State of Louisiana Versus Lanard A. Lavigne
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Opinion
STATE OF LOUISIANA NO. 22-KA-282
VERSUS FIFTH CIRCUIT
LANARD A. LAVIGNE COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-6525, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
May 24, 2023
JUDE G. GRAVOIS JUDGE
Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and John J. Molaison, Jr.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING WITH INSTRUCTIONS JGG SJW JJM COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Andrea F. Long Douglas E. Rushton, Jr.
COUNSEL FOR DEFENDANT/APPELLANT, LANARD A. LAVIGNE Meghan H. Bitoun GRAVOIS, J.
Defendant/appellant, Lanard A. Lavigne, appeals his convictions of second
degree murder, obstruction of justice, and aggravated criminal damage to property.
For the following reasons, we affirm defendant’s convictions; however, we vacate
defendant’s sentences and remand the matter for resentencing and advisal of post-
conviction relief as per La. C.Cr.P. art. 930.8, as instructed below.
STATEMENT OF THE CASE
On January 31, 2019, a Jefferson Parish Grand Jury returned an indictment
charging defendant, Lanard A. Lavigne, with the second degree murder of Kerwin
Connor 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),1 and aggravated criminal damage to
property in violation of La. R.S. 14:55 (count three), all of which were alleged to
have occurred on March 14, 2018. Defendant was arraigned on February 1, 2019
and pled not guilty.2
On September 23, 2019, defendant filed an “Unopposed Motion to Produce
CAC Video Interview of Minor Child.” The trial court granted the motion on that
same day. Also, on September 23, 2019, defendant filed a “Motion in Limine to
Introduce Evidence of Decedent’s Reputation.” Defendant also filed a
memorandum in support of that motion.3 On October 21, 2019, the State filed a
response to that motion in limine, along with a motion to seal. That same day, the
trial court ordered that the State’s response and notice be sealed.
1 Specifically, the indictment provides that defendant violated La. R.S. 14:130.1 in that “he did obstruct justice by tampering with evidence in a murder investigation by intentionally removing the handgun he used to commit the murder of Kerwin Connor from the crime scene[.]” Count three related to property damage caused by bullet holes. 2 The parties also filed other pleadings; however, because these filings are not related to issues raised in the assignments of error, they are not discussed herein. 3 In the memorandum, defense counsel argued that the victim had violently assaulted innocent persons and that his reputation for drug use and dealing was relevant as to his reputation for dangerousness. Counsel asserted that it was relevant to show defendant’s apprehensive state of mind.
22-KA-282 1 On December 12, 2019, the trial court held a hearing on the motion in
limine, and deferred rendering a ruling thereon until after both sides filed written
memoranda. Thereafter, on January 17, 2020, the State filed a “Supplement [sic]
Memorandum in Response to Defendant’s Motion in Limine to Introduce Evidence
of Decedent’s Reputation.” On February 3, 2020, defense counsel filed a
supplemental memorandum in support of his motion in limine. That same day, the
trial court denied defense counsel’s motion in limine. Defense counsel
subsequently filed a writ application with this Court challenging that ruling. On
April 16, 2020, this Court denied the writ. See State v. Lanard, 20-K-113 (La.
App. 5 Cir. 4/16/20) (unpublished writ disposition).4
On October 18, 2021, the State filed a notice of additional information,
wherein it provided the statements of K.C.,5 the victim’s daughter, about the events
of the shooting. On that same day, defense counsel filed a motion in limine to
prohibit the introduction of any victim impact testimony and of the video
containing the interview of the victim’s daughter at the Child Advocacy Center
(“CAC”). The trial court denied defendant’s objections to the CAC video being
played at trial.6
4 There, this Court found no error in the trial court’s ruling that defendant failed to present sufficient evidence to establish the victim’s propensity for violence, or that the defendant was aware of any legitimate threat of violence. This Court found that the evidence of defendant’s violent reputation was properly excluded because defendant was unaware of this reputation at the time of the incident. Further, this Court found that the vague testimony was insufficient to establish a reputation in the community and thus failed to establish that the victim had a reputation for violence. Finally, this Court held that the trial court properly ruled that evidence that the victim sold drugs was irrelevant and thus inadmissible, since there is no claim that the homicide was drug related or that neither the victim nor defendant was under the influence of drugs at the time of the homicide. 5 Because this witness was a minor, her initials will be used to protect her identity. See State v. Barnett, 18-254 (La. App. 5 Cir. 4/3/19), 267 So.3d 209, 214 n.2. 6 As is discussed below, at the start of trial, the trial court suggested that defense counsel review the CAC video and inform the court of anything prejudicial before the tape was played. During trial, defense counsel objected to the CAC video being played. The trial court noted that the parties discussed the motion in limine, and it was agreed that there was no victim impact testimony within the CAC video. After arguments, the court denied defense counsel’s objection. Defense counsel again objected before the CAC video was played at trial, and the court overruled his objection.
22-KA-282 2 According to minute entries included with the record, defendant withdrew
his plea of not guilty and pled guilty as charged to count two (obstruction of
justice) on October 18, 2021. Sentencing on count two was deferred until the day
of sentencing on counts one and three.
On October 18, 2021, trial commenced before a twelve-person jury, and on
October 21, 2021, the State filed a motion for a request for special jury charges,
which was granted. On that same day, the jury unanimously found defendant
guilty as charged on counts one and three.
On December 6, 2021, defendant filed a “Motion for New Trial and Motion
for Post-Verdict Judgment of Acquittal,”7 which the trial court denied prior to
sentencing on that same day. After a waiver of delays, the trial court sentenced
defendant on count one (second decree murder) to life imprisonment at hard labor
without the benefit of parole, probation, or suspension of sentence, on count two
(obstruction of justice) to forty years’ imprisonment at hard labor, and on count
three (aggravated criminal damage to property) to fifteen years’ imprisonment at
hard labor.8 The trial court further ordered that defendant’s sentences “run
concurrently with each other and with any other sentence.”9
Immediately following the imposition of defendant’s sentences, defense
counsel made an oral motion to reconsider sentence and indicated that he would
supplement the motion in writing. The trial judge replied, “Okay. And that’s
denied. You may supplement in writing[.]” On December 7, 2021, defendant filed
7 Defense counsel filed one written motion.
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STATE OF LOUISIANA NO. 22-KA-282
VERSUS FIFTH CIRCUIT
LANARD A. LAVIGNE COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-6525, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
May 24, 2023
JUDE G. GRAVOIS JUDGE
Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and John J. Molaison, Jr.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING WITH INSTRUCTIONS JGG SJW JJM COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Andrea F. Long Douglas E. Rushton, Jr.
COUNSEL FOR DEFENDANT/APPELLANT, LANARD A. LAVIGNE Meghan H. Bitoun GRAVOIS, J.
Defendant/appellant, Lanard A. Lavigne, appeals his convictions of second
degree murder, obstruction of justice, and aggravated criminal damage to property.
For the following reasons, we affirm defendant’s convictions; however, we vacate
defendant’s sentences and remand the matter for resentencing and advisal of post-
conviction relief as per La. C.Cr.P. art. 930.8, as instructed below.
STATEMENT OF THE CASE
On January 31, 2019, a Jefferson Parish Grand Jury returned an indictment
charging defendant, Lanard A. Lavigne, with the second degree murder of Kerwin
Connor 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),1 and aggravated criminal damage to
property in violation of La. R.S. 14:55 (count three), all of which were alleged to
have occurred on March 14, 2018. Defendant was arraigned on February 1, 2019
and pled not guilty.2
On September 23, 2019, defendant filed an “Unopposed Motion to Produce
CAC Video Interview of Minor Child.” The trial court granted the motion on that
same day. Also, on September 23, 2019, defendant filed a “Motion in Limine to
Introduce Evidence of Decedent’s Reputation.” Defendant also filed a
memorandum in support of that motion.3 On October 21, 2019, the State filed a
response to that motion in limine, along with a motion to seal. That same day, the
trial court ordered that the State’s response and notice be sealed.
1 Specifically, the indictment provides that defendant violated La. R.S. 14:130.1 in that “he did obstruct justice by tampering with evidence in a murder investigation by intentionally removing the handgun he used to commit the murder of Kerwin Connor from the crime scene[.]” Count three related to property damage caused by bullet holes. 2 The parties also filed other pleadings; however, because these filings are not related to issues raised in the assignments of error, they are not discussed herein. 3 In the memorandum, defense counsel argued that the victim had violently assaulted innocent persons and that his reputation for drug use and dealing was relevant as to his reputation for dangerousness. Counsel asserted that it was relevant to show defendant’s apprehensive state of mind.
22-KA-282 1 On December 12, 2019, the trial court held a hearing on the motion in
limine, and deferred rendering a ruling thereon until after both sides filed written
memoranda. Thereafter, on January 17, 2020, the State filed a “Supplement [sic]
Memorandum in Response to Defendant’s Motion in Limine to Introduce Evidence
of Decedent’s Reputation.” On February 3, 2020, defense counsel filed a
supplemental memorandum in support of his motion in limine. That same day, the
trial court denied defense counsel’s motion in limine. Defense counsel
subsequently filed a writ application with this Court challenging that ruling. On
April 16, 2020, this Court denied the writ. See State v. Lanard, 20-K-113 (La.
App. 5 Cir. 4/16/20) (unpublished writ disposition).4
On October 18, 2021, the State filed a notice of additional information,
wherein it provided the statements of K.C.,5 the victim’s daughter, about the events
of the shooting. On that same day, defense counsel filed a motion in limine to
prohibit the introduction of any victim impact testimony and of the video
containing the interview of the victim’s daughter at the Child Advocacy Center
(“CAC”). The trial court denied defendant’s objections to the CAC video being
played at trial.6
4 There, this Court found no error in the trial court’s ruling that defendant failed to present sufficient evidence to establish the victim’s propensity for violence, or that the defendant was aware of any legitimate threat of violence. This Court found that the evidence of defendant’s violent reputation was properly excluded because defendant was unaware of this reputation at the time of the incident. Further, this Court found that the vague testimony was insufficient to establish a reputation in the community and thus failed to establish that the victim had a reputation for violence. Finally, this Court held that the trial court properly ruled that evidence that the victim sold drugs was irrelevant and thus inadmissible, since there is no claim that the homicide was drug related or that neither the victim nor defendant was under the influence of drugs at the time of the homicide. 5 Because this witness was a minor, her initials will be used to protect her identity. See State v. Barnett, 18-254 (La. App. 5 Cir. 4/3/19), 267 So.3d 209, 214 n.2. 6 As is discussed below, at the start of trial, the trial court suggested that defense counsel review the CAC video and inform the court of anything prejudicial before the tape was played. During trial, defense counsel objected to the CAC video being played. The trial court noted that the parties discussed the motion in limine, and it was agreed that there was no victim impact testimony within the CAC video. After arguments, the court denied defense counsel’s objection. Defense counsel again objected before the CAC video was played at trial, and the court overruled his objection.
22-KA-282 2 According to minute entries included with the record, defendant withdrew
his plea of not guilty and pled guilty as charged to count two (obstruction of
justice) on October 18, 2021. Sentencing on count two was deferred until the day
of sentencing on counts one and three.
On October 18, 2021, trial commenced before a twelve-person jury, and on
October 21, 2021, the State filed a motion for a request for special jury charges,
which was granted. On that same day, the jury unanimously found defendant
guilty as charged on counts one and three.
On December 6, 2021, defendant filed a “Motion for New Trial and Motion
for Post-Verdict Judgment of Acquittal,”7 which the trial court denied prior to
sentencing on that same day. After a waiver of delays, the trial court sentenced
defendant on count one (second decree murder) to life imprisonment at hard labor
without the benefit of parole, probation, or suspension of sentence, on count two
(obstruction of justice) to forty years’ imprisonment at hard labor, and on count
three (aggravated criminal damage to property) to fifteen years’ imprisonment at
hard labor.8 The trial court further ordered that defendant’s sentences “run
concurrently with each other and with any other sentence.”9
Immediately following the imposition of defendant’s sentences, defense
counsel made an oral motion to reconsider sentence and indicated that he would
supplement the motion in writing. The trial judge replied, “Okay. And that’s
denied. You may supplement in writing[.]” On December 7, 2021, defendant filed
7 Defense counsel filed one written motion. As will be discussed, counsel separated this motion into arguments relating to his motion for new trial and his motion for post-verdict judgment of acquittal. 8 At that time, the State entered a nolle prosequi in case numbers 19-2124, 19-3354, 20- 5130, and 21-3211. 9 The original sentencing minute entry from December 6, 2021 was corrected by a Nunc Pro Tunc minute entry on December 8, 2021, with respect to correcting the trial court’s recommendation to reflect only “self-help programs.”
22-KA-282 3 a written “Motion to Reconsider Sentence.”10 That same day, defendant filed a
“Motion to Appeal Conviction and Sentence,” which was granted by the trial court
on December 15, 2021. Defendant now appeals, asserting five assignments of
error.11
FACTS
On March 14, 2018, Kerwin Connor (a/k/a “Puddy”) was shot three times
while outside of his residence in the 300 block of Clemson Place in Kenner,
Louisiana.12 After Mr. Connor was transported to the hospital, he died of his
injuries.13
Denise Nelson, a neighbor, testified on March 14, 2018, she was with a
“little boy” outside of her home at 318 Clemson Place. Ms. Nelson testified that
she saw Mr. Connor arguing and “fussing” and that she told him to stop.14 She
recalled that she grabbed Mr. Connor by his shirt because he was close to her. She
testified that she was in her parking spot by her apartment and that this was located
10 See Errors Patent Review regarding the written motion to reconsider sentence. 11 On November 29, 2022, defendant filed a “Motion for Leave to File Pro Se Supplemental Appeal Brief on the Merits.” This Court granted the motion on December 1, 2022. On December 29, 2022, defendant filed a “Motion for Extension of Time to File Pro Se Supplemental Brief,” which this Court granted on January 9, 2023, giving defendant until Friday, January 20, 2023 to file a pro se supplemental brief. A pro se brief was not filed by the January 20, 2023 due date. On February 27, 2023, defendant filed a “Motion to Enforce” in this Court, again seeking leave to file a supplemental brief in this appeal, which motion was denied by this Court as having been untimely filed, citing Uniform Rules–Courts of Appeal, Rule 2-12.8, which provides, in pertinent part: “An extension of time within which to file the brief maybe granted by the court for good cause shown on written motion filed with the clerk of the court on or before the date the brief was due.” 12 It is noted that multiple witnesses used Mr. Connor’s nickname of “Puddy” and referred to him by this name throughout their testimony. In addition, it is noted that the street is referred to by differing names throughout the record. The street will be referred to as “Clemson Place” in this opinion. 13 Multiple calls were placed to 9-1-1 reporting gunshots fired near apartment complexes located in the 300 block of Clemson Place. The parties stipulated that State’s Exhibit 1 is an authentic and accurate recording of 9-1-1 calls made under Kenner Police Department, Item No. C80816-18. The parties also stipulated that State’s Exhibit 2 is an authentic and accurate CAD printout generated in the same item number. Multiple 9-1-1 recordings reporting the incident were played for the jury. 14 Ms. Nelson indicated that she knew Mr. Connor, who was a friend of her grandson. She did not know the person who was arrested in relation to the instant case; however, she knew his girlfriend and her family. She confirmed that she did not want to be involved in this homicide investigation.
