State of Louisiana Versus Edwar Lopez AKA "Mantequilla"

• Court: Louisiana Court of Appeal
• Decided: August 21, 2024
• Docket: 23-KA-335
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 23-KA-335

VERSUS FIFTH CIRCUIT

EDWAR LOPEZ AKA "MANTEQUILLA" COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 19-5544, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

August 21, 2024

SUSAN M. CHEHARDY CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois

CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART SMC JGG

WICKER, J., CONCURS IN PART, DISSENTS IN PART FHW COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Darren A. Allemand Douglas E. Rushton, Jr. Leo M. Aaron

COUNSEL FOR DEFENDANT/APPELLANT, EDWAR LOPEZ Jane C. Hogan

DEFENDANT/APPELLANT, EDWAR LOPEZ In Proper Person CHEHARDY, C.J.

Defendant seeks review of his convictions and sentences for second degree

murder and obstruction of justice. For the following reasons, we affirm

defendant’s convictions for second degree murder and obstruction of justice. We

vacate the portion of defendant’s sentence that imposed court costs, fines, and fees,

but the remainder of defendant’s sentences are otherwise affirmed.

PROCEDURAL HISTORY

On September 19, 2019, a Jefferson Parish Grand Jury returned a bill of

indictment charging defendant, Edwar Lopez a/k/a “Mantequilla,” with the second

degree murder of Jesus Fructuoso in violation of La. R.S. 14:30.1 (count one) and

obstruction of justice in violation of La. R.S. 14:130.1 (count two). Thereafter,

following pre-trial proceedings, including a June 16, 2021 hearing addressing

defendant’s motion to suppress evidence, which was denied by the trial court,

defendant proceeded to trial. On December 14, 2022, a unanimous jury found

defendant guilty as charged on both counts. The trial court sentenced him to life in

prison without the benefit of parole, probation, or suspension of sentence as to

count one, and to forty years imprisonment at hard labor as to count two, with the

sentences to be served consecutively. Defendant now appeals, arguing the

evidence is insufficient to support his convictions, the trial court erred in denying

his motion to suppress evidence, and the trial translator was not competent.

FACTS

On Friday, May 17, 2019, around 10:00 p.m., at the intersection of 18th

Street and Hessmer Avenue at the Ideal Market in Metairie (“the Ideal Market

scene”), there was an altercation between two groups. Defendant was in one of the

groups along with four of his friends: Luis Martinez, Didier Flores-Barahona,

Yeyson Ponce, and Mario Juarez. At trial, Mr. Ponce and Mr. Flores-Barahona

testified about the Ideal Market scene altercation. Mr. Ponce, who knows

23-KA-335 1 defendant as “Mantequilla,” testified that he and his group went to the Ideal

Market scene to fight Felix Arriola and his group. Mr. Flores-Barahona said he

was stabbed during the altercation, and Mr. Ponce thought Mr. Arriola was shot in

the leg. Mr. Ponce later testified he was not sure what happened to Mr. Arriola.

Both Mr. Ponce and Mr. Flores-Barahona said defendant fired gunshots toward the

other group at the Ideal Market scene after the stabbing. After defendant fired the

gun, defendant’s group ran, leaving the scene in Mr. Martinez’s Honda Civic. Mr.

Flores-Barahona testified that Mr. Martinez was the driver, with Mr. Ponce in the

front passenger seat, and he was in the middle back seat with defendant seated to

his right and Mr. Juarez seated to his left. However, Mr. Ponce testified that

defendant was in the backseat, seated to the left of Mr. Flores-Barahona.

Jesus Fructuoso, the victim, lived in an apartment around the corner from the

Ideal Market. That night, he was outside of his apartment drinking beer with his

pregnant girlfriend, Tinesha Jackson, their friend Lucy Matute, and some

neighbors. Ms. Jackson testified that while they were outside, they saw a group of

people walk down the street, then they heard an altercation, and they saw a group

of people run back towards their apartment. Ms. Jackson said the victim decided

to follow a Honda Civic fleeing the scene because he wanted to help. She also

characterized the victim as being intoxicated. The victim followed the Civic in his

Toyota Camry, with Ms. Jackson in the front passenger seat and Ms. Matute in the

back passenger seat.

Mr. Ponce and Mr. Flores-Barahona both testified that after they left the

Ideal Market scene, they noticed a car chasing them. Mr. Ponce said he thought

they were being chased because of what had happened with Mr. Arriola, and he

felt his life was in danger during the chase. Mr. Flores-Barahona testified that

while traveling down Veterans Boulevard, Mr. Juarez and defendant were passing

a gun between them and shooting out of the window at the car following them.

23-KA-335 2 Mr. Ponce said he turned around and saw defendant shooting, and he heard

defendant say that they could not stop because they were going to be killed. Mr.

Flores-Barahona said that he never saw anyone from the other car shooting. After

the gunshots were fired, they eventually lost sight of the car following them. Mr.

Martinez was attempting to get on the interstate, but stopped the car because he

realized he had turned onto the service road right before the interstate. While they

were stopped, Mr. Ponce testified that the other car approached them traveling the

wrong way on a one-way street. Mr. Ponce said defendant leaned across the

middle seat, put his hand out of the back right window and fired a shot toward the

other car, which then crashed. Mr. Flores-Barahona explained that after the other

car crashed, they left the scene and dropped off Mr. Ponce first, then he was taken

home. Mr. Flores-Barahona recalled that defendant kept the gun. Mr. Ponce said

he learned from the news that someone had died.

Ms. Jackson testified to the events as they occurred in the victim’s car. As

the victim followed defendant’s group down Veterans Boulevard, headed towards

Kenner, Ms. Jackson recalled hearing and seeing a gunshot from the Civic. She

told the victim to return home. She explained that the victim, however, continued

to follow the Civic because he wanted to take a picture of the Civic’s license plate.

The victim followed the Civic through neighborhoods in Metairie, but they lost

sight of the car. Ms. Jackson recalled that while they were close to the Marriott

located near the service road, the victim accidentally turned down a one-way street

and met up with the Civic, which was parked on the same one-way street. As the

victim drove past the Civic, Ms. Jackson saw a single gunshot come from the left

side of the Civic, hitting the victim in the left side of his head. The victim’s car

then crashed. Ms. Matute put the car in park, and Ms. Jackson called 9-1-1. EMS

arrived and pronounced the victim dead at the scene.

