANA APPELLATE PROJECT P. O. Box 58769 New Orleans, LA 70158

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED JUNE 18, 2025 KKH RDJ NEK Kenneth Collins (“defendant”) seeks review of his conviction for second

degree murder. For the reasons that follow, we affirm the conviction.

FACTUAL AND PROCEDURAL HISTORY

On June 16, 2022, the State filed an indictment charging defendant with the

second degree murder of Frank Mehrhoff (hereinafter, “the victim”), a violation of

La. R.S. 14:30.1. Defendant appeared for arraignment on June 23, 2022, and

entered a plea of not guilty. On July 7, 2022, defendant filed an omnibus motion

for, inter alia, suppression of statements, which the district court denied following

a hearing on January 20, 2023. Defendant filed a motion in limine on December 4,

2023, to exclude hearsay and witness narration of video evidence, which the

district court denied following a hearing on January 24, 2024.

On January 12, 2024, defendant filed notice of his intention to use the expert

witness testimony of Dr. Sarah Deland (“Dr. Deland”), and on January 19, 2024,

the State filed a motion to exclude evidence of mental disease or defect. Defendant

filed a supplemental notice of his intent to present expert testimony on January 26,

2024, and the court denied the motion following a hearing on the same day.

Defendant sought a writ, which was denied by both this Court and the Supreme

1 Court. See State v. Collins, 2024-0054 (La. App. 4 Cir. 2/1/24), writ denied 2024-

00167 (La. 2/3/24), 378 So.3d 746.

Jury selection began on February 5, 2024, and the case proceeded to trial the

following day. On February 8, 2024, the jury returned a unanimous verdict of

guilty as charged. Defendant filed motions for post-verdict judgment of acquittal

and for a new trial on March 11, 2024; the district court heard arguments the same

day and subsequently denied both motions. Defendant appeared for sentencing on

April 24, 2024, and following testimony from members of defendant’s family, the

district court imposed the mandatory sentence of life imprisonment at hard labor

without the benefit of parole, probation, or suspension of sentence. Defendant filed

a motion to reconsider sentence the same day, which the district court denied. This

timely appeal followed.

ERRORS PATENT REVIEW

In accordance with La. C.Cr.P. art. 920, we review all appeals for errors

patent. An error patent is one “that is discoverable by a mere inspection of the

pleadings and proceedings and without inspection of the evidence.” La. C.Cr.P. art.

920(2).

A review of the record reveals that the indictment bearing the signature of

the grand jury foreperson is absent from the record. La. C.Cr.P. art. 382(A)

provides in pertinent part that “an offense punishable by … life imprisonment,

shall be instituted by indictment by a grand jury.” Pursuant to La. C.Cr.P. art. 383,

the indictment must be “returned into the district court in open court . . . .”

Nevertheless, this Court has held that the absence in the record of the signed

indictment is a harmless error where the record otherwise reflects that a true bill

was returned, and where the grand jury return of indictments reflects that the

2 indictment was signed by the grand jury foreperson. State v. Hawkins, 2016-0458,

p. 13 (La. App. 4 Cir. 5/17/17), 219 So.3d 1133, 1141; State v. Chambers, 2016-

0712, p. 6 (La. App. 4 Cir. 2/15/17), 212 So.3d 643, 647-48. This Court has also

held that “the failure of a defendant to object to alleged deficiencies in an

indictment and the failure of a defendant to file a motion to quash the indictment

on that basis waives those errors.” Hawkins, 2016-0458, p. 13, 219 So.3d at 1141

(citing State v. Porche, 2000-1391, p. 5 (La. App. 4 Cir. 2/14/01), 780 So.2d 1152,

1155). Here, defendant did not lodge any objections on the basis of a deficient

indictment, nor did he file a motion to quash the indictment.

The docket master reflects that the State filed an indictment, noted as a “true

bill,” on June 16, 2022, and the court minutes indicate that the “bill of indictment”

was read during defendant’s arraignment on June 23, 2022. The list of Grand Jury

Return of Indictments contained in the record includes the charge against

defendant and reflects that it was signed by the grand jury foreperson.

Accordingly, the absence in the record of the signed indictment is harmless in

these circumstances.

SUMMARY OF TRIAL TESTIMONY AND EVIDENCE

State’s Case

The State called Erika Darby (“Ms. Darby”), who testified that on February

18, 2022, she was employed as the Custodian of Records for the Orleans Parish

Communications District, and she authenticated the 911 phone calls and incident

recall report associated with the instant case. The State introduced the audio

recording of the 911 phone calls and played them in open court. A review of the

911 calls reflects four separate callers reporting a motionless man who appeared

3 homeless, with a pool of blood underneath him, at a bus stop on the corner of

Banks and Broad Streets.

NOPD Homicide Detective Tanesha Sykes-Smith (“Det. Smith”) testified

that she was the lead investigator in the case after initially receiving information

that the victim in this case was found dead at the intersection of Banks and Broad

Streets from what was believed to be a gunshot to the head. However, following

the autopsy, Det. Smith learned that the victim had not been shot. The State

introduced a series of still frame photographs taken from the police-worn body

camera footage of Officer Ryne Schuler, the first officer to arrive at the scene, and

published the photographs to the jury.

Det. Smith described the crime scene as reflected in the photos, stating,

The victim is lying under the bus stop. All of the stuff to the left of the screen at the bottom is the victim’s belongings. And there’s blood coming from underneath the basket, and the victim is lying where that red object— where that red sleeping bag is. He is positioned up there.

She testified further, “You can see the victim’s feet are hanging off of the bench.

He was lying across the bench and he, I guess, his body kind of slid off the bottom

of it, I assume.” Det. Smith also stated that the victim’s back was “facing Broad

Street,” while his “feet pointed towards the back of the bus stop,” and that the

sleeping bag was “draped over” the victim’s legs.1 As Det. Smith described

additional crime scene photographs, she noted that the victim appeared to have “a

large gash to the back of his head [, and] his hands appear to be in front of his

1 The State introduced the crime scene photographs taken by the crime scene technician and

published them to the jury while Det. Smith described them. A review of the photographs corroborates Det. Smith’s description thereof.

4 face…also he had a cap that’s partially off of his head.” She also noted that the

victim had “blood on his hands and on his jacket or shirt.”

Det. Smith testified that she located several surveillance video cameras that

captured the incident and that she recovered footage from a Real-Time Crime

camera at the intersection of Banks and Broad Streets; a gas station across the

street called Broad Street Meat Market (“Market”);2 and “a business that was

directly behind the bus stop.” The State introduced the surveillance footage and

played it in open court while Det. Smith narrated the events depicted thereon. Det.

Smith’s testified that the Real-Time Crime camera footage reflected defendant

walking down Broad Street at 9:52 p.m. and entering the Market, and then heading

toward the bus stop at the intersection of Banks and Broad Streets. Det. Smith

testified that she was able to identify defendant in the surveillance video because

additional surveillance footage taken from both the interior and exterior of the

Market during the corresponding timeframe provided a clear view of defendant’s

face and clothing.

Det. Smith pointed out defendant in the video, as he was wearing the same

clothes he was observed wearing in the footage from the Market, and she noted

that he walked from the Market towards the bus stop at the intersection of Banks

and Broad Streets, engaged in a struggle with someone at the bus stop, and then ran

away.3 Shortly thereafter, the footage reflected that defendant returned to the area

2 Det. Smith referred to the Market later in her testimony as the Banks Street Market as well.

3 Specifically, Det. Smith testified, “We saw a struggle taking place up at the bus stop. And we

see the subject who we saw from the store who had the heavy coat on and the hat in all black clothing running this way from the bus stop.” A review of the surveillance footage corroborates Det. Smith’s testimony. We note from the footage that defendant repeatedly peeked around the bus stop shelter before entering. Once defendant emerged from the bus stop shelter, he appeared to be engaging in a tug-of-war with the victim over a fabric item before letting go of it and immediately fleeing the location.

