State of Louisiana Versus Alexsy Mejia ( 2023 )

STATE OF LOUISIANA NO. 23-KA-161
VERSUS FIFTH CIRCUIT
ALEXSY MEJIA COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 21-5800, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
November 29, 2023
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
John J. Molaison, Jr., and Scott U. Schlegel
CONVICTIONS AFFIRMED;
SENTENCES AMENDED AND CORRECTED,
MATTER REMANDED, PER INSTRUCTIONS
SMC
JJM
SUS
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Juliet L. Clark
Thomas J. Butler
COUNSEL FOR DEFENDANT/APPELLANT,
ALEXSY MEJIA
Roger W. Jordan, Jr.
CHEHARDY, C.J.
Defendant, Alexsy Mejia, appeals his convictions and sentences for
aggravated kidnapping and aggravated burglary. Defendant was 16 years old at the
time of the incident. Defendant argues on appeal that the State failed to present
sufficient evidence to support the aggravated kidnapping charge; that his
constitutional rights were violated when one of the victims failed to testify at trial;
that the trial court erred in failing to suppress both his statement and the victims’
“show up” identification of him; and that his sentences are excessive and fail to
conform to the statutory mandates for the sentencing of a juvenile.
For the reasons that follow, defendant’s convictions are affirmed. The
sentence imposed on the two counts of aggravated kidnapping are amended to
acknowledge that defendant will be eligible for parole consideration pursuant to
the criteria set forth in La. R.S. 15:574.4(D). The sentence imposed for count three,
on the charge of aggravated burglary, is corrected to remove the restriction on
benefits. Pursuant to La. C.Cr.P. art. 930.8, defendant is notified that no
application for post-conviction relief shall be considered if filed more than two
years after the judgment of conviction and sentence has become final.
STATEMENT OF THE CASE
On October 21, 2021, a Jefferson Parish Grand Jury indicted defendant with
the aggravated kidnapping of Mohan Kokatnur (D.O.B. 3/19/30) in violation of La.
R.S. 14:44 (count one), the aggravated kidnapping of Saroj Kokatnur (D.O.B.
1/14/40) in violation of La. R.S. 14:44 (count two), and the aggravated burglary of
4916 Elmwood Parkway in Metairie, which belongs to Mohan and Saroj Kokatnur,
in violation of La. R.S. 14:60 (count three). Defendant was arraigned and pled not
guilty on October 29, 2021.
After an August 25, 2022 hearing on defense counsel’s oral motion to
suppress statement and identification, the trial court denied the motion. Defendant
23-KA-161 1
filed a writ application, which this Court denied. State v. Mejia, 22-K-461 (La.
App. 5 Cir. 10/19/22) (unpublished writ disposition).
On October 25, 2022, trial commenced before a twelve-person jury, and on
October 26, 2022, the jury unanimously found defendant guilty as charged on all
counts. On November 9, 2022, after victim impact statements were presented, the
trial court sentenced defendant to life imprisonment at hard labor without the
benefit of parole, probation, or suspension of sentence as to counts one and two,
the aggravated kidnapping charges, and to 30 years imprisonment at hard labor
without benefit of parole, probation, or suspension of sentence on count three, the
aggravated burglary charge, with the sentences on each count to run concurrently.
On November 22, 2022, defendant filed a Motion for Appeal, which the trial
court granted on November 30, 2022. On December 2, 2022, defendant filed a
Motion to Reconsider Sentence and a Motion for Appeal and Designation of
Record.1 On December 12, 2022, the trial court denied the motion to reconsider
sentence and, later that day, granted the motion to appeal.
FACTS
On July 9, 2021, armed with a gun and wearing a mask, defendant entered
the home of Mohan and Saroj Kokatnur through a window and demanded money
from them. Defendant had performed work for the Kokatnurs, who are elderly, in
the past at their home. When the victims told defendant that they did not have the
money, defendant rode with them in their car to Chase Bank while holding Dr.
