State of Louisiana Versus Malcolm J Reed

• Court: Louisiana Court of Appeal
• Decided: December 30, 2024
• Docket: 24-KA-59
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 24-KA-59

VERSUS FIFTH CIRCUIT

MALCOLM J REED COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 21-5868, DIVISION "M" HONORABLE SHAYNA BEEVERS MORVANT, JUDGE PRESIDING

December 30, 2024

TIMOTHY S. MARCEL JUDGE

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Timothy S. Marcel

CONVICTION AND SENTENCE AFFIRMED TSM SMC FHW COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Juliet L. Clark

COUNSEL FOR DEFENDANT/APPELLANT, MALCOM REED Graham L. Bosworth Autumn A. Town MARCEL, J.

Defendant, Malcolm J. Reed, appeals his conviction and sentence for

second-degree kidnapping. In the instant appeal, defendant designates six

assignments of error. For the reasons that follow, we affirm the conviction and

sentence.

PROCEDURAL HISTORY

On October 28, 2021, the Jefferson Parish District Attorney filed a bill of

information charging defendant with second-degree kidnapping in violation of La.

R.S. 14:44.1, armed robbery with a firearm in violation of La. R.S. 14:64,

(invoking the sentencing provision under La. R.S. 14:64.3(A)) and aggravated

battery with a “gun and/or baseball bat” in violation of La. R.S. 14:34.1 Defendant

pled not guilty to all counts on October 28, 2021. Named in the bill of information

as a co-defendant is defendant’s wife, Mishanda Reed.

The case proceeded to jury trial on September 26, 2023. Before trial began,

the State amended the bill of information to reflect that count two, armed robbery

with a firearm, was nolle prossed. On September 28, 2023, the jury unanimously

found defendant guilty as charged on count one, second-degree kidnapping, and

guilty of the lesser offense of simple battery on count three. Defendant’s post-trial

motions for new trial and for post-verdict judgment of acquittal were denied by the

trial court.

As to count one, second-degree kidnapping, the trial court sentenced

defendant to thirteen years imprisonment at hard labor, with the first two years to

be served without the benefit of parole, probation, or suspension of sentence. For

the crime of simple battery, the jury’s responsive verdict on count three, defendant

1 This filed Bill of Information superseded the Bill of Information filed by the Jefferson Parish District Attorney on October 26, 2021, which charged defendant with two counts of aggravated battery with a knife in violation of La. R.S. 14:34, and armed robbery with a firearm in violation of La. R.S. 14:64, with the sentencing provision contained in La. R.S. 14:64.3(A).

24-KA-59 1 was sentenced to six months in Jefferson Parish Correctional Center, to be served

concurrently with count one.

On October 16, 2023, defendant filed a motion to reconsider sentence, a

notice of appeal, and a motion for bail on appeal. The trial court denied the

defendant’s motion to reconsider sentence, granted the notice of appeal, and denied

the motion for bail on appeal on October 20, 2023. This timely appeal follows.

FACTS

At trial, Avery Cooper testified that he and Mishanda Reed, defendant’s

wife, were classmates at Xavier University. They had known each other since

1997, and dated for a few years. After that relationship ended, they remained in

touch until Mishanda Reed married defendant and moved to Los Angeles,

California. Mr. Cooper moved to Houston, Texas around the same time.

After five years without contact, Mrs. Reed contacted Mr. Cooper in 2018

about an upcoming college reunion. While Mr. Cooper was unable to attend their

college reunion, he did meet Mrs. Reed in Los Angeles during a flight layover.

They remained in contact afterwards. In 2020, they met in New Orleans for drinks

and dinner, and planned another meeting in New Orleans in June 2021.

On June 27, 2021, Mr. Cooper drove from Houston to meet Mrs. Reed in

New Orleans. During his drive, he received a text message from Mrs. Reed which

identified a hotel at 1200 Canal Street as their meeting location. He called Mrs.

Reed when he arrived at the hotel. In that call, Mrs. Reed informed him that she

changed the meeting place to an Airbnb in Kenner, Louisiana, and asked Mr.

Cooper to pick her up at that location.

Mr. Cooper recalled that Mrs. Reed met him outside the Airbnb wearing a

yellow dress when he arrived. She then went to retrieve her purse from inside the

Airbnb; Mr. Cooper followed her to use the restroom. Once inside, Mrs. Reed

24-KA-59 2 informed Mr. Cooper that there were treats on the second floor. Mr. Cooper

believed the treats would be THC gummies. He went up the stairs, noticed her

purse, and called out to Mrs. Reed. At that moment, he recalled seeing a man, later

identified as defendant, enter through the front door with a gun and an aluminum

baseball bat. Mr. Cooper described the man appearing angry and upset, and

believed he was there to rob them. He yelled from the top of the stairs for Mrs.

Reed to call the police. She did not respond.

Standing on the bottom step, defendant looked up, made eye contact with

Mr. Cooper, and said “Get your f**king a** down here.” He recalled repeatedly

screaming for Mrs. Reed but did not see her. As Mr. Cooper reached for his

phone, defendant pointed his gun at Mr. Cooper, and threatened, “If you pull out

that f**king phone, I’m going to shoot your a**.” Mr. Cooper recounted that he

crossed over the stair railing, which he held onto outside of the staircase. Mr.

Cooper testified that defendant then gestured towards him, and said, “Pull your a**

back over, pull your a** back over.” He complied, crossing back over the rail into

the staircase, scraping his shin in the process. Once he was back inside the

staircase, defendant instructed Mr. Cooper to “Get on your f**king knees.”

Believing they were being robbed and that defendant had the wrong place,

Mr. Cooper told defendant that they were not the people he was looking for.

Defendant, who had moved up the stairs to Mr. Cooper, replied, “Oh, I got the

right f**king person.” Mr. Cooper testified that he then lunged at defendant.

Defendant reacted by hitting Mr. Cooper’s leg with the bat. Mr. Cooper fell to the

ground and they proceeded to wrestle over the gun in defendant’s possession. This

ended, according to Mr. Cooper, when, defendant pointed the gun at him. Now at

gunpoint, Mr. Cooper told defendant that Mrs. Reed was getting help and the

police would arrive soon. Defendant responded by yelling downstairs, “Get your

a** up here.”

24-KA-59 3 Mrs. Reed soon appeared upstairs. Mr. Cooper recalled looking at her in

confusion and defendant saying to him, “That’s right. You figured it out.” Mr.

Cooper asked her if she had set him up. Defendant told Mr. Cooper, “Don’t

f**king talk to her” and hit him again with the bat. Defendant then instructed Mrs.

Reed to go downstairs and retrieve his bag. After she returned with the bag,

defendant, who was still holding the gun and bat, told her to get out the zip ties.

Mrs. Reed used the zip ties to bind Mr. Cooper’s wrists. Once his hands

were secured in zip ties, Mr. Cooper testified that defendant placed the bat on the

bed and put the gun away. Mrs. Reed then secured Mr. Cooper’s legs with zip ties,

as defendant instructed. Defendant then instructed her to search Mr. Cooper’s

pockets. Mrs. Reed removed Mr. Cooper’s mobile phone, keys and wallet from his

pants pockets. She handed the phone to defendant. In his testimony, Mr. Cooper

recalled realizing at this point that defendant was Mrs. Reed’s husband. He told

defendant that Mrs. Reed said she was divorced, to which defendant responded by

picking up the bat and said, “Don’t f**king say that.”

Using the password Mr. Cooper provided, defendant unlocked and began

scrolling through the phone. Mr. Cooper testified that defendant said, “Okay,

we’re getting ready to play this game. If you lie to me—every time you lie to me,

I’m going to hit you with this aluminum bat.” Defendant went on to tell Mr.

Cooper, “If there’s anything in here about f**king, you’re a dead man.” Mrs. Reed

informed defendant there was nothing about a sexual relationship on Mr. Cooper’s

phone, to which defendant replied, “I don’t know because you erased all of your

text messages before I could go through your phone, so I have to go through his.”

Mr. Cooper described the game as defendant posing questions to him while

holding a gun to his head. His hands and legs were bound in zip ties. When

defendant was not satisfied with answers to questions, he struck Mr. Cooper in the

face and on the head with the gun. One blow chipped Mr. Cooper’s tooth. As the

24-KA-59 4 game progressed, Mrs. Reed asked defendant if he was satisfied and whether they

reached a “level-2”, to which defendant repeated, “We’re getting there.” Mr.

Cooper understood “level-2” as referring to a less intense or a more calming stage.