23-KA-335 3 Ms. Jackson did not see who fired the gunshot, but she said it appeared there

were two people in the front seat of the Civic and several in the back seat. Ms.

Jackson testified that they did not have a gun in the victim’s car and no one

threatened the people in the other car with a gun. While following the Civic, Ms.

Jackson said the victim was never as close as a car’s length away, he did not try to

run the Civic off the road, and he never crashed into the Civic.

Dr. Ellen Connor, an expert in forensic pathology, opined that the victim’s

cause of death was a gunshot wound to his head and the manner of death was

homicide. She was able to recover a projectile from the right side of the victim’s

skull. She also testified that the victim’s blood alcohol was .114%, which is over

the legal limit of .08%.

Deputy Michael Morrison of the Jefferson Parish Sheriff’s Office (“JPSO”)

testified that he was parked on Hessmer doing paperwork when he heard the faint

sound of a gunshot. He saw a Lexus traveling on Hessmer, so he drove toward the

car and spoke with the occupants, who advised Deputy Morrison that they also

heard a gunshot at the Ideal Market scene. One of the passengers turned out to be

Mr. Arriola, who had a cut on his hand. Deputy Morrison said that the occupants

agreed to return to the Ideal Market scene and show him where the gunshot was

fired. Deputy Morrison found one ammunition casing on the ground at the Ideal

Market scene.1

Detective Scott Bradley with the JPSO was the lead investigator in this case.

He testified that a knife and three cell phones were recovered from the victim’s

vehicle.2 On the night of the murder, he interviewed Mr. Arriola and the

individuals Deputy Morrison encountered in the Lexus. He learned that Mr.

1 Emily Terrebonne, an expert in firearms and toolmark analysis, examined the casing found at the Ideal Market scene and the projectile recovered from the victim. She opined that the casing and the projectile are consistent with being fired from the same type of gun. 2 Ms. Jackson acknowledged there were knives in the car because she sold knives for CutCo.

23-KA-335 4 Arriola was part of the opposing group fighting with defendant’s group. Detective

Bradley reviewed the surveillance video and Mr. Arriola was later identified as the

person who stabbed Mr. Flores-Barahona.

On Monday, May 20, 2019, Mr. Ponce contacted Detective Bradley with

information regarding the homicide. Detective Bradley and Detective Jesus Falcon

met with Mr. Ponce at the police department, where Mr. Ponce gave a recorded

statement. Mr. Ponce provided him with the names of everyone in Mr. Martinez’s

Civic and Mr. Martinez’s address. Mr. Ponce also identified defendant as the

person who fired the gun. The detective further testified that Mr. Ponce gave him a

copy of a previously recorded conversation between Mr. Ponce and defendant in

which they discussed that the news reported a man had died. A certified

translation of the call was played for the jury, in which defendant said, in part, “I

got him in the head.”

Detective Bradley obtained a search warrant for Mr. Martinez’s Civic, which

did not have a license plate and appeared to have been cleaned recently. A sample

of blood was collected from the rear passenger seatbelt.3 Mr. Martinez was

arrested for second degree murder and obstruction of justice.

Detective Bradley located Mr. Flores-Barahona at his residence, and he

provided a recorded statement to Detective Bradley. During trial, Detective

Bradley confirmed that he received the medical records for Mr. Flores-Barahona’s

stab wound, and he admitted that he had given a fake name to the medical staff

who treated him and told them he was cut while on the river.

Detective Bradley obtained an arrest warrant for defendant. Using

defendant’s cell phone GPS, Detective Bradley located him in Panama City,

Florida. Defendant’s cell phone was seized and searched pursuant to a search

3 Sitara Shirwani was accepted as an expert in DNA forensic analysis, and she opined that there was very strong support that the blood recovered from the seatbelt was Mr. Flores-Barahona’s blood.

23-KA-335 5 warrant. From defendant’s phone, Detective Bradley obtained the number of Mr.

Juarez, the fifth person in defendant’s group. Detective Bradley obtained an arrest

warrant for Mr. Juarez, and later learned that he had left the country.

Nicholas Schlacter with the JPSO testified that he extracted defendant’s cell

phone data, which revealed the times calls were placed between defendant and his

group of friends. The extraction also included photographs of defendant that were

published to the jury. Detective Bradley added that photographs of the victim’s

apartment building were located on defendant’s cell phone.

Detective Jean Lincoln with the JPSO testified that she obtained video

footage from the Ideal Market scene, which captured part of the altercation with

defendant’s group, including the stabbing of Mr. Flores-Barahona and gunshots

fired by defendant. Detective Lincoln also collected a bloody, serrated knife from

a planter on the Ideal Market scene.

Detective Lincoln also obtained video footage from several businesses

around the I-10 service road. She testified that the videos confirmed the victim’s

car was following the Civic. One of the videos depicted the Civic traveling down

the I-10 service road and turning on 28th Street where the car stopped. The video

also depicted the victim’s car driving down the service road going the wrong way

before the victim was shot and his car crashed. Detective Lincoln created a

compilation video which was published to the jury.

When viewing Detective Lincoln’s compilation video, Mr. Ponce identified

defendant, himself, Mr. Flores-Barahona, and Mr. Martinez in the video. In the

portion of the video from the Ideal Market scene, he pointed out when Mr. Arriola

stabbed Mr. Flores-Barahona and when defendant responded with gunshots. In

another portion of the video, Mr. Ponce identified when defendant fired the fatal

shot from Mr. Martinez’s Civic.

23-KA-335 6 LAW AND DISCUSSION

On appeal, defendant sets forth three counseled assignments of error and one

pro se assignment of error. In his first counseled assignment of error, defendant

argues the evidence is insufficient to convict him of second degree murder, and the

State failed to disprove that the shooting was in self-defense. In defendant’s pro

se assignment of error, he argues the jury’s verdict was in error because all of the

evidence supports his defense that the homicide was justified by self-defense. Due

to the interrelated nature of the assignments, we will address them together.

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, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310 So.3d

794, 804. Under the Jackson standard, a review of the record for sufficiency of the

evidence does not require this Court to determine whether the evidence at the trial

established guilt beyond a reasonable doubt but rather whether, upon review of the

whole record, any rational trier of fact would have found guilt beyond a reasonable

doubt. State v. McKinney, 20-19 (La. App. 5 Cir. 11/4/20), 304 So.3d 1097, 1103.

