State of Louisiana Versus Emmett Garrison, IV AKA "Lil Emmet"

• Court: Louisiana Court of Appeal
• Decided: April 23, 2020
• Docket: 19-KA-62
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 19-KA-62

VERSUS FIFTH CIRCUIT

EMMETT GARRISON, IV AKA "LIL EMMET" COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-654, DIVISION "E" HONORABLE WILLIAM C. CREDO, III JUDGE PRO TEMPORE, JUDGE PRESIDING

April 23, 2020

STEPHEN J. WINDHORST JUDGE

Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS SJW JGG HJL COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Terry M. Boudreaux Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLANT, EMMETT GARRISON, IV AKA "LIL EMMET" Meghan H. Bitoun WINDHORST, J.

Defendant, Emmett Garrison, appeals his convictions and sentences. For the

reasons stated herein, we affirm defendant’s convictions and sentences and remand

with instructions.

PROCEDURAL HISTORY

On May 5, 2016, a Grand Jury for Jefferson Parish returned a true bill

indicting defendant, Emmett Garrison IV a/k/a “Lil Emmett,” and co-defendant,

Corey Flag, with the second degree murder of Bruce Lutcher, in violation of La. R.S.

14:30.1. On May 6, 2016, defendant pled not guilty.

On September 1, 2016, defendant and co-defendant Flag were charged in a

superseding ten-count indictment. Defendant was charged in eight of the ten counts

as follows: Count 1: second degree murder of Bruce Lutcher on or about November 23, 2015, in violation of La. R.S. 14:30.1; 4

Count 2: conspiracy to commit armed robbery on or between November 23, 2015 and December 11, 2015, in violation of La. R.S. 14:26 and La. R.S. 14:64; Count 3: attempted armed robbery with a firearm of Franklin Diaz on December 11, 2015, in violation of La. R.S. 14:27 and La. R.S. 14:64.3; Count 5: attempted armed robbery with a firearm of Fausto Alvarez on December 11, 2015, in violation of La. R.S. 14:27 and La. R.S. 14:64.3; Count 6: attempted second degree murder of Fausto Alvarez on December 11, 2015, in violation of La. R.S. 14:27 and La. R.S. 14:30.1; Count 7: armed robbery with a firearm of Jose Galeas on December 11, 2015, in violation of La. R.S. 14:64.3; Count 8: illegal discharge of a firearm while committing an armed robbery on December 11, 2015, in violation of La. R.S. 14:94 F; and Count 10: illegal discharge of a firearm on December 9, 2015, in violation of La. R.S. 14:94 A and B.

Defendant pled not guilty to the superseding indictment.

On October 3, 2016, the State filed a notice pursuant to La. C.E. art. 404 B

seeking to introduce “other crimes evidence” pertaining to (1) an alleged illegal

discharge of a firearm on December 7, 2015, and (2) a December 22, 2015 shooting

incident resulting in the death of a teenaged girl and the wounding of defendant.

19-KA-62 1 Defendant filed an objection. On January 23, 2017, the trial court ruled that the

December 7, 2015 illegal discharge of a weapon incident was inadmissible, but the

December 22, 2015 shooting incident was admissible. A hearing was also held on

June 12, 2017, on defendant’s motion to suppress identification, which was denied

by the trial court.

On September 5, 2017, a twelve-person jury trial commenced against

defendant and co-defendant, Flag. On September 8, 2017, the jury found defendant

guilty as charged on all eight counts.1

On September 14, 2017, the trial court denied defendant’s motion for new

trial. After a waiver of delays, the trial court sentenced defendant to consecutive

terms of imprisonment as follows:

Count 2: twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; Counts 3 and 5: twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence plus an additional five years at hard labor without benefit of parole, probation, or suspension of sentence to be served consecutively for a total of thirty years imprisonment on each count; Count 6: fifty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; Count 7: forty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence plus an additional five years without benefit of parole, probation, or suspension of sentence for a total of fifty years imprisonment; Count 8: ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; and Count 10: two years imprisonment at hard labor.

The trial court postponed defendant’s sentencing on count one, second degree

murder, pending a Miller2 hearing because defendant was seventeen years old at the

time the offenses were committed.

Defendant filed a motion to reconsider sentence and a motion for appeal on

his non-homicide convictions and sentences for which he was sentenced on

1 Co-defendant Flag was also found guilty on all the counts for which he was tried.

2 Miller v. Alabama, 567 U.S. 460, 479, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012).

19-KA-62 2 September 14, 2017. The trial court denied defendant’s motion to reconsider

sentence on November 6, 2017. After a Miller hearing on December 3, 2018,

defendant was sentenced on count one to life imprisonment at hard labor without

benefit of parole, probation, or suspension of sentence. On December 20, 2018, the

trial court granted defendant’s motion for appeal on his non-homicide convictions.

On January 1, 2019, defendant filed a motion to reconsider his life sentence without

parole imposed on count one and a second motion for appeal with respect to his life

sentence. On January 7, 2019, the trial court denied defendant’s motion to

reconsider life sentence and granted his second motion for appeal as to his life

sentence without parole eligibility. This appeal followed.

On appeal, defendant challenges (1) the sufficiency of the evidence used to

convict him of second degree murder, (2) the trial court’s ruling preventing him from

introducing evidence of the deceased victim’s prior manslaughter conviction, (3) the

alleged abuse of discretion committed by the trial court in granting the State’s La.

C.E. art. 404 B motion, (4) the excessiveness of his consecutive sentences, and (5)

his life sentence imposed without parole eligibility.

FACTS

Second degree murder of Bruce Lutcher on November 23, 2015 (count 1)

On November 23, 2015, Bruce Lutcher was shot and killed outside his

apartment on Ute Street in Harvey, Louisiana. Cassandra Gilds, Mr. Lutcher’s

girlfriend, testified that on November 23, 2015, she was living with Mr. Lutcher

along with their infant son and her four other children. At about 9:40 P.M. that night,

Mr. Lutcher received a phone call and left the apartment. Ms. Gilds testified she

was aware that Mr. Lutcher sold drugs and that it was not unusual for him to be gone

for a few minutes at a time. On that particular night, she became concerned when

Mr. Lutcher did not return. She called his cell phone, but Mr. Lutcher did not

answer. She then had her friend, Shantrell Johnson, call Mr. Lutcher, and again, he

19-KA-62 3 did not answer. Mr. Lutcher eventually returned Ms. Johnson’s phone call and left

a voicemail recording when she did not answer.

Ms. Gilds further testified she heard the doorbell to her apartment ring twice.

She thought it was odd that Mr. Lutcher would ring the doorbell because he had a

key, so she went to the door and listened. She heard a voice she did not recognize

and then heard Mr. Lutcher state, “[n]o, come on, son, no. No, bra.” Thereafter, she

heard multiple gunshots followed by a “scratching noise.” Afraid the perpetrators

were going to come after her and her children, Ms. Gilds remained inside the

apartment and called 9-1-1. While waiting for the police, Ms. Gilds testified she

opened the apartment door and saw Mr. Lutcher at the bottom of the stairwell on his

knees with his head against the wall. Mr. Lutcher was unresponsive, and his wallet

and cell phone were missing.

At trial, Dr. Dana Troxclair, an expert forensic pathologist, testified that Mr.

Lutcher died from multiple gunshot wounds, some of which were sustained while

Mr. Lutcher had his hands up in a defensive position. Dr. Troxclair testified that Mr.

Lutcher was shot thirteen times. She stated that a copper-jacketed projectile was

recovered from Mr. Lutcher’s mid-back during the autopsy.

Detective Rhonda Goff of the Jefferson Parish Sheriff’s Office, the lead

investigator in the shooting, testified that she supervised the collection of evidence

and the taking of photographs at the scene. She testified it was common knowledge

that Mr. Lutcher sold marijuana and that a large amount of marijuana had been found

near the scene. No firearms were recovered in the homicide investigation; however,

ballistics material including projectiles and casings were recovered at the scene.

Detective Goff observed that Mr. Lutcher’s pockets3 had been turned inside

out and there was a bottle of Visine and the victim’s keys on the ground, leading her

3 David Cox with the Jefferson Parish Sheriff’s Office DNA laboratory, an expert in the field of forensic DNA analysis, testified that both defendant and co-defendant Flag were excluded as contributors to the DNA mixtures found on the cutting taken from Mr. Lutcher’s pockets.

