STATE OF LOUISIANA NO. 22-KA-133
VERSUS FIFTH CIRCUIT
JYREASE HAVIES COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 19-7312, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
December 22, 2022
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.
CONVICTIONS AFFIRMED; SENTENCES ON COUNTS FOUR AND FIVE VACATED; REMANDED SJW HJL JJM COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Andrea F. Long Jennifer C. Voss Joshua K. Vanderhooft
COUNSEL FOR DEFENDANT/APPELLANT, JYREASE HAVIES Kevin V. Boshea WINDHORST, J.
Defendant/appellant, Jyrease Havies, appeals his convictions and sentences
for second degree murder, aggravated criminal damage to property, obstruction of
justice, attempted simple escape, and solicitation to commit murder. For the
following reasons, we affirm defendant’s convictions, vacate his sentences on counts
four and five, and remand for resentencing on these counts.
PROCEDURAL BACKGROUND
On December 12, 2019, a Jefferson Parish Grand Jury indicted defendant,
Jyrease Havies, with the second degree murder of Christopher Wilson in violation
of La. R.S. 14:30.1 (count one); aggravated criminal damage to property to 6136
Victorian Drive in violation of La. R.S. 14:55 (count two); obstruction of justice in
violation of La. R.S. 14:130.1 (count three); simple escape in violation of La. R.S.
14:110 (count four); and solicitation to commit the second degree murder of Haylee
Lester in violation of La. R.S. 14:28.1 (count five). Defendant was arraigned and
pled not guilty on December 23, 2019.
On October 13, 2021, trial commenced before a twelve-person jury, and after
a two-day trial, defendant was found guilty as charged on counts one, two, three, and
five and guilty of attempted simple escape on count four. On December 6, 2021, the
trial court sentenced defendant to life imprisonment without the benefit of parole,
probation, or suspension of sentence on count one; imprisonment at hard labor for
15 years on count two; imprisonment at hard labor for 40 years on count three;
imprisonment at hard labor for one year on count four; and imprisonment at hard
labor for 20 years on count five. The trial court ordered defendant’s sentences on
counts one through four to run consecutively. According to the sentencing
transcript, however, the trial court also ordered defendant’s sentence on count four
to run concurrently, and did not specify whether defendant’s sentence as to count
five was to run concurrently or consecutively with his other sentences.
22-KA-133 1 On January 4, 2022, defendant filed a motion to reconsider his sentences and
a motion for appeal. On that same date, the trial court granted the motion for appeal.
A hearing on the motion to reconsider sentences was set for February 4, 2022. On
January 6, 2022, defendant filed a motion for new trial, which was also set for
hearing on February 4, 2022. After a hearing on February 4, 2022, the trial court
denied defendant’s motion to reconsider sentences and the motion for new trial.
Defendant now appeals his convictions and sentences, challenging the
sufficiency of the evidence, the denial of his right to counsel of his choice, and the
denial of his motion for new trial. Defendant also challenges the denial of his motion
to reconsider his sentences and alleges that the consecutive maximum sentences are
unconstitutionally excessive.
THE EVIDENCE
The following evidence was developed at trial involving the August 27, 2019
shooting and death of Christopher Wilson.
Ms. Haylee Lester, defendant’s girlfriend at the time of the crime, testified
regarding the events leading up to the shooting and discussed video surveillance
footage and other exhibits the State introduced into evidence. On the day of the
incident, while Ms. Lester was in class, defendant sent her a text message, which
stated, “I’m going to hit a lick.” She explained that this meant defendant wanted to
rob someone. She did not know whom defendant was going to rob, and she did not
know the victim, but she agreed to drive him. After she picked up defendant and
Coby Harris, she drove to Victorian Drive where they waited for Mr. Wilson to
arrive. Defendant sat in the front passenger seat, and Mr. Harris sat in the back
passenger seat of the vehicle.
When Mr. Wilson arrived at the scene in a gray vehicle and stopped on the
opposite side of the street, defendant exited the vehicle, and soon thereafter, she
heard gunshots. At this point, Mr. Harris exited Ms. Lester’s vehicle, and she drove
22-KA-133 2 off because she was scared. She testified that she did not witness the shooting
because after defendant exited her vehicle, she got on her phone. She confirmed that
both defendant and Mr. Harris had guns, but that Mr. Harris told her his gun had
jammed.