22-KA-282 4 on the same side of the street as Mr. Connor. Ms. Nelson denied seeing Mr.
Connor with a gun at that time. When asked if she saw the person Mr. Connor was
arguing with, she said that she could see “a person.” She denied that she saw Mr.
Connor approach that person or point a gun at that person. When asked if “that
person” had a gun, Ms. Nelson answered, “No, not for me to see.” She confirmed
that she heard gunshots while she was on the “pave walk” by her house. She
recalled that she heard gunfire and that Mr. Connor’s back was to her. She
grabbed the boy, got underneath a truck, and heard five more gunshots. She
indicated that she saw Mr. Connor again by his door. She denied seeing the “other
person” again that day or seeing anyone firing a gun that day. She did not
remember telling a detective that she saw someone shoot Mr. Connor. She
asserted that she only saw him running and a person running behind him.15
Malyssa Acevado Connor testified that she met Mr. Connor in 2007, and
they were in a relationship for eleven and one-half years. In 2018, she lived in an
apartment located at 308 Clemson Place with Mr. Connor and their daughter,
K.C.16 On March 14, 2018, she walked K.C. to the bus stop for school prior to
going to work until 4:10 p.m. After returning home that evening, she showered
and lay down on the couch. She recalled that K.C. played a videogame in the
living room and that Mr. Connor went outside to work on his truck, which was
parked in the field directly across the street. At some point, Mr. Connor came back
inside the apartment, went upstairs, and left again. She was not aware of any
altercation taking place outside at this time. Ms. Connor heard a “loud bang” from
15 When asked if she recalled telling a detective and the prosecutor that she saw someone shooting at Mr. Connor that day, Ms. Nelson answered, “I remember telling you I saw running, [Mr. Connor] and another person under a car. Who he was I don’t know.” She then said that Mr. Connor “was running. And a person was running behind him. That’s it, what I saw.” 16 Ms. Connor indicated that K.C. was born on August 27, 2008.
22-KA-282 5 outside. She testified that K.C. climbed on top of the deep freezer, which was
located near a window, looked outside, and started screaming.
Ms. Connor then jumped up and opened her door about three or four inches,
but closed it after hearing a gunshot. She stated that she felt a “vibration in [her]
chest” and knew “he” was on the other side of the door. She testified that she
heard three gunshots. She recounted that Mr. Connor “fell through the door” and
his friend Kevin was with him. Mr. Connor told her, “He shot me call 9-1-1,” and
he fell on the sofa and rolled on the floor. When she went outside with K.C., she
saw a silver revolver outside of the door, and they jumped over it. Ms. Connor
explained that she did not know that it was Mr. Connor’s gun at that time. She
believed he had previously gotten rid of a similar gun that he owned. After she
called 9-1-1, EMS came to the scene and took Mr. Connor, who was shot in the
legs, to University Hospital, where he died. She testified that it took a long time
for the ambulance to arrive because of traffic. She said that Mr. Connor coded
about five minutes from the hospital.
Ms. Connor testified that she provided a recorded statement to the lead
investigator in this case. She admitted that she did not initially tell the detective
about the silver gun she saw outside their apartment. When she brought K.C. to
her interview at the CAC, Ms. Connor told the detective that she did not touch the
gun. She further told him that she did not know to whom it belonged. She testified
that the gun was gone when the police arrived on the scene. She denied knowing
the identity of the “the other guy” that was with Mr. Connor in the truck across the
street. She also informed the detective of her discovery of a bullet hole in the mop
near her front door. Additionally, Ms. Connor testified that she received
information regarding the identity of the shooter from someone in the
neighborhood. This person sent Ms. Connor photographs from Instagram, which
she provided to the lead detective. She also showed these photographs to K.C.
22-KA-282 6 K.C., who was thirteen years old at the time of trial, stated that she was
present the day that her father, Mr. Connor, died. She was nine years old and
living with her parents on Clemson Place at that time. She testified that before
hearing the gunshots, her father ran upstairs and then ran back outside. She did not
remember if he had anything with him or in his hands that day. K.C. detailed that
she was in the living room when she heard gunshots. She then jumped on the deep
freezer to look out of the window. She detailed that she saw a man chasing her
father with a gun across the street, where his truck and a field were located. She
screamed and told her mom about what she saw. Her father then came inside and
told her mom to call 9-1-1 because he was shot. K.C. indicated that she was
brought to a friend’s house. She confirmed that her mom showed her a
photograph, where she recognized the man that was chasing her father. Also, K.C.
confirmed that she previously told the prosecutor that she saw her father with a
gun. She clarified that she did not remember if he had a gun. She indicated that
she saw the gun in the house. She did not know if it was her father’s gun.
While working as a forensic interviewer with the Jefferson CAC, Brittney
Bergeron Millet conducted a forensic interview of K.C. in March 2018. She
identified State’s Exhibit 13 as a video recording of that interview. The video was
admitted into evidence and was later played for the jury. K.C.’s CAC interview
was very similar to her trial testimony regarding the shooting.
K.C. told Ms. Millet that on the day of the shooting, her father, Mr. Connor,
was working on his truck outside and talking with some friends. She explained
that she knew this because she looked out of the window to see if her father was
“okay.” While she was in the living room, she heard gunshots and went to look
out of the window. K.C. explained that she saw her father running and someone
chasing him with a gun. She stated that her father was in front of the man and he
was trying to “dodge.” She indicated that the man was “running in the same way,”
22-KA-282 7 but he was not trying to “dodge.” K.C. stated that she saw the man fire by the
landlord’s office. Later, she clarified that she did not see when her father was shot.
She explained that she saw the man “firing,” but she did not think it hit her father.
K.C. provided that she became scared, jumped off the freezer, and told her mom
what she saw. She remembered that her father came inside and told her mom to
call 9-1-1 because he had been shot. She also remembered seeing her father’s
friend, Kevin. K.C. explained that she saw blood coming from her father’s legs
because he had his pants pulled up.
During her interview with Ms. Millet, K.C. described the man who was
chasing her father. She indicated that he had skin darker than her father’s, he wore
jeans and tennis shoes, and he had short, dark brown dreadlocks. She did not know
his name and had not seen him before. Additionally, K.C. stated that her mom
showed her a picture from Instagram of the “man [she] thought killed her dad.”
She told Ms. Millet that she was seventy percent sure that it was the same man as
the one she saw chasing her father. K.C. described the man in the photograph as
having short dreadlocks, darker skin than her own, and wearing jeans and a blue
shirt. K.C. estimated that the man in the picture was seventeen or eighteen years
old.
Dr. Dana Troxclair with the Jefferson Parish Coroner’s Office qualified as
an expert in the field of forensic pathology.17 Dr. Troxclair testified that she
performed an autopsy on Mr. Connor. She explained that he had three gunshot
wounds. The first gunshot wound entered the anterior left thigh and it exited the
media upper left thigh, perforating the left femoral artery. She indicated that the
second gunshot went through his mid-left thigh and exited the posterior lower left
thigh and only perforated the skin and muscles. The third gunshot entered his mid-
17 The parties stipulated that Dr. Troxclair qualified as an expert in the field of forensic pathology.
22-KA-282 8 right thigh and exited the posterior upper right thigh, perforating the right femoral
artery. She testified that the distant gunshot wounds were fired from at least two to
three feet away.18
Dr. Troxclair opined that these gunshot wounds would not have been fatal if
Mr. Conner had received prompt medical treatment.19 She confirmed that Mr.
Connor went into cardiac arrest about fifty minutes after he was injured and about
five minutes from the hospital. Additionally, she provided that the toxicology
report reflected morphine and marijuana in Mr. Connor’s blood, and morphine,
codeine, caffeine, and nicotine in his urine. She indicated that the combination of
morphine and codeine present indicated the recent use of heroin. She testified that
Mr. Connor’s cause of death was multiple gunshot wounds and that his manner of
death was homicide.
Martha Maize testified that she heard gunshots while she lived in an
apartment at 301 Clemson Place. She explained that after the shooting, a tall male
with dreadlocks went to an apartment, which was located across the street from her
apartment. She confirmed that the individual she saw with the gun was her
neighbor. She indicated that she saw him put the gun inside of a backpack as he
walked through the gate. He then went inside his apartment, his girlfriend came
outside, and they later went to the back of the apartments.
After learning that the shooter might have gone to 301 Clemson Place,
Apartment 110, officers obtained a search warrant for that apartment.20 Upon
18 Dr. Troxclair noted that gunshot wounds one and three entered the front of Mr. Connor’s thighs. She agreed that this could be consistent with someone being shot facing the person firing the gun. She pointed out that the exit wound for gunshot three was higher up on the thigh and his leg would have to be bent if the perpetrator was in front of him. She also confirmed that it could be consistent with an individual running toward a person who was firing a gun. 19 Dr. Troxclair further confirmed that if a tourniquet would have been applied correctly and quickly, Mr. Connor could have survived. In her opinion, it was not possible to sustain two severed arteries and run 175 yards. 20 Detective Brandon Davis testified that he was dispatched to the 300 block of Clemson Place regarding a shooting. Upon his arrival at the scene, he spoke with possible witnesses. He
22-KA-282 9 contacting the apartment manager, it was discovered that defendant and Darriyell
Beasley were the occupants. In the meantime, Louisa Lockarno informed the
officers that she provided defendant and Ms. Beasley with a ride that day.
Ms. Lockarno indicated that she was living at 249 Clemson Place,
Apartment 410, on the day of shooting. Her neighbor, Ms. Beasley, whom she
knew from work, lived with her boyfriend in the apartment complex directly
behind her own. She also knew Mr. Connor from the neighborhood. That
afternoon, after seeing Ms. Beasley, she agreed to give her and her boyfriend a ride
to his relative’s residence. She recalled that defendant approached them from the
back area of their apartment complex.21 She recalled that the street was closed off,
and police were present. Before leaving the parking lot, Ms. Beasley took off her
Vincent Guard jacket and climbed in the back with defendant. She told Ms.
Lockarno that she did not want to see “a man” because they owed him money.
When she dropped them off, Ms. Beasley left her jacket and phone inside the
vehicle. After learning of Ms. Beasley’s involvement in a shooting, Ms. Lockarno
contacted the police and told them about the items left inside her vehicle. She gave
consent for the police to search her car and to obtain a buccal swab.
Darriyell Beasley testified at trial and stated that defendant is her boyfriend
and the father of her two-year-old daughter. Ms. Beasley testified that in March of
2018, she was living with defendant in Apartment 110 on Clemson Place. She
explained that on March 14, 2018, at around 4:00 or 5:00 p.m., she left her
apartment to walk to the store. On her way, she passed in front of a vacant lot
located on the side of her apartment complex. Mr. Connor was present with “one
guy.” She heard him say something to her, but could not understand what he said.
learned that the shooter might have gone to this location, and he established a perimeter in the area. 21 Ms. Lockarno explained that there was an alley in the back of the complex.
22-KA-282 10 She testified that she did not feel threatened at that time. Defendant met up with
her on her way back from the store. She told defendant about what occurred as
they passed Mr. Connor’s truck. Ms. Beasley asserted that Mr. Connor and
defendant had a verbal altercation.
Ms. Beasley testified that Mr. Connor was upset and belligerent. She denied
that he had a gun at that time. She told defendant that they did not want to cause
problems since they had only lived in the area for six months. They then returned
to their apartment. She believed Mr. Connor wanted to start a fight. She denied
that he hit or swung at defendant. She also denied that defendant told her that Mr.
Connor had a gun or that he felt threatened at that time. She recalled Mr. Connor
said, “I’m going to put on my shoes” before he ran home. She thought that Mr.
Connor went inside and would “chill out” and that the incident was over.
After returning to their apartment, she and defendant wanted to take their
dog for a walk at the park. Ms. Beasley testified that defendant armed himself with
a gun because they did not know “what [they] were going back outside to.”22 She
asserted that when she left her apartment, she saw Mr. Connor holding something
in his hand, but she did not think it was a gun. She explained that they did not
make it out of the apartment complex because Mr. Connor met them near the
dumpster. She testified that as Mr. Connor pointed a gun at them, she screamed,
and ran back toward the stairs.23 Ms. Beasley stated that Mr. Connor told
defendant that he was going to make him use his gun. She said that she could hear
because she was not far from them. She denied that she saw defendant raise his
22 Ms. Beasley identified State’s Exhibit 14 as a photograph of a gun that looked like defendant’s gun. 23 Ms. Beasley denied initially telling Detective Nick Englar that she did not believe Mr. Connor was going to pull the trigger. She also did not remember telling the detective that she thought Mr. Connor was “just fake stunting.” After being shown the transcript of her statement, she denied telling the detective that she did not think Mr. Connor would pull the trigger. A portion of the audio recording of Ms. Beasley’s first statement was played, and she recognized her voice on the recording. Ms. Beasley then recalled that she told the detective this information.
22-KA-282 11 weapon to fire. She heard gunshots, and she stayed on the stairs until defendant
returned to the apartment.24
Ms. Beasley testified that after the shooting, they left the area because they
were afraid. They received a ride from her neighbor, Ms. Lockarno, and were
taken to defendant’s relative’s house on Idaho Avenue. Ms. Beasley and her
cousin dropped defendant off at his brother’s house in Houma, Louisiana. She
indicated that Ariel Evans, who was the daughter of defendant’s brother, also lived
at this address. The next day, she went to retrieve her cell phone and was detained
by the police. She stated that the detectives tried to tell her that Mr. Connor did not
have a gun. She stated that defendant was not arrested until seven months later.
She admitted to contacting him on a phone application and sending him items like
money, clothing, and food. Ms. Beasley confirmed that she pled guilty to the
charge of accessory after the fact to second degree murder and received three years
of probation. She asserted that she did not plead guilty in exchange for testifying.
She explained that she did it because she was pregnant with her daughter.25
During this investigation, a search of the area was conducted based on the
information received from Ms. Lockarno. Lieutenant George Hoffman of the
24 During her testimony, Ms. Beasley discussed the surveillance video from that day (State’s Exhibit 11). She asserted that it was “not how it went.” She confirmed that in the video, after the first confrontation, she and defendant could be seen going “around the corner toward [their] apartment.” When asked if she saw any more figures in the video go around that corner, Ms. Beasley answered, “No. He came by the dumpster. They have two big dumpsters that sit on both sides in the front of the apartment and they have a gate there too.” Thereafter, Ms. Beasley identified photographs depicting the front area of her apartment. These photographs were admitted into evidence. She confirmed that the area where the dumpsters were located could not be seen in the video. She further confirmed that the backside of her apartment building can be seen in the video. She agreed that defendant could be seen chasing Mr. Connor down the street in the video. 25 Ms. Beasley identified State’s Exhibit 18 as a photograph of defendant and their dog. She identified State’s Exhibit 19 as a photograph of her and defendant walking back from the store together. She also identified State’s Exhibit 20 as a photograph of Mr. Connor with a gun in his hand. She recalled Detective Englar showing her a still photograph (State’s Exhibit 21). She testified that she told the detective that she would not be able to identify him because both of them had dreadlocks and wore dark clothing. Ms. Beasley testified that defendant was inside of the apartment for about ten to fifteen minutes; however, she agreed that defendant was not inside for that length of time based on the video.