19-KA-62 4 to believe that Mr. Lutcher had been the victim of a robbery. Mr. Lutcher’s wallet

and cell phone were never recovered. After listening to the voicemail recording

retrieved from Ms. Johnson’s phone at 11:24 P.M. (the time of the shooting), she

concluded that Mr. Lutcher’s cell phone was taken during the robbery. On the

voicemail recording, she was able to discern the voices of three individuals, leading

her to believe that there was a minimum of two suspects, and she heard the footsteps

of the perpetrators as they fled.4

Marcques Joseph5 testified that he knew Mr. Lutcher from the neighborhood

and that on the night Mr. Lutcher was murdered, he observed defendant and co-

defendant Flag walking up the street with guns in their hands towards Mr. Lutcher.

Mr. Joseph went inside and a few minutes later, he came back outside and saw that

the police were at Mr. Lutcher’s apartment building. Mr. Joseph picked both

defendant and co-defendant Flag out of a photographic lineup.

Mr. Joseph also testified that sometime after the shooting of Mr. Lutcher, he

had a conversation with defendant and co-defendant Flag, who were both talking

about the murder stating, “that was my work.” Initially, Mr. Joseph testified that

defendant told him about the murder being “his work;” however, after he was

reminded of his statement to Detective Goff, he insisted it was co-defendant Flag

who said it was “his work” and defendant was present.

December 9, 2015 Drive-By Shooting Incident at Julie Street involving the same firearm as the one used to murder Mr. Lutcher (count 10)

On December 9, 2015, a drive-by-shooting occurred on Julie Street in

Marrero, Louisiana. Deputy Ryan Singleton of the Jefferson Parish Sheriff’s Office

arrived at the scene and collected evidence, including six casings. Deputy Singleton

testified that one of the casings was a Winchester .380 auto-caliber casing, and the

4 The term “ratchet” was referenced by one of the suspects on the voicemail recording, which Detective Goff was told by co-defendant Flag meant a “gun.” 5 Mr. Joseph is the cousin of Sharamie Joseph, a murder victim hit by a stray bullet intended for defendant during the December 22, 2015 shooting incident in which defendant was also wounded.

19-KA-62 5 remainder of the casings were fired from a 9 mm firearm. It was later discovered

that the 9 mm casings from the drive-by shooting and the murder of Mr. Lutcher

were fired from the same gun.

Once Detective Goff was informed of the connection to Mr. Lutcher’s murder,

she spoke to Curvin Nash, one of the individuals present at the scene of the drive-by

shooting, and who was incarcerated on unrelated charges at the time. She testified

that Mr. Nash identified defendant and co-defendant Flag from photographic lineups

as the two individuals who shot at him during the drive-by shooting, which was

confirmed by Mr. Nash’s statement. Detective Goff testified that she did not make

any deals with Mr. Nash in exchange for his cooperation, and that at the time she

spoke with him, he was trying to cooperate with the Narcotics Division to “work off

his charges.” Detective Goff stated that she did not tell Mr. Nash who to identify in

the lineups.

However, Mr. Nash recanted his prior statement during trial claiming that

Detective Goff picked out the men for him, bribed him, and informed him that he

would get out of jail if he selected their photographs. Mr. Nash testified that he

could not identify the individuals who shot at him because he was unable to see

inside the vehicle. He further testified that he was “working off his charges” at the

time he made the identifications.

December 22, 2015 shooting, where defendant was wounded and a stray bullet killed a fifteen-year old teenager (admitted under La. C.E. art. 404 B)

Romalis Levier was also present on the scene of the December 9, 2015 drive-

by shooting involving Mr. Nash (count ten discussed above). Thirteen days later on

December 22, 2015, Mr. Levier went to the apartment complex where co-defendant

Flag was staying with Walter Wilson and where defendant was known to regularly

visit, and shot defendant in the stomach. Fifteen-year old Sharamie Joseph was

19-KA-62 6 visiting with family in the apartment next door and was shot and killed by a stray

bullet intended for defendant.

Detective Goff testified that after defendant was shot, he went back to his

home where an ambulance was called.6 His home was searched, but no guns were

found. Detective Goff testified that if defendant had departed the scene of the

shooting in possession of a firearm, he would have had sufficient opportunity to

dispose of the weapon between the time he was shot and his arrival at home.

Detective Goff also testified that she was unable to interview Mr. Levier regarding

the December 9, 2015 drive-by shooting because he was in custody for the shooting

that resulted in the death of Ms. Joseph and had an attorney.

Mr. Marcques Joseph testified that he was with his cousin, Sharamie Joseph,

when Mr. Levier shot and killed her during a shootout with defendant. After his

cousin was shot, he went outside and saw defendant running through the parking lot

holding his stomach and observed Mr. Levier’s car speeding away from the scene.

December 11, 2015 attempted armed robbery of Franklin Diaz (count 3)

On December 11, 2015, two days after the December 9, 2015 drive-by

shooting involving defendant and co-defendant, at approximately 5:30 P.M.,

Franklin Diaz was in the parking lot outside of his apartment talking on his cell

phone and smoking a cigarette when two black men approached him. At trial, Mr.

Diaz testified through a Spanish-speaking interpreter that the taller of the two men

pulled out a gun and demanded his money while the shorter one stood behind the

other acting as a lookout. Mr. Diaz refused to comply with their demand and ran

away. While running, the tall man with the gun shot at him.

Mr. Diaz testified he called the police and was subsequently shown two

photographic lineups and identified defendant as the lookout and co-defendant Flag

6 The State and defense stipulated that if defendant’s father were to testify, he would state that on the night of December 22, 2015, his son came into their house with a gunshot wound and told him he had been shot by Mr. Levier.

19-KA-62 7 as the individual with the gun. Mr. Diaz identified both defendant and co-defendant

Flag in open court as the perpetrators.

December 11, 2015 attempted armed robbery and attempted second degree murder of Fausto Alvarez (counts 5 and 6)

On December 11, 2015, Fausto Alvarez drove to an apartment complex in

Terrytown to pick up a friend. At trial, Mr. Alvarez, through a Spanish-speaking

interpreter, testified that he got out of his car and went to his brother’s car to retrieve

his toolbox. He was approached by two black men who told him it was a “hold-up.”

The shorter of the two men pointed a gun at Mr. Alvarez while the taller man reached

into his pockets. After the search turned up empty, the taller man hit Mr. Alvarez in

the neck and the shorter man shot Mr. Alvarez in the stomach before fleeing.

Mr. Alvarez testified he was taken to the hospital where he remained for

nineteen days. He testified that as a result of being shot, he is confined to a

wheelchair and will never walk again. He was unable to identify his assailants from

the photographs presented to him by the police. Mr. Alvarez, however, made an in-

court identification of co-defendant Flag as the man who searched and hit him based

on seeing him in person in the courtroom. He further stated that co-defendant Flag

looked different than he did at the time of the attempted armed robbery because his

hair at the time of the trial was short.

December 11, 2015 armed robbery of Jose Galeas and illegal discharge of a firearm while committing a crime of violence (counts 7 and 8)

On December 11, 2015, Jose Galeas was robbed at gunpoint by two black men

when he returned home from work to his apartment on Abbey Road. Mr. Galeas

testified through a Spanish-speaking interpreter that he first observed the men as

they drove into the parking lot of his apartment complex. As he was opening his

apartment door, the two men, one short and one tall, told him not to move. The

shorter man pointed a gun at his head while the taller man with “braids” searched

him and took his wallet containing $430.00. He further testified that the taller man

19-KA-62 8 had on a black jacket. After his assailants left, he attempted to write down the license

plate number, but the assailants were watching. The shorter man told him not to

look at them and fired four shots at him.

Mr. Galeas testified that a few weeks after the armed robbery, he was shown

photographic lineups from which he was able to identify co-defendant Flag as the

taller of the assailants.

Investigation of the December 11, 2015 armed robbery and attempted armed robberies

At trial, Sergeant Wayne Rumore of the Jefferson Parish Sheriff’s Office

testified he responded to an armed robbery and a series of attempted armed robberies

on December 11, 2015. The first incident, the attempted armed robbery of Mr. Diaz,

occurred at 961 East Monterey Court in Gretna at approximately 5:30-5:40 P.M.

