State Of Louisiana v. Robert Javontie Marks ( 2023 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 KA 0575
STATE OF LOUISIANA
VERSUS
ROBERT JAVONTIE MARKS
Judgment Rendered: MAY 17 2023
On Appeal from the 18th Judicial District Court
In and for the Parish of Iberville
State of Louisiana
Trial Court No. 1054- 20 and 1054- 20A
Honorable Alvin Batiste, Judge Presiding
Antonio M. Clayton Attorney for Appellee,
District Attorney State of Louisiana
Ali Meronek
Terri Russo Lacy
Assistant District Attorneys
Port Allen, Louisiana
William P. Gibbens Attorneys for Defendant/ Appellant,
Gwyneth O' Neill Robert Javontie Marks
New Orleans, Louisiana
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
PENZATO, I
The defendant, Robert Javontie Marks, was charged by grand jury indictment
with second degree murder, a violation of La. R. S. 14: 30. 1 ( count 1); second degree
kidnapping, a violation of La. R.S. 14: 44. 1 ( count 2); first degree feticide, a violation
of La. R.S. 14: 32. 6 ( count 3); illegal carrying of a weapon while committing a crime
of violence, a violation of La. R.S. 14: 95( E) ( counts 4- 7); obstruction ofjustice by
tampering with evidence, a violation of La. R.S. 14: 130. 1( A)( 1)( a) ( count S);
aggravated kidnapping of a child, a violation of La. R.S. 14: 44. 2 ( count 9); and
carjacking, a violation of La. R.S. 14: 64.2 (count 10).' The defendant pled not guilty
to all charges and, following a jury trial, was found guilty as charged on all counts.
The defendant filed a motion for new trial, which was denied.
For the second degree murder conviction, the defendant was sentenced to life
imprisonment at hard labor without benefit of parole, probation, or suspension of
sentence; for the second degree kidnapping conviction, he was sentenced to forty
years imprisonment at hard labor with the first two years of the sentence to be served
without benefit of parole, probation, or suspension of sentence; for the first degree
feticide conviction, he was sentenced to fifteen years imprisonment at hard labor;
for each of the illegal carrying of a weapon while committing a crime of violence
convictions, the defendant was sentenced to ten years imprisonment at hard labor
without benefit of parole, probation, or suspension of sentence; for the obstruction
of justice by tampering with evidence conviction, the defendant was sentenced to
forty years imprisonment at hard labor; for the aggravated kidnapping of a child
conviction, the defendant was sentenced to life imprisonment at hard labor without
benefit of parole, probation, or suspension of sentence; for the carjacking conviction,
the defendant was sentenced to twenty years imprisonment at hard labor without
The carjacking charge was subsequently added by a bill of information.
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benefit of parole, probation, or suspension of sentence. All of the sentences were
ordered to run concurrently.
The defendant now appeals, designating eleven assignments of error. We
affirm the convictions. Finding error in connection with the sentence imposed for
count 9, aggravated kidnapping of a child, we vacate that sentence and remand for
resentencing on count 9. We affirm all other sentences.
FACTS
Lyntell Washington was a teacher at Brookstown Middle Magnet Academy in
Baton Rouge, Louisiana. She had a daughter, D. W.,2 who was three years old in
June, 2016. At that time, Ms. Washington was seven months pregnant. The
defendant, who was married, was the father of her unborn baby. He was an assistant
principal at Brookstown Middle Magnet Academy.
On the morning of June 9, 2016, Leslie Parms, I1I, was leaving the parking lot
of his office on Newcastle Avenue ( off South Sherwood Forest Boulevard) in Baton
Rouge, Louisiana, and saw 3 -year-old D.W. standing near the parking lot entrance
holding a pillow. The location of the parking lot was across the street from an
apartment complex. Mr. Parms testified that he did not see any adults nearby, and
asked D.W. where her mother was. When D.W. did not respond, Mr. Parms called
911. Mr. Parms continued talking to D. W. while he was on the phone with the 911
operator, who indicated she would stay on the phone with Mr. Parms until the police
arrived. Mr. Parms noted that D.W. had dried blood on her foot. He asked D.W.
where her mother' s car was, and D.W. led him to a blue Toyota Corolla. When Mr.
Parms looked inside the car, he saw blood on the front seat of the car and a " sizable
amount of blood" all over the back seat. D. W. told Mr. Parms that " Mr. Robbie did
z In accordance with La. R.S. 46: 1844( W), the victim, who is a minor, will be referred to by her
initials to protect her identity.
3
that blood." When Mr. Parms again asked D.W. where her mother was, D.W. said,
My mommy was going to sleep with Mr. Robbie." A tape of the 911 call was
admitted into evidence in connection with Mr. Parms' s testimony.
The police officers who arrived at the scene requested the presence of the
special victims unit, which investigates sex crimes, child abuse cases, and missing
persons. Detective Jonathan Medine of the special victims unit of the Baton Rouge
Police Department responded to the call, testifying that the unit generally gets called
for cases involving juveniles found in a parking lot without a supervised adult,
Detective Stephen Woodring of the homicide division of the Baton Rouge Police
Department was also called to the scene because of the blood observed in the vehicle.
It was decided that Detective Woodring would be the primary investigator.
The police determined that the blue Toyota Corolla was registered to Ms.
Washington, and called Brookstown Middle Magnet Academy. As a result of the
telephone call, Jamicia Payne, an assistant principal at Brookstown Middle Magnet,
and a friend of Ms. Washington, went to Ms. Washington' s apartment. When she
arrived, she saw police cars and Ms. Washington' s vehicle in a parking lot on the
side of the apartment complex where Ms. Washington lived. Ms. Payne advised the
police that she knew Ms. Washington and D.W. The police handed D.W. to Ms.
Payne. Ms. Payne testified that D.W. told her that " Mr. Robbie" had hurt her
mommy." According to Ms. Payne, D. W. referred to the defendant as " Mr.
Robbie."
Ms. Payne testified that she told the police that " Mr. Robbie" was the
defendant. Ms. Payne further testified that she also told the police that a couple of
days earlier, Ms. Washington had forwarded to Ms. Payne text messages between
Ms. Washington and the defendant about the fact that the defendant was trying to
escape the responsibility of the baby. According to Ms. Payne, Ms. Washington told
her that Ms. Washington and the defendant were supposed to be having a " get -
0
together to talk about the situation."
Detective Medine testified that he spoke to Ms. Payne at the scene, and she
told him that the defendant and Ms. Washington were in a relationship and that Ms.
Washington was pregnant with the defendant' s baby. Detective Medine said that
Ms. Payne also told him that Ms. Washington had made threatening statements about
telling the defendant' s wife that she and the defendant were in a relationship and she
was pregnant, and that both Ms. Washington and the defendant worked at the same
school and neither one of them showed up at school that morning. Detective Medine
testified that he briefly spoke to D.W. and that she told him that " Mr. Robbie" was
the one who hurt her mother. Detective Medine relayed this information to Detective
Woodring.
Later that same day, Ms. Payne brought D.W. to the Children' s Advocacy
Center ( CAC) where she was interviewed. The CAC interview was played for the
jury. D.W. indicated that " Mr. Robbie" had put the blood in Ms. Washington' s car.
She also indicated she saw her mother get hurt. When asked who hurt her, D.W.
replied, " Mr. Robbie." Toward the end of the interview, D.W. was asked if she saw
Mr. Robbie" hurt her mom. D.W. replied, " Yes ma' am."
Detective Woodring testified that upon arriving at the scene on the morning
of June 9, 2016, he feared Ms. Washington was either deceased or hurt extremely
bad, and the urgency at that point was to locate her. Detective Woodring retrieved a
cell phone from Ms. Washington' s apartment and found a number for " Robert,"
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which he determined was the defendant' s phone number. According to Detective
Woodring, the name Robert was important to him because D.W. had said that " Mr.
