State Of Louisiana v. Torrance Verdin

• Court: Louisiana Court of Appeal
• Decided: September 7, 2023
• Docket: 2022KA1178
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 KA 1178

VERSUS

TORRANCE VERDIN

Judgment Rendered SEP 0 7 2023

Appealed from the Thirty -Second Judicial District Court Parish ofTerrebonne —State of Louisiana Docket Number 809862 —Division C

The Honorable Juan W. Pickett, Presiding Judge

Sherry Watters COUNSEL FOR APPELLANT, New Orleans, Louisiana Defendant —Torrance Verdin

Joseph L. Waitz, Jr. COUNSEL FOR APPELLEE,

District Attorney State of Louisiana

Ellen Daigle Doskey James Christopher Erny Assistant District Attorneys Houma, Louisiana

BEFORE: WELCH, PENZATO, AND LANIER, JJ.

c0 i

4 •' PENZATO, J.

The defendant, Torrance Verdin, was charged by grand jury indictment with

second degree murder, a violation of La. R. S. 14: 30. 1 ( count 1), and attempted

second degree murder, a violation of La. R.S. 14: 30. 1 and La. R.S. 14: 27 ( count

2). 1 He pled not guilty and, following a jury trial, was found guilty as charged on

both counts by unanimous verdicts. The defendant filed motions for new trial and

postverdict judgment of acquittal, which were denied. For the second degree

murder conviction, the trial court sentenced the defendant to life imprisonment at

hard labor without the benefit of probation or suspension of sentence, but with the

benefit of parole. For the attempted second degree murder conviction, the trial

court sentenced the defendant to fifty years imprisonment at hard labor without the

benefit of parole, probation or suspension of sentence. The defendant filed a

motion to reconsider sentence, which was denied. The defendant now appeals,

designating five assignments of error. We affirm the conviction and sentence on

count one. We affirm the conviction and amend the sentence on count two to

reflect that the sentence is to be served with the benefit of parole, affirm the

sentence as amended, and remand the matter to the trial court with instructions.

FACTS

On December 24, 2019, Courtney Carter and Jason Boyd ( the victims) went

to the Southland Mall in Houma. They left the mall around 11: 15 a.m. in a white

Dodge Charger driven by Carter, with Boyd in the front passenger seat. While the

vehicle was stopped at a red light at the intersection of St. Louis Canal Road and

Hollywood Road, Boyd heard gunshots, looked to his right, and saw two guns

pointing out of the back- seat window of a white car. Carter, Boyd, and the Charger

were struck by the gunfire. Carter was more seriously injured, so Boyd moved him

1 Tyler Devante Payne and Desmond Devonte Verdin were co- defendants who were not tried in the instant case.

2 to the back seat and drove them to Terrebonne General Hospital. Boyd survived

his injuries, but Carter died at the hospital.

At the hospital, Boyd told Detective Ryan Trosclair of the Terrebonne Parish

Sheriff' s Office that there were two shooters in the back seat. He also indicated

that he and Carter were involved in an altercation at the mall, and he believed the

people in the car were the same people involved in the altercation, but he did not

know who they were and was not able to identify them. This information led

Detective Trosclair to gather surveillance footage from the mall. Detective

Mitchell Legendre of the Terrebonne Parish Sheriff' s Office reviewed the mall

video footage and observed the victims meeting up with a group of guys in the

mall and exchanging words. He was able to identify the defendant and Desmond

Verdin.

Through the investigation, officers learned that a white Chevrolet Cruze may

have been involved in the shooting.' According to Detective Trosclair' s testimony,

which was supported by the video footage, the Cruze arrived at the mall around

10: 30 a.m., and four males, identified as the defendant, Desmond, Tyler Payne, and

Lorenzo Barrow, got out of the vehicle and entered the mall. The victims arrived

at the mall shortly thereafter.

Video footage showed that around 11: 15 a..m., the defendant exited the mall.

He went out of view of the camera, in the direction of Dillard' s, and was not seen

on camera again. According to Detective Trosclair, this was a " blind spot" in the

outside parking lot area not picked up by any camera. The victims also left the

mall around this time, near the same exit where the defendant was last seen.

Video footage showed Desmond and Payne leaving the mall from JCPenney

2 It is not clear from the record how the white Cruze became a suspect vehicle. At trial, Detective Trosclair stated: " I want to say that was - it was th[ e] day [ of the shooting] that we were able to get the information. I don' t remember how we got it, the information on the Cruze - the white Craze. So, we went out looking for that vehicle[.]"

3 shortly before 11: 15, and getting into the Cruze, with Payne driving. Then,

according to Detective Trosclair, Payne drove in front of Dillard' s where the

defendant would have been standing. At about 11: 19 a. m., the Charger exited the

mall parking lot onto Bayou Gardens Boulevard. Seconds later, the Cruze can be

seen leaving the parking lot in the same direction. Additional surveillance footage

showed Carter driving toward the intersection of St. Louis Canal Road and

Hollywood Road, with the Cruze about 30 to 40 seconds behind him and travelling

the same route. The shooting occurred shortly thereafter.

Keoka Carter, Carter' s sister, was shown the mall video footage of the

altercation and identified Desmond. According to Keoka, in 2005, Carter shot

Desmond' s father. Carter plead guilty, and served 11 years in prison. At trial, the

parties stipulated that if Adlena Verdin was called as a witness, she would testify

that she was the mother of the defendant and Desmond; that the defendant and

Desmond did not have the same father; and that she was not Barrow' s mother, but

he shared the same biological father as Desmond.

The defendant did not testify at trial.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues that the evidence was

insufficient to support the convictions. Specifically, the defendant contends that

his identity as one of the shooters was not proven by the State beyond a reasonable

doubt.' In conjunction with his argument that the evidence against him was

insufficient, the defendant argues the trial court incorrectly allowed the State to:

1) interject a false motive; ( 2) rely on opinion testimony of an officer; and ( 3)

exploit the defendant' s exercise of his Fifth Amendment rights.

3 The defendant also argues that there is insufficient evidence to support the State' s alternative theory that the defendant was a principal to the shooting. We note that the jury was charged on the law of principals. However, based on our finding that there is sufficient evidence to support the guilty verdicts, we pretermit discussion of this argument.

El In cases such as this one, where the defendant raises issues on appeal both as

to the sufficiency of the evidence and as to one or more trial errors, the reviewing

court should preliminarily determine the sufficiency of the evidence, before

discussing the other issues raised on appeal. When the entirety of the evidence,

both admissible and inadmissible, is sufficient to support the conviction, the

accused is not entitled to an acquittal, and the reviewing court must review the

assignments of error to determine whether the accused is entitled to a new trial.

State v. Hearold, 603 So. 2d 731, 734 ( La. 1992); State v Eason, 2019- 0614 ( La.

App. 1 st Cir. 12127119), 293 So. 3d 61, 69. If the reviewing court determines there

has been trial error ( which was not harmless) in cases in which the entirety of the

evidence was sufficient to support the conviction, then the accused must receive a

new trial, but is not entitled to an acquittal even though the admissible evidence,

considered alone, was insufficient. Hearold, 603 So. 2d at 734; State a Calloway,

2018- 1396 ( La. App. 1st Cir. 4112119), 276 So. 3d 133, 141, writ denied, 2019-

00869 ( La. 1120121), 308 So. 3d 1164.

A conviction based on insufficient evidence cannot stand as it violates Due

Process. See U.S. Const. amend. XIV; La. Const. art. 1, § 2. The standard of

review for the sufficiency of the evidence to uphold a conviction is whether,

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. Jackson a Virginia, 443 U. S. 307, 319, 99 S. Ct. 2781, 2789, 61

L.Ed.2d 560 ( 1979). See La. Code Crim. P. art. 821( B); State a Ordodi, 2006-

0207 ( La. 11129106), 946 So. 2d 654, 660. The Jackson standard of review,

incorporated in Article 821, is an objective standard for testing the overall

evidence, both direct and circumstantial, for reasonable doubt. When analyzing

circumstantial evidence, La. R.S. 15: 438 provides that the factfinder must be

satisfied the overall evidence excludes every reasonable hypothesis of innocence.

5 See State v. Aatorno, 2001- 2585 ( La. App. 1st Cir. 6121102), 822 So. 2d 141, 144.

On appeal, the reviewing court does not determine whether another possible

hypothesis suggested by a defendant could afford an exculpatory explanation of the

events. State v Mitchell, 1999- 3342 ( La. 10117100), 772 So. 2d 78, 83. Rather, the

court must evaluate the evidence in a light most favorable to the state and

determine whether the possible alternative hypothesis is sufficiently reasonable

that a rational juror could not have found proof of guilt beyond a reasonable doubt.

Id.

In order to prove that the defendant was guilty of second degree murder and

attempted second degree murder, the State had to prove the elements of La. R.S.

14: 30. 1 and 14: 27. The State presented two theories of second degree murder that

are applicable herein: ( 1) the killing of a human being when the offender has a

specific intent to kill or to inflict great bodily harm, La. R. S. 14: 30. 1( A)( 1); and

2) the killing of a human being when the offender is engaged in the perpetration or

attempted perpetration of assault by drive-by shooting, even though he has no

intent to kill or to inflict great bodily harm. La. R.S. 14: 30. 1( A)(2). A person is

guilty of an attempt to commit an offense when he has a specific intent to commit a

crime and " does or omits an act for the purpose of and tending directly toward the

accomplishing of his object." La. R.S. 14: 27. To sustain a conviction for

attempted second degree murder, the State must prove the defendant intended to

kill the victim and committed an overt act tending toward the accomplishment of

the victim' s death. State a Bishop, 2001- 2548 ( La. 1114103), 835 So. 2d 434, 437.

