State of Louisiana Versus Willie H. Battle

• Court: Louisiana Court of Appeal
• Decided: June 17, 2024
• Docket: 23-KA-272
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 23-KA-272

VERSUS FIFTH CIRCUIT

WILLIE H. BATTLE COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 17-8002, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

June 17, 2024

FREDERICKA HOMBERG WICKER JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Scott U. Schlegel

AFFIRMED FHW MEJ

CONCURS WITH REASONS SUS COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Darren A. Allemand Shannon K. Swaim Kristen Landrieu Taylor Somerville

COUNSEL FOR DEFENDANT/APPELLANT, WILLIE BATTLE Jane C. Hogan WICKER, J.

Defendant, Willie Battle, appeals his conviction for the second degree

murder of Everett Burns, in violation of La. R.S. 14:30.1. Upon review of the

record on appeal, we find the evidence produced at trial is sufficient to support

defendant’s conviction, the trial court did not err in admitting evidence of an

unrelated shooting in which defendant was a victim which occurred nine days

before the murder of Everett Burns, or in declining to issue a written order or

reasons when ruling upon defendant’s motion in limine on the record, or in

permitting Amanda Williams (formerly Harris) to identify the two perpetrators

seen in a surveillance video as defendant and his co-defendant. However, we find

the trial court committed error in permitting a State’s witness to testify via Zoom

while deployed on active duty overseas. That evidence, however is harmless in

light of the abundant evidence of defendant’s guilt admitted in the trial of this case.

For the reasons fully discussed below, we affirm defendant’s conviction.

PROCEDURAL HISTORY

On April 5, 2018, a Jefferson Parish Grand Jury returned an indictment,

charging defendant, Willie H. Battle, with second degree murder of Everette

Burns, in violation of La. R.S. 14:30.1, on November 22, 2017. The same

indictment also charged co-defendant, Eddie Salvant, IV, with one count of second

degree murder in violation of La. R.S. 14:30.1 and possession of a firearm by a

convicted felon in violation of La. R.S. 14:95.1. Defendant was arraigned on April

6, 2018, and pled not guilty.

On June 29, 2020, the State filed a “Motion in Limine to Determine

Admissibility of Evidence of Prior Shooting.” A hearing on the State’s motion

was held on October 15, 2020, and granted on October 16, 2020.

Defendant and Salvant proceeded to trial on January 23, 2023. A twelve-

person jury unanimously found defendant and Salvant guilty as charged. On

23-KA-272 1 February 1, 2023, the trial court sentenced defendant to life imprisonment at hard

labor without the benefit of parole, probation, or suspension of sentence.

Defendant appeals his second degree murder conviction.1

FACTS

On November 22, 2017, the day before Thanksgiving, at approximately 4:40

p.m., the victim, Everette Burns, was shot in the stomach. A Good Samaritan

drove Mr. Burns to the closest emergency room; however, he later succumbed to

the injuries he sustained from the gunshot wound.

During the January 2023 trial, Husan Jaber, a longtime employee of

Nathan’s Discount, a gas station located in the strip mall at 401 Lapalco Boulevard

in Gretna, described the strip mall and the events he observed there on November

22, 2017. Within the strip mall, he identified a snowball stand, which was next to

Nathan’s Discount, Boss Cuts, a barbershop which was next to the snowball stand,

and a laundromat on the end of the strip mall. On that day in 2017, Mr. Jaber’s

uncle entered the store and told him there were two men outside with hoods on and

that one had a gun. Mr. Jabar called the police, and upon exiting Nathan’s

Discount, he saw two men in hoods hit a man in a yellow shirt in front of the

snowball stand. Mr. Jabar then heard a gunshot, and he saw the man in the yellow

shirt put his hand on his stomach and run to his car. The man in the yellow shirt

was later identified as the victim, Mr. Burns.

When the police arrived, Mr. Jaber gave them the store’s surveillance videos

for the period from 4:00 p.m. through 5:00 p.m., which provided several different

angles of the crime scene. While the surveillance video was played for the jury,

Mr. Jaber identified himself as the man standing by the doorway of Nathan’s

Discount. The video depicted two suspects with the hoods of their black

1 This appeal relates to defendant, Battle, only.

23-KA-272 2 sweatshirts pulled tightly around their faces. The shorter individual was wearing

black pants and the taller individual was wearing gray pants. Mr. Jaber indicated

on the video the point at which the shorter man walked in front of him while

holding a gun in his hand. He did not see anything in the second man’s hand.

Later, Mr. Jabar met with the police who showed him two photographic line-

ups. In the first line-up, he identified co-defendant, Salvant, as the shorter man he

saw after the shooting. He added that Salvant was a customer he had seen before.

In the second line-up, Mr. Jabar was unable to make an identification.

At the time the shooting occurred, Ali Charlemagne testified he was at Boss

Cuts barbershop with his sons waiting for them to get haircuts. Mr. Charlemagne

was on his cellphone outside the front of the barbershop when he saw two black

men in hoodies and one had a pistol under his arm. He then went back into the

barbershop to retrieve his two sons and told others in the barbershop, “[T]here’s

two guys out there with a pistol.” He, his sons, and others moved to the back area

of the barbershop, and then heard a gunshot.

Roosevelt Malone, III testified he was working at Boss Cuts on November

22, 2017, when the victim came in to get a “shape up.” After Mr. Malone finished

his haircut, the victim left to get money from the ATM at Nathan’s Discount. Mr.

Malone then heard a gunshot and saw the victim get in his car, put it in reverse,

and pass out. Mr. Malone and his cousin-in-law, Lyndon Miller, ran to the car to

stop it from going into traffic on Lapalco Boulevard. Mr. Malone leaned over the

victim to put the car in park and noticed the victim had been shot, was bleeding,

and in and out of consciousness. Mr. Malone and Mr. Miller called the police and

removed the victim out of his car to try to stop the bleeding. When the police took

too long, Mr. Miler decided that they could not wait any longer for assistance, so

they put the victim in the back seat of the victim’s car, and Mr. Miller drove the

victim to Ochsner Westbank. Mr. Malone remained at the scene until the police

23-KA-272 3 arrived and gave them the victim’s cell phone. Mr. Malone testified that he did not

see any guns on the victim or inside his car.

Lyndon Miller testified that on November 22, 2017, he was at Boss Cuts

with his nine-year-old son. His son was in one of the chairs getting his haircut

when he heard a guy say, “No, not here, not here.” He realized something was

going on, so he grabbed his son, and ran into the bathroom. When he heard a

gunshot, he covered his son, and more people came into the bathroom. He left the

bathroom, and headed towards the front door when he heard Mr. Malone saying,

“No, no, no, no.” At that point, he went to the victim’s car, and saw the victim

was slumped over in the front seat with a gunshot wound to his stomach. The

victim was not conscious, but still breathing. Mr. Miller, who had received eight

years of medical training while in the U.S. Navy, removed the victim from the car,

placed him on the ground, and applied pressure to his wound. He recalled Mr.

Malone called 9-1-1, but the operators were asking too many questions, so they put

the victim in the backseat, and he drove the victim’s car to Ochsner. Upon arrival,

he brought the victim into the emergency room and waited for the police to arrive.

Mr. Miller testified that he did not see any weapons on the victim or in the car.

Mr. Miller testified that he knew of the victim, but did not know him personally.

Detective Harold Wischan, a homicide investigator with the Jefferson Parish

Sheriff’s Office (JPSO), testified that Detective Anthony Buttone, the lead

investigator, requested his assistance at Ochsner on November 22, 2017. When he

arrived, the victim’s car was near the E.R. with the front driver’s side and back

passenger doors open. The backseat passenger compartment and the clothing

inside the car were stained with blood. He also observed the butt of a revolver

beneath the floor mat on the driver’s side.

Detective Wischan viewed the victim lying on the hospital bed, intubated

and unresponsive, suffering from a gunshot wound to the abdomen. Ultimately,

23-KA-272 4 the victim was transferred to University Hospital in New Orleans where he

expired. The hospital retrieved a projectile from the victim’s body and gave it to

JPSO detectives.

After observing the victim, Detective Wischan was approached by the

victim’s aunt, Amanda Harris. He asked Ms. Harris if she knew of anyone who

would want to harm her nephew. Ms. Harris said she learned from Salvant’s aunt

that there had been a previous shooting within the 600 block of Bannerwood,

during which defendant, Battle, was shot at while seated in his car. According to

her, “the word on the street” was that this shooting was in retaliation for the

previous shooting.

Amanda Harris testified that she is now Amanda Williams, and the victim

was her nephew, her sister’s son. She explained that defendant and Salvant are

brothers who share the same mother, Bertha Garrison, but have different fathers.

Ms. Williams further explained that she is related to Ms. Garrison and they have

been neighbors for years. She characterized defendant and Salvant as her cousins,

who she had known since they were babies. She testified that Salvant went by the

nickname “Man” and that she knew him better than she knew defendant because

Salvant was her deceased son’s close friend, and he would come by her house.

Over the years, she saw defendant every once in a while.

Ms. Williams said she was close to the victim, who went by the nickname

“Bang” and sold drugs. She explained that after she heard about the shooting, she

and her daughter went to the hospital, where she spoke to the police, providing

them with defendant and Salvant’s names. She confirmed that she had relayed to

the police information that she learned from the neighborhood and families. The

police thereafter showed her surveillance videos from Nathan’s Discount, and in

two of them she identified defendant and Salvant. Although she could not see their

faces in the video, she explained that she recognized them because one was taller

23-KA-272 5 than the other, she lived in the same neighborhood as they did, and defendant had a

“little funny walk to him” like he was “pigeon-toe[d].”