5 and sat down on the front steps of a law office with an unobstructed view to the

bus stop directly across the street. According to Det. Smith’s description of the

surveillance footage, around 10:15 p.m. once all of the pedestrians had departed

the area, defendant “looked over his shoulder” as he approached the bus stop, then

picked up an object located at the bus stop, and swung it one time. Det. Smith

stated, “[It] looked like he picked something up and did like that (apparently

motioning) toward his—like his foot went off the ground.”4 She also stated that it

did not appear that defendant was fighting anyone, or “wrestling over an object,”

nor did it appear that he “in any way disarm[ed] anyone.” The footage then shows

defendant walking away from the bus stop holding a baseball bat. Det. Smith

testified that the first 911 call regarding the death of the victim was received at

7:55 a.m. the following morning.

Det. Smith testified that after viewing the surveillance footage at the outset

of her investigation, she “was able to take a still image from the video surveillance

at the Market and make a BOLO [be on the look-out bulletin] from that

photograph.”5 A few days after distributing the bulletin to media outlets, Det.

Smith was notified that defendant wanted to come into the station to talk after a

family member saw his picture on the news. Prior to the interview of defendant,

4 We note that the footage depicts defendant crossing the street toward the bus stop, and he

appears to be holding his jacket with both hands (as if he is concealing an object inside). Notwithstanding Det. Smith’s testimony that it appeared to her that defendant picked up the bat from the victim’s cart inside the bus stop shelter, the way defendant appears to hold his jacket firmly against his body with both hands as he crossed the street could also support the view that he brought the baseball bat to the scene with him and was concealing it inside his coat. Defendant then entered the bus stop shelter and, only seconds later, lifted the bat directly over his head and swung it straight downward. 5 Det. Smith testified that she interviewed a suspect matching the description of the perpetrator

named Jeffrey Langston, and although he admitted that he knew the victim, he denied that he was involved and denied knowing the person in the BOLO photograph. Det. Smith stated that Mr. Langston “didn’t look anything like the person in the BOLO,” and she was able to eliminate him as a suspect.

6 which occurred on March 11, 2022, at 8:00 am, Det. Smith issued Miranda

warnings. Defendant stated that he did not need an attorney. Det. Smith testified

that defendant did not appear intoxicated “at all,” nor did he slur his speech or have

difficulty remembering events. Defendant’s audio and video recorded statement

was introduced into evidence and played for the jury.

A review of defendant’s police interview reflects that defendant repeatedly

denied any violent interaction with the victim, despite Det. Smith’s continuous

reminders that the incident was recorded by nearby surveillance cameras.

Defendant initially stated that he went to the Market on the corner of Banks and

Broad Streets on the night of the offense and then returned home, specifically

denying that he had been in any altercation. Once Det. Smith informed defendant

that surveillance cameras captured an altercation between him and a homeless man

at the bus stop across the street, defendant admitted that he argued with the victim,

stating that the victim told him to get away, hitting with a pipe. Defendant claimed

that he grabbed the pipe from the victim and threw it on the ground, then went

home. Det. Smith reminded defendant that the incident was captured on

surveillance, but defendant maintained his version of events. Another officer

present during the interview asked defendant whether he had been injured by the

pipe, and defendant stated that he had not actually been hit because he was able to

block the strike with his arm.

After agreeing with Det. Smith that he did return to the intersection and sat

across the street for several minutes, defendant stated that he was concerned that

nearby individuals were “messing” with the victim and he wanted to observe the

situation; he stated that he approached the bus stop to “check on” the victim.

Although partially inaudible, defendant appeared to suggest that he left the area

7 and went home after learning that one of the individuals near the bus stop was

armed with a firearm. Defendant explained that his granddaughter told him the

following day that someone in the area had been shot, although he did not know

the identity of the victim until several days later. Defendant told Det. Smith that he

spent several days trying to figure out who shot the victim, and maintained that he

left the scene after the victim asked him to “get away.”

Det. Smith informed defendant that the victim had not been shot, and

another officer suggested the possibility that the victim was killed in self-defense.

Defendant denied removing any items from the victim’s cart, and expressed his

certainty that he neither swung the pipe nor hit the victim at any time. Defendant

maintained that he left the area at the victim’s request despite Det. Smith

repeatedly informing him that his assertions were not supported by the surveillance

footage. Eventually, defendant told the detectives that he “took and grabbed the

pipe and [he] hit him with it,” and then went home. Defendant recalled hitting the

victim “once,” either “in the arm, neck, or head, or something like that.” Defendant

denied that the victim was lying down when he hit him, stating that “he stood up;

he did stand up.”

Det. Smith testified that she interviewed defendant for a total of twenty to

thirty minutes, during which time he provided his home address. A warrant was

obtained and a search of defendant’s residence was conducted. During the search,

Det. Smith located “the oversized tan jacket that [she] observed the subject

wearing on the day of the incident,” and a baseball bat with blood on it leaning

against the wall. Det. Smith also seized a pair of shoes, a pair of gloves that

“appeared to have some blood on it,” and a skull cap similar to that worn at the

8 time of the offense. 6 Det. Smith sent the baseball bat to the crime lab to conduct

DNA testing and procured for a warrant for defendant’s arrest.

On cross-examination, Det. Smith testified that she collected samples of the

victim’s blood from where it had pooled underneath the bench on which the victim

had been lying, and from the sidewalk directly behind the bench, but the samples

were not sent to the crime lab for DNA testing.7 Det. Smith also testified that the

bench on which the victim was found was built in such a way to prevent people

from lying down. Accordingly, Det. Smith denied that the victim was found lying

stretched out down the length of the bench, but was “partially leaned over” the

bench, with his feet “hanging off the side.” Det. Smith agreed that the bus

shelter/enclosure surrounding the bus stop was covered in advertisements, but she

stated that its interior was visible through the “holes” in the wall (resembling

mesh), and through the backside of the shelter where the view was unobstructed.8

Det. Smith testified that the victim’s shopping cart containing his belongings was

located near the victim inside the bus stop enclosure, although she did not collect it

as evidence or inventory the items in the cart; rather, it was removed and disposed

of by the Department of Sanitation shortly after Det. Smith arrived at the scene.

6 The State introduced police-worn body camera footage of the search of defendant’s residence

and photographs of defendant’s residence. The evidence was published to the jury. A review of the body camera footage and the photographs of the search of defendant’s residence corroborates Det. Smith’s descriptions thereof. 7 Det. Smith explained that detectives were not permitted to send more than three or four items to

the crime lab at a time for forensic testing per case, and other items were apparently a higher priority than the victim’s blood samples. 8 Det. Smith agreed that she was unable to see the inside of the shelter from the angle of the

surveillance camera.

9 Det. Smith testified that the surveillance footage depicted defendant and the

victim engage in an initial physical altercation, after which defendant fled the

scene. He later returned and appeared to strike the victim in the head.

