State of Louisiana Versus Antonio Dante Key

• Court: Louisiana Court of Appeal
• Decided: December 27, 2023
• Docket: 23-KA-167
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 23-KA-167

VERSUS FIFTH CIRCUIT

ANTONIO DANTE KEY COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 19-2637, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

December 27, 2023

FREDERICKA HOMBERG WICKER JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED FHW JGG SJW COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Monique D. Nolan Thomas J. Butler Zachary L. Grate

COUNSEL FOR DEFENDANT/APPELLANT, ANTONIO DANTE KEY Drew M. Louviere WICKER, J.

Defendant, Antonio Key, appeals his conviction and sentence for aggravated

burglary in violation of La. R.S. 14:60. For the following reasons, we affirm

defendant’s conviction. Upon an errors patent review, we find that the trial court

improperly restricted statutory benefits in sentencing defendant, and we amend his

sentence to remove the restriction of benefits for the last five years of his twenty-

year sentence. In all other respects, we affirm defendant’s sentence.

STATEMENT OF THE CASE

On June 19, 2019, the Jefferson Parish District Attorney filed a bill of

information charging defendant with aggravated burglary in violation of La. R.S.

14:60.1 Defendant was arraigned on that same date and pled not guilty. On

February 18, 2020, the State filed a superseding bill of information and a Motion to

Invoke Firearm Sentencing Provision Pursuant to Louisiana Code of Criminal

Procedure Articles 893.12 & 893.3.3 On March 5, 2020, the State amended the

superseding bill of information to allege that defendant committed aggravated

burglary while using a firearm and causing bodily injury to Elizabeth McDonald

1 Darius Daleo and Rodgers Hart, III were also charged with aggravated burglary in count one. Additionally, Mr. Hart was charged with attempted armed robbery (count two) and carjacking (count three) in that same bill of information. 2 La. C.Cr.P. art. 893.1 states: A. If the district attorney intends to move for imposition of sentence under the provisions of Article 893.3, he shall file a motion within a reasonable period of time prior to commencement of trial of the felony or specifically enumerated misdemeanor in which the firearm was used. B. The motion shall contain a plain, concise, and definite written statement of the essential facts constituting the basis for the motion and shall specify the provisions of this Chapter under which the district attorney intends to proceed. 3 La. C.Cr.P. art. 893.3, in pertinent part, states: D. If the finder of fact finds beyond a reasonable doubt that a firearm was actually used or discharged by the defendant during the commission of the felony for which he was convicted, and thereby caused bodily injury, the court shall impose a term of imprisonment of not less than fifteen years nor more than the maximum term of imprisonment provided for the underlying offense; however, if the maximum sentence for the underlying felony is less than fifteen years, the court shall impose the maximum sentence. E. (1)(a) Notwithstanding any other provision of law to the contrary, if the finder of fact has determined that the defendant committed a felony with a firearm as provided for in this Article, and the crime is considered a violent felony as defined in this Paragraph, the court shall impose a minimum term of imprisonment of not less than ten years nor more than the maximum term of imprisonment provided for the underlying offense. In addition, if the firearm is discharged during the commission of such a violent felony, the court shall impose a minimum term of imprisonment of not less than twenty years nor more than the maximum term of imprisonment provided for the underlying offense.

23-KA-167 1 under La. C.Cr.P. art. 893.3(D). On that same date, defendant was re-arraigned and

pled not guilty. Defendant filed various pretrial motions and, on July 21, 2021,

defendant’s pretrial motions to suppress statement, evidence, and identification

were denied.

On April 25, 2022, the case proceeded to trial before a twelve-person jury.

On April 27, 2022, the jury unanimously found defendant guilty as charged under

La. R.S. 14:60 and returned a special verdict under Article 893.3(D). Defendant

filed a motion for new trial, which the trial court denied on May 26, 2022. On that

date, the trial court sentenced defendant to imprisonment at hard labor for twenty

years without benefit of parole, probation, or suspension of sentence. This timely

appeal followed.

FACTS

On April 30, 2019, at 11:57 p.m., the Jefferson Parish Sheriff’s Office

(JPSO) received a 9-1-1 call from a woman, later identified as Elise McDonald,

who reported that someone had just broken into her home through the back door at

4616 Southshore Drive in Metairie. Ms. McDonald subsequently told the 9-1-1

operator that a tall black male wearing black clothing, black gloves, and a black ski

mask pointed a gun at her and her mother, later identified as Dr. Elizabeth

McDonald, and hit her mother in the head, causing her to bleed.4 She explained to

the 9-1-1 operator that they had barricaded themselves in an upstairs bedroom and

were scared to go downstairs.

JPSO Detective Andrew Pennington testified that on April 30, 2019, he was

dispatched to a burglary in progress at 4616 Southshore Drive. Detective

Pennington explained that he and other responding officers entered through the

back door after noticing that the window pane in the back door was broken. He

recalled that when they went upstairs, he saw blood on the floor and the wall, and

4 The victims both testified that two perpetrators entered their home.

23-KA-167 2 jewelry scattered about. Detective Pennington stated that the responding officers

found the two victims on the second floor in a bedroom. He explained that Dr.

McDonald had blood on her head and face and that she and her daughter were

terrified. He further testified that after ensuring that no one else was in the house,

the officers brought the victims downstairs, spoke to them separately, and took

statements from them.

Dr. McDonald, a sixty-seven-year-old retired gastroenterologist, testified

that she lived at 4616 Southshore Drive with her adult daughter and a large, sixty-

pound dog. Dr. McDonald stated that on April 30, 2019, she left the hospital and

arrived home at approximately 10:00 p.m. She explained that she and her daughter

talked, ate a snack, got ready for bed, and went into to their separate bedrooms and

closed their doors at approximately 11:00 p.m. Dr. McDonald testified that at some

point, she heard a loud noise and noticed that the alarm was going off. She jumped

out of bed, went straight to the alarm panel at the top of the stairs, and realized that

there had been a system breach.

Dr. McDonald recalled that as she then ran down the hallway toward her

daughter’s bedroom, she encountered a masked man with a black hood and black

gloves dressed all in black. She also recalled that the man immediately started

hitting her with a gun and tried to push her into the bathroom. She explained that

she was in “hand to hand” combat with him. Dr. McDonald stated that while she

was being hit about the face, shoulders, and chest and being pushed into the

bathroom, she looked into her daughter’s room and saw another man holding a gun

on her daughter. She testified that she attempted to get to her daughter’s bedroom

to help her, and that she did not care if she died in doing so. She recalled trying to

push her daughter’s door to keep it open. She testified that, thereafter, the fighting

escalated and she was hit multiple times in the head with the perpetrator’s gun,

until she found herself on the bathroom floor.

23-KA-167 3 Dr. McDonald stated that at some point, the man who was hitting her “raised

the hand with the gun,” stopped, and said, “Go, go. We got to get - - we got to - -

get out. Get out.”5 She stated that the men ran away, that the dog came out of her

daughter’s room, and that she crawled into her daughter’s room. She and her

daughter barricaded themselves in her daughter’s bedroom by pushing the jewelry

box and a large mirror against the door. She recalled that her daughter quickly

called 9-1-1 and told them that they needed help. Dr. McDonald also recalled that

the 9-1-1 operator stayed on the phone until the police arrived and escorted them

from the bedroom. Dr. McDonald testified that EMS came to the scene, after

which she went by ambulance to the hospital where she received medical

treatment, including for bruising on her body and sutures in her forehead and

inside her mouth.

Dr. McDonald testified that she reported to police that on April 11 and 12,

2019, she had air conditioning work done on her house by Bryans United Air

Conditioning. She recalled that on April 11, 2019, someone from Bryans United

informed her that her back door appeared to be broken. She explained that she

immediately had the door repaired on April 12, 2019.

Ms. Elise McDonald testified at trial that she was forty-one years old, a real

estate agent, and her mother’s assistant. She recalled that on April 30, 2019, at

approximately 10:00 p.m., her mother came home from working at the hospital.

She and her mother talked, had a snack, watched television, took showers, and then

each went to their own bedrooms at approximately 11:00 p.m. She testified that she

thereafter heard an extremely loud bang at the back door, glass breaking, the door

opening, and the alarm going off. Ms. McDonald stated that she immediately heard

5 Dr. McDonald testified that she was familiar with firearms and that she believed one of the firearms used during the incident was a Glock.

23-KA-167 4 multiple footsteps coming up the stairs. Thereafter, a masked gunman wearing

black clothing, black gloves, and a black ski mask opened her door, leaned over

her bed, pointed a gun at her, and repeatedly said, “Get to me. Come here. Come to

me.” She recalled screaming, “No. No. No.” Ms. McDonald asserted that her dog

was next to her and barking ferociously. She stated that she was trying to crouch

down near the side of her bed to protect herself and thought that she was either

going to be raped or killed. Ms. McDonald testified that the gunman continued to

shout at her, stared at her “like he wanted [her],” and told her to come to him.