Erika K. Segura, a deputy with JPSO testified via Zoom. She explained that

she was in the United Arab Emirates on deployment with the Navy, while she was

still employed full-time with JPSO. On November 14, 2017, eight days before the

murder, she responded to a call regarding a shooting that occurred the night before

at 672 Bannerwood in Gretna. When she arrived at the scene, she saw that the

vehicle, a gray Nissan Maxima, had been struck by five rounds of bullets on the

driver’s side, and there were shell casings on the ground. Deputy Segura spoke to

defendant, who had made the call regarding the shooting early that morning.

Defendant told Deputy Segura that he was asleep in his residence at the time the

shooting occurred. He stated he did not hear any shots fired, but he came out in the

morning and saw the damage to his vehicle. Deputy Segura saw cameras at 689

Bannerwood, which was just across the street from the shooting, and asked the

owner for a copy of the camera footage. When the owner was unable to make a

copy for her while she was on scene, she used a JPSO camera to record the

surveillance video, which rendered the video recording grainy. While watching the

video, Deputy Segura observed a vehicle parked in the driveway at 672

Bannerwood. An individual exited the driver’s seat, then, a moment later, re-

entered the vehicle and closed the door. A second individual approached the

vehicle from the driver’s side, fired rounds into the vehicle, and then fled. The

vehicle backed out of the driveway and also fled the scene. Once she observed

this, Deputy Segura realized that the video was not consistent with what defendant

had told her. When she spoke to him again, he stated that he was the person in the

vehicle at the time the shots were fired. Defendant advised her that he did not

know the identity of the shooter. Deputy Segura further explained that JPSO had

received a call for service the prior evening on November 13th, regarding shots

23-KA-272 6 fired on Bannerwood, which was consistent with what she saw on the surveillance

video. Deputy Segura concluded her investigation by sending the matter to JPSO’s

homicide division, but there were no suspects.2

Detective Buttone, a JPSO homicide detective, testified that he was the lead

investigator in this case. His division was notified by the patrol division, and they

responded to a strip mall at 403 Lapalco Boulevard and Bannerwood, which is a

residential street located next to Nathan’s Discount. He explained they collected a

fired cartridge casing between the snowball stand and barbershop. No one

Detective Buttone spoke to that evening was able to make an identification of

anyone that night. He only had a physical description of the perpetrators- two

black males, one being a very large, heavy-set individual and the other being a

shorter individual, who had a firearm tucked under his arm. Detective Buttone

asked assisting officers go to Ochsner while he remained on scene, collected

evidence, and obtained surveillance video from multiple cameras at Nathan’s

Discount. He testified that the video surveillance showed that the victim arrived at

the scene approximately half an hour before the shooting. He could then be seen

from various cameras walking back and forth to the parking lot multiple times and

entering the barbershop. Next, defendant and Salvant can be seen walking toward

the barbershop, and the victim is seen leaving the shop whereupon he is confronted

by defendant and Salvant.

Detective Buttone was able to slow down and zoom in on some of the

Nathan’s Discount surveillance video in which defendant and Salvant can be seen

confronting the victim and fleeing the scene. On the surveillance video, Detective

2 Sergeant Jason Picou testified that he was formerly employed with JPSO patrol and in the crime scene division. He took photographs of the scene at 672 Bannerwood on November 14, 2017. He also collected casings and a projectile that were found on the grass. He did not speak to any witnesses or review any surveillance in the case.

23-KA-272 7 Buttone added a red rectangle over Salvant’s hand, to mark what he believed to be

the firearm used in the shooting, which was played for the jury.

Detective Buttone learned from Detective Wischan that a victim’s family

member provided the names of defendant and Salvant, who lived nearby on

Bannerwood, and had also advised Detective Wischan about a recent shooting that

occurred on Bannerwood, involving defendant. When Detective Buttone

confirmed the shooting on November 13, 2017, he learned that patrol deputy

Tinisha Williams, had responded to the report of shots being fired on November

13, 2017, and had reported thereafter nothing was located. Detective Buttone

learned that Deputy Williams is related to the victim and to Ms. Williams, who

provided information to Detective Wischan at Ochsner.

Detective Buttone confirmed that defendant and Salvant had addresses

listed for the residence at 672 Bannerwood. He was able to ascertain the height

and weight of defendant and Salvant through a database, and Salvant was listed at

5'5", 165 pounds, and defendant was listed as 6'3", 350 pounds.

He was also able to obtain surveillance video from 689 Bannerwood across

the street, but that video’s time stamp was incorrect. After calculating the time,

Detective Buttone determined the video began at approximately 3:46 p.m., which

was less than an hour before the murder. The video depicts a gray Nissan Maxima

parked at 672 Bannerwood. Prior to the shooting, two men are seen leaving the

residence, one being a large, heavyset male, and the other being a very short male.

Both are wearing clothing similar to that worn by the suspects observed on the

Nathan’s Discount video surveillance, including the undershirts that are exposed

from under the hooded sweatshirts. Detective Buttone believed that the shorter

man with darker sweatpants was Salvant. While showing the jury a map of the

area, he indicated that defendant and Salvant’s residence at 672 Bannerwood was a

three-minute drive away from Nathan’s Discount. Detective Buttone continued

23-KA-272 8 that at about 40 seconds shy of 4:00 p.m., the video depicts the Nissan Maxima

arriving at Bannerwood. A person whom he believed to be Salvant, can be seen

getting out of the Nissan Maxima. Next, an individual whom Detective Buttone

believed to be defendant can be seen walking out of 672 Bannerwood. He based

his opinion upon the fact that the individual seen in the Bannerwood video was

wearing the same clothing observed on the Nathan’s Discount surveillance video,

and the individual seen in the Bannerwood video was the same size as defendant.

On the Bannerwood video, the Nissan Maxima is seen departing 672

Bannerwood, heading towards Lapalco at 4:04 p.m. Detective Buttone testified that

the victim was shot at approximately 4:40 p.m. He further explained that

according to the surveillance video, at approximately 4:56 p.m., the Nissan

Maxima can be seen returning to the Bannerwood residence, but parking across the

street. After the car is parked, someone can be seen running into 672 Bannerwood,

and lights are turned on in the residence. That individual then leaves the residence

and enters the car. The car leaves, returning to the residence shortly thereafter,

parking in the driveway.

A search warrant for 672 Bannerwood was obtained. During the search,

Detective Buttone spoke to defendant and Salvant’s mother, Ms. Garrison.

Initially, she told detectives that she did not know where her sons were, and she

had not seen or spoken to her sons since November 22, 2017. She later changed

her statement and said that she had sent Salvant a text but then deleted the

messages. Ms. Garrison’s cell phone was seized, and the contents were

downloaded. A digital forensics analysis produced the contents of Ms. Garrison’s

phone. A text message dated November 24, 2017 was found on Ms. Garrison’s

phone that stated, “How’s my son?” The message was sent before the search

warrant was executed and before Detective Buttone spoke to Ms. Garrison. During

the search, defendant and Salvant’s identification cards were found in their

23-KA-272 9 respective rooms. A rifle magazine and a cell phone were found in defendant’s

room. A DVR system for a residential surveillance video and a debit card in his

name were located in Salvant’s room. Forensic analysis of the DVR system

revealed that it had been reformatted, meaning all of the data had been erased, on

the day of the homicide. Detective Buttone learned that the DVR system had been

placed there by Salvant a week prior to the homicide.

Detective Buttone testified that Donisha Johnson, a relative of the victim,

showed up at the detectives’ office unannounced. She claimed that her family was

accusing her of being involved in the homicide. When she left his office, she said

she was available to speak to detectives. Detective Buttone later learned Ms.

Johnson knew Salvant. After attempting to contact Ms. Johnson, Detective

Buttone ultimately found her at her place of employment, and she agreed to return

to Detective Buttone’s office. However, when they informed her that her name

had come up in their investigation, she became uncooperative. When Ms.

Johnson’s phone was requested for a search, she began to manipulate her phone

and perform a “hard reset” which would erase her data. Detective Buttone seized

her phone, and she was arrested for obstruction of justice. A digital analysis of her

phone revealed text messages from November 14, 2017, the day after the 672

Bannerwood shooting occurred. The messages were sent to phone number ***-

3439,3 which Detective Buttone believed belonged to Salvant based upon other text

messages, and because it was the phone number Salvant had given when he was

booked at the jail. The November 14, 2017 text messages between Ms. Johnson

and Salvant’s phones stated:

Incoming message from Salvant: “Look at the news tonight.”

Outgoing message to Salvant: “WTF happened?”

Outgoing message to Salvant: “Is y’all okay? Your momma?” 3 The phone number is redacted to protect the privacy of the party. See State v. Murray, 17-534 (La. App. 5 Cir. 3/14/18) 242 So.3d 821, 825 n.3.

23-KA-272 10 Incoming message from Salvant: “Everybody good.”

Incoming message from Salvant: “We don’t miss.”

Outgoing message to Salvant: “Dam, Bro, my nerves bad. I need a pain pill.”

Incoming message from Salvant: “They better get their black clothes ready.”

Outgoing message to Salvant: “Yes indeed.”

Text messages from November 24, 2017, two days after the murder,

between Ms. Johnson and Salvant revealed that Salvant was in Florida. That day, a

text was received from Salvant on Ms. Johnson’s phone that directed her to “erase

this.” Detective Buttone testified that the text messages were in fact erased.

Arrest warrants were obtained for defendant and Salvant for second degree

murder. In December 2017, defendant was arrested by U.S. Marshals in Florida,

and his cell phone was seized. A photograph of the search warrant that was left at

his residence with his mother on November 25th was located on his phone.