Upon arrival at the first scene, Sergeant Rumore met with Mr. Diaz who described

the first assailant as a black male, 5’10” to 6’0” tall, thin build, dreadlock hair style,

wearing a white shirt and black pants, and in possession of a black semi-automatic

pistol. Mr. Diaz described the second assailant as a younger, shorter black male,

thin build, with short hair. Sergeant Rumore testified that there were two 9 mm

casings found at the scene.

While at the scene, Sergeant Rumore testified he received a phone call around

6:00 P.M. regarding a second attempted armed robbery and shooting at Faith Place

and he sent Sergeant Joseph Waguespack to that scene. After arriving at Faith Place,

Sergeant Waguespack assisted Detective Daniel Lincoln in the recovery of evidence,

including six 9 mm casings. It was subsequently determined that the 9 mm casings

came from a single weapon. Sergeant Waguespack was unable to speak to the

victim, Mr. Alvarez, because he was in surgery.

Sergeant Rumore testified he received another phone call a short time later,

around 6:20-6:30 P.M., regarding a third armed robbery incident on Abbey Road,

19-KA-62 9 approximately three or four miles away. Sergeant Rumore left the Monterey Court

scene and proceeded to Abbey Road where four 9 mm casings were recovered. He

testified that the victim, Mr. Galeas, informed him that the perpetrators were black

males, one short and one tall, and that the shorter black male was in possession of a

semi-automatic handgun. Mr. Galeas further informed Sergeant Rumore that the

taller male was wearing a black shirt and had a “twist” hairstyle.

Sergeant Rumore testified he believed the three incidents were related because

they each involved two black perpetrators, one short and one tall, and Hispanic

victims. Sergeant Waguespack identified a map containing the locations of the three

crime scenes and noted the three locations were only two or three miles apart and

could be reached fairly quickly from the main roads.

Sergeant Waguespack testified that defendant was developed as a suspect in

the armed robbery and attempted armed robberies after he was advised by a homicide

investigator that defendant was involved in a homicide incident on December 22,

2015, where defendant was shot and a fifteen-year old girl was killed by a stray

bullet. Sergeant Waguespack testified that defendant was found to be associated

with a 9 mm handgun used in the December 22, 2015 shooting incident and the

casings from that shooting incident matched the casings found at each of the robbery

scenes and were determined to have been fired from the same weapon. He testified

photographic lineups containing defendant were shown to the three victims and Mr.

Diaz was the only victim who positively identified defendant as one of the

perpetrators.

Sergeant Waguespack testified that co-defendant Flag was developed as a

suspect based on the December 9, 2015 drive-by shooting incident involving Mr.

Nash. When Sergeant Waguespack showed photographic lineups containing co-

defendant Flag’s photograph to the three victims, Mr. Diaz and Mr. Galeas identified

co-defendant Flag as one of the perpetrators. Sergeant Waguespack testified that

19-KA-62 10 another reason co-defendant Flag was developed as a suspect was his connection to

a December 7, 2015 shooting incident at the RaceTrac on Manhattan. While no

suspects were identified in that shooting incident, co-defendant Flag was field-

interviewed during the investigation due to his close proximity to the scene.7

Ballistics casings recovered from the scene of the RaceTrac shooting matched those

casings recovered from the scenes of the other robberies on December 11, 2015.

Ballistics Evidence

Jene Rauch of the Jefferson Parish Crime Laboratory testified as an expert in

firearms and toolmark examination, shooting incident reconstruction, and crime

scene investigation. Ms. Rauch analyzed materials collected from the November 23,

2015 homicide of Mr. Lutcher, the December 7, 2015 shooting at the RaceTrac, the

December 9, 2015 drive-by shooting involving Mr. Nash, the December 11, 2015

armed robbery and attempted armed robberies, and the December 22, 2015 shooting

incident, in which Ms. Joseph was killed by a stray bullet and defendant was shot in

the stomach.

Based on her analysis of the ballistics material, Ms. Rauch testified that the 9

mm casings recovered from the homicide of Mr. Lutcher were fired from the same

9 mm handgun as the five casings found at the scene of the December 9, 2015 drive-

by-shooting involving Mr. Nash. Ms. Rauch further testified the ballistics material

recovered from the December 7, 2015 RaceTrac shooting and the December 11,

2015 robberies were all fired from the same 9 mm handgun that fired the ballistics

material recovered from the December 22, 2015 shooting incident in which

defendant was wounded.

Ms. Rauch also testified that she performed a crime scene reconstruction of

the December 22, 2015 shooting. She testified the victim, Ms. Joseph, was shot by

7 Although evidence concerning the December 7, 2015 incident at RaceTrac was previously found to be inadmissible under La. C.E. art. 404 B, the trial court permitted the State to question Sergeant Waguespack concerning the incident on the basis that defense counsel “opened the door to it.”

19-KA-62 11 a stray bullet fired by someone using a .22 caliber weapon from the street. She

further testified the ballistics material was consistent with a second mobile shooter

firing .38 caliber class ammunition, which would be 9 mm, toward the street from

inside the stairwell of the apartment. In total, twenty-two casings were found inside

the stairwell and on the sidewalk which were linked back to having been fired from

the same weapon as that used in the armed robbery and attempted armed robberies

on December 11, 2015.

DISCUSSION

In his first assignment of error, defendant contends the evidence is insufficient

to convict him of the second degree murder of Mr. Lutcher. Defendant argues that

he was not credibly identified as having been at the scene of the crime and that his

DNA was excluded as having been on the scene. He maintains the circumstantial

evidence, i.e., the 9 mm casings recovered from the scene of the murder and linked

to other crime scenes and his co-defendant, is insufficient to prove he was at the

scene of the shooting. Defendant avers that while the ballistics evidence from the

murder of Mr. Lutcher matched casings found at the scene of the December 9, 2015

drive-by shooting involving Mr. Nash, Mr. Nash recanted his statement accusing

defendant and co-defendant Flag and testified at trial he did not see who shot at him.

The standard of review for determining the sufficiency of the evidence is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). Under the Jackson standard, a review of a criminal conviction

record for sufficiency of evidence does not require the court to ask whether it

believes that the evidence at trial established guilt beyond a reasonable doubt, but

rather, whether any rational trier of fact could have found the defendant guilty

beyond a reasonable doubt after viewing the evidence in the light most favorable to

19-KA-62 12 the prosecution. State v. Flores, 10-651 (La. App. 5 Cir. 05/24/11), 66 So.3d 1118,

1122.

In this assignment of error, defendant only challenges his second degree

murder conviction. 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. See State v. Lewis, 05-170 (La. App. 5 Cir. 11/29/05), 917

So.2d 583, 589-90, writ denied, 06-757 (La. 12/15/06), 944 So.2d 1277.

Defendant does not contest on appeal that the State failed to prove any of the

essential statutory elements of the crimes for which he was convicted. Rather,

defendant contends there is insufficient evidence to support his second degree

murder conviction based upon the alleged weak circumstantial evidence in this case

linking him to the murder.8

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

proving the identity of the defendant as the perpetrator. State v. Ray, 12-684 (La.

App. 5 Cir. 04/10/13), 115 So.3d 17, 20, writ denied, 13-1115 (La. 10/25/13), 124

So.3d 1096. 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. Id.

In the absence of internal contradiction or irreconcilable conflict with physical

evidence, one witness’ testimony, if believed by the trier of fact, is sufficient to

support a requisite factual finding. State v. Caffrey, 08-717 (La. App. 5 Cir.

05/12/09), 15 So.3d 198, 203, writ denied, 09-1305 (La. 02/05/10), 27 So.3d 297. A

reviewing court may impinge on the fact-finder’s discretion only to the extent

8 Because defendant does not raise any arguments relating to the sufficiency of the evidence as to the statutory elements, we need not address the evidence as it relates to each essential element. See State v. Nelson, 14-252 (La. App. 5 Cir. 03/11/15), 169 So.3d 493, 500, writ denied, 15-0685 (La. 02/26/16), 187 So.3d 468. Nevertheless, a review of the record under State v. Raymo, 419 So.2d 858, 861 (La. 1982), reflects the State presented sufficient evidence under the Jackson standard to establish the essential statutory elements of second degree murder under either theory, specific intent or felony murder.