Det. Smith testified that during the interview, defendant admitted that he was

the person in the BOLO bulletin.9 She stated she did not ask defendant whether he

was intoxicated or whether he required any medication prior to taking his

statement. Det. Smith testified that at some point during the interview, defendant

“held up his arms to indicate that he was defending himself…blocking swings

from a pipe.” Defendant also indicated that he knew the victim and wanted to

know who shot him. Defendant told Det. Smith that he had tried to help the victim

and had brought him food and water on occasion, and that he was concerned

because the victim “was not acting like himself that night,” and “that he came back

to check on him.”

Defendant played a clip from the previously introduced surveillance footage,

which Det. Smith agreed depicted defendant walking toward the bus stop. Det.

Smith testified that she could not “see anything going on” at the bus stop at that

time because there was no movement at that time.10 Det. Smith testified that the

footage reflected defendant and the victim engaging in “a tussle” after which

defendant fled the area; she agreed that the victim appeared to be holding an object

in his hand, although Det. Smith could not identify the object or determine its size.

She testified that when defendant returned to the area later that night and sat down

on the front steps of the office across from the bus stop, he did not “appear to have

9 Det. Smith testified that defendant signed and dated the photograph of himself.

10 Det. Smith clarified that defendant and the victim were standing outside of the bus enclosure,

opposite from the location of the surveillance cameras.

10 anything in his hands,” nor did he later appear to make any effort to conceal the

baseball bat he removed from the scene after the final altercation.

On redirect examination, Det. Smith confirmed that she did not locate a

metal pipe throughout her investigation, nor did any of the crime scene photos or

the surveillance footage reflect the presence of a pipe at any time. Det. Smith

testified that the surveillance footage did not reflect a struggle or a fight between

defendant and the victim when defendant returned to the bus stop and killed him,

nor did it depict defendant bringing the victim any food or water.

Det. Smith also explained that prior to interviewing defendant, he did not

smell like any intoxicating substances, “he didn’t appear to have any trouble

walking,” and he had called the police department around 7:00 a.m. to schedule the

interview; defendant did not appear intoxicated and Det. Smith had no reason to

suspect that he was not sober. She also explained that it was common for a suspect

waiting alone in an interrogation room “to take a nap during long periods of

break,” which was neither an indication of intoxication, nor that the statement was

provided involuntarily.

Angela Maher (“Ms. Maher”), Louisiana State Police Crime Lab Analyst,

was qualified by the district court as an expert in DNA analysis after stipulation as

such by defendant. She testified that she conducted the DNA tests and authored

the DNA analysis report in this case. Ms. Maher testified that she tested a

suspected spot of blood taken from the baseball bat seized from defendant’s

residence, as well as a swab from the handle, and compared them to DNA samples

taken from defendant and the victim. She testified that the blood sample was

consistent with the DNA profile of the victim, while the DNA sample taken from

the handle of the bat was inconclusive as to the victim. She testified further that

11 defendant “was not excluded” as a contributor to the DNA located on the handle of

the bat.11

On cross-examination, Ms. Maher testified that another technician in the

crime lab had “screened” a pair of black and white sneakers associated with this

case, although she personally did not conduct DNA testing thereon.

Dr. Marianna Sandomirsky (“Dr. Sandomirsky”), a forensic pathologist at

the Orleans Parish Coroner’s Office, was qualified by the district court as an expert

in forensic pathology after stipulation as such by defendant. She testified that she

conducted the victim’s autopsy and authored the autopsy report in the instant

case.12 Dr. Sandomirsky testified that the victim died as a result of “multiple blunt-

force injuries of the head.” She continued:

There’s fractures, multiple skull fractures, and those bones cut up the brain so there’s cerebrum fracture lacerations and contusions, meaning bruises. There’s blood around the brain in different layers, and the brain is swollen. So those are the things that led to the death. And then [] there’s listings of additional things that could have contributed to his death such as heart disease, some fatty liver, emphysema, but those weren’t the reason for his death in this particular date.

Specifically, Dr. Sandomirsky testified that the victim suffered three

lacerations to the “back of the left side of the head,” and “there were multiple skull

fractures underneath.” She explained further that “the majority of the skull

fractures are in the back. They’re more complex on the left side, but they also

11 Ms. Maher testified that the probability of another person matching the DNA profile as that

taken from the handle of the bat was 53.4 thousand in the Caucasian population, 5.2 thousand among the African American population, and 27.5 thousand among the Hispanic population. However, an additional “non-contributor stat” test concluded that of 15.2 thousand others who may match the DNA sample, “only one in 14.3 million people would match as strongly.” 12 The State introduced the autopsy photographs. A review of the photographs of defendant’s

autopsy corroborates Dr. Sandomirsky’s testimony.

12 extend to the right side, so the majority of this injury is in the back.” Dr.

Sandomirsky described the extent of the bleeding in the victim’s brain as “a non-

survivable injury.”

On cross-examination, Dr. Sandomirsky testified that an investigator from

the coroner’s office was dispatched to the scene on February 18, 2022 at 8:59 a.m.

to obtain information from law enforcement officers and determine whether an

autopsy was warranted. She agreed that the “investigator’s narrative” reflected that

“the decedent was lying on a bus stop bench with a pool of blood underneath,”

with “multiple GSW (gunshot wounds) to the back of the head,” although she was

“not sure where that information came from.” Dr. Sandomirsky also testified that

the victim’s injuries suggested “at least three impacts,” and that it was “very

unlikely” that the wounds resulted from only one blow. She agreed that the victim

showed “discoloration on the knuckles of the left hand,” although “due to the fact

that this was winter and his skin tone, it was unclear whether these were bruises,

aka, injuries, or just something else.” Dr. Sandomirsky also noted that the

toxicology report indicated no presence of alcohol in the victim’s blood.

The State re-called Det. Smith to the stand, and she testified that she

reviewed the recorded jail calls defendant placed the day he was arrested on March

11, 2022, and that he did not refer to the victim as his friend or his “partner,” but as

“that [n-word].” He also stated in the phone call that “he should have stayed

home,” but that the Devil made him go back, further stating, “I did it to myself.”

The State played defendant’s jail call for the jury.

Defense’s Case

Courtney Hebert (“Ms. Hebert”) testified that she was employed as the

Quality Assurance Manager” at the Louisiana State Police Crime Lab and that she

13 was occasionally dispatched to crime scenes, as she was in the instant case. She

testified that she arrived at the scene on the morning of February 18, 2022 to make

a sketch of the crime scene. Ms. Hebert noted that her sketch depicted “possible

blood the ground,” and she denied having any other responsibilities in this case.

The sketches were introduced into evidence.

Dr. Jonathan Eisenstat (“Dr. Eisenstat”) a consultant in the field of forensic

pathology, was qualified by the district court as an expert in forensic pathology and

injury causation. Dr. Eisenstat testified that the victim sustained three lacerations to

his head and multiple skull fractures, but denied that the injuries were a result of

three separate impacts. He explained that the big laceration seen in the photographs

was from the blow but that the two lacerations that are lower on the head were

from the skull breaking and cutting the skin from the inside out. Dr. Eisenstat also

noted the absence of bruising or abrasion in the area of the two lower lacerations

that were present in the larger laceration, as well as the small amount of blood on

the baseball bat seized from defendant’s residence, which he stated would be

soaked in blood if it had contacted the victim’s head a second time after the initial

laceration. As a result, Dr. Eisenstat opined that the victim’s injuries were caused

by only “one blow, not three blows to the head.” He also suggested that it was

plausible that the victim was standing up when he was struck in the head, as the

position of the victim’s body reflected in the crime scene photographs was in his

opinion, “not a normal sleeping position.”