Ms. McDonald testified that she subsequently heard scuffling in the hall and

knew then that there had to be more than one perpetrator in the home. She then

heard her mother shouting and the other perpetrator and her mother fighting. She

testified that she had a clear view of her mother in the hallway and saw that the

other gunman was beating her mother with his gun. Ms. McDonald explained that

the other gunman kept hitting her mother’s head and face and trying to shove her

mother into the bathroom, but that she kept getting back up. She further explained

that when the gunman in her room realized that the gunman in the hallway—who

was much smaller—was not “handling” her mother, he went into the hallway,

pushed the other gunman out of the way, and began beating her mother harder with

his gun. Ms. McDonald explained that she could hear crunching, saw blood

spurting, and then realized her mother was not standing up any longer.

Soon thereafter, she heard one of the gunman say, “Let’s go. Let’s go. Get

out of here. We’ve got to go,” after which the gunmen ran. She further testified

that her dog chased after the gunmen, that her mother crawled into her (Ms.

McDonald’s) bedroom as quickly as she could and that they shut the door and tried

to barricade themselves in the room.

Ms. McDonald testified that she then called 9-1-1, after realizing that she

had pressed the panic button for the alarm system and was concerned that the

23-KA-167 5 police had not yet arrived. Ms. McDonald testified that she could not identify the

perpetrators; however, she explained that she could see that the man in the hallway

had a lighter skin tone, and the man in her bedroom had a darker skin tone.

Ms. McDonald testified that, on April 11, 2019, she and her mother were

both present the entire day when Bryans United performed air conditioning work

in their home. She also testified that she was at home by herself during the

morning on April 12, 2019, while Bryans United was at the house completing their

work, and that she and her mother were both present in the house from midday on

April 12, 2019, until Bryans United finished the job at the end of the day. She

pointed out that the Bryans United employees walked all over the house during the

air conditioning work, both upstairs and downstairs, on those days.

Detective Stoltz6 testified that while he conducted an investigation at 4616

Southshore Drive, Louisiana State Police troopers were parked on North Causeway

Boulevard south of I-10 when they noticed a black Sonata vehicle with tinted

windows driving south with no headlights on. Detective Stoltz explained that the

state troopers tried to pull the vehicle over, but it would not stop, and a chase

ensued. The vehicle ultimately crashed at North Turnbull and Johnson, and three

suspects fled the scene on foot.

Detective Stoltz testified after obtaining a search warrant for the vehicle, a

2016 Hyundai Sonata, officers recovered from inside the vehicle a license plate

registered to defendant, defendant’s driver’s license, defendant’s debit card,

multiple documents with the name “Rhyidh Wilson” on them, and a Nissan key

fob for defendant’s Nissan Altima. Additionally, Sergeant Randy Thibodeaux with

JPSO testified that numerous items were recovered from the Sonata, including a

6 Sergeant Randy Thibodeaux testified that on April 30, 2019, he began the investigation in the instant case by asking the crime lab technicians to take photographs of the scene at 4616 Southshore Drive, obtaining consent from Dr. McDonald for her DNA and swabs of her fingernails, and taking verbal statements from the victims while at that scene. Sergeant Thibodeaux further testified that when his night watch period ended, he turned over the investigation to JPSO Detective Robert Stoltz, the lead investigator.

23-KA-167 6 Taurus pistol, a pair of brown leather gloves, a pair of latex gloves, a black ski

mask, a camouflage mask, a white tank top, a black Nike hooded sweatshirt, a

black jacket, and a black and gray hooded jacket.

Detective Stoltz explained that although the Sonata vehicle was registered to

Ernest Williams, he learned through his investigation that Mr. Wilson was the

vehicle’s primary driver. Detective Stoltz requested that the second district conduct

a disposition check at Mr. Wilson’s residence. He testified that a deputy went to

that address and spoke to Mr. Wilson, who claimed that his vehicle had been stolen

and filed an auto theft report. Suspicious of Mr. Wilson’s complaint, JPSO later

stopped Mr. Wilson, who was driving defendant’s Nissan Altima, and brought him

to the investigations bureau for questioning.7 Detective Stoltz testified that a search

warrant was obtained for defendant’s Nissan Altima and that during the search, a 9

mm Glock ammunition magazine was retrieved.

Detective Stoltz testified that he interviewed Darius Daleo, one of the

individuals who fled the scene at North Turnbull and Johnson and was later

captured.8 Detective Stoltz recalled that Mr. Daleo told officers that he was in the

Sonata vehicle with a Rodgers Hart and a third person who he did not know, but

who he knew had done air conditioning work at the victims’ home. After the

victims told Detective Stoltz that Bryans United had recently done air conditioning

work on their home, he called Bryans United and asked for the names of the

employees who had worked at the victims’ home, after which Bryans United

confirmed that defendant had recently performed work there.

Detective Stoltz testified that he applied for an arrest warrant for defendant,

that defendant was arrested at Bryans United in Gretna on May 2, 2019, and that

7 JPSO also seized Mr. Wilson’s cell phone. 8 Detective Stoltz asserted that Mr. Hart was thereafter arrested, that they seized Mr. Hart’s cell phone, and that they obtained a search warrant for his residence. He further asserted that they retrieved evidence from Mr. Hart’s residence, which included a Smith and Wesson .40 caliber firearm, a Smith and Wesson box, and a lot of ammunition. Detective Stoltz later testified that after Mr. Hart fled from the scene at North Turnbull and Johnson, he carjacked a nearby pizza delivery driver.

23-KA-167 7 defendant’s cell phone was seized from his person upon arrest. He also testified

that defendant’s residence was later searched pursuant to a search warrant and that

several items were recovered, including a Glock pistol box; two live rounds of 9

mm ammunition; six live rounds of 9 mm ammunition; three live rounds of 9 mm

ammunition; seven live rounds of 9 mm ammunition; three Glock magazines – a

nine round, a thirteen round, and a thirty round; a black jacket; and two pairs of

black Adidas pants.

Detective Stoltz further testified that JPSO obtained video surveillance from

homes near the scene at 4616 Southshore Drive. He testified that the video

evidence from neighborhood surveillance cameras showed the suspected vehicle

enter the neighborhood and, at some point, turn its headlights off and park near the

corner of Southshore Drive and Brennan Street for approximately seventeen

minutes. Other video evidence retrieved from a neighbor’s home camera reflects

that the lights went off at 4616 Southshore Drive at approximately 11:36 p.m. At

11:40 p.m., two individuals can be seen walking from the east side at the corner of

Brennan Street and Southshore Drive and approaching the victims’ home. Then, at

11:57 p.m., the vehicle begins moving onto Southshore Drive toward the victims’

home. The video evidence shows that, immediately as the vehicle drives past the

victims’ home, the shadows of two people can be seen running from the residence,

getting into the vehicle, and the vehicle fleeing.

Additionally, Detective Stoltz testified that cell phone extractions were

performed on defendant’s cell phone.9 As to defendant’s cell phone, Detective

Stoltz pointed out a photograph retrieved from defendant’s phone which showed

Ms. McDonald’s jewelry box opened and filled with jewelry, with a person’s hand

9 Detective Stoltz also testified that cell phone extractions were performed for phones belonging to Mr. Hart, Mr. Daleo, and Mr. Wilson.

23-KA-167 8 in the photograph. He also identified photographs on defendant’s cell phone that

showed multiple Glock pistols.

Detective Stoltz detailed various text messages and communications

between the cell phones of defendant and other individuals. In sum, on April 11,

2019 (the day defendant had been working on the air conditioning at the victims’

home), at 4:20 p.m., defendant sent a photograph of Ms. McDonald’s jewelry box

to Wilson, who asked for the address where the jewelry was located.10 Defendant

sent Wilson the location (4616 Southshore Drive) through text and Wilson then

asked whether anyone was present at the home, to which defendant responded

affirmatively. On April 29, 2019 (one day prior to the offense in the instant case),

at 10:12 p.m., defendant told Wilson he was trying to bring a person to the “lick,”

which Detective Stoltz stated meant a burglary. Wilson responded that his brakes

were “bad.” On April 30, 2019 (the day of the offense in the instant case), at 9:40

p.m., defendant sent Wilson a message that he could use the “whip” if he changed

the license plate. Detective Stoltz explained that a “whip” meant a vehicle.

Defendant told Wilson, “I’ll leave you mine.” On April 30, 2019, shortly after

midnight, Wilson sent a blank text, and defendant responded that he had wrecked

Wilson’s vehicle. Defendant thereafter sent Wilson a “location drop” in the area of

North Turnbull and Johnson where the vehicle crashed. At 12:14:53 a.m.,

defendant sent another message to Wilson telling him not to come to the location.

Detective Stoltz also detailed text messages between the cell phones of

defendant and someone named “Will.” On April 26, 2019, at 7:09 a.m., defendant

10 JPSO Sergeant Solomon Burke testified that he was commander of the digital forensics unit. The trial court accepted him as an expert in the field of mobile device forensics. Sergeant Burke testified that he located image 8138, the photograph of the jewelry box, on defendant’s cell phone. He asserted that image 8138 was shared by defendant on three occasions. He explained that image 8138 was captured on April 11, 2019, at 4:08:26 p.m. Sergeant Burke pointed out that the last time there was a GPS location for that phone on April 30, 2019, was at 10:38:26 p.m. He also pointed out that the next time there was a GPS location for that phone was on May 1, 2019, at 12:12:37 a.m. Sergeant Burke testified that there were no outgoing calls between 11:44 p.m. and 11:57 p.m. on April 30, 2019, and that the phone did not send any text messages within those times nor was there any app usage during those times.

