NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
r! Fk) 2019 KA 1610
VERSUS
RYAN HARRIS
JUDGMENT RENDERED: JGr O 3 2020
Appealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche • State of Louisiana Docket Number 551289 • Division " C"
The Honorable Jerome J. Barbera, Judge Presiding
Mary Constance Hanes ATTORNEY FOR APPELLANT, Louisiana Appellate Project DEFENDANT— Ryan Harris New Orleans, Louisiana
Kristine Russell ATTORNEYS FOR APPELLEE,
District Attorney State of Louisiana Thibodaux Louisiana
Joseph S. Soignet Jason Chatagnier Assistant District Attorneys Thibodaux, Louisiana
BEFORE: MCCLENDON, WELCH, AND HOLDRIDGE, JJ.
P M4 . 17 J-tw yam,.. C4-40.. . '-%•. WELCH, I
The State of Louisiana charged the defendant, Ryan Harris, by bill of
information with unlawful use or possession of body armor, a violation of La. R.S.
14: 95. 3 ( count one); attempted second degree murder, a violation of La. R.S.
14: 30. 1 and La. R.S. 14: 27 ( count two); illegal possession of stolen firearms, a
violation of La. R.S. 14: 69. 1 ( count three); and illegal carrying of a firearm at a
parade with any firearm used in the commission of a crime of violence, a violation
of La. R.S. 14: 95. 2. 1 ( count four). The defendant pled not guilty on all counts.
After a trial by jury, the jury found the defendant guilty as charged on all counts.
The trial court denied the defendant' s motion for post -verdict judgment of acquittal
and motion for new trial. The trial court sentenced the defendant to two years
imprisonment at hard labor on count one; ten years imprisonment at hard labor
without the benefit of probation, parole, or suspension of sentence on count two;
three years imprisonment at hard labor on count three; and one year imprisonment
at hard labor on count four. The trial court ordered that the defendant' s sentences
on counts one, two, and three run concurrent with each other, and that the
defendant' s sentence on count four run consecutive to the other sentences. The
defendant now appeals, assigning error to the admission of hearsay testimony and
to the constitutionality of his conviction on count one by a non -unanimous jury
verdict. For the following reasons, we vacate the defendant' s conviction and
sentence on count one, and we affirm the defendant' s convictions and sentences on
counts two, three, and four.
STATEMENT OF FACTS
On January 31, 2016, Corporal Dustin Roberts, a canine officer with the
Thibodaux Police Department ( TPD), was on duty at a parade in Thibodaux,
stationed at the intersection of Canal Boulevard and Jackson Street. At
approximately 2: 50 p.m., Corporal Roberts ran south to an area from which he
2 heard multiple gunshots ( estimated at four or five) as they were being fired.
Corporal Roberts arrived at an area on Canal Boulevard where a large crowd was
scattering with many people running in different directions. Corporal Roberts
proceeded to the center of the area from which the crowd was spreading and
observed a black male, later identified as Quincey Johnson, lying on the ground
armed with a gun. Corporal Roberts, whose gun was already drawn, instructed
Johnson to drop his gun. At that point, Johnson rolled over, placing the gun
underneath his chest. Corporal Roberts then crossed a barricade to handcuff
Johnson and discovered that Johnson was having difficulty breathing. As Corporal
Roberts turned Johnson over, he saw the handgun that Johnson was initially
holding, along with another handgun that was also located underneath Johnson.
Deputy Donald Aubrey of the Assumption Parish Sheriff' s Office ( APSO), who
also heard the gunshots and responded to the area, recovered the weapons as
Corporal Roberts secured Johnson.
After the weapons were recovered, Deputy Roberts removed the handcuffs,
as Johnson was still having trouble breathing and needed medical attention. As
other officers arrived on the scene and began securing the area and collecting shell
casings, Deputy Roberts observed that Johnson had a bullet wound to his chest,
and Johnson was transported to a hospital. Deputy Roberts then responded to a
dispatch for canine control of another crowd located further north on Canal
Boulevard near Twelfth Street, where another wounded person, later identified as
the defendant, was located.