19-KA-62 13 necessary to guarantee the fundamental due process of law. State v. Harris, 02-1589

(La. 05/20/03), 846 So.2d 709, 713 (citing State v. Mussall, 523 So.2d 1305, 1310

(La. 1988)).

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.

Williams, 05-59 (La. App. 5 Cir. 05/31/05), 904 So.2d 830, 833. Where

circumstantial evidence forms the basis of a conviction, the circumstances must be

so clearly proven that they point not merely to the possibility or probability of guilt,

but to the moral certainty of guilt. State v. Shapiro, 431 So.2d 372, 385 (La. 1982).

The rule as to circumstantial evidence is “assuming every fact to be proved that the

evidence tends to prove, in order to convict, it must exclude every reasonable

hypothesis of innocence.” La. R.S. 15:438. This is not a separate test from the

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

of reasonable doubt. State v. Wooten, 99-181 (La. App. 5 Cir. 06/01/99), 738 So.2d

672, 675, writ denied, 99-2057 (La. 01/14/00), 753 So.2d 208. All evidence, both

direct and circumstantial, must be sufficient to support the conclusion that the

defendant is guilty beyond a reasonable doubt. Id.

To preserve the role of the trier of fact, i.e., to accord the deference demanded

by Jackson, the Louisiana Supreme Court has further subscribed to the general

principle in cases involving circumstantial evidence that when the trier of fact 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. Captville, 448 So.2d 676, 680 (La. 1984). A

reasonable alternative hypothesis of innocence is not one “which could explain the

events in an exculpatory fashion” but one that “is sufficiently reasonable that a

19-KA-62 14 rational juror could not ‘have found proof of guilt beyond a reasonable doubt.’” Id.

(quoting Jackson, supra).

It is not the function of the appellate court to assess credibility or reweigh the

evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442, 443. The trier of

fact shall evaluate credibility, and when faced with a conflict in testimony, is free to

accept or reject, in whole or in part, the testimony of any witness. State v. Bradley,

03-384 (La. App. 5 Cir. 09/16/03), 858 So.2d 80, 84, writs denied, 03-2745 (La.

02/13/04), 867 So.2d 688 and 08-1951 (La. 01/30/09), 999 So.2d 750.

The eyewitness identification by Mr. Joseph of defendant and co-defendant

Flag walking towards Mr. Lutcher while armed on the night of the murder, combined

with the evidence that both defendant and co-defendant were identified as

perpetrators in a series of attempted armed robberies and an armed robbery

committed a short time after Mr. Lutcher’s murder, as well as ballistics evidence

recovered at the scene of the murder found to be connected to defendant based on a

prior drive-by-shooting incident, is sufficient to sustain defendant’s second degree

murder conviction. We therefore find the evidence, viewed in a light most favorable

to the prosecution, was sufficient to convince a rational trier of fact beyond a

reasonable doubt that defendant either shot and killed Mr. Lutcher or was a principal

to Mr. Lutcher’s murder. Further, we find that the elements of the crime proven in

whole or in part by circumstantial evidence were proven sufficiently to allow the

jury to reasonably conclude any reasonable hypothesis of innocence had been

excluded. Accordingly, this argument is without merit.

In his second assignment of error, defendant argues his right to present a

defense was infringed when the trial court prohibited him from introducing evidence

of Mr. Lutcher’s prior manslaughter conviction. He claims that given the

circumstantial evidence in this case, the fact that the police may have had other

19-KA-62 15 suspects (i.e., someone seeking revenge on Mr. Lutcher based on his manslaughter

conviction) was “relevant to allowing the jury to hear both sides.”

Prior to the start of trial, the trial court heard arguments on the State’s motion

in limine to preclude introduction of the deceased victim Mr. Lutcher’s prior

manslaughter conviction. The State argued that the victim pled guilty to

manslaughter in December of 2003 and that his prior conviction was unrelated to his

murder in this case which occurred over a decade after his manslaughter conviction.

The State contended the evidence indicated the motive for the victim’s murder was

robbery and not revenge. The State claimed that defendant did not make the requisite

showing under La. C.E. art. 404 for the admissibility of the victim’s prior conviction

and defendant did not argue self-defense, thus rendering the victim’s prior

manslaughter conviction irrelevant. Defense counsel argued that it did not intend to

refer to the victim’s manslaughter conviction if the facts presented by the State at

trial established the murder was a result of an armed robbery and not as a result of

revenge between the victim and the accused. Co-defendant Flag’s counsel argued

she intended to discuss Mr. Lutcher’s manslaughter conviction as part of their

defense to establish that the victim had enemies. Defendant’s counsel also argued

that the investigating officer inquired into the victim’s past when determining

possible suspects, and thus, defendant should be able to question the officer. The

trial court held the matter open until the start of trial.

On September 6, 2017, the trial court again heard argument of counsel on the

State’s motion in limine to exclude Mr. Lutcher’s manslaughter conviction. Defense

counsel argued that he was not seeking to introduce evidence of the victim’s

character but rather attempting to show the victim had a lot of enemies who may

have wished him harm. The trial court granted the State’s motion in limine, finding

that the defense had failed to show an overt act was made on the part of the victim

19-KA-62 16 at the time of the offense, and also found that the defense was attempting to use this

evidence to tarnish the victim’s character.

Both the Sixth Amendment of the United States Constitution and Article I,

§16 of the Louisiana Constitution guarantee a criminal defendant the right to present

a defense. State v. Lirette, 11-1167 (La. App. 5 Cir. 06/28/12), 102 So.3d 801, 813,

writ denied, 12-1694 (La. 02/22/13), 108 So.3d 763. This right does not require a

trial court to permit the introduction of evidence that is inadmissible, irrelevant, or

has so little probative value that it is substantially outweighed by other legitimate

considerations in the administration of justice. Id.; See La. C.E. arts. 401, 402 and

403. The trial court is afforded great discretion in evidentiary rulings, and absent a

clear abuse of that discretion, rulings regarding the relevancy and admissibility of

evidence will not be disturbed on appeal. State v. Sandoval, 02-230 (La. App. 5 Cir.

02/25/03), 841 So.2d 977, 985, writ denied, 03-853 (La. 10/03/03), 855 So.2d 308.

La. C.E. art. 404 A(2) governs admissibility of character evidence of a victim

and provides, in pertinent part:

(2) Character of victim. (a) Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible. * * * (Emphasis added.)

At trial, no evidence was admitted or offered to show that Mr. Lutcher made

a hostile demonstration or committed an overt act against defendant at the time of

the shooting incident. Nor did defendant argue self-defense. La. C.E. art. 404

A(2)(a); See State v. Hicks, 16-462 (La. App. 5 Cir. 02/08/17), 213 So.3d 458, writ

denied, 17-445 (La. 11/13/17), 230 So.3d 205; State v. Brown, 46,669 (La. App. 2

Cir. 02/29/12), 86 So.3d 726, writ denied, 12-0724 (La. 09/14/12), 97 So.3d 1016;

State v. Keating, 00-51 (La. App. 5 Cir. 10/18/00), 772 So.2d 740, writ denied, 00-

3150 (La. 10/12/01); State v. Young, 99-1054 (La. App. 5 Cir. 02/16/00), 757 So.2d

19-KA-62 17 797. Thus, evidence of Mr. Lutcher’s prior manslaughter conviction, which was 12

years before commission of the crimes herein, was not relevant and we find the trial

court did not err in granting the State’s motion in limine.9 Accordingly, this

argument is without merit.

In his third assignment of error, defendant argues the trial court abused its

discretion in granting the State’s motion to introduce evidence of other crimes

pursuant to La. C.E. art. 404 B. Specifically, defendant challenges the trial court’s

admission of evidence relating to the December 22, 2015 shooting incident in which

defendant was shot in the stomach and a stray bullet killed Ms. Joseph.

La. C.E. art. 404 B(1) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In order for other crimes evidence to be admitted under La. C.E. art. 404 B(1)

certain requirements must be met. Pursuant to State v. Prieur, 277 So.2d 126 (La.

