State of Louisiana Versus Antonio Dante Key ( 2023 )

STATE OF LOUISIANA NO. 23-KA-167
VERSUS FIFTH CIRCUIT
ANTONIO DANTE KEY COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 19-2637, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
December 27, 2023
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Stephen J. Windhorst
CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED
FHW
JGG
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Monique D. Nolan
Thomas J. Butler
Zachary L. Grate
COUNSEL FOR DEFENDANT/APPELLANT,
ANTONIO DANTE KEY
Drew M. Louviere
WICKER, J.
Defendant, Antonio Key, appeals his conviction and sentence for aggravated
burglary in violation of La. R.S. 14:60. For the following reasons, we affirm
defendant’s conviction. Upon an errors patent review, we find that the trial court
improperly restricted statutory benefits in sentencing defendant, and we amend his
sentence to remove the restriction of benefits for the last five years of his twenty-
year sentence. In all other respects, we affirm defendant’s sentence.
STATEMENT OF THE CASE
On June 19, 2019, the Jefferson Parish District Attorney filed a bill of
information charging defendant with aggravated burglary in violation of La. R.S.
14:60.1 Defendant was arraigned on that same date and pled not guilty. On
February 18, 2020, the State filed a superseding bill of information and a Motion to
Invoke Firearm Sentencing Provision Pursuant to Louisiana Code of Criminal
Procedure Articles 893.12 & 893.3.3 On March 5, 2020, the State amended the
superseding bill of information to allege that defendant committed aggravated
burglary while using a firearm and causing bodily injury to Elizabeth McDonald
1
Darius Daleo and Rodgers Hart, III were also charged with aggravated burglary in count one.
Additionally, Mr. Hart was charged with attempted armed robbery (count two) and carjacking (count
three) in that same bill of information.
2
La. C.Cr.P. art. 893.1 states:
A. If the district attorney intends to move for imposition of sentence under the provisions
of Article 893.3, he shall file a motion within a reasonable period of time prior to
commencement of trial of the felony or specifically enumerated misdemeanor in which the
firearm was used.
B. The motion shall contain a plain, concise, and definite written statement of the essential
facts constituting the basis for the motion and shall specify the provisions of this Chapter
under which the district attorney intends to proceed.
3
La. C.Cr.P. art. 893.3, in pertinent part, states:
D. If the finder of fact finds beyond a reasonable doubt that a firearm was actually used or
discharged by the defendant during the commission of the felony for which he was
convicted, and thereby caused bodily injury, the court shall impose a term of imprisonment
of not less than fifteen years nor more than the maximum term of imprisonment provided
for the underlying offense; however, if the maximum sentence for the underlying felony is
less than fifteen years, the court shall impose the maximum sentence.
E. (1)(a) Notwithstanding any other provision of law to the contrary, if the finder of fact
has determined that the defendant committed a felony with a firearm as provided for in this
Article, and the crime is considered a violent felony as defined in this Paragraph, the court
shall impose a minimum term of imprisonment of not less than ten years nor more than the
maximum term of imprisonment provided for the underlying offense. In addition, if the
firearm is discharged during the commission of such a violent felony, the court shall impose
a minimum term of imprisonment of not less than twenty years nor more than the maximum
term of imprisonment provided for the underlying offense.
23-KA-167 1
under La. C.Cr.P. art. 893.3(D). On that same date, defendant was re-arraigned and
pled not guilty. Defendant filed various pretrial motions and, on July 21, 2021,
defendant’s pretrial motions to suppress statement, evidence, and identification
were denied.
On April 25, 2022, the case proceeded to trial before a twelve-person jury.
On April 27, 2022, the jury unanimously found defendant guilty as charged under
La. R.S. 14:60 and returned a special verdict under Article 893.3(D). Defendant
filed a motion for new trial, which the trial court denied on May 26, 2022. On that
date, the trial court sentenced defendant to imprisonment at hard labor for twenty
years without benefit of parole, probation, or suspension of sentence. This timely
appeal followed.
FACTS
On April 30, 2019, at 11:57 p.m., the Jefferson Parish Sheriff’s Office
(JPSO) received a 9-1-1 call from a woman, later identified as Elise McDonald,
who reported that someone had just broken into her home through the back door at
4616 Southshore Drive in Metairie. Ms. McDonald subsequently told the 9-1-1
operator that a tall black male wearing black clothing, black gloves, and a black ski
mask pointed a gun at her and her mother, later identified as Dr. Elizabeth
McDonald, and hit her mother in the head, causing her to bleed.4 She explained to
the 9-1-1 operator that they had barricaded themselves in an upstairs bedroom and
were scared to go downstairs.
JPSO Detective Andrew Pennington testified that on April 30, 2019, he was
dispatched to a burglary in progress at 4616 Southshore Drive. Detective
Pennington explained that he and other responding officers entered through the
back door after noticing that the window pane in the back door was broken. He
recalled that when they went upstairs, he saw blood on the floor and the wall, and
4
The victims both testified that two perpetrators entered their home.
23-KA-167 2
jewelry scattered about. Detective Pennington stated that the responding officers
found the two victims on the second floor in a bedroom. He explained that Dr.
McDonald had blood on her head and face and that she and her daughter were
terrified. He further testified that after ensuring that no one else was in the house,
the officers brought the victims downstairs, spoke to them separately, and took
statements from them.
Dr. McDonald, a sixty-seven-year-old retired gastroenterologist, testified
that she lived at 4616 Southshore Drive with her adult daughter and a large, sixty-
pound dog. Dr. McDonald stated that on April 30, 2019, she left the hospital and
arrived home at approximately 10:00 p.m. She explained that she and her daughter
talked, ate a snack, got ready for bed, and went into to their separate bedrooms and
closed their doors at approximately 11:00 p.m. Dr. McDonald testified that at some
point, she heard a loud noise and noticed that the alarm was going off. She jumped
out of bed, went straight to the alarm panel at the top of the stairs, and realized that
there had been a system breach.
Dr. McDonald recalled that as she then ran down the hallway toward her
daughter’s bedroom, she encountered a masked man with a black hood and black
gloves dressed all in black. She also recalled that the man immediately started
hitting her with a gun and tried to push her into the bathroom. She explained that
she was in “hand to hand” combat with him. Dr. McDonald stated that while she
was being hit about the face, shoulders, and chest and being pushed into the
bathroom, she looked into her daughter’s room and saw another man holding a gun
on her daughter. She testified that she attempted to get to her daughter’s bedroom
to help her, and that she did not care if she died in doing so. She recalled trying to
push her daughter’s door to keep it open. She testified that, thereafter, the fighting
escalated and she was hit multiple times in the head with the perpetrator’s gun,
until she found herself on the bathroom floor.
23-KA-167 3
Dr. McDonald stated that at some point, the man who was hitting her “raised
the hand with the gun,” stopped, and said, “Go, go. We got to get - - we got to - -
get out. Get out.”5 She stated that the men ran away, that the dog came out of her
daughter’s room, and that she crawled into her daughter’s room. She and her
daughter barricaded themselves in her daughter’s bedroom by pushing the jewelry
box and a large mirror against the door. She recalled that her daughter quickly
called 9-1-1 and told them that they needed help. Dr. McDonald also recalled that
the 9-1-1 operator stayed on the phone until the police arrived and escorted them
from the bedroom. Dr. McDonald testified that EMS came to the scene, after
which she went by ambulance to the hospital where she received medical
treatment, including for bruising on her body and sutures in her forehead and
inside her mouth.
Dr. McDonald testified that she reported to police that on April 11 and 12,
2019, she had air conditioning work done on her house by Bryans United Air
Conditioning. She recalled that on April 11, 2019, someone from Bryans United
informed her that her back door appeared to be broken. She explained that she
immediately had the door repaired on April 12, 2019.
Ms. Elise McDonald testified at trial that she was forty-one years old, a real
estate agent, and her mother’s assistant. She recalled that on April 30, 2019, at
approximately 10:00 p.m., her mother came home from working at the hospital.
She and her mother talked, had a snack, watched television, took showers, and then
each went to their own bedrooms at approximately 11:00 p.m. She testified that she
thereafter heard an extremely loud bang at the back door, glass breaking, the door
opening, and the alarm going off. Ms. McDonald stated that she immediately heard
5
Dr. McDonald testified that she was familiar with firearms and that she believed one of the firearms
used during the incident was a Glock.
23-KA-167 4
multiple footsteps coming up the stairs. Thereafter, a masked gunman wearing
black clothing, black gloves, and a black ski mask opened her door, leaned over
her bed, pointed a gun at her, and repeatedly said, “Get to me. Come here. Come to
me.” She recalled screaming, “No. No. No.” Ms. McDonald asserted that her dog
was next to her and barking ferociously. She stated that she was trying to crouch
down near the side of her bed to protect herself and thought that she was either
going to be raped or killed. Ms. McDonald testified that the gunman continued to
shout at her, stared at her “like he wanted [her],” and told her to come to him.