On cross-examination, Dr. Eisenstat admitted that he could not say precisely

how the victim’s injuries were sustained, and he could only opine on possibilities.

NOPD Sergeant Willie Jenkins (“Sgt. Jenkins”) testified he responded to the

scene in this case in his supervisory capacity and did not conduct any part of the

14 substantive investigation. He acknowledged that he was wearing a body camera at

the time, and after refreshing his recollection, he agreed that he had observed at the

scene droplets of what appeared to be blood a few feet away from the bus stop

bench, which “looked as though it was part of the incident but not from the

[victim].” Sgt. Jenkins testified that he did not know whether a sample of that

blood was collected from the scene.

On cross-examination, Sgt. Jenkins testified that he was not the lead

detective in the instant case; he was not responsible for the collection of evidence;

and he did not know whether the substance of the droplets located nearby was, in

fact, blood.

Defendant testified at trial that he had multiple criminal convictions across

several Louisiana parishes, and he pled guilty in each of those cases because he

was guilty. However, he stated that in this case, he did not plead guilty, explaining,

“Because I ain’t try to kill nobody. All I did was defend myself.”

Defendant testified that he was homeless in 2016 and was staying under the

“Claiborne Bridge,” where he befriended the victim, who was also homeless.

Defendant stated that he did not know the victim’s name so he just called him

“partner.” Defendant testified that after the Housing Authority provided him with a

home, he did not see the victim for a while. In November of 2021, defendant saw

the victim again on the street and brought him a meal. Defendant testified that he

saw the victim often, and they would drink and play checkers.

Defendant testified that he saw the victim again in February of 2022. At that

time, he stated that the victim did not recognize him and told him to get away.

Defendant testified that he told the victim, “Partner, it’s me, partner,” but the

victim hit defendant in the arm with a pipe, allegedly causing defendant to bleed.

15 Defendant explained that they began fighting over the pipe while he tried to reason

with the victim, but when the victim gained control of the pipe, he “immediately

went to swinging it again,” so defendant fled.

Defendant stated that he ran home and told his housemate what happened,

and she advised him to leave the victim alone. Defendant explained that he

returned to the area out of concern for the victim’s safety, but he decided to sit

across the street from the bus stop “to see if anybody was messing with him…and

wait to see if he done cooled down before I go back over there.” Defendant

testified that he could see the victim sitting down, wearing “like a blue sheet or

towel or something.” Defendant walked across the street and approached the

victim, asking if he was alright, and the victim told him to get away. Defendant

continued, “[The victim] got up and he started swinging the pipe; so, when he hit

me…I grabbed the bat and swung the bat…trying to knock the pipe out of his

hand.” However, defendant explained that rather than hit the pipe, he hit the

victim. The victim then “went down,” while continuing to plead with defendant to

“get away.” Defendant further stated that he took the pipe from the victim and

placed it inside his basket, then “put the bat on [his] shoulder and said, “All right;

I’ll see you in the morning,’” and went home. Defendant testified that he returned

the pipe to the victim’s basket because he did not want to hurt anyone. He stated

that he took the bat with him when he left so he would feel safe going home.

Defendant testified that he was not worried about the victim when he left the bus

stop, nor did he think that the victim needed help. He also declined to seek medical

attention for the victim after the initial assault with the pipe because he “didn’t

know if he was drunk or high or what,” and he did not report the assault.

16 Defendant testified that his housemate’s granddaughter and her boyfriend

came over early the next morning saying that a homeless man was found shot to

death at the corner of Banks and Broad Streets. Defendant’s suspicions that the

victim was the deceased homeless man were confirmed when he saw that the bus

stop where he had left the victim was blocked off. Defendant learned that he was a

suspect in the case around March 9th or 10th, when his granddaughter showed him

his picture on her phone under the headline reporting the victim’s death. Defendant

testified that he did not shoot the victim, so he telephoned the police department to

find out why he was a suspect. Defendant testified that after informing Det. Smith

that he would come to the police station, he took some pain medication and drank

“a little liquor” with his breakfast, as he usually did. Defendant also stated that he

called his parole officer after learning he was a suspect, and his parole officer

advised him to get a lawyer and turn himself in. Defendant declined to obtain

counsel. He stated he was not worried because he did not shoot the victim.

Defendant testified that Det. Smith administered Miranda warnings before

the interview, but he nonetheless assumed that he was free to leave at any time

because he did not “shoot” anyone. After Det. Smith informed defendant that the

victim died from head trauma and that she suspected defendant was responsible,

defendant told her that the victim hit him in the eye with a pipe and that he threw

his arm up to defend himself.

Defendant further testified that he set the baseball bat beside his dresser

inside his residence; made no effort to wash either the bat or the clothing he had

been wearing; and provided his home address to Det. Smith during the interview.

He also stated that Det. Smith did not ask him before the interview whether he had

consumed drugs or alcohol. Defendant testified that he first learned that he was

17 allegedly responsible for killing the victim when Det. Smith told him the victim

died from head trauma rather than a gunshot wound. Defendant explained at trial

that he felt “really bad” when he realized he had killed his friend, stating, “I know

me and him had a little scuffle, and I swing the bat to try to knock the pipe out of

his hands from hitting me. And I knew I hit him, but I didn’t know I hit him in the

head.” Defendant denied that he was trying to hurt the victim when he hit him with

the bat, and he had no idea the victim was dying. When asked how he felt after

learning he killed the victim, defendant responded, “I didn’t feel good at all. I

started drinking heavy; walking around; I was lost.”13

On cross-examination, defendant agreed that getting hit with a baseball bat

in the head would hurt, but he did not know whether it could be lethal. Defendant

maintained his trial testimony that after he hit the victim with the bat, the victim

told him to “get away,” notwithstanding Dr. Eisenstat’s testimony that that the

victim would have been unable to form coherent words following such a serious

head injury.

State’s Rebuttal

On rebuttal, the State recalled Det. Smith to the stand, and she explained that

when she interviews criminal suspects, she does not showcase the evidence she has

collected at the outset because she does not want to give them the opportunity to

alter their story fit with the evidence. Det. Smith testified that defendant did not

admit that he hit the victim with a bat until she told him that surveillance cameras

recorded the incident. She also confirmed that she did not locate a metal pipe in the

13 Defendant later explained that what he meant to communicate was that he started drinking

heavily once he learned that the victim had died, but he did not learn he could have been responsible for the victim’s death until his police interview.

18 victim’s cart or anywhere else. On cross-examination, Det. Smith admitted that

when she searched the victim’s belongings, she thought he died from a gunshot

wound, and she was searching for ballistics evidence. She also admitted that she

did not document the inventory of the victim’s cart, nor did she log the items into

evidence; however, she recalled that the cart contained “personal items, like

clothing, socks, and you know, different things that he probably acquired over

some time.”

DISCUSSION

Assignment of Error Number 1

Defendant first asserts that the State presented insufficient evidence to

sustain the conviction. Specifically, defendant argues that the State failed to prove

that he possessed the specific intent to kill the victim or cause great bodily harm

and that the State also failed to prove that defendant did not kill the victim in self-

defense.

“[I]n accordance with the well-settled jurisprudence, ‘[w]hen issues are

raised on appeal 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.’”

State v. Miner, 2014-0939, p. 5 (La. App. 4 Cir. 3/11/15), 163 So.3d 132, 135

(quoting State v. Hearold, 603 So.2d 731, 734 (La.1992)).