After leaving the crime scene, she went around the block, came back, and saw
defendant running towards her car. Defendant and Mr. Harris got back in her
vehicle, and they left the crime scene. Defendant, however, soon realized that he
had left his cell phone in Mr. Wilson’s car. They attempted to go back to the scene
to find the phone but were unable. Ms. Lester testified that defendant used her phone
that night after the shooting and that he logged into his iCloud account to erase his
phone. During her testimony, she identified text messages that were sent by
defendant from her phone after the shooting on August 27, 2019.
Because defendant was concerned that his sweatshirt had gunpowder residue
on it, he gave the sweatshirt to Mr. Harris when they dropped him off after the
shooting to dispose of it. Ms. Lester confirmed that defendant shot and killed Mr.
Wilson, and testified that defendant admitted to her that he killed Mr. Wilson.
At trial, Ms. Lester acknowledged that after her arrest and during her
interview, she told police detectives that defendant did not do it on purpose, that he
did it in self-defense, and that he went to buy some “weed.” At this interview, she
said that “the dude” pulled his gun on defendant and that they did not know him.
During her testimony at trial, she testified that she lied when she told the officers
that defendant went to get weed because she wanted to protect defendant. Ms. Lester
agreed that her story had changed from a drug deal and self-defense, to an armed
robbery and a murder. She stated that she had nothing to lie about now. She
explained that she was testifying because defendant killed somebody, and she
realized he would not protect her. Ms. Lester also answered questions regarding her
22-KA-133 3 plea agreement, in which she pled guilty to accessory after the fact to second degree
murder and obstruction of justice.
Dr. Ellen Connor, a forensic pathologist with the Jefferson Parish Coroner’s
Office, was accepted as an expert in the field of forensic pathology. Dr. Connor
performed an autopsy of Mr. Wilson, classified his death as a homicide, and
determined that the victim’s cause of death was four gunshot wounds.
Detective Brandon Cheron with the Jefferson Parish Sheriff’s Office testified
that on August 27, 2019, he was dispatched to the 6100 block of Victorian Drive
regarding a black male who had possibly been shot inside a vehicle. Upon his
arrival, Detective Cheron observed a gray vehicle in the front yard of a residence
and found an unresponsive black male, later identified as Mr. Wilson, in the driver’s
seat. He checked for a pulse and signs of life but he did not observe any. He noticed
a firearm underneath the driver’s seat of the vehicle and bullet holes on the side of
the car.
Lorenza McCollum testified that while living on Victorian Drive in August
2019, she went outside when she saw a red car parked in her driveway. Ms.
McCollum later heard somebody screaming, came back outside, and learned that
somebody was just killed. She denied seeing the shooting or being able to identify
anyone. On the same day, an officer knocked on her door and told her that they
believed a bullet went into her house. She testified that the bullet hole and
accompanying bullet were found inside the wall of her den, where her grandson was
present playing a game.
JPSO Detective Harold Wischan testified as the senior investigator for Mr.
Wilson’s homicide investigation. He explained that two locations were involved in
this incident: one where the actual shooting occurred and another where the victim
was located by responding deputies. He stated that photographs of the crime scene
showed that the victim’s vehicle crashed into a white Ford Expedition in the yard at
22-KA-133 4 6124 Victorian Drive. During a search of the victim’s vehicle, he found a yellow
iPhone on the front passenger side, a semi-automatic pistol with an extended
magazine on the front driver side, a red iPhone on the dashboard, the victim’s ID,
and a backpack, which contained a large Ziploc bag with 122 grams of marijuana, a
couple of sandwich bags, and a plastic cup. He indicated that ballistic materials were
found on the ground at 6137 and 6141 Victorian Drive, where the actual shooting
occurred.
JPSO Detective Anthony Buttone testified that on August 27, 2019, he
responded to the scene of Mr. Wilson’s homicide. While there, he questioned
witnesses, who said that they observed a black male, who was wearing a gray hooded
sweatshirt. Following the shooting, the witnesses observed a female driver in a red
car fleeing the area.1
During their investigation, detectives initially believed that Brianna Perrin
was defendant’s girlfriend. When the detectives interviewed Ms. Perrin, they learned
that she was defendant’s former girlfriend, and that he was dating another white
female, Ms. Lester, who had a red sedan. Detective Buttone testified that they
observed a “red Chevy car, four-door sedan” parked outside Ms. Lester’s residence
consistent with the description of the vehicle seen at the crime scene.