Attempted second degree murder requires specific intent to kill; specific intent to

inflict great bodily harm is insufficient. Id.

Though intent is a question of fact, it need not be proven as a fact, and may

be inferred from the circumstances of the transaction. Specific intent may be

proven by direct evidence, such as statements by a defendant, or by inference from

6 circumstantial evidence, such as a defendant' s actions or facts depicting the

circumstances. Specific intent is an ultimate legal conclusion to be resolved by the

factfinder. State a Coleman, 2017- 1. 045 ( La. App. 1st Cir. 4113118), 249 So. 3d

872, 877, writ denied, 2018- 0830 ( La. 2/ 18/ 19), 263 So. 3d 1155. Specific intent to

kill may be inferred from a defendant' s act of pointing a gun and firing at a person.

State v Welch, 2019- 0826 ( La. App. 1 st Cir. 2121120), 297 So. 3d 23, 27, writ

denied, 2020- 00554 ( La. 9129/ 20), 301 So. 3d 1193.

The defendant argues that his identity as one of the perpetrators was not

proven beyond a reasonable doubt by the State as there was a lack of forensic

evidence, eyewitness identification, or admission of guilt that supported the State' s

theory. He argues that while ballistic evidence and Boyd' s testimony revealed that

two guns were used in the shooting, the evidence is insufficient to prove that there

were two separate shooters in the vehicle, much less that he was one of the

shooters. The defendant further argues that the likelihood of misidentification

violated his due process rights. The defendant points out that he was never seen

getting into the Cruze that followed the Charger and argues that the State' s theory

that he was one of the people in the car is based solely on speculation and

conjecture.

Despite the defendant' s assertions, we find that based on the evidence

introduced and adduced at trial, and when viewed in the light most favorable to the

State, a juror could have rationally concluded that the defendant was a shooter in

the drive-by shooting of Carter and Boyd. To meet its burden of proof, the State

introduced evidence from various witnesses, including firearms examinations,

forensics, and ballistics expert Michelle Cazes Qlinde, to show that there were two

types of bullets recovered in the course of the investigation, a . 40 caliber bullet and

a 9 -millimeter casing, indicating two different weapons were used.

Boyd, the surviving victim of the shooting, testified that, while he was

7 unable to identify the shooters, he saw two shooters and two guns pointing out of

the back -driver' s side window of the shooters' vehicle. This testimony was

consistent with both of his interviews with Detective Trosclair, which were played

at trial, and in which Boyd indicated there were two people in. the back seat and no

front -seat passenger. During one of these interviews, Boyd was asked if he could

tell whether it was two people shooting or one person shooting two guns. Boyd

responded that " it was two people because ... he had his hands out the window

like this[.]" Detective Trosclair interrupted at this moment and stated, " So he had

two [ inaudible], two hands on the gun, ok[.]"

For trial purposes, Detective Trosclair compiled the most pertinent segments

from the mall video footage and, while each segment was played for the jury,

explained what was being seen in the video. He testified that there were

probably" 30 different cameras inside the mall, each filming from a different

angle. Detective Trosclair testified that he watched " hours and hours of video"

from Christmas Eve, " every angle, detail for detail."

Exterior mall video footage showed that at approximately 10: 36 a.m., the

Cruze arrived at the mall, parked near JCPenney, and the defendant, Desmond,

Payne, and Barrow walked along the sidewalk adjacent to the mall past JCPenney.

Interior mall video footage showed the four men enter an interior area of the mall

near JCPenney approximately three minutes later.

At approximately 10: 38 a. m., exterior mall video footage showed the

Charger pulled into the parking lot at the front entrance to the mall, and the victims

entered the mall shortly thereafter. Boyd testified that when he and Carter arrived

at the mall they went to Victoria' s Secret. According to Boyd, Carter was

approached by " three guys" and they " passed words." Boyd testified that he did

not know any of the men who approached Carter. Boyd further testified that after

they " passed words," they " came out of the store, and into ._the middle of the mall

n. they was talking still." After that, according to Boyd, the men "just walked off."

While Boyd testified that he did not remember what kind of words were passed in

Victoria' s Secret, he was " certain it was — ... a hostile word. ...[Carter] said

something and then they said something. At trial, Boyd indicated that he and

Carter did not discuss this confrontation, and he did not know what was said

between the groups. According to Boyd, after this incident, he and Carter went to

Footlocker then left the mall.

Boyd' s testimony was corroborated by the mall video footage, which

showed that at 10: 56 a.m., the defendant, Desmond, and Barrow entered an interior

courtyard area of the mall ( the Dillard' s court area), followed by the victims.

Carter and Barrow are seen exchanging words.' Following the exchange, which

lasted around twenty seconds, the defendant, Desmond, and Barrow walked off.

After the exchange between the groups, the mall video footage showed

Payne rejoined the defendant, Desmond, and Barrow, and all four men walked into

what Detective Trosclair identified as JCPenney. Two minutes later, the defendant

and Desmond exited the store and walked through the Dillard' s court area. At

11: 06 a.m., the defendant and Desmond returned to the area in front of JCPenney

and sat on a bench outside of the store' s entrance, facing away from the store.

After three minutes, Desmond re- entered JCPenney, and the defendant walked

further into the mall. At no time did the mall video footage show any other

individual join the defendant, Desmond, Payne, and Barrow.

Exterior mall video footage next showed the defendant exiting the front

entrance to the mall at 11: 12 a. m., and walking to the right. He returned into the

view of the camera less than a minute later and walked around near the entrance

while on his cell phone. The defendant re- entered the mall, then exited again,

4 The video footage does not contain audio.

9 looked around, and walked to the right, out of the camera' s view. He re- entered the

mall, and approximately a minute and a half later, the victims exited the mall from

the front entrance and turned right.

Exterior mall video footage of the sidewalk adjacent to the front entrance to

the mall showed the victims walking on the sidewalk towards Dillard' s. At 11: 15

a. m., the defendant is seen exiting the mall from H & M,5 which is right next to the

mall' s front entrance, turning right, and walking along the sidewalk, while on his

cell phone. The victims are seen several feet behind the defendant. At

approximately 11: 16 a.m., the defendant walked out of the view of the camera.

Detective Trosclair testified that the area where the defendant went out of the view

of the camera was a blind spot on the side of Dillard' s, and no other exterior

cameras pointed toward that area. As the defendant walked out of the camera' s

view at 11: 16 a.m., the victims are seen leaving the sidewalk and walking across

the parking lot to the Charger. The Charger is seen leaving the parking spot

approximately two minutes later.

Exterior mall video footage of JCPenney showed that at 11: 12 a.m.,

Desmond and Payne exited the mall from JCPenney and got into the Cruze. Payne

got into the driver' s seat, while Desmond entered the passenger side of the

vehicle.6 At 11: 13 a. m., the mall video footage showed the Cruze exited the

parking space and drove along the sidewalk adjacent to the mall.

At 11: 17 a.m. the Cruze is seen driving in the parking lot near the front

entrance to the mall several rows from where the Charger was parked, in the area

5 Video footage from inside H & M showed the defendant exiting the mall from H & M and turning right onto the sidewalk.

5 From the video footage, it is unclear whether Desmond entered the front seat or the back seat of the vehicle.

10 where the defendant had last been seen walking out of view.' Detective Trosclair

testified that the camera angle of this exterior mall video footage was positioned

further towards Dillard' s from the camera angle from which the Charger could be

seen. He further noted that this camera angle did not show the sidewalk.

According to Detective Trosclair, based on his review of the mall video footage,

the Cruze was not seen from the time it left the parking lot outside of JCPenney

until this camera angle, suggesting that the Cruze drove close to the building,

outside of the view of the cameras. The Cruze is seen driving up and down the

parking rows, leaving the view of the camera on two occasions as it neared the

sidewalk adjacent to the mall. Detective Trosclair testified that, based on the video

footage, he calculated that the Cruze passed the area where the defendant went out

of the camera' s view within one minute of the defendant' s last appearance on the

video.

At around 11: 18 a. m., the Charger is seen driving across the mall parking lot

towards the Bayou Gardens Boulevard mall exit, and shortly thereafter, the Cruze

followed in the same direction. The Charger is next seen at 11: 19 a. m., driving

down Bayou Gardens Boulevard towards St. Louis Canal Road, with the Cruze

exiting the mall parking lot and turning onto Bayou Gardens Boulevard to travel in

the same direction approximately twenty- five seconds later. From this point, the

State tracked both vehicles using surveillance footage from nearby businesses. At

approximately 11: 22 a.m., the Charger is seen on Bayou Gardens Boulevard,

followed by the Cruze approximately thirty seconds later. The Charger is seen

approaching the intersection of Bayou Gardens Boulevard and St. Louis Canal

Road, then is seen travelling on St. Louis Canal Road, followed by the Cruze.

7 Detective Trosclair indicated that he knew this was the same vehicle that Desmond and Payne were seen entering based on the color of the license plate, which was not a Louisiana license plate.