23-KA-167 9 sent the photograph of the jewelry box to Will. Defendant sent another message to

Will saying, “Persons doing it tonight. Drop the lo to your crib. We gone. Head out

after. It’s me, my partner. Just one or two S.” Detective Stoltz stated that “lo” was

a location. Will responded with an address in Texas and stated that it would take

six hours to get there. Will asked how long defendant would stay in Texas, and

defendant responded, “Like two, three days. Probably just to sell some of it.” On

April 27, 2019, defendant sent a message to Will that they did not “do it” because

there were checkpoints due to Jazz Fest. The officers never determined the identity

of “Will.”11

Detective Stoltz testified that he examined the call logs between Mr. Hart

and Mr. Daleo. Detective Stoltz testified that Mr. Daleo’s phone records showed

that he received an incoming call from Mr. Hart on April 30, 2019, at 11:39 p.m., a

fifty second call. Next, at 11:40:31 p.m. that night, Mr. Daleo received an

incoming call from Mr. Hart—a phone call that lasted seventeen minutes and

thirty-five seconds, or until approximately 11:58 p.m. Detective Stoltz

acknowledged that the 9-1-1 call was made by Ms. McDonald—who testified that

she made the 9-1-1 call immediately after the intruders fled—on April 30, 2019, at

11:57 p.m.

Mr. Daleo testified at trial and admitted that he participated in the offense

with Mr. Hart and defendant, who knew each other. He testified that he knew Mr.

Hart before the offense but did not know defendant. He explained that he became

involved in the instant case after Mr. Hart asked him to go “hit a lick,” which he

testified meant to steal something. He further testified that defendant knew to “hit

this place for a lick” because he had been at the house previously doing air

11 Detective Stoltz pointed out that defendant also sent text messages to someone named “Black.” On April 28, 2019, defendant sent a message to Black saying, “You tryna FW this lick in Metairie” and “need a whip. That’s all.” Black responded that defendant should have told him earlier and asked, “What’s the lick?” Defendant responded “BUKU jewelry,” which Detective Stoltz interpreted as beaucoup jewelry. The officers never determined the identity of “Black.”

23-KA-167 10 conditioning work. Mr. Daleo testified that they did not intend to steal anything

that night; rather, he stated Mr. Hart told him they would drive past the house and

“peep the scene out.”

Mr. Daleo testified that after he got into the car that night, he sat in the

driver-side back seat, Mr. Hart sat in the front passenger’s seat, and defendant sat

in the driver’s seat. Mr. Hart told him after they began driving to the victims’

home that he would be the getaway driver. He testified that after they arrived near

the home, defendant and Mr. Hart put on masks and exited the car as he remained

in the car. He further testified that Mr. Hart called him during the burglary so that

he could alert Mr. Hart to anything suspicious or to the police’s arrival, and that

while he was on the phone with Mr. Hart, he heard a dog barking and women

screaming. Mr. Daleo testified that he owned the camo mask worn by Mr. Hart that

night; he denied ever wearing the mask that night or entering the victims’ home.

Mr. Daleo testified that while the three men argued about which way he

should drive to get out of the neighborhood, state troopers got behind their vehicle,

and a high-speed chase ensued. He further testified that after the car crashed, he

hopped out, ran, stopped, and sent his location to his friend, Amber Burquet. Mr.

Daleo recalled that as soon as he got into Ms. Burquet’s car, he was arrested,

approximately thirty minutes after the offense.

Mr. Daleo admitted that he initially denied any involvement in the burglary.

However, after speaking with officers and observing surveillance video, he

eventually admitted his involvement and told officers that he was driving the

vehicle involved in the burglary on Southshore Drive. Mr. Daleo stated that he

drove the vehicle out of the neighborhood but that, soon thereafter, he pulled over

and switched seats with Mr. Hart by humping over the middle console. He

explained that he forgot to turn on the vehicle’s headlights and that he switched

seats because he was “too messed up” on Xanax and alcohol to drive.

23-KA-167 11 Kortnie Sinon, an expert in the field of latent print processing and

comparison, testified that she was formerly employed at the JPSO in the crime

lab.12 Ms. Sinon testified that latent prints obtained from the interior of the

Sonata’s driver’s side rear door handle were identified to be Mr. Daleo’s right

middle finger and right index finger. She further testified that latent prints obtained

from the interior of the Sonata’s passenger front door were identified to Mr. Hart’s

left index finger and right middle finger. Ms. Sinon also testified that she compared

a print on a photograph of the hand in the jewelry box to defendant’s “major case

prints” and determined that the ring finger from the photograph of Dr. McDonald’s

jewelry box located on defendant’s phone matched defendant’s left ring finger.

Kara Kovach, an expert in the field of DNA analysis, testified that Mr. Hart

could not be excluded as a major contributor to the DNA profile obtained from the

swab of the Smith and Wesson pistol, that Mr. Daleo could not be excluded as a

major contributor to the DNA profile obtained from the camouflage mask, and that

defendant could not be excluded as a major contributor to the DNA profile

obtained from the black mask.

Defendant testified at trial that he grew up in New Orleans, graduated from

high school in May 2014, left for boot camp in June 2014, and received an

honorable discharge from the Marine Corps in 2018. He further testified that he

subsequently went to HVAC school, after which he installed and serviced air

conditioning units in addition to performing road work.

Defendant testified that on April 11, 2019, he was employed with Bryans

United and working at 4616 Southshore Drive. He acknowledged that he took a

video of the victims’ bathroom because he had never seen a nice bathroom like that

before and claimed he wanted “to show my girl or something.” He further admitted

12 Ms. Sinon testified that she was the technical reviewer for another examiner in this case, Nikki Wilson, and that she agreed with Ms. Wilson’s conclusions.

23-KA-167 12 that he took a picture of the jewelry box in the home because he was enthused by

the jewelry. However, he claimed that he did not open the jewelry drawer, that it

had already been opened, and that he regretted taking a photo of the jewelry box.13

Defendant testified that on April 30, 2019, he used his friend Mr. Wilson’s

Hyundai Sonata, and further, that he used that vehicle often because it had dark

glass tint. He testified that night, he picked up Mr. Hart in Marrero and Mr. Daleo

in Bridge City. He insisted that he drove the vehicle that night and that Mr. Daleo

never drove it. Defendant recalled that when they arrived near 4616 Southshore

Drive, he parked the vehicle nearby because he saw that the lights in the house

were on. He claimed that he wanted to leave but that Mr. Daleo insisted that they

wait until the lights had been turned off. Defendant stated that he was scared to

drive away because Mr. Daleo had a gun and was high. Defendant explained that

Mr. Daleo and Mr. Hart exited the vehicle and defendant then repositioned the

vehicle so that he could see Mr. Hart and Mr. Daleo walk down the street.

Defendant testified that Mr. Daleo and Mr. Hart returned to the car

approximately seventeen minutes later. When asked how he knew when the other

two perpetrators were ready to be picked up—given that the video evidence

showed the vehicle driving up immediately as the two perpetrators ran away from

the house and toward the street—defendant testified that he could see the two men

had returned into the victims’ front yard because one was using a flashlight on his

phone.

Defendant explained that his license plate was found on the floor of the

Sonata vehicle and that he never switched the vehicle’s license plates because he

did not plan on going into the victims’ home that evening. He acknowledged that a

black ski mask was found in the Sonata but claimed that people his age wear ski

13 On rebuttal, Ms. McDonald testified that she did not have a habit of leaving her jewelry box opened and testified that she did not leave it open on April 11 or 12, 2019, because she knew Bryans United was coming to perform work in the house.

23-KA-167 13 masks rolled up like beanies and that he wore one regularly as a “trend,” but

testified that he never wore the mask that night and never entered the victims’

home.

Defendant admitted that he wanted to steal the jewelry so he could sell it and

obtain money. He further testified that he communicated with his friend Mr.

Wilson from Texas because he planned to sell the jewelry in Texas and did not

want to sell the jewelry locally in New Orleans and be caught.

Deloris Romero testified at trial that she and defendant’s mother had been

stationed in the Marine Corps together and that she had known defendant since he

was six or seven years old. Her impression of defendant’s character as a child was

that he was very good and very respectful. Ms. Romero testified that over the past

few years, she saw defendant once or twice a year and did not have any concerns

with his character.

John Michael Anthony testified that he met defendant in 2009, when he (Mr.

Anthony) and defendant’s mother were working in the Marine Corps. Mr. Anthony

asserted that defendant was a student then who did very well in school, played

sports, and cut his grass a couple of times. Mr. Anthony maintained that his

interactions with defendant continued throughout the years and that those

interactions were cordial. He stated that he saw defendant approximately once

every two months after defendant left the Marine Corps. He insisted that defendant

had a stellar reputation and that defendant treated his mother well.

LAW AND ANALYSIS

Defendant appeals his conviction and sentence, assigning the following

assignments of error: (1) the trial court erred in denying defendant’s pretrial

motion to suppress the evidence seized from defendant’s residence and cell phone;

(2) the trial court erred in imposing the firearm enhancement pursuant to La.