22-KA-282 12 Kenner Police Department testified that he found a handgun located inside an open
potato chip bag in the rear of the apartment complex located at 249 Clemson
Place.26
Nhung Mai, a Kenner Police Department crime scene technician, processed
the scene. She identified numerous photographs taken from the crime scene and of
the victim. She collected a firearm located on the scene, a jacket and cell phone
from a vehicle, and swabs from these items for DNA analysis. She obtained
reference samples from Ms. Lockarno and Ms. Beasley. She also identified
ballistic evidence collected from the scene in the 300 block of Clemson Place.
Ms. Mai collected spent casings from 308 Clemson Place, Apartment A;
casings at the corner and front of the apartment complex where 308 Clemson Place
is located; a spent casing located between two red flip flops; spent casings from the
road that ran perpendicular to Clemson Place; and casings and a projectile jacket
located by a vehicle. She also identified a projectile found in the north side
bedroom of Apartment 12, and a spent casing obtained at 500 Veterans from a
detective. Additionally, she testified that an apartment building in the area
sustained damage from the gunfire. She indicated that bullet holes were found in
apartments A-12, A-13, and A-14 in one of the complexes. She pointed out that a
security camera with a bullet hole could be seen outside of this apartment building.
She explained that this directly aligned with the bullet holes found inside the three
apartments.
Detective Nick Englar, who was the lead detective in the instant case,
testified that other officers canvassed the scene during the investigation. They
discovered several apartments with projectile damage at another apartment
complex called LaBelle Maison, located at 341 Clemson Place. After contacting
26 Lieutenant Hoffman denied seeing a gun located on the front porch at 308 Clemson Place, where the injured individual was located.
22-KA-282 13 the property manager, officers documented the damage, collected evidence, and
retrieved surveillance video from this complex. Detective Englar reviewed the
surveillance video from 341 Clemson Place.27 The video was played for the jury.
Detective Englar stated that the video showed the 300 block of Clemson
Place. He pointed out the empty lot where Mr. Connor was sitting inside his
vehicle. He further pointed out the location of defendant’s apartment at 301
Clemson Place. In the video, Detective Englar confirmed that Ms. Beasley, who
was wearing a Vincent Guard jacket, could be seen walking towards the gas station
on the corner of Clemson and Loyola. He described defendant, who was wearing a
backpack, walking a dog and moving in the same area. He testified that defendant,
Ms. Beasley, and their dog can be seen returning in the direction of their
apartment. He said that Ms. Beasley appeared to be talking to defendant and
“gesturing up the street.” Defendant and Ms. Beasley were approached by an
individual who was identified as Mr. Connor. He stated that Mr. Connor can then
be seen jogging across Clemson Place and entering his apartment. Defendant and
Ms. Beasley move out of the camera frame near their building. The detective
testified that Mr. Connor paces back and forth and that two individuals, who he
believed are Kevin Brown and Bernell Tibbit, arrive.28
Detective Englar said that in another view, Mr. Connor could be seen
returning from his apartment. He said that he appears to be located by the cars on
the left. He also indicated that another figure is moving back toward Clemson
Place. He testified that Mr. Connor could be seen moving back and forth and that
27 Detective Englar explained that in preparation for trial, he reviewed a compilation of the different camera angles in order to “piece together all of the angles” that showed the incident. 28 The detective explained that no firearm consistent with the revolver seen in the video was found. Based on his investigation, Detective Englar believed that Mr. Tibbit or Mr. Brown moved Mr. Connor’s firearm. He confirmed that they did not search the residence of Mr. Brown or Mr. Tibbit. They also did not search Mr. Connor’s truck for the gun. He testified that Mr. Brown and Mr. Tibbit denied having knowledge of Mr. Connor’s gun. Detective Englar testified that he did not have any direct evidence that they took the gun. He was unable to make contact with Mr. Brown again or locate Mr. Tibbitt.
22-KA-282 14 another figure is moving just above a white car or a truck in the video. He testified
that people could be seen ducking and running, which was likely when the
gunshots started. The detective said that Mr. Connor jumped over a trailer and was
chased by the person, who was identified as defendant. He mentioned that in the
video, Mr. Connor appears to be armed with a revolver, and defendant has a semi-
automatic handgun. He said that this was consistent with the Glock handgun
discovered behind the apartments. After Mr. Connor turns the corner by his
apartment, defendant stopped and went in the direction of his apartment.
The detective explained that similar items seen in the surveillance video
were seized from defendant’s apartment, including a Louis Vuitton Bag and shoes.
He recalled that defendant was not found at the apartment or the location provided
by Ms. Lockarno. He indicated that surveillance video was also obtained from
Idaho Avenue, which showed Ms. Lockarno in her vehicle dropping off defendant
and Ms. Beasley.29 He stated that thirty minutes after the 9-1-1 call, they could be
seen walking their dog and having a discussion.30
On the day following the murder, Detective Englar received another call
from Ms. Lockarno advising that Ms. Beasley had returned. He located Ms.
Beasley, placed her under arrest, and took her to the Kenner Police Department.
She was interviewed after being advised of her rights. He also obtained her
consent for a buccal swab, as well as a search of her cellphone.31 He confirmed
that he received an arrest warrant for defendant, but that he was not located and
arrested until nearly seven months later on October 11, 2018. After seeing
29 Sergeant Edward Rohde worked in the crime scene division of the Kenner Police Department in March 2018. Sergeant Rohde assisted in this case by checking for surveillance cameras in the “2500 or 2600 block of Idaho.” He explained that he recovered surveillance video which showed 2504 Idaho Avenue and 2542 Williams Boulevard. This video was admitted into evidence. The video was played for the jury. 30 Detective Englar confirmed that he interviewed Ms. Beasley several times. He relayed that she denied having any sort of conversations about the shooting with defendant. 31 Detective Englar testified that a search of her cell phone revealed nothing of relevance to the investigation at that time.
22-KA-282 15 photographs of Ms. Beasley and defendant together on Instagram, Detective Englar
conducted surveillance on her residence. She was detained, after which he spoke
with her again. He relayed that Ms. Beasley admitted to aiding defendant and
meeting with him on several occasions. He then arrested her for accessory after
the fact to second degree murder, after which her jail calls were monitored.32
After searching Ms. Beasley’s phone, Detective Englar saw a reference to an
address at 2683 Express Boulevard in Houma, Louisiana. Defendant was
subsequently located by U.S. Marshals at that location and was arrested.33 During
a search of the residence, two cell phones were seized, and they showed
conversations consistent with ones seen on Ms. Beasley’s phone.34 Detective
Englar indicated that defendant and Ms. Beasley were both arrested on October 11,
2018. The detective testified that although defendant was initially uncooperative,
he provided a statement after being advised of his rights.35 A buccal swab was also
obtained from defendant.
Detective Englar further testified that he interviewed Mr. Connor’s fiancée.
He also monitored the interview of K.C. at the CAC from a different room. He
explained that Ms. Connor did not tell him about the gun she saw that day, and he
32 Detective Englar confirmed that after Ms. Beasley contacted Sarah Calderon, he met with Ms. Calderon. She provided him with information about the use of a CashApp to provide defendant with money. She told the detective that this was how Ms. Beasley was providing defendant with money. 33 Matthew Glapion with the Kenner Police Department testified that he was on the U.S. Marshals Fugitive Force. Approximately six or seven months after the homicide, Mr. Glapion went to the possible location of defendant at 2638 Express Boulevard in Houma, Louisiana. Once he knocked on the door, Mr. Glapion heard what sounded like someone trying to hide inside. He stated that defendant gave himself up, and they took him into custody. He confirmed that Detective Englar executed a search warrant at the location afterwards. Also, Sergeant Rohde examined the cell phones seized in connection with the instant case. He generated extraction reports for all of the phones. 34 Officer Charles Dionne, a crime scene and digital forensic technician formerly with the Kenner Police Department, testified that he participated in the execution of a search warrant for the residence located at 2683 Express Boulevard on October 20, 2018. He also testified as to the evidence seized from the house and a surveillance video obtained from the Dollar General store in Houma. 35 The statement was transcribed, and a copy was admitted into evidence as State’s Exhibit 90. The recording was admitted into evidence as State’s Exhibit 91 and was published to the jury.
22-KA-282 16 did not learn of Mr. Connor’s gun until his interview with Ms. Beasley. Detective
Englar confirmed that he obtained search warrants for the EMS and University
Medical Center medical records for Mr. Connor. He explained that the records
showed Mr. Connor was incoherent when EMS arrived at the scene.
Emily Terrebonne of the Jefferson Parish Sheriff’s Office Crime Laboratory
was accepted as an expert in firearms and toolmark examination. Ms. Terrebonne
stated that she analyzed the ballistic evidence from the scene in the instant case and
prepared a report. She identified several 9 mm fired cartridge cases, copper jackets
and projectiles, two unfired 9 mm cartridges, and a Glock handgun. She stated that
the cartridge casings were fired from the Glock handgun she analyzed. She could
not determine if the recovered projectiles were fired from the Glock handgun. She
stated that they were consistent with the same type of gun. Ms. Terrebonne further
identified two photographs that she examined in this case. 36 She asserted that the
firearm in State’s Exhibit 51 was consistent with a semi-automatic weapon based
on its shape and the way that it is being held. She testified that the firearm in
State’s Exhibit 52 was more consistent with a revolver based on its overall shape
and the way it was being held. She denied that any of the recovered projectiles
were consistent with being fired from a revolver.37
Satara Shiwani, a forensic DNA analysist with Jefferson Parish Sheriff’s
Office, received evidence and buccal swabs from individuals in this case to
analyze. She testified that Ms. Lockarno was excluded as a contributor, and
defendant was excluded as a major contributor to the DNA profile obtained from
the Glock handgun and magazine. Due to the complexity of the mixture, the
36 State’s Exhibits 51 and 52, the photographs Ms. Terrebonne viewed, appear to be still images of the individuals seen in the surveillance video footage. 37 Ms. Terrebonne explained that the JPSO crime lab no longer conducted gunshot residue testing on a homicide victim’s hands because it is not a reliable indicator of whether or not that person fired a weapon.
22-KA-282 17 contributor status of Ms. Beasley and the minor contributor status could not be
determined. She stated that Ms. Beasley was excluded from the DNA profile
obtained from the swab of the rear driver-side interior door handle. It was
determined that the DNA profile was uninterpretable for inclusionary purposes.
She indicated that defendant was excluded as a contributor to the DNA mixture
obtained from the swab of the rear passenger-side interior door handle. She
provided that no conclusion could be made regarding the contributor status of Ms.
Lockarno and Ms. Beasley.
Jennifer Bracamontes, a DNA analyst at Cybergenetics, qualified as an
expert in forensic DNA analysis. She was able to further analyze the DNA
mixtures from the swabs taken from the interior car doors and the Glock handgun
in the instant case. The conclusions showed that a match between the swab from
the Glock handgun and defendant was 118 trillion times more probable than a
coincidental match to an unrelated African American person; the match was 10.6
quadrillion times more probable than a coincidental match to an unrelated
Caucasian; the match was 7.23 quadrillion times more probable than a coincidental
match to an unrelated Southeast Hispanic person; and the match was 20.8
quadrillion times more probable than a coincidental match to an unrelated
Southwest Hispanic Person.38 She also found an inclusionary match statistic
between the Glock handgun and Ms. Beasley that was 238 times more probable
than a coincidence.
Defendant did not testify in this matter. He did provide a statement to
Detective Englar upon his arrest, which was audio recorded and transcribed. The
38 Ms. Bracamontes explained that the matched statistic to defendant had a strength of 118 trillion and only “1 in quadrillion people would match as strongly.” She testified that one would have to “go through 110 quadrillion people before you’d expect to find somebody that would have that match statistic again.” The transcript reflects that she stated unrelated Southeast Hispanic person twice. A review of the report showed the results for an unrelated Southeast and Southwest Hispanic person.
22-KA-282 18 audio recording was played for the jury. Defendant provided the following in his
statement to Detective Englar.39 In March 2018, the victim approached him and
Ms. Beasley in the lot next to their apartment. He recalled that he asked Ms.
Beasley to go to the store for a “gar” on that day. Defendant caught up with her at
the store. He explained that on the way back to their apartment, he greeted a
“dude” that was with the victim. He provided that the victim addressed him on
“some hype sh*t like on some fight sh*t.” He told Detective Englar that he walked
off because he did not want to escalate the situation. He also explained that when
they spoke, the victim jumped out of the car and said, “what’s up, what’s up?
What you wanna do then? What’s up? What’s up?” Defendant responded “what
you want to do?” He recalled that the victim was “throwing his set up on some
sh*t like what’s up, what’s up like he wanna fight[.]” Also, defendant told the
victim that he was a joke and a “dope head” in front of people. Defendant thought
that might have caused him to get his gun.
Defendant stated that he walked off and went inside to “chill.” He then
decided that he was going to go to the park. He recalled that as he walked out of
his driveway, he saw the victim approaching him with a gun. Defendant described
that he was in shock and could not run. He asserted that the victim was on some
“sh*t like ‘f*ck what you talking about I’m about to make you use that b*tch. Eh
you ain’t cheah all that, all this sh*t you saying sh*t like you ain’t out cheah. F*ck
that I’m about to make you use that b*tch.” Defendant provided that the victim
pointed his gun towards him. He stated that when the victim lifted his gun,
defendant “went to shooting at, at him with my sh*t.”
Defendant stated that he knew the victim was “on something” because he
skipped toward defendant. He said that the victim scared him when he saw the
39 Defendant did not refer to Mr. Connor by his name during his statement. It appears he was referring to the victim.
22-KA-282 19 gun. He explained, “To the point where I just had to defend myself, that, that how
it was, I was scared for my life when he approached me with that b*tch. Then he
talking about he was going to make me use my gun, I ain’t even think I was going
to get the chance to use my gun.” Defendant confirmed that his gun was in his
Louis Vuitton bag at that time.
Additionally, defendant asserted that he ran behind the victim because he
pointed his gun at defendant. He alleged that when the victim ran behind a car, he
was still pointing his gun like he was going to get “shot off on [him].” He stated,
“I’m, I was in rage I ain’t going to lie like I wasn’t, I was, I was no longer in the
right state of mind no more.” Defendant did not think that the victim had a
revolver, which he referred to as a “shell catcher.” He asserted that the victim shot
eight times. Once the victim ran in the direction of people, defendant stopped
shooting. He felt like the victim hit “something if anything.” Defendant told the
detective that he felt like “he took me like took, trying to (UNI) on me like I was
little boy.” Also, he explained that Ms. Beasley ran and was not present when the
shooting occurred. He stated that he stashed his gun, which he described as a
“Glock with a 9 caliber.” Defendant said that after the shooting, he and Ms.
