Judgment rendered March 4, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,312-KA No. 53,313-KA (Consolidated Cases)
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
MONTECO K. FROST Appellant
Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court Nos. F-2017-126 and F-2018-209
Honorable Stephen G. Dean, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Edward K. Bauman
JOHN M. LANCASTER Counsel for Appellee District Attorney
AMANDA WILKINS K. DOUGLAS WHEELER Assistant District Attorneys
Before PITMAN, GARRETT, and COX, JJ. GARRETT, J.
The defendant, Monteco K. Frost, was convicted as charged of seven
offenses arising from an incident in which a house was shot up by four
gunmen who thought they could steal drugs there. A resident of the home
was injured by the gunfire, and a potential witness walking near the home
was fatally shot as the gunmen fled. The offenses were one count each of
first degree murder, aggravated burglary, criminal conspiracy to commit
aggravated burglary, and conspiracy to commit first degree murder, as well
as three counts of attempted first degree murder of the house residents. For
the offense of first degree murder, the defendant was sentenced to life
imprisonment at hard labor without benefit of parole, probation, or
suspension of sentence. On each of the three counts of attempted first
degree murder, he was sentenced to 50 years at hard labor without benefit of
parole, probation, or suspension of sentence. On the charges of aggravated
burglary and conspiracy to commit attempted first degree murder, he was
sentenced to 30 years at hard labor. For the offense of criminal conspiracy
to commit aggravated burglary, he was sentenced to 15 years at hard labor.
The trial court ordered that all of the sentences were to be served
consecutively and the defendant was to be given credit for time served. The
defendant appeals.
For the reasons expressed below, we are constrained to vacate the
defendant’s conviction and sentence for aggravated burglary on grounds of
double jeopardy. All other convictions and sentences are affirmed.
FACTS
On the night of May 6, 2017, the defendant went to Rayville with
Quincy Hardiman, Josh Chisley, and Rontarrius Jackson to “hit a lick” or commit a robbery or burglary. Their destination was a house where the
defendant believed they could steal drugs.1 All three of his companions
testified that “hitting the lick” was the defendant’s idea. They traveled in a
black Ford Expedition owned by Hardiman’s mother and driven by the
defendant. Each of the men was armed: the defendant and Jackson had 9
mm handguns, Hardiman had a .380 handgun, and Chisley had an AK-47
Draco. After parking a short distance away, they approached the house.
The residence was occupied that night by three members of the
McDaniel family. Deshun McDaniel, Sr. (“Deshun Sr.”), was in his
bedroom watching television, while his eight-year-old son, “T.M.,” was
playing video games on the large-screen television in the living room.
Deshun Sr.’s wife resided there but was not at home at the time of the
incident. His older son, Deshun McDaniel, Jr. (“Deshun Jr.”), was in the
kitchen cooking when someone kicked the side door of the house open.
Deshun Jr. ran to the door and was able to slam it on the arm of the person
attempting to enter the house. The intruder was wearing long sleeves and
holding a gun which he began firing into the house. Deshun Jr. testified that
shots fired by the intruder almost struck his little brother. The gunmen
outside the house also opened fire, striking the house with numerous bullets.
Deshun Jr. testified that, when the intruder began shooting, he yelled for his
father. Deshun Sr. testified that, in response to a loud boom, he ran from his
bedroom toward the kitchen. He described finding a chaotic scene with
bullets “erupting,” and his older son fighting with the gunman whose arm
was trapped in the door. Deshun Jr. eventually released the door and fled
1 A police investigator testified that only a personal use amount of marijuana was found in the house and there was no large amount of cash.
2 out another door of the house. He was struck by gunfire in the buttocks and
leg. His father and his little brother ran from the gunfire and were
miraculously uninjured.2
The four gunmen ran back to the Expedition and began to flee.