Salvant was located by U.S. Marshals in Jefferson Parish, and two cell phones

were seized from him. Detective Buttone testified that there were many

unrecoverable deleted items on both defendant and Salvant’s phones. He added

that it appeared some phones were used regularly before the homicide, and some

were obtained after and were “burner phones.”

Dr. Yen Van Vo, who was accepted as an expert in forensic pathology,

testified she performed an autopsy on the victim, and she opined that the manner of

death was homicide, and the cause of death was the sole gunshot wound to his

abdomen.

Linda Tran and Jene Rauch were accepted as experts in the examination of

firearms. They performed ballistic examinations on the casings and projectiles

collected from 672 Bannerwood and the murder scenes, and both concluded the

23-KA-272 11 casings and projectiles were not shot from the revolver found in the victim’s

vehicle.

LAW AND DISCUSSION

On appeal, defendant assigns five errors, challenging the sufficiency of the

evidence presented against him at trial, contending the trial court erred in admitting

evidence of the November 13, 2017 shooting at 672 Bannerwood, as well as in

ruling upon the state’s motion in limine without written reasons, in allowing Erika

Segura to testify via Zoom video, and in permitting Amanda Williams (formerly

Harris) to identify defendant and Salvant in surveillance footage.

Sufficiency of the Evidence

On appeal, defendant argues that the evidence is insufficient to convict him

of second degree murder. Defendant avers that his entire conviction rests upon a

rumor and a grainy surveillance video, which shows neither of the suspects’ faces

nor any weapon; and the video leaves the timing of the shooting unclear, as it

contains no audio, and the victim is visible fleeing while remaining fully upright.

Defendant also argues that the evidence is entirely circumstantial and there

was no eyewitness identification of him. He finally argues that the text messages

exchanged between Salvant and Donisha Johnson do not implicate him or Salvant,

and that even if the evidence is viewed under the Jackson4 standard, it fails to

exclude every reasonable hypothesis of innocence.

Secondarily, defendant argues that even if this Court finds sufficient

evidence that he was one of the suspects seen in the surveillance footage, the

evidence remains insufficient to prove that he participated as a principal to second

degree murder. Defendant argues that mere presence at the scene of a crime is

insufficient to convict someone as a principal; that in order to prove him guilty as a

4 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

23-KA-272 12 principal to second degree murder, the State was required to prove he aided or

abetted in the killing of a human being when he had specific intent to kill or to

inflict great bodily harm, or that he directly or indirectly counseled or procured

another to commit the crime. While defendant conceded a person may be

convicted as a principal to second degree murder even if he did not personally fire

the shot, he argues there is no evidence that he gave any counsel to Salvant in the

commission of the crime, and the jury could only speculate that he was guilty as a

principal to second degree murder.

In reviewing the sufficiency of the evidence, an appellate court must

determine whether the evidence, whether direct, 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. Baham, 14-653 (La. App. 5 Cir. 3/11/15),

169 So.3d 558, 566, writ denied, 15-40 (La. 3/24/16), 190 So.3d 1189. When

circumstantial evidence is relied upon to prove the commission of the offense, La.

R.S. 15:438 provides, “[A]ssuming every fact to be proved that the evidence tends

to prove, in order to convict, it must exclude every reasonable hypothesis of

innocence.” The reviewing court is not required to determine whether another

possible hypothesis of innocence suggested by the defendant offers an exculpatory

explanation of events. Rather, the reviewing court must determine whether the

possible alternative hypothesis is sufficiently reasonable that a rational trier of fact

could not have found proof of guilt beyond a reasonable doubt. Baham, supra.

The credibility of witnesses is within the sound discretion of the trier of fact,

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

credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21

(La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

23-KA-272 13 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.

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

proving the identity of the defendant as the perpetrator. Where the key issue is the

identification, the State is required to negate any reasonable probability of

misidentification to carry its burden of proof. State v. Ray, 12-684 (La. App. 5 Cir.

4/10/13), 115 So.3d 17, 20, writ denied sub nom. State ex rel. Ray v. State, 13-1115

(La. 10/25/13), 124 So.3d 1096. Identification by only one witness is sufficient to

support a conviction. State v. Williams, 08-272 (La. App. 5 Cir. 12/16/08), 3 So.3d

526, 529, writ denied, 09-143 (La. 10/16/09), 19 So.3d 470. In the absence of

internal contradiction or irreconcilable conflict with physical evidence, one

witness’s testimony, if believed by the trier of fact, is sufficient to support a

requisite factual finding. State v. Caffrey, 08-717 (La. App. 5 Cir. 5/12/09), 15

So.3d 198, 202, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297.

Principals are defined under La. R.S. 14:24 as follows, “[a]ll persons

concerned in the commission of a crime, whether present or absent, and whether

they directly commit the act constituting the offense, aid and abet in its

commission, or directly or indirectly counsel or procure another to commit the

crime, are principals.” Only those persons who knowingly participate in the

planning or execution of a crime are principals to that crime. State v. Pierre, 93-

893 (La. 2/3/94), 631 So.2d 427, 428; State v. King, 06-554 (La. App. 5 Cir.

1/16/07), 951 So.2d 384, 390, writ denied, 07-371 (La. 5/4/07), 956 So.2d 600. In

addition, under the law of principals, a person may still be convicted of a crime

23-KA-272 14 even if he has not personally fired the fatal shot. State v. Massey, 11-357 (La. App.

5 Cir. 3/27/12), 91 So.3d 453, 463, writ denied sub nom. State ex rel. Massey v.

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

Mere presence at the scene of a crime does not make one a principal to the

crime. However, “[i]t is sufficient encouragement that the accomplice is standing

by at the scene of the crime ready to give some aid if needed, although in such a

case it is necessary that the principal actually be aware of the accomplice’s

intention.” State v. Page, 08-531 (La. App. 5 Cir. 11/10/09), 28 So.3d 442, 449,

writ denied, 09-2684 (La. 6/4/10), 38 So.3d 299. An individual may only be

convicted as a principal for crimes in which he personally has the requisite mental

state, and the intent of the accomplice cannot be imputed to the defendant. State v.

Williams, 20-46 (La. App. 5 Cir. 12/30/20), 308 So.3d 791, 822, writ denied, 21-

316 (La. 5/25/21), 316 So.3d 2 (citing State v. Chattman, 01-556 (La. App. 5 Cir.

10/30/01), 800 So.2d 1043, 1048, writ denied, 01-3320 (La. 12/19/02), 833 So.2d

332).

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). Specific intent need not be

proven as a fact but may be inferred from the circumstances and actions of the

defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982). Louisiana courts

have recognized that a defendant may possess the requisite intent even though he

did not inflict the mortal injury. Chattman, 800 So.2d at 1049 (citing State v.

Meyers, 95-750 (La. App. 5 Cir. 11/26/96), 683 So.2d 1378, writ denied, 97-234

(La. 6/20/97), 695 So.2d 1350).

Defendant was convicted of second degree murder in violation of La. R.S.

14:30.1, which defines second degree murder as the killing of a human being when

the offender has the specific intent to kill or to inflict great bodily harm.

23-KA-272 15 State v. Massey is a case in which the facts are strikingly similar to those in

this case. In Massey, 91 So.3d at 464, this Court found that evidence was

sufficient to support a verdict that the defendant was guilty of second degree

murder. An eyewitness testified that she saw the defendant and his brother in a

white truck driving slowly through the neighborhood shortly before the shooting.

After hearing gunshots, the eyewitness turned around and stated she saw the white

truck in the middle of the street with the defendant and his brother standing by the

victim. She testified that she only saw the defendant shoot at the victim but could

not state who fired the shots before she turned around. She added that she saw the

defendant’s brother holding a large weapon and the defendant holding a small

weapon. The detective in the case testified that both the defendant and his brother

were seen leaving his brother’s residence on the day of their arrest in the same

white truck the eyewitness saw driven by the defendant’s brother, with the

defendant in the passenger seat on the evening of the murder. The State also

presented a theory at trial as to the motive of the murder, when it established that

two days prior, a shooting occurred in which the defendant’s cousin was shot.

Additionally, the defendant’s brother had also been shot in the foot prior to the

murder. Defendant’s brother informed detectives that he believed the victim’s

cousin or brother had shot him. Id. at 464-65. This Court stated that regardless of

whether the defendant fired the shot that killed the victim, it found defendant was

at least a principal to the second degree murder of the victim. Id. at 465.

In State v. Clarkson, 11-933 (La. App. 3 Cir. 3/7/12), 86 So.3d 804, writ

denied, 12-788 (La. 9/28/12), 98 So.3d 826, the defendant did not try to assist the

victim, urged others to leave the scene, and left town. The third circuit found the

defendant’s acts directly or indirectly constituted aiding and abetting the

commission of a murder; therefore, defendant’s actions satisfied the elements of

being a principal to second degree murder. (See also Page, supra, which held,

23-KA-272 16 under the law of principals, the evidence was sufficient to support a second degree

murder conviction when the defendant remained with the shooter on scene, did

nothing to prevent the crime, fled the scene rather than going to the victim’s aid,

did not report the shooting, and had been seen discussing a robbery on the day of

the murder).

In the instant matter, we find that the State presented sufficient evidence to

convict defendant of second degree murder. The evidence proved that on

November 13, 2017, defendant was at his residence, 672 Bannerwood, seated in

his gray Nissan Maxima, when an unknown individual fired shots into his vehicle.