Robbie" hurt her mommy.
Detective Woodring obtained a search warrant for the contents of the
3 This was an additional and/ or old cell phone, as the cell phone Ms. Washington had on the
evening in question was never located.
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defendant' s phone. A documentation of the web history searches from the
defendant' s cell phone revealed a May 20, 2016 Google search for "pregnant shot,"
as well as an online search for a rifle. The web history also showed a May 28, 2016,
Google search for " injection of Clorox" and " What would happen if you inject
bleach into your blood stream?" On May 29, 2016, a Google search was conducted
for " failure to appear for paternity test," and "
I missed my court date for paternity
test for child support? Can they order me to pay? Child does not have my last
name." The police also recovered the defendant' s iPad. A forensic examination of
his iPad' s web history revealed a May 24, 2016 search for a large caliber handgun,
and a May 28, 2016 search for whether a father had to pay child support without his
name on the birth certificate.
At approximately 4: 00 p. m. on June 9, 2016, the defendant was brought in for
questioning. He admitted to his relationship with Ms. Washington, and told
Detective Woodring that he had last seen Ms. Washington the previous night (June
8, 2016) at the Wal-Mart in Baker, Louisiana, where he talked to her, then left. The
defendant said he then went to Twin Peaks Restaurant. The police reviewed hours
of video footage from Twin Peaks for the night of June 8, 2016, which revealed that
he never went there.
At trial, Timothy Piper was qualified as an expert in historical call data records
analysis. He testified that cell phone data, which included phone records of Ms.
Washington and the defendant, and historical call data collected from pinging cell
phone towers in the area, revealed that on June 8, 2016, at 8: 19 p.m., Ms. Washington
called the defendant' s cell phone from an area near the Baker Wal- Mart. The
defendant was in the vicinity and received the call. The data suggested that they
rode together in Ms. Washington' s car to the Scotlandville area in Baton Rouge.
From there, they traveled west across the Mississippi River on the Old Mississippi
River Bridge and into Iberville Parish to the Ramah area. Both phones then travelled
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back towards Baton Rouge. Ms. Washington' s cell phone registered for the last time
in the area of the LSU lakes. The cell phone data further showed that the defendant
placed a call from his cell phone at 11: 35 p.m. in the Newcastle, Sherwood Forest
area.
Tramica Jackson testified at the trial. According to Ms. Jackson, in June of
2016, she and the defendant were in an intimate relationship. Ms. Jackson testified
that on the morning of June S, 2016, she and the defendant made plans for Ms.
Jackson to pick up the defendant later that night "from hanging out with his friends."
According to Ms. Jackson, she received a call from the defendant around 11: 30 p.m.
and picked him up on Newcastle Avenue near the intersection of Sherwood Forest
Boulevard. According to Ms. Jackson, the defendant " had his motorcycle gear on,"
which she testified was a dark leather jacket, jeans, boots, gloves, and a helmet. Ms.
Jackson dropped off the defendant at his motorcycle, which was located across the
street from the Baker Wal- Mart.
Video footage from a Hancock Whitney bank located off of Newcastle and
Sherwood was introduced into evidence and showed Ms. Jackson picking up the
defendant, who was walking on Newcastle, at 11: 37 p. m. on June S, 2016.
The defendant was arrested on June 10, 2016. While he was in jail, he called
his sister and asked her to erase his iPad and Apple watch.
On June 14, 2016, the deceased body of a pregnant female was found in a
drainage ditch at the edge of a sugarcane field off of Rosedale Road in Grosse Tete,
Louisiana, in the area where the cell phone data indicated that the defendant' s and
Ms. Washington' s phones had travelled on the night of June 8, 2016. The body was
identified as that of Ms. Washington. The coroner, Dr. William " Beau" Clark
determined that the cause of death was a gunshot wound to the head. Dr. Clark
testified that the baby died because it was still in utero when Ms. Washington was
killed. The State and the defendant stipulated that if Zac Shawhan, an expert in DNA
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analysis, was called to testify, he would be qualified as an expert in the filed of DNA
analysis and would testify as to the identification of Ms. Washington and confirm
that the defendant was the father of the unborn child. The parties also stipulated that
if Mindy Stewart was called to testify, she would testify that she is an expert in blood
splatter, that she reviewed the inside of Ms. Washington' s vehicle, and that in her
expert opinion the gun was not fired inside the vehicle.
The defendant did not testify at trial.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues the trial court erred in
denying his motion for a continuance, which resulted in the denial of effective
assistance of counsel.
A true bill was returned on December S, 2020, and on this date, the defendant
was represented by defense counsel Lionel Burns. At a status hearing on May 24,
2 02 1, the State sought to set the matter for trial on June 17, 2021, or August 9, 2 02 1,
at the latest. Mr. Burns moved to continue the trial from June 21, 2021, arguing that
he needed additional time to prepare, and the trial court set the matter for trial on
December 13, 2021.
On the first day of trial, December 13, 2021, Mr. Burns moved for a
continuance. Mr. Burns argued that his home was damaged by Hurricane Ida, and
because he used his home as a home office, his ability to prepare for the case and to
be as effective as he would like in the presentation of his defense of the defendant
was affected. In denying the motion, the trial court stated in pertinent part:
The court will take judicial notice of when Hurricane Ida occurred ...
which would have been late August. So we' re here today -- and today
is December the 13th and prior to today, no mention has ever been
made by counsel, either to this court or to opposing counsel, about your
difficulties from Ida. We' re only learning this on the day of trial which
this court finds to be untimely.
And I think as is mentioned, this case has been going on for quite
some time. This court gave counsel a continuance when he initially
asked for it to try this case, and counsel said he' d be ready in December
to try this case. To come in today at this last moment wanting to
continue this trial, the court finds disingenuous at best. And we have
the jury here, we also have the witnesses here, so we' re going forward
with the trial.
Louisiana Code of Criminal Procedure article 707 provides:
A motion for a continuance shall be in writing and shall allege
specifically the grounds upon which it is based and, when made by a
defendant, must be verified by his affidavit or that of his counsel. It
shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the
court may grant a continuance, but only upon a showing that such
motion is in the interest of justice.
The trial court has much discretion in deciding to grant or deny a motion for
a continuance, and a reviewing court will not disturb such a determination absent a
clear abuse of that discretion and a specific showing of prejudice caused by the
denial. State v Strickland, 94- 0025 ( La. 11/ 1196), 683 So.2d 218, 229; see La. Code
Crim. P. art. 712.
Notwithstanding Mr. Burns' failure to file his motion to continue seven days
prior to trial, his request for a continuance was based upon a lack of preparedness.
The denial of a motion for continuance, wherein such motion is based on the grounds
of counsel' s lack of preparedness, does not warrant reversal unless counsel
demonstrates specific prejudice resulting from the denial or unless the preparation
time is so minimal as to call into question the basic fairness of the proceeding. See
State a Stevenson, 2016- 0277 ( La. App. 1st Cir. 9116116), 2016 WL 4942436, * 7- 8
unpublished), writ denied, 2016- 1806 ( La. 9/ 6117), 224 So. 3d 982.
The defendant has not demonstrated any specific prejudice resulting from the
denial ofthe motion to continue. The record reflects that Mr. Burns had been counsel
for over a year on this case prior to trial. Moreover, the trial court granted Mr. Burns'
first motion to continue and gave him an additional seven months to prepare for trial.
Mr. Burns did not raise an issue as to his inability to prepare for this case because of
z
the damage to his home in Hurricane Ida between late August 2021, and the date of
the trial, December 13, 2021. Accordingly, we find the trial court did not err or abuse
its discretion in denying this motion.