11 Boyd testified that after leaving the mall, he and Carter were going back to

the east side of Houma, where Carter lived. According to Boyd, they left the mall

and travelled down Bayou Gardens Boulevard to a " back road ... [ o] ut behind the

mall," where they turned right at a red light. The video confirmed that this was St.

Louis Canal Road. Boyd testified that they got to a red light at the end of that

road, and when they came to a stop, he and Carter were shot by two people from

the back of a white car. According to Boyd, after the shooting, the white car turned

right and he and Carter turned left. Lieutenant Jason Kibodeaux of the Terrebonne

Parish Sheriff' s Office testified that the shooting took place at St. Louis Canal

Road and Hollywood Drive. Detective Trosclair testified that the Cruze was

spotted on surveillance video at 11: 25 a.m. travelling on Hollywood Drive and

turning right onto Alma Street.

Finally, the jury was shown exterior mall video footage of Barrow exiting

the mall in the same area the Cruze was parked at 11: 41 a. m., after the shooting

occurred. He walked along the sidewalk adjacent to JCPenney, turned back, and

appeared to re- enter the mall a couple of minutes later. Detective Trosclair

testified that he never saw the defendant in any other video footage after he saw the

defendant walk out of the camera' s view near Dillard' s. Detective Trosclair further

testified that he spoke to Mara Jackson, Desmond' s girlfriend, who indicated that

she received a telephone call from Desmond on December 24, 2019, and based

upon that phone call she went to pick up Barrow- from the mall. Detective

Trosclair was asked whether Jackson indicated that she was asked to pick up the

defendant, to which he replied, " No."

The State' s theory of the case was that when the defendant and Desmond

exited JCPenney and walked through the mall, then sat on the bench outside of

JCPenney, they were searching for the victims. The State argued that the defendant

was acting as " the scout," and must have passed the victims when he re- entered the

12 front entrance of the mall approximately a minute before the victims exited the

mall, before he circled back through H & M to exit the mall right in front of the

victims. Payne and Desmond left the mall and got into the Cruze, with Payne

driving, at 11: 12 a.m. The State contended that after driving around the mall

parking lot and towards the direction the defendant was last seen walking, Payne

picked up the defendant sometime after he disappeared from the mall' s video

footage after 11: 15 a.m., and before the Cruze reappeared on the video footage

shortly before 1]:] 7 a.m.

In order to support its theory that the defendant was the second shooter, the

State relied on the forensic and ballistic evidence that indicated that two guns were

used in the commission of the crime and Boyd' s testimony that there were two

shooters in the back seat of the car. The State further contended that Payne was

clearly not one of the shooters because he was seen getting into the driver' s seat of

the Cruze; Barrow could not have been one of the shooters because he was seen at

the mall 10 minutes after the shooting; there was no time to pick up another third

person; and the defendant was never seen on any other video, anywhere else, after

he walked out of the camera' s view in almost the exact area the Cruze appeared 41

seconds later.

After a thorough review of the record, we find that the evidence supports the

guilty verdicts. We are convinced that viewing the evidence in the light most

favorable to the State, a rational trier of fact could have found beyond a reasonable

doubt, and to the exclusion of every reasonable hypothesis of innocence, that the

defendant was guilty of the second degree murder of Carter and the attempted

second degree murder of Boyd. See State a Calloway, 2007- 2306 ( La. 1121109), 1

So. 3d 417, 418 ( per curiam).

The State presented evidence that the defendant, Payne, Desmond, and

Barrow all arrived together at the mall in the Cruze. The mall video reflected that

13 following the encounter in the Dillard' s court area, the defendant and his half-

brother, Desmond, separated from Payne and Barrow and returned to the Dillard' s

court area, and later relocated to an area in front of JCPenney. The defendant is

later seen going in and out the mall in the area of the front entrance where the

victims exited. At approximately the same time as the victims exited the mall,

Payne and Desmond are seen entering the Cruze and travelling to the area where

the victims' car was parked and the defendant was last seen. The State further

presented evidence, which was clearly accepted by the jury, that two guns were

used in the perpetration of the crime, both of which were pointed out of the back

seat, which indicated that three people were in the vehicle. The State also

presented evidence, which was clearly accepted by the jury, that the only

reasonable conclusion was that the defendant was the second shooter, based on the

fact that Payne was seen getting into the driver' s side of the vehicle, Desmond

entered the passenger side of the vehicle, Barrow was still at the mall at the time of

the shooting, and the Cruze passed by the defendant' s last known whereabouts

within one minute of the defendant' s last appearance on the video footage. The

defendant is never seen leaving the mall in any other manner. Further, there was

no evidence that a fifth person ever joined the defendant, Payne, Desmond, and

Barrow at the mall.

An appellate court errs by substituting its appreciation of the evidence and

credibility of witnesses for that of the fact finder and thereby overturning a verdict

on the basis of an exculpatory hypothesis of innocence presented to, and rationally

rejected by, the jury. Calloway, 1 So. 3d at 418.

Allegation ofAltercation and Revenge Motive

In this same assignment of error, the defendant argues that the evidence

failed to support the State' s claim that his motive for shooting Carter was the

altercation at the mall and for revenge against Carter for killing Desmond' s father

14 years earlier. The defendant argues that if the shooting was to avenge Carter' s

murder of Gerald Jones, Desmond and Barrow would have been the ones seeking

retribution. The defendant further argues that the minor exchange at the mall was

no reason for the shooting. He argues that for lack of evidence of intent, his

convictions should be vacated.

Under the Jackson standard of review, " the 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." Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 ( second emphasis

added). In connection with the charge of second degree murder, the State was

required to prove the defendant killed Carter with the specific intent to kill or to

inflict great bodily harm, or when engaged in the perpetration of assault by drive-

by shooting. La. R.S. 14: 30. 1( A)( 1), ( 2). In connection with the charge of

attempted second degree murder, the State had to prove the defendant intended to

kill Boyd and committed an overt act tending toward the accomplishment of the

victim' s death. See Bishop, 835 So.2d at 437. Motive is not an essential element

of second degree murder or attempted second degree murder, and a jury need not

find it proved beyond a reasonable doubt. See State a Mire, 2014- 2295 ( La.

1/ 27116), 269 So. 3d 698, 702 ( per curiam).

This argument is without merit.

Opinion Testimony of Officers

The defendant next objects to the detectives' identification of him in the mall

video footage and their narration of the video footage. He further argues that this

error was compounded when the jury was denied its request to view the videos

during deliberations.

As noted above, Detective Legendre testified that he recognized the

defendant and Desmond in the mall video footage. The defendant did not object to

15 Detective Legendre' s identification.

On appeal, the defendant argues that identification of the perpetrator was an

ultimate fact for the jury only to decide. He contends that Detective Legendre' s

identification of the defendant, without evidence of direct knowledge, was an

improper use of opinion testimony by a lay witness, and Detective Legendre was

not qualified as an expert to give his opinion as to the identification of the

defendant in the video.

Prior to trial, the defendant filed a motion in limine, requesting, among other

things, that the trial court instruct the State not to bring before the jury any

reference to prior bad acts the defendant was alleged to have committed. Prior to

opening statements, the trial court addressed the defendant' s motion. At that time,

counsel for the defendant expressed concern that the State would ask Detective

Legendre to identify the parties in the mall video footage and Detective Legendre

would indicate that he knew the defendant and Desmond because of prior

investigations. The trial court ruled that the detective could identify the defendant,

based on prior knowledge of him, but would not be allowed to get into the nature

of prior investigations.

There is no requirement that a police officer be qualified as an expert to

identify a person in a video. The defendant sought a ruling from the trial court

prohibiting Detective Legendre from explaining how he was able to recognize the

defendant in the mall video footage. Moreover, the jurors were able to view the

mall video footage, to view the defendant in court, and to determine the credibility

of all testimony and evidence. See State v Berniard, 2014- 0341 ( La. App. 4th Cir.

314115), 163 So. 3d 71, 82, writ denied, 2015- 0678 ( La. 2126116), 187 So. 3d 468.

The defendant next complains that his objections were overruled as to

Detective Troselair' s testimony during the playing of the mall video footage. As

noted above, Detective Trosclair compiled segments from " hours and hours" of

16 mall video footage taken from approximately 30 different cameras, at different

angles, from around the mall. The defendant objected to Detective Trosclair' s

testimony, arguing that the videos were clear enough that the jurors could see for

themselves what was going on, without the need for Detective Trosclair to tell the

jury what he saw. The trial court overruled the objection, indicating that with so

many people in the mall, Detective Trosclair could direct the jury' s attention to

what was important in the mall video footage. We find no error in the trial court' s

ruling. As noted above, the jurors were able to view the mall video footage, and

were allowed to approach the screen for a closer look. Thus, they were able to

assess the credibility of Detective Trosclair' s testimony regarding the mall video

footage.

After the jury retired for deliberations, it requested to see certain portions of

the mall video footage. The request was denied, and the jury was told it would

have to rely on its memory. The defendant did not object to this ruling. Under La.

Code Crim. P. art. 841( A), an " irregularity or error cannot be availed of after

verdict unless it was objected to at the time of occurrence." See State v. Johnson,

2000- 0680 ( La. App. l st Cir. 12/ 22100), 775 So. 2d 670, 680, writ denied, 2002-

1368 ( La. 5130/ 03), 845 So. 2d 1066. This is known as the contemporaneous

objection rule and provides the trial court notice and the opportunity to cure an

alleged irregularity or error and prevents a party from gambling for a favorable

outcome then appealing when the error could have been addressed by an objection.

