State of Louisiana Versus Justin A. Hutchinson

• Court: Louisiana Court of Appeal
• Decided: August 18, 2023
• Docket: 22-KA-536
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 22-KA-536

VERSUS FIFTH CIRCUIT

JUSTIN A. HUTCHINSON COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 20-6202, DIVISION "B" HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING

August 18, 2023

CORNELIUS E. REGAN JUDGE

Panel composed of Judges Stephen J. Windhorst, Cornelius E. Regan, Pro Tempore, and Jason Verdigets, Pro Tempore

AFFIRMED; REMANDED WITH INSTRUCTIONS CER SJW JMV COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Juliet L. Clark Thomas J. Butler

COUNSEL FOR DEFENDANT/APPELLANT, JUSTIN A. HUTCHINSON Holli A. Herrle-Castillo REGAN, PRO TEMPORE, J.

Defendant, Justin A. Hutchinson, appeals his convictions and sentences for

second degree murder, obstruction of justice, and two counts of possession of a

firearm by a convicted felon. For reasons stated more fully below, we affirm.

STATEMENT OF THE CASE

On March 11, 2021, a Jefferson Parish Grand Jury indicted defendant with

the second degree murder of Rashad Lewis in violation of La. R.S. 14:30.1 (count

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

counts of possession of a firearm by a convicted felon in violation of La. R.S.

14:95.1 (counts 3 and 4). Defendant entered pleas of not guilty at arraignment.

On May 22, 2022, defendant filed a motion in limine to prohibit the State

from introducing evidence regarding a .40 mm casing recovered from the scene of

a subsequent shooting in Bogalusa, Louisiana, that matched .40 mm casings found

on the scene in the instant case. Defendant also sought to prohibit the State from

using his Instagram posts to establish his presence in Bogalusa approximately two

weeks prior to the subsequent shooting. Following oral argument on May 23,

2022, the trial court denied the motion in limine in part and allowed the State to

introduce evidence regarding the casing found at the scene of the subsequent

shooting in Bogalusa. However, the trial court granted the second part of

defendant’s motion in limine and prohibited the State from introducing defendant’s

Instagram records indicating defendant’s prior presence in Bogalusa.

On May 24, 2022, trial commenced before a twelve-person jury, and on May

26, 2022, the jury unanimously found defendant guilty as charged on all four

counts. On July 28, 2022, defendant filed a Motion for Post-Verdict Judgment of

Acquittal, a Motion for New Trial, and a Motion for Appeal. On July 29, 2022, the

trial court denied defendant’s Post-Verdict Judgment of Acquittal and Motion for

New Trial. After defendant waived delays, the court sentenced him to life in

22-KA-536 1 prison at hard labor without the benefit of parole, probation, or suspension of

sentence on count one, forty years imprisonment at hard labor on count two to run

consecutively to counts one, three and four, and twenty years imprisonment at hard

labor without the benefit of parole, probation, or suspension of sentence on counts

three and four to run concurrently with count one. The trial court also waived all

mandatory fines.

On August 1, 2022, the trial court granted defendant’s Motion for Appeal.

Defendant raises the following counseled assignments of error on appeal: 1) the

trial court erred by allowing evidence that the casing found in Bogalusa matched

casings from the firearm used in this case; and 2) the evidence against him was

insufficient because the State failed to prove his identity as the perpetrator of the

crimes. Defendant also raises pro se assignments of error arguing that the State’s

use of peremptory challenges to exclude potential African-American jurors from

the jury violated Batson. Defendant further argues that the trial court erred by not

ruling on whether the State provided race-neutral reasons for its peremptory

challenges, and erred by allowing the trial to proceed without a fair-cross section

of Jefferson Parish’s population.

FACTS

This matter involves a homicide that occurred around 10:00 p.m. on October

21, 2022 in the parking lot of 3J’s Bar on Lapalco Boulevard in Marrero,

Louisiana. Detective Dwain Rullman, with the Jefferson Parish Sheriff’s Office

(JPSO) juvenile division, testified that on the night of the homicide, he was driving

an unmarked unit on Lapalco Boulevard when he heard gunshots as he drove past

3J’s Bar. He slowed down and rolled down his window to get a better view. He

observed a large group of people running from the parking lot. He then saw a

black male wearing a yellow shirt and blue and white pants run behind his car with

22-KA-536 2 a firearm in his hand. Detective Rullman radioed police dispatch and provided a

description of the armed suspect.

Detective Rullman then made a U-turn and chased the suspect down Betty

Boulevard in the Lincolnshire neighborhood. The detective lost sight of the

suspect when he jumped the fence at 2024 Betty Boulevard. Detective Rullman

discovered a firearm in the backyard of the residence, and remained at the scene

until the firearm was photographed and collected.1 At trial, Detective Rullman

identified defendant as the same person he saw running behind his vehicle with a

gun on the night of the murder.

Retired Detective Donald Zanotelli testified that at the time of the homicide,

he was employed with JPSO in the homicide division. He was the first homicide

detective on the scene at 3J’s Bar, and he found a 2016 black Mercedes SUV in the

parking lot with the driver’s side door open. The victim, Rashad Lewis, was

slumped over in the driver’s seat with multiple gunshot wounds to the head, torso,

and left leg.2 Detective Zanotelli was not able to locate any witnesses at the scene

because everyone fled after the shooting. The detective explained that he collected

surveillance video from cameras located in the parking lot of the bar and was able

to identify the first three numbers of the license plate for a Nissan Altima leaving

the scene. Detective Zanotelli then used the automatic license plate recognition

system (ALPR) to identify Mitchell Videau as the owner of the vehicle. He further

testified that the surveillance video captured Mr. Videau with the victim and

defendant immediately prior to the homicide.

1 Sergeant Robert Pellegrin, assigned to the JPSO crime scene division, testified that he photographed and collected a High-Point 9 mm Luger from the backyard of 2024 Betty Boulevard on the night of the homicide. He swabbed the grip of the gun for DNA analysis and submitted the gun and swabs to the crime lab. 2 Dr. Michael Defatta testified as an expert in the field of forensic pathology. Dr. Defatta concluded that the victim died of multiple gunshot wounds to the abdomen, pelvis and head, and the manner of death was homicide.

22-KA-536 3 Detective Anthony Buttone with the JPSO homicide division served as the

lead detective for this matter. He reviewed three different camera angles of the

scene from the surveillance video obtained from 3J’s Bar. During his testimony,

he narrated the video and identified Mr. Videau, who was wearing all black

clothing and a baseball cap that night. Detective Buttone explained that at the time

of the shooting, the victim was sitting in the driver’s seat of his vehicle, and the

shooter was standing outside of the open driver’s side door wearing a yellow shirt

and blue and white pants. The video did not show clear details of the shooter’s

face. The shooter suddenly began firing at the victim and then leaned into the

vehicle and removed what appeared to be a firearm. The shooter then ran to the

front of the vehicle and used the second firearm he removed from the vehicle to

continue shooting at the victim. The shooter ran from the scene and in the

direction of the Lincolnshire neighborhood. Detective Buttone testified that

Tuskegee Street, where defendant lived, is also located in the Lincolnshire

neighborhood. According to Detective Buttone, neither the victim nor Mr. Videau

were in possession of a firearm at the time of the shooting based on his review of

the surveillance video.