Beasley were dropped off at his mother’s house on Idaho. He then used Lyft or
Uber to reach Houma. He claimed that it was self-defense and that he ran to get
money together for a lawyer.40
40 Detective Englar also testified about defendant’s statement. He confirmed that defendant said that they were about to go inside, but instead said they were going to the park. He explained that this is inconsistent with what Ms. Beasley told him about going inside the apartment. He also pointed out that defendant did not believe Mr. Connor’s weapon was a revolver, but was a semi-automatic. Detective Englar indicated that defendant told him that he felt like Mr. Connor hit something and implied that he shot. The detective explained that he did not find any damage in the direction of defendant’s apartment. He confirmed that defendant claimed he stopped chasing Mr. Connor when he started ducking in the cars. Detective Englar testified that this was not consistent with the video.
22-KA-282 20 ASSIGNMENT OF ERROR NUMBER TWO41
Sufficiency of the evidence
By this assignment of error, defendant alleges that there was insufficient
evidence to support his conviction for second degree murder, as the State failed to
prove beyond a reasonable doubt that the killing was not committed in self-defense
or did not constitute manslaughter. He notes in brief that he raised these same
arguments in a motion for post-verdict judgment of acquittal. Defendant contends
the facts of trial showed that he was enraged by the aggression and provocation of
Mr. Connor, who insulted defendant’s girlfriend, started a verbal altercation with
him, retrieved his gun, and waited for defendant and his girlfriend outside of their
home. He asserts that there was no evidence that he had time for his “blood to
cool.” Therefore, he argues that the evidence supports the lesser-included offense
of manslaughter. Defendant also asserts that the killing was done in self-defense
and that Mr. Connor was the initial aggressor twice.
The State responds that it presented sufficient evidence to support a
conviction for second degree murder. The State submits that the surveillance video
did not clearly capture what occurred during the initial part of defendant and the
victim’s interaction. The State provides that defendant and Ms. Beasley asserted
that the victim pulled his gun first and caused them to feel threatened. The State
provides that defendant claimed the victim said he was going to make defendant
use his gun. The State points out that defendant alleged his weapon was
41 When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, such as the erroneous admission of evidence, the reviewing court should first determine the sufficiency of the evidence by considering all of the evidence, including evidence the trial court may have erroneously admitted. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Mayeux, 94-105 (La. App. 5 Cir. 6/28/94), 639 So.2d 828, 834. If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. However, if the appellate court finds that the totality of the evidence was sufficient to support the defendant’s conviction, it must then determine whether the trial court erred in admitting the questioned evidence and, if so, whether the trial court’s error requires a reversal of the conviction or was harmless. State v. Alexis, 98- 1145 (La. App. 5 Cir. 6/1/99), 738 So.2d 57, 64, writ denied, 99-1937 (La. 10/13/00), 770 So.2d 339.
22-KA-282 21 concealed. Thus, the State contends that the jury could have reasonably inferred
that defendant must have already threatened the victim with the gun at some point.
Additionally, regardless of whether Mr. Connor was the initial aggressor, the
State asserts that the verdict of second degree murder was warranted. The State
maintains that the facts of this case do not fit the requirements of a manslaughter
conviction. The State points out that Ms. Beasley did not believe Mr. Connor was
going to pull the trigger, that Mr. Connor said he was going to make defendant use
the gun, and that defendant referenced Mr. Connor trying to make him feel like a
“little boy.” The State avers that defendant chased Mr. Connor, discharged his gun
fourteen times, and mortally wounded the victim on his own doorstep. The State
contends that defendant’s killing of Mr. Connor was an irrational response to a
threat to his masculinity and reputation rather than safety. Accordingly, the State
maintains the defense did not prove the mitigatory factors by a preponderance of
the evidence in order to be entitled to the lesser verdict of manslaughter.
Similarly, the State asserts that defendant’s self-defense argument fails. The
State argues that under the circumstances, defendant could not have reasonably
believed that he was in imminent danger of losing his life. The State specifically
mentions that no evidence showed that Mr. Connor fired his weapon that day, he
disengaged from the encounter, and the surveillance video showed him fleeing.
The State asserts that defendant’s actions following the shooting were inconsistent
with a defense of justification.
On December 6, 2021, defense counsel filed a “Motion for New Trial and
Motion for Post Verdict Judgment of Acquittal.” In the motion for post-verdict
judgment of acquittal, he argued that the evidence was insufficient to support the
conviction of second degree murder and that manslaughter was the more
appropriate verdict. He further asserted that the State did not eliminate the
reasonable possibility that he acted in self-defense. At the hearing, defense
22-KA-282 22 counsel raised similar arguments, to which the State responded that there was
ample evidence presented for the jury to convict defendant of second degree
murder. The trial court denied defendant’s motion for post-verdict judgment of
acquittal.
The question of sufficiency of the evidence is properly raised in the trial
court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art.
821. State v. Mouton, 16-673 (La. App. 5 Cir. 4/26/17), 219 So.3d 1244, 1254,
writ denied, 17-1149 (La. 5/18/18), 242 So.3d 572; State v. Bazley, 09-358 (La.
App. 5 Cir. 1/11/11), 60 So.3d 7, 18, writ denied, 11-282 (La. 6/17/11), 63 So.3d
1039. A post-verdict judgment of acquittal shall be granted only if the court finds
that the evidence, viewed in a light most favorable to the State, does not reasonably
permit a finding of guilty. State v. Durand, 07-4 (La. App. 5 Cir. 6/26/07), 963
So.2d 1028, 1033, writ denied, 07-1545 (La. 1/25/08), 973 So.2d 753. An
appellate review of the denial of the motion for post-verdict judgment of acquittal
is controlled by the standards set forth in Jackson v. Virginia, infra. See State v.
Trice, 14-636 (La. App. 5 Cir. 12/16/14), 167 So.3d 89, 92.
In reviewing the sufficiency of the evidence, an appellate court must
determine if the evidence, whether direct or circumstantial, or a mixture of both,
viewed in the light most favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime have been proven beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310 So.3d 794, 804.
The directive that the evidence be viewed in the light most favorable to the
prosecution requires the reviewing court to defer to the actual trier of fact’s rational
credibility calls, evidence weighing, and inference drawing. State v. Clifton, 17-
538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 702. This deference to the fact-
finder does not permit a reviewing court to decide whether it believes a witness or
22-KA-282 23 whether the conviction is contrary to the weight of the evidence. State v. Caffrey,
08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.
2/5/10), 27 So.3d 297. As a result, under the Jackson standard, a review of the
record for sufficiency of the evidence does not require the reviewing court to
determine whether the evidence at the trial established guilt beyond a reasonable
doubt, but whether, upon review of the whole record, any rational trier of fact
would have found guilt beyond a reasonable doubt. State v. McKinney, 20-19 (La.
App. 5 Cir. 11/4/20), 304 So.3d 1097, 1103.
In making this determination, a reviewing court will not re-evaluate the
credibility of witnesses or re-weigh the evidence. Caffrey, supra. Indeed, the
resolution of conflicting testimony rests solely with the trier of fact, who may
accept or reject, in whole or in part, the testimony of any witness. State v. Bailey,
04-85 (La. App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La.
11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d
468 (2005). Thus, in the absence of internal contradiction or irreconcilable
conflicts with physical evidence, the testimony of one witness, if believed by the
trier of fact, is sufficient to support a conviction. State v. McKinney, 304 So.3d at
1103 (citing to State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146,
153, writ denied sub nom., State ex rel. Dixon v. State, 08-987 (La. 1/30/09), 999
So.2d 745).
Evidence may be either direct or circumstantial. Circumstantial evidence
consists of proof of collateral facts and circumstances from which the existence of
the main fact can be inferred according to reason and common experience. State v.
Gatson, 21-156 (La. App. 5 Cir. 12/29/21), 334 So.3d 1021, 1034 (citing to State v.
Williams, 05-59 (La. App. 5 Cir. 5/31/05), 904 So.2d 830, 833). When
circumstantial evidence is used to prove the commission of an offense, La. R.S.
15:438 provides that assuming every fact to be proved that the evidence tends to
22-KA-282 24 prove, “in order to convict, it must exclude every reasonable hypothesis of
innocence.” State v. Wooten, 99-181 (La. App. 5 Cir. 6/1/99), 738 So.2d 672, 675,
writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208. This is not a separate test from
the Jackson standard, but rather provides a helpful basis for determining the
existence of reasonable doubt. Id.
In this assignment of error, defendant challenges his conviction for the
charge of second degree murder. La. R.S. 14:30.1 defines second degree murder
as the killing of a human being when the offender: 1) has the specific intent to kill
or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted
perpetration of one of several enumerated felonies, even though he has no intent to
kill or to inflict great bodily harm. See State v. Lewis, 05-170 (La. App. 5 Cir.
11/29/05), 917 So.2d 583, 589-90, writ denied, 06-757 (La. 12/15/06), 944 So.2d
1277. Here, the written jury charges, signed by the trial judge, reflect that the jury
was informed that it could convict defendant under the theory that he had the
specific intent to kill or inflict great bodily harm. The jury was instructed as to
self-defense. They were also instructed that they could find defendant guilty of the
responsive verdict of manslaughter.
Specific intent is “that state of mind which exists when the circumstances
indicate that the offender actively desired the prescribed criminal consequences to
follow his act or failure to act.” La. R.S. 14:10(1). Because specific intent is a
state of mind, it need not be proven as a fact, but may be inferred from the
circumstances and actions of the accused, as well as the extent and severity of the
victim’s injuries. State v. Bone, 12-34 (La. App. 5 Cir. 9/11/12), 107 So.3d 49, 58,
writ denied, 12-2229 (La. 4/1/13), 110 So.3d 574. A defendant’s act of aiming a
lethal weapon and discharging it in the direction of his victim supports a finding by
a trier of fact that the defendant acted with specific intent to kill. See State v.
Hidalgo, 95-319 (La. App. 5 Cir. 1/17/96), 668 So.2d 1188, 1197.
22-KA-282 25 Upon review, we find that the State presented sufficient evidence under the
Jackson standard to establish the essential statutory elements of second degree
murder. Here, we find that the State carried its burden of proving that defendant
acted with specific intent to kill or inflict great bodily harm. Defendant admitted
that he shot at Mr. Connor with a gun. It appears that the victim died from
gunshots wounds to his legs that severed his femoral arteries in both legs.
Additionally, surveillance video was played during the trial which captured the
events on film from that day. Detective Englar indicated that defendant could be
seen chasing Mr. Connor with a gun in this video. Testimony also established that
numerous casings were recovered, which matched defendant’s gun, from the scene
that day. A defendant’s act of aiming a lethal weapon and discharging it in the
direction of his victim supports a finding by the trier of fact that the defendant
acted with specific intent to kill. See Hidalgo, supra.
Defendant does not deny that he shot and killed Mr. Connor, but rather
contends that he acted in self-defense. When a defendant in a homicide
prosecution claims self-defense, the burden is on the State to prove beyond a
reasonable doubt that the defendant did not act in self-defense. State v. Reed, 11-
507 (La. App. 5 Cir. 2/14/12), 88 So.3d 601, 607, writ denied, 12-644 (La.
9/14/12), 97 So.3d 1014. A homicide is justifiable “[w]hen committed in self-
defense by one who reasonably believes that he is in imminent danger of losing his
life or receiving great bodily harm and that the killing is necessary to save himself
from that danger.” La. R.S. 14:20(A)(1). The fact that an offender’s conduct is
justifiable, although otherwise criminal, constitutes a defense to prosecution for
any crime based on that conduct. La. R.S. 14:18; State v. Sparkman, 13-640 (La.
App. 5 Cir. 2/12/14), 136 So.3d 98, 106, writ denied, 14-477 (La. 11/26/14), 152
So.3d 897.
22-KA-282 26 The person who is the aggressor or who brings on a difficulty cannot claim
self-defense unless he withdraws from the conflict in good faith and in such a
manner that his adversary knows or should know his desire is to withdraw and
discontinue the conflict. La. R.S. 14:21. In addition, while there is no unqualified
duty to retreat, the possibility of escape from an altercation is a recognized factor
in determining whether the defendant had a reasonable belief that deadly force was
necessary to avoid the danger. State v. King, 11-767 (La. App. 5 Cir. 2/28/12), 88
So.3d 1147, 1153, writ denied, 12-660 (La. 9/14/12), 99 So.3d 35.
Factors to consider in determining whether a defendant had a reasonable
belief that the killing was necessary include the excitement and confusion of the
situation, the possibility of using force or violence short of killing, and the
defendant’s knowledge of the assailant’s bad character. State v. Lensey, 50,242
(La. App. 2 Cir. 11/18/15), 182 So.3d 1059, 1062, writ denied, 15-2344 (La.
3/14/16), 189 So.3d 1066. The determination of a defendant’s culpability rests on
a two-fold test: 1) whether, given the facts presented, the defendant could
reasonably have believed his life to be in imminent danger; and 2) whether deadly
force was necessary to prevent the danger. State v. Sinceno, 12-118 (La. App. 5
Cir. 7/31/12), 99 So.3d 712, 720, writ denied sub nom., State ex rel. Sinceno v.
State, 12-2024 (La. 1/25/13), 105 So.3d 713. The fact-finder determines whether
the State negated self-defense beyond a reasonable doubt. State v. Griffin, 14-450
(La. App. 5 Cir. 12/16/14), 167 So.3d 31, 38, writ denied, 15-148 (La. 11/20/15),
180 So.3d 315.
In the instant case, the testimony and evidence at trial established that on the
day of the shooting, Mr. Connor was working on his truck in the lot across the
street from his apartment complex on Clemson Place and next to defendant’s
apartment complex. It was established that in the afternoon, around 4:00 p.m., Ms.
Beasley left her apartment in order to walk to the store. On her way, she passed
22-KA-282 27 Mr. Connor. Defendant eventually met up with Ms. Beasley, and they walked
back to their apartment together. During their return, defendant and Mr. Connor
had a verbal altercation. Ms. Beasley explained that Mr. Connor was upset and
belligerent. She recounted that she felt like Mr. Connor wanted to start a fight, but
that he did not hit or swing at defendant. She denied that Mr. Connor had a gun or
that he threatened him at this time. Afterwards, Mr. Connor ran home, and she
believed the incident was over. The testimony and evidence established that Mr.
Connor returned to his apartment, went upstairs, and returned outside with a gun.
Ms. Beasley also provided that before leaving their apartment to walk their dog at
the park, defendant armed himself with a gun because they did know “what they
were going back outside to.” Mr. Connor was then chased by defendant until he
reached his apartment. He sustained three gunshot wounds and later died from his
injuries.
In this case, there were conflicting versions of the events surrounding the
shooting. Ms. Nelson testified at trial that she saw Mr. Connor “arguing” the day
of the shooting. She provided that he was so close to her that she could touch him.
She recalled that she was standing in her parking spot near her apartment and that
this was on the same side of the street as Mr. Connor. Ms. Nelson explained that
she could see him arguing with “a person.” She denied that Mr. Connor
approached that person. She further denied that Mr. Connor pointed a gun at that
person or that she saw that person with a gun. She recalled that she heard gunfire
and heard additional gunshots after hiding underneath a truck. However, she did
not remember telling officers that she saw the whole thing and that she saw
someone shooting Mr. Connor. Ms. Nelson confirmed that she previously told the
detective and the prosecutor that she saw Mr. Connor running and that she saw “a
person” running behind him.