At various points of the game, defendant asked Mrs. Reed to report the time.

While he was upstairs with defendant, Mr. Cooper recalled asking Mrs.

Reed why she had set him up. He urged her to tell defendant that she reported her

marital status to him as divorced. Defendant reacted to this by hitting Mr. Cooper

and instructing him not speak to Mrs. Reed.

Mr. Cooper testified that throughout this time, which he described as several

hours, Mrs. Reed went up and down the stairs multiple times. At some point after

receiving a time report from Mrs. Reed, defendant instructed Mrs. Reed to retrieve

Clorox and towels from downstairs. Mrs. Reed proceeded to clean up bloodstains

around Mr. Cooper with Clorox and rags as defendant stood over him holding the

bat and his mobile phone. Once the clean-up was completed, defendant instructed

Mrs. Reed to place everything in the washing machine.

Afterwards, defendant set up a plan for leaving the Airbnb. Mrs. Reed

would get defendant’s car from around the corner and follow defendant in Mr.

Cooper’s car. Mr. Cooper recalled that Mrs. Reed walked out with keys in her

hand. She returned inside shortly after and advised they needed to be careful

because people were outside. Mrs. Reed then went back downstairs to retrieve

defendant’s car.

Mr. Cooper testified that while he and defendant were alone in the Airbnb,

defendant removed a knife from his bag. He believed defendant intended to attack

him with the knife, and pled with defendant to stop. Defendant replied, “No. It’s

going to be all right. It’s going to be all right. I’m just going to make you look

like the African tribes.” Defendant then started cutting beneath his eye and

continued to cut his face several times with the knife. Although he did not see

24-KA-59 5 Mrs. Reed, Mr. Cooper knew she was still in the residence because he heard her

scream, “That’s enough.” Defendant then stopped.

Defendant cut the restraints from Mr. Cooper’s legs, and placed them in a

bag, saying they needed to leave. Mr. Cooper explained to defendant that he was

unable to get up due to numbness in his legs and hands. Defendant responded,

“No, you’re going to get your a** up” and proceeded to lift Mr. Cooper by the

armpits and lead him down the stairs. Mr. Cooper recalled being escorted outside

from behind by defendant; defendant kept his hands on Mr. Cooper as they

proceeded to his car. Next to his car was a black sedan with Mrs. Reed in the

driver’s seat. Defendant informed Mr. Cooper of the plan to leave. They would be

in Mr. Cooper’s car with Mrs. Reed following in defendant’s car.

Mr. Cooper was placed in the front passenger seat of his own car, describing

himself as a “captive” in it. Defendant, after speaking with Mrs. Reed, returned to

Mr. Cooper’s car, placed a bag in the backseat, got into the driver’s seat, started the

car, and drove off. Mr. Cooper recalled thinking they would “dump [him]

somewhere.” After driving for a distance, defendant pulled over, turned on the

hazard lights, and placed a phone call to Mrs. Reed to ask her location. She

reported that she was pulling up behind them. Defendant removed Mr. Cooper

from his vehicle and placed him in the back seat of defendant’s car. He instructed

Mrs. Reed to put her phone on speaker and instructed they were not to speak to one

another. Defendant then returned to Mr. Cooper’s car. While alone with Mrs.

Reed, Mr. Cooper asked her for help. She shook her head no.

From the backseat of defendant’s car, Mr. Cooper recalled observing

defendant rummaging through his car and wiping down the steering wheel. Mr.

Cooper then saw defendant get out of the car with his mobile phone, remove its

SIM card, then smash the phone with a hammer. Mr. Cooper recalled defendant

got into the back seat of the car with the bag next to him, closed the car door, and

24-KA-59 6 instructed Mrs. Reed to drive away. Defendant told Mr. Cooper, “You better

consider yourself f**king lucky that I can control my temper.” When the vehicle

stopped, defendant ordered Mr. Cooper out of the car and onto his knees. After

initially protesting, Mr. Cooper complied, getting onto his knees. Defendant then

used the knife to remove the zip ties binding Mr. Cooper’s hands, cutting into his

wrists in the process.

Mr. Cooper testified that after the zip ties were removed, defendant

instructed Mrs. Reed to prepare to drive. Defendant then pushed Mr. Cooper over

onto the road. Defendant re-entered the car and Mrs. Reed drove the two away.

Mr. Cooper recalled there was little traffic on the road and he had no way to call

for help. Eventually, a truck stopped and the driver called the police.

The police and an ambulance eventually arrived. Mr. Cooper described

being in severe pain and disbelief. He was transported by ambulance to a hospital,

where he received treatment for a concussion, a potential broken left arm, right leg

swelling, and internal bleeding requiring a blood transfusion. He was admitted to

the ICU for four days. Mr. Cooper testified that he requested anonymity from

hospital administrators because he feared the perpetrators might return. On cross-

examination at trial, Mr. Cooper testified that his right leg was scraped while

crossing over the stair railing and defendant struck his left leg with a baseball bat.

He also testified on cross-examination about having other health conditions,

acknowledging those as possible reasons for the length of his stay in ICU. He

testified that he still has a chipped tooth, a major scar on his leg, and visible scars

on his wrists and cheeks from the incident.

While at the hospital, police presented Mr. Cooper with photographs. He

identified Mrs. Reed and defendant in the lineups as the individuals who inflicted

his wounds. He also identified defendant as the individual who hit him with the

baseball bat. During his hospital stay, Mr. Cooper gave a recorded statement to

24-KA-59 7 police in which he reported being beaten with a hammer. At trial, Mr. Cooper

acknowledged the recorded statement but testified that defendant only used the

hammer to smash his phone.

After being released from the hospital on July 1, 2021, Mr. Cooper learned

that his vehicle had been recovered with the keys and wallet found inside. He also

gave a second recorded statement to police. In his trial testimony, Mr. Cooper

addressed inconsistencies in statements given to police and responding EMS. He

explained that the experience was traumatic and that he did not remember every

moment of it but had no intention to mislead police in any way.

Carl Theriot, a paramedic with East Jefferson EMS, testified that he

responded to a call about a man lying on the road in Kenner on June 27, 2021. He

authored a report that detailed multiple injuries, including exposed tissue, and he

documented an unstable mid-shaft tibia that Mr. Cooper was given 50 micrograms

of Fentanyl for pain relief. He identified several photographs showing bruising on

Mr. Cooper’s shoulder, blood on his forearm and wrist, a bruise on his elbow, and

confirmed that these images accurately represented Mr. Cooper’s condition that

night. In the photograph of Mr. Cooper’s left leg, he identified some visible blood,

but he did not document any specific injury and could not confirm if there was one.

He also described the cut on Mr. Cooper’s cheek as an abrasion.

Officer Billy Hingle of the Kenner Police Department testified that he

responded to a call on June 27, 2021 about a man who may have been beaten and

was asking for help in the 300 block of Alliance Street. Upon arrival, he recalled

being flagged down and directed to Mr. Cooper on the side of the road. He

observed wounds on Mr. Cooper’s front leg, with visible tissue and blood, as well

as marks on his knees. Mr. Cooper was lying on his back and appeared disoriented

and unsure of what had occurred. Officer Hingle recalled Mr. Cooper could not

provide clear information about the incident. When EMS lifted Mr. Cooper from

24-KA-59 8 the ground, Officer Hingle discovered Mrs. Reed’s business card stained with a

red, blood-like substance.

A search warrant was obtained for the Airbnb. It was learned that the

Airbnb owner rented the loft to Mrs. Reed for three days beginning June 25, 2021.

During his search of the residence, Officer Hingle recalled smelling bleach and

observing that the floor appeared recently mopped. He saw a red blood-like

substance on the stair rails and similar splatters upstairs by the bed. Photographs

were taken, and evidence was collected, including pillowcases and blankets from

the washing machine. Swabs were collected from red, blood-like stains on the

railing, near the bed, and other surfaces. Officer Hingle did not locate a gun, bat,

knife, hammer, zip ties, or florescent ratchet straps inside the Airbnb.

After leaving the Airbnb, Officer Hingle drove north on Hollandey Street.

Approximately a quarter mile from the Airbnb, he came upon a black Ford Fiesta

with its flashers on. The car was parked parallel to the spot where Mr. Cooper was

found on Alliance Street. Its license plate number confirmed that the vehicle

belonged to Mr. Cooper. The vehicle was towed to the Kenner impound lot, where

photographs were taken of the car. Mr. Cooper’s wallet was recovered from the

driver’s floorboard, and the keys were found in the ignition.