After the shooter fled, the video showed Mr. Videau return to the scene and

lean into the victim’s vehicle. Mr. Videau also picked up items from the ground

outside of the vehicle. Mr. Videau testified at trial that he picked up his cell phone

and denied removing any items from the victim’s vehicle.3 The video also showed

Mr. Videau removing an AK-47 from his vehicle after the shooting and walk away

from the scene. The video then showed Mr. Videau returning without the firearm.

Detective Buttone further testified that investigators recovered fired 9 mm

casings from the area next to the driver’s side of the victim’s vehicle, and eight .40

3 Doug Freese, an assistant district attorney with the Jefferson Parish District Attorney’s Office, testified regarding the Mr. Videau’s plea deal and indicated that Mr. Videau admitted to removing a cell phone from near the victim’s body, as well as a cell phone that was dropped on the ground.

22-KA-536 4 caliber casings from the front of the vehicle. They searched for the victim’s cell

phone, but they could not locate it. A Saints bag located on the victim contained a

black digital scale, two cigar packs, two foil packs, marijuana, a white powder

substance, and a .40 caliber pistol magazine containing live projectiles.

Detective Buttone further explained that after identifying Mr. Videau from

his vehicle’s license place, they obtained a warrant for his arrest based on the

surveillance video for removing evidence from the scene and for being a convicted

felon in possession of a firearm. At the time of his arrest on October 23, 2020, Mr.

Videau was wearing the same baseball cap seen in the surveillance video. Mr.

Videau initially indicated that he did not want to speak to investigators. Detective

Buttone then obtained a search warrant for Mr. Videau’s DNA and after reviewing

the warrant and seeing that it involved an investigation for second degree murder,

Mr. Videau requested to speak with the investigators. Mr. Videau initially spoke

to Detective Sergeant Thomas Gai in a recorded interview and told the detective he

did not see the shooting. Mr. Videau later stated that the shooter’s nickname was

“Jeeky,” and he resided in the Lincolnshire neighborhood with his grandmother on

Tuskegee Drive.

Detective Buttone also testified that he received the name of Larry Garrison

as a potential suspect. Detective Buttone asked Detective Blaine Howard to view

the video surveillance because he was familiar with Mr. Garrison. Detective

Howard indicated the shooter was not Mr. Garrison. Detective Buttone also placed

a photograph of Mr. Garrison in a lineup and presented it to Mr. Videau using the

sheriff’s office “double-blind” procedure.4 Mr. Videau did not make an

identification in the lineup with Mr. Garrison. Using the nickname “Jeeky,”

4 Detective Buttone explained the double-blind procedure for photographic line ups. He testified that the lineup is provided to an officer who does not know the names of the people in the lineup. The lineup is placed in a closed, unmarked folder, and provided to the witness. The officer then leaves the witness or victim alone in the room to open the folder and view the line up to determine whether he or she can make an identification.

22-KA-536 5 Detective Buttone then searched databases and found an individual with the name

of Justin Hutchinson who resided on Tuskegee Drive in the Lincolnshire

neighborhood. He placed Mr. Hutchinson’s photograph in a lineup and provided it

to Sergeant Gai. Detective Buttone testified that they utilized the same double-

blind procedure and Mr. Videau identified defendant as the shooter.

Detective Buttone also obtained a search warrant and return for an Instagram

account with the name “Jeeky_Money.” Detective Buttone reviewed the records

he received from Instagram, and explained at trial that “Justin_ABM@icloud.com”

is the registered email for the Instagram account, and “remy_bully504” is the

“vanity name” for the account. Detective Buttone testified that a message dated

October 21, 2020, from “shes.neek_Im.nee_30” asked, “Wats up Justin[?]”

Another message dated October 22, 2020, from remy_bully504 stated, “I’m at 3

jays across from tha hood[.]” Detective Buttone also testified regarding a picture

posted to the account that shows defendant wearing what appears to be the same

shoes as seen in the surveillance video and holding a yellow t-shirt that appears to

show the same unique logo as seen in the surveillance video. A message from

munchiemunchh dated October 2, 2020, states, “Hey Justin[.]” Further, in a

message dated October 16, 2020, remy_bully504 stated, “Real bihh yu going out

2night 3 jays I’m bringing tha good back[.]”

Detective Buttone testified that he obtained an arrest warrant for defendant

for second degree murder, obstruction of justice, and two counts of convicted felon

in possession of a firearm based on the two firearms used during the shooting.

Detective Buttone explained that the first firearm the shooter used was a Hi-Point 9

mm pistol, and nine cartridges were ejected from that firearm. The firearm

recovered on Betty Boulevard was a 9 mm Hi-Point pistol. He testified that they

never located the second firearm which defendant removed from the victim’s

vehicle. However, investigators subsequently received information that the second

22-KA-536 6 gun was used in a shooting in Bogalusa, Louisiana, five days after the homicide at

issue in this case.

Detective Buttone finally testified that on November 13, 2020, defendant

arrived at the investigations bureau and surrendered. Detective Buttone obtained a

search warrant for defendant’s DNA. However, the DNA analyzed from the scene

did not match defendant’s DNA.5

Kortnie Layrisson, an expert in the field of latent print processing and

comparison, testified that at the time of the homicide, she was a member of the

JPSO homicide response team. She testified that she fingerprinted the victim at the

scene in order to obtain his identity. She also processed the victim’s vehicle and

obtained fingerprints belonging to the victim. She identified a print on the rear

door of the victim’s vehicle on the driver’s side as belonging to Mitchell Videau.

She was not able to lift any prints from the Hi-Point 9 mm pistol.

Mitchell Videau testified at trial that in October 2020, he was having a party

at 3J’s Bar for his twin brother who passed away. Prior to the shooting, the victim

was sitting out in front of 3J’s in his car with the driver’s side door open and

talking with Mr. Videau, defendant and several other individuals. Mr. Videau

knew the victim because they were incarcerated together and he called the victim

“Woo.” Mr. Videau stated that he was standing in between defendant and the

victim, when defendant shot the victim. Mr. Videau did not see the victim with a

gun, and he did not hear the victim make any threats toward defendant. He further

stated that to his knowledge, the victim did not have issues with defendant, and

they did not have an altercation prior to the shooting.

5 April Solomon, a DNA analyst with JPSO Regional DNA Laboratory, testified as an expert in forensic DNA analysis. She explained that she conducted a DNA analysis on the swab of the 9 mm firearm recovered from the backyard on Betty Boulevard and a reference sample from defendant. DNA was present on the firearm, but it was insufficient to produce a valid profile.

22-KA-536 7 After the shooting, Mr. Videau ran inside the club. When he came back

outside, he picked up his phone that he dropped during the shooting from the

ground. He then checked on the victim, but he did not appear to be alive. He

denied removing evidence from the scene or from the victim’s car. However, Mr.

Videau admitted that after the shooting, he removed an assault rifle from his

vehicle and placed it in the trunk of a vehicle driven by someone he did not know.

He explained that he removed the firearm because he was a convicted felon who

could not possess a firearm.6 Mr. Videau then left the scene before police arrived.