Additionally, the resolution of conflicting testimony rests solely with the trier of

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

State v. Burnham, 16-468 (La. App. 5 Cir. 2/8/17), 213 So.3d 470, 474, writ

denied, 17-664 (La. 4/6/18), 240 So.3d 184. Thus, 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.

McKinney, 304 So.3d at 1103.

23-KA-335 7 Evidence may be either direct or circumstantial. Circumstantial evidence

consists of proof of collateral facts and circumstances from which the existence of

the main fact can be inferred according to reason and common experience. State v.

Gatson, 21-156 (La. App. 5 Cir. 12/29/21), 334 So.3d 1021, 1034. When

circumstantial evidence is used to prove the commission of an offense, La. R.S.

15:438 provides that “assuming every fact to be proved that the evidence tends to

prove, in order to convict, it must exclude every reasonable hypothesis of

innocence.” State v. Woods, 23-41 (La. App. 5 Cir. 11/15/23), 376 So.3d 1144,

1155, writ denied, 23-1615 (La. 5/29/24), 385 So.3d 700. This is not a separate

test from the Jackson standard, but rather provides a helpful basis for determining

the existence of reasonable doubt. Id. All evidence, both direct and circumstantial,

must be sufficient to support the conclusion that the defendant is guilty beyond a

reasonable doubt. Id. Evidence of flight, concealment, and attempt to avoid

apprehension is relevant and admissible to prove consciousness of guilt from

which the trier-of-fact may infer guilt. State v. Davis, 18-485 (La. App. 5 Cir.

4/10/19), 269 So.3d 1123, 1132, writ denied, 19-716 (La. 11/12/19), 282 So.3d

229.

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

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

misidentification in order to carry its burden of proof. State v. Pike, 18-538 (La.

App. 5 Cir. 5/8/19), 273 So.3d 488, 494, writ denied, 19-927 (La. 2/10/20), 292

So.3d 60.

Second Degree Murder

Defendant contends that there is insufficient evidence to support the second

degree murder conviction. He argues that the State failed to disprove that the

shooting was in self-defense and failed to prove beyond a reasonable doubt that he

23-KA-335 8 was the shooter, given conflicting testimony as to where he and Mr. Martinez were

seated in the car and who fired the gun. Defendant provides that the aggressor

doctrine is inapplicable here. He asserts that Mr. Ponce’s testimony regarding

defendant shooting Mr. Arriola in the leg was impeached and that both Mr. Ponce

and Mr. Flores-Barahona were testifying to help themselves. Defendant further

avers that the shooting occurred under extreme circumstances which supports only

a conviction for manslaughter. He contends that the victim provoked the situation

by his relentless and aggressive pursuit, which is similar to road rage. He also

argues that the State did not prove that he had the specific intent to kill the victim.

He concludes that his conviction, therefore, should be reduced to manslaughter.

The State argues that it proved defendant’s identity as the killer because two

witnesses identified defendant as the shooter and he essentially admitted to being

the shooter during the phone call Mr. Ponce recorded between himself and

defendant. It also contends that it disproved that the shooting was justified. The

State provides that defendant had no basis for a reasonable belief of imminent

danger of losing his life or receiving great bodily harm or a reasonable belief that

the killing was necessary to save himself from that danger. The State avers that

defendant had other options rather than killing the victim. Further, the State asserts

that defendant did not prove that he was entitled to a manslaughter verdict. It

explains that there were not sufficient threats or actions by the victim to constitute

sufficient provocation.

Here, defendant was convicted of second degree murder in violation of La.

R.S. 14:30.1. The indictment charged defendant with committing the second

degree murder during the perpetration or attempted perpetration of an assault by

drive-by shooting. The jury was instructed as to both the specific intent and felony

murder elements of second degree murder. The jury was also presented with

manslaughter as a responsive verdict and instructed as to justifiable homicide.

23-KA-335 9 La. R.S. 14:30.1 defines second degree murder as the killing of a human

being when the offender: 1) has specific intent to kill or to inflict great bodily

harm; or 2) is engaged in the perpetration or attempted perpetration of one of

several enumerated felonies, even though the offender has no intent to kill or to

inflict great bodily harm. State v. King, 22-371 (La. App. 5 Cir. 5/24/23), 365

So.3d 897, 907, writ denied, 23-790 (La. 1/17/24), 377 So.3d 242. Felony second

degree murder is defined by La. R.S. 14:30.1(A)(2) as the killing of a human being

when the offender is engaged in the perpetration or attempted perpetration of one

of several enumerated felonies, including assault by drive-by shooting. One need

not possess specific intent to kill or inflict great bodily harm to commit second

degree felony murder. Rather, under the felony murder theory, the State need only

prove the commission of the underlying felony or the attempt thereof. Id.

An assault by drive-by shooting is defined in La. R.S. 14:37.1(A) as an

“assault committed with a firearm when an offender uses a motor vehicle to

facilitate the assault.” At the time of the offense, La. R.S. 14:37.1(C) detailed that

the term “drive-by shooting” as used in that section and in La. R.S. 14:30(A)(1) is

“the discharge of a firearm from a motor vehicle on a public street, or highway

with the intent either to kill, cause harm to, or frighten another person.” La. R.S.

14:37.1(C); State v. Joekel, 19-334 (La. App. 5 Cir. 12/20/19), 2019 WL 7044739

at *3, writ denied, 20-86 (La. 1/14/20), 286 So.3d 430.

Defendant argues that the State failed to disprove that the shooting was in

self-defense. In his pro se brief, defendant argues that the evidence supported a

finding of justifiable homicide. He contends that the knife used in the stabbing

was likely a CutCo knife. He asserts that after the stabbing, which he described as

severe, his group fled and was chased by the victim, who was driving erratically at

a high speed. Defendant contends that the victim was undeterred by the warning

shots fired from the vehicle defendant’s group occupied. He provides that the

23-KA-335 10 occupants of his vehicle felt that their lives were in danger. He states that his

group withdrew from the conflict and that the victim’s vehicle trapped their

vehicle, preventing further withdrawal. Defendant concludes that the jury could

only have found that he acted in self-defense.