With regard to the defendant' s contention that W. Burns' lack of preparedness
resulted in the denial of effective assistance of counsel, we note that issues related
to counsel' s preparation cannot be reviewed on appeal, but are more properly raised
by an application for post -conviction relief in the trial court, where a full evidentiary
hearing may be conducted. See Stevenson., 2016 WL 4942436, * 8.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the trial court erred in
allowing the State to make inflammatory and prejudicial statements, improper legal
arguments, and ad -hominem attacks against him and defense counsel in its opening
statement and closing argument. He contends reversal of his conviction is warranted
because such attacks on him pervaded the trial, thereby prejudicing his due process
rights.
The defendant specifically notes that the State opened its case by referring to
the defendant as " vile" and referring to him as " doctor of deception, doctor of a
coverup," and " doctor of death." The defendant claims that the State attacked
defense counsel as an outsider and attempted to inflame the passions of the jury by
stating that " a gumbo of justice from [ Iberville Parish] should be served ice cold,
just like the ice- cold water that runs through [ the defendant' s] veins." The defendant
further complains that in its opening statement, the State shifted the burden of proof
to the defendant by arguing that it was " on [ the defendant]" to show what happened
to the victim' s missing cell phone. The defendant contends the State improperly
commented on the national attention paid to the case, telling the jury that the
defendant' s wife was on Nancy Grace and was " a good lady married to a bad man."
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The defendant also complains the State made improper comments in its
closing argument. The defendant specifically points to the State' s comments that
justice needed to be served " Iberville style;" and that the defendant was " a diabolical,
manipulative master of deception who became a doctor of death." Finally, the
defendant contends the State made a plea to the sympathies and passions of the jury,
asking them to consider that D.W. had lived through several Christmases,
Thanksgivings, and Easters without her mother and her baby sister. This was the
only comment objected to by the defendant; his objection to the State' s appeal to
sympathy was overruled.
At the outset, we note that the jurisprudence shows that prosecutors are
afforded broad latitude in choosing opening statement and closing argument and trial
tactics. State v Howard, 2018- 0317 ( La. App. 1st Cir. 9121118), 258 So. 3d 66, 84,
writ denied, 2018- 1650 ( La. 516119), 269 So. 3d 692. The trial judge has broad
discretion in controlling the scope of opening and closing arguments, and this court
will not reverse a conviction on the basis of improper closing argument unless
thoroughly convinced that the remarks influenced the jury and contributed to the
verdict. Id. at 84- 85.
Moreover, although we do not find any of the statements made by the State in
its opening and closing arguments to be so inflammatory as to have contributed to
the jury' s verdict, we need not reach this issue for any statements other than the
defendant' s claim with regard to the State' s appeal to sympathy. Under La. Code
Crim. P. art. 841( A), an " irregularity or error cannot be availed of after verdict unless
it was objected to at the time of occurrence." See State v Johnson, 2000- 0680 ( La.
App. 1 st Cir. 12122100), 775 So. 2d 670, 680, writ denied, 2002- 1368 ( La. 5/ 30/ 03),
845 So. 2d 1066. The contemporaneous objection rule provides the trial court notice
and the opportunity to cure an alleged irregularity or error, and prevents a party from
gambling for a favorable outcome then appealing when the error could have been
11
addressed by an objection. State a Lanclos, 2007- 0082 ( La. 41$ 108), 980 So. 2d 643,
648. The failure to make a contemporaneous objection prior to verdict waives the
alleged error or irregularity and precludes the defendant from raising it on appeal.4
We find the defendant' s argument that the State' s appeal to the sympathy of
the jury by asking them to consider that D.W. had lived through several holidays
without her mother and her baby sister prejudiced his due process rights to be
unpersuasive in light of the broad latitude afforded closing arguments. Moreover,
given the evidence submitted in this case, we do not find that this remark influenced
the jury and contributed to the verdicts. See State a Taylor, 93- 2201 ( La. 212$ 196),
669 So.2d 364, 375- 76, cert. denied, 519 U. S. 860, 117 S. Ct. 162, 136 L.Ed.2d 1061996).
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
In his third assignment of error, the defendant argues the trial court erred in
allowing the State to introduce improper hearsay evidence that went directly to the
issue of guilt. The defendant contends the improper admission was fatally
prejudicial to him, thereby warranting a new trial.
The defendant first argues that certain testimony from Detective Medine
regarding his investigation at the scene of the parking lot where D.W. was wandering
around constituted inadmissible hearsay. The defendant complains of the following
testimony:
Jamicia Payne] told [ Detective Medine] that [ the defendant] and Ms.
Washington were in a relationship and that Ms. Washington was
a If an alleged error is so significant that it violates a fundamental right, then, to preserve the
requirements of due process, the error is reviewable on appeal even absent a contemporaneous
objection. See La. Code Crim. Pro. art. 920( 2); State v. Arvie, 505 So. 2d 44, 47 ( La. 1987), State
v. Thompkins, 2015- 1032 ( La. App. 1st Cir. 2127119), 273 So. 3d 346, 350 n.4, writ denied, 2019-
00666 ( La. 9117/ 19), 278 So. 3d 973. To meet the exception to the contemporaneous objection
requirement, the error must cast substantial doubt on the reliability of the fact- finding process.
Thompkins, 273 So. 3d at 350 n.4. That standard is not met here.
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pregnant with [ the defendant' s] baby. She said that Ms. Washington
had made threatening statements about telling his wife that she was
pregnant and that they were in a relationship, and that they both worked
at the same school and that neither one of them showed up to school
that morning.
The defendant further complains of Detective Medine' s testimony that D.W. told
him that " Mr. Robbie [ was] the one who hurt her mom, and ... her mom was in ... a
lake," and " her mommy had a baby in her tummy." The defendant also complains
of Detective Medine' s testimony that on the evening of June 9, 2016, while he was
waiting with D.W. and her guardian for the forensic interviewer to arrive at the CAC,
D.W. " pointed at one of the road construction signs, and she said that her mommy
was near one of those signs," and that " she heard a loud bang and she remembers
seeing her mommy shaking."
According to the defendant, the State introduced the same hearsay testimony
through Detective Woodring.
Louisiana Code of Evidence article 801 defines hearsay as a statement, other
than one made by the declarant while testifying at the present trial or hearing, offered
in evidence to prove the truth of the matter asserted therein. The improper
introduction of hearsay evidence will be considered harmless error if it is determined
the hearsay evidence was cumulative and corroborative of other properly admitted
evidence and did not contribute to the verdict. State a Dantin, 2019- 0407 ( La. App.
1 st Cir. 12117119), 291 So. 3d 1096, 1102.
The defendant failed to lodge a contemporaneous objection during trial to the
above testimony and is therefore precluded from raising the issue on appeal.
Howard, 258 So. 3d at 79- 80.
Moreover, the above complained -of testimony consisted of information
relayed to Detectives Medine and Woodring during their investigations. Such
testimonial evidence by a police officer is admissible to explain the sequence of
events leading to the defendant' s arrest when there is no indication the evidence is
13
presented to prejudice the defendant. Dantin, 291 So. 3d at 1103, citing State u
Mitchell, 2016- 0834 ( La. App. 1st Cir. 9121117), 231 So. 3d 710, 726, writ denied,
2017- 1890 ( La. 8/ 31/ t8), 251 So. 3d 410. Here, the testimony was offered to explain
how the course of the investigation led officers to the defendant, and there is no
indication that it was presented to prejudice him. Therefore, the testimony was
arguably not hearsay. See Dantin, 291 So. 3d at 1103.
The defendant next complains that the State introduced hearsay through Ms.
Payne, including hearsay testimony of D. W. and unauthenticated text messages
between Ms. Washington and the defendant. The defendant argues Ms. Payne' s
testimony regarding the text messages was offered to confirm the parties'
relationship and the defendant' s knowledge of the pregnancy, and should have been
excluded as hearsay.