C.Cr.P. art. 893.1 et. seq because no firearm was discharged during the

23-KA-167 14 commission of the offense; (3) the evidence was insufficient to prove defendant’s

identity as the perpetrator who committed the aggravated burglary; (4) defendant’s

20-year-sentence is constitutionally excessive; and (5) the trial court erred in

denying defendant’s motions for mistrial. We address each assignment of error in

turn.

Sufficiency of the Evidence14

On appeal, defendant challenges the sufficiency of the evidence presented

against him at trial. Specifically, he contends that the evidence was insufficient to

identify him as one of the two perpetrators who physically entered the home and

caused injury to the victims. In his brief argument, defendant points out that

neither victim was able to identify the perpetrators and, thus, Mr. Daleo was the

only witness to testify against him at trial. Defendant asserts that the fingerprint

evidence—which demonstrated that Mr. Daleo’s fingerprints were found in the

getaway vehicle on the rear driver-side door—contradicted Mr. Daleo’s testimony

that he was driving the getaway vehicle on the night of the crime. Defendant

further points out that Daleo is taller than him, and that Dr. McDonald described

her assailant as “tall.” Defendant claims that he was present but remained in the

vehicle on the night of the burglary, but that he did not intend for Mr. Daleo and

Mr. Hart to actually enter the victims’ home that night.

In reviewing the sufficiency of the evidence, an appellate court must

determine if the evidence, whether direct or circumstantial, or a mixture of both,

viewed in the light most favorable to the prosecution, was sufficient to convince a

rational trier of fact that all of the elements of the crime have been proven beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

14 When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, such as the erroneous admission of evidence, the reviewing court should first determine the sufficiency of the evidence by considering all of the evidence, including evidence the trial court may have erroneously admitted. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Mayeux, 94-105 (La. App. 5 Cir. 6/28/94), 639 So.2d 828, 834.

23-KA-167 15 560 (1979); State v. Mickel, 09-953 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534,

writ denied, 10-1357 (La. 1/7/11), 52 So.3d 885; State v. Ordonez, 16-619 (La.

App. 5 Cir. 3/15/17), 215 So.3d 473, 477. When circumstantial evidence is used to

prove the commission of the offense, La. R.S. 15:438 provides, “[A]ssuming every

fact to be proved that the evidence tends to prove, in order to convict, it must

exclude every reasonable hypothesis of innocence.” The reviewing court is not

required to determine whether a defendant’s suggested hypothesis of innocence

offers an exculpatory explanation of events. Rather, the reviewing court must

evaluate the evidence in the 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. State v.

Baham, 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 566, writ denied, 15-40

(La. 3/24/16), 190 So.3d 1189.

Encompassed within proving the elements of an offense is the necessity of

proving the identity of the defendant as the perpetrator. Where the key issue is the

identification, the State is required to negate any reasonable probability of

misidentification to carry its burden of proof. State v. Ray, 12-684 (La. App. 5 Cir.

4/10/13), 115 So.3d 17, 20, writ denied sub nom. State ex rel. Ray v. State, 13-1115

(La. 10/25/13), 124 So.3d 1096.

Under La. R.S. 14:24, “[a]ll persons concerned in the commission of a

crime, whether present or absent, and whether they directly commit the act

constituting the offense, aid and abet in its commission, or directly or indirectly

counsel or procure another to commit the crime, are principals.” Only those

persons who knowingly participate in the planning or execution of a crime are

principals to that crime. State v. Pierre, 93-893 (La. 2/3/94), 631 So.2d 427, 428;

State v. King, 06-554 (La. App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied,

07-371 (La. 5/4/07), 956 So.2d 600. Mere presence at the scene of a crime does not

23-KA-167 16 make one a principal to the crime. State v. Page, 08-531 (La. App. 5 Cir.

11/10/09), 28 So.3d 442, 449, writ denied, 09-2684 (La. 6/4/10), 38 So.3d 299.

However, “[i]t is sufficient encouragement that the accomplice is standing by at the

scene of the crime ready to give some aid if needed, although in such a case it is

necessary that the principal actually be aware of the accomplice’s intention.” State

v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225.

The credibility of witnesses is within the sound discretion of the trier of fact,

who may accept or reject, in whole or in part, the testimony of any witness; the

credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21

(La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. In the absence of internal

contradiction or irreconcilable conflicts with physical evidence, the testimony of

one witness, if believed by the trier of fact, is sufficient to support a conviction.

State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied

sub nom. State ex rel. Dixon v. State, 08-987 (La. 1/30/09), 999 So.2d 745.

Defendant was convicted of aggravated burglary in violation of La. R.S.

14:60, which provides in pertinent part:

A. Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, under any of the following circumstances: (1) If the offender is armed with a dangerous weapon. (2) If, after entering, the offender arms himself with a dangerous weapon. (3) If the offender commits a battery upon any person while in such place, or in entering or leaving such place.

Battery is “the intentional use of force or violence upon the person of

another.” La. R.S. 14:33. Aggravated battery is defined as “a battery committed

with a dangerous weapon.” La. R.S. 14:34. A burglar only needs to have a

dangerous weapon in his possession in order to be considered “armed” for

purposes of La. R.S. 14:60. It is not required that the burglar use it or brandish it

during the commission of the offense. State v. Hearne, 55,311 (La. App. 2 Cir.

23-KA-167 17 9/27/23), 2023 WL 6279948, —So.3d— (citing State v. Rodney, 19-195 (La. App.

5 Cir. 10/23/19), 282 So.3d 395, 401).

At trial, defendant admitted that on April 11, 2019, he was employed with

Bryans United and working at 4616 Southshore Drive. He also admitted that he

took a picture of the victim’s jewelry while inside their home. Defendant testified

that he started planning the robbery on April 11, 2019, while working at the house.

He further testified that he engaged in communications with others about

coordinating the robbery. Defendant admitted that, prior to the robbery, he sent a

picture of the jewelry to other individuals asking for help with “the lick”, obtained

a vehicle to use in the robbery, and arranged to go to Texas after the robbery to sell

the jewelry in an effort to not be caught in Louisiana.

Defendant testified at trial that he stayed in the vehicle while Mr. Hart and

Mr. Daleo went into the victims’ home. He indicated that he was the getaway

driver after Mr. Hart and Mr. Daleo got back into the vehicle. See State v.

Demease, 33,047 (La. App. 2 Cir. 4/5/00), 756 So.2d 1264, 1269, writ denied, 00-

1488 (La. 5/25/01), 792 So.2d 750 (“The defendant’s confession that he was the

getaway driver is direct evidence of his involvement in the offense.”). Defendant’s

testimony indicates that he was at least a principal to aggravated burglary. The jury

was instructed on the law of principals.

Nevertheless, Mr. Daleo’s testimony calls into question whether defendant

was the getaway driver on the night of the robbery. Contrary to defendant’s

testimony, Mr. Daleo testified at trial that he was the lookout and getaway driver

during the robbery, that he stayed in the vehicle while defendant and Mr. Hart went

inside the victims’ home, and that he (Daleo) and Mr. Hart stayed on their phones

during the entire robbery so that he could alert Mr. Hart to any suspicious activity.

The phone record evidence introduced at trial confirmed an incoming phone call

from Mr. Hart to Mr. Daleo, which lasted approximately seventeen minutes,

23-KA-167 18 between approximately 11:40 p.m. and 12:00 a.m.—during the time of the robbery.

If defendant had been the getaway driver and stayed in the vehicle as he claimed,

there would be no reason for Mr. Hart and Mr. Daleo to be on the phone with each

other for an entire seventeen minutes while both were inside the house during the

robbery.

Moreover, the video evidence introduced at trial also calls into question

defendant’s claim that he was the getaway driver. The video evidence showed a

getaway vehicle quickly and promptly arriving at the victims’ home immediately

as the two perpetrators fled the home. The testimony at trial reflects that

defendant’s cell phone had no telephone calls, text messaging, or app activity

during the entire time of the robbery. With no telephone or other communication

between defendant in the getaway car and the perpetrators, it calls into question

how defendant, as the getaway driver, knew exactly when to arrive to pick up the

two fleeing perpetrators.

Additionally, the evidence reflects that defendant was the only alleged

perpetrator who had previously been inside the victims’ house and who knew

where the jewelry was located in the home. Ms. McDonald recalled that the

perpetrators arrived upstairs within seconds of breaking in, which indicates that

they knew exactly where to go. Moreover, Mr. Daleo testified at trial that, before

the vehicle entered the victims’ neighborhood, he was seated in the driver-side

back seat with defendant driving the vehicle, and he only moved to the driver’s

front seat during the time defendant and Mr. Hart were inside of the victims’ home

to act as the getaway driver. Therefore, the fingerprint evidence placing Mr. Daleo

at some point in time in the rear driver-side seat is not inherently contradictory to

Mr. Daleo’s testimony.

23-KA-167 19 Upon review of the record, we find that the State presented sufficient

evidence to support defendant’s conviction for aggravated burglary. This

assignment of error is without merit.

Motions to Suppress

On May 26, 2021, defendant filed various boilerplate motions to suppress,

including motions seeking suppression of all evidence seized with and without a

warrant, which the trial court considered at a July 21, 2021 suppression hearing.