Ms. McDonald testified that she subsequently heard scuffling in the hall and
knew then that there had to be more than one perpetrator in the home. She then
heard her mother shouting and the other perpetrator and her mother fighting. She
testified that she had a clear view of her mother in the hallway and saw that the
other gunman was beating her mother with his gun. Ms. McDonald explained that
the other gunman kept hitting her mother’s head and face and trying to shove her
mother into the bathroom, but that she kept getting back up. She further explained
that when the gunman in her room realized that the gunman in the hallway—who
was much smaller—was not “handling” her mother, he went into the hallway,
pushed the other gunman out of the way, and began beating her mother harder with
his gun. Ms. McDonald explained that she could hear crunching, saw blood
spurting, and then realized her mother was not standing up any longer.
Soon thereafter, she heard one of the gunman say, “Let’s go. Let’s go. Get
out of here. We’ve got to go,” after which the gunmen ran. She further testified
that her dog chased after the gunmen, that her mother crawled into her (Ms.
McDonald’s) bedroom as quickly as she could and that they shut the door and tried
to barricade themselves in the room.
Ms. McDonald testified that she then called 9-1-1, after realizing that she
had pressed the panic button for the alarm system and was concerned that the
23-KA-167 5
police had not yet arrived. Ms. McDonald testified that she could not identify the
perpetrators; however, she explained that she could see that the man in the hallway
had a lighter skin tone, and the man in her bedroom had a darker skin tone.
Ms. McDonald testified that, on April 11, 2019, she and her mother were
both present the entire day when Bryans United performed air conditioning work
in their home. She also testified that she was at home by herself during the
morning on April 12, 2019, while Bryans United was at the house completing their
work, and that she and her mother were both present in the house from midday on
April 12, 2019, until Bryans United finished the job at the end of the day. She
pointed out that the Bryans United employees walked all over the house during the
air conditioning work, both upstairs and downstairs, on those days.
Detective Stoltz6 testified that while he conducted an investigation at 4616
Southshore Drive, Louisiana State Police troopers were parked on North Causeway
Boulevard south of I-10 when they noticed a black Sonata vehicle with tinted
windows driving south with no headlights on. Detective Stoltz explained that the
state troopers tried to pull the vehicle over, but it would not stop, and a chase
ensued. The vehicle ultimately crashed at North Turnbull and Johnson, and three
suspects fled the scene on foot.
Detective Stoltz testified after obtaining a search warrant for the vehicle, a
2016 Hyundai Sonata, officers recovered from inside the vehicle a license plate
registered to defendant, defendant’s driver’s license, defendant’s debit card,
multiple documents with the name “Rhyidh Wilson” on them, and a Nissan key
fob for defendant’s Nissan Altima. Additionally, Sergeant Randy Thibodeaux with
JPSO testified that numerous items were recovered from the Sonata, including a
6
Sergeant Randy Thibodeaux testified that on April 30, 2019, he began the investigation in the instant
case by asking the crime lab technicians to take photographs of the scene at 4616 Southshore Drive,
obtaining consent from Dr. McDonald for her DNA and swabs of her fingernails, and taking verbal
statements from the victims while at that scene. Sergeant Thibodeaux further testified that when his night
watch period ended, he turned over the investigation to JPSO Detective Robert Stoltz, the lead
investigator.
23-KA-167 6
Taurus pistol, a pair of brown leather gloves, a pair of latex gloves, a black ski
mask, a camouflage mask, a white tank top, a black Nike hooded sweatshirt, a
black jacket, and a black and gray hooded jacket.
Detective Stoltz explained that although the Sonata vehicle was registered to
Ernest Williams, he learned through his investigation that Mr. Wilson was the
vehicle’s primary driver. Detective Stoltz requested that the second district conduct
a disposition check at Mr. Wilson’s residence. He testified that a deputy went to
that address and spoke to Mr. Wilson, who claimed that his vehicle had been stolen
and filed an auto theft report. Suspicious of Mr. Wilson’s complaint, JPSO later
stopped Mr. Wilson, who was driving defendant’s Nissan Altima, and brought him
to the investigations bureau for questioning.7 Detective Stoltz testified that a search
warrant was obtained for defendant’s Nissan Altima and that during the search, a 9
mm Glock ammunition magazine was retrieved.
Detective Stoltz testified that he interviewed Darius Daleo, one of the
individuals who fled the scene at North Turnbull and Johnson and was later
captured.8 Detective Stoltz recalled that Mr. Daleo told officers that he was in the
Sonata vehicle with a Rodgers Hart and a third person who he did not know, but
who he knew had done air conditioning work at the victims’ home. After the
victims told Detective Stoltz that Bryans United had recently done air conditioning
work on their home, he called Bryans United and asked for the names of the
employees who had worked at the victims’ home, after which Bryans United
confirmed that defendant had recently performed work there.
Detective Stoltz testified that he applied for an arrest warrant for defendant,
that defendant was arrested at Bryans United in Gretna on May 2, 2019, and that
7
JPSO also seized Mr. Wilson’s cell phone.
8
Detective Stoltz asserted that Mr. Hart was thereafter arrested, that they seized Mr. Hart’s cell phone,
and that they obtained a search warrant for his residence. He further asserted that they retrieved evidence
from Mr. Hart’s residence, which included a Smith and Wesson .40 caliber firearm, a Smith and Wesson
box, and a lot of ammunition. Detective Stoltz later testified that after Mr. Hart fled from the scene at
North Turnbull and Johnson, he carjacked a nearby pizza delivery driver.
23-KA-167 7
defendant’s cell phone was seized from his person upon arrest. He also testified
that defendant’s residence was later searched pursuant to a search warrant and that
several items were recovered, including a Glock pistol box; two live rounds of 9
mm ammunition; six live rounds of 9 mm ammunition; three live rounds of 9 mm
ammunition; seven live rounds of 9 mm ammunition; three Glock magazines – a
nine round, a thirteen round, and a thirty round; a black jacket; and two pairs of
black Adidas pants.
Detective Stoltz further testified that JPSO obtained video surveillance from
homes near the scene at 4616 Southshore Drive. He testified that the video
evidence from neighborhood surveillance cameras showed the suspected vehicle
enter the neighborhood and, at some point, turn its headlights off and park near the
corner of Southshore Drive and Brennan Street for approximately seventeen
minutes. Other video evidence retrieved from a neighbor’s home camera reflects
that the lights went off at 4616 Southshore Drive at approximately 11:36 p.m. At
11:40 p.m., two individuals can be seen walking from the east side at the corner of
Brennan Street and Southshore Drive and approaching the victims’ home. Then, at
11:57 p.m., the vehicle begins moving onto Southshore Drive toward the victims’
home. The video evidence shows that, immediately as the vehicle drives past the
victims’ home, the shadows of two people can be seen running from the residence,
getting into the vehicle, and the vehicle fleeing.
Additionally, Detective Stoltz testified that cell phone extractions were
performed on defendant’s cell phone.9 As to defendant’s cell phone, Detective
Stoltz pointed out a photograph retrieved from defendant’s phone which showed
Ms. McDonald’s jewelry box opened and filled with jewelry, with a person’s hand
9
Detective Stoltz also testified that cell phone extractions were performed for phones belonging to Mr.
Hart, Mr. Daleo, and Mr. Wilson.
23-KA-167 8
in the photograph. He also identified photographs on defendant’s cell phone that
showed multiple Glock pistols.
Detective Stoltz detailed various text messages and communications
between the cell phones of defendant and other individuals. In sum, on April 11,
2019 (the day defendant had been working on the air conditioning at the victims’
home), at 4:20 p.m., defendant sent a photograph of Ms. McDonald’s jewelry box
to Wilson, who asked for the address where the jewelry was located.10 Defendant
sent Wilson the location (4616 Southshore Drive) through text and Wilson then
asked whether anyone was present at the home, to which defendant responded
affirmatively. On April 29, 2019 (one day prior to the offense in the instant case),
at 10:12 p.m., defendant told Wilson he was trying to bring a person to the “lick,”
which Detective Stoltz stated meant a burglary. Wilson responded that his brakes
were “bad.” On April 30, 2019 (the day of the offense in the instant case), at 9:40
p.m., defendant sent Wilson a message that he could use the “whip” if he changed
the license plate. Detective Stoltz explained that a “whip” meant a vehicle.
Defendant told Wilson, “I’ll leave you mine.” On April 30, 2019, shortly after
midnight, Wilson sent a blank text, and defendant responded that he had wrecked
Wilson’s vehicle. Defendant thereafter sent Wilson a “location drop” in the area of
North Turnbull and Johnson where the vehicle crashed. At 12:14:53 a.m.,
defendant sent another message to Wilson telling him not to come to the location.
Detective Stoltz also detailed text messages between the cell phones of
defendant and someone named “Will.” On April 26, 2019, at 7:09 a.m., defendant
10
JPSO Sergeant Solomon Burke testified that he was commander of the digital forensics unit. The trial
court accepted him as an expert in the field of mobile device forensics. Sergeant Burke testified that he
located image 8138, the photograph of the jewelry box, on defendant’s cell phone. He asserted that image
8138 was shared by defendant on three occasions. He explained that image 8138 was captured on April
11, 2019, at 4:08:26 p.m. Sergeant Burke pointed out that the last time there was a GPS location for that
phone on April 30, 2019, was at 10:38:26 p.m. He also pointed out that the next time there was a GPS
location for that phone was on May 1, 2019, at 12:12:37 a.m. Sergeant Burke testified that there were no
outgoing calls between 11:44 p.m. and 11:57 p.m. on April 30, 2019, and that the phone did not send any
text messages within those times nor was there any app usage during those times.