Based on Mr. Cooper’s identification of the assailants involved in the

incident, Officer Hingle obtained arrest warrants for defendant and Mrs. Reed. It

was suspected that they fled to North Carolina, as it was known they were out-of-

state residents.

Sergeant Arthur Coll with the Kenner Police Department testified that he

obtained a search warrant for DNA samples from defendant and Mrs. Reed, and

buccal swabs were collected. He explained that the surrounding area was

canvassed for surveillance footage. A condensed version of the surveillance video

from Amato Motor Company, located at 322 Hollandey Street, was created, and

24-KA-59 9 admitted into evidence.2 While this video played, Sergeant Coll identified

defendant standing aside a Toyota Camry. He confirmed the location depicted as

the Airbnb at 1314 Lloyd Price, which had been rented by Mrs. Reed at the time of

recording. The time of 5:13 p.m. was displayed when the video recording began.

At 6:30 p.m., the recording captured Mr. Cooper’s Ford Fiesta and Mrs. Reed

wearing a yellow dress. Defendant’s car, driven by Mrs. Reed, appeared in the

video at 7:35 p.m. At 8:35 p.m., approximately two hours after Mr. Cooper

arrived, defendant was seen getting Mr. Cooper’s car and Mrs. Reed was seen

exiting their vehicle. Afterwards, the video recording captured Mr. Cooper’s

vehicle leaving the location, while defendant’s vehicle remained. Approximately

eight minutes later, Mr. Cooper’s car was driven away from the location. He

confirmed the video timestamps of Mr. Cooper’s arrival at 6:37 p.m. and departure

at 8:47 p.m.

Adriana Washington, a DNA analyst with the Jefferson Parish Sheriff’s

Office, testified regarding her analysis of a variety of evidence in the case. She

stated that the results strongly indicated that Mr. Cooper was a contributor to the

DNA obtained from the business card and from the blood on the railing of the bed.

There was only moderate support that the blood evidence contained the DNA of

defendant, while Ms. Reed was excluded from it entirely. She explained that DNA

can be wiped clean from surfaces using chemicals.

ASSIGNMENTS OF ERROR

Assignment of Error Number One: Sufficiency of the Evidence

In his first assignment of error, defendant argues the evidence was

insufficient to support his second-degree kidnapping conviction. He contends that

the State’s evidence failed to prove that Mr. Cooper was injured during the

2 Christopher Amato, owner of Amato Motor Company, testified that the video surveillance camaras at his business were functioning and that he turned over footage to police in June 2021.

24-KA-59 10 kidnapping or that defendant was armed with a dangerous weapon. Defendant

further contends that the evidence failed to support the State’s alternative theory—

that the second-degree kidnapping occurred while defendant was armed with a

dangerous weapon. In response, the State argues that the evidence was sufficient

to support defendant’s conviction for second-degree kidnapping. Additionally, the

State contends that the evidence was sufficient to establish that the defendant was

armed.

Reviewing the sufficiency of evidence requires an appellate court to

determine if the evidence, whether direct or circumstantial, or a mixture of both,

viewed in the light most favorable to the prosecution, was sufficient to convince a

rational trier of fact that all of the elements of the crime have been proven beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). 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. When circumstantial evidence is

used to prove the commission of an offense, La. R.S. 15:438 provides that

“assuming every fact to be proved that the evidence tends to prove, in order to

convict, it must exclude every reasonable hypothesis of innocence.” State v.

Rogers, 23-558 (La. App. 5 Cir. 8/28/24), 2024 WL 3963969. This is not a

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

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

circumstantial, must be sufficient to support the conclusion that the defendant is

guilty beyond a reasonable doubt. Id.

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. This deference to the

fact-finder does not permit a reviewing court to decide whether it believes a

24-KA-59 11 witness or whether the conviction is contrary to the weight of the evidence. State

v. Aguilar, 23-34 (La. App. 5 Cir. 11/15/23), 376 So.3d 1105, 1108. 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 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.

Id.

In making this determination, a reviewing court will not re-evaluate the

credibility of witnesses or re-weigh the evidence. 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. 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. Lavigne, 22-282 (La. App. 5 Cir. 5/24/23), 365 So.3d 919, 940, writ not

considered, 23-1119 (La. 10/10/23), 370 So.3d 1086.

Defendant was convicted of second-degree kidnapping. Though he was also

charged with aggravated battery, the jury returned a guilty verdict for simple

battery. In this assignment of error, defendant only challenges the sufficiency of

the evidence for his second-degree kidnapping conviction.

At the time of the offense, the crime of second-degree kidnapping is set

forth in La. R.S. 14:44.1, which, in pertinent part, provides:

A. Second-degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is: (1) Used as a shield or hostage; (2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony; (3) Physically injured or sexually abused;

24-KA-59 12 (4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or (5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon. B. For purposes of this Section, kidnapping is: (1) The forcible seizing and carrying of any person from one place to another; or (2) The enticing or persuading of any person to go from one place to another; or (3) The imprisoning or forcible secreting of any person.

The provisions of this statute apply when any one occurrence mentioned in

Subsection (B) combines with any occurrence enumerated in Subsection (A). State

v. Humphrey, 14-519 (La. App. 5 Cir. 11/25/14), 165 So.3d 937, 942.

On appeal, defendant emphasizes that Mr. Cooper’s injuries and the

presence of a dangerous weapon occurred before the acts constituting the

kidnapping, specifically before Mr. Cooper was removed from the Airbnb and

driven away in a vehicle. However, defendant’s contention is misplaced. Actual

movement from one place to another is not a required element of the offense. State

v. Hampton, 17-383 (La. App. 3 Cir. 11/15/17), 259 So.3d 1125, 1131 (citing to

State v. Woodberry, 14-476 (La. App. 4 Cir. 6/3/15), 171 So.3d 1082, writ denied,

15-1245 (La. 6/17/16), 192 So.3d 770). Rather, the State need only prove Mr.

Cooper was imprisoned or secreted and was physically injured. The statute does

not require that the imprisonment exist for any minimum period of time. Instead,

the State only had to prove one act mentioned in Subsection (B) combined with

any one act in Subsection (A). Id.

We find that the evidence presented at trial was sufficient to prove that

defendant forcibly seized and carried Mr. Cooper from one place to another,

imprisoned him, that Mr. Cooper was physically injured, and that defendant was

armed with a dangerous weapon. The evidence showed that Mr. Cooper was

24-KA-59 13 restrained inside of the Airbnb and was physically injured by defendant with a gun,

aluminum bat, and knife, which meets the elements of second-degree kidnapping.

See La. 14:44.1(A)(3), (A)(5), and (B)(3). Additionally, because Mr. Cooper was

restrained, forced into his own vehicle, and then to another vehicle, and ultimately

abandoned on the side of the road, there appears to be sufficient evidence to prove

that he was forcibly seized and transported from one place to another under

Subsection (B)(1). Jurors also could have reasonably determined, based on Mr.

Cooper’s testimony, that defendant was armed with a dangerous weapon when he

used the knife to cut Mr. Cooper’s restraints, resulting in physical injuries. See La.

R.S. 14:44.1(A)(3) and (A)(5).

Defendant points to inconsistencies in Mr. Cooper’s recollection of how he

received his injuries and appears to question his recollection as to when he was

bound and how long he was at the Airbnb. He maintains that there was a lack of

physical evidence and medical records supporting Mr. Cooper’s claims of serious

injury. Further, defendant argues that the jury’s rejection of the aggravated battery

charge, based on similar claims, suggests they found Mr. Cooper’s testimony

unreliable. He contends that the State’s alternative theory of second-degree

kidnapping fails because the only evidence of a weapon came from Mr. Cooper’s

testimony, which he argues was rejected by the jury when he was convicted of the

lesser crime of simple battery.

We reject defendant’s contention and find the elements of the crime were

met. The victim’s testimony is sufficient to establish the “physically injured”

element of second-degree kidnapping under La. R.S. 14:44.1. State v. Brown, 04-

1113 (La. App. 5 Cir. 3/29/05), 901 So.2d 492, 497. 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 a witness. See Lavigne, supra. In this case, after

hearing Mr. Cooper’s acknowledgement of inconsistencies in his account, the jury

24-KA-59 14 made a credibility determination in finding that defendant hit Mr. Cooper

numerous times with an aluminum bat, pistol-whipped him, and cut his face and

wrists with a knife.