When a defendant in a homicide prosecution claims self-defense, the State

bears the burden to prove beyond a reasonable doubt that the defendant did not act

in self-defense. State v. Batiste, 16-321 (La. App. 5 Cir. 12/14/16), 208 So.3d

1028, 1033, writ denied, 17-300 (La. 11/17/17), 229 So.3d 929. The fact that an

offender’s conduct is justifiable, although otherwise criminal, constitutes a defense

to prosecution for any crime based on that conduct. La. R.S. 14:18; State v. Sly,

23-60 (La. App. 5 Cir. 11/2/23), 376 So.3d 1047, 1073, writ denied, 23-1588 (La.

4/23/24), 383 So.3d 608. A homicide is justifiable “[w]hen committed in self-

defense by one who reasonably believes that he is in imminent danger of losing his

life or receiving great bodily harm and that the killing is necessary to save himself

from that danger.” La. R.S. 14:20(A)(1). A person who is not engaged in

unlawful activity and who is in a place where he or she has a right to be shall have

no duty to retreat before using deadly force and may stand his or her ground and

meet force with force. La. R.S. 14:20(C).

It is well established that the aggressor or the person who brings on a

difficulty cannot claim the right of self-defense unless he withdraws from the

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

know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21;

State v. Leach, 22-194 (La. App. 5 Cir. 12/28/22), 356 So.3d 531, 544. In addition,

while there is no unqualified duty to retreat, the possibility of escape from an

altercation is a recognized factor in determining whether the defendant had a

reasonable belief that deadly force was necessary to avoid the danger. State v.

Martin, 20-141 (La. App. 5 Cir. 4/28/21), 347 So.3d 1061, 1068, writ denied, 21-

23-KA-335 11 803 (La. 10/1/21), 324 So.3d 1054. Factors to consider in determining whether a

defendant had a reasonable belief that the killing was necessary include the

excitement and confusion of the situation, the possibility of using force or violence

short of killing, and the defendant’s knowledge of the assailant’s bad character.

State v. Lavigne, 22-282 (La. App. 5 Cir. 5/24/23), 365 So.3d 919, 941. The

determination of a defendant’s culpability rests on a two-fold test: 1) whether,

given the facts presented, the defendant could reasonably have believed his life to

be in imminent danger; and 2) whether deadly force was necessary to prevent the

danger. Id. The jury is the ultimate fact-finder in determining whether the State

negated self-defense beyond a reasonable doubt. Sly, 376 So.3d at 1074.

Here, the evidence presented at trial established that on May 17, 2019,

defendant’s group had been in an altercation at the Ideal Market scene with another

group. During the altercation, Mr. Flores-Barahona was stabbed and defendant

fired his gun at the other group. When defendant’s group fled the scene in Mr.

Martinez’s Civic, the victim, accompanied by Ms. Jackson and Ms. Matute,

followed defendant’s group. Defendant and Mr. Juarez fired shots at the victim’s

vehicle as the victim pursued the Civic on Veterans Boulevard. The victim

continued following defendant, insisting he wanted to take a picture of the Civic’s

license plate. The victim and his occupants did not fire gunshots or have a gun.

Eventually, the victim lost sight of the Civic. Defendant’s group thereafter

attempted to get on the interstate, but made a wrong turn onto the service road.

The victim then encountered defendant’s group. As the victim’s car passed the

Civic, defendant shot the victim in the head.

During trial, Mr. Flores-Barahona and Mr. Ponce testified regarding the

events and statements made while defendant’s group was being followed by the

victim. Mr. Ponce said that he feared for his life, but neither he nor anyone in

defendant’s group called the police for assistance. Also, there was no evidence

23-KA-335 12 that the occupants of the victim’s vehicle fired at defendant’s vehicle and there was

no evidence that the victim tried to use his vehicle as a weapon. The victim did not

try to use his vehicle to hit Mr. Martinez’s Civic, and the victim did not exit his

vehicle and approach defendant’s group. The victim’s vehicle did not trap Mr.

Martinez’s vehicle as defendant asserted. Mr. Martinez was able to drive past the

victim’s vehicle and flee the scene. Defendant’s flight from the scene after

shooting the victim could be viewed as inconsistent with a theory of justifiable

homicide. State v. Leach, 22-194 (La. App. 5 Cir. 12/28/22), 356 So.3d 531, 543.

A defendant’s flight and attempt to avoid apprehension are circumstances from

which a trier of fact may infer a guilty conscience. Id. (citing State v. Cazenave,

00-183 (La. App. 5 Cir. 10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La.

10/26/01), 799 So.2d 1151).

As to the issue of identity, the State presented sufficient evidence to prove

defendant was the person who killed the victim by firing a gun out of the Civic.

While Ms. Jackson did not see who fired the fatal shot, she thought it came from

the left side of the Civic. Mr. Ponce testified that defendant was seated in the back

left of the Civic, and when the fatal shot was fired by defendant, he leaned across

the middle seat and fired out of the back right window. While it appears there may

have been some confusion as to which window the shots were fired out of, both

Mr. Flores-Barahona and Mr. Ponce testified that defendant fired the gun out of the

Civic. Mr. Flores-Barahona viewed video surveillance from both scenes and

identified defendant as the shooter each time. Also, in the recorded phone call

between defendant and Mr. Ponce, defendant stated, “I got him in the head.”

As to whether the State sufficiently proved the assault by drive-by shooting,

we find that the evidence established that defendant discharged a firearm from the

Civic while on a public street with the intent to at least frighten the occupants of

the victim’s car, if not with the intent to kill or cause them harm. We find the jury

23-KA-335 13 could have reasonably concluded that defendant was engaged in a drive-by

shooting at the time he killed the victim.

Viewing the evidence in the light most favorable to the prosecution, we find

that the record supports the jury’s conclusion that defendant did not reasonably

believe his life to be in imminent danger or that deadly force was necessary

to prevent the danger. Thus, we find that the State provided sufficient evidence

under the Jackson standard for the jury to find that it proved beyond a reasonable

doubt that defendant did not kill in self-defense and the killing of the victim was

not justifiable, and to support the jury’s finding that defendant committed second

degree murder.