23-KA-167 9
sent the photograph of the jewelry box to Will. Defendant sent another message to
Will saying, “Persons doing it tonight. Drop the lo to your crib. We gone. Head out
after. It’s me, my partner. Just one or two S.” Detective Stoltz stated that “lo” was
a location. Will responded with an address in Texas and stated that it would take
six hours to get there. Will asked how long defendant would stay in Texas, and
defendant responded, “Like two, three days. Probably just to sell some of it.” On
April 27, 2019, defendant sent a message to Will that they did not “do it” because
there were checkpoints due to Jazz Fest. The officers never determined the identity
of “Will.”11
Detective Stoltz testified that he examined the call logs between Mr. Hart
and Mr. Daleo. Detective Stoltz testified that Mr. Daleo’s phone records showed
that he received an incoming call from Mr. Hart on April 30, 2019, at 11:39 p.m., a
fifty second call. Next, at 11:40:31 p.m. that night, Mr. Daleo received an
incoming call from Mr. Hart—a phone call that lasted seventeen minutes and
thirty-five seconds, or until approximately 11:58 p.m. Detective Stoltz
acknowledged that the 9-1-1 call was made by Ms. McDonald—who testified that
she made the 9-1-1 call immediately after the intruders fled—on April 30, 2019, at
11:57 p.m.
Mr. Daleo testified at trial and admitted that he participated in the offense
with Mr. Hart and defendant, who knew each other. He testified that he knew Mr.
Hart before the offense but did not know defendant. He explained that he became
involved in the instant case after Mr. Hart asked him to go “hit a lick,” which he
testified meant to steal something. He further testified that defendant knew to “hit
this place for a lick” because he had been at the house previously doing air
11
Detective Stoltz pointed out that defendant also sent text messages to someone named “Black.” On
April 28, 2019, defendant sent a message to Black saying, “You tryna FW this lick in Metairie” and “need
a whip. That’s all.” Black responded that defendant should have told him earlier and asked, “What’s the
lick?” Defendant responded “BUKU jewelry,” which Detective Stoltz interpreted as beaucoup jewelry.
The officers never determined the identity of “Black.”
23-KA-167 10
conditioning work. Mr. Daleo testified that they did not intend to steal anything
that night; rather, he stated Mr. Hart told him they would drive past the house and
“peep the scene out.”
Mr. Daleo testified that after he got into the car that night, he sat in the
driver-side back seat, Mr. Hart sat in the front passenger’s seat, and defendant sat
in the driver’s seat. Mr. Hart told him after they began driving to the victims’
home that he would be the getaway driver. He testified that after they arrived near
the home, defendant and Mr. Hart put on masks and exited the car as he remained
in the car. He further testified that Mr. Hart called him during the burglary so that
he could alert Mr. Hart to anything suspicious or to the police’s arrival, and that
while he was on the phone with Mr. Hart, he heard a dog barking and women
screaming. Mr. Daleo testified that he owned the camo mask worn by Mr. Hart that
night; he denied ever wearing the mask that night or entering the victims’ home.
Mr. Daleo testified that while the three men argued about which way he
should drive to get out of the neighborhood, state troopers got behind their vehicle,
and a high-speed chase ensued. He further testified that after the car crashed, he
hopped out, ran, stopped, and sent his location to his friend, Amber Burquet. Mr.
Daleo recalled that as soon as he got into Ms. Burquet’s car, he was arrested,
approximately thirty minutes after the offense.
Mr. Daleo admitted that he initially denied any involvement in the burglary.
However, after speaking with officers and observing surveillance video, he
eventually admitted his involvement and told officers that he was driving the
vehicle involved in the burglary on Southshore Drive. Mr. Daleo stated that he
drove the vehicle out of the neighborhood but that, soon thereafter, he pulled over
and switched seats with Mr. Hart by humping over the middle console. He
explained that he forgot to turn on the vehicle’s headlights and that he switched
seats because he was “too messed up” on Xanax and alcohol to drive.
23-KA-167 11
Kortnie Sinon, an expert in the field of latent print processing and
comparison, testified that she was formerly employed at the JPSO in the crime
lab.12 Ms. Sinon testified that latent prints obtained from the interior of the
Sonata’s driver’s side rear door handle were identified to be Mr. Daleo’s right
middle finger and right index finger. She further testified that latent prints obtained
from the interior of the Sonata’s passenger front door were identified to Mr. Hart’s
left index finger and right middle finger. Ms. Sinon also testified that she compared
a print on a photograph of the hand in the jewelry box to defendant’s “major case
prints” and determined that the ring finger from the photograph of Dr. McDonald’s
jewelry box located on defendant’s phone matched defendant’s left ring finger.
Kara Kovach, an expert in the field of DNA analysis, testified that Mr. Hart
could not be excluded as a major contributor to the DNA profile obtained from the
swab of the Smith and Wesson pistol, that Mr. Daleo could not be excluded as a
major contributor to the DNA profile obtained from the camouflage mask, and that
defendant could not be excluded as a major contributor to the DNA profile
obtained from the black mask.
Defendant testified at trial that he grew up in New Orleans, graduated from
high school in May 2014, left for boot camp in June 2014, and received an
honorable discharge from the Marine Corps in 2018. He further testified that he
subsequently went to HVAC school, after which he installed and serviced air
conditioning units in addition to performing road work.
Defendant testified that on April 11, 2019, he was employed with Bryans
United and working at 4616 Southshore Drive. He acknowledged that he took a
video of the victims’ bathroom because he had never seen a nice bathroom like that
before and claimed he wanted “to show my girl or something.” He further admitted
12
Ms. Sinon testified that she was the technical reviewer for another examiner in this case, Nikki Wilson,
and that she agreed with Ms. Wilson’s conclusions.
23-KA-167 12
that he took a picture of the jewelry box in the home because he was enthused by
the jewelry. However, he claimed that he did not open the jewelry drawer, that it
had already been opened, and that he regretted taking a photo of the jewelry box.13
Defendant testified that on April 30, 2019, he used his friend Mr. Wilson’s
Hyundai Sonata, and further, that he used that vehicle often because it had dark
glass tint. He testified that night, he picked up Mr. Hart in Marrero and Mr. Daleo
in Bridge City. He insisted that he drove the vehicle that night and that Mr. Daleo
never drove it. Defendant recalled that when they arrived near 4616 Southshore
Drive, he parked the vehicle nearby because he saw that the lights in the house
were on. He claimed that he wanted to leave but that Mr. Daleo insisted that they
wait until the lights had been turned off. Defendant stated that he was scared to
drive away because Mr. Daleo had a gun and was high. Defendant explained that
Mr. Daleo and Mr. Hart exited the vehicle and defendant then repositioned the
vehicle so that he could see Mr. Hart and Mr. Daleo walk down the street.
Defendant testified that Mr. Daleo and Mr. Hart returned to the car
approximately seventeen minutes later. When asked how he knew when the other
two perpetrators were ready to be picked up—given that the video evidence
showed the vehicle driving up immediately as the two perpetrators ran away from
the house and toward the street—defendant testified that he could see the two men
had returned into the victims’ front yard because one was using a flashlight on his
phone.
Defendant explained that his license plate was found on the floor of the
Sonata vehicle and that he never switched the vehicle’s license plates because he
did not plan on going into the victims’ home that evening. He acknowledged that a
black ski mask was found in the Sonata but claimed that people his age wear ski
13
On rebuttal, Ms. McDonald testified that she did not have a habit of leaving her jewelry box opened and
testified that she did not leave it open on April 11 or 12, 2019, because she knew Bryans United was
coming to perform work in the house.
23-KA-167 13
masks rolled up like beanies and that he wore one regularly as a “trend,” but
testified that he never wore the mask that night and never entered the victims’
home.
Defendant admitted that he wanted to steal the jewelry so he could sell it and
obtain money. He further testified that he communicated with his friend Mr.
Wilson from Texas because he planned to sell the jewelry in Texas and did not
want to sell the jewelry locally in New Orleans and be caught.
Deloris Romero testified at trial that she and defendant’s mother had been
stationed in the Marine Corps together and that she had known defendant since he
was six or seven years old. Her impression of defendant’s character as a child was
that he was very good and very respectful. Ms. Romero testified that over the past
few years, she saw defendant once or twice a year and did not have any concerns
with his character.
John Michael Anthony testified that he met defendant in 2009, when he (Mr.
Anthony) and defendant’s mother were working in the Marine Corps. Mr. Anthony
asserted that defendant was a student then who did very well in school, played
sports, and cut his grass a couple of times. Mr. Anthony maintained that his
interactions with defendant continued throughout the years and that those
interactions were cordial. He stated that he saw defendant approximately once
every two months after defendant left the Marine Corps. He insisted that defendant
had a stellar reputation and that defendant treated his mother well.
LAW AND ANALYSIS
Defendant appeals his conviction and sentence, assigning the following
assignments of error: (1) the trial court erred in denying defendant’s pretrial
motion to suppress the evidence seized from defendant’s residence and cell phone;
(2) the trial court erred in imposing the firearm enhancement pursuant to La.