22-KA-282 28 As discussed, Ms. Beasley explained that she thought the incident was over
when Mr. Connor ran home, and they left their apartment again to walk their dog.
She testified that defendant armed himself with a gun before leaving their
apartment. According to Ms. Beasley, after entering the parking lot, she and
defendant encountered Mr. Connor by a dumpster in front of their apartment
complex, where he pointed a gun at them. She then screamed and ran back
towards the stairs. She alleged that she heard Mr. Connor tell defendant that he
was going to make him use the weapon. Also, she denied telling Detective Englar
that she did not believe Mr. Connor was going to pull the trigger and that he was
“just fake stunting.” After being confronted with the audio recording of her
statement, she agreed that she told the detective this statement. After viewing
surveillance video from that day, Ms. Beasley denied that was “how it went.” She
asserted that Mr. Connor came by one of the dumpsters in her apartment. She then
agreed that photographs, which showed the dumpster’s location, reflected that they
were located on the opposite side of the building. She confirmed that this was the
side of the building that could not be seen in the video.
K.C. also provided that she heard gunshots, looked outside of the window,
and saw a man chasing her father with a gun across the street. She elaborated in
her forensic interview that her father was in front of this man and trying to dodge
the bullets.
Additionally, the State presented the testimony of the lead detective,
Detective Englar, who reviewed surveillance video from an apartment complex
located at Clemson Place. At trial, it was played for the jury, and the detective
narrated the events depicted in the video. He described that after Mr. Connor
returned from his apartment, he can be seen pacing back and forth and that two
other individuals arrive. He described that an individual can be seen by the cars
and that another figure could be seen moving back toward Clemson Place. He also
22-KA-282 29 confirmed that “two individuals come across with [Mr. Connor] and move across
the left.” He indicated that Mr. Connor could be seen moving back and forth in the
street. He explained that in the video, Mr. Connor moves from the street towards
the vehicles, jumps the trailer, and is chased by defendant. Detective Englar
provided that once Mr. Connor turned the corner near his apartment, defendant
could be seen stopping and running in the direction of his apartment.
Detective Englar estimated that based on his review of the surveillance
video, the route run by Mr. Connor and defendant that day was approximately 172
yards. Dr. Troxclair, a medical examiner, testified that Mr. Connor sustained three
gunshot wounds. She determined that his cause of death was multiple gunshot
wounds, and his manner of death was classified as a homicide. She said that
gunshot numbers one and three were fatal because they went through the left and
right femoral arteries. She indicated that gunshot number one entered the front of
his thigh. She explained that since the exit would for gunshot number three was
higher up on the thigh, Mr. Connor’s leg wound have to be bent if the perpetrator
was in front of him. She confirmed that this could be consistent with someone
running toward another person, who was firing a gun at them. Dr. Troxclair
opined that it would not be possible to sustain two severed arteries and then run
175 yards afterwards. In addition, she confirmed that the “wounds were consistent
with someone facing the shooter at the time he was shot, possibly with the leg
extended as if running[.]”
At trial, the jury heard that the victim and defendant each had a gun that day.
Based on his review of the surveillance video, Detective Englar believed that Mr.
Connor was armed with a revolver and that defendant was armed with a Glock
handgun. Defendant’s gun was subsequently found behind the apartments, but the
gun carried by the victim was not found. He believed that the other individuals
present that day might have moved the gun. While discussing the videotape, the
22-KA-282 30 detective confirmed that defendant could be seen stopping near the corner of Mr.
Connor’s apartment complex. Detective Englar indicated that four shell casings
matching “that 9 millimeter” were located at the exact place they saw defendant
stop in the video.42 Detective Englar, who also reviewed a presentation of the
ballistic evidence recovered from the scene, explained that the evidence recovered
from that day matched a 9 mm Glock pistol. He stated this was the same kind of
weapon that was recovered from the scene, which contained defendant’s DNA. He
denied that any of the projectiles discovered that day were consistent with a
revolver.43
While defendant did not testify, his statements to the police were published
to the jury. Defendant asserted that he was defending himself from Mr. Connor,
who was the aggressor. Defendant claimed that on the way back from the store,
Mr. Connor addressed him on “some hype sh*t.” He later told the detective that he
believed the camera showed defendant point his finger at the victim. Defendant
also explained that he told the victim, “f*ck you, you on heroine [sic], I ain’t
worrying about you.” He believed that this made Mr. Connor “go get a gun for
[him].” Defendant explained to the detective that he “walked off” after the initial
confrontation. He stated, “We bout to go inside and chill inside really. But I’m
like man bae f*ck that! N*gga ain’t goin run me, I’m a go to the park!” He further
stated, “I can go to the park, he ain’t goin stop me from going to no park, let’s go!”
Defendant alleged that Mr. Connor then came across the street with a “whole gun”
while they were on their way to the park.
42 The detective later indicated that these four casings matched the 9 mm Glock pistol that was located behind the apartments with a profile consistent with defendant’s DNA. 43 As previously noted, Ms. Terrebonne, a firearm and toolmark expert, testified that numerous fired cartridge casings found at the crime scene were fired from defendant’s Glock handgun. She was unable to determine that the copper jacket and copper projectile was fired in that gun, but she could say they were consistent with that type of gun.
22-KA-282 31 Defendant asserted that Mr. Connor told him that he was going to make him
“use that b*tch,” after which he pointed the gun at defendant. Defendant stated
that when Mr. Connor pointed his gun towards him, he “came out my book sack
and I went to shooting at, at him with my sh*t.” He explained that he ran behind
“a man on some sh*t cause he pointed his gun at me.” He alleged that defendant
ran behind a car and pointed the gun at him. Defendant told the detective that he
was “in a rage” and not in “his right mind anymore.” He explained that the victim
shot eight times. He claimed that he stopped shooting when Mr. Connor ran
toward people and cars.
The jury heard defendant’s self-serving statement, which Detective Englar
pointed out was inconsistent with the physical evidence in this case. Defendant
alleged that Mr. Connor pointed a gun at him and shot at him eight times; however,
no ballistic evidence was recovered that showed a gun consistent with the type Mr.
Connor had was fired that day. Additionally, defendant asserted that he stopped
firing when Mr. Connor ran in the direction of people, but the physical evidence
and witness testimony demonstrated that ballistic evidence was recovered around
Mr. Connor’s apartment door. The other testimony that supported defendant’s
theory of self-defense was that of his girlfriend, Ms. Beasley, who admitted that
she previously told the police that she did not believe Mr. Connor was going to
shoot and that he was “fake stunting.” She also ran away when she saw Mr.
Connor and did not see the actual shooting take place. 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; therefore, the credibility of
witnesses will not be reweighed on appeal. See Griffin, supra.
Additionally, before returning outside from his apartment, defendant
admitted that he armed himself with a weapon. The jury may have reasoned that,
at the point when Mr. Connor approached with a gun, defendant, who was located
22-KA-282 32 near his apartment, could have left the scene.44 Even if Mr. Connor was armed, the
jury could have concluded that by running away, he was disengaging from the
conflict, and defendant was no longer acting in reasonable self-defense when he
fired his gun multiple times and chased defendant until he reached his apartment
door. Also, the State presented evidence that supported that Mr. Connor was shot
closer to his apartment and not near the location of the altercation between them.
Four casings, which matched defendant’s weapon, were located near the corner of
Mr. Connor’s apartment, there was a bullet hole found in the mop outside Mr.
Connor’s apartment door, and there was projectile damage to the door. Dr.
Troxclair testified that an individual who suffered two severed arteries, like Mr.
Connor, would not have been able to run the equivalent of the total distance run by
him and defendant that day. Under these circumstances, the jury could have
concluded that defendant became the aggressor and the claim of self-defense was
not supported by the facts.
Further, after the shooting, defendant fled the scene, discarded the weapon,
and eventually relocated to Houma for seven months. These actions are
inconsistent with the theory of justifiable homicide. See State v. Wallace, 612
So.2d 183, 191 (La. App. 1 Cir. 1992), writ denied, 614 So.2d 1253 (La. 1993). A
defendant’s flight and attempt to avoid apprehension are circumstances from which
a trier of fact may infer a guilty conscience. State v. Cazenave, 00-183 (La. App. 5
Cir. 10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La. 10/26/01), 799 So.2d
1151.
In the instant case, the jury was presented with conflicting versions of the
events. The jury is the ultimate fact-finder in determining whether the State
44 The law does not permit an individual to track down his enemy, shoot him with a firearm, and then claim justification for the homicide because of prior threats. State v. Patterson, 10-415 (La. App. 5 Cir. 1/11/11), 63 So.3d 140, 149, writ denied, 11-338 (La. 6/17/11), 63 So.3d 1037 (citing State v. Arabie, 496 So.2d 554, 558 (La. App. 1 Cir. 1986), writ denied, 502 So.2d 565 (La. 1987)).
22-KA-282 33 negated self-defense beyond a reasonable doubt. See Griffin, supra. Here, after
the jury was presented with all of the evidence, they did not believe the shooting
was done in self-defense. See State v. Bowers, 51,545 (La. App. 2 Cir. 8/9/17),
244 So.3d 586, writ denied, 17-1637 (La. 6/15/18), 257 So.3d 685 (where the
Second Circuit held that the evidence was sufficient to support a verdict that the
shooting of the victim was not in self-defense. The appellate court indicated that
even if the victim was armed, by running away, he was disengaging from the
conflict, and the defendant was no longer acting in reasonable self-defense. In
addition, the defendant demonstrated that lethal force was not immediately
necessary when he shot into the ground, and the men, including the victim, then
fled the front yard. The appellate court held that there was a factual basis in the
record to support the conviction, and the jury’s decision was reasonably based on a
credibility call, and as such, it should not be disturbed on appeal).45 As such, a
rational jury could have found that the State proved beyond a reasonable doubt that
defendant did not act in self-defense.
Defendant also asserts that the verdict is based on insufficient evidence
because the evidence established provocation and heat of passion sufficient for
manslaughter. La. R.S. 14:31(A) defines manslaughter as “[a] homicide which
would be murder under either Article 30 (first degree murder) or Article 30.1
(second degree murder), but the offense is committed in sudden passion or heat of
blood immediately caused by provocation sufficient to deprive an average person
45 In Bowers, supra, the appellate court indicated that the case hinged on whether the jury believed the defendant was acting in self-defense, and there was significant disagreement between the witnesses as to whether the victim had a gun, and whether he was attempting to shoot the defendant when the defendant shot the victim. The evidence at trial indicated that the police recovered three spent shell casings from the defendant’s gun and no spent shell casings from the victim’s alleged handgun. A live round was found under the victim’s body when he was moved. The Second Circuit mentioned that while this was consistent with the defendant’s testimony that the victim’s gun jammed as he attempted to shoot the defendant, no gun was found on or near the victim, and the witnesses denied removing any gun from the victim’s clothes. Id. at 594. In addition, a medical examiner testified that the victim’s wound was consistent with him running, and the physical evidence suggested that he was shot in the back while retreating from the defendant. Id. at 594-95.
22-KA-282 34 of his self-control and cool reflection. “Sudden passion” and “heat of blood” are
not elements of the offense of manslaughter; rather, they are mitigatory factors that
may reduce the grade of the offense. State v. Thompson, 14-764 (La. App. 5 Cir.
1/28/15), 167 So.3d 884, 889; State v. Bauman, 08-1169 (La. App. 5 Cir. 5/12/09),
15 So.3d 177, 185, writ denied sub nom., State ex rel. Bauman v. State, 09-1533
(La. 4/23/10), 34 So.3d 300.
In order to be entitled to the lesser verdict of manslaughter, as well as to the
lesser verdict of attempted manslaughter, the defendant is required to prove the
mitigatory factors by a preponderance of the evidence. See Thompson, 167 So.3d
at 890; Bauman, 15 So.3d at 185. Provocation and time for cooling are questions
for the jury to determine under the standard of the average or ordinary person, one
with ordinary self-control. State v. Deal, 00-434 (La. 11/28/01), 802 So.2d 1254,
1260, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d, 42 (2002). The
question for the reviewing court is whether a rational trier of fact, viewing the
evidence in the light most favorable to the prosecution, could have found that the
mitigatory factors were not established by a preponderance of the evidence.
Thompson, supra.
In the instant matter, the jury evidently found that defendant failed to meet
his burden of proving that he acted in “sudden passion” or “heat of blood.” We
find that the evidence supports the jury’s conclusion.
As noted previously, defendant and Mr. Connor initially had a verbal
altercation prior to the shooting. Afterwards, Mr. Connor went to his apartment
before returning outside with a gun. It was established that defendant also armed
himself with a gun before they decided to leave their apartment again to walk their
dog. According to Ms. Beasley’s testimony and defendant’s statement, Mr.
Connor crossed the street, pointed a gun at them, and told defendant that he was
going to make him use his weapon. In his statement, defendant alleged that he
22-KA-282 35 became scared when he saw the weapon and had to defend himself. He claimed
that defendant was trying to aim at him when he got down behind the car.
Defendant alleged that he stopped shooting the gun when Mr. Connor ran in the
direction of people.
However, there was differing testimony about the actual shooting. Ms.
Nelson denied that she saw Mr. Connor approach the person that he was arguing
with that day. She testified that she did not witness Mr. Connor point his gun at
that person. She denied that either of them had a gun. As discussed, Detective
Englar testified about the events captured on the surveillance video from that date.
When discussing this video, Ms. Beasley denied that was “how it went.” Although
she claimed that Mr. Connor met them near one of their apartment complex’s
dumpsters, Ms. Beasley admitted that these dumpsters were not located within
view of the surveillance video. She also confirmed that she did not see any of the
figures in the surveillance video go around the corner toward her apartment.
Witness testimony and physical evidence indicated that defendant chased Mr.
Connor through the street until he reached his apartment door. Afterwards,
defendant concealed the weapon and discarded it behind an apartment complex.
He then received a ride out of the immediate area from Ms. Beasley’s neighbor
before fleeing to Houma for seven months.46
It was undisputed at trial that defendant and Mr. Connor both had guns on
the day of the shooting. In his statement, defendant admitted that after having a
verbal altercation with Mr. Connor, he armed himself with a weapon before going
to walk his dog at the park.47 He claimed that defendant came from across the
46 A defendant’s attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Cazenave, supra. 47 This Court has noted that “an argument alone does not constitute sufficient provocation to reduce murder to manslaughter.” State v. Burse, 19-381 (La. App. 5 Cir. 2/12/20), 289 So.3d 690, writ denied, 20-650 (La. 11/24/20), 305 So.3d 104; State v. Thompson, 18-273 (La. App. 5 Cir. 11/28/18), 259 So.3d 1257, 1267, writ denied, 18-2077 (La. 9/6/19), 278 So.3d 372 (citing State v. Johnson, 06-623 (La. App. 3 Cir. 11/2/06), 941 So.2d 696, 702, writ denied, 06-3024
22-KA-282 36 street, pointed a gun at him, and he started shooting. He also alleged that
defendant shot at him eight times and that he believed the victim hit something.
Despite defendant’s assertions, there was no testimony or evidence presented that
Mr. Connor fired a weapon that day. Ms. Terrebonne indicated that the gun visible
in Mr. Connor’s hand in the surveillance video appeared to be consistent with a
revolver. The testimony established that none of the ballistic evidence recovered
from the crime scene in this case was consistent with being fired from a revolver.