1973), the State must provide written notice to the defendant of the acts it intends to

prove, along with the exception to the exclusionary rule upon which it relies. State

v. Le, 13-314 (La. App. 5 Cir. 12/12/13), 131 So.3d 306, 317. The “other crimes”

evidence must be admitted for other purposes, such as those listed in Article 404

B(1), having some independent relevance, or be an element of the crime charged in

9 Even assuming that the trial judge erred in excluding the evidence in question, we find defendant was not prejudiced by the ruling. Although the trial court did not allow evidence of the victim’s manslaughter conviction, the jury heard testimony that Mr. Lutcher was a drug dealer and that a large amount of marijuana was found near the scene. Young, 757 So.2d at 801. We also find any error in excluding the evidence was harmless. Based on the evidence, the verdict “was surely unattributable to the error.” State v. Paul, 15-501 (La. App. 5 Cir. 01/27/16), 185 So.3d 188, 205.

19-KA-62 18 order for the evidence to be admissible. See State v. Jackson, 625 So.2d 146, 149

(La. 1993). Further, the State must prove that the defendant committed the other

acts by a preponderance of the evidence. Huddleston v. United States, 485 U.S. 681,

685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988); State v. Hernandez, 98-448 (La.

App. 5 Cir. 05/19/99), 735 So.2d 888, 898-99, writ denied, 99-1688 (La. 11/12/99),

750 So.2d 194. Finally, the probative value of the evidence must substantially

outweigh its prejudicial effect. La. C.E. art. 403; State v. Page, 08-531 (La. App. 5

Cir. 11/10/09), 28 So.3d 442, 451, writ denied, 09-2684 (La. 06/04/10), 38 So.3d

299.

The burden is on the defendant to show that he was prejudiced by the

admission of other crimes evidence. Absent an abuse of discretion, a trial court’s

ruling on the admissibility of evidence pursuant to La. C.E. art. 404 B(1) will not be

disturbed. Le, 131 So.3d at 317.

Prior to trial, the State filed a notice of intent to use evidence of other bad acts

pursuant to La. C.E. art. 404 B. The State sought to introduce evidence of a

December 22, 2015 shooting incident, which resulted in the death of a teenaged girl

and wounding of defendant. It was the State’s contention that defendant was a

participant in the December 22, 2015 shooting and the same firearm was used by

defendant and co-defendant Flag during the December 11, 2015 armed robbery and

attempted armed robberies. Because ballistics testing revealed that the same gun

was used on both dates, the State intended to introduce evidence of the December

22, 2015 shooting incident to establish “the defendants’ identities as the

perpetrators” of the crimes committed on December 11, 2015, “their opportunity to

commit the charged offenses, the absence of any mistake or accident in their

discharge of the firearms in each of the three December 11, 2015 robbery incidents,

and the specific intent to kill a victim left paralyzed during one of the December 11,

2015 robbery incidents.” In its motion, the State further asserted that the December

19-KA-62 19 22, 2015 shooting was initiated by Mr. Levier as retaliation against defendant for the

December 9, 2015 drive-by shooting incident involving Mr. Nash (count 10).

According to Mr. Levier, whose .22 caliber casings were recovered in the parking

lot of the scene of the shooting, defendant returned fire from the other weapon on

the scene, which was the same gun used on December 11, 2015.

After a hearing, the trial court granted the State’s 404 B motion as to the

December 22, 2015 shooting incident, finding that because the same weapon was

used in the December 11, 2015 charged offenses, it established the identities of

defendant and co-defendant Flag and a “lack of mistake, lack of knowledge, system

and intent.” Defendant now challenges the court’s ruling on two grounds.

First, defendant asserts the State failed to prove by a preponderance of the

evidence that he was the person who fired one of the two weapons used during the

December 22, 2015 shooting incident. We find this argument is without merit.

Based on a review of the testimony and evidence, while circumstantial in

nature, the State presented sufficient evidence to prove by a preponderance of the

evidence that defendant was the second mobile shooter who returned shots at Mr.

Levier during the December 22, 2015 shooting incident. Evidence of the December

22, 2015 shooting was also relevant to show the progression of the investigation in

this case as well as the connection of the firearm to the December 11, 2015 crimes,

in which defendant was positively identified as one of the perpetrators. Thus, this

evidence was admissible to prove “an integral part of the act or transaction that is

the subject of the present proceeding” as provided in La. C.E. art. 404 B(1), or as

stated in Jackson, to prove an element of the crime, namely, the identification of the

defendant. Jackson, 625 So.2d 146, 149 (La. 1993). Accordingly, we find no merit

to defendant’s argument that the State failed to prove that he was one of the shooters

in the December 22, 2015 shooting incident, and thus, the trial court did not err in

allowing the admission of this evidence on that basis.

19-KA-62 20 Second, defendant asserts that the probative value of the December 22, 2015

shooting incident was outweighed by its prejudicial effect, and therefore, the trial

court erred in allowing the admission of evidence regarding this unrelated shooting

at trial. We find this argument is without merit. Evidence of the December 22, 2015

shooting incident was highly probative of defendant’s identity. See State v. Davis,

13-237 (La. App. 5 Cir. 10/30/13), 128 So.3d 1162, 1169-1170, writ denied, 13-

2751 (La. 05/23/14), 140 So.3d 723. Further, as this Court found in co-defendant

Flag’s appeal, “regardless of whether or not this evidence was properly admitted,

after this evidence was presented by the State, defendant was able to utilize this

evidence to establish a motive for Mr. Joseph’s damaging testimony in this case

regarding the murder of Mr. Lutcher.” State v. Flag, 19-70 (La. App. 5 Cir.

12/19/18), 262 So.3d 1018, 1033; See also State v. Fair, 15-434 (La. App. 5 Cir.

12/23/15), 182 So.3d 1238, writ denied, 16-0185 (La. 02/03/17), 215 So.3d 688.

Therefore, we find the trial court did not abuse its discretion in allowing the

admission of the December 22, 2015 shooting incident. Accordingly, this argument

is without merit.

In his fourth assignment of error, defendant argues his life sentence without

the possibility of parole is unconstitutional under Miller v. Alabama,10 claiming the

trial court: 1) failed to consider how children are different, and 2) impermissibly

focused its sentence on one of his non-homicide offenses. Defendant also contends

that Miller sentencing cases are similar to capital sentencing cases which

contemplate an exhaustive sentencing hearing. He further asserts that (1) the trial

court’s reasons for sentence improperly relied on his crimes alone and considered

his juvenile history, young age, and violent home life as aggravating circumstances;

(2) the trial court failed to consider certain mitigating factors such as his ability to

10 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

19-KA-62 21 satisfy the terms of his prior probation and complete tasks while under supervision;

(3) the trial court misinterpreted the law in evaluating the testimony of defendant’s

expert witness, Dr. Loretta Sonnier; and (4) the trial court’s conclusion that he is one

of the worst offenders and that he has no prospective for rehabilitation is not

supported by the record.

On October 30, 2017, the State filed a notice of intent to seek a life sentence

without parole eligibility and requested a Miller sentencing hearing given

defendant’s age of seventeen at the time of the second degree murder offense. On

October 3, 2018, a Miller hearing was conducted. The defense called Dr. Sonnier

as an expert in the field of forensic psychiatry with a child psychiatry background,

who testified she authored a report after meeting with defendant and reviewing the

Miller factors. Dr. Sonnier testified there was an older male co-defendant present at

the time of the offenses and discussed how the presence of an older peer may have

an influence on one’s judgment. Based on defendant’s history, Dr. Sonnier testified

that defendant’s caretakers were not present and his role models were engaged in

criminal activity which normalized such behavior. She could not say to a reasonable

degree of accuracy whether defendant is or is not one of the “rare juveniles whose

crimes reflect irreparable corruption.”

With respect to the Miller factors, Dr. Sonnier testified there were many

factors present with respect to the influences on defendant’s decision-making ability

at the time of his arrest and that there was incomplete information concerning his

dependency factor and his rehabilitation factor. Dr. Sonnier also testified that with

respect to defendant’s rehabilitative efforts, defendant had been going to the library

to work on his case, reading books, had not had any disciplinary problems, and was

looking forward to getting off “detainer” so he could attend trade classes and receive

anger management treatment. Dr. Sonnier learned that defendant had been placed

on probation in the past and completed a youth challenge program successfully as a

19-KA-62 22 condition of his probation. However, she acknowledged that defendant failed many

of his drug screenings while on probation and committed the instant murder six

weeks after completion of his probation. Dr. Sonnier admitted that she had not

reviewed any of the trial transcripts in this case and conceded that it would be useful

to know whether defendant was remorseful and understood the enormity of his

conduct. She conceded, however, that she did not discuss those issues with

defendant because his responses appeared “guarded.”