The Supreme Court provided the standard for review of a claim of

insufficiency of the evidence in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 2789, 61 L.Ed.2d 560 (1979):

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This

19 familiar standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Id. (emphasis in original, internal citations omitted).

“Under 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. 10/19/11), 76 So.3d 608,611).

As this Court found in State v. Wells, 2010-1338, p. 5 (La. App. 4 Cir.

3/30/11), 64 So.3d 303, 306:

Conflicting statements as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244 (La. App. 4 Cir. 1989). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. Id. A trier of fact’s determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. Vessell, 450 So.2d 938 (La. 1984).

“The testimony of a single witness, if believed by the trier of fact, is sufficient to

support a conviction.” Id. (citing State v. White, 28,095 (La. App. 2 Cir. 5/8/96),

674 So.2d 1018). The finder of fact must determine, from facts gleaned from direct

evidence and inferred from circumstantial evidence, considering the relative

strength and weakness of each inference and finding, whether this body of

preliminary facts excludes every reasonable hypothesis of innocence. State v.

Dukes, 2019-0172, p. 9 (La. App. 4 Cir. 10/2/19), 281 So.3d 745, 753; State v.

Rose, 2005-0396, p. 2 (La. App. 4 Cir. 4/13/07), 955 So.2d 270, 272.

20 It is also well settled that “[i]t is not the function of the appellate court to

assess the credibility of witnesses or reweigh the evidence.” State v. Richards,

2011-0349, p. 9 (La. App. 4 Cir. 12/1/11), 78 So.3d 864, 869 (citing State v.

Cummings, 668 So.2d 1132 (La. 1996)). “Upon review of the record as a whole, if

rational triers of fact could disagree as to the interpretation of the evidence, the

rational trier’s view of all the evidence must be adopted.” State v. Bradley, 2018-

0734, p. 4 (La. App. 4 Cir. 5/15/19), 272 So.3d 94, 97 (citing State v. Mussall, 523

So.2d 1305, 1310 (La. 1988)).

La. R.S. 14:30.1 provides that second degree murder is the killing of a

human being when the offender has a specific intent to kill or to inflict great bodily

harm. “Specific criminal intent is the state of mind which exists when

circumstances indicate that the offender actively desired the prescribed criminal

consequences to follow his act or failure to act.” La. R.S. 14:10(1). “Specific intent

can be formed in an instant.” State v. Cooks, 2011-0342, p. 10 (La. App. 4 Cir.

12/14/11), 81 So.3d 932, 939 (citing State v. Cousan, 1994-2503, p. 13 (La.

11/25/96), 684 So.2d 382, 390). Specific intent need not be proven as fact but may

be inferred from the circumstances of the transaction and the actions of defendant.

State v. Hickman, 2015-0817, p. 11 (La. App. 4 Cir. 5/16/16), 194 So.3d 1160,

1167 (abrogated on other grounds by State v Donovan, 2019-0722 (La. App. 4 Cir.

5/27/20), 301 So.3d 541). It can further “be inferred from the extent and severity of

the victim’s injuries, and the defendant's use of a deadly weapon to produce those

injuries, which involved serious risk of death.” State v. Butler, 2024-0061, p. 12

(La. App. 4 Cir. 12/30/24), 407 So.3d 744, 750 (citing State v. Jackson, 54,118, p.

5 (La. App. 2 Cir. 11/17/21), 334 So.3d 874, 878-79). Whether the requisite intent

is present in a criminal case is determined by fact finder, and this determination is

21 reviewed for correctness under the Jackson standard. State v. Sipp, 2011-1555, p. 6

(La. App. 4 Cir. 11/28/12), 104 So.3d 648, 653 (citing State v. Huizar, 414 So.2d

741, 751 (La. 1982)). “[A]n attack in which a victim is bludgeoned to death with a

baseball bat is sufficient to demonstrate the necessary specific intent to kill or

inflict great bodily harm for second degree murder.” State v. Guice, 26,440, p. 7

(La. App. 2 Cir. 10/26/94), 645 So.2d 1193, 1197; See also State v. Scott, 2009-

0748, pp. 5-6 (La. App. 3 Cir. 12/9/09), 26 So.3d 313, 317; State v. Myers, 584

So.2d 242, 249-50 (La. App. 5th Cir. 1991).

In this case, the surveillance footage reflected that defendant approached the

bus stop shelter after 10:00 p.m., raised both arms over his head, and swung

straight downward until his momentum was halted by an object he hit at roughly

the height of his knee. The crime scene photographs reveal that the victim was

partially lying on the bench (with his feet nearer to the ground) inside the bus stop

shelter, with his hands covering his bloody face. Det. Smith located a baseball bat

inside defendant’s residence on which the victim’s blood was located.

Additionally, autopsy photos showed the victim’s skull cracked open in several

different locations. Although Dr. Sandomirsky testified that the skull wounds were

inflicted by multiple blows to the head, defendant’s expert, Dr. Eisenstat, testified

that all of the cranial wounds had been inflicted by only one blow to the victim’s

head but with such severe force that his skull shattered in multiple areas and sliced

his scalp from the inside.

Notwithstanding defendant’s trial testimony that the victim was awake,

standing up, and swinging a pipe at him when he hit the victim in the head with the

bat, the jury was able to view the surveillance footage, which does not appear to

corroborate those claims, and was therefore entitled to reject defendant’s

22 testimony. Further, the surveillance footage depicts that defendant swung the bat

straight downward, hitting something at roughly the height of his knee, which is

where the crime scene photographs depicted the location of the victim’s head. As

noted above, the bludgeoning in the head with a baseball bat causing fatal injury to

the victim is sufficient evidence for a jury to determine that the defendant

possessed the specific intent to kill or inflict great bodily harm. See Guice, 26,440,

pp. 7-8, 645 So.2d at 1197. In this case, defendant struck the victim in the head

with enough force to shatter the victim’s skull and cause lacerations to his brain

and scalp in three separate locations. Both Dr. Sandomirsky and Dr. Eisenstat

testified that the victim’s injury was fatal. Accordingly, in the light most favorable

to the prosecution, a rational juror could have found that defendant possessed the

specific intent to kill or inflict great bodily harm when he struck the victim in the

head with the bat, fracturing his skull.

Defendant also asserts that the State failed to prove that he did not kill the

victim in self-defense. “When a defendant asserts that he acted in self-defense in a

homicide case, it is settled law that the State bears the burden of proving beyond a

reasonable doubt that the defendant did not act in self-defense. State v. De Gruy,

2016-0891, p. 18 (La. App. 4 Cir. 4/5/17), 215 So.3d 723, 733 (citing State v.

Jefferson, 2004-1960, p. 10 (La. App. 4 Cir. 12/21/05), 922 So.2d 577, 587-88).

Pursuant to La. R.S. 14:18, “[t]he fact that an offender’s conduct is justifiable,

although otherwise criminal, shall constitute a defense to prosecution for any crime

based on that conduct [under certain circumstances].” 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).

23 However, the defense of justification is unavailable to an offender “who is

the aggressor or who brings on a difficulty…unless he withdraws from the conflict

in good faith and in such a manner that his adversary knows or should know that

he desires to withdraw and discontinue the conflict.” La. R.S. 14:21; State v.

Abbott, 2017-0016, p. 17 (La. App. 4 Cir. 6/14/17), 222 So.3d 847, 857.