Defendant also argues in part that he should have been convicted of

manslaughter rather than second degree murder. The offense of manslaughter is

defined as a homicide that would be first or second degree murder but the offense

is committed in sudden passion or heat of blood immediately caused by

provocation sufficient to deprive an average person of his self-control and cool

reflection. La. R.S. 14:31; State v. Monterroso, 22-390 (La. App. 5 Cir. 4/26/23),

361 So.3d 1177, 1190, writ denied, 23-745 (La. 11/21/23), 373 So.3d 447.

Sudden passion and heat of blood distinguish manslaughter from murder, but

they are not elements of the offense. Instead, they are mitigating factors that may

reduce the grade of the offense. State v. Thompson, 18-273 (La. App. 5 Cir.

11/28/18), 259 So.3d 1257, 1266, writ denied, 18-2077 (La. 9/6/19), 278 So.3d

372. In order to be entitled to the lesser verdict of manslaughter, the defendant is

required to prove the mitigatory factors by a preponderance of the evidence. State

v. Burse, 19-381 (La. App. 5 Cir. 2/12/20), 289 So.3d 690, 696, writ denied, 20-

650 (La. 11/24/20), 305 So.3d 104. Provocation and time for cooling are questions

for the jury to determine under the standard of the average or ordinary person, one

with ordinary self-control. Id. An argument alone does not constitute sufficient

23-KA-335 14 provocation to reduce murder to manslaughter. Id. at 697. The question for this

Court on review is whether a rational trier of fact, viewing the evidence in the light

most favorable to the prosecution, could have found that the mitigatory factors

were not established by a preponderance of the evidence. Id. at 696.

In the instant case, the jury was presented with manslaughter as a responsive

verdict. While defendant contends that he should have been convicted of

manslaughter, we find that a rational trier of fact, viewing the evidence in the light

most favorable to the prosecution, could have found that the mitigatory factors

were not established by a preponderance of the evidence. Defendant suggests that

because the victim was following the vehicle he was in, the verdict should have

been manslaughter. However, the record does not show that the shooting was the

result of immediate provocation sufficient to deprive an average person of his self-

control and cool reflection. Mr. Ponce described that the victim’s car was going

very fast. However, Ms. Jackson testified that the victim never tried to run the

other car off of the road. Both Ms. Jackson and Mr. Ponce testified that the

victim’s car never hit the Civic. Ms. Jackson said they were never as close as a

car’s length away. Additionally, there was no evidence that the occupants of the

victim’s car possessed a gun or threatened defendant’s group. Mr. Ponce stated the

Civic was not hit by any bullets. Mr. Flores-Barahona said he never saw anyone

from the other car shooting, and he did not remember anyone in his car saying that

the people in the other car were shooting. Ms. Jackson and Mr. Ponce both

indicated that the cars had lost sight of each other when the victim’s car

accidentally turned the wrong way on a one-way street and came upon the Civic.

The jury, when presented with manslaughter as a responsive verdict, instead

returned the second degree murder verdict. We find that the jury had a sufficient

evidentiary basis upon which to find defendant failed to carry his burden of proof

of sudden passion or heat of blood to reduce the offense to manslaughter.

23-KA-335 15 Obstruction of Justice

In defendant’s second assignment of error, he also challenges the sufficiency

of the evidence to sustain his conviction for obstruction of justice. He argues the

State did not present evidence that he hid or destroyed the gun, and the absence of

a murder weapon alone does not automatically rise to the level of obstruction of

justice. He states that no one testified that he threw away the gun and that he did

not confess to hiding it. He argues that there was simply no evidence as to what

happened to the gun after the shooting.

The State responds that the obstruction of justice charge was predicated

upon defendant’s disposal of the firearm he used at both scenes. It contends that

while there was no direct evidence that the same firearm was used in the two

shooting instances, the evidence was consistent with defendant using the same

firearm both times. The State reasoned that the logical inference, based on the

circumstantial evidence, is that defendant purposefully disposed of the firearm.

La. R.S. 14:130.1 provides that the crime of obstruction of justice, when

committed with the knowledge that such act may affect a criminal proceeding,

includes “[t]ampering with evidence with the specific intent of distorting the

results of any criminal investigation or proceeding which may reasonably prove

relevant to a criminal investigation or proceeding.” This provision further states

that “[t]ampering with evidence shall include the intentional alteration, movement,

removal, or addition of any object or substance… at the location of any incident

which the perpetrator knows or has good reason to believe will be the subject of

any [law enforcement] investigation.” Here, the indictment specified that this

charge pertained to the “intentional movement/removal of the handgun used in a

shooting pertaining to the homicide investigation of Jesus Fructuoso.”

Under La. R.S. 14:130.1(A)(1), obstruction of justice is a specific intent

crime. “Specific intent” is the state of mind that exists when circumstances

23-KA-335 16 indicate “the offender actively desired prescribed criminal consequences to follow

his act.” La. R.S. 14:10(1). To support a conviction, the State must prove that

removal of evidence from a crime scene was carried out with “the specific intent of

distorting the results of any criminal investigation or proceeding which may

reasonably prove relevant to a criminal investigation or proceeding.” La. R.S.

14:130.1(A)(1); State v. Scott, 23-22 (La. App. 4 Cir. 8/30/23), 372 So.3d 42, 54,

writs denied, 23-1317 and 23-1318 (La. 3/19/24), 381 So.3d 707. Specific intent

need not be proven as fact but may be inferred from the circumstances of the

transaction and the actions of defendant. State v. Everett, 11-714 (La. 6/13/12), 96

So.3d 605, 619.

The knowledge requirement of the obstruction of justice charge is met if the

perpetrator merely knows that an act “reasonably may” affect a criminal

proceeding. The statute does not require the criminal proceeding to actually be

affected; the perpetrator must merely know and understand that the act reasonably

may affect the proceeding. State v. Nicholas, 10-866 (La. App. 5 Cir. 5/24/11), 67

So.3d 610, 615. Regarding the statute’s requirement that the tampering be either

by the intentional “alteration, movement, removal, or addition of any object or

substance,” the Supreme Court has stated that “nothing beyond ‘movement’ is

required by the statute if accompanied by the requisite intent and knowledge.”

State v. Tatum, 09-1004 (La. App. 5 Cir. 5/25/10), 40 So.3d 1082, 1090 (citing

State v. Jones, 07-1052 (La. 6/3/08), 983 So.2d 95, 101).