The defendant did not object at trial to any of this testimony on hearsay
grounds. The defendant objected to Ms. Payne' s testimony regarding the text
messages on the basis that the texts had not been properly authenticated. The trial
court overruled the objection, finding that Ms. Payne was able to identify the text
messages that Ms. Washington had sent her.
It is well- settled that defense counsel must state the basis for his objection
when making it and point out the specific error of the trial court. State v Duhon,
2018- 0593 ( La. App. 1 st Cir. 12/ 28/ 18), 270 So. 3d 597, 631, writ denied, 2019- 0124
La. 5128119), 273 So. 3d 315. A defendant is limited on appeal to grounds for an
objection articulated at trial. Anew basis for objection cannot be raised for the first
time on appeal. Id. Herein, the defendant objected to Ms. Payne' s testimony solely
on the basis of improper authentication. He is raising an issue as to hearsay for the
first time on appeal. Thus, the defendant is procedurally barred from objecting to
Ms. Payne' s testimony as hearsay.
Finally, the defendant avers that the State impermissibly introduced numerous
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affidavits in support of search warrants with the accompanying warrants, the
coroner' s report, and the 911 call from Mr. Parms. According to the defendant, these
documents directly allege his guilt of the charged offenses and thus their admission
was exceedingly prejudicial and improper.
The defendant did not object at trial to the admission into evidence of any of
these documents. With regard to the search warrants and accompanying affidavits,
defense counsel offered a stipulation " that all search warrants were properly done
and that the State can introduce them, either in globo or individually number them
and introduce them." When the coroner' s report and the 911 tape were offered into
evidence, defense counsel stated it had no objection.
Since the defendant failed to lodge a contemporaneous objection to the
admissibility of this evidence, he is precluded from raising this issue on appeal.
Howard, 258 So. 3d at 81.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 4
In his fourth assignment of error, the defendant argues the trial court erred in
admitting the CAC interview, and the prejudice resulting from its admission was
sufficiently severe to warrant reversal of his conviction.
A statement made by a minor victim to certain qualified persons may be
recorded and introduced into evidence pursuant to La. R. S. 15: 440. 1 through
15: 440. 5. State a Barton, 2020- 274 ( La. App. 3rd Cir. 515121), 319 So. 3d 907, 916,
writs denied, 2021- 00788, 2021- 00783 ( La. 10/ 12/ 21), 325 So. 3d 1071, 1072.
Louisiana Revised Statutes 15: 440. 4( A) provides:
A. A videotape of a protected person may be offered in evidence either
for or against a defendant. To render such a videotape competent
evidence, it must be satisfactorily proved:
1) That such electronic recording was voluntarily made by the
protected person.
15
2) That no relative of the protected person was present in the room
where the recording was made.
3) That such recording was not made of answers to interrogatories
calculated to lead the protected person to make any particular statement.
4) That the recording is accurate, has not been altered, and reflects
what the protected person said.
5) That the taking of the protected person' s statement was supervised
by a physician, a social worker, a law enforcement officer, a licensed
psychologist, a medical psychologist, a licensed professional counselor,
or an authorized representative of the Department of Children and
Family Services.
Louisiana Revised Statutes 15: 440. 5 provides in pertinent part:
A. The videotape of an oral statement of the protected person made
before the proceeding begins may be admissible into evidence if:
1) No attorney for either party was present when the statement was
made;
2) The recording is both visual and oral and is recorded on film or
videotape or by other electronic means;
3) The recording is accurate, has not been altered, and reflects what the
witness or victim said;
4) The statement was not made in response to questioning calculated
to lead the protected person to make a particular statement;
5) Every voice on the recording is identified;
6) The person conducting or supervising the interview of the protected
person in the recording is present at the proceeding and available to
testify or be cross- examined by either party;
7)The defendant or the attorney for the defendant is afforded an
opportunity to view the recording before it is offered into evidence; and
8) The protected person is available to testify.
The defendant argues that because the State failed to lay the proper foundation
and otherwise establish that the video -recorded interview of D.W. at the CAC
complied with the statutory requirements, the video was not properly admitted. The
defendant does not dispute that the following requirements of La. R.S. 15: 440. 4 and
15: 440. 5 were complied with: no attorney or relative was present when D.W. was
16
interviewed; the CAC tape had not been altered; the interview was taken under the
supervision of Detective Medine; D.W. and April Caldwell, the forensic interviewer,
were identified; and Detective Medine was present during the interview, and both he
and D. W. testified at trial.
The defendant avers that the interview was not voluntarily made. According
to the defendant, Ms. Caldwell did not tell D.W. that she was being recorded, nor did
she make any attempt to obtain D.W.' s consent. We disagree with the defendant' s
assertion. The CAC tape shows that D.W. voluntarily engaged in conversation with
Ms. Caldwell. In addition, on several occasions during the interview, Ms. Caldwell
asked D.W. if D.W. was okay talking with Ms. Caldwell and answering her
questions.
The defendant further contends the CAC interview should not have been
admissible because Ms. Caldwell asked D.W. numerous leading questions. Both La.
R.S. 15: 440. 4( A)(3) and La. R.S. 15: 440. 5( A)(4) prohibit questions calculated to
lead the protected person to make any particular statement. The rule forbidding
leading questions, however, may yield somewhat to the trial court' s discretion in the
examination of young victims. State a Roberts, 42,417 ( La. App. 2nd Cir. 9119107),
966 So. 2d 111, 120. Furthermore, notwithstanding the general rule against leading
questions, the matter is largely within the discretion of the trial court and, in the
absence of palpable abuse of that discretion resulting in prejudice to the accused, a
finding of reversible error is not warranted. State a Feazell, 486 So. 2d 327, 330 (La.
App. 3rd Cir.), writ denied, 491 So. 2d 20 ( La. 1986).
Moreover, some leading questions may be allowed when necessary to elicit
particular details for purposes of clarifying the protected person' s statement.
Roberts, 966 So. 2d at 121. This was particularly true in the instant matter. Detective
Medine testified that the police were trying to locate Ms. Washington, who they
believed was in danger or gravely injured. Thus, Ms. Caldwell at times asked D.W.
17
leading or pointed questions to get D.W. to focus and respond accordingly. As such,
despite leading questions, considering D.W.' s age and the context of the interview,
and because the questions were appropriate under the circumstances, we find the
trial court did not abuse its discretion in admitting the CAC interview. See State v
Guerra, 36, 347 ( La. App. 2nd Cir. 12118102), 834 So. 2d 1206, 1217, writ denied,
2003- 0072 ( La. 4125103), 842 So. 2d 398.
The defendant also avers the competency of D.W. was not properly
established for the CAC interview. The defendant cites State v Dykes, 440 So.2d
88, 92 ( La. 1983), which found that children of three years or less are not generally
competent witnesses. The defendant' s reliance on Dykes is misplaced. Dykes
addressed the competency issue of a young child testifying at trial. There is no
competency requirement contained in La. R.S. 15: 440. 4 or La. R.S. 15: 440. 5. Any
issues with D.W. being preoccupied or non- responsive during the CAC interview
would have been a factual issue for the jury to consider in determining how credible
D.W. was.
Finally, the defendant suggests the CAC video should have been excluded
because the State failed to connect D.W.' s statements to the defendant. The
defendant contends that D.W. was not shown any photographs or asked to identify
the " Mr. Robbie" she spoke about in the CAC video. This claim is baseless. As
noted, the police were in the middle of an ongoing investigation attempting to
ascertain the whereabouts of Ms. Washington. To that end, Ms. Caldwell attempted
to ascertain as much information as she could from D. W. Whether D.W. confirmed
the identity of the defendant had no bearing on the admissibility of the CAC
videotape as required under La. R.S. 15: 440. 4 or La. R.S. 15: 440. 5. It was the
province of the jury as fact finder to accept or reject all or part of the CAC interview.