In light of the foregoing, considering the evidence presented at trial,

including the testimony of the victim, we find that a rational trier of fact could

have found that the evidence was sufficient under the Jackson standard to support

defendant’s conviction of second-degree kidnapping. This assignment of error is

without merit.

Assignment of Error Number Two: Denial of Motion to Sever

In his second assignment of error, defendant argues the trial court erred by

denying his motion for severance from the co-defendant, Mrs. Reed. Defendant’s

motion for severance, based on antagonistic defenses, was twice urged to the trial

court. The trial court denied defendant’s motion in both instances.

Defendant argued in the first hearing of his motion for severance that Mrs.

Reed, after failed plea negotiations with the State, indicated she would ask the trial

court for a duress jury instruction. Mrs. Reed’s defense of duress and/or

compulsion, defendant argued, would directly contradict his self-defense claim.

The trial judge denied the motion, finding no concrete evidence that Mrs. Reed

would offer exculpatory testimony. In its reasoning, the trial court cited “State v.

Prudholm” and “State v. Coe,”3 emphasizing that severance is not an automatic

right and that unsupported claims of antagonistic defenses are insufficient.

The second urging of his motion for severance was following a hearing on

Mrs. Reed’s motion to sever and motions requesting special jury instructions.

After hearing Mrs. Reed’s sworn testimony, and viewing video evidence depicting

Mrs. Reed and defendant at the scene of the incident, the police report, and Mr.

3 The full citation to these cases were not provided. It appears the judge was referring to State v. Prudholm, 446 So.2d 729, 741 (La. 1984) and State v. Coe, 09-1012 (La. App. 5 Cir. 5/11/10), 40 So.3d 293, 301, writ denied, 10-1245 (La. 12/17/10), 51 So.3d 17.

24-KA-59 15 Cooper’s statement, the trial court denied Mrs. Reed’s request for a special jury

instruction on compulsion. Defendant then re-urged his motion for severance,

arguing the record demonstrated a clear antagonistic defense from Mrs. Reed.

Specifically, defendant averred that his defense would be contradicted by Mrs.

Reed’s claim that her actions were under compulsion or duress. The trial court

denied defendant’s motion, finding severance inappropriate based on the evidence

presented at the hearing.

The case proceeded to trial with the co-defendant’s tried together. During a

jury charge conference, the trial judge maintained her denial of Mrs. Reed’s

request for a compulsion instruction. After defendant’s convictions, he filed a

motion for new trial, which included an argument regarding the denial of his

motion for severance. The trial court denied defendant’s motion for new trial.

On appeal, defendant avers denial of his motion for severance was error

because of the trial court’s awareness of potential antagonistic defenses. He seeks

a new trial.

La. C.Cr.P. art. 704 provides that jointly indicted defendants shall be tried

jointly unless: (1) The state elects to try them separately; or (2) The court, on

motion of the defendant, and after contradictory hearing with the district attorney,

is satisfied that justice requires a severance. Whether justice requires a severance

must be determined by the facts of each case. State v. Hayden, 09-954 (La. App. 5

Cir. 5/11/10), 41 So.3d 538, 543, writ denied, 10-1382 (La. 1/14/11), 52 So.3d 899.

A defendant is not entitled to a severance as a matter of right, but the

decision is one resting within the sound discretion of the trial court. State v.

Prudholm, supra, 446 So.2d at 741. The ruling on a motion to sever is within the

sound discretion of the trial court and will not be overturned unless it is manifestly

erroneous and injurious to the defendant. State v. Molette, 17-697 (La. App. 5 Cir.

24-KA-59 16 10/17/18), 258 So.3d 1081, 1089, writ denied, 18-1955 (La. 4/22/19), 268 So.3d

304.

A severance is necessary if the defenses of the co-defendants are mutually

antagonistic to the extent that one co-defendant attempts to blame the other,

causing each defendant to defend against both his co-defendant and the State.

Prudholm, supra. The defendant bears the burden of proof in a motion to sever.

Jackson, supra; State v. Coe, supra, 40 So.3d at 301. Evidence required to support

a severance based on antagonistic defenses must be more than a “mere

unsupported allegation.” Prudholm, supra. “Justice does not require severance

where only the extent of participation of each defendant is at issue.” State v.

Duckett, 12-578 (La. App. 5 Cir. 5/16/13), 119 So.3d 168, 177, writ denied, 13-

1383 (La. 1/17/14), 130 So.3d 340 (citing to State v. Gaskin, 412 So.2d 1007,

1012-13 (La. 1982)). Furthermore, the fact that each defendant has pointed a

finger at the other does not make defenses automatically antagonistic. Prejudice

must be shown if co-defendants are to receive separate trials. State v. Williams,

416 So.2d 914, 916 (La. 1982).

Addressing this assignment of error, we must consider the rulings on both a

pre-trial motion and a post-trial motion concerning severance. “When a severance

is sought before trial, the standard for obtaining a severance is broader because of

the speculation as to what the trial evidence will actually be; after trial commences,

the standard is stricter because at that time the trial judge is able to analyze the

evidence which has actually been admitted.” State v. Foret, 96-281 (La. App. 5

Cir. 11/14/96), 685 So. 2d 210, 224.

In reviewing a pre-trial motion for severance, the Louisiana Supreme Court

directs that we review the evidence presented in the motion hearing; evidence

which is presented at trial is not to be considered. State v. Lavigne, 412 So.2d 993,

997 (La. 1982). As to a motion for severance made after trial begins, reversal of a

24-KA-59 17 conviction based on a denial of severance is warranted on finding that the

defendant “would probably not have been convicted” at a separate trial. Duckett,

119 So.3d at 178.

In the instant case, defendant filed a Motion to Sever before trial. During

the initial hearing on the motion, defendant argued that Mrs. Reed would seek a

duress jury instruction. Defendant did not offer evidence in support of his pretrial

motion for severance. Instead, he only made general arguments that the defenses

presented at trial would be antagonistic. In denying the motion, the trial judge

stated in part, “The defendant has not offered evidence in support of the

severance.” It does not appear that defendant’s unsupported allegation that the

defenses would be antagonistic was sufficient to require a severance.

When this motion was re-urged, defendant asserted Mrs. Reed’s request for

a compulsion jury instruction demonstrated a clear antagonistic defense. However,

at the hearing, the trial judge denied Mrs. Reed’s request for a compulsion

instruction and maintained this ruling during trial. Defendant’s assertion that the

defenses would be antagonistic was merely an unsupported allegation, which was

insufficient to require a severance in this case. Thus, we find that the trial judge

did not abuse its discretion in denying the motion for a severance before trial in

this case.

After his conviction, defendant cited denial of his motion for severance in

support of his motion for new trial. The evidence presented at trial established that

Mrs. Reed invited Mr. Cooper to the Airbnb in Kenner, where defendant assaulted

him with a gun and aluminum bat, and assisted defendant with binding Mr. Cooper

with zip ties. Mrs. Reed ignored the victim’s requests for help. Even if defendant

blamed his co-defendant and his co-defendant blamed him for the incident, this did

not rule out the possibility that both defendants were involved and the issue was

the respective roles in the crime committed by the two perpetrators.

24-KA-59 18 Defendant fails to demonstrate that justice required a severance or that he

was prejudiced by the joint trial. He relies on Mrs. Reed’s requested compulsion

instruction to support his claim of prejudice. However, the trial court denied her

requested jury instruction. Further, Mrs. Reed did not testify at trial or present any

evidence that exculpated her and inculpated defendant. Likewise, defendant did

not testify at trial or otherwise blame Mr. Reed.

It appears from the record that defendant would have been faced with the

same incriminating evidence of his guilt whether tried individually or jointly. At

the conclusion of the trial, the jury returned guilty verdicts as to both defendant and

Mrs. Reed for second-degree kidnapping, demonstrating that they found each

legally culpable and did not believe only one defendant was responsible for the

crime. Additionally, defendant has failed to demonstrate that Mrs. Reed would, in

fact, testify at a separate trial or that she would exculpate him. Accordingly, we

find defendant failed to show how he was prejudiced by the trial court’s denial of

the severance or the motion for new trial pertaining to the severance. This

assignment of error lacks merit.

Assignment of Error Number Three: Motion for New Trial

In his third assignment of error, defendant contends that the prosecution

violated Louisiana law by failing to provide him with statements made by Mrs.

Reed. On appeal, he avers that the State did not turn over statements given by Mrs.

Reed which were inconsistent with another witness’s accounts despite the clear

requirements of La. C.Cr.P. art. 722. Defendant asserts those statements, if

received, would have substantiated his need for a separate trial and he argues that

the prosecution’s actions violated his due process rights, necessitating a new trial.