Approximately nine days later, Mr. Jaber saw defendant and Salvant,

wearing black sweatshirts with the hoods up and tied tightly around their faces,

approach and hit the victim right before the victim was shot. Although Mr. Jaber

could identify only Salvant in a photographic line-up, his testimony reflected that

one of the perpetrators was much taller than the other. He also testified that

Salavant, the shorter of the two, had a gun in his hand. Detective Buttone

confirmed that Salvant was listed at 5'5", 165 pounds and defendant was listed as

6'3", 350 pounds.

The Nathan’s Discount video surveillance corroborated Mr. Jaber’s

testimony and showed that defendant and Salvant were together when they arrived

at the barbershop and approached the victim, both wearing black sweatshirts with

the hoods pulled tight around their heads. After the victim was shot, they are seen

fleeing on foot together, headed in the direction of Bannerwood, the same street of

their residence, which was a three-minute drive from Nathan’s Discount.

The 689 Bannerwood video surveillance, showed that on the day of the

murder, defendant and Salvant left their residence dressed in the same clothing as

seen in the Nathan’s Discount video. They drove toward Lapalco in a gray Nissan

Maxima, the same car that defendant had been sitting in when he was shot at days

23-KA-272 17 prior. About 16 minutes after the victim was shot, the video showed defendant and

Salvant returning to their residence in the same Nissan Maxima.

Ms. Williams advised Detective Wischan about the November 13, 2017

shooting involving defendant. She revealed defendant and Salvant are brothers

and she has known them since they were babies. She was shown multiple

surveillance videos from Nathan’s Discount, and she identified the individuals in

hooded sweatshirts as defendant5 and Salvant.

Text messages between Ms. Johnson and Salvant on November 14, 2017,

one day after the first incident, showed that Salvant likely informed Ms. Johnson of

the shooting that occurred the prior evening. Salvant told Ms. Johnson, “[T]hey

better get their black clothes ready.” A text message to Ms. Johnson from Salvant

on November 24, 2017, following the murder, stated that he was in Florida. A text

message sent from Salvant to Ms. Johnson on November 25, 2017, stated, “erase

this.”

Through surveillance videos and Ms. Williams’ identification of defendant,

the jury was presented with evidence that defendant went to the scene of the crime

with his brother, Salvant. Although no one reported seeing defendant with the gun,

the jury saw the surveillance footage in which defendant could be seen in a

physical altercation with the victim along with Salvant. After the victim was shot,

surveillance showed defendant and Salvant, fleeing the scene, back towards

Bannerwood. Defendant was arrested in Florida, and a photo was found on his

phone of the search warrant that was left at his residence. 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.

5 Defendant points out multiple times in his brief that the surveillance video shows he is “clearly not pigeon-toed.” Regardless of how he was described by Ms. Williams, the surveillance video reflects that defendant has a distinct walk.

23-KA-272 18 Given defendant’s actions before, during, and after the murder, and

considering the State’s theory that the instant murder was in retaliation for the

shooting the week prior in which defendant was a victim, we find that the instant

case provides evidence upon which a rational jury could have inferred that

defendant had the requisite intent for second degree murder, even if he did not fire

the fatal gunshot.

We further 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 murder beyond a reasonable doubt.

Motion In Limine

In defendant’s second assignment of error, he argues that the trial court erred

when it granted the State’s Motion in Limine to Determine Admissibility of

Evidence of Prior Shooting, which allowed the admission of evidence in an

unrelated shooting in which he was a victim.

In its motion, the State asked the trial court to determine the admissibility of

the evidence of the November 13, 2017 shooting into defendant’s car while he was

sitting in his vehicle parked in his driveway. In support of the motion, the State

introduced the November 14, 2017 text messages between Salvant and Ms.

Johnson in which Salvant sent a text message to Ms. Johnson advising her to look

at the news that night. Ms. Johnson replied, texting, “WTF happened? Is y’all

okay? Your momma?” Salvant replied, “We don’t miss,” and “They better get

their black clothes ready.” The State also introduced the police reports from both

crime scenes, one of which references the DVR that was seized from defendant’s

home but erased on November 22, 2017, the date of the instant murder. Counsel

for defendant filed a written opposition on July 22, 2020.

The motion came on for hearing on October 15, 2020. The State, both

defendant and Salvant, and defendant’s attorney were all present via Zoom due to

23-KA-272 19 COVID. The State argued that the evidence it sought to introduce did not

constitute “prior bad acts” or crimes of defendant or Salvant under La. C.E. art.

404(B). The State reasoned the aforementioned evidence was relevant to the

instant murder because it was res gestae,6 providing context and motive for

defendant and Salvant, who are brothers living together at 672 Bannerwood.

Defendant avers here that the State moved to introduce the evidence

pursuant to La. C.E. art. 404(B), while acknowledging that the prior incident did

not constitute a prior bad act as contemplated by the codal article. Defendant

argues that the State, while arguing the evidence was necessary to prove both

motive, i.e., retribution, and res gestae, failed to cite any legal support for the

introduction of evidence in the prior shooting. Defendant further argues the prior

shooting is irrelevant as there was no established connection between the two

incidents, and admission of the prior shooting evidence was extremely prejudicial

because the State sought admission to prove a false motive in an otherwise weak

case.

The State responds that the prior shooting evidence is not subject to the

limitation of La. C.E. art. 404(B) and is admissible because it is relevant to both

the “story of the crime” and to motive, i.e., retribution for the prior shooting. The

State avers here, as it did before the trial court, that the prior shooting should not

be considered a “bad act” or “other crime” of defendant because he was the victim,

6 Res gestae, now called integral act evidence, “relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.” La. C.E. art. 404 (B)(1)(a). The purpose of integral act evidence is to complete the story of the crime on trial by providing its immediate context of happenings near in time and place. State v. Davis, 18-485 (La. App. 5 Cir. 4/10/19), 269 So.3d 1123, 1133, writ denied, 19-716 (La. 11/12/19), 282 So.3d 229. Integral act evidence “encompasses ‘not only spontaneous utterances and declarations made before and after commission of the crime but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under the circumstances.’” State v. Colomb, 98-2813 (La. 10/1/99), 747 So.2d 1074, 1075-1076; State v. Neveaux, 23-477 (La. App. 5 Cir. 11/10/23), 377 So.3d 749, 758, writ denied, 23-1633 (La. 3/12/24), 381 So.3d 56.

23-KA-272 20 and therefore, La. C.E. art. 404(B) does not apply, and the evidence is relevant and

admissible under La. C.E. arts. 401 and 402.

We agree that the disputed evidence is not subject to La. C.E. art.

404(B)(1)(a). This prohibition against other crimes pertains to other crimes by a

defendant, not other crimes of a third person. State v. Hutchinson, 22-536 (La.

App. 5 Cir. 8/18/23), 370 So.3d 769, 784, writ denied, 23-1296 (La. 2/27/24), 379

So.3d 662.

In Hutchinson, supra, the defendant was charged with second degree murder

and obstruction of justice. The State sought to introduce evidence regarding a

casing found at an unrelated crime scene after the murder at issue. The casing

matched bullet casings found at the murder scene and the State sought to introduce

the evidence not as evidence of another crime or bad act by defendant (ie., that

defendant was involved in the subsequent shooting), but rather as evidence in

support of the obstruction of justice charge based on the allegation that defendant

removed the gun from the murder scene. Based on these grounds, this Court

determined that evidence of the casing found at the subsequent shooting scene was

not subject to La. C.E. art. 404(B), but rather was subject only to the relevancy and

probative value versus prejudice balancing test required by application of La. C.E.

arts. 401, 402, and 403. Specifically, this Court stated, “We agree that the disputed

evidence is not subject to La. C.E. art. 404(B). The prohibition against other

crimes pertains to other crimes by the defendant, not other crimes of someone

else.” Id. (citing State v. Trim, 12-115 (La. App. 5 Cir. 10/16/12), 107 So.3d 656,

665, writ denied, 12-2488 (La. 4/19/13), 111 So.3d 1030; State v. Joseph, 96-187

(La. App. 5 Cir. 11/14/96), 685 So.2d 237, 242).

La. C.E. art. 401 defines relevant evidence 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

23-KA-272 21 without the evidence.” La. C.E. art. 402 provides that “[a]ll relevant evidence is

admissible, except as otherwise provided by the Constitution of the United States,

the Constitution of Louisiana, this Code of Evidence, or other legislation.” In

deciding the issue of relevancy, the trial court must determine whether the

evidence bears a rational connection to the facts at issue in the case. State v.

Breaux, 22-581 (La. App. 5 Cir. 5/10/23), 366 So.3d 727, 735. Even if 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. The term

“unfair prejudice,” as to a criminal defendant, speaks to the capacity of some

concededly relevant evidence to lure the fact-finder into declaring guilt on a

ground different from proof specific to the offense charged. State v. Frickey, 22-

261 (La. App. 5 Cir. 3/1/23), 360 So.3d 19, 50, writ denied, 23-468 (La. 11/8/23),

373 So.3d 59. A district court’s ruling on the admissibility of evidence will not be

reversed absent an abuse of discretion. State v. Ard, 20-221 (La. App. 5 Cir.

4/28/21), 347 So.3d 1046, 1055.

As discussed in detail above, the evidence the State sought to introduce was

that nine days before Mr. Burns was murdered, Deputy Segura responded to a call

for service at 672 Bannerwood, where she observed through neighborhood

surveillance camera footage, that while defendant was sitting in his parked car at

that location, several gunshots were fired into his driver’s side door. Bannerwood

is located around the corner from the instant murder scene.

We find that defendant’s involvement as a victim of a shooting occurring

nine days prior to the murder, which the State posited that defendant and Salvant

believed involved the victim, was relevant, and more probative than prejudicial.

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

from the shooting on November 13 and 14, 2017.