On appeal, defendant challenges the veracity of the probable cause affidavits

accompanying the applications for search warrants for both his residence and his

cell phone, arguing that the applications were defective in that they failed to

establish probable cause and omitted material facts or made material

misrepresentations. Specifically, defendant claims that the probable cause

affidavits contained misrepresentations because they omitted that Mr. Daleo had

initially lied to investigating officers concerning his involvement in the robbery.

Defendant contends that the officers’ failure to include Mr. Daleo’s initial

statement denying any involvement in the robbery is a material misrepresentation

that renders the warrant unconstitutional. The record reflects that Mr. Daleo

initially denied any involvement in the robbery but rather “advised he got out of

the vehicle and left” prior to the robbery taking place. The record reflects,

however, that, upon further questioning and discussion of the evidence obtained at

that point in time, Mr. Daleo admitted participation as the getaway driver and made

further statements to the police, which are outlined in the probable cause affidavits.

The State responds that the warrants at issue do not contain

misrepresentations and do refer to Mr. Daleo’s inconsistent interview, stating that

“after a progressive and protracted interview he ultimately confessed to being the

driver of the vehicle while Rodgers Hart and an unknown suspect entered the

residence armed with handguns.” Further, the State asserts that any omission of

23-KA-167 20 Mr. Daleo’s previous statement was not intentional and that the probable cause

affidavit was prepared in good faith and, thus, the evidence should not be

suppressed.

The Fourth Amendment to the United States Constitution and Article I, § 5

of the Louisiana Constitution prohibit unreasonable searches and seizures. State v.

Thomas, 08-390 (La. App. 5 Cir. 1/27/09), 8 So.3d 80, 83, writ denied, 09-626 (La.

11/25/09), 22 So.3d 170. If evidence is derived from an unreasonable search or

seizure, the proper remedy is exclusion of the evidence from trial. Id.; State v.

Aston, 12-955 (La. App. 5 Cir. 9/4/13), 125 So.3d 1148, 1156, writ denied, 13-

2374 (La. 3/21/14), 135 So.3d 618. As a general rule, searches and seizures must

be conducted pursuant to a validly executed search warrant or arrest warrant. State

v. Holmes, 08-719 (La. App. 5 Cir. 3/10/09), 10 So.3d 274, 278, writ denied, 09-

816 (La. 1/8/10), 24 So.3d 857. Probable cause for the issuance of a search warrant

“exists when the facts and circumstances within the affiant’s knowledge and of

which he has reasonably trustworthy information, are sufficient to support a

reasonable belief that an offense has been committed and that evidence or

contraband may be found at the place to be searched.” State v. Lee, 05-2098 (La.

1/16/08), 976 So.2d 109, 122, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172

L.Ed.2d 39 (2008).

A magistrate must be given enough information to make an independent

judgment that probable cause exists to issue a warrant. Green, 831 So.2d at 968.

Moreover, the process of determining probable cause simply requires that enough

information be presented to the issuing magistrate to enable the magistrate to

determine that the charges are not capricious and are sufficiently supported to

justify bringing into play further steps of the criminal justice system. State v.

Brown, 09-722 (La. App. 4 Cir. 2/10/10), 32 So.3d 939, 950. The magistrate’s

determination of probable cause to issue a search warrant is entitled to significant

23-KA-167 21 deference on review, and “marginal cases should be resolved in favor of a finding

that the issuing magistrate's judgment was reasonable.” State v. Rodrigue, 437

So.2d 830, 833 (La. 1983).

The magistrate must make a common sense and non-technical decision as to

whether, given information contained in the affidavit, there is a “fair probability”

that evidence of a crime will be found in the place to be searched. State v. Brown,

18-01999 (La. 9/30/21), 330 So.3d 199, 252, cert. denied, 142 S. Ct. 1702, 212 L.

Ed.2d 596 (2022), citing Illinois v. Gates, 462 U.S. 213, 238–39, 103 S.Ct. 2317,

2332, 76 L.Ed.2d 527 (1983). The task for a reviewing court is simply to ensure

that under the totality of the circumstances, the magistrate had a substantial basis

for concluding that probable cause existed. State v. Payne, 10-46 (La. App. 5 Cir.

1/25/11), 59 So.3d 1287, 1296, writ denied, 11-387 (La. 9/16/11), 69 So.3d 1141.

Nevertheless, the United States Supreme Court has held that evidence seized

pursuant to a warrant based on less than probable cause need not be suppressed if

the officers who executed the warrant believed it to be validly issued. State v.

Davis, 17-642 (La. App. 5 Cir. 12/11/17), 2017 WL 10118514, at 2 (citing United

States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d. 677 (1984)). In

formulating this judicially created good faith rule, the Court reasoned that the good

faith of an officer in the execution of a warrant signed by a neutral magistrate

should be enough for the evidence obtained as a result of the search to be

admissible. Id. Thus, the Court expressed a strong preference for warrants over

warrantless searches by allowing evidence seized in constitutionally questionable

searches to be admissible into evidence if the officers relied on a validly issued

warrant. Id; State of Louisiana v. Jalin Cosse In re State of Louisiana, 23-198 (La.

App. 5 Cir. 5/19/23), —So.3d—, 2023 WL 3559763.

In United States v. Leon, supra, the Supreme Court held that evidence seized

under a constitutionally defective warrant should not be suppressed where the

23-KA-167 22 officers acted in good faith and in objectively reasonable reliance on the validity of

the warrant. The Leon court enumerated four instances in which suppression

remains an appropriate remedy: (1) where the magistrate or judge was misled by

information the affiant knew was false or would have known was false except for a

reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned

his detached and neutral judicial role; (3) where the warrant was based on an

affidavit so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable; and (4) where the warrant is so facially deficient,

i.e., fails to particularize the place to be searched or the things to be seized, that the

executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 914-

15, 104 S.Ct. at 3416.

Specifically concerning alleged misrepresentations made in a probable cause

affidavit, the Louisiana Supreme Court recently stated:

Regarding defendant’s claim that the affidavit was based on omissions or misleading information, an affidavit is presumed to be valid, and the defendant has the burden of showing by a preponderance of the evidence that the affidavit contains false statements. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978); State v. Brannon, 414 So.2d 335, 337 (La. 1982); State v. Ogden, 391 So.2d 434, 439 n.7 (La. 1980); State v. Wollfarth, 376 So.2d 107, 109 (La. 1979). Once the defendant has shown the affidavit contains false statements, the burden shifts to the state to prove the veracity of the allegations in the affidavit. If the court finds that the affidavit contains misrepresentations, it must decide whether they were intentional. State v. Smith, 397 So.2d 1326, 1330 (La. 1981); State v. Fairbanks, 467 So.2d 37, 39-40 (La. App. 4 Cir. 1985). If the court finds that the misrepresentations were intentional, the search warrant must be quashed. Smith, 397 So.2d 1326, 1330. On the other hand, if the court finds that the misrepresentations were inadvertent or negligent, the inaccurate statements should be excised and the remaining statements tested for probable cause. State v. Lee, 524 So.2d 1176, 1181 (La. 1987).

State v. Brown, 2018-01999 (La. 9/30/21), 330 So. 3d 199, 252–53, cert.

denied, 142 S. Ct. 1702, 212 L. Ed. 2d 596 (2022).

Concerning the search or extraction of cell phones, the United States

Supreme Court has found that the police generally may not, without a warrant,

23-KA-167 23 search digital information on a cell phone seized from an individual who has been

arrested. Riley v. California, 573 U.S. 373, 134 S. Ct. 2473, 2477, 189 L.Ed.2d 430

(2014). In reaching this conclusion, the Court observed that modern cell phones

“are now such a pervasive and insistent part of daily life that the proverbial visitor

from Mars might conclude they were an important feature of human anatomy.”

Riley, 573 U.S. at 385, 134 S.Ct. at 2484. However, “[g]iven the pervasiveness of

cell phones, the Supreme Court also recognized that they “have become important

tools in facilitating coordination and communication among members of criminal

enterprises, and can provide valuable incriminating information about dangerous

criminals.” Riley, 573 U.S. at 401, 134 S.Ct. at 2493.

In this case, defendant’s residence and cell phone were both searched after

the issuance of a search warrant. As to the search warrant for defendant’s cell

phone extraction, the probable cause affidavit in pertinent part stated:

Detectives spoke to Darius Daleo and after a progressive and protracted interview he ultimately confessed to being the driver of the vehicle while Rodgers Hart and an unknown suspect entered the residence armed with handguns. He indicated that Hart asked him to drive and be a lookout during the robbery. The unknown suspect indicated that he worked for the air conditioning company that did work at the house and that there was about 50K in valuables that they could steal and further that it was a soft target due to the fact that only two women lived there and the rear door was faulty. Ultimately Daleo identified Hart from a photographic line-up, but was unable to identify the other suspect.

Daleo indicated that he was on the phone with Hart the entire time of the incident and overheard their approach to the residence, entry and subsequent altercation with the women, hearing their screams over the phone. Daleo indicated that the suspects exited and entered the vehicle and fled. He advised that Hart took over driving the vehicle and was the driver during the pursuit. A search of his phone confirmed the call for approximately seventeen minutes to Hart's phone during the crime. Daleo was· later booked for the incident. A search of the suspect vehicle recovered by LSP revealed several items related to one Antonio Key to include his old Louisiana Driver’s License and a license plate to his vehicle, described as a 2016 Jeep Patriot. During the course of the investigation detectives learned that the victims recently had several contractors in their residence performing renovations. One of the companies was Bryans United Air Conditioning.