Once detectives learned that Ms. Lester was defendant’s girlfriend, they
conducted an interview with her. During Ms. Lester’s interview, detectives located
defendant inside Ms. Lester’s residence at 412 Bluebonnet. They advised defendant
of his Miranda rights and brought him to the investigation bureau. Detective Buttone
provided that he obtained a DNA search warrant for a buccal swab from defendant
and that the swab was sent to the crime lab.
1 Detective Buttone explained that the video-surveillance footage corroborated the witnesses’
statements about the red vehicle. He explained that there were twenty-four clips and that the date/time was “8-27-2019 16:58-56.”
22-KA-133 5 Detective Buttone also testified that while at the bureau, he removed
defendant’s handcuffs, asked defendant if he needed to use the bathroom, and
defendant said that he did. As defendant walked out of the room, Detective Buttone
turned his back to turn off the light. He explained that by the time he turned around,
defendant was “running down the hallway.”
At trial, Ms. Perrin testified that she and defendant once shared a phone, which
he had taken back, and that defendant used a yellow XR phone. Ms. Perrin stated
that she talked with defendant while he was in jail. She relayed that defendant asked
her about Ms. Lester and wanted her to bond Ms. Lester out of jail. She explained
that she did not know why he asked.
Dr. Marcela Zozaya, an expert in forensic DNA analysis and a forensic DNA
analyst with JPSO, received items of evidence in this case to analyze and a DNA
buccal swab from defendant. She determined that the DNA profile obtained from
the yellow iPhone was consistent with the mixture of DNA from at least four
individuals and that there were two major contributors and two minors. She found
that defendant could not be excluded as a major contributor to the DNA mixture.
Dr. Zozaya testified that the DNA profile from the major contributor to the firearm
was greater than 631 million times more likely to be a mixture of DNA from
defendant than a mixture of DNA from two unknown, unrelated individuals.
JPSO Sergeant Soloman Burke testified that he was the supervisor of the
digital forensic unit and was accepted as an expert in the field of mobile device
forensics. Sergeant Burke examined cell phones in connection with the instant case
and generated a report regarding his findings. He was able to extract data from an
iPhone associated with the number 504-***-3618. He confirmed that the Apple ID
for the device was “Haylee.Lester1@gmail.com.” He testified that this cell phone
contained multiple text messages exchanged with the number 504-***-4104 on
August 27, 2019. Sergeant Burke confirmed that they could not extract anything
22-KA-133 6 from the yellow iPhone because someone had wiped it.2 He indicated that the
registered owner of the 504-***-4104 number was “Jyrease Havies.”
JPSO Detective Daniel Whamond, who was accepted as an expert in the field
of mobile device forensics, testified that he extracted data from a red iPhone, and
that the red iPhone contained text messages exchanged with defendant’s number,
504-***-4104. He explained that an attachment was sent from defendant’s number
to the red iPhone, which belonged to Mr. Wilson, of GPS coordinates that pin
pointed the location of 6137 Victorian Drive.
Sergeant Jene Rauch of the Jefferson Parish Crime Laboratory, who was
accepted as an expert in firearms, tool mark examination, and crime scene
reconstruction, investigated the crime scene and performed a crime scene
reconstruction. She testified that a .40 caliber Glock pistol and five .40 caliber
casings were found inside the vehicle found at the scene, and that the casings were
“fired in” that Glock pistol. She also determined that eight 9 mm casings found at
the scene were fired from the same weapon.
Based on her ballistic analysis, Sergeant Rauch concluded that there was
gunshot damage to the vehicle consistent with the front passenger door being open
at the time of the shots. She also concluded that other damage was consistent with
“traveling from the passenger side of the vehicle towards the driver side.” She stated
that projectiles traveled from the front driver side of the vehicle towards the
passenger side as well. She denied that any ballistics evidence recovered on the
scene indicated that there was a third shooter.
The State also called as a witness Sergeant Thomas Gai from the JPSO
Homicide Section who was the lead investigator assigned to Mr. Wilson’s homicide.