C.Cr.P. art. 893.1 et. seq because no firearm was discharged during the
23-KA-167 14
commission of the offense; (3) the evidence was insufficient to prove defendant’s
identity as the perpetrator who committed the aggravated burglary; (4) defendant’s
20-year-sentence is constitutionally excessive; and (5) the trial court erred in
denying defendant’s motions for mistrial. We address each assignment of error in
turn.
Sufficiency of the Evidence14
On appeal, defendant challenges the sufficiency of the evidence presented
against him at trial. Specifically, he contends that the evidence was insufficient to
identify him as one of the two perpetrators who physically entered the home and
caused injury to the victims. In his brief argument, defendant points out that
neither victim was able to identify the perpetrators and, thus, Mr. Daleo was the
only witness to testify against him at trial. Defendant asserts that the fingerprint
evidence—which demonstrated that Mr. Daleo’s fingerprints were found in the
getaway vehicle on the rear driver-side door—contradicted Mr. Daleo’s testimony
that he was driving the getaway vehicle on the night of the crime. Defendant
further points out that Daleo is taller than him, and that Dr. McDonald described
her assailant as “tall.” Defendant claims that he was present but remained in the
vehicle on the night of the burglary, but that he did not intend for Mr. Daleo and
Mr. Hart to actually enter the victims’ home that night.
In reviewing the sufficiency of the evidence, an appellate court must
determine if the evidence, whether direct or circumstantial, or a mixture of both,
viewed in the light most favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime have been proven beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
14When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, such
as the erroneous admission of evidence, the reviewing court should first determine the sufficiency of the
evidence by considering all of the evidence, including evidence the trial court may have erroneously
admitted. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Mayeux, 94-105 (La. App. 5 Cir.
6/28/94), 639 So.2d 828, 834.
23-KA-167 15
560 (1979); State v. Mickel, 09-953 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534,
writ denied, 10-1357 (La. 1/7/11), 52 So.3d 885; State v. Ordonez, 16-619 (La.
App. 5 Cir. 3/15/17), 215 So.3d 473, 477. When circumstantial evidence is used 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 a defendant’s suggested hypothesis of innocence
offers an exculpatory explanation of events. Rather, the reviewing court must
evaluate the evidence in the light most favorable to the State and determine
whether the possible alternative hypothesis is sufficiently reasonable that a rational
juror could not have found proof of guilt beyond a reasonable doubt. 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.
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.
Under La. R.S. 14:24, “[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. Mere presence at the scene of a crime does not
23-KA-167 16
make one a principal to the crime. 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.
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. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225.
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. In the absence of internal
contradiction or irreconcilable conflicts with physical evidence, the testimony of
one witness, if believed by the trier of fact, is sufficient to support a conviction.
State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied
sub nom. State ex rel. Dixon v. State, 08-987 (La. 1/30/09), 999 So.2d 745.
Defendant was convicted of aggravated burglary in violation of La. R.S.
14:60, which provides in pertinent part:
A. Aggravated burglary is the unauthorized entering of any
inhabited dwelling, or of any structure, water craft, or movable where
a person is present, with the intent to commit a felony or any theft
therein, under any of the following circumstances:
(1) If the offender is armed with a dangerous weapon.
(2) If, after entering, the offender arms himself with a dangerous
weapon.
(3) If the offender commits a battery upon any person while in
such place, or in entering or leaving such place.
Battery is “the intentional use of force or violence upon the person of
another.” La. R.S. 14:33. Aggravated battery is defined as “a battery committed
with a dangerous weapon.” La. R.S. 14:34. A burglar only needs to have a
dangerous weapon in his possession in order to be considered “armed” for
purposes of La. R.S. 14:60. It is not required that the burglar use it or brandish it
during the commission of the offense. State v. Hearne, 55,311 (La. App. 2 Cir.
23-KA-167 17
9/27/23), 2023 WL 6279948, —So.3d— (citing State v. Rodney, 19-195 (La. App.
5 Cir. 10/23/19), 282 So.3d 395, 401).
At trial, defendant admitted that on April 11, 2019, he was employed with
Bryans United and working at 4616 Southshore Drive. He also admitted that he
took a picture of the victim’s jewelry while inside their home. Defendant testified
that he started planning the robbery on April 11, 2019, while working at the house.
He further testified that he engaged in communications with others about
coordinating the robbery. Defendant admitted that, prior to the robbery, he sent a
picture of the jewelry to other individuals asking for help with “the lick”, obtained
a vehicle to use in the robbery, and arranged to go to Texas after the robbery to sell
the jewelry in an effort to not be caught in Louisiana.
Defendant testified at trial that he stayed in the vehicle while Mr. Hart and
Mr. Daleo went into the victims’ home. He indicated that he was the getaway
driver after Mr. Hart and Mr. Daleo got back into the vehicle. See State v.
Demease, 33,047 (La. App. 2 Cir. 4/5/00), 756 So.2d 1264, 1269, writ denied, 00-
1488 (La. 5/25/01), 792 So.2d 750 (“The defendant’s confession that he was the
getaway driver is direct evidence of his involvement in the offense.”). Defendant’s
testimony indicates that he was at least a principal to aggravated burglary. The jury
was instructed on the law of principals.
Nevertheless, Mr. Daleo’s testimony calls into question whether defendant
was the getaway driver on the night of the robbery. Contrary to defendant’s
testimony, Mr. Daleo testified at trial that he was the lookout and getaway driver
during the robbery, that he stayed in the vehicle while defendant and Mr. Hart went
inside the victims’ home, and that he (Daleo) and Mr. Hart stayed on their phones
during the entire robbery so that he could alert Mr. Hart to any suspicious activity.
The phone record evidence introduced at trial confirmed an incoming phone call
from Mr. Hart to Mr. Daleo, which lasted approximately seventeen minutes,
23-KA-167 18
between approximately 11:40 p.m. and 12:00 a.m.—during the time of the robbery.
If defendant had been the getaway driver and stayed in the vehicle as he claimed,
there would be no reason for Mr. Hart and Mr. Daleo to be on the phone with each
other for an entire seventeen minutes while both were inside the house during the
robbery.
Moreover, the video evidence introduced at trial also calls into question
defendant’s claim that he was the getaway driver. The video evidence showed a
getaway vehicle quickly and promptly arriving at the victims’ home immediately
as the two perpetrators fled the home. The testimony at trial reflects that
defendant’s cell phone had no telephone calls, text messaging, or app activity
during the entire time of the robbery. With no telephone or other communication
between defendant in the getaway car and the perpetrators, it calls into question
how defendant, as the getaway driver, knew exactly when to arrive to pick up the
two fleeing perpetrators.
Additionally, the evidence reflects that defendant was the only alleged
perpetrator who had previously been inside the victims’ house and who knew
where the jewelry was located in the home. Ms. McDonald recalled that the
perpetrators arrived upstairs within seconds of breaking in, which indicates that
they knew exactly where to go. Moreover, Mr. Daleo testified at trial that, before
the vehicle entered the victims’ neighborhood, he was seated in the driver-side
back seat with defendant driving the vehicle, and he only moved to the driver’s
front seat during the time defendant and Mr. Hart were inside of the victims’ home
to act as the getaway driver. Therefore, the fingerprint evidence placing Mr. Daleo
at some point in time in the rear driver-side seat is not inherently contradictory to
Mr. Daleo’s testimony.
23-KA-167 19
Upon review of the record, we find that the State presented sufficient
evidence to support defendant’s conviction for aggravated burglary. This
assignment of error is without merit.
Motions to Suppress
On May 26, 2021, defendant filed various boilerplate motions to suppress,
including motions seeking suppression of all evidence seized with and without a
warrant, which the trial court considered at a July 21, 2021 suppression hearing.
On appeal, defendant challenges the veracity of the probable cause affidavits
accompanying the applications for search warrants for both his residence and his
cell phone, arguing that the applications were defective in that they failed to
establish probable cause and omitted material facts or made material
misrepresentations. Specifically, defendant claims that the probable cause
affidavits contained misrepresentations because they omitted that Mr. Daleo had
initially lied to investigating officers concerning his involvement in the robbery.
Defendant contends that the officers’ failure to include Mr. Daleo’s initial
statement denying any involvement in the robbery is a material misrepresentation
that renders the warrant unconstitutional. The record reflects that Mr. Daleo
initially denied any involvement in the robbery but rather “advised he got out of
the vehicle and left” prior to the robbery taking place. The record reflects,
however, that, upon further questioning and discussion of the evidence obtained at
that point in time, Mr. Daleo admitted participation as the getaway driver and made
further statements to the police, which are outlined in the probable cause affidavits.
The State responds that the warrants at issue do not contain
misrepresentations and do refer to Mr. Daleo’s inconsistent interview, stating that
“after a progressive and protracted interview he ultimately confessed to being the
driver of the vehicle while Rodgers Hart and an unknown suspect entered the
residence armed with handguns.” Further, the State asserts that any omission of
23-KA-167 20
Mr. Daleo’s previous statement was not intentional and that the probable cause
affidavit was prepared in good faith and, thus, the evidence should not be
suppressed.