The trial court held the matter open to allow the State an opportunity to present

evidence. A second Miller hearing was held on December 3, 2018, at which time

the State introduced into evidence the entirety of the court’s record, including all

testimony taken during pretrial hearings and during the trial of this matter. The State

argued the evidence proved that defendant could not be rehabilitated. After

considering the arguments and evidence submitted, the trial court denied parole

eligibility with extensive reasons.

On January 1, 2019, defendant filed a motion to reconsider sentence, arguing

that his life sentence without parole was unconstitutional because he was not the

“rare juvenile offender whose crime reflects irreparable corruption.” He further

argued the evidence presented at the sentencing hearing was inadequate to support a

finding that defendant was permanently incorrigible. Defendant maintained the trial

court improperly focused on the nature of the crime when sentencing defendant and

that defendant was not among the “worst possible offenders” as he did not possess

the intent to kill. He asserted that he was convicted as a principal to the murder of

Mr. Lutcher, was influenced by his older co-defendant, and was raised by a mother

who condoned criminal activity. Finally, defendant argued that a sentence of life

without parole for second degree murder by a juvenile was cruel and unusual and

further violated the Equal Protection Clauses of the United States and Louisiana

Constitutions.

19-KA-62 23 Both the Eighth Amendment to the United States Constitution and Article I,

§ 20 of the Louisiana Constitution prohibit the imposition of excessive and cruel

punishment. State v. Lawson, 04-334 (La. App. 5 Cir. 09/28/04), 885 So.2d 618,

622, writ denied, 05-0244 (La. 12/09/05), 916 So.2d 1048. A sentence is considered

excessive, even when it is within the applicable statutory range, if it is grossly

disproportionate to the seriousness of the offense or imposes needless and

purposeless pain and suffering. In reviewing a sentence for excessiveness, the

appellate court must consider the punishment and the crime in light of the harm to

society and gauge whether the penalty is so disproportionate as to shock the court’s

sense of justice. State v. Payne, 10-46 (La. App. 5 Cir. 01/25/11), 59 So.3d 1287,

1294, writ denied, 11-0387 (La. 09/16/11), 69 So.3d 1141. The court of appeal will

not set aside a sentence for excessiveness if the record supports the sentence

imposed. State v. Berry, 08-151 (La. App. 5 Cir. 06/19/08), 989 So.2d 120, 131,

writ denied, 08-1660 (La. 04/03/09), 6 So.3d 767.

A trial judge has broad discretion when imposing a sentence, and a reviewing

court may not set a sentence aside absent a manifest abuse of discretion. State v.

Smith, 01-2574 (La. 01/14/03), 839 So.2d 1, 4. On review, the relevant question is

not whether another sentence might have been more appropriate, but whether the

trial court abused its broad sentencing discretion. State v. Brown, 04-230 (La. App.

5 Cir. 07/27/04), 880 So.2d 899, 902 (citing Smith, supra). 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. Id. There is no requirement that specific

matters be given any particular weight at sentencing. State v. Smith, 12-580 (La.

App. 5 Cir. 12/27/12), 106 So.3d 1265, 1270, writ denied, 13-0333 (La. 09/13/13),

120 So.3d 280. A trial court should consider the defendant’s personal history such

as age, family ties, marital status, health, employment record, as well as his prior

19-KA-62 24 criminal record, seriousness of offense and the likelihood of rehabilitation in

determining an appropriate sentence. State v. Pettus, 10-777 (La. App. 5 Cir.

05/24/11), 68 So.3d 28, 30, writ denied, 11-1326 (La. 12/02/11), 76 So.3d 1176.

The trial court is in the best position to consider the aggravating and mitigating

circumstances of a particular case, and therefore is given broad discretion in

sentencing. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7, 16.

For those offenders convicted of second degree murder in Louisiana, La. R.S.

14:30.1 mandates a sentence of life imprisonment at hard labor without benefit of

parole, probation, or suspension of sentence. However, the United States Supreme

Court in Miller held that a State’s sentencing scheme that mandates life

imprisonment without parole for those offenders under the age of eighteen at the

time they committed a homicide offense, violates the Eighth Amendment prohibition

against cruel and unusual punishment.11 State v. Stewart, 13-639 (La. App. 5 Cir.

01/31/14), 134 So.3d 636, 639, writ denied, 14-0420 (La. 09/26/14), 149 So.3d 260.

The Miller court did not establish a categorical prohibition against life imprisonment

without parole for juveniles, but rather required that a sentencing court consider an

offender’s youth and attendant characteristics as mitigating circumstances before

deciding whether to impose the harshest penalty for juveniles who have committed

a homicide offense. State v. Williams, 12-1766 (La. 03/08/13), 108 So.3d 1169; See

also State v. Fletcher, 49,303 (La. App. 2 Cir. 10/01/14), 149 So.3d 934, 943, writ

denied, 14-2205 (La. 06/05/15), 171 So.3d 945, cert. denied, --U.S.--, 136 S.Ct. 254,

193 L.Ed.2d 189 (2015).

As a result of Miller, the Louisiana legislature enacted La. C.Cr.P. art. 878.1

and La. R.S. 15:574.4 E, both of which provide procedural guidelines for parole

eligibility regarding offenders who commit first or second degree murder when they

11 In Montgomery v. Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the United States Supreme Court held that Miller was retroactive.

19-KA-62 25 were under eighteen years of age. Neither Louisiana jurisprudence nor Louisiana

statutory law requires the trial judge to list every aggravating or mitigating

circumstance considered as long as the record reflects that the trial judge adequately

considered the guidelines of La. C.Cr.P. art. 894.1. State v. Moore, 37,935 (La. App.

2 Cir. 01/28/04), 865 So.2d 227, 234, writ denied, 04-507 (La. 07/02/04), 877 So.2d

142. See also State v. Baker, 14-0222 (La. App. 1 Cir. 09/19/14), 154 So.3d 561,

566, writ denied, 14-2132 (La. 05/15/15), 170 So.3d 159; State v. Brooks, 49,033

(La. App. 2 Cir. 05/07/14), 139 So.3d 571, 576, writ denied, 14-1194 (La. 02/13/15),

159 So.3d 459.

In State v. Montgomery, 13-1163 (La. 06/28/16), 194 So.3d 606, the

Louisiana Supreme Court, on remand from the United States Supreme Court, found

that the factors listed in La. C.Cr.P. art. 878.1 B are not exhaustive and suggested

that the trial courts consider other factors they may deem relevant when making their

determination as to parole eligibility.

The record shows that the trial court considered all of the aggravating and

mitigating factors when sentencing defendant to life imprisonment without the

possibility of parole.12 The trial court considered defendant’s youth at the time of

the offenses and considered the testimony from defendant’s expert, Dr. Sonnier. As

evidenced by the trial court’s extensive reasons, the trial court clearly considered all

mitigating circumstances, including the fact that defendant acted in concert with a

twenty-four-year-old co-defendant and the influence that an older peer may have on

a younger counterpart. Based on the facts of the case and the violence and brutality

of the crimes committed, the trial court believed denial of parole eligibility was

warranted. The trial court took cognizance of the crime spree committed by

defendant over the span of a few weeks where the lives of the people he committed

12 Where there is a mandatory sentence, there is no need for the trial court to justify, under La. C.Cr.P. art. 894.1, a sentence it is legally required to impose. See State v. Davis, 07-544 (La. App. 5 Cir. 12/27/07), 975 So.2d 60, 71, writ denied, 08-0380 (La. 09/19/08), 992 So.2d 952.

19-KA-62 26 crimes against were put in jeopardy, noting that defendant was “responsible for a

terrifying wave of crimes directed toward the Hispanic community which resulted

in murder, armed robbery, conspiracy to commit those crimes, the death of Bruce

Lutcher and the lifetime injury of paralysis to Fausto Alvarez.” La. C.Cr.P. art. 878.1

C permits consideration of aggravating and mitigating evidence that is relevant to

the charged offense or the character of the victim as well as the criminal history of

an offender. The trial court correctly considered all crimes committed by defendant

including the attempted armed robbery and attempted murder of Fausto Alvarez,

who is now permanently confined to a wheelchair due to the shooting committed by

defendant.