Almost immediately, they saw Keric Whitfield, a relative of the McDaniel
family, walking alongside the road. Concerned that Whitfield could identify
them, the defendant said that he “gotta go.” The defendant, who was
driving, used the driver’s power switch to lower the back seat window on the
driver’s side. Chisley, who was in the seat behind the defendant, stuck his
AK-47 Draco out the window and fired three bullets at Whitfield. One of
the bullets entered Whitfield’s right thigh, damaged his right femoral artery,
exited his right thigh, entered his left thigh, and then exited again. The
gunmen fled. A patrol officer responding to a 911 call about the gunfire
from the incident at the McDaniel home arrived about 30 seconds before
Whitfield died from exsanguination.
Over the next few days, the police developed the defendant and his
cohorts as suspects. Based on an anonymous tip, Hardiman was brought in
for questioning. He denied involvement and was released. However, his
mother gave the police permission to search the Expedition, where a 9 mm
bullet was observed by an officer on the driver’s seat. When Hardiman
attempted to hide the bullet, he was arrested for obstruction of justice. He
then gave a statement to the police in which he provided details of the
offenses and the names of his accomplices, all of whom were questioned by
the police and denied involvement. Eventually, Chisley and Jackson gave
2 Deshun Sr. was able to escape from the house, and T.M. hid in a bathtub.
3 statements admitting their complicity in the incident at the McDaniel home
and the subsequent murder of Whitfield.
On May 31, 2017, the defendant, Hardiman, and Chisley were
indicted for the first degree murder of Whitfield, three counts of attempted
first degree murder of the members of the McDaniel family, criminal
conspiracy to commit first degree murder of Deshun Jr., aggravated
burglary, and criminal conspiracy to commit aggravated burglary.3 On
August 16, 2018, Chisley pled guilty to manslaughter and aggravated
burglary and agreed to testify for the state. In September 2018, the state
filed a motion to sever, in which it stated that it had elected to try the
defendant alone. Consequently, an amended bill of indictment was filed
against only the defendant on September 11, 2018.
The defendant’s jury trial commenced on September 17, 2018.
Hardiman, Chisley, and Jackson testified on behalf of the state. Although
there were slight variances in their testimony, all of them identified the
defendant as the instigator of the offenses committed on May 6, 2017,
including Whitfield’s murder. Numerous photos of the crime scenes were
introduced into evidence, along with bullets and projectiles recovered at the
sites. A unanimous jury convicted the defendant as charged on all seven
offenses.
On September 26, 2018, the trial court imposed the mandatory
sentence of life imprisonment without benefit of parole, probation, or
suspension of sentence for the first degree murder of Whitfield. On
January 9, 2019, the 23-year-old defendant appeared for sentencing on the
3 The record does not contain information pertaining to the charges against Jackson.
4 remaining offenses. The trial court noted that the presentence investigation
(“PSI”) report included “negative and derogatory information but no positive
information” about the defendant. It observed that the defendant’s extensive
juvenile record began when he was 13 years old and resulted in him being
on juvenile probation or incarcerated for various offenses in violation of
juvenile probation for practically the entire period until he turned 18. The
PSI report indicated that his adult criminal record began in 2013 with
convictions for simple burglary and flight from an officer, for which he
received 45 days in jail. In 2014, he pled guilty to aggravated second degree
battery, for which he was sentenced to five years at hard labor, with four
years suspended and five years of probation upon release from incarceration.
In 2016, he pled guilty to cruelty to juveniles and was sentenced to five
years at hard labor with three years suspended and two years of supervised
probation upon release from incarceration. Additionally, the PSI report
indicated that, on September 12, 2018, while awaiting his trial on the instant
offenses, the defendant was charged with aggravated escape, illegal
possession of stolen things, flight from an officer, aggravated obstruction of
a highway of commerce, and resisting an officer with force or violence.