“When reviewing the sufficiency of the evidence of a conviction based on

circumstantial evidence, the appellate court does not determine whether another

possible hypothesis suggested by the defendant could afford an exculpatory

explanation of the events; rather, when evaluating the evidence in the light most

favorable to the prosecution, the reviewing court must determine whether the

‘alternative hypothesis is sufficiently reasonable that a rational juror could not

23-KA-335 17 have found proof of guilt beyond a reasonable doubt under Jackson.’” State v.

Dorsey, 20-29 (La. App. 4 Cir. 12/9/20), 312 So.3d 652, 662-63, writ denied, 21-

55 (La. 4/20/21), 313 So.3d 1255) (quoting State v. Smith, 06-318 (La. App. 4 Cir.

11/21/06), 946 So.2d 218, 221) (emphasis in original). See also State v. Davis, 92-

1623 (La. 5/23/94), 637 So.2d 1012, 1020 (same).

When the factfinder at trial reasonably rejects the hypothesis of innocence

advanced by the defendant, “that hypothesis falls, and the defendant is guilty

unless there is another hypothesis which raises a reasonable doubt.” State v. Mack,

13-1311 (La. 5/7/14), 144 So.3d 983, 989 (quoting State v. Captville, 448 So.2d

676, 689 (La. 1984)). A reasonable alternative hypothesis is not one that could

explain the events in an exculpatory fashion, but one that is sufficiently reasonable

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

Id. “In all cases, the Jackson standard does not provide a reviewing court with a

vehicle for substituting its own appreciation of what the evidence has or has not

proved for that of the fact finder.” Id. Rather, a reviewing court may impinge on

the factfinder’s discretion only to the extent necessary to guarantee the

fundamental due process of law. Id.

In the present case, the jury rejected defendant’s hypothesis of innocence

on the obstruction charge, and we find no other hypothesis that raises a reasonable

doubt of defendant’s guilt. While viewing the video evidence, the jury heard

testimony from Mr. Ponce, who pointed out that defendant responded with

gunshots at the Ideal Market scene and also fired the fatal shot from Mr.

Martinez’s Civic. Mr. Flores-Barahona testified that defendant kept the gun when

he exited the vehicle. The jury also heard testimony that defendant fled to Florida,

where he ultimately was apprehended, and that the gun was never found.

Based on the evidence presented, the jury was satisfied that the State met its

burden of proving that defendant intended to interfere with the investigation.

23-KA-335 18 Applying the appropriate standard for evaluating the sufficiency of the evidence on

the obstruction of justice claim, we cannot say the jury erred in finding defendant

guilty of obstruction of justice beyond a reasonable doubt. We therefore affirm

defendant’s conviction and sentence for obstruction of justice.

Suppression of Evidence

In defendant’s third assignment of error, he asserts the trial court erred when

it denied his motion to suppress the evidence seized from his cell phone. The State

argues that other evidence inculpated defendant and established probable cause to

search his cell phone. It further contends that a Miranda4 violation does not

warrant suppression of evidence seized as “fruits” of that statement.

The Fourth Amendment to the United States Constitution and Article 1, § 5

of the Louisiana Constitution protect individuals against unreasonable searches and

seizures. La. C.Cr.P. art. 703 provides that a defendant may move to suppress any

evidence on the grounds that it was unconstitutionally obtained. The defense has

the burden of asserting the basis for its motion to suppress in order to provide the

State with adequate notice so that it may prepare evidence addressing the

defendant’s claims. State v. Darocha, 20-176 (La. App. 5 Cir. 1/27/21), 309 So.3d

1041, 1051. Pursuant to La. C.Cr.P. art. 703(D), when evidence is seized pursuant

to a search warrant, the defendant bears the burden of proof at a hearing on his

motion to suppress that evidence. Additionally, La. C.Cr.P. art. 703(E)(1) states in

pertinent part, “An evidentiary hearing on a motion to suppress shall be held only

when the defendant alleges facts that would require the granting of relief.”

La. C.Cr.P. art. 841(A) provides: “An irregularity or error cannot be availed

of after verdict unless it was objected to at the time of occurrence.” Articulating a

new basis for the motion to suppress for the first time on appeal is prohibited under

La. C.Cr.P. art. 841, because the trial court would not be afforded an opportunity to

4 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

23-KA-335 19 consider the merits of the particular claim. State v. Berroa-Reyes, 12-581 (La.

App. 5 Cir. 1/30/13), 109 So.3d 487, 496. Louisiana courts have long held a

defendant may not raise new grounds for suppressing evidence on appeal that he

did not raise at the trial court in a motion to suppress. State v. Richardson, 18-717

(La. App. 5 Cir. 9/4/19), 279 So.3d 501, 510, writ denied, 19-1722 (La. 7/2/20),

297 So.3d 764.

In the instant case, defense counsel filed omnibus motions, which in part

asserted a vague motion to suppress the evidence to be used against defendant

because it was “illegally and unlawfully obtained.” Specific facts or grounds for

the motion to suppress the evidence were not articulated. On June 16, 2021, a

hearing on defendant’s motions was held, and the State did not object to the

procedural deficiencies in defendant’s omnibus motions. When the trial court

asked about the type of motions, defense counsel answered: “I believe we have

Motion to Suppress Statement and then there are search warrants for phone dump

and phone record.” At the conclusion of the hearing, the trial court denied “any

Motions to Suppress the Search Warrants,” and defense counsel replied: “Note an

objection for the record.” The motion to suppress the statement was taken under

advisement.

On June 25, 2021, defense counsel filed a Motion and Incorporated

Memorandum in Support of Motion to Suppress Statement, which alleged specific

facts regarding defendant’s requests for an attorney that were not honored. The

motion did not address the search warrants for defendant’s cell phone. On June 29,

2021, the trial court granted the motion to suppress the statement. Thereafter,

defense counsel did not re-urge a motion to suppress the evidence seized pursuant

to the search warrant for defendant’s cell phone.

On appeal, defendant explains that his statement to the police was

suppressed, and because his suppressed statement formed the sole basis of

23-KA-335 20 probable cause in the search warrant for his phone, the court erred when it denied

the motion to suppress evidence. This specific argument was not raised pretrial,

during trial, or in any post-trial motions. Consequently, we will not consider

defendant’s new basis regarding his motion to suppress the evidence.