The State responds that defendant’s claim of a violation of La. C.Cr.P. art.

722 is unfounded, and the trial court correctly found that there were no written or

24-KA-59 19 recorded statements made by Mrs. Reed that were subject to discovery. Therefore,

the State argues, it complied with the requirements of La. C.Cr.P. art. 722, which

covers only written or recorded statements.

Addressing the consistency of Mrs. Reed’s statements with the victim’s

narrative, the State points out defendant’s claims do not invoke application of La.

C.Cr.P. art. 722. What is implicated by defendant’s assertions are Brady v.

Maryland,4 Kyles v. Whitley,5 and Giglio v. United States.6 The State points out

that on appeal, defendant does not challenge the trial court’s denial of his motion

for new trial on the ground that the State failed to comply with Brady, Kyles, and

Giglio. The State concludes no relief is warranted on his claim that the State failed

to comply with La. C.Cr.P. art. 722.

Prior to trial, defendant filed an Omnibus Discovery Motion(s), which

included a Motion for Discovery and Inspection and a Motion for Production of

Brady, Kyles, & Giglio Material. Pursuant to Article 721, defendant sought

information regarding any statements made by co-conspirators or co-defendants,

including any written or recorded confessions or inculpatory statements intended

for use at trial. Defendant also requested that the trial court order the State to

review its records and all relevant police and law enforcement files for Brady,

Kyles, and Giglio material, asserting the State should disclose any materials that

are favorable to him concerning the charges in this case.

On November 19, 2021, a Discovery Receipt and Stipulation for Reciprocal

Discovery was filed. A February 7, 2022 minute entry reflects that a discovery

status hearing was held, and discovery in this matter was marked satisfied.

Various Discovery Receipts and Stipulations for Reciprocal Discovery were filed

on the following dates: March 17, 2022; April 12, 2022; May 10, 2022; May 17,

4 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 5 Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490 (1995). 6 Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

24-KA-59 20 2022; June 7, 2022; and July 7, 2022. On July 7, 2022, a minute entry also reflects

that a discovery status hearing was held, and discovery in this matter was marked

satisfied. An additional Discovery Receipt and Stipulation for Reciprocal

Discovery was filed on November 7, 2022.

As addressed in the prior assignment of error, defendant’s Motion to Sever

and the subsequent hearing revealed that Mrs. Reed had engaged in plea

negotiations with the State to testify against defendant.

Following his conviction, defendant filed a motion for a new trial wherein he

generally alleged that the trial court should grant him a new trial pursuant to La.

C.Cr.P. art. 851. He asserted that the State did not disclose any information under

Brady, Kyles, or Giglio before trial, and argued that Mrs. Reed and her counsel met

with the State twice before trial. In those meetings, it is alleged that Mrs. Reed

provided statements and answered questions which were not disclosed to defendant

but were believed to be inconsistent with Mr. Cooper’s recorded statement and trial

testimony. Defendant argued the statement should have been disclosed because of

those significant discrepancies. Additionally, he argued that even if the court

accepts that Mrs. Reed’s statements were consistent with Mr. Cooper’s, they

should still have been disclosed under La. C.Cr.P. art. 722. He contended that

regardless of whether Mrs. Reed’s statements were consistent or inconsistent with

Mr. Cooper’s, the State committed an egregious discovery violation by failing to

disclose them.7

On October 10, 2023, a hearing was held on the motion for new trial.

Defense counsel stated that he submitted on the motion but reserved his right for

rebuttal. The State argued in pertinent part as follows:

7 In the motion for new trial, defendant also argued that there was other information that constituted a violation pursuant to Brady, Kyles, and Giglio. Defendant asserted that Mr. Cooper’s trial testimony differed significantly from his prior statement, and the State’s failure to disclose these inconsistencies beforehand disadvantaged the defense. However, this issue was not pursued on appeal.

24-KA-59 21 The only substantive issue that I would argue before the Court is one of the basis [sic] for the Motion for New Trial, namely the statements made by Mishanda Reed. Judge, the reason that either of those attempts and a proffer took place is because she was consistent in her accounting of the facts provided by the State’s victim. They were entirely consistent such that I would have been willing to negotiate an agreed upon deal whereby she flipped and testified against her husband. As such, we did engage in a second meeting with her. There was nothing in violation of Brady, Kyles, or Giglio that necessitated a disclosure to counsel for Malcolm Reed based on the things that we learned during those Interviews with Co-Defendant Mishanda Reed.

The State acknowledged their obligations and compliance but emphasized that

there was no need to do so in this case. The State contended that it would not have

engaged with Mrs. Reed if she had not consistently presented the same facts as

those provided by the victim, Mr. Cooper.

Defendant argued that La. C.Cr.P. art. 722 required disclosure of the

statements. The State’s failure to disclose, the defendant argued, prevented

verification of their consistency and was prejudicial to his motion for severance.

Defendant asserted that the court should have been informed about Mrs. Reed’s

meetings with the State’s trial team and claimed that this omission constituted a

serious discovery violation, regardless of the statements’ consistency.

The State countered that there was no discoverable information that needed

to be shared with the defense. The State explained that if Mrs. Reed had accepted

a plea deal, any relevant details would have been disclosed and approved by the

court. The State contended that there was no obligation to inform defendant’s

counsel about the information obtained during the “proffered sessions” with Mrs.

Reed’s co-counsel.

The trial judge denied the motion for new trial, explaining that it addressed

allegations related to Brady, Kyles, Giglio, as well as statements made by Mr.

Cooper. The trial judge noted that the State reported it had no written statements

24-KA-59 22 from Mrs. Reed, and thus, there was nothing to disclose. Defense counsel

objected.

On appeal, defendant’s argument focuses on statements made by Mrs. Reed

to the State during plea negotiations prior to trial. The statutory provision at issue

is La. C.Cr.P. art. 722, which provides for confessions and statements of co-

defendants as follows:8

Upon written motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any written or recorded confessions or statements made by a codefendant.

It is within the trial court’s discretion to choose an appropriate remedy for a

discovery violation that will offset any possible prejudice. The State’s failure to

comply with discovery procedures does not automatically require reversal. The

appellate court must examine the circumstances of the case to determine whether

the defendant was prejudiced and whether any prejudice resulting from the State’s

non-compliance with discovery procedure caused the trier of fact to reach the

wrong conclusion. State v. Williams, 12-305 (La. App. 5 Cir. 5/16/13), 119 So.3d

131, 144-45, writ denied, 13-1338 (La. 12/6/13), 129 So.3d 529.

In State v. Smith, 99-1020 (La. App. 5 Cir. 2/29/00), 757 So.2d 74, 77-78,

writ denied, 00-1017 (La. 3/30/01), 788 So.2d 439, and writ denied sub nom. State

ex rel. Smith v. State, 01-854 (La. 11/21/01), 802 So.2d 631, this Court explained:

8 Prior to January 2014, the law stated: Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confessions or inculpatory statements made by a codefendant and intended for use at trial. Exculpatory evidence shall be produced under this article even though it is not intended for use at trial. In 2013, the legislature amended La. C.Cr.P. art. 722 in La. Acts 2013, No. 250 § 1. The new La. C.Cr.P. art. 722 retains defendant’s right to obtain written or recorded confessions or statements made by a co-defendant. Under the new law, a written motion is required. Also, the limitations that the statements be inculpatory or the State must intend to use the statement at trial have been removed. See § 14:3. Discovery—By defendant, n. 22, La. Prac. Crim. Trial Prac. § 14:3 (4th ed.).

24-KA-59 23 The discovery rules are intended to eliminate unwarranted prejudice which could arise from surprise testimony and evidence, to permit the defense to answer the State’s case, and to allow the defendant to properly assess the strength of the State’s evidence in preparing a defense. When the defendant is lulled into a misapprehension of the strength of the State’s case through the prosecution’s failure to disclose timely or fully, and the defendant suffers prejudice when the undisclosed evidence is used against him, basic unfairness results which constitutes reversible error. However, a conviction will not be reversed on the basis of a discovery violation unless prejudice is shown by the trial court’s adverse ruling.

It appears details surrounding Mrs. Reed’s statements during her plea

negotiations with the State are limited based on the record. The record reflects

that Mrs. Reed engaged in plea negotiations to testify against defendant. At the

motion to reconsider hearing, the State represented that Mrs. Reed’s statements

were consistent with the facts provided by the victim. However, the State’s

reference to a “proffer took place” was not clearly explained. The content of Mrs.