The trial court sentenced the defendant to 50 years at hard labor
without benefit of parole, probation, or suspension of sentence on each of
the three counts of attempted first degree murder; 30 years at hard labor on
the charges of aggravated burglary and conspiracy to commit attempted first
degree murder; and 15 years at hard labor on the offense of criminal
conspiracy to commit aggravated burglary. The trial court ordered that all of
5 the sentences were to be served consecutively to each other and to the
previously imposed life sentence for first degree murder.4
The defendant appealed, asserting three assignments of error. They
are: (1) the defendant’s convictions for attempted first degree murder and
the underlying offense of aggravated burglary violated double jeopardy; (2)
the jury erred in finding that the defendant had the specific intent to commit
attempted first degree murder; and (3) defense counsel was ineffective in
failing to file a motion to quash the amended bill of indictment.
DOUBLE JEOPARDY
The defendant argues that his convictions for attempted first degree
murder and aggravated burglary constituted double jeopardy because the
aggravated burglary was the underlying offense for the attempted first
degree murder charges. Because of the manner in which the state chose to
prosecute these charges and the jury charges instructing the jurors about the
elements of two of the three attempted first degree murder charges, we find
merit in this argument.
Law
Both the United States and Louisiana Constitutions provide that no
person shall be twice put in jeopardy of life or liberty for the same offense.
U.S. Const. Amend. V; La. Const. art. I, § 15; La. C. Cr. P. art. 591. Double
jeopardy provisions protect an accused not only from a second prosecution
on the same offense, but also from multiple punishments for the same
criminal conduct. State v. Vaughn, 431 So. 2d 763 (La. 1983); State v.
4 Additionally, the defendant’s probation for aggravated second degree battery was revoked, and he was ordered to serve his previously suspended sentence for that offense, also to be served consecutively.
6 Hardyway, 52,513 (La. App. 2 Cir. 2/27/19), 266 So. 3d 503, writ denied,
19-00522 (La. 10/21/19), 280 So. 3d 1156.
In Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L.
Ed. 306 (1932), the United States Supreme Court set out a precise rule of
law to determine if a double jeopardy violation has transpired. “The
applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.” Blockburger v.
United States, supra. Louisiana’s separate “same evidence” test is no longer
used in determining whether a double jeopardy violation exists. State v.
Frank, 16-1160 (La. 10/18/17), 234 So. 3d 27; State v. Hardyway, supra.
When proof of the commission of a felony is an essential element of
felony murder or attempted felony murder, Louisiana courts have held that
the defendant cannot be convicted and punished for both the murder or
attempted murder and the underlying felony. State v. Thomas, 50,929 (La.
App. 2 Cir. 8/10/16), 201 So. 3d 263, writ denied, 16-1642 (La. 9/6/17), 224
So. 3d 980; State v. Coates, 27,287 (La. App. 2 Cir. 9/27/95), 661 So. 2d
571, writ denied, 95-2613 (La. 2/28/96), 668 So. 2d 365.
The remedy for a double jeopardy violation is that the less severely
punishable conviction and sentence are vacated. State v. Hardyway, supra.
The defendant was convicted of three counts of attempted first degree
murder. La. R.S. 14:30(A) provides, in pertinent part, that first degree
murder is the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of . . . aggravated burglary[.]
7 ... (3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person. ... (5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim who is under the age of twelve or sixty-five years of age or older.
La. R.S. 14:27 defines an attempted offense as occurring when any
person who, having a specific intent to commit a crime, does or omits an act
for the purpose of and tending directly toward the accomplishing of his
object.
The defendant was also convicted of aggravated burglary. La. R.S.
14:60 defines this offense as follows:
A. Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, under any of the following circumstances:
(1) If the offender is armed with a dangerous weapon.
(2) If, after entering, the offender arms himself with a dangerous weapon.
(3) If the offender commits a battery upon any person while in such place, or in entering or leaving such place.
An “entry” for purposes of the crime of burglary occurs when any part
of the intruder’s person crosses the plane of the threshold. State v. Bryant,
12-233 (La. 10/16/12), 101 So. 3d 429; State v. Bailey, 48,042 (La. App. 2
Cir. 5/15/13), 115 So. 3d 739, writ denied, 13-1385 (La. 12/6/13), 129 So.
3d 530.