Sergeant Gai testified that he obtained a search warrant and participated in its
2 Sgt. Burke explained that an Apple iPhone could be wiped from the device itself or remotely
from an iCloud account on someone else’s phone, a computer, or from a cell phone carrier.
22-KA-133 7 execution on Ms. Lester’s residence, and that they seized the backpacks belonging
to defendant, which contained two extended “30-round glock 9 millimeter
magazines, an ID, and a prescription.” According to Sergeant Gai, the forensic
analysis showed the yellow iPhone was wiped in this case. He testified about the
text messages and phone calls exchanged between the victim’s phone number 504-
***-9913 and defendant’s phone number 504-***-4014 in this case. He explained
that the text messages discussed prices and types of narcotics for sale. Sergeant Gai
stated that the text messages show they continued to talk about meeting up, and that
defendant ultimately sent his location, which was in the 6100 block of Victorian
Drive. He testified that the text messages were consistent with the time that the
incident happened and the time the victim stated it would take to get there.
While the investigation was ongoing, Courtland Hardwick contacted Sergeant
Gai, and said that defendant “actually confessed to a robbery and murder.” Mr.
Hardwick confirmed that he entered into a plea agreement where his charge was
reduced to a lesser grade of theft in exchange for his testimony. He stated that he
bunked with defendant at the jail, and knew him as “Little Jy” and from “the
neighborhood.” Mr. Hardwick indicated that defendant said he killed “that person,”
and that he went out to the location “to lick him, to rob him” because he was broke.
He testified that defendant also told him how the shooting occurred, that his
girlfriend was present the day of the incident, and that defendant said one of his
friends had the murder weapon and took care of it.
Corielle Barnes, another ex-girlfriend of defendant, testified that on August
27, 2019, defendant confessed to her that he killed someone before he went to jail.
She spoke with defendant while he was in jail on the phone, and some of the jail
calls between her and defendant were played for the jury. She had multiple phone
calls with defendant in which he indicated he wanted to have Ms. Lester killed. In
one call, she explained that defendant wanted Ms. Lester bailed out because she was
22-KA-133 8 “talking too much” in jail, and wanted her killed if she bonded out. She testified that
they used code words while talking, and she noted that defendant’s “candy” was his
gun. In other calls, Ms. Barnes stated that someone named “Coby” was also on the
call with them, and that they discussed defendant wanting Ms. Lester killed and
discussed the gun. She said that she received a letter in the mail from defendant with
a map to Ms. Lester’s house but that she ripped the letter up. When defense counsel
asked if defendant said, “Go kill Haylee?” Ms. Barnes responded, “He said it in so
many words, so yes” and “You can see how he was talking, the slang he was saying,
yes.”
Defendant did not testify in this trial; however, he provided his statement,
which was admitted into evidence. In his statement, defendant said that on August
27, 2019, around 10:00 or 11:00 A.M., he woke up with Ms. Lester, and she dropped
him off in Woodmere. He told the detective that she drove a red Chevy. He stated
that he hung out with his friends until 11:00 P.M. He said that he slept in Woodmere.
Defendant stated that he heard about the incident on Victorian Drive through social
media. He denied knowing the individual who was shot. The detective told
defendant that the phone he gave Ms. Perrin was found in the victim’s vehicle on
Victorian Drive.3 Defendant stated, “I don’t know anything about that.” He stated
that he had “some gun” before the summer. He explained that he had two extended
“mags” with 9 mm in them from his “partner” in Woodmere.
Defendant claimed Ms. Lester was lying, and he did not know why she told
them that he was present at the shooting on Victorian Drive. In the video, Ms. Lester
was brought into the interview room. Defendant again denied that he was with her,
and he told her, “I was in Woodmere, huh?” Ms. Lester replied, “Yeah, I bring you
3 Defendant explained that he previously lost his phone at the Walmart in Marrero. He stated that his phone number was 504-***-4144, his phone was an “x,” and he provided the password. When the detective tells him that the phone number came up as 504-***-4014, defendant explained that was the number of the phone he gave Ms. Perrin.
22-KA-133 9 in Woodmere.” Defendant also stated to Ms. Lester, “I lost the phone in Walmart,
huh?” Later, Ms. Lester came back in the interview room, and he told her, “Don’t
let them get in your f**king head.” Defendant told her “to stop talking” repeatedly.