23-KA-272 22 Incomplete Record

Defendant next asserts that his constitutional right to a full appellate review

of all the rulings was violated because there is no written order in the record nor

are there any reasons for the ruling in which the trial court granted the State’s

motion in limine. Defendant further avers that no one received notice of the ruling.

On June 9, 2020, the State filed its six-page motion in limine which included

a dissertation of the facts, the law upon which it relied as well as, in the alternative,

a discussion of the requirements of La. C.E. Art. 404(B) with five exhibits in

support of its motion. Defendant’s attorney filed a two-page brief which set forth

the legal basis for his opposition. The motion came before the court for a hearing

on October 15, 2020, having been delayed by COVID restrictions. Present by

Zoom, again due to COVID restrictions, were the State, defendant’s attorney, and

both defendant and Salvant. At the conclusion of the hearing, the court took the

matter under advisement. On the following day, October 16, 2020, the trial court

issued its ruling granting the State’s motion via minute entry. The parties next

appeared before the court for a status conference on January 6, 2021. There is no

indication in this record that defendant objected to the out of court nature of the

ruling, requested either a ruling on the record, a written judgment granting the

State’s motion, or written reasons for judgment. The parties’ pleadings and

hearing transcript are a part of this record on review.

On appeal, this Court granted a Motion to Supplement the Record with any

written order or judgment of the court’s ruling on the 404(B) motion. In response,

a letter from the court reporter of Division “E” of the 24th Judicial District Court

stated, “Please be advised that, although the Motion in Limine in the above

referenced case was granted on October 16th, 2020, according to the minute entry,

the matter was not handled on the record in open court on said date, therefore I

cannot produce a transcript.”

23-KA-272 23 La. Const. Art. I, § 19 provides that no person shall be subjected to

imprisonment without the right of judicial review based upon a complete record of

all evidence upon which the judgment is based. La. C.Cr.P. art. 843 requires, in all

felony cases, the recording of “all of the proceedings, including the examination of

prospective jurors, the testimony of witnesses, statements, rulings, orders, and

charges by the court, and objections, questions, statements, and arguments of

counsel.”

A defendant has a right to a complete transcript of the trial proceedings,

particularly where, as in this case, appellate counsel did not represent defendant at

trial. State v. Sly, 23-60 (La. App. 5 Cir. 11/2/23), 376 So.3d 1047, 1094, writ

denied, 23-1588 (La. 4/23/24), 383 So.3d 608. Material omissions from trial court

proceedings bearing on the merits of an appeal require reversal; however, a slight

inaccuracy in a record or an inconsequential omission from it, which is immaterial

to a proper determination of the appeal, does not require reversal of a conviction.

Id. A defendant is not entitled to relief because of an incomplete record absent a

showing of prejudice based on the missing portions of the transcript. State v.

Castleberry, 98-1388 (La. 4/13/99), 758 So.2d 749, 773, cert. denied, 528 U.S.

893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999); State v. Clark, 19-518 (La. App. 5

Cir. 6/24/20), 296 So.3d 1281, 1289, writ denied, 21-62 (La. 3/9/21), 312 So.3d

585. “The materiality of a given omission is measured by the prejudicial effect of

the omission on the defendant in accessing the full scope of appellate review[.]” Id.

This appellate record contains all relevant pleadings, attachments, and

minute entries, as well as a complete transcript of the hearing.

Here, where both the State and the defense filed detailed written pleadings

setting forth the basis for motion and opposition, the motion was heard in open

court, and the pleadings and hearing transcript are a part of the record, the presence

of either a written judgment or reasons for judgement would add nothing of

23-KA-272 24 substance to our analysis of this case. “[A] complete appellate review of a

conviction and sentence can be accomplished, even when there are missing

portions of the trial record.” State v. Mims, 97-1500 (La. App. 4 Cir. 6/21/00), 769

So.2d 44, 79, writs denied, 00-2255 (La. 6/22/01), 794 So.2d 781, and 00-2270

(La. 6/22/01), 794 So.2d 782.

Further, there is neither a provision within the Louisiana Code of Criminal

Procedure, nor jurisprudence, which requires a court to provide written reasons for

judgment in a criminal case. Even in the civil context, the court need only provide

written reasons for judgment upon a timely request by a party. La. C.C.P. art.

1917. There was none in this case. An appeal is from the judgment, not the

reasons for judgment. Allday v. Newpark Square I Off. Condo. Ass'n, Inc., 20-358

(La. App. 5 Cir. 8/18/21), 327 So.3d 566, 573.

We find that the defendant has failed to show how he is prejudiced by an

absent written ruling with reasons from the trial court. Further, absence of either

the transcript of a judgment rendered in open court, a written judgment, or reasons

for judgment on the State’s Motion in Limine did not violate defendant’s

constitutional right to a full appellate review, are inconsequential to our review,

meet no prejudice upon defendant, and are otherwise unnecessary. Therefore, we

find that the record is sufficient for a proper appellate review, and this assignment

is without merit.

Confrontation Clause

In this fourth assignment of error, defendant asserts the trial court erred

when it allowed Deputy Segura to testify via Zoom video conferencing, because

remote testimony via video violated his Sixth Amendment right to confrontation,

and the exception in La. R.S. 15:502 does not apply to Deputy Segura. Defendant

argues that the State failed to meet its burden of proving that Deputy Segura’s

video testimony was necessary to further an important public policy. Defendant

23-KA-272 25 contends that because the testimony laid out the purported motive in the case, its

admission was not harmless and requires his conviction be vacated and the matter

remanded for a new trial.

The State responds that an important public policy was met because Deputy

Segura was stationed overseas for military duty and would likely be there another

year. It additionally asserts that there is no Louisiana statutory or codal authority

that directly addresses this issue, but La. C.Cr.P. art. 177 gives the trial court inherit

authority to authorize Zoom testimony. The State contends that even if the trial

court erred in allowing Deputy Segura to testify via Zoom, any error would be

harmless.

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. The Confrontation Clause of the Louisiana Constitution specifically

and 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 not only means the ability to

confront the witnesses physically but also to secure for the opponent the

opportunity for cross-examination, which is its main and essential purpose. Id.

Cross-examination is the principal way to test the believability and truthfulness of

the testimony, and it has traditionally been used to impeach or discredit the

witness. Id.; State v. Williams, 04-608 (La. App. 5 Cir. 11/30/04), 889 So.2d 1093,

1100, writ denied, 05-81 (La. 4/22/05), 899 So.2d 559.

7 La. C.Cr.P. art. 17 states in pertinent part, A court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue such writs and orders as may be necessary or proper in aid of its jurisdiction. It has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done.

23-KA-272 26 Specifically, defendant argues that Deputy Segura is not one of the persons

authorized to testify under La. R.S. 15:502, but if that statute authorized her

testimony, the State did not seek judicial approval by filing a written notice thirty

days in advance of trial.

The issue of whether the persons enumerated under La. R.S. 15:502 is

illustrative or exhaustive is res nova. The disputed issue regarding the persons

enumerated under La. R.S. 15:502(A) is one of statutory interpretation, which is

subject to de novo review. State v. Maldonado, 11-1090 (La. App. 5 Cir. 5/22/12),

96 So.3d 1221, 1224. The starting point in the interpretation of any statute is the

language of the statute itself. Id. La. R.S. 1:3 provides in part, “Words and

phrases shall be read with their context and shall be construed according to the

common and approved usage of the language… The word ‘shall’ is mandatory and

the word ‘may’ is permissive.” Interpretation of the language in a criminal statute

is governed by La. R.S. 14:3, which states, in part:

[I]n order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.

We start our analysis with the words of the statute itself. La. R.S. 15:502,

titled “Testimony by simultaneous broadcast” states in part:

A. The court may authorize the following persons to testify by simultaneous transmission through audiovisual equipment, if such technology is available in the courtroom, during any criminal proceeding; juvenile court proceeding; or any family court proceeding which is of a criminal nature, and any civil forfeiture proceeding arising from alleged criminal activity:

(1) Employees of criminalistics laboratories. (2) Coroners. (3) Forensic pathologists. (4) Any other person practicing in the field of knowledge and expertise in the gathering, examination, and analysis of evidence by scientific means.

B. The party seeking to offer testimony as provided in Subsection A of this Section shall, in all cases, except those in juvenile court which

23-KA-272 27 are of a noncriminal nature, provide written notice to opposing counsel not less than thirty days prior to the commencement of the proceeding. A party in a case in juvenile court which is of a noncriminal nature seeking to offer testimony as provided in Subsection A of this Section shall provide written notice to opposing counsel not less than three days prior to the commencement of the proceeding.

Therefore, in specified proceedings and after meeting certain requirements, the

court may authorize employees of criminalistics laboratories, coroners, forensic

pathologists, and any other person practicing in the field of knowledge and

expertise in the gathering, examination, and analysis of evidence by scientific

means to testify by simultaneous transmission through audiovisual equipment.

Upon review of the context of La. R.S. 15:502, the statute is located in Part

XI of the Code of Criminal Procedure titled “Evidence From Criminalistics

Laboratories.” The legislative history reflects that La. R.S. 15:502 was enacted in

2009, with the advent of advanced remote testimony capabilities. The purpose was

to authorize crime lab employees and other forensics personnel to testify through

the use of audiovisual equipment in certain proceedings, to provide for written

notice to opposing counsel, to provide for limitations, and to provide for related

matters. Acts 2009, No. 272, §1; HB No. 119.