Discussion
The defendant contends that his convictions for attempted first degree
murder and aggravated burglary violate double jeopardy because aggravated
burglary was the underlying offense for the attempted first degree murder
8 charges. The state argues that double jeopardy was not violated because
there were two other possible grounds for charging the defendant with
attempted first degree murder: the defendant had the specific intent to kill
more than one person and one of his victims was under the age of 12 years.
Our review of the record reveals that the state argued to the jury that
the defendant was guilty of three counts of attempted first degree murder
because he attempted to kill the McDaniels “in the course of aggravated
burglary.”5 Thereafter, the trial court, without objection, charged the jury
that, as to the counts pertaining to Deshun Jr. and Deshun Sr., they should
convict the defendant of attempted first degree murder if they found beyond
a reasonable doubt that he had the specific intent to kill them while engaged
in the “perpetration or attempted perpetration of aggravated burglary.” 6 No
other ground enumerated under La. R.S. 14:30, such as having specific
intent to kill more than one person, was mentioned as to these two counts. 7
As a result, the state was limited to proving attempted first degree murder
5 In its closing argument, the prosecutor specifically stated:
They are guilty of those three crimes: attempted first degree murder. Why? Because they attempted to kill these people in the course of aggravated burglary. Do you remember the definition we read? First degree murder the killing of a human being in the perpetration of an aggravated burglary. This was an attempt because they were committing aggravated burglary. 6 The jury was only charged pursuant to La. R.S. 14:30(A)(1) as to the two adult occupants of the house. As will be discussed infra, the trial court charged the jury, pursuant to La. R.S. 14:30(A)(5), that the count of attempted first degree murder pertaining to eight-year-old T.M. involved the specific intent to kill a victim under the age of 12 years. 7 See and compare State v. Whins, 96-0699 (La. App. 4 Cir. 4/9/97), 692 So. 2d 1350, writ denied, 97-1227 (La. 11/7/97), 703 So. 2d 1263, wherein the court found no double jeopardy violation because the trial court’s jury charge set forth multiple aggravating circumstances (the defendant engaged in perpetration of aggravated burglary, the defendant had specific intent to kill more than one person, and the defendant had the specific intent to kill a victim under the age of 12 years) which the jury could have found applicable.
9 with only the aggravated burglary charge under the felony murder doctrine
as to the counts pertaining to Deshun Jr. and Deshun Sr. See State v.
Hardyway, supra.
In view of the jurisprudence, the facts of the instant case, the manner
in which the state chose to prosecute this case, and the jury instructions
given here, we are required to find a double jeopardy violation. The remedy
for a double jeopardy violation is vacating the less severely punishable
conviction and sentence. Consequently, we must vacate the defendant’s
conviction and sentence for aggravated burglary, the less severely
punishable offense.8
SPECIFIC INTENT TO COMMIT ATTEMPTED FIRST DEGREE MURDER
The defendant argues that the jury erred in finding that he had specific
intent to commit attempted first degree murder of the three occupants of the
McDaniel house. We find no merit to this assignment of error.
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124
S. Ct. 1604, 158 L. Ed. 2d 248 (2004). This standard, now legislatively
8 The penalty for attempted first degree murder is imprisonment at hard labor for not less than 10, nor more than 50 years, without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:30; La. R.S. 14:27. The penalty for a conviction of aggravated burglary is imprisonment at hard labor for not less than one nor more than 30 years. La. R.S. 14:60.
10 embodied in La. C. Cr. P. art. 821, does not provide the appellate court with
a vehicle to substitute its own appreciation of the evidence for that of the
factfinder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517; State v.
Turner, 52,510 (La. App. 2 Cir. 4/10/19), 267 So. 3d 1202, writ denied, 19-
00873 (La. 9/24/19), 279 So. 3d 386. A reviewing court accords great
deference to the factfinder’s decision to accept or reject the testimony of a
witness in whole or in part. State v. Turner, supra.