State a Lanclos, 2007- 0082 ( La. 418108), 980 So. 2d 643, 648. The failure to make

a contemporaneous objection prior to verdict waives the alleged error or

17 irregularity and precludes the defendant from raising it on appeal -8 Moreover, the

defendant has failed to show he suffered any prejudice from the trial court' s ruling

because the jury had the opportunity to view the mall video footage during the

trial. See State v Cespedes, 2017- 1087 ( La. App. 1st Cir. 12/ 29/ 17), 241 So. 3d

342, 349, writ denied, 2018- 0263 ( La. 12/ 17/ 18), 259 So. 3d 340.

Fifth Amendment Claims

Defendant' s final argument in his first assignment of error is that the State

impermissibly shifted the burden of proof to the defendant in violation of his rights

pursuant to the Fifth Amendment of the United States Constitution. Specifically,

he complains that Detective Trosclair and the prosecutor commented on the

defendant' s failure to make a statement and to present a defense by calling his

family to prove he was not at the mall or in the Cruze.

Detective Brian Falgout of the Terrebonne Parish Sheriff' s Office testified at

trial regarding a car chase involving a Honda that occurred one week after the

shooting, on New Year' s Eve.' According to Detective Falgout, he was on patrol

when dispatchers advised over the radio that the subjects involved in the shooting

were in the Honda. Detective Falgout testified that the Honda crashed into a

residence, and the driver and passenger exited the vehicle and fled on foot. He

further testified that, based on information received from dispatch, he searched for

a white vehicle that was in the neighborhood to pick up the two suspects that had

fled from the Honda. Detective Falgout located the white vehicle, which was

8 If an alleged error is so significant that it violates a fundamental right, then, to preserve the requirements of due process, the error is reviewable on appeal even absent a contemporaneous objection. See La. Code Crim. P. art. 920( 2); State v. Arvie, 505 So. 2d 44, 47 ( La. 1987); State v. Thompkins, 2018- 1032 ( La. App. 1st Cir. 2127119), 273 So. 3d 346, 350 n. 4, writ denied, 2019- 00666 ( La. 9117119), 278 So. 3d 973. To meet the exception to the contemporaneous objection requirement, the error must cast substantial doubt on the reliability of the fact-finding process. Thompkins, 273 So. 3d at 350 n. 4. That standard is not met here.

9 Detective Falgout was a shift lieutenant in 2019, but was promoted to detective prior to trial. being driven by a female. A juvenile subject was also in the vehicle and was

detained. Detective Falgout later learned that the juvenile in the vehicle was the

defendant.

During direct examination, Detective Trosclair testified that after the

defendant was detained following the New Year' s Eve car chase, he was

transported to the sheriff' s office to be questioned. The following exchange took

place:

Q: ... [ W] hat else did you do that night?

A: We got in touch with family members for [the defendant], because he was a j uvenile.

Q: Okay.

A: And —but they decided not to talk.

Defense counsel objected to the statement and requested a mistrial. The trial

court denied the mistrial, finding that the prosecutor did not intentionally solicit

Detective Trosclair' s response.

Louisiana Code of Criminal Procedure article 770, with its mandatory

mistrial provisions, does not apply to references to a defendant' s post -arrest silence

by the prosecutor or by witnesses, but only applies to references to a defendant' s

failure to testify at trial. State a Kersey, 406 So. 2d 555, 560 n.2 ( La. 1981), State

u Barr, 2018- 1111 ( La. App. 1 st Cir. 2128119), 275 So. 3d 9, 12, writ denied, 2019-

00706 ( La. 10115119), 280 So. 3d 599. Louisiana Code of Criminal Procedure

article 771 governs the proper remedy where references are made to a defendant' s

19 post -arrest silence." The Louisiana Supreme Court has indicated that under La.

Code Crim. P. art. 771, when the prosecutor or a witness makes a reference to a

defendant' s post -arrest silence, the trial court is required, upon the request of the

defendant or the State, to promptly admonish the jury. In such cases where the

court finds that an admonition is not sufficient to assure a defendant a fair trial,

upon motion of the defendant, the court may grant a mistrial. Barr, 275 So. 3d at

13. Mistrial is a drastic remedy which is warranted only if substantial prejudice

results that would deprive the defendant of a fair trial, and the ruling of the trial

court will not be disturbed absent an abuse of discretion. The trial court is given

wide discretion to determine whether a fair trial is impossible, or if an admonition

is adequate to assure a fair trial. Id.

We find that the trial court did not abuse its discretion. A brief reference to

post -arrest silence does not mandate a mistrial or reversal where the trial as a

whole was fairly conducted, the proof of guilt is strong, and the State made no use

of the silence for impeachment. State a Law, 2015- 0210 ( La. App. 1st Cir.

2124116), 189 So. 3d 1164, 1177- 78, writ denied, 2016- 0926 ( La. 4124117), 220

So. 3d 740. Further, the State is allowed reference to the defendant' s post -arrest

silence when the line of questioning is an attempt to summarize the extent of the

police investigation and is not designed to exploit the defendant' s failure to claim

his innocence after his arrest in an effort to impeach his testimony or attack his

10 Louisiana Code of Criminal Procedure article 771 provides, in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:

2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.

In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

20 defense. Id.

Detective Trosclair' s statement that " they decided not to talk" was in

response to the State' s question about the extent of Detective Trosclair' s

investigation after the defendant was picked up on New Year' s Eve. We find the

reference to the defendant' s ( and/ or his family' s) decision not to talk was minimal

and the trial as a whole was conducted fairly. Any reference to the defendant' s

silence after he was detained did not result in such substantial prejudice to him that

he was deprived of any reasonable expectation of a fair trial.

The defendant next complains that the prosecutor asked Detective Trosclair

whether he received any information, from any source, indicating that the

defendant was not in the Cruze with Desmond and Payne. The defendant argues

the prosecutor exploited the error in closing argument by arguing that there was no

evidence introduced by the defense to contradict that the defendant was in the mall

video footage.

The defendant failed to raise a contemporaneous objection to the State' s

question of whether Detective Trosclair received any information indicating that

the defendant was not in the car involved in the shooting or to any of the State' s

remarks made during closing arguments. Thus, we are precluded from considering

these arguments on appeal. See La. Code Crim. P. art. 841( A); Johnson, 775 So. 2d

at 680.

In summary, we find no merit to the defendant' s argument that without

erroneously admitted evidence, the State had no evidence to prove the defendant

participated in the shooting of Boyd and Carter. To the contrary, we find that,

viewing the evidence in the light most favorable to the State, a rational trier of fact

could have found beyond a reasonable doubt, and to the exclusion of every

reasonable hypothesis of innocence, that the defendant was guilty of the second

21 degree murder of Carter and the attempted second degree murder of Boyd.

The defendant' s first assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

1n his second assignment of error, the defendant argues that his right to

present a defense under the Sixth Amendment to the United States Constitution

was violated. Specifically, the defendant contends that the trial court erred by: ( 1)

excluding Carter' s toxicology report; ( 2) limiting the scope of his cross-

examination of Boyd; and ( 3) admitting hearsay testimony.

Toxicology Report

The defendant argues that the exclusion of Carter' s toxicology report denied

him the opportunity to cross- examine witnesses as to Carter' s alleged intoxication

at the time of the incident. According to the defendant, such questioning was

imperative to contradict: ( 1) the State' s theory that the defendant and his

companions were the aggressors and that the incident was motivated by their desire

to seek revenge on Carter; and ( 2) the reliability of Keoka Carter, Courtney

Carter' s sister, as a witness.

A criminal defendant has the constitutional right to present a defense. U.S.

Const. amends. VI and XIV; La. Const. art. 1, § 16; Crane a Kentucky, 476 U.S.

683, 690, 106 S. Ct. 2142., 2146, 90 L.Ed. 2d 636 ( 1986); State v Young, 2020-

01041 ( La. 5/ 13121), 320 So. 3d 356, 359 ( per curiam). The right to present a

defense is so fundamental to the concept of a fair trial that even evidentiary rules

are sometimes required to yield to it. Chambers v Mississippi, 410 U. S. 284, 302,

93 S. Ct. 1038, 1049, 35 L.Ed. 2d 297 ( 1973). In general, a defendant should be

allowed to present evidence on any relevant matter. However, this right is not

without limits and the State retains a legitimate interest in barring unreliable

evidence from criminal trials. Young, 320 So. 3d at 359- 60; see also Rock u

Arkansas, 483 U.S. 44, 55, 107 S. Ct. 2704, 2712, 97 L.Ed.2d 37 ( 1987).

22 Relevant evidence is evidence 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. La. Code Evid. art. 401. All

relevant evidence is generally admissible. La. Code Evid. art. 402. The trial court

has considerable discretion in determining the relevancy of evidence, and its ruling

will not be disturbed absent an abuse of discretion. State a Jaynes, 2002- 2079 ( La.

App. 1st Cir. 5/ 9/ 03), 849 So. 2d 574, 584. Further, La. Code. Evid. art. 103

provides that error may not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is affected.

Prior to opening statements, the trial court heard arguments as to whether the

toxicology report of Carter should be admitted into evidence." The defendant

argued that the presence of amphetamine and fentanyl in Carter' s system was

relevant to whether there was a " violent confrontation" in the mall that led the

defendant to stalk the victims. The trial court found that the toxicology report was

irrelevant, did not contain " any relevant evidence to any legitimate defense theory"

in the case, and was thus inadmissible.