The Fourth Amendment to the United States Constitution and Article I, § 5
of the Louisiana Constitution prohibit unreasonable searches and seizures. State v.
Thomas, 08-390 (La. App. 5 Cir. 1/27/09), 8 So.3d 80, 83, writ denied, 09-626 (La.
11/25/09), 22 So.3d 170. If evidence is derived from an unreasonable search or
seizure, the proper remedy is exclusion of the evidence from trial. Id.; State v.
Aston, 12-955 (La. App. 5 Cir. 9/4/13), 125 So.3d 1148, 1156, writ denied, 13-
2374 (La. 3/21/14), 135 So.3d 618. As a general rule, searches and seizures must
be conducted pursuant to a validly executed search warrant or arrest warrant. State
v. Holmes, 08-719 (La. App. 5 Cir. 3/10/09), 10 So.3d 274, 278, writ denied, 09-
816 (La. 1/8/10), 24 So.3d 857. Probable cause for the issuance of a search warrant
“exists when the facts and circumstances within the affiant’s knowledge and of
which he has reasonably trustworthy information, are sufficient to support a
reasonable belief that an offense has been committed and that evidence or
contraband may be found at the place to be searched.” State v. Lee, 05-2098 (La.
1/16/08), 976 So.2d 109, 122, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172
L.Ed.2d 39 (2008).
A magistrate must be given enough information to make an independent
judgment that probable cause exists to issue a warrant. Green, 831 So.2d at 968.
Moreover, the process of determining probable cause simply requires that enough
information be presented to the issuing magistrate to enable the magistrate to
determine that the charges are not capricious and are sufficiently supported to
justify bringing into play further steps of the criminal justice system. State v.
Brown, 09-722 (La. App. 4 Cir. 2/10/10), 32 So.3d 939, 950. The magistrate’s
determination of probable cause to issue a search warrant is entitled to significant
23-KA-167 21
deference on review, and “marginal cases should be resolved in favor of a finding
that the issuing magistrate's judgment was reasonable.” State v. Rodrigue, 437
So.2d 830, 833 (La. 1983).
The magistrate must make a common sense and non-technical decision as to
whether, given information contained in the affidavit, there is a “fair probability”
that evidence of a crime will be found in the place to be searched. State v. Brown,
18-01999 (La. 9/30/21), 330 So.3d 199, 252, cert. denied, 142 S. Ct. 1702, 212 L.
Ed.2d 596 (2022), citing Illinois v. Gates, 462 U.S. 213, 238–39, 103 S.Ct. 2317,
2332, 76 L.Ed.2d 527 (1983). The task for a reviewing court is simply to ensure
that under the totality of the circumstances, the magistrate had a substantial basis
for concluding that probable cause existed. State v. Payne, 10-46 (La. App. 5 Cir.
1/25/11), 59 So.3d 1287, 1296, writ denied, 11-387 (La. 9/16/11), 69 So.3d 1141.
Nevertheless, the United States Supreme Court has held that evidence seized
pursuant to a warrant based on less than probable cause need not be suppressed if
the officers who executed the warrant believed it to be validly issued. State v.
Davis, 17-642 (La. App. 5 Cir. 12/11/17), 2017 WL 10118514, at 2 (citing United
States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d. 677 (1984)). In
formulating this judicially created good faith rule, the Court reasoned that the good
faith of an officer in the execution of a warrant signed by a neutral magistrate
should be enough for the evidence obtained as a result of the search to be
admissible. Id. Thus, the Court expressed a strong preference for warrants over
warrantless searches by allowing evidence seized in constitutionally questionable
searches to be admissible into evidence if the officers relied on a validly issued
warrant. Id; State of Louisiana v. Jalin Cosse In re State of Louisiana, 23-198 (La.
App. 5 Cir. 5/19/23), —So.3d—, 2023 WL 3559763.
In United States v. Leon, supra, the Supreme Court held that evidence seized
under a constitutionally defective warrant should not be suppressed where the
23-KA-167 22
officers acted in good faith and in objectively reasonable reliance on the validity of
the warrant. The Leon court enumerated four instances in which suppression
remains an appropriate remedy: (1) where the magistrate or judge was misled by
information the affiant knew was false or would have known was false except for a
reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned
his detached and neutral judicial role; (3) where the warrant was based on an
affidavit so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable; and (4) where the warrant is so facially deficient,
i.e., fails to particularize the place to be searched or the things to be seized, that the
executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 914-
15, 104 S.Ct. at 3416.
Specifically concerning alleged misrepresentations made in a probable cause
affidavit, the Louisiana Supreme Court recently stated:
Regarding defendant’s claim that the affidavit was based on
omissions or misleading information, an affidavit is presumed to be
valid, and the defendant has the burden of showing by a preponderance
of the evidence that the affidavit contains false statements. Franks v.
Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667(1978); State v. Brannon, 414 So.2d 335, 337 (La. 1982); State v.
Ogden, 391 So.2d 434, 439 n.7 (La. 1980); State v. Wollfarth, 376
So.2d 107, 109 (La. 1979). Once the defendant has shown the affidavit
contains false statements, the burden shifts to the state to prove the
veracity of the allegations in the affidavit. If the court finds that the
affidavit contains misrepresentations, it must decide whether they were
intentional. State v. Smith, 397 So.2d 1326, 1330 (La. 1981); State v.
Fairbanks, 467 So.2d 37, 39-40 (La. App. 4 Cir. 1985). If the court
finds that the misrepresentations were intentional, the search warrant
must be quashed. Smith, 397 So.2d 1326, 1330. On the other hand, if
the court finds that the misrepresentations were inadvertent or
negligent, the inaccurate statements should be excised and the
remaining statements tested for probable cause. State v. Lee, 524 So.2d
1176, 1181 (La. 1987).
State v. Brown, 2018-01999 (La. 9/30/21), 330 So. 3d 199, 252–53, cert.
denied, 142 S. Ct. 1702, 212 L. Ed. 2d 596 (2022).
Concerning the search or extraction of cell phones, the United States
Supreme Court has found that the police generally may not, without a warrant,
23-KA-167 23
search digital information on a cell phone seized from an individual who has been
arrested. Riley v. California, 573 U.S. 373, 134 S. Ct. 2473, 2477, 189 L.Ed.2d 430(2014). In reaching this conclusion, the Court observed that modern cell phones
“are now such a pervasive and insistent part of daily life that the proverbial visitor
from Mars might conclude they were an important feature of human anatomy.”
Riley, 573 U.S. at 385, 134 S.Ct. at 2484. However, “[g]iven the pervasiveness of
cell phones, the Supreme Court also recognized that they “have become important
tools in facilitating coordination and communication among members of criminal
enterprises, and can provide valuable incriminating information about dangerous
criminals.” Riley, 573 U.S. at 401, 134 S.Ct. at 2493.
In this case, defendant’s residence and cell phone were both searched after
the issuance of a search warrant. As to the search warrant for defendant’s cell
phone extraction, the probable cause affidavit in pertinent part stated:
Detectives spoke to Darius Daleo and after a progressive and protracted
interview he ultimately confessed to being the driver of the vehicle
while Rodgers Hart and an unknown suspect entered the residence
armed with handguns. He indicated that Hart asked him to drive and be
a lookout during the robbery. The unknown suspect indicated that he
worked for the air conditioning company that did work at the
house and that there was about 50K in valuables that they could steal
and further that it was a soft target due to the fact that only two women
lived there and the rear door was faulty. Ultimately Daleo identified
Hart from a photographic line-up, but was unable to identify the other
suspect.
Daleo indicated that he was on the phone with Hart the entire time of
the incident and overheard their approach to the residence, entry and
subsequent altercation with the women, hearing their screams over the
phone. Daleo indicated that the suspects exited and entered the vehicle
and fled. He advised that Hart took over driving the vehicle and was the
driver during the pursuit. A search of his phone confirmed the call for
approximately seventeen minutes to Hart's phone during the crime.
Daleo was· later booked for the incident. A search of the suspect vehicle
recovered by LSP revealed several items related to one Antonio Key to
include his old Louisiana Driver’s License and a license plate to his
vehicle, described as a 2016 Jeep Patriot. During the course of the
investigation detectives learned that the victims recently had several
contractors in their residence performing renovations. One of the
companies was Bryans United Air Conditioning.
23-KA-167 24
Investigators soon learned that Antonio Key was employed as "helper"
for Bryans United and was a member of the crew that replaced ducts in
the victims' residence in mid-April.
Based on the entirety of the investigation, an arrest warrant was
obtained for Key for Aggravated Burglary. On May 2, 2019 at
approximately 0700 hours, Key was taken into custody for this
investigation and had his Apple I-phone on his person when
apprehended by investigators. Key was transported to the Criminal
Investigations Bureau for a formal interview. Key was advised of his
rights per Miranda. Key denied any involvement of this incident and
refused to give investigators the passcode for his locked Apple I-phone.
Detective Augillard request a search warrant for Key’s mobile device
to extract any and all data pertinent for this investigation.