The list of the four categories found in La. R.S. 15:502(A) exclusively

addresses expert witnesses: criminalists, coroners, forensic pathologists, and other

scientists. In Louisiana, with its wide swath of rural parishes and judicial districts,

many of which do not have crime labs, local coroners, etc., this statute provides for

the rational availability of expert testimony by remote means upon compliance

with certain notice requirements. The statute has no exclusionary language and

does not purport to address non-expert witnesses. The availability and

admissibility of remote simultaneous broadcast testimony preceded the statute, and

nothing in the statute seeks to eliminate that opportunity upon compliance with the

factors set forth by the United States Supreme Court as well as this and other

23-KA-272 28 Louisiana appellate courts. See Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157,

111 L.Ed.2d 666 (1990); State v. Luckey, 16-494 (La. App. 5 Cir. 2/8/17), 212

So.3d 1220, 1225, writs denied, 17-432 (La. 10/27/17), 228 So. 3d 1225, and 17-

617 (La. 10/27/17), 228 So.3d 1234; State v. Day, 17-1455 (La. App. 1 Cir.

6/21/18), 253 So.3d 173, 182, writ denied, 18-1228 (La. 4/15/19), 267 So.3d 1126;

State v. Collins, 10-757 (La. App. 4 Cir. 5/11/11), 65 So.3d 271, 282, writ denied,

11-1185 (La. 11/23/11), 76 So.3d 1153, and writ denied, 11-1719 (La. 1/20/12), 78

So.3d 140.

A plain reading of La. R.S. 15:502, in connection with its placement in the

code and its legislative purpose, leads us to conclude that the statute does not apply

to Deputy Segura, and it is not an exhaustive list of every person who may testify

via simultaneous broadcast. La. R.S. 15:502 does not seek to exclude all other

witnesses from testifying by simultaneous broadcast. Rather, it lists four

categories of witnesses who may testify, without making the showing otherwise

required for a witness to be permitted to testify via simultaneous broadcast, upon

compliance with the specific requirements set forth in 15:502. However, other

witnesses, if they make the otherwise necessary showing, may, in the discretion of

the court, also testify by simultaneous broadcast.

As Deputy Segura is not a witness in one of the categories of witnesses

particularized by La. R.S. 15:502, the efficacy of her simultaneously broadcasted

testimony must be reviewed instead through the lens of the Sixth Amendment

Confrontation Clause.

In Craig, supra, the United States Supreme Court addressed the issue of

whether the Confrontation Clause allowed a child witness in a child abuse case to

testify at trial, outside the defendant’s physical presence, by one-way closed circuit

television. The defendant argued that the Sixth Amendment required face-to-face

confrontation and that anything less failed to satisfy the constitutional guarantee.

23-KA-272 29 Although the Craig Court acknowledged that the Confrontation Clause guarantees

the defendant “a face-to-face meeting with witnesses appearing before the trier of

fact,” the Court recognized that it has never held that “the Confrontation Clause

guarantees criminal defendants the absolute right to a face-to-face meeting with

witnesses against them at trial.” Craig, 497 U.S. at 844, 110 S.Ct. at 3163.

(emphasis as found in original). Rather, “the Confrontation Clause reflects a

preference for face-to-face confrontation at trial, a preference that must

occasionally give way to considerations of public policy and the necessities of the

case.” Id., 497 U.S. at 849, 110 S.Ct. at 3165. (emphasis as found in original).

The Craig Court found that a defendant’s right to confront accusatory

witnesses may be satisfied absent a physical, face-to-face confrontation at trial: (1)

only where denial of such confrontation is necessary to further an important public

policy; and (2) only where the reliability of the testimony is otherwise assured. Id.

The requisite finding of necessity must be a case-specific one. Craig, 497 U.S. at

855, 110 S.Ct. at 3169. Under Craig, it is the State’s burden to make an adequate

showing of necessity. Id.

This Court in Luckey, supra, reiterated the Confrontation Clause’s

preference for face-to-face confrontation at trial, a preference that must

occasionally give way to consideration of public policy and the necessities of the

case. Id. at 1229. However, in any case, the right to face-to-face confrontation

may not be dispensed with lightly. In Luckey, the State called as a rebuttal witness

an individual who was incarcerated at David Wade Correctional Center, to testify

via WebEX, a program for transmitting two-way live video. In finding that the

trial court erred in failing to require the State to transport the incarcerated witness

to court, this Court stated,

Confrontation not only means the ability to confront the witnesses physically but also to secure for the opponent the opportunity of cross-examination, which is its main and essential purpose. State v.

23-KA-272 30 Robinson, 01-273 (La. 5/17/02), 817 So.2d 1131, 1135. Cross- examination is the principal way to test the believability and truthfulness of the testimony, and it has traditionally been used to impeach or discredit the witness. Id.; State v. Williams, 04-608 (La. App. 5 Cir. 11/30/04), 889 So.2d 1093, 1100, writ denied, 05-0081 (La. 4/22/05), 899 So.2d 559.

Id at 1228. In Luckey, this Court found that the State failed to make a showing of

necessity, and the record revealed no grounds upon which the district court could

have reasonably reached the conclusion that denial of face-to-face confrontation

was necessary to further an important public policy. This Court stated that the

State’s interest in a slightly swifter resolution of the case did not rise to the level

of an important public interest that would justify the denial of confrontation.

Nevertheless, in the Luckey case, this Court also found that a violation of a

defendant’s right to confrontation is subject to a harmless error analysis, citing

State v. Placide, 11-1061 (La. App. 5 Cir. 6/28/12), 109 So.3d 394, 399-400; State

v. Merwin, 07-807 (La. App. 5 Cir. 4/15/08), 984 So.2d 842, 846. There, this

Court found that the violation of the defendant’s right to confrontation was

harmless as the guilty verdict was surely unattributable to the error.

In State v. Hoff, 18-K-693 (La. App. 5 Cir. 2/19/19) (unpublished writ

disposition), writ granted in part, 19-475 (La. 6/26/19), 275 So.3d 871, this Court

found no error in the trial court’s judgment granting the State’s motion to allow

testimony by simultaneous broadcast, finding that the State, at a contradictory

hearing, had made the necessary showing of both the presence of an important

public interest, as well as proper steps taken to ensure reliable testimony. This

Court also found that the trial court had also taken adequate steps to protect both

the reliability of the testimony and the opportunity for full cross-examination. The

Hoff case provides an excellent example of the meticulous steps which should be

taken by both the State and the trial court to ensure protection of the defendant’s

constitutional right to confront the witnesses against him with reliable remote

23-KA-272 31 testimony via two- way communication. In Hoff, during the pre-trial evidentiary

hearing, the State made a showing that it sought to perpetuate the testimony of a

dying witness because the witness had suffered a severe stroke with debilitating

physical injuries and dementia. The trial court granted the State’s motion with

thorough reasons, subject to specific conditions delineated in the court’s order so

as to meet the requirements of Craig, supra. The trial judge there found that

denying the testimony of the key witness would limit the fact-finding function of

the trial. The Louisiana Supreme Court granted the writ in part, in order to further

delineate the trial court’s first stated condition that broadcast conditions permit

that, “the witness can see the defendant and the person who is questioning the

witness after the person identifies himself, and that the defendant and opposing

attorney and trier of fact can see the witness and his responses at all times.” Id.

(emphasis as found in original).

On the contrary, in State v. Hamed, 21-167 (La. App. 5 Cir. 8/18/21), 326

So.3d 375, 377, this Court vacated the trial court’s ruling granting the State’s

motion to allow a witness to testify remotely and remanded the matter to the

district court for a hearing. In that case, in an earlier hearing before the trial court,

no evidence had been adduced in support of the State’s motion, the trial court had

failed to make the requisite findings and determinations based upon evidence

adduced, and failed to impose conditions sufficient to protect the defendant’s

constitutional right to confrontation. This Court in Hamed stated that although the

conditions and procedures ordered by the trial court were appropriate, they were

alone insufficient. This Court found that, as such, there could not have been an

affirmative factual finding, based on properly admitted evidence, that the State had

met its burden, or that the requirements of Craig and other case authorities had

been satisfied. In vacating the trial court’s ruling and remanding the matter to the

district court for an evidentiary hearing, this Court stated:

23-KA-272 32 Thus, the trial court must determine at a pre-trial evidentiary hearing that: (1) denial of face-to-face confrontation is necessary to further an important public policy, and that the alleged necessity applies specifically in the trial of this case; and (2) the reliability of the video- conferenced testimony can and will be procedurally assured, as in Hoff. The burden is upon the State to show an adequate assurance of both of these requirements by a preponderance of evidence, and the trial court must establish conditions which assure an untainted process for examining the remote witness.

Id. at 381. (emphasis as found in original).

A review of this case record reveals that the first time the State mentioned

that Deputy Segura would testify via Zoom was during its opening arguments.

After several of the State’s witnesses testified, the State declared, “Judge, the next

witness is going to be the Zoom witness.” Counsel for defendant objected and a

bench conference was held. Defense counsel particularized that he objected to the

testimony via Zoom, and Salvant’s counsel added that he thought it was a violation

of his client’s right to confrontation. The court then inquired about Deputy

Segura’s location, and the State responded that she was testifying via Zoom

because she had been on military duty in the United Arab Emirates for

approximately two years and would likely be there another year. The trial court

overruled defendant’s objection and allowed the testimony to proceed via Zoom.

While active military service overseas is an important public policy

consideration, here the State merely announced it was going to use Zoom. The

trial court failed to conduct an evidentiary hearing and receive evidence to

determine that (1) denial of face-to-face confrontation was necessary to further an

important public policy, and that the alleged necessity applied specifically in the

trial of this case; and (2) the reliability of the video-conferenced testimony could

and would be procedurally assured. The State called no witness, and presented no

evidence regarding Deputy Segura’s military service, and offered no technical

evidence which would ensure adequate conditions in order to ensure reliability.