However, as discussed, Ms. Terrebonne testified that numerous fired cartridge
casings found at the crime scene were fired from defendant’s Glock handgun. She
was unable to determine that the copper jacket and copper projectile were fired
from that gun, but indicated that they were consistent with this type of gun.
Even if the jurors believed that at some point during the incident Mr. Connor
may have provoked defendant, they apparently concluded that any such
provocation by him was insufficient to deprive an average person of self-control,
but rather that defendant acted with deliberation and reflection, thus warranting a
verdict of second degree murder rather than manslaughter. Provocation is a
question of fact that must be determined by the trier of fact. State v. Scott, 09-138
(La. App. 4 Cir. 11/18/09), 26 So.3d 283, 288, writ denied, 09-2773 (La. 6/18/10),
38 So.3d 320. By returning a guilty verdict, it appears the jury did not find that
(La. 9/14/07), 963 So.2d 995). Furthermore, in cases where a defendant armed himself with a deadly weapon prior to engaging a victim, this Court has concluded the trier of fact could have found the mitigatory factors were not established by a preponderance of the evidence. See State v. Francois, 13-616 (La. App. 5 Cir. 1/31/14), 134 So.3d 42, 52, writ denied, 14-431 (La. 9/26/14), 149 So.3d 261 (Circumstances were insufficient to deprive a reasonable person of his self-control and cool reflection where the defendant armed himself before proceeding to the victim’s residence and the victim did not initiate a confrontation or exhibit provocative or aggressive behavior before being shot.); State v. Mills, 04-489 (La. App. 5 Cir. 3/29/05), 900 So.2d 953, 961, writ denied, 05-1470 (La. 1/13/06), 920 So.2d 235 (The defendant failed to show sufficient provocation to warrant a verdict of manslaughter when the defendant and the victim engaged in a verbal altercation prior to the defendant leaving the room and returning with a gun.).
22-KA-282 37 defendant established the mitigatory factors of “sudden passion” and “heat of
blood” by a preponderance of the evidence.48
Considering the circumstances of this case, we find that the arguments raised
by defendant relating to the sufficiency of the evidence are without merit. Viewing
the evidence in the light most favorable to the prosecution, a rational trier of fact
could have found beyond a reasonable doubt that defendant did not act in self-
defense and that defendant failed to carry the burden necessary to reduce the
conviction to manslaughter.
ASSIGNMENT OF ERROR NUMBER ONE
Allen charge
In this assignment of error, defendant argues that the trial court erred in
giving an improper Allen49 charge in its last instruction to the jury and that he is
thus entitled to remand for a new trial. Specifically, defendant asserts that
following three hours of deliberations, the jury informed the court that they could
not reach a verdict on the charge of second degree murder. He alleges that the trial
court first promised the jury that it would respect its decision when it returned. He
maintains that after an hour, the jury returned with eleven jurors voting for second
degree murder and one juror voting for manslaughter. He claims that the judge
assumed that the holdout juror’s vote had been a mistake, stating: “I don’t know if
the polling slip was filled out improperly by one of the jurors, but one of the jurors
filled out a slip without Second Degree Murder on it.” He contends that the court
did not verify whether the juror’s vote was a mistake; however, the court implied
that the juror had made a mistake before returning the jury to the jury room to fill
out the forms to reflect a unanimous vote. As such, defendant argues that the trial
48 Although the law may extend some limited indulgence to passion justly excited, it does not indulge revenge. Patterson, supra. 49 Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
22-KA-282 38 court seems to have directly told the holdout juror that she had failed to perform
her duty by voting for manslaughter.
In response, the State provides that defendant challenges the second jury
charge given by the trial judge, contending that it was a coercive Allen charge. The
State clarifies that this issue does not involve an improper Allen charge, but rather
it involves the trial court’s instructions to the jury after they indicated that they had
reached a verdict. The State asserts that the judge’s instructions were permissive.
It avers that the instructions did not rise to the level of an improper Allen charge,
nor did they imply that the trial court would not accept a mistrial.
During their deliberations, the jury presented two questions to the trial court.
The questions read: “In regards to manslaughter, could we have more clarity on the
definition of an ‘average’ person?”; “In regards to manslaughter, can you elaborate
on the ‘heat of the moment’”; and “Does manslaughter mean there is no intent? (is
there intent in manslaughter).” The jury was returned to the courtroom, and the
trial judge said that she would start off by reading the instructions regarding
manslaughter in response to their question about intent, which she did. The judge
further said that she would read the definition of specific criminal intent, which she
did. The judge also responded to the jury’s questions regarding an “average
person” and “heat of the moment.” The judge provided the legal definition of
“heat of passion.” Afterwards, the jury returned to deliberations.
The record reflects that at 5:20 p.m., the jury sent a note to the judge,
“Cannot agree on verdict for Count 1. We do have a verdict for Count 3.” The
trial judge stated to the parties, “So we pulled the Allen or Dynamite charge.
There’s a whole Dynamite charge.” After being questioned about what was
proposed to be read to the jury, the judge informed the parties that this was the
“updated Dynamite charge” as of October 2021. The judge explained that there
22-KA-282 39 was a formal version and an informal version. She stated that she was fine with
whichever one the parties decided.
The State informed the judge that this type of charge has been criticized and
disapproved for use in criminal cases, and the judge replied, “okay, I agree with
that.” After discussion with the State and defense counsel, the judge told the
parties that she was going to ask the jury to continue to deliberate and that the
court would abide by their decision.
After the parties confirmed, the trial judge instructed the bailiff to bring the
jury back into the courtroom. The judge then provided the following:
Okay. Ladies and Gentlemen, the question is, “Cannot agree on verdict for Count 1. We do have a verdict for Count 3.” I’m going to please, please, please ask you Ladies and Gentlemen to be as patient with each other as you possibly can. Remember that this is a very serious matter. We’re going to abide by your decision, whatever it is. If you cannot decide this case, the next time you come back, I will accept that, but we would all be very grateful to you if you can continue to deliberate and we’re asking you to please try once more. Okay.
Afterwards, the jury informed the court that it had returned a verdict of
guilty of second degree murder as to count one and guilty of aggravated criminal
damage to property as to count three. The transcript reflects the following: “The
Court: Ladies and Gentlemen of the jury, is that your verdict? (WHEREUPON,
JURY ANSWERS AFFIRMATIVELY).” At that time, defense counsel requested
that the jury be polled. Polling revealed that one juror’s slip indicated “guilty” to
manslaughter, which conflicted with the jury’s affirmative statement that it had
reached a verdict. The judge then stated the following:
I have to send them back. All right, Ladies and Gentlemen of the jury, I have to read you the jury instruction. And the jury instruction reads, you will be 12 in number and all of you must agree to reach a verdict to convict or acquit the defendant. Okay?
So it has to be a 12-0 verdict. So I’ll have to send you to the back. I don’t know if the polling slip was filled out improperly by one of the jurors, but one of the jurors filled out a slip without second degree
22-KA-282 40 murder on it. I don’t know what the decision was in the back and we’ll have to do it again. It has to be 12-0. Okay?
Defense counsel moved for a mistrial, asserting that anything else beyond
that point would be coercive to the holdout juror. The State responded that there
could have been a misunderstanding with the form. The State indicated that the
jurors appeared a “little bit shocked.” The State suggested that the trial judge
could offer the jury to fill the form out again. The State maintained that the jury
had informed the court that it came back with a unanimous verdict, and therefore,
it would be appropriate to ask them if they wished to conduct polling again. The
judge stated, “I just want to make sure there’s no mistake.” The following
exchange occurred:
The Court: Okay. All right, Ladies and Gentlemen, as I stated earlier, the verdict has to be 12-0. I need to understand— let me just ask in general if you have a unanimous verdict. Let me just ask that question. It has to be 12-0, unanimous. Okay.
So, unanimous means that everybody voted for the same thing. Unanimous doesn’t mean you have a verdict, but everybody voted for the same verdict. That’s what it means. I don’t know if there’s some confusion with that.
So with that said, I’m going to send you back or I can give you another polling slip, everybody fill it out again, but unanimous means unanimous verdict or 12-0 means that everyone voted for the same verdict. That’s what it means if there’s some confusion about that.
So, you don’t have to answer out loud right now, but that’s what it means and I just need you to understand that. I can give you another polling slip. All of you raise your hand if you want another polling slip or I can send you to the back. Okay, we’ll start all over again. The State: And Your Honor, can you just—I just ask for the record that all of the jurors have to raise their hand for another polling slip.
The Court: They all did. Let the record reflect. I think everybody raised their hand. Is there anyone who does not want another polling slip? Okay. All right, we’ll get—this is the first set.
22-KA-282 41 Defense counsel asserted that there was no provision allowing for the trial
court to poll the jury twice. Counsel contended that it was coercive to the holdout
juror that they did something wrong. At a bench conference, the judge stated, “All
right. I say let them fill out again. And if it comes back the same thing, then it is
what it is.” After filling out the slips a second time, the jury was polled again, after
which the trial judge ordered that both sets of polling slips be sealed. The judge
confirmed that the verdict was unanimous on each count.
With regard to count one, at 7:25 p.m., the first set of polling slips shows
that the last polling slip reflects that the juror circled, “2. Guilty of Manslaughter”
beneath the section that states, “As to the charge of La. Rev. Stat. 14:30.1- Second
Degree Murder, what was your individual verdict? (Please Circle)[.]” The slips
reflect eleven votes for guilty of second degree murder and one vote for guilty of
manslaughter. At 7:36 p.m., the second set of polling slips were completed by the
jury, showing a unanimous verdict for guilty of second degree murder.50
The Allen charge stems from the United States Supreme Court’s decision in
Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). State v.
Caston, 561 So.2d 941, 942 (La. App. 2 Cir. 1990). In Allen, the court approved of
a charge designed to break a jury deadlock and achieve jury unanimity. Caston,
561 So.2d at 942; State v. Eugene, 03-1128 (La. App. 5 Cir. 1/27/04), 866 So.2d
985, 991, writ denied, 04-515 (La. 1/14/05), 889 So.2d 263 (citing State v. Collor,
99-175 (La. App. 4 Cir. 4/26/00), 762 So.2d 96, 104, writ denied, 00-1487 (La.
3/9/01), 786 So.2d 116). The main focus of the original Allen charge was that the
jury minority, regardless of whether they were for conviction or acquittal, should
50 On December 6, 2021, defendant filed a “Motion for New Trial and Motion for Post Verdict Judgment of Acquittal.” Defendant based his motion for new trial on the grounds that the trial court erred by not granting a mistrial. After arguments, the trial court denied this motion on that same date. However, on appeal, defendant does not focus on the trial court’s denial of his motion for new trial.
22-KA-282 42 reconsider the reasonableness of their opinion because it was not shared by a
majority of the jury. Caston, 561 So.2d at 942.
The Louisiana Supreme Court has banned the use of the Allen charge and
subsequent modifications of it. Collor, supra (citing State v. Nicholson, 315 So.2d
639 (La. 1975)). While the Supreme Court recognized the authority of a trial court
to give further instructions to a jury unable to agree upon a verdict, it found the
Allen charge problematic for two reasons. First, the charge emphasized that the
jury had a duty to reach a verdict, implying that the trial judge would not accept a
mistrial. Second, when the duty to reach a verdict is coupled with an admonition
by the trial judge that those in the minority should rethink their position, there
exists an almost overwhelming pressure to conform to the majority’s view. Id.
(citing State v. Campbell, 606 So.2d 38, 40 (La. App. 4 Cir. 1992)). Therefore, if a
trial judge gives an Allen charge or any “coercive modification” of same, the trial
court will have committed reversible error. Collor, supra (citing Nicholson,
supra).
There is no requirement that a judge declare a mistrial at the initial sign of
trouble. State v. Anders, 06-589 (La. App. 3 Cir. 9/27/06), 941 So.2d 93, 101
(citing State v. Lowenfield, 495 So.2d 1245 (La. 1985), cert. denied, 476 U.S.
1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986)). It is within the discretion of the
trial court to urge jurors to come to an agreement. Anders, supra (quoting State v.
Governor, 331 So.2d 443 (La. 1976)).
In the instant case, defendant asserts that the trial judge gave the jury two
instructions—the second of which was an impermissible Allen charge. However,
as noted by the State, it appears that the alleged Allen charge that defendant
complains of actually occurred after the jury indicated that it had reached a verdict
and was subsequently polled. Defendant contends that the trial court seemed to
22-KA-282 43 have directly told the holdout juror that she had failed to perform her duty when
she voted for manslaughter instead of second degree murder.
Regarding the trial court’s first instruction to the jury, as evidenced by the
record, the jury informed the court that it was unable to come to an agreement.
The trial court and the parties subsequently discussed using an informal version of
an Allen charge. Following further discussions, the court instructed the jury to be
patient with each other and to remember that this was a very serious matter. The
court also told the jury that it would abide by its decision and that the trial court
would be grateful if they could continue to deliberate.
The trial court’s charge regarding further deliberations did not include the
elements that the United States Supreme Court found problematic in Allen. First,
the instruction did not imply that the trial judge would not accept a mistrial. It is
well-settled that utilizing the phrase “I am going to urge you to come to an
agreement,” is not palpable abuse. Governor, 331 So.2d at 453 (citing State v.
Rodman, 208 La. 523, 23 So.2d 204 (1945)); State v. Seals, 135 La. 602, 65 So.
756 (1914); State v. Fuselier, 51 La.Ann. 1317, 26 So. 264 (1899); State v.
Dudoussat, 47 La.Ann., 977, 17 So. 685 (1895) (“It is safe to state as a settled
proposition that when the Court is informed by a jury that they cannot agree, it is
not error for the Court to impress upon them the importance of the case, urge them
to come to an agreement, and send them back for further deliberation; for the
question of the discharge of the jury because of inability to agree on a verdict is
within the sound discretion of the trial judge, and the exercise of that discretion
will not be set aside in the absence of palpable abuse.”)
Also, in the instant case, the trial court did not attempt to coerce the jury
members holding the minority viewpoint to accept the majority position; rather, the
trial court emphasized the importance of patience and reminded the jury of the
serious nature of the matter. It is unlikely that the jurors interpreted the judge’s
22-KA-282 44 request that the jury practice “patience and understanding” in their deliberations in
hopes of reaching a verdict as an implication that the court would not accept a
mistrial. Eugene, 866 So.2d at 991. See State v. Wilson, 01-625 (La. App. 3 Cir.
12/28/01), 806 So.2d 855, 858, writ denied, 02-323 (La. 9/13/02), 827 So.2d 1121
(holding that the charge given by the trial court did not rise to the level of an Allen
charge or a modified Allen charge when the trial court did not imply to the jurors
that it would not accept a mistrial or attempt to coerce the jury members holding
the minority viewpoint to accept the majority position).
As previously noted, the Louisiana Supreme Court has recognized that there
will be times when a court may wish to give supplemental instructions after the
jury has retired and that the determination of when such supplemental instructions
shall be given is in the discretion of the trial court. Nicholson, 315 So.2d at 643.