Two days after the shooting, police arrested Mr. Videau for obstruction of

justice and possession of a firearm by a convicted felon. He was taken to the

investigations bureau for questioning. Mr. Videau initially told the police that he

did not see the shooting because he was worried about incriminating himself. Mr.

Videau eventually told the investigators the shooter’s name and told them he lived

on Tuskegee in Lincolnshire. He further testified that investigators presented him

with two lineups on two different days. He did not identify anyone in the first

lineup. In the second lineup, he identified defendant as the person who shot the

victim. Mr. Videau stated that he was not promised or offered anything to pick

defendant out of the lineup and he was not told which photograph to select.

Mr. Videau also testified about his plea agreement with the District

Attorney’s Office. He explained that in exchange for telling the truth about the

shooting at issue, the District Attorney’s Office dismissed his charge for felon in

possession of a firearm, and he entered a guilty plea to the charge of obstruction of

justice. As part of the agreement, the District Attorney’s Office did not file a

habitual offender bill and Mr. Videau received a one year sentence. He

acknowledged that if he did not cooperate by testifying truthfully at trial, the

6 He explained that he had two prior felony convictions for possession of cocaine and a conviction for attempted murder.

22-KA-536 8 District Attorney’s Office would refile the felon with a firearm charge. On the day

of his trial testimony, Mr. Videau had served his one-year sentence and was in jail

for new unrelated charges for resisting an officer with force or violence, possession

of marijuana, violating a restraining order, and simple criminal damage. He

testified that the prosecutor did not offer or promise anything for testifying at trial

in relation to his new pending charges.

Detective Sergeant Gai testified that at the time of the homicide, he was a

sergeant with the JPSO homicide division. He was present when Mr. Videau was

brought to the criminal investigations bureau and explained that Mr. Videau

initially did not want to make a statement. While investigators were making

arrangements to obtain an arrest warrant, Mr. Videau was waiting in Detective

Sergeant Gai’s office and subsequently expressed a desire to provide information.

Detective Sergeant Gai explained that he conducted the interview because he

previously interacted with members of the Videau family as a patrolmen and Mr.

Videau felt comfortable speaking with him. Mr. Videau advised him during the

interview that “Jeeky” was the shooter, and he lived with his grandmother on

Tuskegee in the Lincolnshire area.

Detective Sergeant Gai also testified regarding the photographic lineups he

provided to Mr. Videau. He explained that he did not know which photograph was

of the suspect in the lineup, but subsequently learned that Mr. Videau selected a

photograph of defendant in the second lineup. He confirmed that he did not offer

or promise anything to Mr. Videau to select a picture in either lineup.

Alexis Rivera testified as an expert in the field of firearm and tool mark

examination. She explained to the jury that just as each person has unique

fingerprints, every firearm has specific markings that identify to a specific gun.

She testified that she collected nine 9 mm fired cartridge casings from the scene by

the driver’s door of the victim’s vehicle. She also analyzed the 9 mm Hi-Point

22-KA-536 9 firearm recovered from the backyard on Betty Boulevard by conducting a test fire.

She concluded that the 9 mm casings collected from the scene were all fired from

the Hi-Point 9 mm firearm recovered from the Betty Boulevard backyard. She also

collected eight .40 caliber fired cartridge casings from the scene near the front of

the victim’s vehicle. She entered her findings regarding these casings into the

National Integrated Ballistics Information Network (NIBIN) database and later

learned that the .40 caliber casings matched a casing collected in Bogalusa a few

days after the instant matter.7

Officer Dona Quintanilla with the JPSO crime laboratory testified as an

expert in the taking and analysis of latent fingerprints. She stated that she took

defendant’s fingerprints prior to trial and compared them to a ten-print “AFIS”

card connected to a certification packet for defendant’s February 2, 2015

conviction of aggravated assault with a firearm. After comparison, she opined that

both sets of fingerprints are for the left thumb of defendant.

DISCUSSION

Sufficiency of the Evidence

We first address defendant’s counseled assignment of error that the evidence

was insufficient to uphold the convictions.8 Defendant argues that the State failed

to prove his identity as the shooter because the shooter’s face was not clear in the

videotape and the only witness who identified defendant was offered a deal to

testify.

7 Detective Buttone testified that NIBIN is a computer database containing ballistics evidence and that the computer can match firearm identifications. He testified that it was his understanding that once the computer makes a preliminary hit, a firearms identification expert reviews the information and confirms the match. 8 When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992).

22-KA-536 10 The constitutional standard for sufficiency of the evidence is whether, upon

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could find that the State proved all of the essential elements of the crime

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

L.Ed.2d 560 (1979); State v. Baham, 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d

558, 566, writ denied, 15-40 (La. 3/24/16), 190 So.3d 1189. In its determination of

whether any rational trier of fact would have found the defendant guilty, a

reviewing court will not re-evaluate the credibility of witnesses or re-weigh the

evidence. State v. Lawrence, 21-733 (La. App. 5 Cir. 11/2/22), 362 So.3d 807,

816. The credibility of a witness is within the sound discretion of the trier of fact,

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

With respect to count one, second-degree murder is “the killing of a human

being ... [w]hen the offender has a specific intent to kill or to inflict great bodily

harm.” La. R.S. 14:30.1(A)(1). For count two, La. R.S. 14:130.1(A) defines the

crime of obstruction of justice in relevant part, as:

[A]ny of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding in this Section:

(1) Tampering 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. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:

(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers . . . .

Finally, with respect to the final two counts of possession of a firearm by a

convicted felon, La. R.S. 14:95.1 provides that it is unlawful for any person who

has been convicted of a felony, including aggravated assault with a firearm, to

possess a firearm or carry a concealed weapon. To support a conviction for

22-KA-536 11 possession of a firearm by a convicted felon, the State must prove: (1) the

possession of a firearm; (2) a previous conviction of an enumerated felony; (3)

absence of the ten-year statutory period of limitation; and (4) general intent to

commit the offense. State v. Bell, 21-599 (La. App. 5 Cir. 6/22/22), 343 So.3d

914, 922, writ denied, 22-1179 (La. 9/27/22), 347 So.3d 155.

On appeal, defendant does not argue that the State failed to prove the

elements of the crimes for which he was convicted, but rather claims that the State

failed to prove his identity as the shooter. Accordingly, this Court need not

address the sufficiency of the evidence as it relates to the statutory elements of

second degree murder, obstruction of justice and convicted felon with a firearm.

See State v. Mason, 10-284 (La. App. 5 Cir. 1/11/11), 59 So.3d 419, 426, writ

denied, 11-306 (La. 6/24/11), 64 So.3d 216.9 Rather, encompassed within proving

the elements of an offense is the necessity of proving the identity of the defendant

as the perpetrator. State v. Garrison, 19-62 (La. App. 5 Cir. 4/23/20), 297 So.3d

190, 203, writ denied, 20-547 (La. 9/23/20), 301 So.3d 1190, cert. denied, -- U.S. -

-, 141 S.Ct. 2864, 210 L.Ed.2d 967 (2021). Where the key issue is identification,

the State is required to negate any reasonable probability of misidentification to

carry its burden of proof. Id. at 204. In the absence of internal contradiction or

irreconcilable conflicts with physical evidence, the testimony of one witness, if

believed by the trier of fact, is sufficient to support a conviction. State v. Clifton,

17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 703.