Competency of the Interpreter

In defendant’s fourth assignment of error, he asserts that the trial interpreter

was not competent because the interpreter was frequently unable to translate

witness testimony, which deprived him of his rights to a fundamentally fair

proceeding and to appellate review based on a complete record. Defendant

explains that during Mr. Ponce’s testimony, the interpreter interrupted ten times to

ask for clarification and an unknown person interjected that the translator was not

completely translating. Defendant argues that because the interpreter repeatedly

failed to translate the verbatim testimony of the two key witnesses, his right to a

fair trial was significantly undermined. Also, he contends that because the same

interpreter was tasked with explaining the proceedings for him, it also deprived

him of his right to be present and undermined his ability to assist his attorneys in

his own defense. The State contends that defendant did not object to the

translations during trial, therefore any claim relative to the translation at trial is not

preserved for review.

La. C.Cr.P. art. 25.1 requires an interpreter be competent to interpret or to

translate the proceedings to defendant and to interpret or translate his testimony.

However, there is no law in Louisiana that requires certified interpreters. State v.

Santos, 09-789 (La. App. 5 Cir. 4/13/10), 40 So.3d 167, 172-73, writ denied, 10-

1080 (La. 11/24/10), 50 So.3d 828. Throughout the three-day trial, six interpreters

performed translations. Defense counsel did not question any of the interpreters

about their qualifications, experience, or competency, nor did defense counsel

object to the interpreters’ translations.

23-KA-335 21 In order to preserve the right to seek appellate review of an alleged trial

court error, the party claiming the error must state an objection contemporaneously

with the occurrence of the alleged error, as well as the grounds for that objection.

La. C.Cr.P. art. 841(A); State v. Faciane, 17-224 (La. App. 5 Cir. 11/15/17), 233

So.3d 195, 211, writ denied, 17-2069 (La. 10/8/18), 253 So.3d 797. The purpose

of the contemporaneous objection rule is to allow the trial judge the opportunity to

rule on the objection and thereby prevent or cure an error. State v. Priest, 18-518

(La. App. 5 Cir. 2/6/19), 265 So.3d 993, 1000, writ denied, 19-418 (La. 5/20/19),

271 So.3d 201. In State v. Santos, supra, this Court found that because there was

no objection made by the defendant to either the qualifications or performance by

the interpreters during the trial, the defendant did not properly preserve the issue

for review.

Here, the record reflects that some of the interpreters asked for clarification

and for some sentences to be repeated. During the testimony of Mr. Ponce, even

though an unidentified person voiced concerns that one interpreter was not

translating all of the testimony, defense counsel neither objected to inaccurate

translation nor stated for the record the interpreter’s name, the nature of the alleged

inaccuracy, or what the actual, accurate interpretation should have been.

Furthermore, at the point in the trial when the unknown person complained, the

judge switched interpreters, replacing the interpreter about whom the complaint

was made with another one of the six interpreters who had interpreted testimony

through various parts of the trial. At no point during the trial did defense counsel

object to any of the interpreters’ qualifications or to any of the translations, nor was

an objection made asserting that defendant’s rights were affected by the

interpreters’ translations. As such, this issue has not been preserved for appellate

review.

23-KA-335 22 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).

On January 19, 2023, when defendant was sentenced, the trial court ordered

defendant to pay “a $1,250.00 sheriff’s fee that’s mandated by statute.” The

minute entry also reflects defendant was ordered to pay court costs, fines, and fees

as indicated on his “Felony Fine Sheet.” La. C.Cr.P. art. 875.1 requires the court

to conduct a hearing to determine whether payment of any fine, fee, cost,

restitution, or monetary obligation would cause substantial financial hardship to

defendant or his dependents. According to the record, the trial court did not hold a

hearing, and there is no waiver of the judicial determination of financial hardship.

Accordingly, due to the requirements of La. C.Cr.P. art. 875.1, we vacate the

portion of defendant’s sentence which imposed court costs, fines, and fees.

However, in light of defendant’s life sentence, we decline to remand this matter for

a financial feasibility hearing, which would appear to constitute an exercise in

futility.

Further, while it appears the trial court failed to observe the twenty-four-

hour delay between rulings upon post-trial motions and the imposition of sentence

mandated by La. C.Cr.P. art. 873, defense counsel did not object to the immediate

imposition of sentence nor raise a sentencing issue on appeal. As there is no

evidence of prejudice resulting from the failure to afford defendant the statutory

delay, this error is harmless. Finally, while the trial judge failed to specify whether

the sentence imposed was to be served at hard labor, defendant was sentenced

under La. R.S. 14:30.1, which mandates a life sentence at hard labor. The trial

judge’s failure to state that the sentence was imposed at hard labor is also harmless.

23-KA-335 23 DECREE

For the reasons stated herein, we affirm defendant’s convictions for second

degree murder and obstruction of justice. We vacate the portion of defendant’s

sentence that imposed court costs, fines and fees. The remainder of defendant’s

sentences are affirmed.

CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART

23-KA-335 24 WICKER, J., CONCURS IN PART, DISSENTS IN PART

I concur with the majority opinion to affirm defendant’s conviction and

sentence for second degree murder and to vacate the portion of defendant’s

sentence imposing court costs, fines, and fees. However, I respectfully dissent

from the majority’s decision to affirm defendant’s conviction and sentence for

obstruction of justice. In my opinion, there is insufficient evidence to support

defendant’s conviction on this charge.

The indictment charges defendant with obstruction of justice by tampering

with evidence, as set forth in La. R.S. 130.1(A)(1). It alleges that defendant

tampered with evidence by the intentionally moving and/or removing the gun

used in the shooting that resulted in the victim’s death.

The State must prove each element of the crime beyond a reasonable

doubt. State v. Helou, 02-2302 (La. 10/23/03), 857 So.2d 1024, 1027, citing

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In

order to convict a defendant of obstruction of justice by tampering with evidence

in this case, pursuant to La. R.S. 14:130.1(A)(1), the State was required to prove:

1) The obstruction was committed “with the knowledge that such act has, reasonably may, or will affect an actual or potential, past, or future criminal proceeding.”

2) Defendant tampered “with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding.”

3) The tampering was by the intentional “alteration, movement, removal, or addition of any object or substance.”