Latoya Walker, a parade attendee who witnessed the shooting, testified at
trial that she was standing near the barricade when she first noticed two males
arguing. About ten minutes later, when the gunfire started, Walker saw the two
men, one wearing a brown shirt and the other wearing a purple shirt, firing their
guns at each other. Walker identified the male wearing the purple shirt as the
3 defendant. She indicated that the other male was right next to her as the defendant
fired at him from the road, across from the barricade. At the time of trial, Walker
stated that she did not recall who fired first, but estimated that about six gunshots
were fired " back and forth."' She further testified that the male wearing the brown
shirt fell to the ground after he was struck but was still firing at the defendant.
Detective Corey Brooks of the TPD responded to the shooting and interviewed
Walker. According to Detective Brooks, at that time, Walker recalled that the
male wearing the purple shirt, the defendant, fired his gun first from his standpoint
behind the barricade.
Captain Jamie Fontenot, of the TPD, was among the officers dispatched to
the Twelfth Street and Canal Boulevard intersection just after the shooting. Upon
his arrival, he saw the defendant lying in a grassy area with apparent gunshot
wounds to his arm. As Captain Fontenot further testified at trial, the defendant was
wearing a police -type, bulletproof vest at the time. When an ambulance arrived to
transport the defendant to the hospital, Captain Fontenot and Detective Brooks
removed the bulletproof vest, and Detective Brooks secured the vest as evidence.
As a result of the shooting, the defendant and Johnson were charged with
multiple offenses. Prior to the defendant' s trial, Johnson pled guilty to attempted
second degree murder, possession of a firearm by a convicted felon, discharge of a
firearm on a parade route, terrorizing, and possession of a stolen firearm. During a
pretrial interview and again at trial, the defendant indicated that he knew Johnson
before the shooting. Regarding his gun, the defendant testified that he found it
before the shooting and that he was unaware of the fact that it had been stolen. As
to why he kept the gun and was wearing a vest at the time of the shooting, the
defendant stated that he had been " threatened by people" and needed to protect
While Walker was initially asked how many shots the defendant fired and responded, "[ i] t was about six times," she later clarified that approximately six gunshots were shot back and forth between the two shooters.
C! himself. The defendant identified Johnson as one of the people who threatened to
kill him before the shooting. The defendant testified that on the day of the
shooting, Johnson grabbed him and demanded, " where' s my money?" He then
claimed that Johnson fired first, shooting the defendant in the side. The defendant
further stated that after being shot in the side, he fired back one gunshot at Johnson
in self-defense and then dropped his gun, as Johnson shot him in the arm. The
defendant claimed he was shot additional times as he fled.
ASSIGNMENT OF ERROR ONE
The defendant argues that the trial court erred in allowing Detective Brooks
to testify that Walker made a pretrial statement inconsistent with her trial
testimony. He claims that at trial, Walker testified that she did not see who started
shooting first. The defendant argues that the trial court erred in overruling his
objection and ruling that the testimony was not hearsay because Walker testified at
trial. He contends that the trial court' s error was not harmless as the testimony at
issue severely damaged his claim of self-defense. Arguing that it may have been a
deliberate strategy, the defendant notes the State failed to question Walker
regarding her prior statement but waited to elicit the statement from Detective
Brooks. The defendant further argues that his constitutional right of confrontation
was violated as he did not have the opportunity to cross- examine Walker
concerning the inconsistent statement.
The Sixth Amendment to the United States Constitution guarantees an
accused in a criminal prosecution the right to be confronted with the witnesses
against him. The confrontation clause of the Louisiana Constitution specifically
and expressly guarantees an accused the right " to confront and cross- examine the
witnesses against him." La. Const. Art. I, § 16. Confrontation not only means the
ability to confront the witnesses physically but also to secure for the defendant the
opportunity of cross- examination, which is its main and essential purpose. Cross -
I examination is the principal way to test the believability and truthfulness of the
testimony, and it has traditionally been used to impeach or discredit the witness.
State v. Robinson, 2001- 0273 ( La. 5/ 17/ 02), 817 So. 2d 1131, 1135; State v.
Mitchell, 2016- 0834 ( La. App. 1St Cir. 9/ 21/ 17), 231 So. 3d 710, 723, writ denied,
2017- 1890 ( La. 8/ 31/ 18), 251 So. 3d 410.