The Jackson standard is applicable in cases involving both direct and
circumstantial evidence. An appellate court reviewing the sufficiency of
evidence in such cases must resolve any conflict in the direct evidence by
viewing that evidence in the light most favorable to the prosecution. When
the direct evidence is thus viewed, the facts established by the direct
evidence and inferred from the circumstances established by that evidence
must be sufficient for a rational trier of fact to conclude beyond a reasonable
doubt that the defendant was guilty of every essential element of the crime.
State v. Sutton, 436 So. 2d 471 (La. 1983); State v. Hust, 51,015 (La. App. 2
Cir. 1/11/17), 214 So. 3d 174, writ denied, 17-0352 (La. 11/17/17), 229 So.
3d 928.
In the absence of internal contradiction or irreconcilable conflict with
physical evidence, one witness’s testimony, if believed by the trier of fact, is
sufficient support for a requisite factual conclusion. State v. Weston, 52,312
(La. App. 2 Cir. 11/14/18), 260 So. 3d 722, writ denied, 18-2066 (La.
4/22/19), 268 So. 3d 299. The trier of fact is charged to make a credibility
evaluation and may, within the bounds of rationality, accept or reject the
testimony of any witness; the reviewing court may impinge on that
discretion only to the extent necessary to guarantee the fundamental due
11 process of law. State v. Sosa, 05-0213 (La. 1/19/06), 921 So. 2d 94; State v.
Hust, supra.
Specific intent is that state of mind that exists when the circumstances
indicate that the offender actively desired the prescribed criminal
consequences to follow his act or failure to act. La. R.S. 14:10(1). Such
state of mind can be formed in an instant. State v. Weston, supra. Because
specific intent is a state of mind, it does not have to be proven as a fact, but
may be inferred from the circumstances and the conduct of the accused.
State v. Bishop, 01-2548 (La. 1/14/03), 835 So. 2d 434; State v. Hust, supra.
Specific intent to kill may be inferred from a defendant’s act of
pointing a gun and firing it at a person. State v. Hust, supra; State v. Butler,
37,226 (La. App. 2 Cir. 6/25/03), 850 So. 2d 932. The fact that multiple
shots are fired at a victim indicates a defendant’s culpable state of mind and
satisfies the specific intent to kill requirement for murder. State v. Hust,
supra; State v. Griffin, 618 So. 2d 680 (La. App. 2 Cir. 1993), writ denied,
625 So. 2d 1063 (La. 1993). The determination of whether the requisite
intent is present is a question for the trier of fact. State v. Minor, 52,091 (La.
App. 2 Cir. 9/26/18), 254 So. 3d 1278.
The defendant’s mere presence at the scene is not enough to
“concern” an individual in the crime. State v. Brooks, 49,024 (La. App. 2
Cir. 5/14/14), 139 So. 3d 1072, writ denied, 14-1202 (La. 2/13/15), 159 So.
3d 459; State v. Thompson, 39,454 (La. App. 2 Cir. 3/2/05), 894 So. 2d
1268.
All persons concerned in the commission of a crime, whether present
or absent, and whether they directly commit the act constituting the offense,
aid or abet in its commission, or directly or indirectly counsel or procure
12 another to commit the crime are principals. La. R.S. 14:24. An individual
may only be convicted as a principal for those crimes for which he
personally has the requisite mental state, which in the case of attempted first
degree murder is specific intent to kill. State v. Mills, 2013-0573 (La. App.
1 Cir. 8/27/14), 153 So. 3d 481, writs denied, 14-2027 (La. 5/22/15), 170 So.
3d 982, and 14-2269 (La. 9/18/15), 178 So. 3d 139. It is not enough that his
accomplice have the intent; the State must prove that the defendant had the
required mental element. State v. Tate, supra; State v. Mills, supra.
Acting in concert, each person becomes responsible not only for his
own acts, but for the acts of the others. State v. Anderson, 97-1301 (La.