Defendant argues that Mr. Videau’s identification of defendant as the

shooter was not credible because Mr. Videau intentionally misidentified defendant

in order to obtain a deal from the State. In State v. Dominguez, 14-1 (La. App. 5

Cir. 8/28/14), 148 So.3d 648, 655-56, writ denied, 14-2033 (La. 5/22/15), 170

9 Our review of the evidence introduced at trial reflects that the State presented sufficient evidence to establish the essential statutory elements of the offenses at issue.

22-KA-536 12 So.3d 982, the defendant also challenged the credibility of a witness under similar

circumstances. The witness testified that he had a plea deal with the State in

exchange for his testimony against the defendant. In affirming the defendant’s

conviction, this Court reasoned that the plea deal goes to the witness’ credibility

and the jury found the witness’ testimony to be believable and gave it the

credibility they believed it deserved. This Court further concluded that there was

“nothing in the record to show that the jury abused its discretion in its assessment

of credibility, or made factual findings which were manifestly erroneous.” Id. at

656.

Mr. Videau was seen in the surveillance video standing next to the shooter at

the time of the murder. Mr. Videau identified “Jeeky” as the shooter and selected

defendant as the shooter from a photographic lineup. The jury observed Mr.

Videau and heard his testimony. The jury also viewed the video from the shooting,

as well as the video of Mr. Videau’s lineup identification. The jury heard

testimony regarding Mr. Videau’s prior convictions, pending charges, and his plea

agreement for his testimony in the instant case. Based on the unanimous verdicts

for all four counts, the jury obviously found Mr. Videau to be credible, despite any

inconsistencies in his testimony and the plea agreement he received.

The video surveillance also captured the shooter firing the first gun at the

victim nine times and shooting the second gun at the victim eight times. Detective

Rullman testified that he heard gunshots, and he saw a suspect running from 3J’s

Bar with a firearm in his hand. The suspect was wearing a yellow shirt and blue

and white pants. During trial, Detective Rullman identified defendant as the

suspect running from the scene. Detective Buttone testified regarding an

Instagram account registered to the email “Justin_ABM@icloud.com.” The

Instagram records contained a photograph of defendant wearing the same shoes as

seen in the surveillance video. In that same photograph, defendant is holding a

22-KA-536 13 yellow shirt similar to the shirt worn by the shooter in the surveillance video.

Messages to the Instagram account also referenced the name, Justin, and indicate

that the account holder went to 3J’s Bar.

Based on this evidence, we conclude that the evidence of defendant’s

identity as the perpetrator of the crimes negated any possibility of

misidentification. We find no merit to defendant’s claim that the State presented

insufficient evidence to sustain his convictions beyond a reasoned doubt.

Evidence of Matching Casing

In his second counseled assignment of error, defendant argues that the trial

court erred by denying his motion in limine in part and allowing testimony

regarding the matching casing found in Bogalusa. Defendant contends that this

testimony constituted evidence of another crime governed by the admissibility

standard set forth in La. C.E. art. 404(B)(1). He further argues that the trial court

erred in allowing the evidence because it was highly prejudicial and not probative

of any issue in the case.

At the hearing on defendant’s motion in limine, the State argued that it

intended to introduce evidence regarding the Bogalusa casing to prove the

obstruction of evidence charge filed against defendant. The State argued that La.

C.E. art. 404(B) did not apply because it did not intend to offer evidence of the

casing to prove that defendant was involved in the subsequent shooting in

Bogalusa. Rather, the State argued that it intended to offer the evidence to show

although it was never located by police, a gun used in this murder was removed

from the scene because matching casings were found at both scenes. Therefore,

the State argued that the evidence of the casing was not evidence of another crime

or bad act by defendant governed by La. C.E. art. 404(B).

“The fundamental rule in Louisiana governing the use of evidence of other

crimes, wrongs, or acts is that such evidence is not admissible to prove that the

22-KA-536 14 accused committed the charged crime because he has committed other such crimes

in the past.” State v. Williams, 09-48 (La. App. 5 Cir. 10/27/09), 28 So.3d 357,

363, writ denied, 09-2565 (La. 5/7/10), 34 So.3d 860.

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.

Rulings on the admissibility of evidence will not be disturbed, absent an

abuse of discretion. State v. Gatson, 21-156, 21-157 (La. App. 5 Cir. 12/29/21),

334 So.3d 1021, 1038.

In its ruling granting the motion in limine in part, the trial court explained

that it agreed with defendant’s argument to the extent the State sought to introduce

any evidence subject to La. C.E. art. 404(B) due to the late notice of the evidence.

The trial court particularly agreed to exclude any evidence regarding defendant’s

presence or connection with the shooting in Bogalusa agreeing that “[w]e have not

had any sort of 404 pretrial motion practice in this particular case on this issue.”

However, the trial court ruled that it would allow evidence that a casing recovered

in the Bogalusa shooting matched one of the guns used in the instant matter as

evidence that the gun was in Bogalusa after it was removed from the scene in the

instant matter. It is apparent from this ruling that the trial court did not consider

this limited evidence to be evidence of “other crimes, wrongs or acts” subject to

the admissibility standard set forth in La. C.E. art. 404(B)(1) because it did not

involve another crime committed by defendant.

22-KA-536 15 We agree that the disputed evidence is not subject to La. C.E. art. 404(B).

The prohibition against other crimes pertains to other crimes by the defendant, not

other crimes of someone else. State v. Trim, 12-115 (La. App. 5 Cir. 10/16/12),

107 So.3d 656, 665, writ denied, 12-2488 (La. 4/19/13), 111 So.3d 1030; State v.

Joseph, 96-187 (La. App. 5 Cir. 11/14/96), 685 So.2d 237, 242. The trial court

excluded all evidence regarding defendant’s connection with Bogalusa where the

subsequent shooting occurred and only allowed evidence regarding the matching

casings to prove the gun was removed from the scene of the current case for

purposes of the obstruction of justice charge. This limited evidence was relevant

to establish an element of the offense and was more probative than prejudicial.

The trial court did not abuse its discretion by allowing limited testimony regarding

the matching casing found in Bogalusa.

Even if the trial court erred in admitting the evidence at trial, the erroneous

admission of other crimes evidence is subject to harmless error analysis. Gatson,

334 So.3d at 1039. In determining harmless error it is “not whether, in a trial that

occurred without the error, a guilty verdict would surely have been rendered, but

whether the guilty verdict actually rendered in the trial was surely unattributable to

the error.” State v. Massey, 11-358 (La. App. 5 Cir. 3/27/12), 97 So.3d 13, 29, writ

denied, 12-991 (La. 9/21/12), 98 So.3d 332.

The evidence at trial established defendant’s identity as the perpetrator of all

the offenses. The surveillance video from 3J’s Bar captured the shooting. Mr.

Videau identified defendant as the shooter. Detective Rullman identified

defendant as the person he saw running with a firearm in his hand and wearing the

same clothing as seen in the surveillance video. We find that the guilty verdicts

were unattributable to the error, if any. Therefore, this assignment of error lacks

merit.