23-KA-167 24 Investigators soon learned that Antonio Key was employed as "helper" for Bryans United and was a member of the crew that replaced ducts in the victims' residence in mid-April.

Based on the entirety of the investigation, an arrest warrant was obtained for Key for Aggravated Burglary. On May 2, 2019 at approximately 0700 hours, Key was taken into custody for this investigation and had his Apple I-phone on his person when apprehended by investigators. Key was transported to the Criminal Investigations Bureau for a formal interview. Key was advised of his rights per Miranda. Key denied any involvement of this incident and refused to give investigators the passcode for his locked Apple I-phone. Detective Augillard request a search warrant for Key’s mobile device to extract any and all data pertinent for this investigation.

As to the search warrant for defendant’s residence, the probable cause

affidavit stated in pertinent part:

Police officers pursued the suspects who occupied a black Hyundai Sonata until the suspects crashed the Hyundai. Three black males ran from the Hyundai. Members of the Jefferson Parish Sheriff’s Office took one suspect, Darius Daleo, into custody. Daleo confessed to his involvement in the aggravated burglary and identified Rodgers Delio, B/M, DOB: 9/25/1995 and a young black male (unknown name) who is employed by and air conditioning company that just completed work at the victim's house. Daleo said the suspect employed by the air condition company arranged the aggravated burglary, stating that the suspects could gain $50,000 in the burglary of the residence. Investigators obtained a search warrant for the suspect’s Hyundai. During the search of the car, masks and other items related to the crime were recovered. Also, a driver's license in the name of Antonio Key, B/M, DOB: 10/03/1996 was found in the passenger compartment of the Hyundai. Detectives learned that Key is employed by the air conditioning company that completed work at the victim's house just a couple of weeks prior to the aggravated burglary, and that Key worked at that that job site. Detectives also secured phone communications between Key and another suspect in the crime that further indicates his involvement in the crime.

A warrant of arrest for Antonio Key for violation of LRS 14:60 Aggravated Burglary was obtained on May 1, 2019.

On May 2nd, 2019, detectives arrested Key at his place of employment. He arrived to work in a 2018 Nissan Sentra bearing Louisiana license plate# 460BCG. Detectives learned from Key that he resides at 2700 Whitney Avenue, Building 23, Apartment 469, Harvey, Louisiana. It is based on the above information that detectives request a warrant to search Antonio Key's residence located at 2700 Whitney Avenue, Building 23, Apartment 469, Harvey in an attempt to recover evidence of the crime.

23-KA-167 25 Upon thorough review, we find that the trial judge did not abuse his

discretion in denying defendant’s motions to suppress. There is no evidence to

demonstrate that any omission of Mr. Daleo’s prior statement in the probable cause

affidavits was intentional. Further, we find the applications demonstrate that the

attesting officers had reasonable grounds to believe that defendant’s residence and

cell phone may have evidence of the crime at issue—including text or other cell

phone communication to show the “arrangements” or planning of the crime

following defendant’s presence in the home while performing air conditioning

work. We also find that the warrants were not so lacking of indicia of probable

cause that the magistrate’s belief in its existence was entirely unreasonable.

Finally, there is no evidence to show that the officers executing the warrants were

not acting in good faith in relying on a validly issued warrant. Therefore, we find

the trial judge did not abuse his discretion in denying defendant’s motions to

suppress. This assignment lacks merit.

Firearm Enhancement under La. C.Cr.P. art. 893.1 et seq.

Defendant further argues that the trial court erred in applying the sentencing

enhancement under La. C.Cr.P. art. 893.1 et seq., asserting that there is not

sufficient evidence to prove that he possessed or used a firearm in connection with

the robbery. He contends that, pursuant to La. C.Cr.P. art. 893.3, the State must

prove that defendant discharged or used the firearm as a firearm, not as a bludgeon

weapon to injure the victim. He argues that pistol-whipping does not meet the

statutory definition under Article 893.3(D).

On February 18, 2020, the State filed a motion to invoke the firearm

sentencing provision under La. C.Cr.P. arts. 893.1 and 893.3. The State asserted in

that motion that La. C.Cr.P. art. 893.3(E) was implicated in the instant case. On

March 5, 2020, the State amended the superseding bill of information to allege that

defendant and his co-defendants committed an aggravated burglary while using a

23-KA-167 26 firearm thereby causing bodily injury to Dr. McDonald, pursuant to Article

893.3(D). The jury subsequently found defendant guilty as charged of aggravated

burglary. The jury also found the following special verdict: “We, the jury, find that

the State of Louisiana, proved beyond a reasonable doubt that the defendant

actually used a firearm during the offense, causing bodily injury.”

At the time of the offense on April 30, 2019, Article 893.3(D) provided:

D. If the court finds by clear and convincing evidence that a firearm was actually used or discharged by the defendant during the commission of the felony for which he was convicted, and thereby caused bodily injury, the court shall impose a term of imprisonment of fifteen years; however, if the maximum sentence for the underlying felony is less than fifteen years, the court shall impose the maximum sentence.

Article 893.3(D) provides a mandatory minimum sentence of fifteen years

for defendant’s conviction and is not an additional sentence. See State v. Dowden,

41,939 (La. App. 2 Cir. 3/28/07), 954 So.2d 300, 310, writ denied, 07-909 (La.

11/9/07), 967 So.2d 501 (“The plain wording of La. C.Cr.P. art. 893.3(B)

addresses the total term of imprisonment, not an ‘add-on’ of time.”). See also State

v. Lee, 02-1793 (La. App. 4 Cir. 4/2/03), 844 So.2d 970, writ denied, 03-1247 (La.

10/10/03), 855 So.2d 330 (On an errors patent review, the Court determined “that

provision [La. C.Cr.P. art. 893.3(A)] merely provides for a two-year mandatory

minimum sentence for an offense for which defendant has been convicted, not an

additional sentence on top of the sentence imposed for the conviction.”).

Article 893.3(D) specifically provides that the enhancement is applicable

when “a firearm was actually used or discharged by the defendant during the

commission of the felony for which he was convicted, and thereby caused bodily

injury.” It appears that the wording of this statute is clear and unambiguous and

should be applied as written. If the firearm had to be discharged for Article

893.3(D) to apply, the legislature would not have stated “used or discharged” when

writing the article. Additionally, it appears that there was clear and convincing

23-KA-167 27 evidence that showed defendant used a firearm during the burglary of 4616

Southshore Drive that caused bodily injury to Dr. McDonald. Dr. McDonald

testified that one of the perpetrators beat her with his gun in the hallway, and Ms.

McDonald testified that the other perpetrator left her in the bedroom and went out

into the hallway, where he also beat her mother with his gun. Therefore, the

evidence demonstrates that both perpetrators used a firearm to cause bodily injury

to Dr. McDonald.

Upon review of the record and the applicable law, we find that the State

presented sufficient evidence to show that defendant used a firearm to cause the

victim, Dr. McDonald, bodily injury as contemplated under La. C.Cr.P. art.

893.3(D). This assignment is without merit.

Excessive Sentence

Defendant next challenges the constitutionality of his sentence on appeal.15

Defendant argues that his twenty-year sentence is constitutionally excessive given

that he is a Marine Corps veteran with no prior criminal history with a low

recidivism risk. Defendant points to the character witnesses who demonstrated that

he is a good person who loves his family and contributes to society as

demonstrated by his military service and his HVAC career.

Defendant’s trial counsel did not object to the sentence imposed, and he did

not file a motion to reconsider sentence. This Court has consistently held that a

defendant’s failure to make or file a motion to reconsider sentence limits the

defendant to a review of the sentence for constitutional excessiveness only. La.

C.Cr.P. art. 881.1(E). See also State v. Bartholomew, 18-670 (La. App. 5 Cir.

10/23/19), 282 So.3d 374, 384-85.

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

of the Louisiana Constitution prohibit the imposition of excessive punishment.

15 See Errors Patent discussion concerning the 24-hour delay required under La. C.Cr.P. art. 873.

23-KA-167 28 Although a sentence is within statutory limits, it can be reviewed for

unconstitutional excessiveness. State v. Smith, 01-2574 (La. 1/14/03), 839 So.2d 1,

4. A sentence is considered excessive if it is grossly disproportionate to the offense

or imposes needless and purposeless pain and suffering. Id. A sentence is 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 v. Lawson, 04-334 (La.

App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence because he or

she is in the best position to consider the aggravating and mitigating circumstances

of a particular case. State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, 958, cert.

denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). A reviewing court

may not set a sentence aside absent a manifest abuse of discretion. The issue on

appeal is whether the trial court abused its discretion, not whether another sentence

might have been more appropriate. State v. Dorsey, 07-67 (La. App. 5 Cir.

5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence

for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art.