2/6/98), 707 So. 2d 1223; State v. Jones, 49,830 (La. App. 2 Cir. 5/20/15),
166 So. 3d 406, writ not cons., 15-1524 (La. 3/14/16), 188 So. 3d 1067.
Under the law of principals, a person may be convicted of an offense even if
he has not personally fired the fatal shot. State v. Jones, supra.
The defendant contends that the state tried to prove that he had
specific intent to kill the house occupants and committed an overt act toward
that goal through the testimony of his co-perpetrators. He maintains that
their testimony was so lacking in credibility that it was not worthy of belief.9
The defendant and his cohorts attempted to force entry into an
inhabited home to steal drugs. When their entry was frustrated by Deshun
Jr.’s actions in trying to slam the door shut, the person whose arm was
trapped in the door fired repeatedly into the interior of the house and the
9 Additionally, the defendant argues that there was no proof that he or any of his cohorts knew there was more than one person in the house. In support of his argument, he cites State v. Whins, supra. However, since the jury was not charged under La. R.S. 14:30(A)(3), this argument is irrelevant.
13 others outside began indiscriminately shooting into the house. Crime scene
photos showed numerous bullet holes in the interior walls and the kitchen
appliances, as well as a bullet hole in the living room television set. They
also show bullet holes on the exterior of the house.
All of the other men involved in the shooting at the McDaniel house
testified against the defendant. Each man said that “hitting a lick” at the
McDaniel house was the defendant’s idea. The men agreed that the
defendant assumed a leadership role in committing the offenses, which
included driving them to and from the crime scene. He also recruited the
participants. Chisley and Jackson were childhood friends of the defendant,
whereas Hardiman had known him for about five years. Chisley and
Jackson had never met Hardiman before the day of the offenses.
The accomplices’ accounts varied on some details, such as who
kicked in the side door of the McDaniel residence. According to Hardiman,
the defendant went up the steps to the side door, kicked in the side door, and
began shooting into the house. He testified that the defendant was the first
to start shooting. Hardiman admitted standing by the stairs and twice firing
the .380 handgun he was carrying. Chisley testified that, after the defendant
led the group up to the house, Hardiman kicked the door in. He denied
knowing whose arm was stuck in the door, but he admitted telling the
prosecutor earlier that it could have been the defendant. He also testified
that he did not see Hardiman stick his hand in the door, but he “couldn’t see
directly” whether the defendant stuck his arm in the house. He further
testified that they all shot at the house. Jackson testified that both the
defendant and Hardiman went to the door; Hardiman kicked in the door and
the defendant started shooting. Like Hardiman, Jackson testified that the
14 defendant was the first to begin shooting. He denied firing the 9 mm
handgun he was carrying, saying he had no reason to do so.
The jury, which heard this testimony and observed the demeanor of
these witnesses, made multiple credibility determinations. It rejected the
defendant’s attacks on the credibility of the state’s witnesses and reasonably
concluded that the defendant possessed the specific intent to kill Deshun Jr.
and Deshun Sr., the adult occupants of the house, during the commission of
the aggravated burglary and that he committed an act in furtherance of
killing them.
We note that, as to eight-year-old T.M., the jury was charged pursuant
to La. R.S. 14:30(A)(5), i.e., that the state had to prove that the defendant
had the specific intent to kill a victim who was under the age of 12 years and
commit an act in furtherance of killing him. At the time of the incident,
T.M. was playing video games on the television in the living room, which
was adjacent to the kitchen. According to the testimony of Deshun Jr., the
child was sitting in such close proximity to the door between the kitchen and
the living room that he would have been the first thing seen by the armed
person attempting to enter the house by the side door. Deshun Jr. testified
that, when the door first swung open, the first shot fired by the intruder
almost hit his little brother in the head. Crime scene photos showed where a
bullet struck the living room television in front of which the child had been
sitting. When shown photos of his living room, Deshun Sr. testified that,
based on where T.M. sat to play video games, the bullet that hit the
television must have gone by the child’s head.