Hearsay is a statement, other than one made by the declarant while testifying
at the present trial or hearing, offered in evidence to prove the truth of the matter
asserted. La. C. E. art. 801( C). Hearsay evidence is not admissible except as
otherwise provided by the Code of Evidence or other legislation. La. C. E. art. 802;
Mitchell, 231 So. 3d at 724. Under certain circumstances, the testimony of a
police officer may encompass information provided by another individual without
constituting hearsay if offered to explain the course of a police investigation and 1St the steps leading to the defendant' s arrest. State v. Young, 99- 1264 ( La. App.
Cir. 3/ 31/ 00), 764 So. 2d 998, 1005.
Out-of-court statements that are testimonial are barred under the
Confrontation Clause, unless the witness is unavailable to testify, and the
defendant had a prior opportunity to cross- examine the witnesses. Crawford v.
Washington, 541 U.S. 36, 68- 69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177
2004); State v. Tsolainos, 2007- 2443 ( La. App. 1St Cir. 10/ 10/ 08), 997 So. 2d 46,
48 ( per curiam), writ denied, 2008- 2653 ( La. 10/ 9/ 09), 19 So. 3d 6. The
Crawford court drew a distinction between testimonial and nontestimonial
statements and confined its holding to testimonial evidence. Crawford, 541 U.S.
at 61- 68, 124 S. Ct. at 1370- 74. Statements are nontestimonial when made in the
course of police interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and the primary purpose is to
0 establish or prove past events potentially relevant to later criminal prosecution.
Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273- 74, 165 L. Ed. 2d
224 ( 2006); State v. Hayes, 2016- 0441 ( La. App. Pt Cir. 9/ 19/ 16), 204 So. 3d 201,
208, writ denied sub nom., State v. Hazes, 2016- 1886 ( La. 9/ 6/ 17), 224 So. 3d
r= I
As asserted by the State in its reply brief, we note at the outset that the
defendant did not contemporaneously object to the testimony at issue.
Specifically, the defendant objected when the State questioned Detective Brooks as
follows: " Now, you had an opportunity to speak to Ms. Latoya Walker. She did
testify today. Do you recall what she stated, who she saw wearing the purple
shirt?" At that point, the defense objected on the grounds of hearsay. The trial
court overruled the objection and allowed the detective to answer the question as
follows: " Mr. Ryan Harris." Without objection, the State subsequently inquired as
to when Walker made the statement, and Detective Brooks indicated it was made
on the day of the shooting. The State then questioned Detective Brooks as to
Walker' s state of mind at the time. Detective Brooks explained that Walker was
worried and scared because her child was with her at the time of the shooting.
Again, there was no objection to the exchange. At that point, the following
colloquy took place between the State and Detective Brooks:
Q. And did she state who started shooting? A. Yes, sir. Q. And who did she indicated [ sic] started shooting? A. Mr. Ryan Harris.
Q. Did she indicate that he started shooting first? A. Yes, sir.
There was no objection during or after the above colloquy. Further, the
defense did not indicate that the initial hearsay objection was continuing. Also, the
defense' s initial objection was on the basis of hearsay only, not on the grounds of a
confrontation violation or admission of a prior inconsistent statement. Louisiana
7 Code of Criminal Procedure article 841 pertinently provides, " An irregularity or
error cannot be availed of after verdict unless it was objected to at the time of
occurrence." Accordingly, a contemporaneous objection is necessary to preserve
an issue for appellate review. As such, the defendant has waived his right to raise
the issues asserted in assignment of error number one on appeal. La. C. E. art.
103( A)( 1); La. C. Cr.P. art. 841( A). See Young, 764 So. 2d at 1005 ("[ t]he basis or
ground for the objection must be sufficiently brought to the attention of the trial
court to allow it the opportunity to make the proper ruling and prevent or cure any
error."); State v. Hatfield, 2013- 0813 ( La. App. 4" Cir. 7/ 2/ 14), 155 So. 3d 572,
603, writ denied, 2014- 1648 ( La. 3/ 27/ 15), 162 So. 3d 383 ( wherein the appellate
court held that the defendant' s objection to testimony as hearsay did not preserve
his right to appellate review of the same testimony on confrontation grounds). 2
Moreover, we note that Walker did testify at trial and was subject to cross-
examination. At trial, Walker was asked whether she could remember who fired
the first shot, and she responded that she did not recall. Walker did not testify that
she did not know or see who shot first, or that it was not the defendant who fired
first. Instead, she specifically testified that she could not at that time recall who
fired first. During cross- examination, Walker was asked, " you don' t really know
who shot first?" Walker responded, "[ n] o, sir." Thus, her prior statement was not
inconsistent with her trial testimony.