Additionally, Carter' s sister, Keoka, testified that she spoke to Carter every

morning, that he was not involved in narcotics, and that she was " quite sure" she

would know if he was. After her testimony, the defense again asked the trial court

to allow the introduction of the toxicology report into evidence to show Carter

was not squeaky clean, as he ha[ d] been portrayed[,]" and " may have had other

enemies." The trial court once more ruled that the toxicology report was

inadmissible. The trial court stated the report " could be used to impeach [ Keoka],

but the prejudicial effect still outweighs the probative value."

1 The toxicology report was separate from the Coroner' s Report, which was introduced into evidence. We note that the Coroner' s Report included the results of Carter' s drug screen, which indicated the presence of amphetamine and methamphetamine.

23 We find that the trial court' s ruling that excluded the toxicology report was

not an abuse of discretion. As noted by the trial court, the report did not contain

any relevant evidence which may have been related to any legitimate defense

theory. Moreover, although the defendant argues on appeal that he wanted to use

the report to impeach Keoka Carter' s credibility, at no point during the trial did the

defendant actually seek to use the report to do so.

Cross -Examination ofBoyd

The defendant also contends that the scope of his cross- examination of Boyd

was impermissibly limited as to: ( 1) whether Boyd' s probation was revoked on

prior charges; and ( 2) evidence of the material witness bond that compelled his

testimony at trial.

On cross- examination, the defendant sought to elicit testimony regarding

Boyd' s alleged probation revocation, at which point the State objected and the trial

court sustained the objection after an off -record discussion. On appeal, the

defendant contends the trial court erred in excluding this information.

The Louisiana Code of Evidence provides that the credibility of a witness

may be impeached by introducing evidence that the witness has been convicted of

a crime. Evidence of an arrest, an arrest warrant, indictment, prosecution or

acquittal may not be used to impeach the general credibility of the witness. La.

Code Evid. art. 609. 1.

Initially, we note the defense failed to proffer evidence that Boyd' s probation

had been revoked. Only matters contained in the record can be reviewed on

appeal. State v Lavy, 2013- 1025 ( La. App. 1st Cir. 3111114), 142 So. 3d 1000,

1007, writ denied, 2014- 0644 ( La. 10131114), 152 So. 3d 150. Because the

defendant failed to make a proffer, he is barred procedurally from advancing this

assignment of error. Id. Moreover, whether Boyd' s probation had been revoked

was beyond the scope of La. C. E. art. 609. 1. Id.

24 Prior to Boyd' s testimony, the State sought to limit references to Boyd' s

arrest on a material witness bond. After hearing arguments from both sides, the

trial court ruled that evidence of arrests, including the arrest on the material

witness bond, was inadmissible, noting, however, that such evidence could come in

during the course of Boyd' s testimony in connection with a deal or some type of

blas.

Under a material witness bond, a judge shall issue a warrant for the arrest of

a witness whose testimony is essential to the matter, and it is shown that it may

become impracticable to secure the presence of the person by subpoena. Under

these circumstances, the witness shall be arrested and held in the parish jail, or

another suitable place designated by the court, until he gives an appearance bond

or until the testimony is given in the cause. La. R.S. 15: 257. The purpose of this

statute is not penal in nature, as the object is not punishment for wrongdoing, but is

to provide a procedure to prevent a material witness from removing himself from

or being taken from the jurisdiction of the court and to insure testimony from the

material witness. Cooks v Rapides Parish Indigent Defender Bd., 96- 811 ( La.

App. 3rd Cir. 12111196), 686 So.2d 63, 66, writ denied, 97- 0409 ( La. 3/ 27/ 97), 692

So. 2d 398. As such, a material witness bond is not a conviction as contemplated

by La. Code Evid. art. 609. 1 and is not admissible to impeach the general

credibility of the witness. Accordingly, it was not error for the trial court to

preclude the defendant from questioning Boyd about his material witness bond.

Moreover, although the defendant argues on appeal that he should have been

allowed to impeach Boyd in connection with his statement that he wanted to be

present for trial, at no point during the trial did the defendant actually seek to do

SO.

Alleged Hearsay Evidence

The defendant next contends that inadmissible hearsay testimony was

25 admitted at trial, and the proliferation of inadmissible hearsay establishes that the

errors were not harmless beyond a reasonable doubt due to the alleged lack of

other evidence upon which the convictions were based. Specifically, the defendant

complains of the following alleged hearsay: ( 1) Detective Trosclair' s testimony

that other members of law enforcement identified Payne and Barrow in the mall

video footage; ( 2) Detective Trosclair' s testimony that Barrow had a girlfriend, that

the girlfriend owned or rented the Cruze, and that she let Barrow use the car on the

day of the shooting; ( 3) Detective Trosclair' s testimony regarding discussions with

Mara Jackson, who he indicated was Desmond' s girlfriend; and ( 4) statements of

the defendant' s co- defendant introduced through Detective Trosclair and through

the prosecutor in closing argument.

At the outset, we note that the defendant failed to object to: ( 1) Detective

Trosclair' s testimony that other members of law enforcement identified Payne and

Barrow in the mall video footage; and ( 2) Detective Trosclair' s testimony that

Barrow had a girlfriend, that the girlfriend owned or rented the Cruze, and that she

let Barrow use the car on the day of the shooting. Thus, we are precluded from

considering these arguments on appeal. See La. Code Crim. P. art. 841( A);

Johnson, 775 So. 2d at 680.

Hearsay is a statement, other than one made by the declarant while testifying

at trial, offered in evidence to prove the truth of the matter asserted. La. Code

Evid. art. 801( C). Hearsay is generally inadmissible unless it falls within an

exception provided by the Code of Evidence or other legislation. La. Code Evid.

art. 802. However, if the statement is offered for any other purpose, it is not

hearsay. State v Patton, 2010- 1841 ( La. App. 1st Cir. 6110111), 68 So. 3 d 1209,

1219- 20. The improper introduction of hearsay evidence will be considered

harmless error if it is determined the hearsay evidence was cumulative and

corroborative of other properly admitted evidence and did not contribute to the

26 verdict. State v Dantin, 2019- 0407 ( La. App. 1st Cir. 12117119), 291 So. 3d 1096,

1102.

Testimony regarding the Interview with Mara Jackson

During his direct examination, Detective Trosclair testified that when the

defendant was picked up following the New Year' s Eve car chase, he was with

Mara Jackson, Desmond' s girlfriend. Detective Trosclair testified that he

interviewed Jackson the night of the New Year' s Eve car chase regarding her role

in the Christmas Eve shooting. The State asked Detective Trosclair if Jackson ever

indicated to him that she received a phone call from Desmond. Defense counsel

objected to the question as hearsay. The trial court stated: " It' s a little bit

premature. I' m going to overrule the objection at this time —and not to make any

hearsay statements." The following exchange then occurred:

Q: Did she ever indicate to you that she received a telephone call that

day, Christmas Eve Day, from Desmond Verdin?

A: She did.

Q: All right, and based upon that phone call, did she tell you what

action she took?

A: She did — she said she went to go pick up " Bubba[,"] which is

Lorenzo Barrow, from the mall.

Q: Did she ever indicate to you that she was asked to go pick up [ the

defendant]?

a l

At this point, the trial court asked counsel to approach the bench, and there

was an off record - discussion. After the discussion, the State changed the line of

questioning.

The only hearsay present in this exchange is Detective Trosclair' s testimony

that Jackson " said she went to go pick up ` Bubba[,'] which is Lorenzo Barrow,

27 from the mall." However, we find the admission of this hearsay evidence was

harmless error because it was cumulative and corroborative of the mall video

footage that showed Barrow at the mall after the shooting. Moreover, it cannot be

said that this testimony contributed to the verdict. The jury viewed the mall video

footage of Payne getting into the driver' s side of the Cruze, Desmond entering the

passenger side of the vehicle, and the Cruze passing by the defendant' s last known

whereabouts within one minute of the defendant' s last appearance on the video

footage. The guilty verdict is surely unattributable to the error of allowing into

evidence Jackson' s statement that she picked up Barrow at the mall. See State u

Stokes, 2014- 1562 ( La. App. 1st Cir. 6117115), 175 So. 3d 419, 424.

Moreover, the defendant did not ask for an admonishment or mistrial. When

the trial court sustains an objection and defense counsel fails to request an

admonishment or a mistrial, the defendant cannot later raise the issue on appeal.

State v. Johnson, 2007- 0634 ( La. App. 1st Cir. 9119107), 2007 WL 2713536, * 3

unpublished).

Hearsay Statements ofa Co -Defendant

Finally, the defendant contends hearsay statements of a co-defendant were

introduced through the testimony of Detective Trosclair that the men were

shopping in Kenner on December 24 and through the prosecutor in closing

argument that Payne and Desmond were the two men who ran from the car that

crashed on New Year' s Eve.

Detective Trosclair testified that, pursuant to a search warrant of the Honda

involved in the New Year' s Eve car chase, a receipt dated December 24, 2019 was

located. Detective Trosclair was asked about the relevance of the receipt to Payne,

and answered as follows: " When we eventually picked up [ Payne], his story was

that he was in New Orleans all day— " Defense counsel objected, and the trial

court sustained the hearsay objection. The defendant did not ask for an admonishment or mistrial, and is therefore precluded from raising the issue on

appeal. See Johnson, 2007 WL 2713536, at * 3. The defendant contends this

statement was emphasized in closing argument, but the transcript does not support

this contention.