Moreover, in the CAC interview, D.W. identified the person who hurt her mother as
Mr. Robbie." Ms. Payne, who worked with both Ms. Washington and the defendant
at Brookstown Middle Magnet School, testified that D.W. referred to the defendant
as " Mr. Robbie."
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 5
In his fifth assignment of error, the defendant argues the trial court erred in
commenting on the testimony of a witness and in allowing the State to bolster the
testimony of witnesses.
The defendant contends the State' s bolstering began in its opening statement,
when the State denied that D.W. was coached and boasted that the jury would see
good law enforcement work, and it continued through closing argument when it
noted that D.W. was not coached, and that the cell phone data expert, Timothy Piper,
does only 100 percent perfection data."
The defendant further contends that the State asked questions on direct
examination designed to artificially support its witnesses' testimony before any
attempt by the defense to discredit the witness. The defendant complains of the
State' s questioning of Mr. Parms on direct examination as to whether D. W. was
coached by him or by the police or if he { Mr. Parms} was coached to call 911; and
on redirect, when the State thanked Mr. Parms for his military service. The
defendant also complains of the State asking Detective Medine if he led D.W. to
make certain responses. The defendant asserts the same error was made on the
redirect examination of Ms. Payne and Ms. Williams, when questions led them to
reply they had not lied or been coached.
The defendant next complains of bolstering through the testimony of
Detective Woodring, who testified that the things D.W. said were corroborated by
the investigation. The defendant further argues that the State impermissibly elicited
testimony from Detective Woodring that expressed his opinion as to the defendant' s
19
guilt.'
The defendant further contends that the State attempted to reveal personal
connections with a witness, thereby improperly offering its own integrity as a reason
to believe the witness. Finally, the defendant contends the trial court improperly
influenced the jury by commenting to Detective Medine, at the conclusion of his
testimony, that he " did a great job."'
s
Following is the relevant exchange on direct examination between the State and Detective
Woodring:
Q. Is Mr. Robert Marks, the defendant, the person you charged with murder in this case?
A. Yes.
Q. Okay. As a result of your investigation, is there anybody else in your mind who killed Lyntell
Washington?
A. Absolutely not.
Q. Say it again.
A. Absolutely not.
Q. There' s nobody on earth other than him, Robert Marks, who you feel --
At this point, defense counsel objected that the question had been asked and answered. The
defendant did not object to this exchange on the basis that the questioning was designed to elicit
an opinion as to the ultimate question of the defendant' s guilt. See La. Code Evid. art. 704 (" in a
criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the
accused."). As noted above, the failure to make a contemporaneous objection waives an alleged
error or irregularity and precludes the defendant from raising it on appeal because the trial court is
not placed on notice of the alleged irregularity or error and given an opportunity to cure it. See
Lanclos, 980 So. 2d at 648. On very rare occasions, courts have refused to apply the
contemporaneous objection rule as a bar to review an error which was so fundamental that it struck
at the very essence of the reliability of the fact-finding process, such as incorrectly advising the
jury of the elements of the crime with which was the defendant was charged, or failing to instruct
the jury that prior crimes could only be considered for the purpose of sentence enhancement and
not for the purpose of deciding guilt or innocence of the charged crime. See Arvie, 505 So. 2d at
47- 48. However, the relevancy or the prejudice of witness testimony is not one of the limited
exceptions to the contemporaneous objection rule that has been recognized. See State v. Rochon,
98- 717 ( La. App. 5th Cir. 3/ 10199), 733 So. 2d 624, 628. That is because such errors could easily
have been addressed and corrected by the trial court with an objection. Id.In this case, we find the facts do not warrant an exception to the contemporaneous objection rule.
The error, if any, in Detective Woodring' s testimony, was not an error that was so fundamental
that it strikes at the very essence of the reliability of the fact- finding process. Arvie, 505 So. 2d at
47. Further, courts have declined to extend the limited exceptions to the contemporaneous
objection rule to include prejudicial errors in witness testimony. See Rochon, 733 So. 2d at 628;
State v. Massey, 10- 861 ( La. App. 5th Cir. 6! 14111), 71 So. 3d 367, 378, writ denied, 2011- 1621
La. 4120112), 85 So. 3d 1259. Since the defendant in the instant case failed to object to Detective
Woodring' s testimony, and this is not the type of error that justifies the use of the exception to the
contemporaneous objection rule, we decline to address this issue on appeal. See Massey, 71 So. 3d
at 378.
6 Louisiana Code of Criminal Procedure article 772 states: " The judge in the presence of the jury
shall not comment upon the facts of the case, either by commenting upon or recapitulating the
evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved,
not proved, or refuted." See also La. Code Crim. Pro. art. 806 ( imposing identical prohibition
regarding jury charges). Although Article 772 precludes the judge from commenting on the facts
of the case in the presence of the jury, in order to constitute reversible error, improper comments
20
Because the defendant failed to contemporaneously object to any of the
complained -of comments or questions on the basis that they were prohibited
comments on a witness' s testimony or bolstered the witness' s testimony, he is
procedurally barred from having this claim reviewed. See La. Code Crim. P. art.
841.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 6
In his sixth assignment of error, the defendant argues the trial court erred in
allowing gruesome video and photographic evidence to be introduced because the
probative value of the evidence was substantially outweighed by its grave prejudice.
In particular, the defendant contends that at trial, in addition to introducing a
photograph of Ms. Washington' s body at the location it was discovered, the State
played a video that walked the jury through the location where the body was found.
The defendant further argues that the State introduced thirteen additional
photographs of Ms. Washington' s body taken during the autopsy, including a
skeleton of the bones of the unborn fetus.
The record reflects that the defendant did not object to the introduction of the
photograph of Ms. Washington' s body at the location it was discovered or the crime
scene video, both of which were introduced during Detective Woodring' s testimony.
In connection with the coroner' s testimony, the State offered into evidence five
photographs taken at the autopsy of Ms. Washington' s body. The defendant
must have influenced the jury and contributed to the verdict. State v. Brown, 2016- 0998 ( La.
1/ 28/ 22), 347 So. 3d 745, 815, reh' g denied, 2016- 00998 ( La. 3/ 25/ 22), 338 So. 3d 1138, and cert.
denied, No. 22- 77, U. S. , 143 S. Ct. 886, L.Ed.2d , ( 2023). A trial judge' s remarks
constitute harmless error if those remarks do not imply an opinion as to the defendant' s guilt or
innocence. Id. at 815- 16.
We note that the trial court' s comment to Detective Medine was not a comment on the facts of the
case or an opinion as to the defendant' s guilt or innocence. Nevertheless, counsel for the defendant
failed to object to the trial judge' s remark and, thus, this issue was not been preserved for appellate
review. See State v. Camper, 2008- 0314 ( La. App. 4 Cir. 10/ 1/ 08), 996 So. 2d 571, 579. See also
State v. Bald, 2016- 653 ( La. App. 3 Cir. 12/ 7/ 16), 209 So. 3d 793, 819, writ denied, 2017- 0045 ( La.
9/ 22/ 17), 227 So. 3d 825.
21
indicated he had no objection.
Because the defendant failed to lodge a contemporaneous objection to the
admissibility of this evidence, he is precluded from raising this issue on appeal.
Howard, 258 So. 3d at 81.
In connection with Detective Woodring' s testimony, the State sought to
introduce photographs taken at the autopsy. The defendant objected, placing a
continuing objection on the record about the gruesome photos and how this is
unnecessary." The defendant further objected that it was " excessive" and
repetitive." The State and defense counsel, along with the trial court, went through
the photographs and removed duplicative ones. The trial court allowed the State to
introduce eight photographs of the autopsy, which the State contended reflected the
autopsy of Ms. Washington' s body and the skeleton of the fetus.