Defendant argues that because the surveillance footage did not capture

precisely what occurred inside the bus shelter when he struck the victim with the

bat, the State could not prove that he was not defending himself from a pipe attack

by the victim. However, as set forth above, a thorough review of the surveillance

footage reveals a clear silhouette of defendant raising an object (determined to be a

baseball bat) over his head and swinging it straight downward with enough thrust

to cause him to lift his foot off the ground to regain his balance. Further, it is clear

from the arc of the swing that the downward momentum of the bat was halted by

an object at roughly the height of defendant’s knee, which crime scene

photographs suggest was the location of the victim’s head as he was lying on the

bench. The jury viewed the exhibits and considered the testimony and rejected

defendant’s claim of self-defense.

The jury also heard defendant repeatedly deny any involvement with the

victim’s death notwithstanding Det. Smith’s continued revelations that the fatal

encounter had been captured on surveillance footage and that she had already seen

it. Defendant altered his recitation of events each time Det. Smith revealed the

contradictions reflected in the surveillance footage. Even when defendant admitted

that he hit the victim in the head, he claimed that he had used the victim’s metal

pipe rather than the baseball bat. Additionally, defendant fled the scene with the

weapon after killing the victim, and he did not call for help or medical assistance at

24 any time, nor did he report the incident to the police. A rational juror could have

found that defendant agreed to speak to the police a month later only because he

thought the victim had been shot and wanted to convince the police of his

innocence after the BOLO was released depicting defendant as the suspect.

“Evidence of flight, concealment, and attempt to avoid apprehension is

relevant. It indicates consciousness of guilt and, therefore, is one of the

circumstances from which a jury may infer guilt.” State v. Coleman, 2012-1408, p.

10 (La. App. 4 Cir. 1/8/14), 133 So.3d 9, 19 (quoting State v. Davies, 350 So.2d

586, 588 (La.1977)); See also State v. Patterson, 2010-415, p. 14 (La. App. 5 Cir.

1/11/11), 63 So.3d 140, 149-50 (“[D]efendant’s actions after the incident,

including failure to report the shooting, disposal of the weapon, and flight from the

scene, were inconsistent with a theory of justifiable homicide.”). For the reasons

discussed above, viewing the evidence in the light most favorable to the

prosecution, a rational juror could have found that defendant did not kill the victim

in self-defense.

Lastly, although only tangentially related to a claim of insufficiency of the

evidence, defendant asserts that the jury failed to meaningfully deliberate due to

the trial dates coinciding with Mardi Gras season and the jurors’ alleged concerns

about parade traffic on the day deliberations were set to begin. The record reflects

that deliberations lasted only three hours before the jury rendered a guilty verdict.

Defendant asserts that the district court erred in failing to recess the proceeding and

allowing the jury to begin deliberations the following day.

Defendant cites to his motion for a new trial which he attached as an exhibit

an email purportedly sent on February 9, 2024, from an alternate juror in the case,

which read:

25 Hi: I was an alternate juror, dismissed before deliberations. I got a call from the judge about the verdict around 6pm yesterday, and I just wanted to tell someone how outrageous I think it was that the decision about whether to sentence a man to life in prison was sent to jurors mere hours before parades kicked off. Your client didn’t stand a chance.

FWIW [“For what it’s worth”], I would probably have voted for negligent homicide simply because the state didn’t prove specific intent. Your client clearly is no saint and has some culpability, but that video wasn’t the smoking gun they built it up to be because, as you noted, we could not see what happened in the enclosure preceding the bat swing—and the victim plainly was holding something in his hand after the first altercation.

I’m really disappointed, but not sadly surprised, by the Louisiana Justice System.

This issue was addressed extensively at the hearing on defendant’s motion

for a new trial, during which defendant also contended that the jury did not fully

deliberate due to their possible concerns about leaving in time to attend the Mardi

Gras parade later that evening.

In rejecting these grounds for a new trial, the district court reasoned as

follows:

[W]e did have a discussion with you and the state, in regards to the fact that this trial was set the week of parade season. At no point in time did you ever agree with the state of Louisiana to continue this case, or even suggest that the case be continued. In fact, you insisted that you wanted to move to trial. This Court took a lot of precaution with the jury. I allowed y’all to voir dire as long as you wanted to. In fact, Monday we were here till almost 9:30, 10:00 o’clock at night. So there was no concern at that point in time. Nobody at that point in time said: [“]oh this is the Monday of parade season; maybe we need to hurry up and try to pick a jury really quickly so we can start on Monday.[”]

I wanted to start the trial on Monday. It didn’t happen that way, so we started on Tuesday. We were very flexible with the jurors. No one had any concerns

26 about parade traffic or getting home. And, in fact, I’m trying to—trying to find for how long this jury was out. But they deliberated for quite some time…And it wasn’t as if they came back in a—in a hurry or a rush. So—and you don’t even allege that in your motion for a new trial. So, I’m not even sure why this is—why this is even being discussed.”

The court minutes in the instant case reflect that the court date of February 5,

2024 was chosen on September 18, 2023; however, no transcript of that proceeding

was included in the appellate record.14 It appears defendant orally moved for a

continuance on January 26, 2024, but not for the reason that the trial may be

affected by Mardi Gras parades, but because defendant sought to cure his failure to

serve timely notice to the State of his intent to present the expert witness testimony

of Dr. Deland.

La. C.E. art. 606(B) prevents the introduction of any testimony or affidavits

from a juror relating to “the effect of anything upon his or any other juror’s mind

or emotions as influencing him to assent to or dissent from the verdict or

indictment or concerning his mental processes in connection therewith ….”15 See

also State v. Ballard, 2020-0617, p. 30 (La. App. 4 Cir. 7/21/21), 325 So.3d 450,

472-73. The complaining juror in this case served as an alternate juror, and was

accordingly dismissed before deliberations commenced, thus she would not have

been privy thereto. The substance of the complaint does not allege that any of the

other jurors shared her concerns that they were sent to deliberate “mere hours

14 At the hearing on motions in limine held on January 24, 2024, defendant indicated that on

September 1, 2023, the court granted his motion to continue the September 18, 2023 trial date “to seek out Dr. Deland’s consultation,” and “because Dr. Deland could not do the evaluation until December or January.” 15 However, La. C.E. art. 606(B) further provides that “a juror may testify on the question

whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury’s attention.”

27 before parades kicked off,” nor does she contend that any jurors’ vote was

influenced by the timing of the deliberations. Accordingly, the complaint reveals

only the opinion of an observer, and it does not allege any jury misconduct or

outside influence on the jury’s deliberations or its verdict. Consequently, the

district court did not err in denying defendant’s motion for a new trial based on the

alternate juror’s alleged opinion of what the evidence did, or did not prove at trial.

In any event, as set forth above, the homicide was captured on surveillance

footage and contradicts defendant’s trial testimony. Defendant has failed to

demonstrate that the jury’s verdict was based on anything other than its

consideration of the evidence presented at trial, which, as discussed above, is

sufficient for a rational juror to have found defendant guilty of second degree

murder. This assignment of error is meritless.

Assignment of Error Number 2

Defendant next asserts that the district court erred in allowing Det. Smith to

narrate the surveillance footage, to make conclusions, and to give opinions as to its

content, as part of her trial testimony. On December 4, 2023, defendant filed a

motion in limine to exclude hearsay and witness narration of video evidence,

arguing that viewing surveillance footage was not equivalent to possessing first-

hand knowledge of the events depicted thereon. At a motions hearing held on

January 24, 2024, the district court granted defendant’s motion in part, excluding

inadmissible hearsay, but denied the remainder of the motion, stating:

I do allow the lead detective or whoever is testifying in regards to [recorded] video, they are allowed to comment on what is observed in the video…They are allowed to testify as to what is observed in the video. If you deem something to be objectionable, then I will advise you to lodge an objection and we can deal with it at that time…Because I do believe that the witness should be

28 allowed to comment or testify as to the observations. If it’s the defendant in the video or the victim, they should be able to say, [“]this is the defendant, this is the victim.[”] People need to know what it is that they are seeing in the video.