The trial court stated that despite being afforded opportunities for

rehabilitation, defendant continued to commit acts of violence, including the murder

of Mr. Lutcher, which occurred “sixty days”13 after completion of defendant’s

probation. The trial court considered Dr. Sonnier’s opinion regarding defendant’s

potential for rehabilitation and the evidence presented, and concluded defendant was

not willing or able to understand the concept of probation and what it means. The

trial court found defendant to be “one of the worst offenders of the court that I have

seen in forty-six years of criminal law practice, that this case is one of the worst

cases likewise I have ever seen.”14

Defendant has failed to rebut the presumption of the constitutionality of his

sentence. The trial court complied with the principles set forth in Miller and

adequately considered the factors set forth in Article 894.1 prior to imposing

13 We note that the trial court stated that the murder of Mr. Lutcher occurred “60 days” after completion of defendant’s probation, but this does not appear to be an accurate statement. Dr. Sonnier testified that the murder of Mr. Lutcher occurred “six weeks” after defendant completed his probation. Additionally, the defendant’s juvenile record shows that an order terminating defendant’s probation was signed on October 21, 2015 and Mr. Lutcher was murdered on November 23, 2015 per the indictment.

14 Life sentences without parole eligibility have previously been imposed in comparable cases. See State v. Smoot, 13-453 (La. App. 5 Cir. 01/15/14), 134 So.3d 1, writ denied, 14-0297 (La. 09/12/14), 147 So.3d 704; State v. Brooks, 49,033 (La. App. 2 Cir. 05/07/14), 139 So.3d 571, writ denied, 14-1194 (La. 02/13/15), 159 So.3d 459.

19-KA-62 27 defendant’s life sentence. See La. C.Cr.P. art. 878.1. Considering the testimony

adduced at the Miller hearing, the violence and brutality of the crimes committed,

defendant’s complete disregard for the lives of his armed robbery/attempted armed

robbery victims and murder victim, Mr. Lutcher, the trial court’s careful review of

the circumstances of the case and thorough reasons, and all mitigating factors

including defendant’s youth, we find the trial court did not abuse its broad discretion

in sentencing defendant. We further find that the sentence imposed is not grossly

disproportionate to the severity of the offense and therefore is not unconstitutionally

excessive. Accordingly, this argument is without merit.

In his fifth assignment of error, defendant argues his counsel rendered

ineffective assistance as to his sentencing for second degree murder (count one)

under Miller. Defendant claims his counsel should have filed a presentencing

motion on the grounds that the evidence suggested he was convicted as a principal,

and as such, his culpability does not rise to the same level as the person who fired

the gun. Defendant acknowledges that his trial counsel did retain an expert, but

claims that under the Louisiana Public Defender Board’s (LPDB) published

guidelines for Miller cases, it is required that at least one of the attorneys on the

defense team be specially trained to handle a Miller sentencing hearing. He

maintains that such a specialized attorney would have conducted an “exhaustive

mitigation investigation,” and claims that the LPDB guidelines acknowledge a

Miller sentencing hearing should be treated like a capital sentencing hearing.

The Sixth Amendment to the United States Constitution and Article I, § 13 of

the Louisiana Constitution safeguard a defendant’s right to effective assistance of

trial counsel. A defendant asserting an ineffective assistance claim must show: 1)

that defense counsel’s performance was deficient; and 2) the deficiency prejudiced

defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). The defendant has the burden of showing that “there is a reasonable

19-KA-62 28 probability that, but for counsel’s unprofessional errors, the results of the proceeding

would have been different.” Id.

Generally, an ineffective assistance of counsel claim is most appropriately

addressed through an application for post-conviction relief filed in the district court,

where a full evidentiary hearing can be conducted, if necessary, rather than by direct

appeal. State v. Hoppens, 13-948 (La. App. 5 Cir. 04/23/14), 140 So.3d 293, 300-

01, writ denied, 14-1856 (La. 09/11/15), 176 So.3d 414. However, when the record

contains sufficient evidence to rule on the merits of the claim and the issue is

properly raised in an assignment of error on appeal, it may be addressed in the

interest of judicial economy. Id.

We conclude that the record contains sufficient evidence to rule on the merits

of defendant’s ineffective assistance of counsel claim and we therefore will address

it in the interest of judicial economy. For the reasons stated herein, we find

defendant’s ineffective assistance of counsel claim is without merit.

First, defendant does not cite any authority which directly supports his

contention that a Miller hearing should be considered the functional equivalent of a

capital sentencing hearing, and neither of the findings in Miller or Montgomery hold

this to be true. See Fletcher, supra.

Second, we find defendant has failed to show how his counsel’s performance

was deficient for failing to file any presentencing motions regarding his culpability

in the murder. While his counsel did not file any presentencing motions, defendant’s

counsel filed an extensive motion to reconsider sentence after imposition of

defendant’s life sentence without parole eligibility. In his motion, counsel argued

that the evidence failed to establish defendant’s role in the murder and defendant

should not have been sentenced to life without parole eligibility when he did not fire

the weapon that killed Mr. Lutcher. The trial court denied defendant’s motion

finding this basis did not warrant a life sentence with parole eligibility. Defendant

19-KA-62 29 failed to show how raising this argument prior to sentencing, as opposed to after,

constituted deficient performance by his trial counsel or how the alleged deficiency

prejudiced him. Further, defendant provided no legal support for the assertion that

a principal convicted of second degree murder bars a life sentence without parole

eligibility.15

There is also no indication in the record, as defendant suggests, that he was

prejudiced by his counsel’s failure to file a presentencing motion which may have

“educated” the court on the necessary legal considerations that should have been

applied during sentencing, which he claims would have resulted in a sentence of life

with parole eligibility. The trial court listened to defendant’s expert, Dr. Sonnier,

and the legal arguments made by the parties, after which it rendered a lengthy and

detailed finding in support of the imposition of defendant’s life sentence without

parole eligibility. It is clear that the trial court fully understood and complied with

the Miller sentencing mandates, and thus defendant has failed to show his counsel

was deficient.

Finally, while defendant references the LPDB published guidelines which he

maintains set forth certain public defender requirements for Miller cases, such

guidelines do not exist by operation of law. The record shows that defendant’s

counsel did conduct an exhaustive mitigation investigation. Defendant’s counsel

retained an expert who authored an expert report and testified regarding her meetings

with defendant, her opinions regarding defendant’s juvenile status, the impact his

age may have had on the crimes committed, and his chance at rehabilitation.

Defendant’s juvenile records were also introduced into evidence by defense counsel

at the Miller hearing, and lengthy arguments were made as to the mitigating

15 There are no degrees of principals. All persons aiding and abetting in the commission of a felony are “principals” and are punishable alike. State v. Capaci, 154 So. 419, 493 (La. 1934). See also State v. Davis, 15-118 (La. App. 5 Cir. 06/30/15), 171 So.3d 1223, writ denied, 15-1492 (La. 09/22/17), 227 So.3d 820.

19-KA-62 30 evidence. There is no mandate that a juvenile defendant must have a comprehensive

family interview, a prenatal history investigation, a developmental history

documented, a full medical history ascertained, a history of substance abuse

documented, a social history obtained, and/or a psychological evaluation completed

before sentencing. State v. Allen, 17-685 (La. App. 5 Cir. 05/16/18), 247 So.3d 179,

185, writ denied, 18-1042 (La. 11/05/18), 255 So.3d 998 (citing State v. Dove, 15-

0783 (La. App. 4 Cir. 05/04/16), 194 So.3d 92, 117, writ denied, 16-1081 (La.

6/29/17), 222 So.3d 48, cert. denied, --U.S.--, 138 S.Ct. 1279, 200 L.Ed.2d 475

(2018)). Additionally, defendant failed to specify what information might have been

obtained from the alleged “exhaustive mitigation investigation” that he claims was

not conducted; therefore, he did not show how he was prejudiced. See State v. Davis,

596 So.2d 358, 364 (La. App. 4 Cir. 1992), writ denied, 604 So.2d 965 (La. 1992).

Based on the foregoing, we find defendant has not shown any deficiency in

his counsel’s performance or that any alleged deficiency prejudiced him.

Accordingly, this argument is without merit.