Louisiana Code of Evidence article 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 without the evidence." All relevant evidence is admissible, unless
prohibited by law or by the constitution. La. C. E. art. 402. Relevant evidence may
be excluded if its probative value is substantially outweighed by " the danger of
unfair prejudice." La. C.E. art. 403.
Photographs are generally admissible if they illustrate any fact, shed any light
upon an issue in the case, or are relevant to describe the person, thing or place
depicted. State a Sepulvado, 93- 2692 ( La. 418196), 672 So.2d 158, 164. A trial
court' s ruling with respect to the admissibility of photographs will not be overturned
unless it is clear the prejudicial effect of the evidence outweighs its probative value.
State a Magee, 2011- 0574 ( La. 9128112), 103 So. 3d 285, 323.
7 The same two photographs of the skeleton of the bones of the unborn fetus were admitted in
connection with both the coroner' s and Detective Woodring' s testimony.
22
Even when the cause of death is undisputed, the state is entitled to the moral
force of its evidence and past -mortem photographs of murder victims are admissible
to prove corpus delicti, to corroborate other evidence establishing cause of death, as
well as the location and placement of wounds, and to provide positive identification
of the victim. Magee, 103 So. 3d at 323. Photographic evidence will be admitted
unless it is so gruesome that it overwhelms jurors' reason and leads them to convict
without sufficient other evidence. Id.
The eight photographs introduced in connection with Detective Woodring' s
testimony reflected the condition of Ms. Washington' s body, the gunshot wound to
her head, and the skeleton of the unborn child, from which DNA was extracted to
establish the defendant was the father of the unborn child. While it is unclear from
the record how many photographs the State sought to admit in connection with
Detective Woodring' s testimony, after consultation with both the State and defense
counsel, the trial court allowed only eight photographs. The defendant showed no
abuse of discretion on the part of the trial court in admitting these eight photographs.
See Magee, 103 So. 3d at 323.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 7
In his seventh assignment of error, the defendant contends the trial court erred
in allowing expert testimony by a lay witness. According to the defendant, despite
failing to comply with La. Code Crim. Pro. Art 719,8 the State called Detective
8 Louisiana Code of Criminal Procedure article 719( A) provides that:
Upon written motion of the defendant, the court shall order the district attorney to
permit or authorize the defendant to inspect and copy, photograph, or otherwise
reproduce any results or reports, or copies thereof, of a physical or mental
examination, and of scientific tests or experiments, made in connection with or
material to the particular case, that are in the possession, custody, control, or
knowledge of the district attorney and intended for use at trial. if the witness
preparing the report will be called as an expert, the report shall contain the witness' s
area of expertise, his qualifications, a list of materials upon which his conclusion is
based, and his opinion and the reason therefor. If the expert witness has not reduced
his results to writing, or if the expert witness' s written report does not contain the
23
Woodring to provide what amounted to expert testimony regarding cell phone
forensics, blood splatter, DNA, and decomposition analysis, all ofwhich should have
been excluded as unnoticed and/ or improper expert testimony by a lay witness.
At the outset, we note that the defendant failed to lodge contemporaneous
objections during trial to any of the complained -of testimony on the basis that the
State failed to comply with Article 719 or that Detective Woodring was offering
improper expert testimony. Accordingly, the defendant is precluded from raising
this issue on appeal. Howard, 258 So. 3d at 79- 80.
Moreover, Article 701 permits non -expert testimony in the form of opinions
or inferences that are rationally based on the perception of the witness and helpful
to a clear understanding of his testimony or the determination of a fact in issue.
Opinion testimony has been permitted by non -expert police officers based on
training, investigation, perception of the scene and observation of physical evidence.
State a LeBlanc, 2005- 0885 ( La. App. 1st Cir. 2/ 10/ 06), 928 So. 2d 599, 603- 04.
Detective Woodring testified that in June 2016, he had been a homicide
detective with the Baton Rouge Police Department for a little over five years. At
that time, he had worked more than one hundred homicide cases as either primary
or secondary investigator, and had worked as the lead detective on approximately
fifty homicide cases. In addition to his training with the homicide division,
Detective Woodring completed a class in cellular phone and phone record data
forensics. He testified that while he did not have any formal training in blood splatter
analysis, he had " learned from experience." He further testified as to his experience
with decomposition of a body.
information required of an expert as provided in this Article, the state must produce
for the defendant a written summary containing any information required to be
produced pursuant to this Article but absent from a written report, if any, including
the name of the expert witness, his qualifications, a list of materials upon which his
conclusion is based, and his opinion and the reason therefor.
24
It is apparent from the record that Detective Woodring' s lay testimony was
based on his training, investigation, perception of the scene and observation of
physical evidence. See LeBlanc, 928 So. 2d at 604.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 8
In his eighth assignment of error, the defendant argues that insufficient
evidence was offered to convict him of the offenses of second degree kidnapping,
aggravated kidnapping of a child, carjacking, obstruction of justice, and the illegal
carrying of a weapon while committing the crimes of second degree kidnapping and
aggravated kidnapping of a child. The defendant does not challenge the convictions
for second degree murder, first degree feticide, and the convictions of the illegal
carrying of a weapon while committing these crimes of violence.
A conviction based on insufficient evidence cannot stand as it violates Due
Process. See U.S. Const. amend. XIV; La. Const. art. 1, § 2. The standard of review
for the sufficiency of the evidence to uphold a conviction is whether, viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson
u hirginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 ( 1979). See La.
Code Crim. P. art. 821( B); State a Ordodi, 2006- 0207 (La. 11/ 29/ 06), 946 So.2d 654,
660; State a Mussall, 523 So. 2d 1305, 1308- 09 ( La. 1988). The Jackson standard
of review, incorporated in Article 821, is an objective standard for testing the overall
evidence, both direct and circumstantial, for reasonable doubt. When analyzing
circumstantial evidence, La. R.S. 15: 438 provides that the fact finder must be
satisfied the overall evidence excludes every reasonable hypothesis of innocence.
See State v Patorno, 2001- 25 85 ( La. App. 1 st Cir. 6121102), 822 So.2d 141, 144.
The Jackson standard of review does not permit a reviewing court to substitute
its own appreciation of the evidence for the fact finder' s, assess the credibility of
25
witnesses, or reweigh evidence. State a McGhee, 2015- 2140 ( La. 6/ 29/ 17), 223
So. 3d 1136, 1137 ( per curiam); State a Calloway, 2007- 2306 (La. 1121109), 1 So. 3d
417, 422 ( per curiam). A reviewing court may intrude on the plenary discretion of
the fact finder " only to the extent necessary to guarantee the fundamental protection
of due process of law." Mussall, 523 So. 2d at 1310.
Second Degree Kidnapping
At the time of the offense, La. R.S. 14: 44. 1 provided, in relevant part, as
follows:
A. Second degree kidnapping is the doing of any of the acts listed in
Subsection B wherein the victim is:
3) Physically injured or sexually abused;
5) Imprisoned or kidnapped when the offender is armed with
a dangerous weapon or leads the victim to reasonably believe he is
armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
1) The forcible seizing and carrying of any person from one place to
another; or
2) The enticing or persuading of any person to go from one place to
another; or
3) The imprisoning or forcible secreting of any person.
The evidence in the present case, when viewed in the light most favorable to
the prosecution, showed that on the evening of June 8, 2016, Ms. Washington met
the defendant in an area near the Baker Wal- Mart. The evidence further showed that
the defendant' s and Ms. Washington' s cell phones traveled along the same route to
the location where Ms. Washington' s body was later found with a gunshot to her
head. The evidence established that Ms. Washington' s blue Toyota Corolla was
located in a parking lot near her apartment on Newcastle Avenue. Video footage
from the Hancock Whitney bank as well as Ms. Jackson' s testimony showed that
Ms. Jackson picked up the defendant around 11: 30 p.m. on Newcastle Avenue near
26
the location of Ms. Washington' s apartment. Ms. Jackson testified that around
midnight on the night of June 8, 2016, she dropped the defendant off at his
motorcycle in the parking lot of the Baker Wal- Mart. Ms. Payne testified that prior
to June 8, 2016, Ms. Washington told her that Ms. Washington and the defendant
were planning to get together " to talk about the situation," of Ms. Washington' s
pregnancy.