22-KA-536 16 Batson Challenges10

Defendant also filed a pro se supplemental brief raising additional

assignments of error relating to two Batson challenges he made during jury

selection. Defendant argues that despite a significant number of potential African-

American jurors on the panel, no African-American jurors served on the jury that

convicted him. He contends that most of the African-American jurors were

removed from the panel by means of challenges for cause granted by the trial

court, and then the State exercised peremptory challenges to strike the few

remaining African-American jurors.11 Defendant contends that the trial court erred

by denying his Batson challenges and allowing the State to use peremptory

challenges strike jurors for racially motivated reasons. Defendant further argues

that the trial court did not specifically rule on whether the State provided race-

neutral reasons for striking jurors and contends that he did not receive a fair trial

because the jury venire was not comprised of a fair cross-section of the Jefferson

Parish population. Upon complete review of the record, we find no error in the

trial court’s ruling denying defendants’ Batson challenges.

The Equal Protection Clause of the United States Constitution prohibits

purposeful discrimination on the basis of race in the exercise of peremptory

challenges. U.S. Const. Amend. 14; State v. Chester, 19-363 (La. App. 5 Cir.

2/3/21), 314 So.3d 914, 978, writ denied, 21-350 (La. 6/8/21), 317 So.3d 321. In

Batson, supra, the United States Supreme Court held that an equal protection

violation occurs when a party uses a peremptory challenge to exclude a prospective

juror on the basis of race. The Louisiana legislature codified the Batson decision

in La. C.Cr.P. art. 795(C), which provides that no peremptory challenge made by

10 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). 11 Defendant does not raise any issues on appeal with respect to the challenges for cause granted by the trial court.

22-KA-536 17 the State or the defendant shall be based solely upon the race or gender of the juror.

State v. Massey, 11-357 (La. App. 5 Cir. 3/27/12), 91 So.3d 453, 467, writ denied,

12-991 (La. 9/21/12), 98 So.3d 332.

In Batson, the United States Supreme Court established a three-step analysis

to be applied when addressing a claim that peremptory challenges of prospective

jurors were based on race. State v. Jacobs, 07-887 (La. App. 5 Cir. 5/24/11), 67

So.3d 535, 554, writ denied, 11-1753 (La. 2/10/12), 80 So.3d 468, cert. denied,

568 U.S. 838, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). Under Batson and its

progeny, a defendant challenging a peremptory strike must first establish a prima

facie case of purposeful discrimination. Second, if a prima facie showing is made,

the burden shifts to the State to articulate a neutral explanation for the challenge.

Third, the trial court then must determine if the defendant has carried the ultimate

burden of proving purposeful discrimination. State v. Sparks, 88-17 (La. 5/11/11),

68 So.3d 435, 468.

A trial judge’s demand that a prosecutor justify his peremptory strikes is

tantamount to a finding that the defense has produced enough evidence to support

an inference of discriminatory purpose to establish a prima facie case. State v.

Daniels, 18-307 (La. App. 5 Cir. 6/11/19), 275 So.3d 380, 393. The burden then

shifts to the prosecutor to present a race-neutral explanation for striking the juror in

question. Id. at 392. This second step does not demand an explanation that is

persuasive, or even plausible. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769,

1771, 131 L.Ed.2d 834 (1995). The race-neutral explanation must be one that is

clear, reasonably specific, legitimate and related to the case at bar. Daniels, 275

So.3d at 394. At the second step of the Batson inquiry, the issue is the facial

validity of the prosecutor’s explanation. Purkett, supra. Unless a discriminatory

intent is inherent in the prosecutor's explanation, the reason offered will be deemed

race-neutral. Id.

22-KA-536 18 The trial court must then determine whether the defendant has established

purposeful discrimination. Jacobs, 67 So.3d at 555. It is at this third step that

implausible explanations offered by the prosecution “may (and probably will) be

found to be pretexts for purposeful discrimination.” Id. (quoting Purkett, 514 U.S.

at 768, 115 S.Ct. at 1771). The final step of Batson involves evaluating the

persuasiveness of the justification proffered, but the ultimate burden of persuasion

regarding racial motivation rests with, and never shifts from, the opponent of the

strike. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771.

A defendant challenging a peremptory strike has the burden to establish

discrimination in jury selection. In determining whether a defendant has met his

burden of showing purposeful racial discrimination in the State’s exercise of

peremptory challenges, the proper question is whether the proof offered by the

defendant, when weighed against the State’s proffered race-neutral reasons, is

strong enough to convince the trier of fact that the claimed discriminatory intent is

present. State v. Bourgeois, 08-457 (La. App. 5 Cir. 12/16/08), 1 So.3d 733, 738,

writ denied, 09-336 (La. 11/6/09), 21 So.3d 298. Thus, the focus of the Batson

inquiry is upon the intent of the prosecutor at the time he exercised his peremptory

strikes. State v. Florant, 12-736 (La. App. 5 Cir. 5/23/13), 119 So.3d 635, 642,

writ denied, 13-1451 (La. 1/10/14), 130 So.3d 319. If a prosecutor’s proffered

reason for striking an African-American panelist applies just as well to an

otherwise similar nonblack panelist who is permitted to serve, that is evidence

tending to prove purposeful discrimination to be considered at Batson’s third step.

Chester, 314 So.3d at 981 (citing Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct.

2317, 2325, 162 L.Ed.2d 196 (2005).

Whether there has been intentional racial discrimination is a question of fact.

State v. Edwards, 06-643 (La. App. 5 Cir. 3/27/07), 957 So.2d 185, 194, writ

denied, 08-1988 (La. 8/29/08), 989 So.2d 110. A trial judge’s findings on a claim

22-KA-536 19 of purposeful discrimination are entitled to great deference by the reviewing court

because they depend largely on credibility evaluations. Massey, 91 So.3d at 469.

Credibility can be measured by factors including the prosecutor’s demeanor, how

reasonable or how improbable the explanations are, and whether the proffered

reason has some basis in accepted trial strategy. State v. Wilson, 09-170 (La. App.

5 Cir. 11/10/09), 28 So.3d 394, 405, writ denied, 09-2699 (La. 6/4/10), 38 So.3d

299. The trial judge has the advantage of observing the characteristics and

demeanor of the attorneys and prospective jurors. Therefore, the court occupies

the best position for deciding whether a discriminatory objective underlies the

peremptory challenges. Id. “[A] trial court’s ruling on the issue of discriminatory

intent must be sustained unless it is clearly erroneous.” Snyder v. Louisiana, 552

U.S. 472, 477, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008).

Review of Voir Dire

The parties selected the jurors from three panels of potential jurors that

comprised a venire of 60 potential jurors. The venire included 43 white jurors, 16

African-American jurors, and one Hispanic juror. During voir dire, 11 African-

American jurors and 6 white jurors were struck from the panel based on cause

challenges raised by the parties and granted by the trial court. The State exercised

8 of its 12 peremptory challenges and defendant exercised all 12 of his peremptory

challenges. The State used 4 of its 8 peremptory challenges to excuse African-

American jurors from the panel, and defendant argues that the State’s peremptory

challenges used to strike these African-American jurors were racially motivated.12

On the first panel of potential jurors, the State used peremptory challenges to

strike Charman Broome, an African-American male; Rita Hellemn, a white female;

12 Defendant contends that the State exercised 5 peremptory challenges against African-American jurors, including Mary Lewis, Charman Broome, Charlene Pastore, Tiffany Cook, and Joseph Vail. However, the trial court and parties agreed that Mr. Vail was a white male. Further, defendant did not raise a Batson challenge or any argument against the State’s use of a peremptory challenge to strike Mr. Vail.