He also said to her that “it was not too late” and to tell them that she was not with
him. In the video, defendant told Ms. Lester, “don’t say nothing.” He also instructed
her to tell them that she dropped him off in Woodmere at 10:00. Defendant told her
“not to give up” and that they do not have enough evidence.
LAW and ANALYSIS
Defendant asserts the following assignments of error: (1) the verdicts of guilty
are contrary to the law and the evidence; (2) he was denied his sixth amendment
right to counsel; (3) the district court erred in the denial of the motion for new trial;
(4) the imposition of consecutive sentences at hard labor without benefit of parole,
probation or suspension or sentence is unconstitutionally excessive; and (5) the
district court erred in the denial of the motion to reconsider sentence.
Sufficiency of the Evidence
In his first assignment of error, defendant contends the evidence is insufficient
to convict him of the second degree murder of Mr. Wilson, aggravated criminal
damage to property, and/or solicitation for murder of Ms. Lester. He argues that the
State failed to prove beyond a reasonable doubt his identity as the perpetrator of the
offenses and that there was no ballistic evidence, no credible eyewitness testimony,
no DNA evidence, and no cell phone evidence that excluded Mr. Harris. Defendant
asserts that his convictions are based on unreliable evidence.
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). Under the Jackson standard, a review of a criminal conviction
22-KA-133 10 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
the prosecution. State v. Flores, 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118,
1122. The credibility of witnesses is within the sound discretion of the trier of fact,
who may accept or reject, in whole or in part, the testimony of any witness. State v.
Miller, 20-182 (La. App. 5 Cir. 12/23/20), 308 So.3d 1246, 1256, writ denied, 21-
233 (La. 4/27/21), 314 So.3d 838. On appeal, the credibility of the witnesses will
not be reassessed. State v. Veillon, 19-606 (La. App. 5 Cir. 7/29/20), 297 So.3d
1091, 1099, writ denied, 20-1297 (La. 2/9/21), 310 So.3d 178.
In order to prove all the elements of an offense, the State must prove 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 factfinder’s discretion only to the extent necessary to
guarantee the fundamental due process of law. State v. Garrison, 19-62 (La. App. 5
Cir. 4/23/20), 297 So.3d 190, 203–04, writ denied, 20-547 (La. 9/23/20), 301 So. 3d
1190, and cert. denied, 210 L. Ed. 2d 967, 141 S. Ct. 2864 (2021).
Defendant was convicted of second degree murder, aggravated criminal
damage to property, obstruction of justice, attempted simple escape, and solicitation
to commit second degree murder. On appeal, defendant only references his
22-KA-133 11 convictions for second degree murder (count one), aggravated criminal damage to
property (two), and solicitation to commit second degree murder (five). Defendant
does not raise an issue relating to the sufficiency of evidence of the statutory
elements of the offenses. Instead, defendant challenges whether the State proved his
identity as the shooter, attacking the credibility of the witnesses and the DNA
evidence. Upon review, the record indicates that a rational trier of fact, viewing the
evidence in a light most favorable to the prosecution, could have found beyond a
reasonable doubt that the evidence was sufficient to prove that defendant was the
perpetrator of the murder.
Defendant asserts that the State failed to eliminate Mr. Harris as the killer and
relies on Ms. Lester’s testimony that she brought both defendant and Mr. Harris to
the crime scene, that both were armed, and that both exited the vehicle.
Ms. Lester’s testimony indicates that when Mr. Wilson arrived to meet
defendant, defendant exited her vehicle and entered Mr. Wilson’s vehicle, but that
Mr. Harris did not exit her vehicle until after the shooting. In addition, the record
indicates that defendant dropped his phone in Mr. Wilson’s car, and that defendant
had to discard his sweatshirt because it likely had gun residue on it. Defendant also
admitted to Ms. Lester that he shot Mr. Wilson.
Ballistics evidence also supports defendant’s conviction for the shooting.
Based on her ballistic analysis, Sergeant Rauch explained that ballistics evidence
recovered at the scene of the murder indicated that it involved two shooters, and the
9 mm casings, which were found outside the vehicle, matched casings recovered
with defendant’s belongings when he was arrested. She explained that a .40 caliber
Glock pistol, which belonged to Mr. Wilson, and .40 caliber casings were located
inside the vehicle. She denied that any ballistic evidence recovered on the scene
indicated that there was a third shooter.