The evidence was sufficient for the jury to reasonably conclude that
the defendant was the shooter whose arm was caught in the door. Deshun
15 Jr.’s testimony that his little brother was in plain view of the door was
sufficient to prove that the defendant had the specific intent to kill this young
child. Further, Deshun Jr.’s testimony was fully corroborated by the crime
scene photos that were introduced into evidence. The photos reflected the
close proximity of the living room where the young child was playing video
games to the door where the defendant was shooting into the living room.
They also show that the top half of the side door had glass panes, which
would have provided the defendant with visibility into the kitchen and the
living room.
Accordingly, viewed in the light most favorable to the prosecution,
the evidence in this record is clearly sufficient to prove beyond a reasonable
doubt that the defendant committed the crime of attempted first degree
murder against the three members of the McDaniel family.
INEFFECTIVE TRIAL COUNSEL
In this assignment of error, the defendant alleges that his trial counsel
was ineffective because he failed to file a motion to quash an allegedly
defective amended bill of indictment. We disagree.
Under Louisiana law, prosecution for a capital offense or an offense
punishable by life imprisonment shall be instituted by indictment by the
grand jury, and prosecution of other felony offenses shall be initiated by
indictment or information. La. Const. art. I, § 15; La. C. Cr. P. art. 382(A).
An indictment is a written accusation of crime made by a grand jury that
must be concurred in by not less than nine grand jurors, indorsed a “true
bill,” and the indorsement must be signed by the foreman. La. C. Cr. P. art.
383. State v. Brazell, 2017-0032 (La. App. 4 Cir. 4/18/18), 245 So. 3d 15,
16 writ denied, 18-0868 (La. 3/6/19), 266 So. 3d 900, cert. denied, 140 S. Ct.
263, 205 L. Ed. 2d 167 (2019).
The district attorney has full authority to amend bills of information
and indictments, both as to form and substance, at any time before trial.
State v. Singleton, 52,151 (La. App. 2 Cir. 1/16/19), 263 So. 3d 1269, writ
not cons., 19-00457 (La. 8/12/19), 279 So. 3d 913; State v. Johnson, 49,985
(La. App. 2 Cir. 5/18/16), 196 So. 3d 26, writ not cons., 16-1074 (La.
5/1/17), 219 So. 3d 1101. The purpose of requiring the State to file an
amendment to an indictment before trial is to provide the defendant with
adequate notice of the crime for which he is charged so he can properly
prepare his defense. State v. Wright, 40,945 (La. App. 2 Cir. 5/19/06), 931
So. 2d 432, writ denied, 06-1727 (La. 3/16/07), 952 So. 2d 694; State v.
Delandro, 2001-2514 (La. App. 1 Cir. 5/10/02), 818 So. 2d 1011. When the
indictment against the defendant provides sufficient notice of the crime with
which he is charged, a defendant suffers no prejudice. State v. Delandro,
supra; State v. Brazell, supra.
The time for testing the sufficiency of an indictment or bill of
information is before trial by way of a motion to quash or an application for
a bill of particulars. State v. Draughn, 05-1825 (La. 1/17/07), 950 So. 2d
583, cert. denied, 552 U.S. 1012, 128 S. Ct. 537, 169 L. Ed. 2d 377 (2007).
A post-verdict attack on the sufficiency of an indictment should be rejected
unless the indictment failed to give fair notice of the offense charged or
failed to set forth any identifiable offense. State v. Singleton, supra; State v.
Scheanette, 51,851 (La. App. 2 Cir. 2/28/18), 246 So. 3d 718.
A claim of ineffective assistance of counsel is analyzed under the two-
prong test developed by the United States Supreme Court in Strickland v.
17 Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To
establish that his attorney was ineffective, the defendant first must show that
counsel’s performance was deficient. This requires a showing that counsel
made errors so serious that he was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that counsel’s deficient performance prejudiced his defense. A
defendant making a claim of ineffective assistance of counsel must identify
certain acts or omissions by counsel which led to the claim; general
statements and conclusory charges will not suffice. Strickland v.