As to the search warrant for defendant’s residence, the probable cause
affidavit stated in pertinent part:
Police officers pursued the suspects who occupied a black Hyundai
Sonata until the suspects crashed the Hyundai. Three black males ran
from the Hyundai. Members of the Jefferson Parish Sheriff’s Office
took one suspect, Darius Daleo, into custody. Daleo confessed to his
involvement in the aggravated burglary and identified Rodgers Delio,
B/M, DOB: 9/25/1995 and a young black male (unknown name) who
is employed by and air conditioning company that just completed work
at the victim's house. Daleo said the suspect employed by the air
condition company arranged the aggravated burglary, stating that the
suspects could gain $50,000 in the burglary of the residence.
Investigators obtained a search warrant for the suspect’s Hyundai.
During the search of the car, masks and other items related to the crime
were recovered. Also, a driver's license in the name of Antonio Key,
B/M, DOB: 10/03/1996 was found in the passenger compartment of the
Hyundai. Detectives learned that Key is employed by the air
conditioning company that completed work at the victim's house just a
couple of weeks prior to the aggravated burglary, and that Key worked
at that that job site. Detectives also secured phone communications
between Key and another suspect in the crime that further indicates his
involvement in the crime.
A warrant of arrest for Antonio Key for violation of LRS 14:60
Aggravated Burglary was obtained on May 1, 2019.
On May 2nd, 2019, detectives arrested Key at his place of employment.
He arrived to work in a 2018 Nissan Sentra bearing Louisiana license
plate# 460BCG. Detectives learned from Key that he resides at 2700
Whitney Avenue, Building 23, Apartment 469, Harvey, Louisiana. It is
based on the above information that detectives request a warrant to
search Antonio Key's residence located at 2700 Whitney Avenue,
Building 23, Apartment 469, Harvey in an attempt to recover evidence
of the crime.
23-KA-167 25
Upon thorough review, we find that the trial judge did not abuse his
discretion in denying defendant’s motions to suppress. There is no evidence to
demonstrate that any omission of Mr. Daleo’s prior statement in the probable cause
affidavits was intentional. Further, we find the applications demonstrate that the
attesting officers had reasonable grounds to believe that defendant’s residence and
cell phone may have evidence of the crime at issue—including text or other cell
phone communication to show the “arrangements” or planning of the crime
following defendant’s presence in the home while performing air conditioning
work. We also find that the warrants were not so lacking of indicia of probable
cause that the magistrate’s belief in its existence was entirely unreasonable.
Finally, there is no evidence to show that the officers executing the warrants were
not acting in good faith in relying on a validly issued warrant. Therefore, we find
the trial judge did not abuse his discretion in denying defendant’s motions to
suppress. This assignment lacks merit.
Firearm Enhancement under La. C.Cr.P. art. 893.1 et seq.
Defendant further argues that the trial court erred in applying the sentencing
enhancement under La. C.Cr.P. art. 893.1 et seq., asserting that there is not
sufficient evidence to prove that he possessed or used a firearm in connection with
the robbery. He contends that, pursuant to La. C.Cr.P. art. 893.3, the State must
prove that defendant discharged or used the firearm as a firearm, not as a bludgeon
weapon to injure the victim. He argues that pistol-whipping does not meet the
statutory definition under Article 893.3(D).
On February 18, 2020, the State filed a motion to invoke the firearm
sentencing provision under La. C.Cr.P. arts. 893.1 and 893.3. The State asserted in
that motion that La. C.Cr.P. art. 893.3(E) was implicated in the instant case. On
March 5, 2020, the State amended the superseding bill of information to allege that
defendant and his co-defendants committed an aggravated burglary while using a
23-KA-167 26
firearm thereby causing bodily injury to Dr. McDonald, pursuant to Article
893.3(D). The jury subsequently found defendant guilty as charged of aggravated
burglary. The jury also found the following special verdict: “We, the jury, find that
the State of Louisiana, proved beyond a reasonable doubt that the defendant
actually used a firearm during the offense, causing bodily injury.”
At the time of the offense on April 30, 2019, Article 893.3(D) provided:
D. If the court finds by clear and convincing evidence that a
firearm was actually used or discharged by the defendant during the
commission of the felony for which he was convicted, and thereby
caused bodily injury, the court shall impose a term of imprisonment of
fifteen years; however, if the maximum sentence for the underlying
felony is less than fifteen years, the court shall impose the maximum
sentence.
Article 893.3(D) provides a mandatory minimum sentence of fifteen years
for defendant’s conviction and is not an additional sentence. See State v. Dowden,
41,939 (La. App. 2 Cir. 3/28/07), 954 So.2d 300, 310, writ denied, 07-909 (La.
11/9/07), 967 So.2d 501 (“The plain wording of La. C.Cr.P. art. 893.3(B)
addresses the total term of imprisonment, not an ‘add-on’ of time.”). See also State
v. Lee, 02-1793 (La. App. 4 Cir. 4/2/03), 844 So.2d 970, writ denied, 03-1247 (La.
10/10/03), 855 So.2d 330 (On an errors patent review, the Court determined “that
provision [La. C.Cr.P. art. 893.3(A)] merely provides for a two-year mandatory
minimum sentence for an offense for which defendant has been convicted, not an
additional sentence on top of the sentence imposed for the conviction.”).
Article 893.3(D) specifically provides that the enhancement is applicable
when “a firearm was actually used or discharged by the defendant during the
commission of the felony for which he was convicted, and thereby caused bodily
injury.” It appears that the wording of this statute is clear and unambiguous and
should be applied as written. If the firearm had to be discharged for Article
893.3(D) to apply, the legislature would not have stated “used or discharged” when
writing the article. Additionally, it appears that there was clear and convincing
23-KA-167 27
evidence that showed defendant used a firearm during the burglary of 4616
Southshore Drive that caused bodily injury to Dr. McDonald. Dr. McDonald
testified that one of the perpetrators beat her with his gun in the hallway, and Ms.
McDonald testified that the other perpetrator left her in the bedroom and went out
into the hallway, where he also beat her mother with his gun. Therefore, the
evidence demonstrates that both perpetrators used a firearm to cause bodily injury
to Dr. McDonald.
Upon review of the record and the applicable law, we find that the State
presented sufficient evidence to show that defendant used a firearm to cause the
victim, Dr. McDonald, bodily injury as contemplated under La. C.Cr.P. art.
893.3(D). This assignment is without merit.
Excessive Sentence
Defendant next challenges the constitutionality of his sentence on appeal.15
Defendant argues that his twenty-year sentence is constitutionally excessive given
that he is a Marine Corps veteran with no prior criminal history with a low
recidivism risk. Defendant points to the character witnesses who demonstrated that
he is a good person who loves his family and contributes to society as
demonstrated by his military service and his HVAC career.
Defendant’s trial counsel did not object to the sentence imposed, and he did
not file a motion to reconsider sentence. This Court has consistently held that a
defendant’s failure to make or file a motion to reconsider sentence limits the
defendant to a review of the sentence for constitutional excessiveness only. La.
C.Cr.P. art. 881.1(E). See also State v. Bartholomew, 18-670 (La. App. 5 Cir.
10/23/19), 282 So.3d 374, 384-85.
The Eighth Amendment to the United States Constitution and Article I, § 20
of the Louisiana Constitution prohibit the imposition of excessive punishment.
15
See Errors Patent discussion concerning the 24-hour delay required under La. C.Cr.P. art. 873.
23-KA-167 28
Although a sentence is within statutory limits, it can be reviewed for
unconstitutional excessiveness. State v. Smith, 01-2574 (La. 1/14/03), 839 So.2d 1,
4. A sentence is considered excessive if it is grossly disproportionate to the offense
or imposes needless and purposeless pain and suffering. Id. A sentence is grossly
disproportionate if, when the crime and punishment are considered in light of the
harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La.
App. 5 Cir. 9/28/04), 885 So.2d 618, 622.
A trial judge has broad discretion when imposing a sentence because he or
she is in the best position to consider the aggravating and mitigating circumstances
of a particular case. State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, 958, cert.
denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). A reviewing court
may not set a sentence aside absent a manifest abuse of discretion. The issue on
appeal is whether the trial court abused its discretion, not whether another sentence
might have been more appropriate. State v. Dorsey, 07-67 (La. App. 5 Cir.
5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence
for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art.
881.4(D); State v. Pearson, 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656.
In reviewing a trial court’s sentencing discretion, three factors are
considered: 1) the nature of the crime; 2) the nature and background of the
offender; and 3) the sentence imposed for similar crimes by the same court and
other courts. State v. Hankton, 20-388 (La. App. 5 Cir. 7/3/21), 325 So.3d 616,
623, writ denied, 21-1128 (La. 12/7/21), 328 So.3d 425.
Defendant was sentenced pursuant to La. R.S. 14:60(B) and La. C.Cr.P. art.
893.3(D). La. R.S. 14:60(B) provides, “Whoever commits the crime of aggravated
burglary shall be imprisoned at hard labor for not less than one nor more than thirty
years.” Also, at the time of the offense, Article 893.3 provided, in pertinent part,
that “[i]f the court finds by clear and convincing evidence that a firearm was
23-KA-167 29
actually used or discharged by the defendant during the commission of the felony
for which he was convicted, and thereby caused bodily injury, the court shall
impose a term of imprisonment of fifteen years.” Therefore, defendant faced a 15-
year minimum sentence under La. C.Cr.P. art. 893.3 and a 30-year maximum
sentence under La. R.S. 14:60.