Reed’s statements was not disclosed. Additionally, it is unknown how defendant’s

attorney became aware of these statements or when exactly the plea negotiations

occurred.

Nonetheless, there is no showing by defendant that Mrs. Reed gave any

written or recorded confessions or statements to the State. Under the

circumstances presented, there is no showing that the State failed to comply with

La. C.Cr.P. art. 722. See State v. Clements, 519 So.2d 236 (La. App. 5 Cir. 1988)

(where the defendant cited to La. C.Cr.P. art. 722 and complained that an

individual was a co-defendant within the article’s meaning and intent and

consequently his inculpatory statement should have been brought to the attention

of defense counsel. This Court stated that he did not, as far as the record shows,

give any written or recorded statement, inculpatory or otherwise, and accordingly,

it found there was no showing that the individual was responsible for any La.

24-KA-59 24 C.Cr.P. art. 722 written or recorded confessions or statements).9 Also, the record

in this case does not reflect any manner in which defendant might have been lulled

into a misapprehension of the strength of the State’s case. Further, Mrs. Reed did

not testify at trial. Accordingly, we find that defendant has not demonstrated that

he was prejudiced by the fact that he did not receive any statements before trial.

See Bradstreet, supra. As such, this assignment of error lacks merit.10

Assignment of Error Number Four: Denial of Due Process: Right to Cross Examine

In his fourth assignment of error, defendant argues that the trial court

violated his right to confrontation by impermissibly restricting his ability to

impeach Mr. Cooper’s testimony. Defendant avers that his right to present a

complete defense was violated when the trial court prevented him from using

mobile phone records which were crucial for impeaching Mr. Cooper’s credibility.

He contends the records showed calls made after Mr. Cooper claimed defendant

denied him access to his phone.

Mr. Cooper’s certified mobile phone records were obtained by subpoena

duces tecum and were property entered into the record.11 On appeal, defendant

contends the trial court erroneously sustained the State’s objection to use of those

records to cross-examine Mr. Cooper. This, he argues, violated La. C.E. art. 607,

which allows for the use of extrinsic evidence for impeachment and his

constitutional right to present a defense.

9 This case was decided under the prior version of La. C.Cr.P. art. 722 in effect in 1988. It appears that the language of “written or recorded” in the statute was the same in these cases. Further, the State has no obligation to disclose information that it does not possess. State v. Joekel, 19-334 (La. App. 5 Cir. 12/20/19), 2019 WL 7044739, at *1, writ denied, 20-86 (La. 1/14/20), 286 So.3d 430. 10 On appeal, defendant’s argument in this assignment of error centers only on the State’s failure to comply with statutory discovery rules. As mentioned, defendant raised a Brady challenge in his motion for new trial, though he does not challenge this basis on appeal. 11 On November 3, 2022, defendant filed a Motion for Issuance of Subpoena Duces Tecum requesting a complete and certified copy of all information for the cell phone number 832-***7796 from October 12, 2020 to October 18, 2020, and June 26, 2021 to July 2, 2021. This included customer/subscriber information, call detail records, cell site and location information, historical location data, and all text and MMS messages. The motion was granted on November 7, 2022.

24-KA-59 25 The State replies that the trial court correctly sustained its objection to

defendant’s attempted use of the certified phone records to cross-examine the

victim. At trial, defendant argued that the records were intended to refresh the

victim’s recollection, not to impeach him. On appeal, as the State points out,

defendant argues the trial court’s decision violated La. C.E. art. 607 and his

constitutional right to present a defense. The State asserts that defendant failed to

preserve this argument properly under La. C.Cr.P. art. 841, and even if there was

an error, it would be harmless. Additionally, the State contends that the timing of

the victim’s arrival at the Airbnb was established by credible evidence, specifically

a surveillance video showing the victim arriving at 6:36 p.m. It maintains that this

video provided the accurate time, making any additional evidence from the records

cumulative and not affecting the trial’s outcome.

Mr. Cooper testified on direct examination that he believed the time of his

arrival at the Airbnb to be approximately 5:00 or 5:30. On cross-examination, Mr.

Cooper was questioned about discrepancies between his trial testimony and

statements to police. Specifically, Mr. Cooper was asked if he recalled telling

police that he arrived at the Airbnb at 5:50 p.m., which was the time he sent a text

message. When asked if he would like to change his testimony, Mr. Cooper said

he would accept 5:30 p.m. if that was his earlier statement but maintained that 5:50

p.m. was an approximate time.

Afterwards, the trial court granted defendant’s request to broadcast Mr.

Cooper’s statement to police to the jury. Cross-examination continued, with Mr.

Cooper being asked whether he had told two officers on July 1, 2021, with

certainty that he arrived at the Airbnb at 5:50 p.m. because he had sent a text at that

time. Mr. Cooper confirmed that he had told the officers it was 5:50 p.m., and

testified that statement was made to the best of his recollection. After Mr. Cooper

denied reviewing surveillance video or his own phone records from the date of the

24-KA-59 26 incident, he confirmed making a phone call to Mrs. Reed at the exact time of his

arrival to the Airbnb. Defendant then sought to present Mr. Cooper with his phone

records, arguing they would reveal his exact time of arrival. The State objected on

grounds that Mr. Cooper was neither the author, custodian, nor record keeper of

the document. In arguing against the objection, defendant explained the document

would refresh the witness’s recollection and was not being used for impeachment

purposes. The judge ruled that the document was not appropriate for refreshing the

witness’s recollection and sustained the objection.

Later, outside the presence of the jury, defendant made a proffer for the

record, explaining that Mr. Cooper’s phone records were subpoenaed to use as

evidence in the case. He argued that the time of Mr. Cooper’s arrival and his

phone calls to Mrs. Reed became relevant during cross-examination. The trial

court’s ruling on the State’s objection, defendant argued, prevented him from

verifying Cooper’s time of arrival to the Airbnb. Mr. Cooper’s cell phone records

were proffered and marked as “Malcolm Reed-Proffer-1.”

In his motion for new trial filed on October 8, 2023, defendant argued that

the court erred in limiting defense counsel’s cross-examination of Mr. Cooper

concerning the certified copy of his cell phone records. The trial court

acknowledged all of defense counsel’s arguments, including those regarding the

cross-examination, but denied the motion for a new trial on October 10, 2023.

The Sixth Amendment to the United States Constitution guarantees an

accused in a criminal prosecution the right to be confronted with the witnesses

against him. State v. Jackson, 03-883 (La. App. 5 Cir. 4/27/04), 880 So.2d 841,

852, writ denied, 04-1399 (La. 11/8/04), 885 So.2d 1118. The Confrontation

Clause of the Louisiana Constitution expressly guarantees the accused the right “to

confront and cross-examine the witnesses against him.” La. Const. art. I, § 16;

State v. Robinson, 01-273 (La. 5/17/02), 817 So.2d 1131, 1135. Confrontation

24-KA-59 27 means more than the ability to confront the witnesses physically. The main and

essential purpose is to secure for the opponent the opportunity of cross-

examination. Id.

Cross-examination is the primary means by which to test the believability

and truthfulness of the testimony and has traditionally been used to impeach or

discredit the witness. Id. However, the extent of cross-examination is not without

limitation. In order for evidence to be admissible at trial, it must be relevant. State

v. Stevenson, 13-156 (La. App. 5 Cir. 7/30/13), 121 So.3d 792, 794, writ denied,

13-2025 (La. 2/28/14), 134 So.3d 1175. The determination regarding the

relevancy of tendered evidence, and therefore the scope and extent of cross-

examination, is within the discretion of the trial judge, whose ruling will not be

disturbed absent an abuse of discretion. Id.

Relevant evidence is any “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.” La. C.E. art.

401. All relevant evidence is admissible, except as otherwise provided by law. La.

C.E. art. 402. However, even relevant evidence 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. Stevenson, supra.

The criminal defendant’s constitutional right to present a defense does not

require a trial court to admit evidence that is irrelevant or has so little probative

value that it is substantially outweighed by other legitimate considerations in the

administration of justice. Stevenson, supra. “When the trial court excludes

evidence, such as witness testimony, error may not be predicated upon a ruling

unless a substantial right of the party is affected, and the substance of the evidence

was made known to the court by counsel.” La. C.E. art. 103. See also State v.

24-KA-59 28 Massey, 11-358 (La. App. 5 Cir. 3/27/12), 97 So.3d 13, 28, writ denied sub nom.

State ex rel. Massey v. State, 12-993 (La. 9/21/12), 98 So.3d 332.