4) The tampering was done “at the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation” by law enforcement officers.

See State v. Jones, 07-1052 (La. 6/3/08), 983 So.2d 95, 101-102.

In my opinion, the State failed to prove the required elements of

obstruction of justice beyond a reasonable doubt. Specifically, the evidence was

23-KA-335 1 insufficient to prove defendant intentionally moved or removed the gun from the

scene or that he did so with the specific intent of distorting the results of a

criminal investigation or proceeding.

Defendant was one of five individuals in Mr. Martinez’s car, and he was

not driving. Of these individuals, only Mr. Ponce and Mr. Flores-Barahona

testified at trial.1 Mr. Flores-Barahona testified that he was in the backseat with

defendant and Mr. Juarez, who were passing the gun back and forth and shooting

from the car. According to Mr. Flores-Barahona, after the victim’s car crashed,

they left the scene. The State did not ask Mr. Ponce any questions about where

the gun was when he left the car, whether it was thrown from the car, or whether

there was any discussion regarding disposing or concealing the gun.

The majority states that Mr. Flores-Barahona testified that defendant kept

the gun when he exited the vehicle that night. However, the transcript reveals

that when the prosecutor asked Mr. Flores-Barahona if he knew what happened

to the gun after the victim’s car crashed, he replied, “No.” He then indicated that

Mr. Martinez dropped off defendant and Mr. Juarez near some apartments where

they lived. When the State asked if he knew who had the gun when they got out

of the car, Mr. Flores-Barahona stated, “I think with the gun, the one that kept

the gun was Edwar [defendant]. That’s what I think.” This is not proof beyond a

reasonable doubt.

The testimony revealed that the police officers never found the gun in this

case, but there is no evidence that defendant discarded or disposed of the

weapon. Detective Bradley and other officers testified that they canvassed the

area where the victim’s car crashed and did not find a gun or anything of

evidentiary value. Ms. Jackson remembered screaming for help and calling 9-1-

1 According to Detective Bradley, he attempted to locate Mr. Juarez, but Mr. Juarez’s brother and girlfriend informed him that he had left the country. He further testified that, after Mr. Martinez pled guilty to obstruction of justice, he was deported from the country.

23-KA-335 2 1. She acknowledged that on the call, she can be heard asking Ms. Matute if the

people in the other car dropped or threw a gun when they passed by. Ms.

Jackson testified that Ms. Matute responded negatively.

In State v. Scott, 23-22 (La. App. 4 Cir. 8/30/23), 372 So.3d 42, 54, writs

denied, 23-1317, 23-1318 (La. 3/19/24), 381 So.3d 707, the defendant contended

there was insufficient evidence to convict him of obstruction of justice, because

the State did not definitively prove that he removed the firearm from the crime

scene. The State responded that the evidence was sufficient to convict the

defendant of obstruction of justice, because there was ample evidence for the

jury to conclude that he fled the scene with the assault rifle he used to shoot the

victims. Id. at 55. The State explained that video surveillance showed the

defendant fleeing the scene, yet there was no footage of him leaving the rifle at

the scene and the rifle was never recovered. Id.

The Fourth Circuit explained in Scott that, even assuming the State

established that the defendant fled the crime scene with the rifle, this

evidence was not sufficient to prove beyond a reasonable doubt that he

possessed the specific intent to distort the police investigation. Scott, 372

So.3d at 55. The Court stated:

The hypothesis that Defendant had the specific intent to distort the results of the police investigation when he left the crime scene is contradicted by the fact that he left behind shell casings (instead of collecting the shell casings ejected from his rifle), video surveillance (instead of destroying the video surveillance that documented his presence in the neighborhood shooting at the SUV), and witnesses (instead of harming the witnesses that were outside on the street at the time of the shooting incident).

The Fourth Circuit explained that from this evidence, a rational juror could

have inferred that, in taking the firearm with him, the defendant gave no thought to

interfering with the results of a criminal investigation or proceeding. Thus, the

23-KA-335 3 Court found the evidence was insufficient to support the conviction for obstruction

of justice and vacated the conviction. Id.

I have reviewed the caselaw and found similar cases in which obstruction of

justice convictions have been upheld. However, in each of these cases, there was

more evidence to support the conviction than in this case. Recently, in State v.

Alexander, 23-540 (La. App. 4 Cir. 4/23/24), ---So.3d---, 2024 WL 1737390, the

defendant was convicted of second degree murder and obstruction of justice, where

the gun used in the shooting was never recovered. In affirming the obstruction of

justice conviction, the Fourth Circuit acknowledged its prior decision in Scott,

supra, but pointed out the State had presented additional evidence that the

defendant had deleted records of a call to a cab company requesting transportation

to the area where the murder occurred.

See also State v. Bethley, 22-849 (La. App. 4 Cir. 6/21/23), 368 So.3d 1148,

1155, writ denied, 23-965 (La. 1/17/24), 377 So.3d 242 (where the gun was not

located at the scene of the crime and was never found by law enforcement, but the

defendant testified he left the scene with the gun).

In the present case, even if defendant removed the gun from the scene of the

shooting, the evidence was insufficient to prove, beyond a reasonable doubt, that

he had the specific intent to distort the results of a criminal investigation or

proceeding. The police never recovered the gun used to shoot the victim, and

video surveillance shows the vehicle defendant occupied leaving the scenes at 18th

Street and the I-10 Service Road. As in Scott, defendant here did not collect the

shell casing from the scene at 18th Street, destroy any surveillance footage of him

at either of the scenes, or harm the other occupants of either vehicle who witnessed

the shooting. In this case, there was no testimony or evidence that defendant

discussed removing the gun from the scene with the other occupants of the car or

with anyone else after the shooting.

23-KA-335 4 The majority finds there was sufficient evidence to prove defendant removed

the gun from the scene with the specific intent of interfering with a criminal

proceeding. In my opinion, this is a theory without proof beyond a reasonable

doubt. I find the evidence presented does not show that, in taking the gun with

him, defendant gave any thought to interfering with the results of a criminal

investigation or proceeding.

For these reasons, the evidence was insufficient to prove the required

elements of obstruction of justice beyond a reasonable doubt. Accordingly, I

would vacate defendant’s conviction and sentence for obstruction of justice.

23-KA-335 5 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 STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL 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

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