During trial, defendant lodged objections to Det. Smith’s identification of

him in the surveillance video, as well as to the detective’s testimony that the

footage reflected a struggle between him and the victim, and that it appeared that

defendant “picked something up and did like that toward his—like his foot went

off the ground.” 16 During a court recess, defendant lodged a general objection

again in chambers, arguing that Det. Smith could only speculate about the events

the surveillance footage depicted. The district court overruled defendant’s

objections, explaining that Det. Smith’s testimony regarding “the things she

observed on the video and how this has affected and helped her in her investigation

in solving this case” was relevant and helpful to the jury. The district court stated

further that the jury had the opportunity to view the exhibits and would “ultimately

make the determination as to what they’ve observed on the video.”

Defendant contends that because Det. Smith was not an eyewitness

physically present during the homicide, and because Det. Smith was not qualified

16 Defendant cites to several pages in the transcript alleging that he lodged contemporaneous

objections to the narration of the surveillance footage. However, a review of the transcript reveals that several of the objections lodged did not deal with narration of surveillance video, but rather to a lack of foundation for the introduction of body camera footage (as the State was in the process of laying the foundation), and to what the crime scene photographs depicted. The only contemporaneous objections lodged on the issue at hand are set forth in the discussion above. Defendant also claims that Det. Smith testified that the victim was sleeping inside the bus stop shelter when defendant killed him, and that defendant looked over his shoulder to make sure nobody could see him, but provided no citations to the transcript to the alleged testimony. A review of Det. Smith’s testimony reveals that she stated only that defendant “looked over his shoulder, looking backwards,” but said nothing about the reason for so doing. Even if Det. Smith had testified as defendant claimed or similarly, there is no indication in the transcript that defendant lodged a contemporaneous objection thereto, thus the claim is not preserved for appellate review. See La. C.Cr.P. art. 841.

29 as an expert witness, her interpretation of what the surveillance footage depicted

should have been excluded as hearsay.

La. C.E. art. 602 provides:

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This Article is subject to the provisions of Article 703, relating to opinion testimony by expert witnesses.

In State v. Williams, 2022-0710, pp. 7 (La. App. 4 Cir. 5/15/23), 368 So.3d

179, 185, the State introduced surveillance footage taken from an RTA (Regional

Transit Authority) bus that passed in front of the crime scene, and a detective

identified the two people present at the scene, and “simply described what the

video depicted.” This Court rejected the defendant’s argument that because the

detective “was not an eye-witness to the crime,” she lacked the personal

knowledge required to testify to the events depicted in the footage, stating that the

detective’s “testimony demonstrated that, through her investigation, she gained

adequate personal knowledge of the scene of the shooting, the events of the

shooting, and the persons involved to testify to the contents of the RTA video.” Id.,

p. 8, 368 So.3d at 185.

Similarly, in State in Interest of K.B., 2023-0409, pp. 30-31 (La. App. 4 Cir.

9/26/23), 372 So.3d 864, 885, writ denied 2023-01421 (La. 4/3/24), 382 So.3d 106,

this Court held that the detective’s trial testimony describing the events she

observed on the surveillance footage was permissible, as she “demonstrated that,

through her investigation, she gained adequate personal knowledge to testify about

the video surveillance footage.” This Court particularly noted that the detective

“testified that she visited the scene of the carjacking; collected the video

30 surveillance footage herself; recounted what she had viewed in the footage; and

explained how her investigation eventually led to identifying the perpetrators in the

footage.” Id. at p. 31, 372 So.3d at 885.

In the instant case, Det. Smith testified that she visited the scene of the

crime; personally collected the surveillance footage; recounted what she viewed in

the footage; and explained how she identified defendant as the perpetrator. Thus,

Det. Smith demonstrated adequate personal knowledge to testify about her

observations in the surveillance footage. For the above reasons, we find no merit in

this assignment of error.

Assignment of Error Number 3

Defendant asserts in his final claim that he was denied the right to present a

defense when the district court excluded from trial Dr. Deland’s expert testimony

regarding his chronic alcohol abuse, and defendant asserts that his notice of intent

to present the expert testimony was not untimely and should not have been denied

on that basis. Specifically, defendant asserts that Dr. Deland’s testimony “was

necessary to [defendant’s] defense of mistake of fact and self-defense.” The State

counters that defendant’s notice of expert witness testimony did not include Dr.

Deland’s report and failed to put the State on timely and substantive notice of the

issue to which Dr. Deland proposed to testify. The State asserts further that

defendant’s purported purpose in presenting Dr. Deland’s expert testimony was to

help the jury understand that substance abuse and chronic alcoholism impaired

defendant’s ability to give a statement, which was irrelevant to the elements the

State had to prove at trial.

La. C.Cr.P. art. 726 provides:

31 A. If a defendant intends to introduce testimony relating to a mental disease, defect or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall not later than ten days prior to trial or such reasonable time as the court may permit, notify the district attorney in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other orders as may be appropriate.

B. If there is a failure to give notice as required by Subsection A of this Article, the court may exclude the testimony of any witness offered by the defendant on the issue of mental condition.

Defendant filed his initial notice to offer the expert testimony of Dr. Deland

on January 12, 2024, asserting her expertise in forensic psychiatry, with a specialty

in “substance use disorder and trauma,” and that her testimony would be relevant.

The State filed a motion to exclude evidence of mental disease or defect, seeking to

exclude any testimony by Dr. Deland alleging defendant could not form the

specific intent to commit the offense in this case as a result of his diminished

capacity due to chronic alcohol abuse, as defendant had not asserted a plea of not

guilty and not guilty by reason of insanity pursuant to La. C.Cr.P. art. 552. See also

La. C.Cr.P. art 651 (providing that “[w]hen a defendant is tried upon a plea of ‘not

guilty,’ evidence of insanity or mental defect at the time of the offense shall not be

admissible.”)

At a hearing on January 24, 2024, the State argued that without Dr. Deland’s

report it was unclear what Dr. Deland would testify to other than to “a diminished

capacity that would not have allowed [defendant] to form specific intent,” which

required a plea of not guilty and not guilty by reason of insanity. Defendant replied

that Dr. Deland’s testimony would help the jury understand his “unique” defenses

of “mistake of fact and self-defense” and assured that he would not argue at trial

that diminished capacity prevented him from forming specific intent. The district

32 court agreed with the State, cautioning defendant that trial was less than two weeks

away and that Dr. Deland’s yet unknown proposed testimony would be relevant to

no issue other than diminished capacity; nevertheless, “out of an abundance of

fairness,” the district court permitted defendant to file Dr. Deland’s report “by

Friday,” stating, “if this is anything that goes towards diminished capacity, the

Court is going to deny and not allow her to testify in this case.”

On January 26, 2024, defendant filed a supplemental notice of intent to offer

expert testimony, asserting that Dr. Deland specialized in “substance use disorder,

chronic intoxication, and cognitive function” and stating that her testimony would

be “relevant to [those] issues, [defendant’s] conduct, and his statement to police.”

Defendant asserted further that Dr. Deland’s testimony would be relevant in

presenting the defense of voluntary intoxication pursuant to La. R.S. 14:15.