22-KA-536 20 and Charlene Pastore, an African-American or Hispanic female.13 After the trial

court excused the challenged jurors from the first panel, the trial court cleared the

courtroom of potential jurors. Defendant then raised pro se concerns that the jury

selection proceedings occurred off the record. The trial court and defendant’s

counsel explained to defendant that the jury selection proceedings were done at the

bench so that the jurors could not hear and further explained that the proceedings at

the bench were recorded. Defendant then indicated pro se that he wanted to raise a

Batson challenge because all African-American jurors were struck from the first

panel. The trial court recessed for a break and when jury selection commenced

again, neither defendant nor his counsel indicated that they wanted to proceed with

a Batson challenge.

With respect to the second panel of potential jurors, the State exercised

peremptory challenges to strike Joseph Vail, a white male; Brittany Stevens, a

white female; and Mary Lewis, an African-American female. After the State

exercised a peremptory challenge to strike Ms. Lewis, defendant raised a Batson

challenge. Defendant argued that the trial court struck most of the African-

American jurors from the first two panels by granting challenges for cause and the

State exercised peremptory challenges to strike the three remaining African-

American jurors on the first two panels. Before the trial court ruled as to whether

defendant made a prima facie showing of purposeful discrimination, the State

volunteered the following reasons for striking the three African-American jurors:14

So as to Juror No. 328, Mr. Broome. Mr. Broome said, among other things, he has a son incarcerated for drugs that has a conviction out of Jefferson Parish. He also stated that he’d like to hear from the defendant. He was shaking his head no when asked if he could evaluate the law if there’s no DNA or fingerprints. He also said if no blood, not you, not guilty. So among many things, that’s why the State sought to use a peremptory on Mr. Broome.

13 The trial court indicated and parties agreed that Ms. Pastore was African-American or Hispanic. 14 As noted above, when a prosecutor offers a neutral reason, the question of whether the defendant made a prima facie showing of intentional discrimination is rendered moot. Sparks, 68 So.3d at 473.

22-KA-536 21 * * * So Ms. Pastore, she had -- she said when asked about life whether or not she can vote guilty or not guilty even if the State has proven it beyond a reasonable doubt knowing the defendant would receive a life sentence, she said, and I quote, “I don’t know.” Given the fact that this is a life, mandatory life case, obviously the State used a peremptory for that.

Further, she said, if a gun was in a holster and someone said, I’m going to kill you, that automatically means a threat. She had a nephew that had a murder charge -- (inaudible).

*** Ms. Lewis, as we’re well aware, we actually tried to cause her based on the fact that we don’t think she’d be fair and impartial. She said that she cannot judge, her religious beliefs, she doesn’t believe she can judge. And I asked her specifically the same question Defense counsel asked her, because I knew that’s what he was going to ask is and she said that if she had to vote, she would vote not guilty. I know that she’s rehabilitated. Our concern, obviously, is this is a life sentence and we don’t want someone who’s going to waffle back and forth between whether or not they can put guilty or not guilty based on a life sentence.

The trial court found that the State provided valid reasons for exercising its

peremptory challenges and denied the Batson challenge.

Jury selection continued on the following day and the State used its seventh

peremptory challenge to strike Tiffany Cook, an African-American female.

Defendant re-urged his Batson challenge and the State volunteered the following

reasons for exercising a peremptory challenge to strike Ms. Cook: “So Ms. Cook

has a brother who was convicted of second degree murder. She also stated that

holding a gun is enough for her of a threat. She refers to like kill or be killed, was

sort of her position.” The trial court determined that these were also valid reasons

for exercising a peremptory challenge and denied defendant’s second Batson

challenge.15

Defendant argues that the State’s peremptory challenges were racially

motivated because no African-American jurors served on the jury despite the fact

15 Ultimately, the jury included one Hispanic female, six white men, and five white females.

22-KA-536 22 that there were 17 potential African-American jurors. Our review of the record

indicates that there were 16, not 17, potential African-American jurors and the trial

court granted 11 challenges for cause with respect to these potential jurors. As

previously indicated, defendant does not challenge the trial court’s rulings on the

cause challenges and Batson does not apply to challenges for cause. State v.

Gilbert, 520 So.2d 1184, 1188 (La. App. 5th Cir. 1988); State v. Darville, 20-1135,

p. 10 (La. App. 1 Cir. 10/18/21), 2021 WL 4844343. However, defendant

contends that the State’s use of peremptory challenges to strike the remaining

potential African-American jurors from the panel was racially motivated.

Before we analyze defendant’s arguments regarding each individual

African-American juror, we first address defendant’s assignment of error that the

trial court “erred by not specifically ruling on whether the State provided race-

neutral reasons.” Defendant points to the following ruling denying his first Batson

challenge in support of his argument: “At this time, I do find that the State has

provided a valid reason or reasons for exercising its peremptory challenges, so the

Batson challenge is denied.” Defendant appears to complain that the trial court did

not state the phrase “race-neutral” in its rulings. Defendant did not separately brief

this assignment of error and fails to cite to any authority in support of his

argument. To the contrary, Batson does not require a trial court to provide specific

findings regarding proffered race-neutral reasons. See Sparks, 68 So.3d at 475.

Further, after reviewing the record, it is apparent that the trial court applied the

appropriate standards in its decision to deny defendant’s Batson challenge. This

assignment of error is without merit.

Potential Juror Mary Lewis

Defendant argues that the State’s reasons for exercising its peremptory

challenge against Ms. Lewis are invalid because the State simply re-urged the same

grounds it argued to the trial court when it moved to challenge Ms. Lewis for

22-KA-536 23 cause. Defendant argues that the trial court’s denial of the State’s reasons for

requesting a challenge for cause against Ms. Lewis “canceled out” the State’s

ability to raise these same reasons as grounds for exercising a peremptory

challenge. Defendant does not cite to any legal authority for this argument.

Clearly, this argument is baseless as different standards apply when a trial court

evaluates reasons provided for a challenge for cause and a peremptory challenge.16

Furthermore, a race-neutral explanation for exercising a peremptory challenge does

not need to rise to the level justifying the exercise of a challenge for cause. State v.

Green, 94-887 (La. 5/22/95), 655 So.2d 272, 288.

As explained above, the State told the trial court that it exercised a

peremptory challenge against Ms. Lewis because, in response to the prosecutor’s

questions, Ms. Lewis repeatedly stated that she could not judge or vote to convict

defendant due to her religious beliefs. The prosecutor explained to Ms. Lewis that

she was not asking her to judge the defendant, but rather to judge whether the State

proved its case beyond a reasonable doubt. However, Ms. Lewis persisted in her

position that she could not vote to convict. Later, defense counsel provided the

same explanation and questions to Ms. Lewis and she changed her position by

agreeing that she could judge the State’s case and whether it had proven its case

beyond a reasonable doubt.

The State initially moved to strike Ms. Lewis for cause due to her

inconsistent responses to the same questions from the State and defendant.