22-KA-133 12 Furthermore, defendant’s yellow iPhone was found on the passenger side of
Mr. Wilson’s vehicle. Dr. Zoyaza testified that defendant could not be excluded as
a major contributor to the DNA mixture obtained from the yellow iPhone. Ms.
Lester’s testimony established that defendant erased his phone, the yellow iPhone,
using her phone following the shooting.
Other evidence at trial that supports defendant’s conviction for the shooting
came from Mr. Hardwick and Ms. Barnes, who both testified that defendant told
them he committed the shooting. Mr. Hardwick encountered defendant when he
bunked with him in the Jefferson Parish Correctional Center. He stated that
defendant told him that he killed “that person.” Mr. Hardwick relayed that defendant
explained that he went out to the location “to lick him, to rob him.” Defendant also
told him that the police were led to him by his phone and the car. He testified that
defendant said he pulled his gun, “the guy bucked,” and defendant shot him.
Finally, defendant challenges Ms. Lester’s credibility because she admitted to
lying in her first interview with detectives and had an interest in testifying against
him to obtain reduced charges. The jury heard all the testimony in this matter,
including information regarding Ms. Lester’s first interview and her plea agreement,
and made a credibility determination after listening to all of the testimony and
evidence. It is not the province of this appellate court to reassess the factfinder’s
credibility determinations.
Considering the law, the testimony, and the evidence admitted at trial, we find
that a rational trier of fact, viewing the evidence in a light most favorable to the
prosecution, could have found beyond a reasonable doubt that the evidence was
sufficient to support defendant’s conviction for second degree murder and
aggravated criminal damage to property.
Also, as to the solicitation for murder conviction, defendant only alleges “the
offense was based on the selective interpretations and ‘belief’” of Ms. Barnes. The
22-KA-133 13 jury chose to believe her testimony that defendant asked her to have Ms. Lester killed
and sent her a map of directions to Ms. Lester’s house. 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. Garrison, 297 So.3d at 204.
Accordingly, we find that a rational trier of fact, viewing the evidence in a
light most favorable to the prosecution, could have found beyond a reasonable doubt
that the evidence was sufficient to support defendant’s conviction for solicitation to
commit murder.
This assignment of error lacks merit.
Motion for New Trial
The trial court sentenced defendant on December 6, 2021. On January 4,
2022, defendant filed a motion to reconsider his sentences and a motion for appeal,
the latter of which the trial court granted that day. On January 6, 2022, defendant
filed a motion for new trial pursuant to La. C.Cr.P. art. 851. On February 4, 2022,
the trial court considered the merits of the motion to reconsider sentences and the
motion for new trial and denied both motions.
La. C.Cr.P. art. 853 mandates, in relevant part, that a “motion for a new trial
must be filed and disposed of before sentence.” State v. Robinson, 14-453 (La. App.
5 Cir. 12/23/14), 167 So.3d 793, 799; State v. Williams, 09-82 (La. App. 5 Cir.
12/29/09), 30 So.3d 975, 976. However, the article contains two exceptions to that
general rule: when a motion for new trial is based on La. C.Cr.P. art. 851 B(3) (newly
discovered evidence), or on La. C.Cr.P. art. 851 B(6) (where the defendant is a
victim of human trafficking). See State v. Brundy, 16-263 (La. App. 4 Cir. 8/24/16),
198 So.3d 1247, writ denied, 16-1748 (La. 6/16/17), 220 So.3d 755.
22-KA-133 14 Because defendant filed his motion for new trial on January 6, 2022, a month
after his sentencing on December 6, 2021, the motion for new trial was untimely. In
his written motion, defendant generally alleges that the trial court should grant him
a new trial pursuant to La. C.Cr.P. art. 851. Defendant also argues that he was denied
his right to counsel of his choice. Considering these arguments, defendant’s motion
for new trial was not based on an enumerated exception. We therefore find that
defendant’s motion was untimely in that it was not filed before his sentencing on
December 6, 2021, and should have been denied on that basis.
Furthermore, pursuant to La. C.Cr.P. art. 916, a trial court is divested of
jurisdiction upon the granting of a defendant’s motion for appeal. State v. Lampkin,
12-391 (La. App. 5 Cir. 5/16/13), 119 So.3d 158, 162, writ denied, State ex rel.