Defendant attached Dr. Deland’s report detailing her analysis, which stated that

years of chronic alcohol intoxication and withdrawal could result in “memory

impairment, attentional and concentration problems, difficulty focusing on a task,

and tracking a line of thought.” Dr. Deland’s ultimate conclusion was that “[i]t is

possible that [defendant] was experiencing and displaying this type of cognitive

impairment during his interview with the police.”

The court held another hearing on January 26, 2024, during which defendant

asserted that Dr. Deland would “offer testimony on voluntary intoxication and

chronic intoxication,” which would be relevant to rebut the State’s contention at

trial that defendant “committed the murder and that he had the intent to commit

murder or grave bodily injury.” Defendant argued further that because the State

intended to introduce his statement to police as an exhibit in its case, Dr. Deland’s

testimony would help the jury “understand some of his behaviors and comments in

33 that statement and perhaps why he did not use a lot of the language that the State—

that the police would use in describing a self-defense claim,” and also “that she can

testify about voluntary intoxication as it relates to intent.”

The State contended that without evidence of the level of defendant’s

potential intoxication at the time of the offense, Dr. Deland could not issue an

opinion as to whether defendant could have formed specific intent, and that

whether defendant provided his statement to police knowingly and voluntarily had

been determined when the district court denied defendant’s motion to suppress

statement at the hearing thereon.17 The State asserted further that Dr. Deland’s

report did not address the defense of voluntary intoxication but instead went

“towards the suppressibility of the statement.”

The district court noted that trial was ten days away and that defendant had

still failed to turn over his medical records, making it impossible by that time for

the State to prepare a rebuttal case “to deal with whatever it is that Dr. Deland is

coming in here at the ninth hour to testify about” and agreed with the State that

“the validity of [defendant’s] statement” should have been determined in a motion

hearing. The district court denied defendant’s motion for a continuance and

excluded Dr. Deland’s proposed expert testimony. Defendant sought pretrial

review of the ruling, and both this Court and the Supreme Court denied writs. See

State v. Collins, 2024-0054 (La. App. 4 Cir. 2/1/24), writ denied, 2024-00167 (La.

2/3/24), 378 So.3d 746.

La. C.E. art. 702(A) provides: 17 In fact, defendant argued at the January 20, 2023 hearing on the motion to suppress statement

that defendant’s intoxication at the time prevented him from knowingly and intelligently waiving his right to remain silent. The court denied defendant’s motion, reasoning that it saw no evidence that defendant was intoxicated. The court continued, “[j]ust because he was nodding [off], asleep or lethargic, doesn’t mean that he was intoxicated. The detective testified she did not see any signs of intoxication when she took the statement and read [defendant] his Miranda warnings.”

34 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 the proponent demonstrates to the court that it is more likely than not that:

(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’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The “‘helpfulness’ standard requires a valid scientific connection to the

pertinent inquiry as a precondition to admissibility.” Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 591-92, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469

(1993). “Expert testimony which does not relate to any issue in the case is not

relevant and, ergo, non-helpful.” Id., at 591, 113 S.Ct. at 2795; See also State v.

Foret, 628 So.2d 1116, 1122 (La. 1993). La. C.E. art. 401 defines relevant

evidence as that “having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” While relevant evidence is generally admissible,

“[e]vidence which is not relevant is not admissible.” La. C.E. art. 402.

The Due Process Clause does not guarantee the right to introduce any and all

evidence the defendant deems relevant because the right to present even relevant

evidence is not absolute. Montana v. Egelhoff, 518 U.S. 37, 42-43, 116 S.Ct. 2013,

2017, 135 L.Ed.2d 361 (1996). “The accused does not have an unfettered right to

offer [evidence] that is incompetent, privileged, or otherwise inadmissible under

35 standard rules of evidence.” Id. (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108

S.Ct. 646, 653, 98 L.Ed.2d 798 (1988)).

“The trial judge is vested with wide discretion in determining the relevancy

of evidence, and his ruling will not be disturbed on appeal in the absence of a clear

showing of abuse of discretion.” State v Clark, 2023-0717, p. 10 (La. App. 4 Cir.

6/10/24), 401 So.3d 171, 178 (quoting State v. Miles, 402 So.2d 644, 647 (La.

1981)).

Importantly in this case, as noted above, Dr. Deland’s report concluded only

the possibility that defendant was suffering impairment due to chronic substance

abuse during his statement to police, even without displaying “overt symptoms that

are usually associated with acute alcohol intoxication.” Dr. Deland did not impute

to defendant any mental disease, defect, or other condition bearing upon the issue

of whether he had the mental state required for the offense of second degree

murder, thus defendant’s notice of intent to admit her testimony did not comport

with the parameters set forth in La. C.Cr.P. art. 726. Similarly, the statutory

defenses of voluntary intoxication and mistake of fact, which defendant asserted he

would present at trial, are limited to negating or precluding the “specific criminal

intent or special knowledge required in a particular crime,” or the “presence of any

mental element required in that crime.” La. R.S. 14:15; 14:16.

La. R.S. 14:15 provides:

The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows:

(1) Where the production of the intoxicated or drugged condition has been involuntary, and the circumstances indicate this condition is the direct cause of the commission of the crime, the offender is exempt from criminal responsibility.

36 (2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.

La. R.S. 14:16 provides, “Unless there is a provision to the contrary in the

definition of a crime, reasonable ignorance of fact or mistake of fact which

precludes the presence of any mental element required in that crime is a defense to

any prosecution for that crime.”

Because Dr. Deland’s report was absent of any conclusion that defendant’s

alleged chronic substance abuse rendered him incapable of forming the specific

intent required to prove a second degree murder charge, it is not clear how her

testimony would have been helpful in presenting the defense of voluntary

intoxication or mistake of fact. Likewise, it is equally unclear how Dr. Deland’s

testimony would have been helpful to the jury in explaining a claim of self-

defense, and defendant failed to provide any clarity or explanation thereto, either to

the district court, or to this Court on appeal.

Dr. Deland’s conclusion that defendant’s alleged chronic substance abuse

possibly impaired his attention, concentration, and ability to follow a line of

thought or stay on topic during his police interview appears irrelevant to the

presentation of the statutory defenses of voluntary intoxication, mistake of fact, or

self-defense. Moreover, Dr. Deland did not offer an opinion in her report as to

whether defendant’s purported condition could have prevented him from

knowingly and voluntarily waiving his right to remain silent, nor did she indicate

that defendant was intoxicated at the time he provided his statement to police.

Thus, it is unclear how her testimony would even be helpful in determining

whether defendant’s statement was constitutionally obtained.

37 Because Dr. Deland’s purported testimony is not relevant to the defenses of

voluntary intoxication, mistake of fact, or self-defense, nor entirely relevant to the

issue of the admissibility of defendant’s statements to police, we find the district

court did not abuse its discretion in excluding Dr. Deland’s testimony. Further,

whether defendant’s notice pursuant to La. C.Cr.P. art. 726 was “timely” is also

irrelevant notwithstanding the district court’s discussion thereof, as Dr. Deland’s

testimony ultimately did not relate to a “mental disease, defect, or other condition

bearing upon the issue of whether he had the mental state required for the offense

charged.”

Defendant has not demonstrated that the district court’s exclusion of Dr.

Deland’s expert testimony prevented him from presenting a defense at trial, and

this assignment of error is without merit.

DECREE

In light of the testimony and evidence presented, and for the reasons stated

above, we affirm defendant’s conviction for second degree murder.

AFFIRMED