The defendant further contends that hearsay statements of a co- defendant

were introduced through the prosecutor' s statement during closing argument that

Desmond and [ Payne] had just run from the police" following a car crash on New

Year' s Eve. No objection was made to this statement. Moreover, there was no

reference by the prosecutor to any statement by a co- defendant.

The defendant' s second assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, the defendant argues that the testimony of

Detectives Falgout and Trosclair regarding the New Year' s Eve car chase was

irrelevant, hearsay, prejudicial evidence of another crime to implicate the defendant

by innuendo and association with gun and drug use. He contends that defense

objections to any testimony about the chase, based on hearsay, irrelevance, and

prejudicial other crimes evidence, were overruled.

Our review of the record does not indicate that defense counsel objected to

any testimony of the New Year' s Eve car chase on the basis of relevance. It is

well- settled that defense counsel must state the basis for his objection when

making it and point out the specific error of the trial court. State a Duhon, 2018-

0593 ( La. App. 1st Cir. 12/ 28/ 18), 270 So. 3d 597, 631, writ denied, 2019- 0124 ( La.

5/ 28/ 19), 273 So. 3d 315. A defendant is limited on appeal to grounds for an

objection articulated at trial. A new basis for objection cannot be raised for the

first time on appeal. Id. Thus, the defendant is procedurally barred from objecting

to the testimony of Detectives Falgout and Trosclair regarding the New Year' s Eve

car chase as irrelevant.

29 At the outset of Detective Falgout' s testimony, the State asked him: "[ W] hat

was your understanding of why you got in that car chase; or what was the purpose

of trying to stop that vehicle?" Detective Falgout replied: " Dispatch received [ a]

call that the subjects involved in the shooting were possibly in that car —." At this

point, defense counsel objected to the statement as hearsay and, outside of the

presence of the jury, the parties presented arguments as to whether the statement

should be admitted. The State contended that the statement was not being offered

for the truth of the matter asserted, but to indicate what information Detective

Falgout received in the course of his duties. The State further indicated that the

information was that some of the suspects involved in the shooting were in the

vehicle, but not the defendant. After seeking clarification that the car chase was a

separate event from the drive- by shooting, the trial court overruled the objection.

We find that what dispatchers advised over the radio to Detective Falgout

was not hearsay because it was not offered for the truth of the matter asserted. See

La. Code Evid. art. 801( 0). Detective Falgout was merely setting out how the

New Year' s Eve car chase unfolded. Such testimonial evidence by a police officer

is admissible to explain the sequence of events leading to the defendant' s arrest

when there is no indication the evidence is presented to prejudice the defendant.

Dantin, 291 So. 3d at 1103. Thus, it was not error for the trial court to overrule the

defendant' s objection to this testimony.

After the Honda crashed, a pistol was located on the street. Detective

Falgout testified that he did not see the pistol being thrown out of the vehicle. The

State then asked: "[ D] id someone see it thrown out of a vehicle?" Defense

counsel objected on the basis of hearsay, and the trial court sustained the objection.

The defendant did not ask for an admonishment or mistrial, and is therefore

precluded from raising the issue on appeal. See Johnson, 2007 WL 2713536, at

3. Detective Trosclair was also asked about his understanding of where the gun

30 came from. Defense counsel objected on the basis that the State was asking for

speculation. The trial court overruled the objection, and Detective Trosclair

proceeded to testify that officers were not sure whether one of the fleeing suspects

tossed the gun or if it had been tossed out of the car during the chase. ( R 72 1) He

further testified that the gun that was found was not involved in the Christmas Eve

shooting. We find no error in the trial court' s ruling. Detective Trosclair' s

testimony was not based on speculation.

Detective Falgout testified that after the car crashed, units were still trying to

locate the two subjects that fled. According to Detective Falgout, he received a

phone call from the Chief of Detectives " saying that he received a call that a white-

Defense counsel objected on the basis of hearsay. The trial court sustained the

objection. The State then rephrased the question as follows: " All right, so you got

a call, from dispatch; and it was your understanding that they received information

from [ the Chief of Detectives]-". Defense counsel objected; the trial court

overruled the objection, indicating that Detective Falgout did not reveal the content

of the statements, just that he received it. Detective Falgout proceeded to testify

that upon receiving the information, he searched for a white vehicle that was in the

neighborhood to pick up the two subjects that fled from the crashed vehicle. As

with the above complained -of testimony, we find it was not error for the trial court

to overrule the defendant' s objection to this testimony. Detective Falgout was

merely setting out why he searched for the white vehicle in which the defendant

was ultimately located. There was no indication the evidence was presented to

prejudice the defendant. See Dantin, 291 So. 3d at 1103.

Finally, we address the defendant' s argument in this assignment of error that

the testimony regarding the New Year' s Eve car chase contained impermissible

evidence of other crimes. Generally, evidence of other crimes committed by the

defendant is inadmissible due to the " substantial risk of grave prejudice to the

31 defendant." State v Tilley, 99- 0569 ( La. 7/ 6/ 00), 767 So. 2d 6, 22, cert. denied, 532

U. S. 959, 121 S. Ct. 1488, 149 L.Ed.2d 375 ( 2001).

Detective Falgout testified that in addition to the two suspects who fled from

the Honda, a third person remained in the vehicle. This suspect was arrested for

aggravated flight and possession of methamphetamines. The defendant argues that

this evidence, along with the evidence that a gun was found after the Honda

crashed, implicated the defendant " by innuendo and association" with gun and

drug use. We disagree with the defendant' s characterization of this evidence.

There was no suggestion by either Detective Falgout or Trosclair that the defendant

was involved in the car chase, fled from the Honda, or was in possession of drugs

or guns. Because there was no evidence of other crimes committed by the

defendant, the evidence was admissible.

The defendant' s third assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

In his fourth assignment of error, the defendant argues that the trial court

erred in admitting Boyd' s out of court taped statements as direct evidence, rather

than relying on his in -court testimony.

During his direct examination at trial, Boyd initially testified that he knew

two guns were used in the shooting, and that they both were pointed out of the

same back window, but that he did not know if there was one person holding two

guns or two people each holding one gun. Then, the State, in an apparent attempt

to refresh his recollection, asked Boyd if he remembered giving statements to

Detective Trosclair at the hospital and then later at the sheriff's office. Boyd stated

that he did remember giving both of those statements. The State then asked Boyd

if he remembered telling Detective Trosclair that there were two shooters because

one person was holding a gun with two hands. At this point, defense counsel

objected to the State telling Boyd the contents of his statement, instead of letting

32 Boyd review the statement himself, and the trial court sustained the objection. 12

The State then asked Boyd if the previous questions refreshed his memory, and.

Boyd responded in the affirmative. In response to the State repeating its question

of if there was one shooter or two shooters, Boyd stated there were two people and

that this information was consistent with what he told Detective Trosclair on the

day of the shooting.

Detective Trosclair testified right after Boyd, and during his testimony, the

State played clips from both of Boyd' s interviews where he stated that he thought

there were two shooters. Prior to playing the interview clips and outside the

presence of the jury, the State informed the court and defense counsel that it

intended to play the interview clips through Detective Trosclair' s testimony

pursuant to La. Code Evid. art. 801( D)( 1)( b) and in response to the defense' s

alleged attack on Boyd' s credibility by asking about his prior convictions and

alleged probation revocation. The trial court allowed the State to play the clips,

over defense objection, finding that the defense' s intent in bringing up Boyd' s prior

record was to attack his statements.

We disagree with this finding. Pursuant to La. Code Evid. art. 801( D)( 1)( b),

a statement is not hearsay if the declarant testifies at the trial or hearing and is

subject to cross- examination concerning the statement, and the statement is

consistent with his testimony and is offered to rebut an express or implied charge

against him of recent fabrication or improper influence or motive. The State

clearly intended to bolster Boyd' s testimony by playing the interview clips. Boyd

initially testified he did not remember how many shooters were in the vehicle, and

was only able to say there were two once the State reminded him of his interviews

12 On appeal, the defendant complains that, although his objection to this line of questioning was sustained, " the [ State]' s testimony was already given," and the State continued to ask leading questions. The defense did not lodge any other objections besides the initial objection, which was sustained. Moreover, the defendant did not ask for an admonishment or mistrial at any time and is precluded from raising the issue on appeal. Johnson, 2007 WL 2713536 at * 3.

33 with Detective Trosclair. In its arguments in support of admitting the statements

through Detective Trosclair, the State alleged that it had " the right to put in the

statements, to bolster [ Boyd' s] credibility." Moreover, the State alleged that, by

asking Boyd about his prior convictions, the defense attacked the credibility of "the

most important witness ... in the case."

Again, we disagree. Boyd never denied that there were two shooters, he

merely stated that he did not remember. Upon further questioning by the State,

Boyd recalled his interviews with Detective Trosclair and confirmed that there

were two shooters. On cross- examination, the defense did not ask Boyd about the

number of shooters or question the veracity of his statement regarding the number

of shooters; thus, the defense did not suggest that Boyd' s testimony was a recent

fabrication or the result of improper influence or motive. Additionally, while

defense counsel did attempt to get Boyd to admit he was present at trial under a

material witness bond, he was prohibited from doing so after a discussion outside

of the presence of the jury. Therefore, we find there was no charge of improper

influence relating to Boyd' s testimony.