At trial, defendant argued that Mr. Cooper’s cell phone records were

intended to refresh his recollection, not for impeachment. A proffer was made in

accordance with La. C.E. art. 103. Now, on appeal, defendant appears to contend

that the records would have impeached Mr. Cooper’s testimony by disproving his

claim of being denied his phone at the Airbnb. He generally argues that excluding

the records impeded his right to present a defense and cross-examine his accuser.

However, the trial court deemed the records unsuitable for refreshing the witness’s

recollection and did not consider them for impeachment purposes.

Regardless of the basis, the trial court did not abuse its discretion by

excluding the evidence during the cross-examination of Mr. Cooper. A review of

the billing statements in the proffered exhibit (“Malcolm Reed Proffer-1”) shows

phone calls on June 27 at 5:45 p.m., 6:05 p.m., 6:28 p.m., and 6:34 p.m. Other

calls were made earlier that day but these calls are not pertinent to this case. No

additional calls appear until July 1. The cell phone records do not support the

claim that Mr. Cooper had his phone with him during his time at the Airbnb.

Although Mr. Cooper testified that he arrived at 5:00 or 5:30 p.m., the surveillance

video, already shown to the jury, indicated he actually arrived at 6:37 p.m.

Therefore, the cell phone records do not necessarily prove he had his phone during

the incident at the Airbnb. Further, on appeal, other than stating that his cross-

examination was impeded, defendant does not state how the trial court’s ruling

regarding the cell phone records denied him his right to present a defense.

Even assuming that the trial court’s aforementioned evidentiary ruling was

improper, erroneous exclusion of evidence is subject to harmless error review.

“Under that test, the question is whether there is a reasonable possibility that the

admission or exclusion of certain evidence ‘might have contributed to the

24-KA-59 29 conviction.’ Furthermore, the error must be ‘harmless beyond a reasonable

doubt.’” State v. Willis, 55,165 (La. App. 2 Cir. 6/28/23), 367 So.3d 948, 957.

Here, the record does not suggest that the denial of defendant’s request to admit the

cell phone records led to his conviction. Both of Mr. Cooper’s statements to police

officers were played for the jury, who also heard his trial testimony. Additionally,

Mr. Cooper was extensively cross-examined about inconsistences between his

statements and his trial testimony. Mr. Cooper explained that the event was

traumatic and he did not remember every moment. As briefly mentioned, at trial,

the defense sought to use the cell phone records to argue that Mr. Cooper was on

the phone with Mrs. Reed at 6:34 p.m., which conflicted with his claimed arrival

time at the Airbnb. However, the jury reviewed surveillance footage showing Mr.

Cooper’s Ford Fiesta first appearing in the area at 6:30 p.m. and Mr. Cooper

actually arriving at 6:37 p.m. Thus, the jury was presented with this evidence

addressing the inconsistency in Mr. Cooper’s arrival time. Accordingly, we find

that any error by the trial court in excluding the cell phone records was harmless

beyond a reasonable doubt. For the foregoing reasons, we conclude that

defendant’s claim in this assignment lacks merit.12

Assignment of Error Number Five: Excessive Sentence

In his fifth assignment of error, the defendant argues that the trial court’s

sentence is constitutionally excessive. He argues the severity of the sentence is

disproportionate to his actions, that the sentence unfairly impacts his dependents,

ignores mitigating factors, and overlooks his lack of criminal history, positive

community contributions, and genuine remorse. Additionally, he claims the court

relied on facts rejected by the jury, such as the use of a weapon, penalized him for

12 Defendant only mentions his motion for new trial, and he does not focus his argument on the denial of this motion.

24-KA-59 30 exercising his right to a trial, and dismissed supportive letters. Finally, he argues

that the thirteen-year sentence is disproportionate, especially given the jury’s

verdict for a less severe offense.13

The State responds that defendant’s thirteen-year sentence, with two years

without parole, probation, or suspension, is within the statutory range of five to

forty years for second-degree kidnapping and is not excessive. The State argues

that the sentence is significantly below the maximum allowed and was determined

after considering the serious nature of the crime, the impact on the victim, and the

defendant’s lack of accountability.

On October 11, 2023, defendant filed a sentencing memorandum arguing for

a deviation from the mandatory minimum sentence pursuant to State v. Dorthey,

623 So.2d 1276 (La. 1993). In it, defendant admitted to making poor decisions

related to his wife’s affair, but argued these do not define his character.

Defendant’s memorandum also pointed out his achievements, including

overcoming financial challenges through education, playing professional

basketball, and establishing D3 Community Outreach, Inc. and HA Prep Academy.

He argued several mitigating factors: defendant’s conduct did not cause serious

harm; he acted under provocation and did not foresee significant harm; he has no

prior criminal record and has led a life of exemplary community service; his

actions resulted from unique circumstances unlikely to recur; and imprisonment

would cause excessive hardship to his dependents and his non-profit work. In his

conclusion, defendant asked for “the minimum sentence of five (5) years

incarceration, with three (3) suspended followed by a term of probation.”

At the October 13, 2023 sentencing hearing, defendant’s letter to the trial

court regarding his childhood and history was admitted into evidence. Defendant

13 Defendant’s arguments on appeal and below focused on his sentence for second-degree kidnapping. He does not appear to challenge his sentence on simple battery.

24-KA-59 31 also made a statement to the court acknowledging full responsibility for his actions

on June 27, 2021, which he attributed to poor judgment and discovering his wife’s

affair. He requested the court consider his community contributions and expressed

remorse to Mr. Cooper, the jury, his community, and his wife. He sought

forgiveness, hoped for personal growth, and requested a sentence below the

guidelines to continue his community work and prevent future mistakes.

Afterward, the State then questioned defendant about various aspects of the

incident, including his discovery of the affair, the trip to New Orleans, his actions

outside and inside the Airbnb, and his subsequent interactions with Mrs. Reed and

Mr. Cooper. Defendant explained his decisions leading up to and following the

incident, including his use of a bat, his handling of Mr. Cooper’s car keys, and the

communication with Mrs. Reed during and after the trial.

In his victim impact statement, Mr. Cooper expressed gratitude to the court,

the State, and first responders. He detailed the emotional impact of the

premeditated ambush, including fear, anxiety, and PTSD, along with the burdens

of medical bills, lost wages, and increased security measures. He also discussed

the strain of caring for his mother with Alzheimer’s. Despite his truthful

testimony, he remained troubled by unanswered questions and requested that the

court address the “craven behavior” of the incident.

Prior to sentencing, the trial judge explained that she took into consideration

the defendant’s sentencing memorandum, the attachments, and La. C.Cr.P. art.

894.1. The judge observed that the memorandum inaccurately described events,

such as incorrectly stating that defendant returned to the Airbnb to find Mrs. Reed

with her boyfriend, despite evidence showing he never left. It also falsely

suggested Mr. Cooper claimed his injuries were caused by being thrown from a

car, a claim he never made. The trial judge found that this misinformation did not

undermine Mr. Cooper’s credibility with the jury. Additionally, the judge found

24-KA-59 32 issues with the attached letters, stating they were mostly unsigned and contained

misspellings of defendant’s name, which raised doubts about their authenticity.

The trial judge reviewed the factors pursuant to La. C.Cr.P. art. 894.1 and

determined that a probationary sentence below the statutory minimum of two years

at hard labor was not appropriate. Additionally, the trial judge thoroughly

reviewed and discussed multiple factors, including the severity of the offense, the

nature of defendant’s conduct, and the impact on the victim. For these reasons, the

judge sentenced defendant to thirteen years imprisonment at hard labor, with the

first two years to be served without the benefit of parole, probation, or suspension

of sentence for count one. For count three, the court sentenced defendant to six

months in Jefferson Parish Correctional Center. This sentence was ordered to run

concurrently with the sentence as to count one. Defense counsel orally objected to

the sentence.

On October 16, 2023, defendant filed a motion for reconsideration arguing

that the thirteen-year sentence is excessive. In it, he cited his lack of criminal

history and positive community contributions, and emphasized his remorse and

responsibility, arguing that the court downplayed this. Defendant contended that

the sentence is excessive given the charges and evidence and requested

consideration of mitigating factors under La. C.Cr.P. art. 894.1.

At the October 20, 2023 hearing, in support of his motion, defendant averred

that the sentence was too severe, arguing the factors raised in his motion. The

State countered that the sentencing range set by the legislature is five to forty years

and that the court had already considered defendant’s partial responsibility and

community contributions in determining the sentence. Following these arguments,

the trial judge denied the motion, noting the imposed sentence to be less than half

of the maximum, and found it neither excessive nor warranting reconsideration.