In United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951
1988), the Supreme Court addressed the issue of whether a Confrontation Clause
violation can be based upon a witness' loss of memory. In Owens, a correctional
counselor sustained severe memory impairment after being beaten with a metal
2 We note that in its written reasons for denying the defendant' s motion for new trial, the trial court touched on the testimony at issue in this assignment of error. While we find that the defendant is procedurally barred from asserting the arguments raised in this assignment of error, as he did not contemporaneously object to the testimony at trial, this court will address the merits of the defendant' s arguments out of an abundance of caution. pipe. When he was first interviewed in the hospital by the FBI, he could not recall
his attacker. A few weeks later, he was able to describe the attack and identify his
attacker. At trial, the counselor testified he remembered identifying his attacker in
the second interview in a photographic lineup; however, on cross- examination, he
admitted he could not remember seeing his assailant. He further could not
remember if anyone in the hospital had suggested the identity of his attacker to him
despite defense counsel' s attempt to refresh the counselor' s memory with hospital
records, which showed he had attributed the assault to someone other than the
defendant. Owens, 484 U.S. at 556, 108 S. Ct. at 840- 41.
In finding no Confrontation Clause violation, the Supreme Court explained
that "[ T] he Confrontation Clause guarantees only ` an opportunity for effective
cross- examination, not examination that is effective in whatever way, and to
whatever extent, the defense might wish."' Owens, 484 U.S. at 559, 108 S. Ct. at
842 ( emphasis as in original; internal citations omitted). The Supreme Court
specifically held that the Confrontation Clause is not violated by the admission of a
statement of a witness, who is unable because of a memory loss, to testify
concerning the basis for the statement. Id. at 564, 108 S. Ct. at 845.
Many years later, in Crawford, the Supreme Court held that the
Confrontation Clause requires that testimonial statements can only be admitted as
evidence at a criminal trial when the declarant is unavailable to testify and the
defendant has had a prior opportunity to cross- examine the declarant. In footnote
nine of its opinion, the Supreme Court stated that " when the declarant appears for
cross- examination at trial, the Confrontation Clause places no constraints at all on
the use of his prior testimonial statements." Crawford, 541 U.S. at 59 n. 9, 124 S.
Ct. at 1369 n.9. It further stated, "[ t]he Clause does not bar admission of a
statement so long as the declarant is present at trial to defend or explain it." Id.
Based on Owens and Crawford, a declarant' s appearance and subjection to
9 cross- examination at trial are all that is necessary to satisfy the Confrontation
Clause, even if the declarant suffers from memory loss. See State v. Gorman, 854
A.2d 1164, 1178 ( Me. 2004), cert. denied, 544 U.S. 928, 125 S. Ct. 1663, 161 L.
Ed. 2d 490 ( 2005) ( admission of the witness' grand jury testimony did not violate
Confrontation Clause when the witness had selective memory during trial; court
found right to confrontation was satisfied when the defendant was given the
opportunity to cross- examine the witness before the jury). Accordingly, we find
the admission of Detective Brooks' testimony regarding Walker' s statement did
not violate the defendant' s right to confrontation. Walker appeared at trial, was
sworn in, and answered questions posed to her. We find that under these
circumstances, the defendant was afforded an adequate opportunity to cross-
examine Walker sufficient to satisfy the requirements of the Confrontation Clause.
Moreover, the statement in question was made in the course of a police
investigation. According to the officers, at the time of the statement, Walker was
visibly shaken and afraid. The questions posed by Detective Brooks were
necessary to evaluate the situation under investigation at the time.' Thus, we find
that the statement at issue was nontestimonial in nature and, therefore, was not
precluded by Crawford' s Confrontation Clause analysis. Considering the
foregoing, assignment of error number one lacks merit.