The State failed to meet its burden of proof to show an adequate assurance of both

23-KA-272 33 of these requirements by a preponderance of evidence, and the trial court failed to

establish conditions such as those laid out by the court in Hoff, supra to insure the

reliability of the video conferenced testimony and the protection of the defendant’s

right to full cross-examination. We find that the trial court erred in allowing

Deputy Segura to testify via Zoom, violating defendant’s Sixth amendment

Confrontation Clause rights.

Nonetheless, a violation of a defendant’s right to confrontation is subject to a

harmless error analysis. Luckey, supra. An error is harmless when the guilty

verdict was surely not attributable to the error. Whether an error is harmless in a

particular case depends upon many factors, including: (1) the importance of the

witness’ testimony; (2) whether the testimony was cumulative in nature; (3)

whether corroborating or contradictory evidence regarding the major points of the

testimony existed; (4) the extent of cross-examination permitted; and (5) the

overall strength of the State’s case. Id at 1230.

In the instant case, through Deputy Segura’s testimony, the State was able to

present evidence pertaining to its theory of defendant’s motive for the murder of

the victim and to complete the story of the crime with her testimony regarding the

shooting on November 13, 2017 and the circumstances under which defendant

reported the shooting the following day. Her testimony was corroborated by the

shell casings she located and the surveillance video from 689 Bannerwood, which

she recorded. The testimony was not cumulative, as no other witness testified to

similar details described by Deputy Segura. Additionally, the record indicates that

defense counsel was able to extensively cross-examine her, notwithstanding the

fact that she appeared via Zoom. There were no technical issues that limited her

testimony, and no issues were raised while she testified. Lastly, aside from Deputy

Segura’s testimony, the State presented a strong case that included video from

Nathan’s Discount showing defendant and Salvant hitting the victim before he was

23-KA-272 34 shot. Ms. Williams was able to identify both defendant and Salvant, and Mr. Jaber

identified Salvant. November 22,, 2017 surveillance video from 689 Bannerwood

showed defendant and Salvant leaving their home wearing the same clothing as

depicted in the surveillance video from Nathan’s Discount, and returning to their

home shortly after the murder. The text messages between Salvant and Ms.

Johnson revealed Salvant’s thinly veiled intent to respond to the shooting of his

brother on November 13, 2017. Previously finding the evidence sufficient under

the Jackson standard and that the State proved the case beyond a reasonable doubt,

we also find that any violation of defendant’s right to confrontation was harmless

error unattributable to the guilty verdict.

Amanda Williams (Harris) Testimony

In his last assignment of error, defendant asserts the trial court erred when it

permitted Ms. Williams (Amanda Harris) to give her lay opinion as to an ultimate

issue of fact when she identified suspects seen in surveillance footage as defendant

and Salvant, and further erred in that Ms. Williams was not a neutral witness. He

contends that Louisiana law does not permit opinion testimony tantamount to

finding the defendant guilty of the crime charged.8 Defendant also argues that Ms.

Williams failed to meet the requirements of La. C.E. art. 701 as she testified that

she could not recall the last time she saw defendant and failed to demonstrate

sufficient personal knowledge to justify her identification of him as the suspect.

He further argues that her testimony was not helpful in determining the suspect’s

identity, her identification was extremely prejudicial, and the identification was

tantamount to finding him guilty of the crime.

8 Defendant cites to State v. Wheeler, 416 So.2d 78 (La. 1982), and State v. Montana, 421 So.2d 895 (La. 1982).

23-KA-272 35 The State responds that Ms. Williams’ identification of defendant and

Salvant was rationally based on her perception, and given her knowledge of the

two men, her identification was helpful to the determination of a fact at issue. The

State argues that defendant’s contentions that Ms. Williams was not actually

familiar with defendant or that she was not certain of her identification are a “fair

avenue” for cross-examination and go to the weight of her testimony.

Upon the State calling Ms. Williams to testify, defense counsel, at a bench

conference, objected to her anticipated testimony wherein she was expected to

identify defendants as the two individuals seen in surveillance video, basing its

objection upon La. C.E. art. 701. The trial court ruled Ms. Williams’ identification

of defendants was admissible and the jury could decide the weight they would give

her testimony.

The testimony of a lay witness, who is not testifying as an expert, in the

form of opinions or inferences, is limited to those opinions or inferences that are

rationally based on the perception of the witness and are helpful to a clear

understanding of the testimony or the determination of a fact in issue. La. C.E. art.

701; State v. Keller, 09-403 (La. App. 5 Cir. 12/29/09), 30 So.3d 919, 930-31, writ

denied, 10-267 (La. 9/17/10), 45 So.3d 1041. Generally, a lay witness is permitted

to draw reasonable inferences from his or her personal observations. State v.

Casey, 99-23 (La. 1/26/00), 775 So.2d 1022, 1033, cert. denied, 531 U.S. 840, 121

S.Ct. 104, 148 L.Ed.2d 62 (2000). Further, testimony in the form of an opinion or

inference otherwise admissible need not be excluded solely because it embraces an

ultimate issue to be decided by the trier of fact. State v. Nelson, 14-252 (La. App.

5 Cir. 3/11/15), 169 So.3d 493, 507, writ denied, 15-685 (La. 2/26/16), 187 So.3d

468. (citing La. C.E. art. 704; State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d

1219, 1234, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005)).

23-KA-272 36 In addressing the efficacy of a lay witness’s opinion testimony, a reviewing

court must ask two questions in order to determine whether the trial court properly

allowed the lay opinion testimony: (1) was the testimony speculative opinion

evidence or simply a recitation of or inferences from fact based upon the witness’

observations; and (2) if erroneously admitted, was the testimony so prejudicial to

the defense as to constitute reversible error. Nelson, 169 So.3d at 506-07. The

trial court is vested with much discretion in determining which opinion testimony

shall be received into evidence as lay or expert testimony. Id. at 507 (citing State

v. Friday, 10-2309 (La. App. 1 Cir. 6/17/11), 73 So.3d 913, 922, writ denied, 11-

1456 (La. 4/20/12), 85 So.3d 1258).

In State v. Berniard, 14-341 (La. App. 4 Cir. 3/4/15), 163 So.3d 71, 89, writ

denied, 15-678 (La. 2/26/16), 187 So.3d 468, the defendant argued that the trial

court erred by admitting irrelevant and prejudicial testimony given by a detective

and another witness to offer opinions as to the ultimate issue of fact in the case, the

identity of the shooter. Id. The defendant in that case, as here, argued that

Louisiana law does not permit opinion testimony tantamount to finding the

defendant guilty of the crime charged, citing Wheeler, supra and Montana, supra.9

The trial court in Berniard emphasized that both the detective and other witnesses

testified to being familiar with the defendant, his physical appearance, his

mannerisms, and the manner in which he carried himself. The witness testified

that she had known the defendant since elementary school, that they grew up in the

9 Berniard, supra, summarized the cases as follows,

In Wheeler, the Louisiana Supreme Court held that the trial court had erred in permitting a narcotics officer to offer his opinion that the defendant had been involved in the distribution of marijuana, the crime with which he was charged. In Montana, the Court again found that the trial court erred in permitting a police officer, testifying as an expert in the field of illicit use and distribution of heroin, to offer his opinion that defendant had constructive possession of the heroin in his pocket with the intent to distribute the heroin. In both cases, the Court found that the officer’s testimony expressed an opinion on the ultimate determination of facts at issue- possession and intent- and, in both cases, the Court found the trial court error constituted reversible error.

Id.

23-KA-272 37 same neighborhood, and that she had socialized with him throughout the years.

The detective testified that he had previously seen several photographs and videos

of the defendant and had opportunities to observe him in person. The fourth circuit

found that both witnesses’ testimony that the defendant was the person seen in the

video shooting at the victim’s car, was rationally based on their perceptions and

familiarity with the defendant. The court stated that their testimony was also

helpful to the determination of a fact at issue – whether the defendant was the

shooter. Id. at 90-91.

In United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008), a case

interpreting the Federal Rules of Evidence, upon which La. C.E. art. 701 is based,

the court approved the trial court’s admission of a probation officer’s identification

testimony wherein the officer identified defendant as the perpetrator of a bank

robbery, as seen in surveillance video. While the defendant there argued that

jurors could have reviewed the surveillance footage and determined for themselves

whether he was the robber, the reviewing court found that the probation officer’s

familiarity with the defendant made her identification helpful to the jury as she had

a greater appreciation of the defendant’s normal appearance. Id. at 1171-72.

In the instant matter, Ms. Williams testified that both defendants were her

cousins, and she had known both defendants since they were babies because their

mother was her neighbor. While she testified that she knew Salvant better than she

knew defendant, she was able to identify them both from the surveillance video

because of their statures and because defendant walked “pigeon-toed.” She was

able to identify them both a second time upon viewing a second surveillance video.

We find no error in the trial court’s ruling permitting Ms. Williams’ lay

opinion testimony identifying defendant and Salvant as the suspects seen in

surveillance videos, as her testimony was based upon nuances drawn from her

observations of and familiarity with defendant and Salvant personally, having lived

23-KA-272 38 in the same neighborhood, and seeing them over the course of many years. Her

testimony, therefore, was helpful in the identification of defendant.

Errors Patent Review

We have 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). The review reveals no errors patent in this case.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence for

second degree murder in violation of La. R.S. 14:30.1.