We find the twenty-year sentence imposed is well within statutory range and
is not constitutionally excessive under the facts of this case.16 Although defendant
is a first-time offender and an honorably discharged military veteran, the evidence
reflects that he planned to burglarize the victims’ home after being inside the home
to perform air conditioning work. The evidence reflected that defendant was the
mastermind who planned the entire burglary.
The evidence also showed that defendant went inside the home late at
night—with the knowledge that the victims were inside the home—and terrorized
Ms. McDonald and her sixty-seven-year-old mother, whom he beat with a gun
along with his accomplice.
Dr. McDonald read her victim impact statement at the sentencing hearing,
during which she stated that words were inadequate to explain the terror and evil
she and her daughter experienced that night. She also stated that the incident
changed her life forever, that she and her daughter still do not feel completely safe
in their home, and that she has post-traumatic stress disorder, post-concussion
syndrome, headaches, memory issues, and hearing issues. Dr. McDonald testified
that she had to close her medical practice due to her injuries and that she continued
to see therapists regularly. She believed that defendant and his accomplice had a
plan to harm her daughter that night as well, but that she was in their way. As such,
she asked the trial court to impose the maximum sentence.
16
We further find that the 20-year sentence imposed is supported by jurisprudence for similar crimes. See
State v. Calhoun, 42,896 (La. App. 2 Cir. 1/16/08), 974 So.2d 805, 814-15, writ denied sub nom. State ex
rel. Calhoun v. State, 08-579 (La. 11/26/08), 997 So.2d 544.
23-KA-167 30
Likewise, Ms. McDonald read her victim impact statement at the sentencing
hearing. She stated that the incident changed her life forever; that it was an
“absolute terror;” that she thought she was going to be raped and murdered; that
the perpetrator in her room was seemingly unfazed by the alarm going off, the dog
barking, and her desperate screaming; that there were no words to adequately
express the nightmare she and her mother experienced and continued to experience
on a daily basis; that she is still in therapy and has been diagnosed with post-
traumatic stress disorder; that she is fearful that defendant and his co-defendants
know where she and her mother live; and that she is afraid they may return one day
to harm them further. She asked the trial judge to impose the maximum sentence
for these reasons.
Upon review of the record, we find that defendant’s mid-range twenty-year
sentence is supported by the facts of this case. This assignment is without merit.
Motions for Mistrial
In his final assignment of error, defendant contends that the trial court erred
in denying his three oral motions for mistrial, each discussed below.
A mistrial is a drastic remedy and is warranted only when trial error results
in substantial prejudice to the defendant that deprives him of a reasonable
expectation of a fair trial. State v. Williams, 14-40 (La. App. 5 Cir. 9/24/14), 151
So.3d 79, 83, writ denied, 14-2250 (La. 6/19/15), 172 So.3d 649. Upon motion of a
defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when
prejudicial conduct in or outside the courtroom makes it impossible for the
defendant to obtain a fair trial, or when authorized by Article 770 or 771. La.
C.Cr.P. art. 775. The granting of a mistrial is within the discretion of the trial court
if the trial court is satisfied that an admonition is not sufficient to assure the
defendant a fair trial. State v. Williams, 04-1309 (La. App. 5 Cir. 4/26/05), 902
23-KA-167 31
So.2d 485, 496, writs denied, 05-1640 (La. 2/3/06), 922 So.2d 1173 and 05-1640
(La. 2/3/06), 924 So.2d 144.
First, defendant alleges that a mistrial was warranted because the trial court
improperly admitted unauthenticated video evidence of a Louisiana State Police
trooper’s dash-camera, which showed a police car chase involving the Sonata
vehicle that ultimately crashed. He claims that the video evidence was
inadmissible because it was not properly authenticated by the state trooper driving
the vehicle. He further argued that improperly admitting the evidence was
prejudicial because it showed a car chase, presumably involving defendant, on a
public road potentially endangering other travelers on the road.
La. C.E. art. 901(A) provides, “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” See State v. Rice, 17-0446 (La. 6/29/17), 222 So.3d 32, 33. Detective
Stoltz testified that during his investigation into the aggravated burglary in the
instant case, he received the dash-camera footage and the body camera footage
from the Louisiana State Police relative to the police chase of the Sonata following
the incident at 4616 Southshore Drive. Upon review of the record, we find that
Detective Schultz’s testimony concerning his receipt of the video evidence through
his investigation of the instant offense is sufficient under La. C.E. art. 901.
Nevertheless, even if the evidence had been improperly admitted, the
erroneous admission of improperly authenticated evidence is subject to a harmless
error analysis. State v. Matthews, 22-422 (La. App. 3 Cir. 11/16/22), 353 So.3d
301. The test is whether there is a reasonable possibility the error might have
contributed to the conviction and whether the court can declare a belief that the
error is harmless beyond a reasonable doubt. State v. Magee, 11-574 (La. 9/28/12),
103 So.3d 285, cert. denied, 571 U.S. 830, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013).
23-KA-167 32
Under the facts of this case, and given that this Court has found the evidence
introduced at trial sufficient to convict defendant (without relying on the dash-
camera footage at issue), we find that any error concerning the dash-camera
footage did not contribute to the verdict and that the error, if any, would be
harmless given the evidence presented against defendant in this case.
Second, defendant claims that the trial court erred in denying his motion for
mistrial when the prosecutor in closing argument referred to defendant and/or his
counsel as a “clown.” During closing argument, the prosecutor made the following
remarks when discussing defense counsel’s previous argument that the State failed
to test for DNA any clothing recovered from the vehicle:
But as the defense changed from attempt to not guilty to justification or
whatever it was - - because he admitted his role in this, as he admitted
to it, like he was going to. What do you think the DNA - - if Dr.
McDonald’s blood was actually on any of those jackets, what do you
think the defense is? That’s not the jacket I wore. And then where are
we? Right back to square one with this clown.
Defense counsel immediately commented, “Judge, Judge. I don't know who
he was talking about –”, to which the prosecutor immediately replied, “This
clown defense….I meant to say clown defense.” The parties approached the
bench and defense counsel argued that the prosecutor’s remark was
inappropriate and requested sanctions. The prosecutor explained that he
meant to say “clown defense” in response to defense counsel’s closing
argument concerning lack of DNA testing, stating that the argument was
“nonsensical.” The trial judge admonished the State, commenting that it was
improper for the prosecutor to refer to either defense counsel or defendant as
a clown. The prosecutor again apologized.
La. C.Cr.P. art. 774 governs opening and closing arguments and provides:
The argument shall be confined to evidence admitted, to the lack of
evidence, to conclusions of fact that the state or defendant may draw
therefrom, and to the law applicable to the case.
23-KA-167 33
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the
defendant.
A prosecutor has considerable latitude in making closing arguments. State v.
Williams, 03-942 (La. App. 5 Cir. 1/27/04), 866 So.2d 1003, 1014, writ denied, 04-
450 (La. 6/25/04), 876 So.2d 832. A conviction will not be reversed due to
improper remarks during closing argument unless the reviewing court is
thoroughly convinced that the remarks influenced the jury and contributed to the
verdict. State v. Harris, 17-78 (La. App. 5 Cir. 10/25/17), 230 So.3d 285, 298, writ
denied, 17-1968 (La. 6/15/18), 257 So.3d 680.
Upon review of the record, we find that the remark made by the prosecutor
was improper and falls under La. C.Cr.P. art. 77117, which instructs that:
[T]he court shall promptly admonish the jury to disregard a remark or
comment made during the trial, or in argument within the hearing of the
jury, when the remark is irrelevant or immaterial and of such a nature
that it might create prejudice against the defendant, or the state, in the
mind of the jury: (1) When the remark or comment is made by the
judge, the district attorney, or a court official, and the remark is not
within the scope of Article 770.18
We find that the trial court properly admonished the prosecutor for his
improper remark and point out that the jury was further instructed that closing
arguments are not evidence to be considered in rendering a verdict. We
therefore find that the trial court did not abuse his discretion in denying the
motion for mistrial on this basis.
17
La. C.Cr.P. art. 771 provides:
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish
the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the
jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice
against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the
remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or
a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an
admonition is not sufficient to assure the defendant a fair trial.
La. C.Cr.P. art. 770 instructs that certain comments concerning “race, religion, color or national origin”
18
may warrant an automatic mistrial.
23-KA-167 34
Third, defendant contends that the trial court erred in denying his
motion for mistrial on the basis that the prosecutor allegedly allowed Mr.
Daleo to misrepresent facts surrounding his plea deal and permitted him to
testify on cross-examination that he received no benefit for his testimony. The
State responds that Mr. Daleo did not testify untruthfully and repeatedly
testified that he did receive a plea deal in exchange for his truthful testimony
at trial.
Mr. Daleo testified on direct examination that he pled guilty in the
instant case to aggravated burglary and received an eight-year sentence.
During cross-examination, defendant’s trial counsel questioned Mr. Daleo
extensively about the plea agreement. Mr. Daleo testified that he and his co-
defendants had been charged with aggravated burglary with a firearm causing
bodily injury but that, pursuant to his plea agreement, the State amended the
bill of information only as to him to remove the firearm enhancement under
La. C.Cr.P. art. 893.3. On cross-examination, in a confusing series of
questions by defense counsel, Mr. Daleo responded “No,” when questioned if
he received a benefit for his testimony at trial. This statement is the basis for
defendant’s motion for mistrial.