Accordingly, it was error for the trial court to admit Boyd' s out of court

statements through Detective Trosclair' s testimony. Nevertheless, the improper

introduction of hearsay evidence will be considered harmless error if it is

determined that the hearsay evidence was cumulative and corroborative of other

properly admitted evidence and did not contribute to the verdict. Dantin, 291

So. 3d at 1102. The trial court' s error in overruling defense counsel' s objection and

allowing these taped statements to be admitted into evidence was harmless beyond

a reasonable doubt. The contents of these taped statements were merely

cumulative and corroborative of Boyd' s previously admitted testimony where he

stated there were two shooters.

The defendant' s fourth assignment of error is without merit.

34 ASSIGNMENT OF ERROR NO. 5

In his fifth and final assignment of error, the defendant argues that his

sentences are unconstitutionally excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20,

of the Louisiana Constitution prohibit the imposition of cruel or excessive

punishment. Although a sentence falls within statutory limits, it may be excessive.

State a Sepulvado, 367 So. 2d 762, 767 ( La. 1979). A sentence is considered

unconstitutionally excessive if it is grossly disproportionate to the seriousness of

the offense or is nothing more than a purposeless and needless infliction of pain

and suffering. A sentence is considered grossly disproportionate if,when the crime

and punishment are considered in light of the harm done to society, it shocks the

sense of justice. State a Livous, 2018- 0016 ( La. App. 1st Cir. 9124118), 259 So. 3d

1036, 1044, writ denied, 2018- 1788 ( La. 4/ 15119), 267 So. 3d 1130. The trial court

has great discretion in imposing a sentence within the statutory limits, and such a

sentence will not be set aside as excessive in the absence of a manifest abuse of

discretion. State a Spikes, 2017- 0087 ( La. App. 1st Cir. 5/ 9103), 228 So.3d 201,

204. Louisiana Code of Criminal Procedure article 894. 1 sets forth the factors for

the trial court to consider when imposing sentence. While the entire checklist of

Article 894. 1 need not be recited, the record must reflect the trial court adequately

considered the criteria. Id. The goal of Article 894. 1 is to have the sentencing court

articulate a factual basis for the sentences, not rigid or mechanical compliance with

the Article' s provisions. Id.

Where the record clearly shows an adequate factual basis for the sentence

imposed, remand is unnecessary even where there has not been full compliance

with Article 894. 1. See State a Lanclos, 419 So. 2d 475, 478 ( La. 1982). The trial

court should review the defendant' s personal history, his prior criminal record, the

seriousness of the offenses, the likelihood that he will commit another crime, and

35 his potential for rehabilitation through correctional services other than

confinement. Spikes, 228 So. 3d at 204- 05. On appellate review of a sentence, the

relevant question is whether the trial court abused its broad sentencing discretion,

not whether another sentence might have been more appropriate. State a Thomas,

98- 1144 ( La. 10/ 9/ 98), 719 So. 2d 49, 50 ( per curiam).

At the time of sentencing, the trial court made several findings: the

defendant' s conduct during the commission of the offenses manifested a deliberate

cruelty to the victims; the defendant was in need of correctional treatment that

could be provided most effectively by his commitment to an institution; there was

an undue risk that, during a period of a suspended sentence or probation, the

defendant would commit another crime; the defendant knowingly created a risk of

death or great bodily harm to more than one person; the defendant used threats of

or actual violence in the commission of the crimes; the offenses resulted in a

significant permanent injury or significant economic loss to the victims' families;

the defendant used a dangerous weapon in the commission of the offenses; the

defendant endangered human life by discharging a firearm during the commission

of the offenses; and the offenses had an element of use of attempted threat and use

of physical force against the person or their property.

A conviction for second degree murder in Louisiana mandates a sentence of

life imprisonment at hard labor without benefit of parole, probation, or suspension

of sentence. La. R. S. 14: 30. 1( B). Nevertheless, La. R.S. 15: 574. 4( F) provides that

any person serving a sentence of life imprisonment for a conviction of second

degree murder, who was under the age of eighteen years at the time of the

commission of the offense, and whose indictment was on or after August 1, 2017,

shall be eligible for parole consideration if the offender has served twenty- five

years of the sentence imposed, assuming other conditions are also met. In

accordance with this provision, the trial court sentenced the defendant to life in

36 prison without the possibility of probation or suspension of sentence, but with the

possibility of parole. Thus, the defendant' s sentence for second degree murder is

statutorily required and is not excessive.

The sentencing range for an attempted second degree murder conviction is

ten to fifty years imprisonment at hard labor without the possibility of probation,

parole, or suspension of sentence. La. R.S. 14: 27( D)( 1)( a). The trial court

sentenced the defendant to the statutory maximum of fifty years without the

possibility of probation, parole, or suspension of sentence. Louisiana Revised

Statutes 15: 574.4( J)( 1) likewise provides that any person serving a term or terms of

imprisonment that results in a period of incarceration of twenty-five years or more,

and who was under the age of eighteen years at the time of the commission of the

offense, shall be eligible for parole consideration if the offender has served at least

twenty- five years of the sentence imposed, provided other conditions are met

during the period of incarceration.

We find that as to count two, the defendant was improperly sentenced to fifty

years without benefit of parole in violation of La. R.S. 15: 574. 4( J). Because an

illegal sentence may be corrected at any time by the court that imposed the

sentence or by an appellate court on review, we amend the attempted second

degree murder sentence to provide that the defendant is eligible for parole after

twenty-five years in accordance with La. R.S. 15: 574.4( J). Further, the

Department of Corrections is ordered to revise the defendant' s master prison record

to reflect that his sentence for attempted second degree murder is no longer without

benefit of parole and, in accordance with the criteria in La. R.S. 15: 574. 4, to reflect

an eligibility date for consideration by the Board of Parole once the conditions

contained therein are met. La. Code Crim. P. art. 882; see also State a Thompson,

2022- 0314 ( La. App. lst Cir. 1/ 10/ 23), 2023 WL 142384, x` 20 ( unpublished).

37 PATENT ERROR REVIEW

Under the authority of La. Code Crim. P. art. 920( 2), this court routinely

reviews appellate records for patent error. State a Porche, 2019- 0278 ( La. App. 1 st

Cir. 9127119), 288 So. 3d 802, 804.

Louisiana Code of Criminal Procedure article 930. 8( C) provides that, at the

time of sentencing, the trial court shall inform the defendant of the prescriptive

period for seeking post -conviction relief. However, a failure to do so by the trial

court has no bearing on the sentence and is not grounds to reverse the sentence or

remand the case for resentencing. State a Jones, 97- 1687 ( La. App. 1st Cir.

5/ 15/ 98), 714 So.2d 819, 826, writ denied, 98- 1597 ( La. 10/ 30/ 98), 723 So. 2d 975.

We note that neither the transcript nor the commitment order reflects that the trial

court advised the defendant of the provisions of La. Code Crim. P. art. 930. 8.

Accordingly, the trial court is ordered to send written notice of the prescriptive

period for seeking post -conviction relief to the defendant within ten days of the

rendition of this opinion and to place confirmation of such in the record of these

proceedings with the clerk of the trial court. State a Lathers, 2005- 0786 ( La. App.

1st Cir. 2/ 10/ 06), 924 So. 2d 1038, 1045 writ denied, 2006- 1036 ( La. 1113106), 940

So. 2d 659; State a Lewis, 94- 2145 ( La. App. 1st Cir. 11/ 9/ 95), 665 So. 2d 38, 43;

Jones, 714 So. 2d at 826.

CONVICTION AND SENTENCE ON COUNT 1 AFFIRMED; CONVICTION AFFIRMED AND SENTENCE AMENDED ON COUNT 2 TO REFLECT THE BENEFIT OF PAROLE, AND AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

38 STATE OF LOUISIANA

WELCH, J., dissenting,

I respectfully disagree with the majority opinion in this matter. The evidence

in this case was woefully insufficient to establish the defendant' s identity as a perpetrator of the crime beyond a reasonable doubt. Aside from the testimony of

victim Jason Boyd, which was ambiguous at best, almost the entirety of the State' s

case in establishing the defendant as the perpetrator of the crime was predicated on

the speculative testimony of Detective Trosclair, who merely reviewed the video

surveillance footage, and his inference of guilt by association. The majority' s

decision to affirm the defendant' s conviction given the total lack of evidence,

eyewitness identification, or admission of guilt is a travesty ofjustice.

According to the testimony of Boyd, he and Courtney Carter were at Victoria' s

Secret store in the mall when Carter was approached by three guys, and words were

exchanged. After Boyd and Carter left that store, the three guys talked to them some

more, then walked off. Boyd did not know these three people. When Boyd and

Carter left the mall, they drove down Bayou Gardens and, from there, a " back road"

behind the mall. When they stopped at a red light, Boyd heard gunshots. Boyd

testified that he saw a white car and two guns coming from the back window. When

Boyd was asked on direct examination if he could tell it was one person with two

guns or two people each holding a gun, Boyd stated, " I can' t even tell you that[,]" and then, " all I seen was two guns coming out the window." The prosecutor then

reminded Boyd that, when he was in the hospital, he gave a statement to Detective

Trosclair that it was two people with guns because one person was holding the gun with two hands. Boyd did not respond, the defense counsel objected to the

prosecutor' s question as leading, and the objection was sustained.' The prosecutor

then asked, "[ D] o you recall if it was two people shooting out of the backseat; or if

it was just one?" Boyd replied, " Two people." When Detective Trosclair was asked

what Boyd told him about how many people were holding guns, Detective Trosclair

testified: " He was real specific actually and said that there was two people holding

the guns. There were two separate people that were shooting out of the back driver' s

side window."