AFFIRMED

23-KA-272 39 STATE OF LOUISIANA NO. 23-KA-272

SCHLEGEL, J., CONCURS WITH REASONS

While I concur with the majority’s decision to confirm defendant’s

conviction and sentence, I disagree with the majority’s finding that the trial court

violated defendant’s Sixth Amendment Confrontation Clause rights.

Prior to addressing the merits of this issue, I first express my disagreement

with the majority’s characterization of defendant’s argument on appeal regarding

La. R.S. 15:502.1 The majority opinion states that defendant contends the trial

court erred because the video testimony violated his Sixth Amendment right to

face-to-face confrontation “and the exception in La. R.S. 15:502 does not apply to

Deputy Segura.” But the defendant does not allege that La. R.S. 15:502 served as

a basis for the trial court’s alleged error in allowing the video conference

testimony. He simply recognizes that La. R.S. 15:502 is one example of several

legislative exceptions to the right to face-to-face confrontation, and that it does not

apply to a regular law enforcement officer offering factual testimony, such as

Deputy Segura in the present matter. The State does not contest this position on

appeal and it did not argue at trial that La. R.S. 15:502 served as grounds to allow

Deputy Segura to testify by video conference.

1 La. R.S. 15:502 is contained in Title 15 Criminal Procedure, Chapter 2 Evidence, in Part XI, entitled, “Evidence From Criminalistics Laboratories.” Section 15:502 allows testimony during any criminal proceeding by means of “simultaneous transmission through audio-visual equipment, if such technology is available in the courtroom,” for the following persons: “1) Employees of criminalistics laboratories; 2) Coroners; 3) Forensic pathologists; and 4) Any other person practicing in the field of knowledge and expertise in gathering, examination, and analysis of evidence by scientific means.”

23-KA-272 1 Accordingly, I do not agree with the majority’s decision to engage in an

extensive analysis regarding the scope and application of this provision. I also do

not agree with the majority that an extensive pre-trial evidentiary hearing was

necessary to ensure the protection of the defendant’s Sixth Amendment rights prior

to allowing the Zoom testimony considering the particular circumstances involved

in this matter; 1) an uncontested representation by the State that Deputy Segura had

been on military duty for almost two years in the United Arab Emirates (“UAE”)

and would not return for over another year; and 2) a courtroom containing

advanced technology readily capable of meeting Sixth Amendment Confrontation

Clause requirements.

Defendant argues on appeal that the State failed to prove that Deputy

Segura’s video testimony was necessary to further an important public policy. As

the majority explains, the seminal case regarding the right to face-to face

confrontation is Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d

666 (1990). In Craig, the United States Supreme Court recognized that while face-

to-face confrontation is preferred, the court had never held that “the Confrontation

Clause guarantees criminal defendants the absolute right to a face-to-face

confrontation with witnesses against them at trial.” 497 U.S. at 844, 110 S.Ct. at

3163. The Craig court further held that remote testimony is permissible if it is 1)

necessary to further an important public policy; and 2) the reliability of the

testimony is otherwise assured. 497 U.S. at 857, 110 S. Ct. at 3170. The requisite

finding of necessity to further an important public policy must be a case-specific

one. 497 U.S. at 855, 110 S.Ct. at 3169; State v. Hamed, 21-167 (La. App. 5 Cir.

8/18/21), 326 So.3d 375, 379.

Thus, the question before this Court on appeal is whether the State satisfied

its burden to demonstrate that the video conference testimony was necessary to

accommodate an important public policy. Though I am not aware of a Louisiana

23-KA-272 2 court that has addressed this exact issue regarding deployment, courts in other

states have determined that accommodating military service is an important public

policy warranting witness testimony by video conference. In Rivera v. State, 381

S.W.3d 710 (Tex. App. 2012), a crime scene investigator in a murder trial was on

active military duty in Iraq. The Texas appellate court concluded that “under the

circumstances, the preference for having witnesses testify in the courtroom must

give way to the practical considerations involving Taylor’s military obligation that

made his physical presence impractical. The procedure the trial court followed,

allowing Taylor to participate in the trial by live videoconference while in full

view of those participating in the courtroom, did not violate Rivera's rights under

the Confrontation Clause of the Sixth Amendment.” Id. at 713.

More recently in Bragg v. State, 2023 WL 2623206 (Ala. Crim. App. 2023),

cert. denied, 2023 WL 5313960 (Ala. 2023), an Alabama appellate court

determined that a defendant’s Sixth Amendment Confrontation Clause rights were

not violated by allowing two witnesses, who were active-duty fighter pilots in the

French navy, to testify via two-way video. The appellate court recognized that the

important public policy of accommodating a witness’s active-duty military

satisfied the requirements established by Craig. I agree.

The majority in the present matter does not address this issue, even though it

was specifically raised by defendant on appeal ‒ that is whether overseas military

duty qualifies as an important public policy. Instead, the majority on its own

determined that defendant’s Sixth Amendment confrontation rights were violated

because the State did not present evidence at a pre-trial evidentiary hearing

regarding Deputy Segura’s military service and the trial court’s ability to ensure

reliable video testimony. Defendant did not raise objections as to any of these

issues though during the trial and does not now dispute the veracity of the

prosecutor’s representation regarding Deputy Segura’s military service in the

23-KA-272 3 UAE. In fact, Deputy Segura confirmed during her trial testimony that she was on

deployment with the Navy and was currently in the UAE in the Dubai area.

In People v. Giurdanella, 144 A.D.3d 479, 41 N.Y.S.3d 409 (1st Dept.

2016), the appellate court recognized that the trial court did not err by allowing

video conference trial testimony without first holding a pre-trial evidentiary

hearing. In that case, the witness was overseas in his native country of Egypt and

unable to return to New York to testify at trial because the Egyptian government

determined the witness could not leave the country until he completed his required

military service. The State proposed and the trial court allowed the defendant to

testify by remote video testimony using Skype. On appeal, defendant argued that

an evidentiary hearing featuring sworn testimony was an absolute prerequisite to

establish that the video testimony was necessary to further an important public

policy. The appellate concluded that “[a]t the outset, we reject defendant’s

argument that a full-blown evidentiary hearing, featuring sworn testimony, is an

absolute prerequisite to making the required showing. Here, moreover, the facts as

to the complainant’s inability to appear were uncontested.” Id. at 481. The

appellate court concluded that the prosecutor’s uncontested representations to the

court regarding the witness’s inability to appear due to his unfulfilled military

service commitment was sufficient to demonstrate the video conference testimony

was necessary to further the public policy of justly resolving the criminal case. Id.

at 482.

Just as in Giurdanella, defendant did not raise any objections regarding the

veracity of the State’s representations or the logistics of the video testimony during

trial.2 The transcript does not include any objections with respect to the ability of

2 In order to preserve the right to seek appellate review of an alleged trial court error, the party claiming the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La. C.Cr.P. art. 841; State v. Lane, 20-137 (La. App. 5 Cir. 12/23/20), 309 So.3d 886, 907, writ denied, 21-100 (La. 4/27/21), 314 So.3d 836. A defendant is limited on appeal to matters to which an

23-KA-272 4 defendant, defense counsel or the jury to see the witness and observe her demeanor

during her direct and cross-examination testimony. In fact, the transcript indicates

that Deputy Segura testified under oath and was even able to review a video played

in the courtroom while testifying. Additionally, the transcript does not indicate

that any lagging or buffering occurred during the video testimony.

I recognize that in Hamed, supra, this Court suggested that a pre-trial

evidentiary hearing is required to satisfy the Craig standard. However, in making

that determination, the Hamed court relied on the Craig court’s statement that the

“trial court must hear evidence and determine whether use of the one-way closed

circuit television procedure is necessary to protect the welfare of the particular

child witness who seeks to testify.” Id. at 379. The present matter does not

involve the question of whether the welfare of a particular child requires

protection as in Craig.3 Further, we are not dealing with a “one-way closed circuit

television.” Craig was decided in 1990. It is 2024. And it should be well-settled

in this post-COVID age that testimony by means of ZOOM is reliable, especially

in the 24th Judicial District Court, which is well equipped with advanced

technologies in each of its courtrooms.

In conclusion, the issue before this Court is simply whether Deputy Segura’s

overseas military duty is an important public policy that necessitates the use of

video conference testimony. While I agree that the State should have provided

objection was made, but also to the grounds for his objection articulated at trial. Id. The requirement of a contemporaneous objection is to put the court on notice of an alleged irregularity so that opposing counsel may respond to the issue, and the trial judge may cure a legitimate problem and prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. State v. Douglas, 23-331 (La. App. 5 Cir. 2/28/24), 383 So.3d 266, 277. 3 I recognize that pursuant to La. R.S. 15:283(A), in order for a child or other protected person to testify outside of the courtroom, the trial court must base its decision on expert testimony establishing that: 1) the protected person would be likely to suffer serious emotional distress if forced to give testimony in open court; and 2) without such simultaneous televised testimony, the protected person cannot reasonably communicate his testimony to the court or jury. I agree that these situations require a pre-trial evidentiary hearing.

23-KA-272 5 defendant notice prior to trial of the need for Deputy Segura by video conference, I

do not agree with the majority’s finding that the failure to hold a pre-trial

evidentiary hearing violated defendant’s Sixth Amendment Confrontation Clause

rights under the particular circumstances of this matter.

23-KA-272 6 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

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 JUNE 17, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-272 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE) DARREN A. ALLEMAND (APPELLEE) THOMAS J. BUTLER (APPELLEE) JANE C. HOGAN (APPELLANT)

MAILED HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY KRISTEN LANDRIEU (APPELLEE) SHANNON K. SWAIM (APPELLEE) TAYLOR SOMERVILLE (APPELLEE) ASSISTANT DISTRICT ATTORNEYS TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053