24-KA-59 33 The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the

Louisiana Constitution prohibit the imposition of excessive punishment. A

sentence is considered excessive, even if it is within the statutory limits, if it is

grossly disproportionate to the severity of the offense, or imposes needless and

purposeless pain and suffering. State v. Adams, 23-427 (La. App. 5 Cir. 4/24/24),

386 So.3d 676, 683.

According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside

a sentence for excessiveness if the record supports the sentence imposed. In

reviewing a sentence for excessiveness, the reviewing court shall consider the

crime and the punishment in light of the harm to society and gauge whether the

penalty is so disproportionate as to shock the court’s sense of justice, while

recognizing the trial court’s wide discretion. Adams, supra. In reviewing a trial

court’s sentencing discretion, three factors are considered: 1) the nature of the

crime; 2) the nature and background of the offender; and 3) the sentence imposed

for similar crimes by the same court and other courts. However, there is no

requirement that specific matters be given any particular weight at sentencing.

State v. Kelson, 23-274 (La. App. 5 Cir. 12/27/23), 379 So.3d 779, 784-85.

A trial court should consider the defendant’s personal history such as age,

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

record, seriousness of offense and the likelihood of rehabilitation in determining an

appropriate sentence. Adams, 386 So.3d at 686. A trial judge is in the best

position to consider the aggravating and mitigating circumstances of a particular

case and therefore is given broad discretion when imposing a sentence. State v.

Barnes, 23-208 (La. App. 5 Cir. 12/27/23), 379 So.3d 196, 204.

Defendant only challenges the constitutional excessiveness of his second-

degree kidnapping sentence, not his sentence for simple battery. The penalty for

second-degree kidnaping is imprisonment at hard labor for not less than five nor

24-KA-59 34 more than forty years. At least two years of the sentence imposed shall be without

benefit of parole, probation, or suspension of sentence. La. R.S. 14:44.1(C). The

record reflects that at the sentencing hearing, the trial court imposed a term of

imprisonment of thirteen years at hard labor without benefit of parole, probation or

suspension of sentence for two years. Thus, this sentence is less than half the

maximum allowed by the statute.

As to the nature of the crime, the evidence at trial demonstrated that Mr.

Cooper was assaulted and restrained at an Airbnb by defendant and Mrs. Reed

before being abandoned on the road. Mr. Cooper was invited to the Airbnb by

Mrs. Reed, where defendant was present and armed with a gun, an aluminum bat,

and eventually a knife. Defendant proceeded to threaten and physical assault Mr.

Cooper, hitting him multiple times with the baseball bat, pistol-whipping him with

the gun, and later cutting him on his face with a knife. During the incident, Mr.

Cooper begged Mrs. Reed for help. Afterward, Mr. Cooper was forced into his

own car, then transferred to Mrs. Reed’s car, and eventually abandoned on the road

after defendant cut his restraints. He received assistance from a passing truck

driver who called the police, and he was hospitalized with injuries and admitted to

the ICU.

Mr. Cooper testified that he has a chipped tooth, a major scar on his leg, and

visible scars on his wrists and cheeks from the incident. Also, the judge

considered Mr. Cooper’s victim impact statement, in which he described severe

emotional distress and financial burden as a result of the incident. He explained

the additional strain of caring for his mother with Alzheimer's and expressed

concern over unanswered questions about the incident. He urged the court to

address the behavior involved.

The trial judge reviewed La. C.Cr.P. art. 894.1 factors and concluded that a

probationary sentence was unsuitable due to the seriousness of the crime,

24-KA-59 35 deliberate cruelty, and significant impact on the victim. Specifically, the trial

judge mentioned aggravating factors included the use of a baseball bat, the

presence of bloody items, and defendant’s immediate flight from the scene, among

other reasons.

When considering the nature and background of the offender, it appears

defendant is a first-time offender based on the record. The defense stated in the

sentencing memorandum that defendant took responsibility for and regretted his

actions, which he also expressed in his court statement. In addition, the trial judge

provided that she had reviewed the letters written in support of defendant. The

trial judge considered several mitigating factors, including defendant’s provocation

discovering his wife’s affair, his lack of prior criminal history, and his

unawareness of the serious harm his actions could cause. Despite defendant’s

assertions that the court did not adequately consider such factors like his lack of

criminal history, supportive letters, and the impact of imprisonment on his

dependents, it appears the trial judge thoroughly reviewed these aspects. The trial

judge found defendant’s general law-abiding background and the supportive letters

to be insufficient to outweigh the seriousness of the offense and the deliberate

cruelty involved. Additionally, the trial judge considered the impact on

defendant’s dependents but concluded that a lesser sentence would not reflect the

crime’s severity or uphold justice.

Lastly, the third factor requires consideration of sentences imposed for

similar crimes by this Court and other courts. “Although a comparison of

sentences imposed for similar crimes may provide guidance, ‘[i]t is well settled

that sentences must be individualized to the particular offender and to the

particular offense committed.’” Adams, 386 So.3d at 687.

Jurisprudence shows similar situated defendants convicted of second-degree

kidnapping have received comparable or harsher sentences. The present case,

24-KA-59 36 however, appears more severe due to defendant’s use of a gun, knife, and baseball

bat during the offense, which intensifies the gravity of the crime compared to these

other cases. See State v. Mathieu, 06-946 (La. App. 5 Cir. 5/29/07), 960 So.2d

296, 308-10, writ denied sub nom. State ex rel. Mathieu v. State, 07-1424 (La.

2/1/08), 976 So.2d 714, (where this Court upheld a first-time offender’s thirty-year

sentence for second-degree kidnapping despite his stable work history and his

status as a father of four. The defendant, armed with a gun, forced his ex-wife into

her car, drove her to Mississippi while threatening to kill himself, and eventually

returned to Gretna, were she escaped without physical harm); State v. Washington,

95-771 (La. App. 5 Cir. 2/14/96), 670 So.2d 1255, 1261-62, writ denied, 98-537

(La. 9/25/98), 726 So.2d 7, (where the defendant’s maximum forty-year sentence

for second-degree kidnapping was upheld. The defendant and a companion

threatened the victim with a gun, forced him into his own car, and drove him to his

girlfriend’s apartment, where they committed aggravated burglary.)14

The relevant question on appeal is whether the trial court abused its broad

sentencing discretion, not whether another sentence might have been more

appropriate. The sentence imposed should not be set aside as excessive in the

absence of a manifest abuse of discretion. Kelson, supra. Considering the

foregoing, defendant’s thirteen-year sentence for second-degree kidnapping is not

excessive. Defendant received a sentence that is less than half the maximum

allowed by the statute. The trial judge did not abuse her discretion by imposing

this sentence. This assignment of error lacks merit.

14 See also State v. Brown, 41,883 (La. App. 2 Cir. 4/4/07), 956 So.2d 53 (a nineteen-year-old first-felony offender’s twenty-year sentence for second-degree kidnapping was found not to be excessive where the defendant used a gun and threatened the lives of three victims); State v. Sullivan, 41,236 (La. App. 2 Cir. 8/23/06), 939 So.2d 516, 518 (where the defendant forcibly pushed his ex-girlfriend into her trailer, hit her with a gun, and fired at her, missing. Despite a pre-sentencing report recommending a longer sentence, the defendant received a fifteen-year sentence for second-degree kidnapping, the same as the plea bargain offer).

24-KA-59 37 Assignment of Error Number Six: Errors Patent Review

In his final assignment of error, defendant requests an error patent review.

The record was reviewed for errors patent in accordance with La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5 Cir. 1990). Our review reveals one error patent requiring addressing.

Based on the record, defendant received an incomplete advisal regarding the

applicable prescriptive period for seeking post-conviction relief. La. C.Cr.P. art.

930.8 provides that a defendant shall have two years after the judgment of

conviction and sentence has become final to seek post-conviction relief. The law

provides that if a defendant receives incomplete advice of the period for seeking

post-conviction relief, the appellate court may correct this error by informing the

defendant of the applicable prescriptive period for post-conviction relief in its

opinion. State v. Britton, 22-476 (La. App. 5 Cir. 5/10/23), 366 So.3d 652, 665.

Accordingly, by way of this opinion, we hereby 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 these reasons, defendant’s conviction and sentence for second-degree

kidnapping is affirmed.

CONVICTION AND SENTENCE AFFIRMED

24-KA-59 38 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

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

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

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