Washington, supra; State v. Jones, 49,396 (La. App. 2 Cir. 11/19/14), 152
So. 3d 235, writ denied, 14-2631 (La. 9/25/15), 178 So. 3d 565.
Claims of ineffective assistance of counsel are more properly raised in
an application for post-conviction relief in the trial court because it provides
the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930.
However, when the record is sufficient, allegations of ineffective assistance
of trial counsel may be resolved on direct appeal in the interest of judicial
economy. State v. Jones, supra.
The original bill of indictment, which was filed May 31, 2017, was in
proper form and charged the defendant, Chisley, and Hardiman with seven
offenses, including first degree murder.10 The copy of the bill of indictment
found in the appellate record has a handwritten notation striking out “first
degree murder” and writing “manslaughter” above it. The initials of the
10 At the time of his arraignment on July 12, 2017, defense counsel stated on the record that, while the state had already decided not to pursue the death penalty, the defendant was still charged with first degree murder.
18 assistant district attorney and the date “8/16/2018” are found next to the
notation. Pursuant to the severance of the defendant’s case from his co-
defendants’, an amended bill was filed against only the defendant on
September 11, 2018. This bill, which was signed by the assistant district
attorney, also corrected the date of the offenses, the house number of the
McDaniel home, and the fact that the inhabited dwelling where the
aggravated burglary was alleged to have occurred belonged to Deshun Sr.
and his wife, not Deshun Jr. It charged the defendant with the same offenses
listed in the original bill, including first degree murder. On September 12,
2018, the defendant appeared in court on pretrial matters. The state recited
the charges against the defendant, which included first degree murder, and
noted that he had declined a plea agreement which would have allowed him
to plead guilty to an amended charge of manslaughter and the aggravated
burglary charge. When asked if he wished to go to trial on all of the pending
charges, including first degree murder, the defendant replied, “Correct.”
When the defendant’s case came up for trial on September 17, 2018,
the first matters placed on the record by the state were the amendments as to
the date, the address, and the persons to whom the dwelling belonged.
Defense counsel stated that he had no objection to the amendments. The
contents of the amended bill, which recited the first degree murder charge,
was read to the impaneled jury at the beginning of trial. The state presented
the testimony of Chisley, who admitted that he had already pled guilty to
manslaughter and aggravated burglary. Copies of his written plea
agreement, dated August 16, 2018, the same date as the handwritten notation
on the original bill of indictment, were admitted into evidence by both the
state and the defense.
19 The defendant argues that the handwritten notation on the original bill
of indictment reduced his charge of first degree murder to manslaughter and
that the subsequent amended bill still charging him with first degree murder
was defective because it was not signed by the grand jury foreman. The
defendant contends that, as a result, his trial counsel was ineffective because
he did not file a motion to quash the amended bill. We conclude that the
record before us is sufficient to address the defendant’s arguments, which
we find to be meritless.
The prosecution against the defendant for first degree murder was
validly instituted by a grand jury indictment. The defendant was arraigned
only once, in July 2017, at which time he entered a plea of not guilty to the
first degree murder charge in the original bill of indictment. Under La.
C. Cr. P. art. 487, the state had the authority to amend the indictment prior to
trial. The amendments made by the state as to the date and the McDaniel
residence did not prejudice the defendant in any manner. Furthermore, the
evidence in the appellate record firmly establishes that the handwritten
notation on the original bill of indictment concerned Chisley’s guilty plea,
which was entered on August 16, 2018. As a result, there was no valid
ground for trial counsel to file a motion to quash the amended bill. Thus, his
failure to file such a motion cannot be construed as ineffective assistance of
counsel.
This assignment of error lacks merit.
CONCLUSION
For the reasons expressed above, the defendant’s conviction and
sentence for aggravated burglary are vacated. The defendant’s remaining
convictions and sentences are affirmed.
20 CONVICTION AND SENTENCE FOR AGGRAVATED BURGLARY VACATED; ALL OTHER CONVICTIONS AND SENTENCES AFFIRMED.