However, the transcript of Mr. Daleo’s testimony clearly reflects that
he testified concerning the terms of his plea agreement. Mr. Daleo testified
that he made a “plea deal” with the State to reduce his sentencing exposure in
exchange for his testimony at trial. Upon review of the testimony and record,
we find no error in the trial court’s denial of defendant’s motion for mistrial
on this basis.
This assignment of error lacks merit.
23-KA-167 35
ERRORS PATENT
We have reviewed the record for errors patent in accordance with La.
C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland,
556 So.2d 175 (La. App. 5 Cir. 1990).
First, our review indicates that the trial court resentenced defendant on the
same date that it denied his motion for new trial. La. C.Cr.P. art. 873 provides:
If a defendant is convicted of a felony, at least three days shall
elapse between conviction and sentence. If a motion for a new trial, or
in arrest of judgment, is filed, sentence shall not be imposed until at
least twenty-four hours after the motion is overruled. If the defendant
expressly waives a delay provided for in this article or pleads guilty,
sentence may be imposed immediately.
Thus, La. C.Cr.P. art. 873 requires a 24-hour delay between the denial of a
motion for new trial and sentencing, unless a defendant expressly waives the 24-
hour delay period.19 State v. Perez-Espinosa, 19-601 (La. App. 5 Cir. 9/22/20), 302
So.3d 598, 603. The Louisiana Supreme Court recently instructed that failure to
comply with the 24-hour delay mandated by Article 873 is an error patent on the
face of the record. However, the Court further instructed that an error in failing to
observe the statutory sentencing delay may be found harmless. State v. Kisack, 16-
0797 (La. 10/18/17), 236 So.3d 1201, 1205–06.
Failure to observe the 24-hour delay period has been considered harmless
where there is a sufficient delay between the date of conviction and the date of
sentencing; there is no indication that the sentence is hurriedly imposed; and there
is no argument or showing of actual prejudice by the failure to observe the twenty-
19
See State v. Davis, 13-52 (La. App. 5 Cir. 8/27/13), 123 So.3d 751, 757–58 (wherein this Court found
defendant expressly waived the 24-hour delay by affirmatively stating he was present for sentencing);
State v. James, 527 So.2d 504, 505 (La. App. 5 Cir.1988) (wherein this Court found that the defendant
had waived the Article 873 sentencing delay when his counsel affirmatively responded that the defendant
was prepared for sentencing); State v. Green, 04–357 (La. App. 5 Cir. 11/16/04), 890 So.2d 6, 12
(wherein this Court found defendant validly waived the delay required by Article 873 when defense
counsel agreed that the defendant could be sentenced); and State v. Morton, 12–27 (La. App. 5 Cir.
5/31/12), 97 So.3d 1034, 1045, writ denied, 12–1476 (La.1/18/13), 107 So.3d 625 (wherein this Court
found that the defendant waived the sentencing delay required by Article 873 based on the defendant's
affirmative statement that he was prepared for sentencing).
23-KA-167 36
four hour delay. State v. Foster, 02-0910 (La. App. 4 Cir. 12/11/02), 834 So.2d
1188, 1192, approvingly cited in Kisack, supra.In this case, immediately following the denial of defendant’s motion for new
trial, the State stated that defendant had filed a sentencing memorandum but that
the State first would like to move forward with the reading of the victim impact
statements. After the reading of the two victim impact statements, the trial court
questioned, “Is the matter submitted for sentencing?” to which the State responded
“Submitted. Do you have anything, John [defense counsel]?” to which defense
counsel stated “Judge, we have a statement from two people.” Thereafter,
defendant made a statement and two witnesses testified on defendant’s behalf as to
his character, family, and service in the Marine Corps. Following defendant’s
statement and the two defense character witnesses’ testimony, the trial judge again
asked, “Is the matter submitted?” At that point, defense counsel responded, “Yes.”
At that point, the trial court sentenced defendant.
Upon review of the record, we find that the trial court erred in failing to
observe the 24-hour delay mandated by La. C.Cr.P. art. 873. However, under the
facts of this case, given counsel’s statements at sentencing, the preparation and
filing of a sentencing memorandum by defense counsel, the presence of defense
character witnesses called and prepared to testify at the hearing, and the
reasonableness of the sentence given, we find the error in this case to be harmless
and, therefore, does not necessitate a remand for resentencing.
Second, our review reflects an error patent concerning statutory restrictions
imposed during sentencing. The transcript reflects that the trial judge sentenced
defendant to imprisonment at hard labor for twenty years without benefit of parole,
probation, or suspension of sentence. Defendant was sentenced under La. R.S.
14:60(B) and La. C.Cr.P. art. 893.3.
23-KA-167 37
La. R.S. 14:60(B) provides, “Whoever commits the crime of aggravated
burglary shall be imprisoned at hard labor for not less than one nor more than thirty
years.” At the time of the offense, La. C.Cr.P. art. 893.3 provided in pertinent part:
D. If the court finds by clear and convincing evidence that a firearm
was actually used or discharged by the defendant during the
commission of the felony for which he was convicted, and thereby
caused bodily injury, the court shall impose a term of imprisonment of
fifteen years; however, if the maximum sentence for the underlying
felony is less than fifteen years, the court shall impose the maximum
sentence.
****
F. A sentence imposed under the provisions of this Article shall not be
suspended and shall be imposed in the same manner as provided in the
felony for which the defendant was convicted.
G. A defendant sentenced under the provisions of this Article shall not
be eligible for parole during the period of the mandatory minimum
sentence[.]
When sentencing defendant, the trial judge ordered the entirety of the
twenty-year sentence to be served without benefit of parole, probation, or
suspension of sentence. However, La. R.S. 14:60 does not include a restriction of
benefits for the sentence for aggravated burglary. Nevertheless, La. C.Cr.P. art.
893.3 does include a restriction of benefits. La. C.Cr.P. art. 893.3(F) provides that
the sentence shall not be suspended. Moreover, La. C.Cr.P. art. 893.3(G) states that
“[a] defendant sentenced under the provisions of this Article shall not be eligible
for parole during the period of the mandatory minimum sentence.” (emphasis
added).20 The trial court sentenced defendant under La. C.Cr.P. art. 893.3(D),
which sets forth the statutory mandatory minimum sentence of fifteen years.
We find that, pursuant to the clear statutory language provided in La. C.Cr.P.
art. 893.3(D) and 893.3(G), the trial court erred in restricting defendant’s benefits
for the entirety of his twenty-year sentence and could only restrict defendant’s
benefits for the statutorily designated mandatory minimum sentence, or, fifteen
20
Further, Article 893.3 does not reference probation; however, because there is a mandatory minimum
fifteen-year sentence, the trial court was precluded from considering probation.
23-KA-167 38
years. Accordingly, we hereby amend defendant’s sentence to remove the
restriction of benefits for the last 5 years of his sentence.
Third, the sentencing transcript reflects that the trial court failed to properly
advise defendant of the provisions of La. C.Cr.P. art. 930.8, which states in
pertinent part, “[n]o application for post-conviction relief, including applications
which seek an out-of-time appeal, shall be considered if it is filed more than two
years after the judgment of conviction and sentence has become final under the
provisions of Article 914 or 922.” If a trial court fails to advise, or provides an
incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may
correct this error by informing the defendant of the applicable prescriptive period
for post-conviction relief by means of its opinion. State v. Mouton, 22-444 (La.
App. 5 Cir. 12/29/22), 358 So.3d 106, 122-23. Therefore, we hereby advise
defendant that no application for post-conviction relief, including applications that
seek an out-of-time appeal, shall be considered if it is filed more than two years
after the judgment of conviction and sentence has become final under the
provisions of La. C.Cr.P. arts. 914 or 922. See State v. Wall, 21-716 (La. App. 5
Cir. 12/7/22), 362 So.3d 847, 855, writ not considered, 23-00375 (La. 8/2/23), 368
So.3d 64, reconsideration denied, 23-00375 (La. 11/15/23).
DECREE
For the reasons stated herein, we affirm defendant’s conviction for
aggravated burglary in violation of La. R.S. 14:60, but amend defendant’s sentence
only to remove the restriction on benefits for the last five years of his sentence as
stated herein. The Clerk of Court for the 24th Judicial District Court is hereby
ordered to transmit notice of this amended sentence to the appropriate authorities
23-KA-167 39
pursuant to La. C.Cr.P. art. 892(B)(2) and the Department of Corrections’ legal
department. See State v. Brown, 17-346 (La. App. 5 Cir. 12/13/17), 234 So.3d
1134, 1137. In all other respects, defendant’s sentence is affirmed.
CONVICTION AFFIRMED;
SENTENCE AFFIRMED AS AMENDED
23-KA-167 40
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-167
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
MONIQUE D. NOLAN (APPELLEE) THOMAS J. BUTLER (APPELLEE) DREW M. LOUVIERE (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
ZACHARY L. GRATE (APPELLEE)
ASSISTANT DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053