881.4(D); State v. Pearson, 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

In reviewing a trial court’s sentencing discretion, three factors are

considered: 1) the nature of the crime; 2) the nature and background of the

offender; and 3) the sentence imposed for similar crimes by the same court and

other courts. State v. Hankton, 20-388 (La. App. 5 Cir. 7/3/21), 325 So.3d 616,

623, writ denied, 21-1128 (La. 12/7/21), 328 So.3d 425.

Defendant was sentenced pursuant to La. R.S. 14:60(B) and La. C.Cr.P. art.

893.3(D). La. R.S. 14:60(B) provides, “Whoever commits the crime of aggravated

burglary shall be imprisoned at hard labor for not less than one nor more than thirty

years.” Also, at the time of the offense, Article 893.3 provided, in pertinent part,

that “[i]f the court finds by clear and convincing evidence that a firearm was

23-KA-167 29 actually used or discharged by the defendant during the commission of the felony

for which he was convicted, and thereby caused bodily injury, the court shall

impose a term of imprisonment of fifteen years.” Therefore, defendant faced a 15-

year minimum sentence under La. C.Cr.P. art. 893.3 and a 30-year maximum

sentence under La. R.S. 14:60.

We find the twenty-year sentence imposed is well within statutory range and

is not constitutionally excessive under the facts of this case.16 Although defendant

is a first-time offender and an honorably discharged military veteran, the evidence

reflects that he planned to burglarize the victims’ home after being inside the home

to perform air conditioning work. The evidence reflected that defendant was the

mastermind who planned the entire burglary.

The evidence also showed that defendant went inside the home late at

night—with the knowledge that the victims were inside the home—and terrorized

Ms. McDonald and her sixty-seven-year-old mother, whom he beat with a gun

along with his accomplice.

Dr. McDonald read her victim impact statement at the sentencing hearing,

during which she stated that words were inadequate to explain the terror and evil

she and her daughter experienced that night. She also stated that the incident

changed her life forever, that she and her daughter still do not feel completely safe

in their home, and that she has post-traumatic stress disorder, post-concussion

syndrome, headaches, memory issues, and hearing issues. Dr. McDonald testified

that she had to close her medical practice due to her injuries and that she continued

to see therapists regularly. She believed that defendant and his accomplice had a

plan to harm her daughter that night as well, but that she was in their way. As such,

she asked the trial court to impose the maximum sentence.

16 We further find that the 20-year sentence imposed is supported by jurisprudence for similar crimes. See State v. Calhoun, 42,896 (La. App. 2 Cir. 1/16/08), 974 So.2d 805, 814-15, writ denied sub nom. State ex rel. Calhoun v. State, 08-579 (La. 11/26/08), 997 So.2d 544.

23-KA-167 30 Likewise, Ms. McDonald read her victim impact statement at the sentencing

hearing. She stated that the incident changed her life forever; that it was an

“absolute terror;” that she thought she was going to be raped and murdered; that

the perpetrator in her room was seemingly unfazed by the alarm going off, the dog

barking, and her desperate screaming; that there were no words to adequately

express the nightmare she and her mother experienced and continued to experience

on a daily basis; that she is still in therapy and has been diagnosed with post-

traumatic stress disorder; that she is fearful that defendant and his co-defendants

know where she and her mother live; and that she is afraid they may return one day

to harm them further. She asked the trial judge to impose the maximum sentence

for these reasons.

Upon review of the record, we find that defendant’s mid-range twenty-year

sentence is supported by the facts of this case. This assignment is without merit.

Motions for Mistrial

In his final assignment of error, defendant contends that the trial court erred

in denying his three oral motions for mistrial, each discussed below.

A mistrial is a drastic remedy and is warranted only when trial error results

in substantial prejudice to the defendant that deprives him of a reasonable

expectation of a fair trial. State v. Williams, 14-40 (La. App. 5 Cir. 9/24/14), 151

So.3d 79, 83, writ denied, 14-2250 (La. 6/19/15), 172 So.3d 649. Upon motion of a

defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when

prejudicial conduct in or outside the courtroom makes it impossible for the

defendant to obtain a fair trial, or when authorized by Article 770 or 771. La.

C.Cr.P. art. 775. The granting of a mistrial is within the discretion of the trial court

if the trial court is satisfied that an admonition is not sufficient to assure the

defendant a fair trial. State v. Williams, 04-1309 (La. App. 5 Cir. 4/26/05), 902

23-KA-167 31 So.2d 485, 496, writs denied, 05-1640 (La. 2/3/06), 922 So.2d 1173 and 05-1640

(La. 2/3/06), 924 So.2d 144.

First, defendant alleges that a mistrial was warranted because the trial court

improperly admitted unauthenticated video evidence of a Louisiana State Police

trooper’s dash-camera, which showed a police car chase involving the Sonata

vehicle that ultimately crashed. He claims that the video evidence was

inadmissible because it was not properly authenticated by the state trooper driving

the vehicle. He further argued that improperly admitting the evidence was

prejudicial because it showed a car chase, presumably involving defendant, on a

public road potentially endangering other travelers on the road.

La. C.E. art. 901(A) provides, “The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent

claims.” See State v. Rice, 17-0446 (La. 6/29/17), 222 So.3d 32, 33. Detective

Stoltz testified that during his investigation into the aggravated burglary in the

instant case, he received the dash-camera footage and the body camera footage

from the Louisiana State Police relative to the police chase of the Sonata following

the incident at 4616 Southshore Drive. Upon review of the record, we find that

Detective Schultz’s testimony concerning his receipt of the video evidence through

his investigation of the instant offense is sufficient under La. C.E. art. 901.

Nevertheless, even if the evidence had been improperly admitted, the

erroneous admission of improperly authenticated evidence is subject to a harmless

error analysis. State v. Matthews, 22-422 (La. App. 3 Cir. 11/16/22), 353 So.3d

301. The test is whether there is a reasonable possibility the error might have

contributed to the conviction and whether the court can declare a belief that the

error is harmless beyond a reasonable doubt. State v. Magee, 11-574 (La. 9/28/12),

103 So.3d 285, cert. denied, 571 U.S. 830, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013).

23-KA-167 32 Under the facts of this case, and given that this Court has found the evidence

introduced at trial sufficient to convict defendant (without relying on the dash-

camera footage at issue), we find that any error concerning the dash-camera

footage did not contribute to the verdict and that the error, if any, would be

harmless given the evidence presented against defendant in this case.

Second, defendant claims that the trial court erred in denying his motion for

mistrial when the prosecutor in closing argument referred to defendant and/or his

counsel as a “clown.” During closing argument, the prosecutor made the following

remarks when discussing defense counsel’s previous argument that the State failed

to test for DNA any clothing recovered from the vehicle:

But as the defense changed from attempt to not guilty to justification or whatever it was - - because he admitted his role in this, as he admitted to it, like he was going to. What do you think the DNA - - if Dr. McDonald’s blood was actually on any of those jackets, what do you think the defense is? That’s not the jacket I wore. And then where are we? Right back to square one with this clown.

Defense counsel immediately commented, “Judge, Judge. I don't know who

he was talking about –”, to which the prosecutor immediately replied, “This

clown defense….I meant to say clown defense.” The parties approached the

bench and defense counsel argued that the prosecutor’s remark was

inappropriate and requested sanctions. The prosecutor explained that he

meant to say “clown defense” in response to defense counsel’s closing

argument concerning lack of DNA testing, stating that the argument was

“nonsensical.” The trial judge admonished the State, commenting that it was

improper for the prosecutor to refer to either defense counsel or defendant as

a clown. The prosecutor again apologized.

La. C.Cr.P. art. 774 governs opening and closing arguments and provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.

23-KA-167 33 The argument shall not appeal to prejudice.

The state’s rebuttal shall be confined to answering the argument of the defendant.

A prosecutor has considerable latitude in making closing arguments. State v.

Williams, 03-942 (La. App. 5 Cir. 1/27/04), 866 So.2d 1003, 1014, writ denied, 04-

450 (La. 6/25/04), 876 So.2d 832. A conviction will not be reversed due to

improper remarks during closing argument unless the reviewing court is

thoroughly convinced that the remarks influenced the jury and contributed to the

verdict. State v. Harris, 17-78 (La. App. 5 Cir. 10/25/17), 230 So.3d 285, 298, writ

denied, 17-1968 (La. 6/15/18), 257 So.3d 680.

Upon review of the record, we find that the remark made by the prosecutor

was improper and falls under La. C.Cr.P. art. 77117, which instructs that:

[T]he 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: (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770.18

We find that the trial court properly admonished the prosecutor for his

improper remark and point out that the jury was further instructed that closing

arguments are not evidence to be considered in rendering a verdict. We

therefore find that the trial court did not abuse his discretion in denying the

motion for mistrial on this basis.

17 La. C.Cr.P. art. 771 provides: 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: (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or (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.

La. C.Cr.P. art. 770 instructs that certain comments concerning “race, religion, color or national origin” 18

may warrant an automatic mistrial.

23-KA-167 34 Third, defendant contends that the trial court erred in denying his

motion for mistrial on the basis that the prosecutor allegedly allowed Mr.

Daleo to misrepresent facts surrounding his plea deal and permitted him to

testify on cross-examination that he received no benefit for his testimony. The

State responds that Mr. Daleo did not testify untruthfully and repeatedly

testified that he did receive a plea deal in exchange for his truthful testimony

at trial.