Lampkin v. State, 13-2303 (La. 5/23/14), 140 So.3d 717. Once the trial court is
divested of jurisdiction, it may take only certain specified actions, none of which
include ruling on a motion for a new trial. State v. Johnson, 13-75 (La. App. 5 Cir.
10/9/13), 128 So.3d 325, 327.
Prior to the filing of the untimely motion for new trial, defendant filed a
motion for appeal on January 4, 2022. The court granted the motion on that same
date. Accordingly, at the time of the February 4, 2022 hearing, the trial court lacked
jurisdiction to rule on defendant’s untimely motion for new trial.
Right to Counsel of Choice
Defendant argues that he was denied his right to counsel of choice because he
hired Martin Regan to represent him but he did not represent him at trial. The State
responds that defendant waived the issue by not objecting to his representation in a
timely manner. Specifically, defendant first raised this issue in his motion for new
trial, which was untimely. Nonetheless, the State asserts that this assignment of error
has no merit in that Mr. Regan could not represent defendant at trial because he was
22-KA-133 15 ineligible to practice law at the time; and that defendant had well-prepared and
highly competent counsel at trial, Mr. Tony Angelette from the law firm of Regan
Law, P.L.C. The State also argues that defendant did not terminate Mr. Angelette,
inform the court of his desire to seek other counsel, move to continue the case, or
object to proceeding to trial.
La. C.Cr.P. art. 841 provides that “An irregularity or error cannot be availed
of after verdict unless it was objected to at the time of occurrence.” To preserve the
right to seek appellate review of an alleged trial court error, the party alleging the
error must state an objection contemporaneously with the occurrence of the alleged
error, as well as the grounds for that objection. State v. Lyons, 13-564 (La. App. 5
Cir. 1/31/14), 134 So. 3d 36, 40, writ denied sub nom. State ex rel. Lyons v. State,
2014-0481 (La. 11/7/14), 152 So. 3d 170. The purpose behind the contemporaneous
objection rule is to put the trial judge on notice of an alleged irregularity so that he
may cure the problem and to prevent the defendant from gambling for a favorable
verdict and then resorting to appeal on errors that might easily have been corrected
by an objection. State v. Styles, 96-897 (La. App. 5 Cir. 3/25/97), 692 So. 2d 1222,
1228, writ denied, 97-1069 (La. 10/13/97), 703 So. 2d 609.
When issues are first asserted in an untimely motion for new trial filed by
appellate counsel, they are not timely urged, and the merits of the legal issues are
not properly before an appellate court for review. State v. Williams, 370 So.2d 516,
518 (La. 1979).
In addition, the Louisiana Supreme Court has consistently held that the right
to counsel of choice cannot be manipulated to obstruct the orderly procedure of the
courts and cannot be used to interfere with the fair administration of justice. State
v. Champion, 412 So.2d 1048, 1050 (La. 1982); State v. Johnson, 389 So.2d 1302,
1304 (La.1980); State v. Jones, 376 So.2d 125, 129 (La. 1979); State v. Lee, 364
So.2d 1024, 1028 (La. 1978). Defendant must exercise his right to counsel of his
22-KA-133 16 choice at a reasonable time, in a reasonable manner, and at an appropriate stage of
the proceedings. State v. Seiss, 428 So.2d 444, 447 (La. 1983).
The record does not reflect that defendant asserted any issue with his defense
counsel prior to trial, nor did he object to proceeding to trial with his counsel. The
record only shows that defendant first raised the issue of retained counsel in an
untimely motion for new trial filed on January 6, 2022, after his trial and his
sentencing. Thus, we find that defendant did not make a timely objection to his
counsel.
We therefore find that this assignment of error lacks merit.
Error Patent in Sentencing
We reviewed the record for errors patent pursuant to the mandates of La.
C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d (La. 1975); and State v. Weiland, 556
So.2d 175 (La. App. 5 Cir. 1990), and for the following reasons, we find an error in
the sentencing on counts four and five.
La. C.Cr.P. art. 879 requires the trial court to impose a determinate sentence.