In his brief statement given to the police, Boyd indicated there were two

people in the back seat and no front -seat passenger. Later in the trial, the State was

allowed to play the audio statement that Boyd gave Detective Trosclair at the

hospital. In this audio statement, Boyd indicated that he saw two guns out of the

back driver -side window. Boyd was asked if he could tell whether it was two people

shooting or one person shooting two guns. Boyd responded that " it was two people

because . . . he had his hand out the window like this[.]" Detective Trosclair

interrupted at this moment and stated, " So he had two [ inaudible], two hands on the

gun, ok[.]" Thus, Boyd could not and did not identify the defendant as the shooter

nor did he place the defendant in the vehicle from which the shots came.

Detective Trosclair compiled the most pertinent segments from the video

1 The following exchange then took place:

Q. Okay, were you able to see who it was? A. No, sir.

Q. Okay, you were just looking at the guns?

A. Yes, sir.

Defense counsel objected to his line of questioning as leading, and it was sustained. surveillance footage he was given, for purposes of trial, and while each segment was

played for the jury, Detective Trosclair explained and/ or narrated what was being seen in the video. The crux of Detective Trosclair' s testimony, which formed the

State' s theory of the case, was that Payne and Desmond left the mall and got into

their white Chevrolet Craze. Payne was the driver. After driving around the mall

parking lot for several minutes, Payne picked up the defendant. They then followed Boyd and Carter and shot them at a red light. However, this theory is problematic

because the State did notpresent any conclusive evidence that Payne actuallypicked

up the defendant at the mall or that the defendant was in the Cruze. The defendant' s

DNA was not found in the backseat of the Craze nor was there any mall video

surveillance footage that showed the defendant being picked up by Payne. In fact,

the defendant had separated from Payne and Desmond at the mall and walked around

alone. Detective Trosclair testified that at 11: 15 a. m., the defendant exited the H& M

store at the mall by himself. The video clip showed the defendant turn right, then

walk along the side of the mall and then out of camera range. According to Detective

Trosclair, the defendant would have been standing near Dillard' s; the defendant was

in a " blind spot" that none of the other cameras at the mall could pick up. Detective

Trosclair then posited that during the time the defendant was leaving H& M, Payne

drove the Craze from J. C. Penney' s on the other side of the mall to the roadway that

passed in front of Dillard' s. While it is never seers on video, Detective Trosclair

suggests it was at this point that Payne picked up the defendant, then drove to the

scene of the shooting. According to Detective Trosclair, after the defendant walked

off camera near Dillard' s, the detective never saw the defendant again in any other

At the hearing of the defendant' s motion for new trial wherein the defendant

argued his identity was not proven, the prosecutor responded in pertinent part:

And we saw [ the defendant] coming out of H&.M, going to the parking lot. And at the same time we know we saw the other vehicle being driven by ... Payne coming from the backside to go pick him up. And then low and behold, he disappears. And it was just a matter of seconds.

And the jury, obviously, put it together. It' s like no, there' s nothing else. There was no other plausible explanation, none

whatsoever, that [ the defendant] had to be in that vehicle.

Despite the prosecutor' s assertion, the defendant did not disappear within

just a matter of seconds." A review of the video indicates that after the defendant

went out of view of any mall camera, he was likely standing in front of Dillard' s.

The defendant walked out of view at about the 11: 15: 33 mark. At around this time,

the white Cruze, at least as identified by Detective Trosclair, can be seen turning and

heading down the parking lot road that passes in front of H& M and Dillard' s.

Around 35 seconds later, the white vehicle goes out of view just as the defendant

had gone out of view. Following this, Detective Trosclair in his testimony tracked

the movement of the white Cruze over the next several minutes. A review of the

videos indicates the Cruze was about 30 to 40 seconds behind the Charger. No one

can be identified in the Cruze because the windows are up and tinted. The actual

shooting was not captured on video.

From this testimony and the video, the jury could not have rationally

concluded beyond a reasonable doubt that Payne picked up the defendant at the mall.

The defendant was seen on the video talking on a cell phone while walking toward

Dillard' s. He could have remained in front of Dillard' s for several minutes while the

shooting took place; or he could have been picked up at the mall by someone else.

It is not clear from Boyd' s testimony that he actually saw three people in the white

car or just two guns from the back window and, therefore, assumed there were three

people in the car. Even if there were three people in the car, and assuming it was

Payne in the white Cruze responsible for the drive-by shooting, Payne could have

picked up a third person as he was driving from the mall or along the route ostensibly following the Charger.2 Moreover, even if the defendant was in the Cruze at the time

of the incident, there is no evidence to prove he was a willing participant in the drive-

by shooting, much less one of the shooters. If, in fact, Payne was driving and

Desmond was in the back seat, Desmond could have fired from the back seat while

Payne, in the driver' s seat, also shot out the back window.

The State' s theory of the case was that the shooting of Carter was motivated

by revenge. Carter' s sister testified at trial that years ago Carter killed Gerard Jones,

Desmond' s father, and was jailed for eleven years for his crime.' Gerard Jones,

however, was not the defendant' s father. The defendant and Desmond are half-

brothers because they have the same mother. At the time of the shooting, the

defendant was fifteen years old, Desmond was 23 years old, and Tyler was 27 years

old. Thus, while Desmond may have been motivated by revenge, it was mere

conjecture by the State to attribute that same motivation to the defendant over a man

who was not the defendant' s father.

Upon a careful review of the entire record, I believe that the jury did not act

rationally in finding the defendant guilty of second degree murder and attempted

second degree murder. The evidence introduced at trial did not establish beyond a

reasonable doubt that the defendant was one of the shooters or that he was even in

the car at the time of the shooting. Because of a lack of direct evidence or eyewitness

testimony, the jury was presented with the reasonable hypothesis that the defendant

was still at the mall at the time of the shooting or had been picked up by someone

else at the mall (or both). Moreover, even if the defendant had been picked up at the

2 According to Detective Trosclair, the third person could not have been Barrow because he was still at the mall at the time of the shooting. The police never located Barrow after the incident. It was twenty to thirty minutes from the time the defendant went off camera at the mall until the shooting. While the white Cruze was picked up on several street cameras about 30 to 40 seconds behind the Charger, most of this time spent driving and/ or stopping by Payne was not on camera or, at least, was not introduced into evidence.

3 In his opening statement, the prosecutor stated Carter was convicted of manslaughter in 2005 or 2006. mall by Payne, the State did not establish that the defendant was one of the shooters

or had anything to do with the shooting. In the blind spot at the mall, Payne could

have gotten in the back seat and told the defendant to drive. Thus, after leaving the

mall, the defendant could have been the driver of the Cruze and told nothing more

than to drive the car with Payne and Desmond in the back seat with firearms.

The State suggests that even if the defendant was not in the Cruze at the time

of the shooting, the evidence was sufficient to establish he was nonetheless a

principal. According to the State, when Desmond and the defendant split up at the

mall, Desmond walked in the direction of his car while the defendant was " following

or still hunting for the victims." The State suggests that all of the defendant' s actions

and movements inside and outside of the mall indicated he was aiding Desmond in

his search for the victims and was the " lookout" while Desmond retrieved the car.

These assertions by the State are mere conjecture. As noted, there was no

audio on any of the mall videos. There was no evidence from any cell phone to

suggest any discussion or plan to follow and to ultimately shoot the victims. The

most the evidence reveals is that the defendant at different times was walking by

himself inside and outside the mall and, while outside, talking on his cell phone.

During the very brief conversation among Desmond, Payne, and Carter inside the

mall, the defendant appeared to have little to no interest at all. The State' s assertion

notwithstanding, it is not at all clear why these men needed a fifteen -year-old boy to

act as a scout when any of the men -- Desmond, Payne, or Barrow -- could have kept

an eye on the victims himself, Moreover, even if at the behest of his older half-

brother, the defendant had played a role in keeping an eye on the whereabouts of the

victims, there is nothing in the evidence to indicate the defendant knew or was aware

of what Desmond and/ or Payne may have been discussing or planning regarding the

victims. Thus, I find that the State failed to meet its burden of excluding every

reasonable hypothesis of innocence in this case. While I am mindful not to substitute my judgment for that of the jury, it is

evident that, in determining the defendant' s guilt, the jury engaged in impermissible

speculation and found the defendant was guilty because of his association with

Desmond and Payne and what Detective Trosclair thought might have happened.

Under the facts ofthis case, any rational trier of fact, after viewing all of the evidence

as favorably to the prosecution as a rational factfinder can, would necessarily have

a reasonable doubt as to the defendant' s guilt under the Jackson v. Virgina, 443

U.S. 307, 319, 99 S. Gt. 2781, 2789, 61 L.Ed.2d 560 ( 1979) standard. That is, no

rational trier of fact could have found that, under these circumstances, the defendant,

to the exclusion of everyone else, was one of the shooters or a principal to the

shooting. It is incomprehensible to me that a fifteen year- old kid will be and is

serving life imprisonment based solely on hypothetical conjecture and guilt by

association. Accordingly, I would reverse the defendant' s convictions and sentences.

Thus, I respectfully dissent.