In his sixth assignment of error, defendant argues the consecutive sentences

imposed on his non-homicide convictions totaling 197 years are equivalent to a life

sentence without parole, and because of his juvenile status, are unconstitutional

under Graham v. Florida.16

As previously discussed, both the Eighth Amendment to the United States

Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition

of excessive and cruel punishment. Lawson, supra. A sentence is considered

excessive, even when it is within the applicable statutory range, if it is grossly

disproportionate to the seriousness of the offense or imposes needless and

purposeless pain and suffering. In reviewing a sentence for excessiveness, the

16 Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

19-KA-62 31 appellate court must consider the punishment and the crime in light of the harm to

society, and gauge whether the penalty is so disproportionate as to shock the court’s

sense of justice. Payne, supra.

With respect to the law regarding Eighth Amendment jurisprudence defining

what constitutes excessive punishment of juveniles, the United States Supreme

Court in Roper v. Simmons, 543 U.S. 551, 574, 125 S.Ct. 1183, 161 L.Ed.2d 1

(2005) decided the Constitution prohibits the execution of a defendant for capital

murder committed as a juvenile. In Graham the United States Supreme Court

announced a new categorical rule when it concluded that the “Constitution prohibits

the imposition of a life without parole sentence on a juvenile offender who did not

commit homicide.” Graham, 560 U.S. at 82, 130 S.Ct. at 2034. The United States

Supreme Court then held in Miller that a sentencing scheme which requires life

without parole for a defendant convicted of a homicide committed as a juvenile is

unconstitutional.

In this case, defendant’s sole argument is that his consecutive non-homicide

sentences totaling 197 years are equivalent to a life sentence without parole, and

because of his juvenile status, are unconstitutional under Graham.

The United States Supreme Court declined to grant certiorari in Bunch v.

Smith, 685 F.3d 546 (6th Cir. 2012), cert. denied, Bunch v. Bobby, 569 U.S. 947,

133 S.Ct. 1996, 185 L.Ed.2d 865 (2013), a case in which the Sixth Circuit held that

a state court’s determination that a juvenile offender’s consecutive, fixed-term

sentences totaling 89 years for robbery, kidnapping, and rape, did not violate the

Eighth Amendment’s prohibition against cruel and unusual punishment, and was not

contrary to or an unreasonable application of clearly established federal law as

determined by the Supreme Court in Graham, and thus did not warrant federal

habeas relief.

19-KA-62 32 In Bunch, the juvenile defendant argued that his consecutive, fixed-term

sentences were the functional equivalent of life without parole in violation of

Graham. The Sixth Circuit found that Graham does not establish that consecutive,

fixed-term sentences for juveniles who have committed multiple non-homicide

offenses are unconstitutional when they amount to the practical equivalent of life

without parole eligibility. The Sixth Circuit observed that the Graham court

expressly stated it was only concerned with those juvenile offenders sentenced to

life without parole eligibility for a single non-homicide offense and did not analyze

sentencing laws regarding multiple consecutive sentences for non-homicide offenses

committed by juveniles. While acknowledging the juvenile defendant’s eighty-nine

year sentence might be the functional equivalent of life without parole eligibility,

the Sixth Circuit noted that no federal court had extended Graham’s holding beyond

its plain language as to a juvenile who received consecutive sentences. The Sixth

Circuit held that until the United States Supreme Court has ruled that consecutive

sentences which result in an aggregate sentence exceeding a juvenile offender’s life

expectancy are deemed to be cruel and unusual, the juvenile defendant’s eighty-nine

year sentence did not violate clearly established federal law.17

Louisiana jurisprudence interpreting Graham has held that Graham only

provides parole eligibility for defendants with: (1) actual life sentences;18 and (2) a

single term-of-years sentence which, standing alone, constitutes an “effective” life

sentence.19 Therefore, if a juvenile defendant, such as defendant in this case, is

17 The Sixth Circuit also mentioned Miller and found that Miller also did not warrant a different result. It found that the Miller court did not, as in Graham, address juvenile offenders who received consecutive sentences for non-homicide offenses. 18 See State v. Brown, 12-0872 (La. 5/07/13), 118 So.3d 332 (“the Eighth Amendment’s prohibition of cruel and unusual punishment forbids the imposition of life in prison without parole for juveniles omitting non- homicide crimes, applies only to sentences of life in prison without parole, and does not apply to a sentence of years without the possibility of parole”); State v. Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939 (appropriate remedy for sentences of life without parole under Graham is to delete parole eligibility restriction). 19 Ex rel. Morgan v. State, 15-0100 (La. 10/19/16), 217 So.3d 266 (a sentence of life without the possibility of parole for a single non-homicide offense committed by a juvenile constitutes cruel and unusual punishment and violates holding in Graham).

19-KA-62 33 sentenced to consecutive sentences without parole for multiple convictions, which

in their aggregate exceeds a defendant’s life expectancy, Graham is not implicated.

We therefore find defendant’s consecutive sentences totaling 197 years are not

unconstitutionally excessive under Graham. Accordingly, this argument is without

merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to the mandates of 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). The following errors patent require

correction.

First, the record fails to reflect that defendant was properly advised of the time

period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8. 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.

See State v. Perez, 17-119 (La. App. 5 Cir. 08/30/17), 227 So.3d 864.

Therefore, we 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. art. 914 or 922.

Secondly, the September 15, 2017 Uniform Commitment Order (“UCO”)

does not specifically state that defendant’s sentences are to be served consecutively,

even though it provides for a total term of 197 years. We do note that the December

3, 2018 UCO created after the Miller sentencing hearing does provide for the

consecutive nature of the sentences. Also, the September 15, 2017 UCO does not

contain the date of the offense for count five; however, it is contained in the

December 3, 2018 UCO. Additionally, both the September 14, 2017 sentencing

19-KA-62 34 minute entry and September 15, 2017 UCO, as well as the December 3, 2018

sentencing minute entry and UCO, indicate that defendant’s sentence on count ten

(illegal use of weapons) is to be served without benefit of probation, parole, or

suspension of sentence when the transcript does not, and a restriction on benefits is

not provided for under the statute. See La. R.S. 14:94 A and B. Additionally, the

September 15, 2017 UCO provides that defendant was convicted on count seven of

“14:64.3 ARMED ROBBERY” and the UCO should state that he was convicted of

“armed robbery with a firearm.”

Accordingly, we remand the matter for correction of the sentencing minute

entries and UCOs to accurately reflect the noted discrepancies. The Clerk of Court

for the 24th Judicial District Court is directed to transmit the original of the corrected

UCOs to the appropriate authorities in accordance with La. C.Cr.P. art. 892 B(2) and

the Department of Corrections’ legal department. See State v. Doucet, 17-200 (La.

App. 5 Cir. 12/27/17), 237 So.3d 598, writs denied, 18-77 (La. 10/08/18), 253 So.3d

789 and 18-196 (La. 11/05/18), 255 So.3d 1052, cert. denied, --U.S.--, 139 S.Ct.

2676, 204 L.Ed.2d 1079 (2019).

Lastly, the September 14, 2017 sentencing minute entry indicates defendant’s

“conviction is designated by the court as a crime of violence”; however, the

transcript does not reflect that the trial court made such a designation. Certain crimes

“shall always be designated by the court in the minutes as a crime of violence.” La.

C.Cr.P. art. 890.3 C. Among the crimes that shall always be designated by the court

in the minutes as crimes of violence are: “(3) second degree murder . . . [and] (20)

armed robbery; use of a firearm; addition penalty.” La. C.Cr.P. art. 890.3 C.

Therefore, based on the record, some of defendant’s convictions must be designated

as crimes of violence in the September 14, 2017 minute entry. See State v.

Holloway, 15-1233 (La. 10/19/16), 217 So.3d 343, 346 n.3. The minute entry does

not reflect which convictions were designated as crimes of violence; therefore, we

19-KA-62 35 remand for correction of the September 14, 2017 sentencing minute entry to

designate specifically which convictions are crimes of violence. See State v. Parnell,

17-550 (La. App. 5 Cir. 5/16/18), 247 So.3d 1116.

DECREE

For the reasons stated herein, defendant’s convictions and sentences are

affirmed. The matter is remanded with instructions as stated herein.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS

19-KA-62 36 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. 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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19-KA-62 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE WILLIAM C. CREDO, III JUDGE PRO TEMPORE (DISTRICT JUDGE) DARREN A. ALLEMAND (APPELLEE) TERRY M. BOUDREAUX (APPELLEE) MEGHAN H. BITOUN (APPELLANT)

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