Defendant argued in response that Ms. Lewis was sufficiently rehabilitated. The

trial court then called Ms. Lewis to the bench to conduct further questioning due to

her inconsistent responses. When asked by the trial court whether she could vote

to convict defendant in light of her religious beliefs, Ms. Lewis responded that it

would bother her. The State then asked her if she would have trouble voting guilty

16 The grounds for sustaining a challenge for cause are discussed in La. C.Cr.P. arts. 797 and 798.

22-KA-536 24 because defendant would receive a life sentence, and Ms. Lewis again responded

that it would bother her and agreed that it would weigh on her conscience to the

extent that she would not want to vote guilty. However, Ms. Lewis again changed

her position in response to further questioning by defense counsel:

Mr. Thompson: This is just making sure I understand. So once they’ve submitted their evidence, okay, and once the case is done, once we’ve given all our arguments, the Judge is going to tell you what the burden of proof is, he is going to read the law to you. Okay. And he’s going to tell you that if you have found that they have done their job, that they’ve proven their case beyond a reasonable doubt, that you have to find him guilty if they prove their case. So can you follow the law and follow those instructions if the Court instructs you to do that?

Juror No. 285 [Ms. Lewis]: Yeah, I can. I can, you know, but it would be hard, you know.

Mr. Thompson: It’s going to be hard. Obviously, any kind of decision like that is hard.

Juror No. 285 [Ms. Lewis]: Yeah.

Ms. Beckner: Is that going to sway your position is what we’re concerned about. Is that going to be on your conscience and sway your decision one way or the other because you don’t want someone to get a life sentence?

Juror No. 285 [Ms. Lewis]: Well, you know, I would have to see what the evidence is.

The State then moved again to excuse Ms. Lewis for cause “because she’s

given different answers both times,” and expressed uncertainty as to whether Ms.

Lewis could be fair and impartial. The trial court denied the State’s challenge for

cause finding that Ms. Lewis stated that she could follow the law. Later, when

explaining the State’s use of its peremptory challenge to strike Ms. Lewis, the

prosecutor re-urged these same concerns that Ms. Lewis provided inconsistent

22-KA-536 25 responses regarding her ability to judge and to return a guilty verdict involving a

life sentence.

A juror’s reservation about returning a guilty verdict due to religious beliefs

provides sufficient, legitimate, race-neutral grounds for exercising a peremptory

challenge. See State v. Seals, 09-1089 (La. App. 5 Cir. 12/29/11), 83 So.3d 285,

312-13, writ denied, 12-293 (La. 10/26/12), 99 So.3d 53, cert. denied, 569 U.S.

1031, 133 S.Ct. 2796, 186 L.Ed.2d 863 (2013); State v. White, 01-134 (La. App. 5

Cir. 7/30/01), 792 So.2d 146, 151-53, writ denied, 01-2439 (La. 9/13/02), 824

So.2d 1190; State v. Kitts, 17-777 (La. App. 1 Cir. 5/10/18), 250 So.3d 939, 962,

writ denied, 18-872 (La. 1/28/20), 291 So.3d 1057. Similarly, reservations about

convicting a defendant of a crime which carries a mandatory life sentence without

parole provides valid race-neutral grounds to support a peremptory challenge.

Daniels, 275 So.3d at 397.

Here, Ms. Lewis initially stated she could not judge defendant for religious

reasons and also expressed concerns regarding the life sentence. As she was asked

more questions, she indicated she could follow the law but also provided

inconsistent responses. Considering the foregoing, we find the trial court was not

clearly erroneous in denying defendant’s Batson challenge.

Potential Juror Charman Broome

As explained above, Mr. Broome stated during voir dire that his son was

incarcerated for possession of drugs in Jefferson Parish. The prosecutor also asked

Mr. Broome if eyewitness testimony alone without DNA or fingerprint evidence

would be enough for a conviction. Mr. Broome replied, “I mean, not necessarily,

no.” When asked why not, Mr. Broome replied that the witness might not be

telling the truth and he would have to listen to all of the evidence. The prosecutor

later asked if anyone felt like they had to hear from the defendant before they could

deliberate. Mr. Broome explained that he would like to hear defendant’s testimony

22-KA-536 26 to understand his version of the facts. Defendant contends that these grounds do

not constitute race-neutral reasons to exercise a peremptory challenge because Mr.

Broome was rehabilitated on these issues and otherwise provided responses

indicating that he was a well-qualified juror. As previously established, however,

race-neutral reasons for exercising a peremptory challenge do not have to rise to

the level of a challenge for cause.

Furthermore, this Court has found that a juror having a family member with

a criminal record is a race-neutral explanation. Chester, 314 So.3d at 980; State v.

Odoms, 01-1033 (La. App. 5 Cir. 3/26/02), 815 So.2d 224, 235, writ denied, 02-

1185 (La. 11/22/02), 829 So.2d 1037. In Florant, 119 So.3d at 645, this Court

found that the State provided a race-neutral reason when it struck a potential juror

because she stated witness testimony alone would be insufficient for her to find

guilt beyond a reasonable doubt and she would want to see additional evidence.

This Court indicated that a prospective juror’s holding the State to a higher burden

of proof is a valid race-neutral reason for a peremptory strike. See also State v.

McElveen, 10-172 (La. App. 4 Cir. 9/28/11), 73 So.3d 1033, writs denied, 11-2567,

11-2578 (La. 4/9/12), 85 So.3d 692, cert. denied, 568 U.S. 1163, 133 S.Ct. 1237,

185 L.Ed.2d 188 (2013) (Juror needing certain types of evidence such as DNA or

fingerprint evidence to convict constitute race-neutral reasons).

The State provided race-neutral explanations that were specific, related to

the case at bar and not inherently discriminatory. Considering these reasons along

with the arguments raised by defendant, we find that the trial court was not clearly

erroneous in concluding defendant did not carry his burden of proving

discriminatory intent in the State’s exclusion of Mr. Broome.

Potential Juror Charlene Pastore

During voir dire, Ms. Pastore stated that her nephew was murdered four

years ago in Orleans Parish and no suspects were arrested. When initially asked if

22-KA-536 27 this situation would affect her ability to be fair to either the State or defendant, Ms.

Pastore responded, “It still hurts.” When asked again by the State if she could be

fair, Ms. Pastore stated, “I guess yeah” and eventually agreed that she could be fair

after further discussion. Furthermore, Ms. Pastore initially indicated that she did

not know if she could vote to convict defendant knowing that the charge required a

life sentence. Finally, the State questioned jurors regarding their positions on self-

defense as a defense to a murder charge. During questioning by the State, Ms.

Pastore initially indicated that she believed a person was in imminent danger of

harm and could act in self-defense if the other person had a gun in a holster and

stated, “I’m going to kill you” during an argument. The State also raised this

response as a reason for exercising its peremptory challenge.

Defendant argues in response that Ms. Pastore was clear she could put aside

her personal experiences regarding her nephew and that this experience made her

more likely to side with the State. Defendant also argues that this reason was a

pretext for racial motivations because the State did not exercise a peremptory

challenge against a white female, who stated that her child was held up at gunpoint

and no one was ever arrested or prosecuted. Further, defendant asserts that the

State misconstrued Ms. Pastore’s responses regarding her position on self-defense.