A rational juror could have concluded that on the evening of June 8, 2016, the
defendant arrived in the area of the Baker Wal- Mart on his motorcycle, and Ms.
Washington arrived in her vehicle. A rational juror could have further concluded
that the defendant persuaded Ms. Washington to travel with him in her vehicle from
the Baker Wal- Mart into Iberville Parish to the Ramah area under the guise of
working on their relationship. A rational juror could have alternatively concluded
that once he met Ms. Washington in the area of the Baker Wal- Mart, the defendant
forcibly seized her and brought her from Baker to Ramah. Considering that Ms.
Washington was killed by a gunshot to her head, a rational juror could have
concluded that the defendant was armed with a gun, which he used to shoot her.
We find that that the circumstantial evidence was sufficient to establish that
the defendant either enticed or forcibly carried Ms. Washington from Baker to the
Ramah area where he shot her. Accordingly, we find there is sufficient evidence to
uphold the defendant' s conviction for second degree kidnapping.
Kidnappingof a Child
Aggravated Kidnqpping
Under La. R.S. 14: 44. 2( A), aggravated kidnapping of a child is the
unauthorized taking, enticing, or decoying away and removing from a location for
an unlawful purpose by any person other than a parent, grandparent, or legal
guardian of a child under the age of thirteen years with the intent to secret the child
from his parent or legal guardian.
The evidence in the present case established that D.W. was found on the
27
morning of June 9, 2016, in a parking lot near the apartment where she lived without
any adult supervision. As noted above, video footage from the Hancock Whitney
bank as well as Ms. Jackson' s testimony established that Ms. Jackson picked up the
defendant around 11: 30 p.m. on the evening of June 8, 2016, near that location. Ms.
Payne testified that D.W. told Ms. Payne that the defendant had hurt D.W.' s
mommy." Ms. Payne further testified that the police allowed Ms. Payne to take
temporary custody of D.W. because Ms. Payne knew D. W. At trial, Ms.
Washington' s twin sister, Cyntell Washington, testified that she was living in Austin,
Texas, when Ms. Washington went missing. Cyntell Washington testified that she
travelled to Baton Rouge, Louisiana, and was granted temporary custody of D.W.
until early November 2016, when D.W.' s biological father obtained custody.
A rational juror could have concluded that D.W. was in Ms. Washington' s car
when the defendant met Ms. Washington near the Baker Wal- Mart, traveled to the
Ramah area, returned to Baton Rouge, and abandoned Ms. Washington' s car in a
parking lot near her apartment. A rational juror could have concluded that the
defendant knew D.W. was in the vehicle with her mother, and took the vehicle, with
D.W. inside, for the unlawful purpose of killing Ms. Washington. A rational juror
could have further concluded that rather than deliver D. W. to a safe location ( like a
police or fire station) where she could be returned to a legal guardian, the defendant
abandoned D.W. in a parking lot, where she remained overnight, in order to secrete
the child so that he would not be implicated in Ms. Washington' s murder.
We find that that the circumstantial evidence, when viewed in the light most
favorable to the prosecution, is sufficient to uphold the defendant' s conviction for
aggravated kidnapping of a child.
Carjacking
Under La. R.S. 14: 64. 2( A), carjacking is the intentional taking of a motor
vehicle belonging to another person, in the presence of that person, or in the presence
of a passenger, by the use of force or intimidation.
The evidence in the present case, when viewed in the light most favorable to
the prosecution, showed that on the evening of June 8, 2016, Ms. Washington was
shot and her body was left in the Ramah area. Video footage from the Hancock
Whitney bank, as well as Ms. Jackson' s testimony, established that Ms. Jackson
picked up the defendant around 11: 30 p.m. on Newcastle Avenue near the location
of Ms. Washington' s apartment. The evidence further established that on the
morning of June 9, 2016, D. W., along with Ms. Washington' s vehicle, were located
in a parking lot near Ms. Washington' s apartment on Newcastle Avenue.
A rational juror could have concluded that on the evening of June 8, 2016, the
defendant shot Ms. Washington and took her vehicle, with D.W. inside, and drove
back to Baton Rouge.
We find that that the circumstantial evidence was sufficient to establish that
the defendant took Ms. Washington' s vehicle, in her presence, and in the presence
of a passenger, by the use of force. Accordingly, we find there is sufficient evidence
to uphold the defendant' s conviction for carjacking.
Obstruction of Justice
At the time of the offense, La. R.S. 14: 130. 1 provided, in relevant part, as
follows:
A. The crime of obstruction of justice is any of the following when
committed with the knowledge that such act has, reasonably may, or
will affect an actual or potential present, past, or future criminal
proceeding as hereinafter described:
1) Tampering with evidence with the specific intent of distorting the
results
of any criminal investigation or proceeding which may
reasonably prove relevant to a criminal investigation or proceeding.
Tampering with evidence shall include the intentional alteration,
movement, removal, or addition of any object or substance either:
a) At the location of any incident which the perpetrator knows or has
good reason to believe will be the subject of any investigation by state,
local, or United States law enforcement officers[.]
29
The evidence in the present case established that searches had been made from
the defendant' s cell phone and iPad for information about purchasing a gun, and a
father' s liability for child support. The evidence also established that when the
defendant was in jail, he called his sister and spoke to her about erasing his iPad.
Finally, the evidence established that Ms. Washington died of a gunshot wound to
the head and that the murder weapon was never located. Detective Woodring
testified that the police investigated the area near the LSU lakes where Ms.
Washington' s cell phone last registered, but were unable to locate the murder
weapon or her cell phone.
A rational juror could have concluded that the defendant possessed the
specific intent to distort the results of the investigation by asking his sister to remove
evidence of searches he made on his iPad. A rational juror could have also concluded
that the defendant disposed of the murder weapon and Ms. Washington' s cell phone
with the intent to avoid detection as the shooter. See Dorsey, 312 So.3d at 665.
Accordingly, we find the evidence sufficient to uphold the defendant' s
conviction for obstruction ofjustice.
Illegal Possession of a Weapon While Committing a Crime of Violence
It is unlawful for an offender to use, possesses, or have under his immediate
control a firearm, while committing or attempting to commit a crime of violence.
La. R.S. 14: 95( E). Louisiana Revised Statutes 14: 2 ( B) de fines
- a " crime of violence"
as an offense that has, as an element, the use, attempted use, or threatened use of
physical force against the person or property of another, and that, by its very nature,
involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense or an offense that
involves the possession or use of a dangerous weapon.
Defendant' s argument herein is limited to only those counts related to the
defendant' s convictions for second degree kidnapping and aggravated kidnapping of
30
a child. ' Vire have found that there is sufficient evidence to uphold these convictions.
Because the evidence indicated that Ms. Washington was shot with a firearm, a
rational juror could have concluded that the defendant used, possessed, or had under
his immediate control a firearm, while committing the offenses of second degree
murder and aggravated kidnapping of a child.
Accordingly, we .find there is sufficient evidence to uphold the defendant' s
convictions for these charges.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 9
In his ninth assignment of error, the defendant argues he was denied the right
to effective assistance of counsel in violation of his due process rights. He complains
of the following non -exhaustive list of alleged deficiencies:
1)Counsel failed to file any substantive motions until the morning of
trial, including no requests to suppress evidence, statements or
identifications, all of which were at issue in this case;
2) Counsel failed to meaningfully object to inadmissible hearsay
testimony and other errors made by the State at trial ( which are now
being raised for the first time in this appeal);
3) Counsel failed to meaningfully cross- examine the State' s witnesses
at trial;
4) Counsel failed to prepare a defense;
5) Counsel failed to consult an expert or otherwise challenge scientific
evidence;
6) Counsel failed to give a closing argument at trial.