However, in cases where the instructions given by the trial court constitute an
Allen charge or a modified Allen charge, the reviewing court shall find reversible
error. See State v. Dabney, 05-53 (La. App. 5 Cir. 6/28/05), 908 So.2d 60, 67
(holding that where the trial court told the jurors twice that they had a duty to reach
a verdict and attempted to coerce the jury members who held the minority
viewpoint to accept the majority position, the instruction constituted a modified
Allen charge); Campbell, supra (holding that instruction to jurors in the minority
view to strongly consider the position of the majority and that they have a duty to
reach a verdict was coercive and required reversal). Here, the elements of an
impermissible Allen charge exemplified in Dabney and Campbell, supra, are not
present in the charge given by the trial court to the jury.
Turning to defendant’s contention that the judge’s instructions during
polling were impermissible, the procedure for the written polling of the jury is set
forth in La. C.Cr.P. art. 812, which provides, in pertinent part:
22-KA-282 45 A. The court shall order the clerk to poll the jury if requested by the state or the defendant. The poll shall be conducted in writing by applying procedure of this Article, and shall be done in open court.
B. (1) The proper procedure for the written polling of the jury shall require that the clerk hand to each juror a separate piece of paper containing the name of the juror and the words “Is this your verdict?” Each juror shall write on the slip of paper the words “Yes” or “No” along with his signature. The clerk shall collect the slips of paper, make them available for inspection by the court and counsel, and the record the results.
(2) If a sufficient number of jurors as required by law to reach a verdict answer “yes” the clerk shall so inform the court. Upon verification of the results, the court shall order the clerk to record the verdict and order the jury discharged. If an insufficient number required to find a verdict answer “Yes,” the court may remand the jury for further deliberation, or the court may declare a mistrial in accordance with Article 775[.] …51
(Internal footnote added.)
In similar circumstances, the court in State v. Brooks, 633 So.2d 659 (La.
App. 1 Cir. 1993), writ denied, 94-308 (La. 5/20/94), 637 So.2d 475, affirmed a
conviction when the trial court’s poll of the jury revealed an insufficient number of
votes to return a guilty verdict. The trial court explained that ten jurors must agree
to return a guilty verdict. Id. When the jury foreman stated there had been ten
guilty votes in the jury room, the trial court asked if any of the jurors had changed
their minds. Thereafter, the trial court ordered the jury to return to the jury room,
reminding them again that ten jurors must agree on a verdict. Id. at 663. Based on
the juror polling, the defense moved for a mistrial or a mistrial by hung jury; the
trial court denied the motion. The First Circuit held there had been no abuse of
discretion in the trial court’s ruling because the jury had initially returned with a
51 “A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial.” State v. Smith, 04-340 (La. App. 5 Cir. 10/26/04), 888 So.2d 280, 285. “Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion.” Id. The standard to judge whether a mistrial should have been granted is whether the defendant “suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial.” State v. Smith, 433 So.2d 688, 696 (La. 1983); State v. Cushenberry, 407 So.2d 700 (La. 1981).
22-KA-282 46 verdict, although polling revealed it was not a legal verdict. Thus, there had been
no acquittal or deadlocked jury. The First Circuit held that the trial court properly
exercised its discretion, as provided in La. C.Cr.P. art. 812, by having the jury
return for further deliberations after advising them that ten votes were needed to
reach a verdict. Id.
In State v. Haynes, 99-1973 (La. App. 1 Cir. 6/23/00), 762 So.2d 1247,
1254-55, writ denied, 00-2243 (La. 6/15/01), 793 So.2d 1236, when the jurors
were initially polled, three members of the jury responded “no” when asked if the
verdict to convict was their verdict. The court noted the verdict was incorrect and
asked that the jury be re-polled; a proper verdict (10-2) was then returned. The
court found that the trial court’s actions were not coercive, but merely an attempt
to clarify the jury’s signal that a proper verdict had been reached. The court stated
that the record did not support the defendant’s claim that the juror changed her
vote from “guilty” to “not guilty.” Rather, it appeared that the juror was correcting
an error. The court held that while it would have been a better practice, upon
counting three “no” votes, to remand the jury for more deliberation or to determine
on the record whether the initial polling was erroneous or if further deliberations
were needed, a mistrial is required only where the jury is unable to reach a verdict
by proper concurrence.
Upon review, we find that a mistrial was not required under the instant
circumstances. Here, the jury initially indicated that it had reached a verdict in this
matter. The judge noted that the verdict was incorrect, asked if the jurors wanted
to be re-polled, and the jury indicated that they did, after which a proper
unanimous verdict was returned. The record does not support a conclusion that
trial court’s actions were coercive, but were merely an attempt to clarify the jury’s
signal that a proper verdict had been reached. Also, the record reflects that the
22-KA-282 47 judge inquired as to whether the jurors wanted to be re-polled, and all twelve
agreed. This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER THREE
Admission of CAC video
In assignment of error number three, defendant complains that the trial court
erred in admitting the CAC video. He argues that the contents of the CAC video
added nothing of relevance to the State’s case, but provided prejudicial emotional
evidence in the form of a “9-year old child that could not be cross-examined,
meaningfully countered, or contextualized.” He asserts that the CAC video served
“no independent relevant purpose other than to provide victim impact testimony
from a child soon after she experienced a severe trauma.” He maintains that the
effect was to inflame the jury’s sympathies and introduce irrelevant and prejudicial
evidence into the trial. As such, defendant requests that this Court vacate his
convictions and sentences and remand the case to the trial court for a new trial.
The State responds that the trial court did not abuse its discretion in allowing
the CAC video. The State asserts that the interviewed witness, K.C., was nine
years old at the time her father was shot and killed and that she was thirteen years
old when she testified at trial. The State contends that K.C.’s trial testimony was
very brief, and she indicated that she could not remember in response to questions.
The State maintains that K.C.’s forensic interview was much closer in time to the
event. As such, the State asserts that the evidence was relevant and provided a
detailed account of the incident. The State contends that the probative value of the
CAC video was not substantially outweighed by its prejudicial effect.
Nonetheless, the State asserts that any purported error would be harmless.
On October 18, 2021, the State filed a notice of additional information
wherein it provided K.C.’s statements about the events of the shooting. On that
same date, defense counsel filed a motion in limine to prohibit the introduction of
22-KA-282 48 any victim impact testimony and of the video containing the interview of the
victim’s daughter at the CAC.
Prior to the start of the trial testimony on October 18, 2021, the trial court
and the parties discussed defendant’s motion in limine. The State asserted that the
CAC video did not have any unduly prejudicial victim impact testimony within it.
The State indicated that it intended to play the entire CAC video. When the judge
questioned counsel about his objection, defense counsel indicated that the tape and
drawings that the child made were provided during discovery. Counsel explained
that the State assured him that he would not introduce the drawings. Thereafter,
the trial judge suggested that defense counsel listen to the CAC video, and if there
was anything prejudicial to his client, counsel bring it to the attention of the court
or the State before the tape is played.
On October 19, 2022, the trial court heard defense counsel’s objection on the
issue of the introduction of the CAC video. Defense counsel argued that the video
was duplicative of K.C.’s trial testimony, which the jury already heard. Counsel
asserted that the purpose of the statute allowing for video testimony is to protect
the child from any trauma or stress associated with testifying in court. Defense
counsel argued that K.C. had already testified and was asked the same questions as
the ones in the CAC video. In response, the State contended that the videoed
interview, which was conducted shortly after the incident, provided additional
information beyond K.C.’s testimony. The judge overruled defense counsel’s
objection, stating that there were multiple cases where testimony might be
duplicated. Further, the judge repeated that she had asked defense counsel and the
State to review the tape beforehand. Defense counsel noted its objection.
Later at trial, on October 20, 2022, before the CAC video was played for the
jury, defense counsel raised another objection to the introduction of the evidence.
Counsel maintained that the video did not comply with the requirements of
22-KA-282 49 Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
The State contended that the statute only required that the protected person be
made available. Afterwards, the judge indicated that K.C. had not been released
from her subpoena yet. The judge further provided that defense counsel was
instructed to inform the court of what he wanted extracted from the video and had
not done so. The judge overruled the objection. After the video was played,
defense counsel moved for a mistrial, arguing that the forensic interview was
reversible error. Counsel asserted that there were improper questions, answers,
hearsay, and victim impact statements. The State objected to the defense’s motion.
The judge denied the defense’s request for a mistrial.
Pursuant to La. R.S. 15:440.2(C)(1), K.C. was a “protected person” by virtue
of being under the age of seventeen and a witness in a criminal proceeding.52 La.
R.S. 15:440.4 and 15:440.5 both determine whether a videotaped statement of a
protected person may be admitted into evidence. La. R.S. 15:440.4(A) provides:
A. A videotape of a protected person may be offered in evidence either for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:
(1) That such electronic recording was voluntarily made by the protected person. (2) That no relative of the protected person was present in the room where the recording was made.
(3) That such recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement.
(4) That the recording is accurate, has not been altered, and reflects what the protected person said.
52 La. R.S. 15:440.2(C) defines a “protected person” as follows: C. For purposes of this Part “protected person” means any person who is a victim of a crime or a witness in a criminal proceeding and who is any of the following: (1) Under the age of seventeen years. (2) Has a developmental disability as defined in R.S. 28:451.2(12). (3) An adult as defined in R.S. 15:1503 who is eligible for protective services pursuant to the Adult Protective Services Act.
22-KA-282 50 (5) That the taking of the protected person’s statement was supervised by a physician, a social worker, a law enforcement officer, a licensed psychologist, a medical psychologist, a licensed professional counselor, or an authorized representative of the Department of Children and Family Services. La. R.S. 15:440.5 provides, in pertinent part:
A. The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if:
(1) No attorney for either party was present when the statement was made;
(2) The recording is both visual and oral and is recorded on film or videotape or by other electronic means;
(3) The recording is accurate, has not been altered, and reflects what the witness or victim said; (4) The statement was not made in response to questioning calculated to lead the protected person to make a particular statement;
(5) Every voice on the recording is identified;
(6) The person conducting or supervising the interview of the protected person in the recording is present at the proceeding and available to testify or be cross-examined by either party; (7) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and
(8) The protected person is available to testify. B. The admission into evidence of the videotape of a protected person as authorized herein shall not preclude the prosecution from calling the protected person as a witness or from taking the protected person’s testimony outside of the courtroom as authorized in R.S. 15:283. Nothing in this Section shall be construed to prohibit the defendant’s right of confrontation.
***
In the present matter, Ms. Millet, who conducted the CAC interview,
identified the video and stated that she was alone with K.C. during the interview,
non-leading questions were asked of K.C, the forensic interview was both audio
and video recorded, and everyone that spoke was identified. Ms. Millet also
confirmed that K.C.’s interview was made voluntarily. Thus, the CAC video of
22-KA-282 51 K.C. met all of the statutory requirements for admissibility and the video was
available for defense inspection.
Contrary to defendant’s assertions, K.C. testified at trial, and he had the
opportunity to cross-examine her. His constitutional right to confrontation of K.C.
was not violated. Thus, there is no merit to his argument that he was deprived of
his right to confront K.C.53 Further, the defense was provided the CAC video prior
to trial and was specifically instructed by the trial judge to inform the court of any
statements that the defense wished to be redacted, and did not do so. Accordingly,
we find no error in the trial court’s admitting the videotape. This assignment of
error is without merit.
ASSIGNMENT OF ERROR NUMBER FOUR
Admission of obstruction of justice charge evidence
In his fourth assignment of error, defendant asserts that the trial court erred
in admitting extraneous, prejudicial testimony and photos regarding the obstruction
of justice charge, to which he had pleaded guilty prior to trial. Defendant provides
that the State introduced evidence and photographs through the testimony of
Officer Dionne. He asserts that this evidence was cumulative, irrelevant, and
removed from the crime. He argues that this evidence was prejudicial because it
focused on defendant’s flight from the police. Defendant contends that the
evidence unfairly obscures the fact that the police did not believe Ms. Beasley
about Mr. Connor having a gun and deflects from the police’s failure to search for
Mr. Connor’s gun. Accordingly, defendant requests that this Court vacate his
convictions and sentences and remand the matter for a new trial.
53 Further, where the declarant is present to appear for cross-examination, the Confrontation Clause places no constraints at all on the use of the declarant’s prior testimonial statement. See State v. Hawkins, 11-193 (La. App. 4 Cir. 11/16/11), 78 So.3d 293, 298, writ denied, 11-2782 (La. 4/13/12), 85 So.3d 1246. The core protection in the Sixth Amendment Confrontation Clause is the right to confront the accuser. Id.
22-KA-282 52 The State responds that defendant’s argument is factually incorrect since he
was charged in the bill of indictment that on March 14, 2018, defendant “did
obstruct justice by tampering with evidence in a murder investigation by
intentionally removing the handgun he used to commit the murder of Kerwin
Connor from the scene[.]” The State further asserts that defendant’s obstruction
charge did not pertain to the events in Houma, where the contested evidence was
seized approximately seven months after the shooting. In addition, the State avers
that the contested photographs of these items were already introduced into
evidence as State’s Exhibit 61A-E without objection. The State contends that by
the time Officer Dionne testified, other witness testimony established that Ms.
Beasley and defendant went to Houma following the shooting, defendant stayed
there until his arrest seven months later, and Ms. Beasley provided him with living
essentials.
Nevertheless, even if the objection was timely and not moot, the State
maintains that State’s Exhibits 62-67 were properly admitted into evidence at trial.
The State asserts that this evidence was relevant to establish defendant’s
consciousness of guilt and to the credibility of Ms. Beasley’s testimony. Also, the
State asserts that it was entitled to present all evidence necessary for cohesiveness
to assist the jury in its fact-finding process. The State also contends that the
verdict rendered in this case was surely unattributable to the alleged error.
In the present case, Officer Dionne testified at trial as to his involvement in
the execution of a search warrant at 2683 Express Boulevard in Houma, Louisiana,
on October 20, 2018. He identified photographs of items that were seized during
that search. He described that the photographs showed the following: one of the
rooms in the residence, a debit card, two cell phones, a receipt that was seized, and
22-KA-282 53 a close-up of a receipt.54 The State then asked Officer Dionne to identify each of
the corresponding physical items that were seized that day.
At that time, defense counsel objected to the relevancy of the evidence
because defendant had pled guilty to the obstruction of justice charge. Counsel
averred that this evidence seemed related to that charge. The State responded that
the evidence was relevant to show defendant’s flight. Also, the State asserted that
the evidence was relevant as to Ms. Beasley’s credibility. The judge overruled the
objection. Afterwards, Officer Dionne provided that he retrieved video evidence
from the Dollar General store in Houma based on the receipt as well. Defense
counsel noted his previous objection.
Relevant evidence is defined by La. C.E. art. 401 as “evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” All relevant evidence is admissible, except as otherwise
provided by law. La. C.E. art. 402. Although evidence is relevant, it may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, or waste of time. La. C.E. art. 403. The determination concerning
relevancy of evidence is within the discretion of the trial judge whose rulings will
not be disturbed in the absence of an abuse of discretion. State v. Winfrey, 97-427
(La. App. 5 Cir. 10/28/97), 703 So.2d 63, 75, writ denied, 98-264 (La. 6/19/98),
719 So.2d 481 (citing State v. Carter, 96-358 (La. App. 5 Cir. 11/26/96), 685
So.2d 346, 351).