If a sentence is indeterminate in violation of La. C.Cr.P. art. 879, it should be
remanded for the trial judge to clarify the sentence on resentencing. State v. Lai, 04-
1053 (La. App. 5 Cir. 4/26/05), 902 So.2d 550, 562, writ denied, 05-1681 (La.
2/3/06), 922 So.2d 1175. Generally, where there is a discrepancy between the
minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732,
734 (La. 1983).
When initially sentencing defendant, specifically with regard to whether his
sentences would run consecutively or concurrently on counts four for attempted
simple escape and count five for solicitation to commit second degree murder, the
trial court mistakenly referred to count four twice. The sentencing transcript indicates
that the trial court sentenced defendant as follows:
22-KA-133 17 The Court: On Count 1, for second degree murder, the Court shall sentence you to life, without the benefit of probation, parole, or suspension of sentence.
Count 2, the aggravated criminal damage to property, 15 years of hard labor in the Department of Corrections.
For Count 3, the obstruction of justice, it’ll be 40 years at hard labor in the Department of Corrections.
For Count 4, the simple escape, give it one year of hard labor at the Department of Corrections
For Count 5, it’ll be 20 years at hard labor in the Department of Corrections. I want the record to reflect that Counts 1, 2, 3, and 4, will run consecutive to each other, and that on Count 4, I’ll run that concurrent. [Emphasis added.]
Based on the sentencing transcript, the trial court ordered defendant’s
sentence on count four to run both concurrently and consecutively with defendant’s
sentences as to counts one, two, and three, and did not specify whether defendant’s
sentence as to count five was to run concurrently or consecutively with his other
sentences. As a result, we find that defendant’s sentences on counts four and five
are indeterminate.
We also point out that on count four, the defendant was sentenced to one year
at hard labor for “simple escape,” but defendant was convicted of attempted simple
escape. While the sentence intended by the trial court was within the range
prescribed by La. R.S. 14:110 B(4) and La. R.S. 14:27 D(3), the court must sentence
defendant on the crime for which he was convicted, i.e., attempted simple escape.
La. R.S. 14:27 D(3) further provides that the term of imprisonment shall be in
the same manner as the crime attempted. In accordance with La. R.S. 14:110 B(4),
the term of imprisonment on count four “shall not run concurrently with any other
sentence.” To the extent that the trial court intended that defendant’s sentence on
count four would run concurrently with defendant’s sentences on his other counts,
such sentence would not be in accordance with La. R.S. 14:110 B(4).
22-KA-133 18 Considering the foregoing, we find that defendant’s sentences on counts four
and five are indeterminate. We must therefore vacate defendant’s sentences on
counts four and five and remand to the trial court for resentencing on these counts.
In assignments of error four and five, defendant asserts that the imposition of
consecutive sentences at hard labor without the benefit of parole, probation, or
suspension of sentence is unconstitutionally excessive and that the trial court erred
in denying his motion to reconsider sentence. Because defendant’s sentences on
counts four and five are vacated herein, and this case is remanded for resentencing,
we pretermit any discussion or review of defendant’s assignments of error pertaining
to his sentences.
With regard to the Uniform Sentencing Commitment Order, we point out that,
under part “D. Sentence Conditions,” neither “yes” or “no” is checked to determine
whether the sentence in this case “shall be concurrent with any or every sentence the
offender is now serving.” The lines immediately below indicate that the sentence is
concurrent with count four, and consecutive to counts one, two, three and five. This
inconsistency is moot in that we vacate defendant’s sentences on counts four and
five in this opinion,4 and consequently, a new uniform sentencing commitment order
will be completed. Thus, no corrective action is necessary.
DECREE
For the foregoing reasons, we affirm defendant’s convictions. We vacate
defendant’s sentences on counts four and five and remand for resentencing on these
counts consistent with this opinion.
CONVICTIONS AFFIRMED; SENTENCES ON COUNTS FOUR AND FIVE VACATED; REMANDED
4 It appears that these two lines are intended by the Dept. of Corrections to list sentences which a defendant is already serving in D.O.C. custody.
22-KA-133 19 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN 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
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 22, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KA-133 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE) ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE) KEVIN V. BOSHEA (APPELLANT)
MAILED HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY JENNIFER C. VOSS (APPELLEE) DISTRICT ATTORNEY JOSHUA K. VANDERHOOFT (APPELLEE) ASSISTANT DISTRICT ATTORNEYS TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053