Mr. Daleo testified on direct examination that he pled guilty in the

instant case to aggravated burglary and received an eight-year sentence.

During cross-examination, defendant’s trial counsel questioned Mr. Daleo

extensively about the plea agreement. Mr. Daleo testified that he and his co-

defendants had been charged with aggravated burglary with a firearm causing

bodily injury but that, pursuant to his plea agreement, the State amended the

bill of information only as to him to remove the firearm enhancement under

La. C.Cr.P. art. 893.3. On cross-examination, in a confusing series of

questions by defense counsel, Mr. Daleo responded “No,” when questioned if

he received a benefit for his testimony at trial. This statement is the basis for

defendant’s motion for mistrial.

However, the transcript of Mr. Daleo’s testimony clearly reflects that

he testified concerning the terms of his plea agreement. Mr. Daleo testified

that he made a “plea deal” with the State to reduce his sentencing exposure in

exchange for his testimony at trial. Upon review of the testimony and record,

we find no error in the trial court’s denial of defendant’s motion for mistrial

on this basis.

This assignment of error lacks merit.

23-KA-167 35 ERRORS PATENT

We have reviewed the record for errors patent in accordance with La.

C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland,

556 So.2d 175 (La. App. 5 Cir. 1990).

First, our review indicates that the trial court resentenced defendant on the

same date that it denied his motion for new trial. La. C.Cr.P. art. 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

Thus, La. C.Cr.P. art. 873 requires a 24-hour delay between the denial of a

motion for new trial and sentencing, unless a defendant expressly waives the 24-

hour delay period.19 State v. Perez-Espinosa, 19-601 (La. App. 5 Cir. 9/22/20), 302

So.3d 598, 603. The Louisiana Supreme Court recently instructed that failure to

comply with the 24-hour delay mandated by Article 873 is an error patent on the

face of the record. However, the Court further instructed that an error in failing to

observe the statutory sentencing delay may be found harmless. State v. Kisack, 16-

0797 (La. 10/18/17), 236 So.3d 1201, 1205–06.

Failure to observe the 24-hour delay period has been considered harmless

where there is a sufficient delay between the date of conviction and the date of

sentencing; there is no indication that the sentence is hurriedly imposed; and there

is no argument or showing of actual prejudice by the failure to observe the twenty-

19 See State v. Davis, 13-52 (La. App. 5 Cir. 8/27/13), 123 So.3d 751, 757–58 (wherein this Court found defendant expressly waived the 24-hour delay by affirmatively stating he was present for sentencing); State v. James, 527 So.2d 504, 505 (La. App. 5 Cir.1988) (wherein this Court found that the defendant had waived the Article 873 sentencing delay when his counsel affirmatively responded that the defendant was prepared for sentencing); State v. Green, 04–357 (La. App. 5 Cir. 11/16/04), 890 So.2d 6, 12 (wherein this Court found defendant validly waived the delay required by Article 873 when defense counsel agreed that the defendant could be sentenced); and State v. Morton, 12–27 (La. App. 5 Cir. 5/31/12), 97 So.3d 1034, 1045, writ denied, 12–1476 (La.1/18/13), 107 So.3d 625 (wherein this Court found that the defendant waived the sentencing delay required by Article 873 based on the defendant's affirmative statement that he was prepared for sentencing).

23-KA-167 36 four hour delay. State v. Foster, 02-0910 (La. App. 4 Cir. 12/11/02), 834 So.2d

1188, 1192, approvingly cited in Kisack, supra.

In this case, immediately following the denial of defendant’s motion for new

trial, the State stated that defendant had filed a sentencing memorandum but that

the State first would like to move forward with the reading of the victim impact

statements. After the reading of the two victim impact statements, the trial court

questioned, “Is the matter submitted for sentencing?” to which the State responded

“Submitted. Do you have anything, John [defense counsel]?” to which defense

counsel stated “Judge, we have a statement from two people.” Thereafter,

defendant made a statement and two witnesses testified on defendant’s behalf as to

his character, family, and service in the Marine Corps. Following defendant’s

statement and the two defense character witnesses’ testimony, the trial judge again

asked, “Is the matter submitted?” At that point, defense counsel responded, “Yes.”

At that point, the trial court sentenced defendant.

Upon review of the record, we find that the trial court erred in failing to

observe the 24-hour delay mandated by La. C.Cr.P. art. 873. However, under the

facts of this case, given counsel’s statements at sentencing, the preparation and

filing of a sentencing memorandum by defense counsel, the presence of defense

character witnesses called and prepared to testify at the hearing, and the

reasonableness of the sentence given, we find the error in this case to be harmless

and, therefore, does not necessitate a remand for resentencing.

Second, our review reflects an error patent concerning statutory restrictions

imposed during sentencing. The transcript reflects that the trial judge sentenced

defendant to imprisonment at hard labor for twenty years without benefit of parole,

probation, or suspension of sentence. Defendant was sentenced under La. R.S.

14:60(B) and La. C.Cr.P. art. 893.3.

23-KA-167 37 La. R.S. 14:60(B) provides, “Whoever commits the crime of aggravated

burglary shall be imprisoned at hard labor for not less than one nor more than thirty

years.” At the time of the offense, La. C.Cr.P. art. 893.3 provided in pertinent part:

D. If the court finds by clear and convincing evidence that a firearm was actually used or discharged by the defendant during the commission of the felony for which he was convicted, and thereby caused bodily injury, the court shall impose a term of imprisonment of fifteen years; however, if the maximum sentence for the underlying felony is less than fifteen years, the court shall impose the maximum sentence. **** F. A sentence imposed under the provisions of this Article shall not be suspended and shall be imposed in the same manner as provided in the felony for which the defendant was convicted. G. A defendant sentenced under the provisions of this Article shall not be eligible for parole during the period of the mandatory minimum sentence[.]

When sentencing defendant, the trial judge ordered the entirety of the

twenty-year sentence to be served without benefit of parole, probation, or

suspension of sentence. However, La. R.S. 14:60 does not include a restriction of

benefits for the sentence for aggravated burglary. Nevertheless, La. C.Cr.P. art.

893.3 does include a restriction of benefits. La. C.Cr.P. art. 893.3(F) provides that

the sentence shall not be suspended. Moreover, La. C.Cr.P. art. 893.3(G) states that

“[a] defendant sentenced under the provisions of this Article shall not be eligible

for parole during the period of the mandatory minimum sentence.” (emphasis

added).20 The trial court sentenced defendant under La. C.Cr.P. art. 893.3(D),

which sets forth the statutory mandatory minimum sentence of fifteen years.

We find that, pursuant to the clear statutory language provided in La. C.Cr.P.

art. 893.3(D) and 893.3(G), the trial court erred in restricting defendant’s benefits

for the entirety of his twenty-year sentence and could only restrict defendant’s

benefits for the statutorily designated mandatory minimum sentence, or, fifteen

20 Further, Article 893.3 does not reference probation; however, because there is a mandatory minimum fifteen-year sentence, the trial court was precluded from considering probation.

23-KA-167 38 years. Accordingly, we hereby amend defendant’s sentence to remove the

restriction of benefits for the last 5 years of his sentence.

Third, the sentencing transcript reflects that the trial court failed to properly

advise defendant of the provisions of La. C.Cr.P. art. 930.8, which states in

pertinent part, “[n]o application for post-conviction relief, including applications

which seek an out-of-time appeal, shall be considered if it is filed more than two

years after the judgment of conviction and sentence has become final under the

provisions of Article 914 or 922.” If a trial court fails to advise, or provides an

incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may

correct this error by informing the defendant of the applicable prescriptive period

for post-conviction relief by means of its opinion. State v. Mouton, 22-444 (La.

App. 5 Cir. 12/29/22), 358 So.3d 106, 122-23. Therefore, we hereby advise

defendant that no application for post-conviction relief, including applications that

seek an out-of-time appeal, shall be considered if it is filed more than two years

after the judgment of conviction and sentence has become final under the

provisions of La. C.Cr.P. arts. 914 or 922. See State v. Wall, 21-716 (La. App. 5

Cir. 12/7/22), 362 So.3d 847, 855, writ not considered, 23-00375 (La. 8/2/23), 368

So.3d 64, reconsideration denied, 23-00375 (La. 11/15/23).

DECREE

For the reasons stated herein, we affirm defendant’s conviction for

aggravated burglary in violation of La. R.S. 14:60, but amend defendant’s sentence

only to remove the restriction on benefits for the last five years of his sentence as

stated herein. The Clerk of Court for the 24th Judicial District Court is hereby

ordered to transmit notice of this amended sentence to the appropriate authorities

23-KA-167 39 pursuant to La. C.Cr.P. art. 892(B)(2) and the Department of Corrections’ legal

department. See State v. Brown, 17-346 (La. App. 5 Cir. 12/13/17), 234 So.3d

1134, 1137. In all other respects, defendant’s sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED

23-KA-167 40 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. SCOTT U. SCHLEGEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-167 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE) MONIQUE D. NOLAN (APPELLEE) THOMAS J. BUTLER (APPELLEE) DREW M. LOUVIERE (APPELLANT)

MAILED HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY ZACHARY L. GRATE (APPELLEE) ASSISTANT DISTRICT ATTORNEY TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053