In the present case, defendant was charged as to count two with obstruction
of justice “by tampering with evidence in a murder investigation by intentionally
54 Officer Dionne confirmed that this was a receipt from the Dollar General store at 2693 “Grand Cayo Road” in Houma, Louisiana.
22-KA-282 54 removing the handgun he used to commit the murder of Kerwin Connor from the
crime scene” in violation of La. R.S. 14:130.1. As discussed, defendant pled guilty
to this count prior to trial on October 18, 2021. Upon review, we find that this
contested evidence is not related to defendant’s removal of the handgun in this
case. Therefore, this assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER FIVE
Misleading jury instruction
In his final assignment of error, defendant maintains that the trial court erred
by including an extraneous, unhelpful, out-of-context jury instruction pertaining to
specific intent in the legal definition of second degree murder. He contends that
the State requested the following special jury charge over his objection: “The act of
aiming a lethal weapon and discharging it in the direction of the victim supports a
finding by the trier of fact that the defendant acted with specific intent to kill.”
Defendant further contends that the instruction improperly caused the jury to
conclude that second degree murder was the correct verdict. He asserts that the
State referred to the act of aiming a lethal weapon and discharging it in the
direction of the victim three times in its closing arguments. He avers that a
“permissible version of the jury instructions would include some direction that a
defendant pointing and firing a weapon in the direction of the victim also supports
a finding of manslaughter.” As such, he contends that the error was not harmless.
The State avers that the trial court properly included its requested jury
charge. With respect to defendant’s argument that the jury should have been given
this instruction as to manslaughter, the State asserts that the failure of defense
counsel to object on this ground precludes appellate review of this issue.
On October 21, 2021, the State filed “State’s Request for Special Jury
Instructions.” The charge at issue is as follows:
22-KA-282 55 “The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill.” State v. London, 07-473 (La. App. 5 Cir. 11/27/07), 973 So.2d 782, 788-89 (internal citations omitted).
During the jury charge conference, the defense argued that the inclusion of
the above jury instruction gave the impression that this alone would be enough.
Defense counsel argued that the instruction would add confusion as to what is
required. In response, the State asserted that this was a direct quote from this
Court’s opinion in London, supra, and it was not misleading because aiming a
lethal weapon and discharging in the direction of the victim is sufficient to prove
specific intent to kill. The trial court stated that the jury charge only said that it
supports a finding of specific intent. The judge found that this was something that
the jurors could consider pursuant to the language in London, supra. The judge
noted defense counsel’s objection. The trial judge subsequently provided this
instruction to the jury.
La. C.Cr.P. art. 802 mandates that the trial court instruct the jury on the law
applicable to each case. State v. Butler, 462 So.2d 1280, 1285 (La. App. 5 Cir.
1985), writ denied, 541 So.2d 886 (La. 1989). La. C.Cr.P. art. 807 mandates that a
requested special charge shall be given by the court if it does not require
qualification, limitation, or explanation, and if it is wholly pertinent and correct. It
need not be given if it is included in the general charge or in another special charge
to be given. Id. The evidence presented at trial must support the requested special
charge. State v. Batiste, 06-824 (La. App. 5 Cir. 3/13/07), 956 So.2d 626, 636, writ
denied sub nom., State ex rel. Batiste v. State, 07-892 (La. 1/25/08), 973 So.2d 751.
Furthermore, the Louisiana Supreme Court has consistently held that a jury charge
must be considered as a whole, and particular expressions in a charge must be
construed in the context of the entire charge. Thus, it has declined to reverse the
conviction on the ground of an erroneous charge unless the disputed portion, when
22-KA-282 56 considered in connection with the remainder of the charge, is erroneous and
prejudicial. State v. Motton, 395 So.2d 1337 (La. 1981), cert. denied, 454 U.S.
850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981); State v. George, 346 So.2d 694 (La.
1977).
La. C.Cr.P. art. 801(C) provides: “A party may not assign as error the giving
or failure to give a jury charge or any portion thereof unless an objection thereto is
made before the jury retires or within such time as the court may reasonably cure
the alleged error.” This Court has held that a defendant is required to make a
timely objection under La. C.Cr.P. art. 801 in order to preserve a jury charge issue
for review. See State v. Gardner, 05-62 (La. App. 5 Cir. 6/28/05), 907 So.2d 793,
801. Defense counsel did not raise the additional ground that he now raises on
appeal—that the judge failed to direct the jury that this also supported a finding of
manslaughter. As such, this new basis for objection was not preserved for
appellate review.
In the instant case, defendant did make a timely objection to the trial judge’s
decision to include the jury charge at issue—“The act of aiming a lethal weapon
and discharging it in the direction of the victim supports a finding by the trier of
fact that the defendant acted with specific intent to kill.”—because it would be
misleading and cause confusion.
In State v. Green, 19-123 (La. App. 5 Cir. 12/26/19), 286 So.3d 1230, writ
denied, 21-51 (La. 3/9/21), 312 So.3d 583, cert. denied, -- U.S. --, 142 S.Ct. 206,
211 L.Ed.2d 88 (2021), cited by the State, the defendant argued that the trial court
erred by including the State’s requested special charge about specific intent. In
that case, pursuant to the State’s request, the trial court included the following in
the jury instructions: “Deliberately pointing and firing a deadly weapon at close
range are circumstances which will support a finding of specific intent to kill.
22-KA-282 57 State v. Broaden, 99-2124 (La. 2/21/01), 780 So.2d 349, 362.”55 Id. at 1244. On
appeal, the defendant argued that this requested charge was irrelevant, extraneous,
and prejudicial. He asserted that the charge was already covered in other jury
charges regarding criminal intent. Further, the defendant maintained that this
instruction, which mirrored the victim’s account of the shooting, could be viewed
as giving credibility to his testimony instead of allowing the jury to evaluate the
circumstances on their own and could have been seen by the jury as the trial
court’s endorsement of the State’s allegation. Id.
This Court, however, found no error in the trial court’s inclusion of the
State’s requested jury charge. Under one theory of second degree murder, the
State had to prove that the defendant had the specific intent to kill or to inflict great
bodily harm with respect to counts one and two. With respect to count three,
attempted second degree murder, the State had to prove defendant had specific
intent to kill. This Court pointed out that at trial, Mr. Lamb testified that defendant
pointed a gun at his face and shot him. Thus, the evidence presented at trial
supported the requested special charge. Further, this Court found that the special
charge did not require qualification, limitation, or explanation, and it was not
included in the general charge or in another special charge. Accordingly, this
Court held that the arguments raised by the defendant in this assigned error were
without merit. Id. at 1245.
At trial, K.C. testified that she heard gunshots and looked out of the window
and saw a man chasing her father. In her CAC interview, she told Ms. Millet that
she saw that man with a gun and that he was firing as her father was running away.
Additionally, surveillance video from Clemson Place was played for the jury.
Detective Englar asserted that defendant could be seen in the video chasing Mr.
55 The U.S. Supreme Court has denied certiorari in this matter. See Broaden v. Louisiana, 534 U.S. 884, 22 S.Ct. 192, 151 L.Ed.2d 135 (2001).
22-KA-282 58 Connor. Testimony and evidence was presented at trial that established that
ballistic evidence, including projectiles, jackets, and fired cartridge casings, was
collected from the scene that day. Ms. Terrebonne testified that multiple fired
cartridge casings found at the scene were fired from defendant’s gun, which was
submitted for testing. Defendant admitted in his statement that he fired his gun at
Mr. Connor as well.
In light of the foregoing, we find that the trial judge did not abuse her
discretion by including the State’s requested jury charge. Under the theory of
second degree murder presented at trial, the State had to prove that defendant had
the specific intent to kill or inflict great bodily harm with respect to count one. The
State presented evidence that defendant pointed a gun at Mr. Connor and fired
multiple shots at him. As such, the evidence presented at trial supported the
requested charge. Further, the special charge did not require qualification,
limitation, or explanation, and that it was wholly pertinent and correct. The special
charge was not included in the general charge or in another special charge.
Therefore, this assignment of error is without merit.
ERRORS PATENT REVIEW
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).
Written Motion to Reconsider Sentence
Shortly after defendant’s sentences were imposed, on December 6, 2021,
defense counsel orally moved for reconsideration of sentence. In the motion,
counsel noted that defendant has no prior criminal record and that the sentences
were the maximum sentences allowed. Counsel stated, “I’ll supplement that in
writing.” The trial judge responded, “Okay. That’s denied. You may supplement
in writing[.]”
22-KA-282 59 On December 7, 2021, defense counsel filed a timely written motion to
reconsider. In it, counsel noted that defendant was sentenced to forty years for
obstruction of justice. Counsel asserted that defendant accepted responsibility for
that offense and that he pled guilty before the start of the trial. Defense counsel
explained that defendant was sentenced to fifteen years at hard labor for
aggravated criminal damage to property. Counsel averred that the trial court failed
to consider potentially mitigating factors such as defendant’s young age, lack of a
criminal record, his acceptance of responsibility for the obstruction of justice
charge, and the fact that these two crimes were not especially heinous. Defense
counsel concluded that these maximum sentences and the life sentence imposed on
him for second degree murder are unconstitutionally excessive.
The order attached to the written motion provided that “IT IS ORDERED
that the District Attorney for the Parish of Jefferson show cause on the 6th day of
December, 2021, at 8:45 a.m. why the defendant’s Motion to Reconsider should
not be granted.” The trial judge signed the order on December 8, 2021.
Additionally, the order also contained: “This Motion was made orally and denied
on 12-6-2021 JBD” and “The Court ordered Mr. Thomas to follow up with a writte
[sic] motion JBD.”
La. C.Cr.P. art. 881.4 provides that if it is “necessary to an appropriate
disposition of a motion to reconsider sentence, the appellate court may remand the
case to the district court with instructions to supplement the record or to hold an
evidentiary hearing.”56 However, upon review, we find that the trial judge’s
language in its December 8, 2021 order could reasonably be interpreted as the
court indicating that the written motion to reconsider sentence was one and the
56 La. C.Cr.P. art. 916(3) provides that the trial court retains jurisdiction to “[c]orrect an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.”
22-KA-282 60 same as the defense counsel’s December 6, 2021 oral motion to reconsider
sentence, which had already been denied on December 6, 2021. As such, because
we find that the trial court ruled on the written motion to reconsider sentence, no
corrective action is necessary.
Guilty Plea Sentence Discrepancy
There appears to be a discrepancy regarding the imposed sentence as to
count two for obstruction of justice. When the trial judge actually imposed the
sentence, the transcript reflects that she stated, “As to count 2, the obstruction of
justice, it is the sentence of this Court that you serve four years of hard labor.”
(Emphasis added.) Shortly thereafter, the State entered a nolle prosequi on
defendant’s other charges, and it requested that defendant be remanded pending his
current transportation to the Department of Corrections. The trial judge indicated
that she and defendant needed to complete the Boykin form. The judge provided,
“Let me make the record clear that [defendant] pled guilty in Case 18-6525 to the
obstruction of justice charge and sentencing was deferred until today and the
obstruction of justice was the 40 years.” (Emphasis added.)57
However, it appears that upon sentencing defendant as to count two, the trial
court may have mistakenly stated four years instead of forty years or this could be
a typographical error in the transcript. Further, the sentencing minute entries and
the State of Louisiana Uniform Commitment Order (“UCO”) both reflect that
defendant was sentenced to forty years at hard labor on count two. In their
appellate briefs, the parties agree that defendant was sentenced to forty years on
count two. Accordingly, no corrective action is necessary in this regard.
57 The transcript generally prevails when there is a discrepancy between the transcript and the minute entry. See State v. Lynch, 441 So.2d 732, 734 (La. 1983).
22-KA-282 61 Concurrent Nature of Sentences
The December 6, 2021 sentencing minute entry and the Nunc Pro Tunc
minute entry for that date reflect: “The Court ordered that the above sentence is to
run concurrently with each count, and any and every sentencing the Defendant may
be serving.” The UCO indicates that the sentences are concurrent with “each
count, and any and every sentence the defendant may be serving.” The sentencing
transcript reflects that the trial judge said: “Counts 1, 2, 3 are ordered to run
concurrently with each other and concurrently with any other sentence with credit
for all time served from the date of the arrest.” (Emphasis added.)
La. C.Cr.P. art. 879 provides that “[i]f a defendant who has been convicted
of an offense is sentenced to imprisonment, the court shall impose a determinate
sentence.” Upon review, we find that defendant’s sentences are indeterminate
because the trial court did not specify whether the sentences were ordered to run
concurrently with specific sentences imposed or simultaneously with any other
sentences imposed that defendant may have been serving at the time of his
sentencing. This Court has recognized this distinction in sentencing, finding the
“open-ended” statement that a sentence be served with “any other sentence” is
distinguishable from a sentence ordered to be served concurrently with “any
sentence [the defendant] may be serving,” requiring correction. See State v. Jones,
13-367 (La. App. 5 Cir. 12/27/13), 131 So.3d 1065, 1070. Accordingly, we vacate
defendant’s sentences and remand this matter to the trial court for resentencing.
See State v. Nellon, 18-385 (La .App. 5 Cir. 12/19/18), 262 So.3d 441, 445.58
58 In Nellon, supra, the transcript reflected that the trial judge ordered the defendant’s two sentences to run “concurrent with any other sentence.” The UCO, however, more specifically stated that the sentences “shall be concurrent with any or every sentence the offender is now serving” and additionally reflected that the sentences are to be served concurrent with “any other sentence the Defendant may be serving [in] Jefferson, 24th JDC.” This Court found the defendant’s sentences to be indeterminate because the trial judge in sentencing the defendant did not specify whether the sentences were ordered to run concurrently with specific sentences imposed or with any other sentences imposed that the defendant may have been serving at the time of his sentencing. Id. at 445.
22-KA-282 62 Post-Conviction Relief Advisal
The sentencing minute entry indicates that defendant was advised that he
had “two (2) years after judgment of conviction and sentence has become final to
seek post-conviction relief.” However, a review of the transcript of the
proceedings on December 6, 2021 reveals that the trial judge did not advise
defendant of the prescriptive period for filing post-conviction relief. The transcript
generally prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
Therefore, on remand, after resentencing, the trial court is ordered to advise
defendant that no application for post-conviction relief, including applications that
seek an out-of-time appeal, shall be considered if it is filed more than two years
after the judgment of conviction and sentence has become final under the
provisions of La. C.Cr.P. arts. 914 or 922.
DECREE
For the foregoing reasons, defendant’s convictions are affirmed. For the
reasons expressed above, defendant’s sentences are vacated and the matter is
remanded for resentencing and advisal of post-conviction relief as per La. C.Cr.P.
art. 930.8, as instructed above.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING WITH INSTRUCTIONS
22-KA-282 63 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 MAY 24, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KA-282 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE) ANDREA F. LONG (APPELLEE) DOUGLAS E. RUSHTON, JR. (APPELLEE) THOMAS J. BUTLER (APPELLEE) MEGHAN H. BITOUN (APPELLANT)
MAILED HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053
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