As discussed above in our analysis of the State’s peremptory challenge to

Ms. Lewis, reservations about convicting a defendant of a crime which mandates a

life sentence provides valid race-neutral grounds to support a peremptory

challenge. Daniels, supra. In addition, courts have previously found the murder of

a family member of a potential juror to be a race-neutral reason to excuse the

potential juror. See State v. Joseph, 01-360 (La. App. 5 Cir. 10/17/01), 802 So.2d

735, 742, writ denied, 02-232 (La. 12/13/02), 831 So.2d 979. We do not find

purposeful discrimination in the State’s decision not to challenge the juror with a

family member held up at gun point because this situation is different than a crime

22-KA-536 28 involving the murder of a family member. Finally, the evidence indicated that the

victim possessed a gun at the time of the shooting so the State’s concern that Ms.

Pastore would favor the defendant if he argued self-defense at trial was relevant to

the case.

Accordingly, we find that the trial court was not clearly erroneous in

concluding defendant did not carry his burden of proving discriminatory intent in

the State’s exclusion of Ms. Pastore.

Potential Juror Tiffany Cook

During voir dire, Ms. Cook indicated that her brother was convicted of the

attempted murder of his wife in Texas 20 years ago. When asked if she thought

that experience would prevent her from being fair in this case, Ms. Cook replied,

“Not at all. Because if he did it, he was supposed to do the time.”

Later in voir dire, the prosecutor addressed justifiable homicide and self-

defense. After presenting several different scenarios, the following exchange

occurred between the prosecutor and Ms. Cook:

Ms. Schneidau: Who here thinks that me just holding gun and speaking to you maybe in a way that you don’t like is sufficient for you that you would be reasonable in believing you’re in imminent danger of losing your life and that you had to kill me, it’s necessary to kill me?

Juror No. 134 [Ms. Cook]: (Indicating).

Ms. Schneidau: Yes, Ms. Cook, you think that?

Juror No. 134 [Ms. Cook]: Yes. If you were responsible, you wouldn’t talk to me with a gun out. And I don’t -- I mean, you pull the trigger so fast, I’m not going to stand there and wait for you to decide -- I mean, by the time I realize whether or not I’m in danger, I’m dead. If you are responsible with your weapon, you will keep it in the holster; you will not talk to me upset with a gun out. So, yeah, I shoot to protect myself.

Ms. Schneidau: So it’s killed or be killed?

22-KA-536 29 Juror No. 134 [Ms. Cook]: Basically at that time.

After defendant raised a Batson challenge as to Ms. Cook, the prosecutor

explained that it exercised the challenge because Ms. Cook has a brother who was

convicted of second degree murder and Ms. Cook believed that holding a gun is a

threat.17 On appeal, defendant argues that Ms. Cook was a qualified juror and the

State’s reasons were not valid. Defendant further argues that the State’s racial

motives are demonstrated by the fact that the State did not challenge another juror

who stated that she had three cousins who were convicted and one cousin killed by

a JPSO deputy.

As previously provided, this Court has found that a juror having a family

member with a criminal record is a race-neutral explanation. Chester, supra.

Further, the State’s concern regarding Ms. Cook’s position on self-defense was a

relevant and valid concern considering the facts of the case. Finally, we do not

find the State’s decision not to strike the other juror with convicted family

members is evidence of purposeful discrimination. The fact that a prosecutor

excuses one person with a particular characteristic and not another similarly

situated person does not in itself show that the prosecutor’s explanation was a mere

pretext for discrimination. The accepted juror may have exhibited traits which the

prosecutor could have reasonably believed would make him desirable as a juror.

State v. Turner, 16-1841 (La. 12/5/18), 263 So.3d 337, 379, cert. denied, -- U.S. --,

140 S.Ct. 555, 205 L.Ed.2d 355 (2019). The other juror that defendant compares

to Ms. Cook also indicated that she was currently a sitting Jefferson Parish judge.

Accordingly, we find that the trial court was not clearly erroneous by

denying defendant’s Batson challenges.

17 The trial court corrected the State and recognized that Ms. Cook’s brother was convicted of attempted second degree murder.

22-KA-536 30 In his final pro se assignment of error, defendant argues that the trial court

erred by allowing the trial to proceed without a fair cross-section of Jefferson

Parish’s population. The State argues that defendant waived any objection to his

claim regarding the racial composition of the petit jury venire because he did not

file a motion to quash with the trial court.

The proper procedural vehicle for alleging that a jury venire was improperly

drawn, selected, or constituted is a motion to quash. La. C.Cr.P. art. 532(9); State

v. Patton, 22-112 (La. App. 5 Cir. 12/21/22), 355 So.3d 156, 178. A motion to

quash based on the ground that the jury venire was improperly selected should be

filed in writing prior to the beginning of jury selection. Id.; State v. Holliday, 17-

1921 (La. 1/29/20), 340 So.3d 649, 691, cert. denied, -- U.S.--, 141 S.Ct. 1271, 209

L.Ed.2d 10 (2021).

Defendant did not file a motion to quash in the trial court alleging that the

jury venire was improperly drawn or selected. Courts of Appeal will review only

issues that were submitted to the trial court. Uniform Rules-Courts of Appeal,

Rule 1-3. Accordingly, this assignment of error is without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to 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). Upon review, the following errors patent require

corrective action.

A review of the minute entry and transcript of the proceedings on July 29,

2022, reveals that the trial judge did not advise defendant of the prescriptive period

for filing post-conviction relief at his sentencing. If the trial court fails to advise

pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by

informing 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. 8/30/17), 227

22-KA-536 31 So.3d 864, 870. Therefore, we advise defendant that no application for post-

conviction relief, including applications that seek an out-of-time appeal, shall be

considered if filed more than two years after the judgment of conviction and

sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

The record also reveals a conflict between the transcript and the State of

Louisiana Uniform Sentencing Commitment Order (UCO), which reflects the

incorrect date of offenses. The UCO reflects the date for all of the offenses as

“10/22/2020.” However, the record reflects that October 21, 2020 is the correct

date for the offenses. We remand the matter for correction of the date and direct

the Clerk of Court to transmit the corrected UCO to the officer in charge of the

institution to which defendant has been sentenced, as well as to the legal

department of the Louisiana Department of Public Safety and Corrections.

Accordingly, defendant’s convictions and sentences are affirmed that this

matter is remanded for correction consistent with this opinion.

AFFIRMED; REMANDED WITH INSTRUCTIONS

22-KA-536 32 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY AUGUST 18, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-536 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE R. CHRISTOPHER COX, III (DISTRICT JUDGE) JULIET L. CLARK (APPELLEE) THOMAS J. BUTLER (APPELLEE) HOLLI A. HERRLE-CASTILLO (APPELLANT)

MAILED JUSTIN A. HUTCHINSON #632758 HONORABLE PAUL D. CONNICK, JR. (APPELLANT) (APPELLEE) DAVID WADE CORRECTIONAL CENTER DISTRICT ATTORNEY 670 BELL HILL ROAD TWENTY-FOURTH JUDICIAL DISTRICT HOMER, LA 71040 200 DERBIGNY STREET GRETNA, LA 70053