ASSIGNMENT OF ERROR TWO
The defendant argues his conviction on count one ( unlawful use or
possession of body armor) by less than a unanimous jury verdict, as provided for
by La. C. Cr.P. art. 782( A), violated his rights under the Sixth and Fourteenth
We further note that, arguably, Detective Brooks' testimony regarding Walker' s statement was not hearsay because it was not offered to prove the truth of the matter asserted. See La. C. E. art. 801( Q. Detective Brooks was merely setting out how, during his investigation, each bit of information led to new information, which led finally to all evidence implicating the defendant. Such testimony of a police officer is admitted not to prove the truth of the out-of-court statements, but to explain the sequence of events leading to the arrest of the defendant from the viewpoint of the investigating officer. See Mitchell, 231 So. 3d at 726.
10 Amendments of the United States Constitution. In its appellee brief, the State
notes that the defendant did not object to the verdict on count one nor did he
challenge the constitutionality of the verdict on count one in the trial court below.
The general rule is a party must properly raise constitutional attacks in the
trial court, but a recognized exception to that rule is when a statute has been
declared unconstitutional in another case. Unwired Telecom Corp. v. Parish of
Calcasieu, 2003- 0732 ( La. 1/ 19/ 05), 903 So. 2d 392, 399 n. 5 ( on rehearing);
Spooner v. E. Baton Rouge Par. Sheriff Dep' t, 2001- 2663 ( La. App. 1St Cir.
11/ 8/ 02), 835 So. 2d 709, 711; and State v. Smith, 2009- 100 ( La. App. 5t' Cir.
8/ 25/ 09), 20 So. 3d 501, 505, writ denied, 2009- 2102 ( La. 4/ 5/ 10), 31 So. 3d 357.
In the recent decision of Ramos v. Louisiana, U.S. , 140 S. Ct. 1390, 1397,
206 L. Ed. 2d 583 ( 2020), the United States Supreme Court overruled Apodaca v.
Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 ( 1972), and held that the
right to a jury trial under the Sixth Amendment of the United States Constitution,
incorporated against the States by way of the Fourteenth Amendment of the United
States Constitution, requires a unanimous verdict to convict a defendant of a
serious offense. Thus, as the Ramos Court declared non -unanimous jury verdicts
unconstitutional, the defendant may raise in this appeal a challenge to his
conviction by a non -unanimous jury verdict rendered pursuant to La. C. Cr.P. art.
782( A).
The Ramos Court further noted that its ruling applied to those defendants
convicted of felonies by non -unanimous verdicts whose cases are still pending on
direct appeal. Ramos, 140 S. Ct. at 1406. In the instant case, a polling of the
jurors indicated that the defendant was convicted on count one by a vote of eleven
to one, and that the jury verdicts on counts two, three, and four were unanimous.
Accordingly, as the verdict was non -unanimous as to count one, we must vacate
the conviction and sentence on count one and remand to the trial court for further
11 proceedings not inconsistent with the opinion and mandate of the Supreme Court
of the United States. Thus, we find merit in assignment of error number two.
DECREE
Based on the foregoing, we affirm the defendant' s convictions and sentences
on counts two, three, and four. We vacate the defendant' s conviction and sentence
on count one and remand to the trial court for further proceedings not inconsistent
with the opinion and mandate of the United States Supreme Court.
CONVICTIONS AND SENTENCES ON COUNTS TWO, THREE, AND FOUR AFFIRMED; CONVICTION AND SENTENCE ON COUNT ONE VACATED; REMANDED.
12 STATE OF LOUISIANA STATE OF LOUISIANA
VERSUS COURT OF APPEAL
RYAN HARRIS FIRST CIRCUIT
NO. 2019 KA 1610
HOLDRIDGE, J., concurring in the result.
I will concur in the result. I agree with the majority that the testimony of
Detective Brooks about a pretrial statement made by the witness, Latoya Walker, is
admissible because the defendant failed to make a contemporaneous objection to
the testimony. However, I disagree with the dicta that the testimony was
admissible even if a contemporaneous objection had been made. Clearly, the
testimony of Detective Brooks about previous statements made by Ms. Walker
were hearsay and in violation of the confrontation clause as held by the United
States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 13549
158 L.Ed.2d 177 ( 2004).