A claim of ineffective assistance of counsel is more properly raised by an
application for post -conviction relief in the trial court, where a full evidentiary
hearing may be conducted. State a McKinney, 2015- 1503 ( La. App. 1st Cir.
4125116), 194 So. 3d 699, 708, writ denied, 2016- 0992 ( La. 5/ 12/ 17), 220 So. 3d 747.
However, where the record discloses sufficient evidence to decide the issue of
ineffective assistance of counsel when raised by assignment of error on appeal, it
31
may be addressed in the interest of judicial economy. Id. See Strickland v.
Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 ( 1984).
Because the defendant' s claims raise issues related to his counsel' s
preparation, investigation, and strategy, these claims cannot be reviewed on appeal.
McKinney, 194 So.3d at 708. Only in an evidentiary hearing in the district court,
where the defendant could present evidence beyond what is contained in the instant
record, could these allegations be sufficiently investigated.9
Accordingly, these allegations are not subject to appellate review.
This assignment of error is unreviewable on appeal.
ASSIGNMENT OF ERROR NO. 10
In his tenth assignment of error, the defendant argues he was denied his
fundamental right to testify in his own defense.
According to the defendant, there is no evidence he was even present in the
courtroom when the State and defense counsel rested. Also, the defendant avers
there was no confirmation obtained as to his right to testify or a knowing waiver of
that right.
A minute entry ofthe last day oftrial indicates the defendant was present when
the State and defense counsel rested. Moreover, the defendant' s silence created the
presumption he voluntarily waived his right to testify, and the defendant has made
no showing otherwise. There is nothing in the record before us to indicate that the
defendant unequivocally made known his desire to testify but was somehow denied.
Cf. State v Hampton, 2000- 0522 ( La. 3/ 22/ 02), 818 So. 2d 720, 729- 30.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 11
In his eleventh assignment of error, the defendant argues the trial court erred
9 The defendant would have to satisfy the requirements of La. Code Crim. P. art. 924, et seq. , in
order to receive such a hearing.
32
in denying his motion to quash, as venue was not proper in Iberville Parish.
Louisiana Code of Criminal Procedure article 611 governs the jurisdiction and
venue of criminal trials. At the time of the offense, Article 611 provided, in pertinent
part:
A. All trials shall take place in the parish where the offense has been
committed, unless the venue is changed. If acts constituting an offense
or if the elements of an offense occurred in more than one place, in or
out of the parish or state, the offense is deemed to have been committed
in any parish in this state in which any such act or element occurred.
B. If the offender is charged with the crime of first or second degree
murder and it cannot be determined where the offense or the elements
of the offense occurred, the offense is deemed to have been committed
in the parish where the body of the victim was found.
Critically, venue is a factual question and, on appeal, review is limited to
whether the State submitted some evidence of proper venue. As such, review of the
issue on appeal is not concerned with weighing the sufficiency of the evidence
presented by the State. Finally, a trial court' s ruling on a motion to quash is
discretionary and should not be reversed absent a clear abuse of discretion. State u
Eason, 2019- 0614 ( La. App. 1 st Cir. 12/ 27/ 19), 293 So. 3d 61, 72.
In this case, Ms. Washington' s body was found in Iberville Parish. The State
presented evidence, through the testimony of Detective Woodring, that he was never
able to determine where Ms. Washington was murdered. Accordingly, pursuant to
Article 611, the offense is deemed to have been committed in the parish where the
body of the victim was found, and venue is proper in that parish. See also State v
Gross, 2018- 1014 ( La. App. 1st Cir. 2/ 25/ 19), 273 So. 3d 317, 320, writ denied, 2019-
00498 ( La. 9/ 17/ 19), 278 So. 3d 972 (Where a body is found, and it is unknown where
the actual killing took place, proper venue is in the parish where the body of the
victim was discovered.).
The trial court did not abuse its discretion in denying the defendant' s motion
to quash.
33
This assignment of error is without merit.
REVIEW FOR ERROR
Initially, we note that our review for error is pursuant to La. Code Crim. P. art.
920, which provides that the only matters to be considered on appeal are errors
designated in the assignments of error and " error that is discoverable by a mere
inspection of the pleadings and proceedings and without inspection of the evidence."
Any fact ( other than a prior conviction) that increases the maximum penalty
for a crime must be charged in an indictment, submitted to a jury, and proven beyond
a reasonable doubt. Apprendi v New Jersey, 530 U. S. 466, 476, 120 S. Ct. 2348,
2355, 147 L.Ed.2d 435 ( 2000); Jones v United States, 526 U.S. 227, 243 n. 6, 119
S. Ct. 1215, 1224 n. 6, 143 L.Ed.2d 311 ( 1999). Additional elements of an offense
must be charged in the indictment, submitted to a jury, and proven by the government
beyond a reasonable doubt. Jones, 526 U.S. at 232, 119 S. Ct. at 1219. The statutory
maximum for Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant. Blakely a Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537, 159
L.Ed.2d 403 ( 2004); State v Hines, 2010- 1118 ( La. App. 1st Cir. 12/ 22/ 10), 52 So. 3d
1120, 1126.
The record reflects that on the charge of aggravated kidnapping of a child, the
trial court sentenced the defendant to life imprisonment at hard labor without benefit
of parole, probation, or suspension of sentence.
The sentencing provisions of La. R.S. 14: 44. 2 at the time of the offense
provided as follows:
B. ( 1)Whoever commits the crime of aggravated kidnapping of a child
shall be punished by life imprisonment at hard labor without benefit of
parole, probation, or suspension of sentence.
2) Notwithstanding the provisions of Paragraph ( 1) of this Subsection,
if the child is returned not physically injured or sexually abused, then
the offender shall be punished in accordance with the provisions of R.S.
34
14: 44. 1.
Louisiana Revised Statutes 14: 44. 1, second degree kidnapping, provides that
w] hoever commits the crime of second degree kidnapping shall be imprisoned at
hard labor for not less than five nor more than forty years. At least two years of the
sentence imposed shall be without benefit of parole, probation, or suspension of
sentence."
The bill of indictment charged the defendant with aggravated kidnapping of a
14'
child pursuant to the provisions of La. R.S. 14: 44. 2 ( A) & (B) ( 2). However, it is
apparent he was sentenced under the provisions of La. R.S. 14: 44. 2 ( B) ( 1). The
enhanced provisions of La. R.S. 14: 44.2 ( B) ( 1), requiring that the child be
physically injured or sexually abused, were not submitted to the jury, and the jury
made no finding of whether D.W. was physically injured or sexually abused.
Accordingly, we find that the trial court erred in sentencing the defendant to life
imprisonment at hard labor without benefit of parole, probation, or suspension of
sentence under the provisions of La. R.S. 14: 44. 2 ( B) ( 1), vacate the sentence and
remand for resentencing on this charge.
CONVICTIONS AFFIRMED; SENTENCE IMPOSED FOR COUNT 9,
AGGRAVATED KIDNAPPING OF A CHILD, VACATED; ALL OTHER
SENTENCES AFFIRMED; REMANDED FOR RESENTENCING ON
COUNT 9.
10 The bill of indictment erroneously charged the defendant under La. R.S. 14: 44, aggravated
kidnapping, rather than La. R.S. 14: 44. 2, aggravated kidnapping of a child. However, the
defendant was not misled by the erroneous citation and the fact that he was charged under the
wrong statute is not grounds for reversal of his conviction. State v. Johnson, 404 S0. 2d 239, 242
La. 1981).
35