Kokatnur at gunpoint. The victims entered the bank together while defendant
1
Although the trial court granted the first motion for appeal before ruling on the motion to
reconsider sentence, no error occurred. The trial court retains jurisdiction to rule on a motion to
reconsider sentence, and a defendant is within his rights to request reconsideration of his
sentence even after an order of appeal is entered. State v. Lewis, 51,735 (La. App. 2 Cir.
1/31/18), 245 So.3d 36 (citing State v. Larkins, 51,540 (La. App. 2 Cir. 09/27/17), 243 So.3d
1220, writ denied, 17-1900 (La. 9/28/18), 253 So.3d 154). See also La. C.Cr.P. arts. 881.1(C)
and 916(3).
23-KA-161 2
remained in the car. The victims immediately alerted a bank employee, who called
the police. When the police arrived, defendant fled the scene on foot. Officers soon
thereafter found defendant hiding inside a trashcan, and he was apprehended.
Approximately 30 minutes later, the victims were taken to the location where
defendant had been apprehended. Defendant was removed from the back of a
police car, and the victims positively identified defendant as someone they knew
and as the person who held them at gunpoint. Jefferson Parish Sheriff’s deputies
arrested defendant and contacted defendant’s mother. After his mother was
present, an interpreter was called in to assist in reading defendant’s Miranda rights
with his mother and the defendant. Defendant waived his rights and then gave a
statement to Detective Carollo, confessing to the events of that afternoon.
At trial, the jury heard testimony from one of the victims, the bank branch
manager, and several detectives who had either responded to the bank’s 9-1-1 call
or had been involved in the investigation. Adam Kraus, a branch manager at the
Chase Bank in Kenner, testified that he knew the Kokatnurs as bank customers,
and that on July 9, 2021, when they entered the bank, their demeanor was different
and Mrs. Kokatnur was crying hysterically. She said, “They’re taking fifty
thousand dollars, they want fifty thousand dollars.” Dr. Kokatnur told Mr. Kraus
that someone put a gun to his head, made him come to the bank, and wanted
$50,000. After he saw a person inside of the Kokatnur’s vehicle through the
window, Mr. Kraus called 9-1-1 and informed the operator about an armed man in
the parking lot.
Officer Leia Vega2 with the Kenner Police Department responded to the call
at the Chase Bank on Williams Boulevard that day. She testified that while she was
en route, the dispatcher advised her that the suspect was armed and still inside of
2
Witnesses Leia Vega and Michael Vega are married; both work for the Kenner Police
Department.
23-KA-161 3
an “older model blue Toyota.” Officer Vega located the vehicle when she arrived
at the scene, parked her police unit, and waited for other deputies to arrive to assist
her. Surveillance video taken at the time, which was played for the jury, showed
the suspect exiting the vehicle and running from the scene. Officer Vega testified
that the suspect was wearing a black hoodie with the hood on his head. Officer
Vega and another officer pursued the subject in their police units but lost sight of
him at a shopping center. She testified that other officers had a visual on the
suspect, but she did not. She explained that she did not see him again until he was
viewed crouching in the bushes behind a Wendy’s next to the shopping complex.
In her report, she indicated that the female victim said that she could not identify
the suspect because he had a mask on; she could only describe his clothing and
stature. She confirmed that the person she saw getting out of the car at the bank is
the same person who was arrested by her fellow officers.
Officer Michael Vega with the traffic division of the Kenner Police
Department was also dispatched to the bank. Before he arrived, other officers
advised him that the suspect exited the vehicle and ran, and that they lost sight of
him running northbound near a Baskin Robbins. Officer Vega exited his vehicle
and walked toward the back of a nearby Wendy’s and observed the suspect, who
wore a black hooded sweatshirt, jump out of the bushes and run across the parking
lot of Allstar Lanes. Officer M. Vega testified that the surveillance video at Allstar
Lanes showed him running after the subject through the parking lot, and the
suspect was later identified as defendant. Officer Vega chased defendant along the
north side of the bowling alley and into the backyard of a complex, where the
officer knocked down some trashcans. He exited onto Martinique Boulevard at the
same time that another officer stopped at the corner of Martinique and told him
that defendant did not exit onto the street. Officer M. Vega then discovered
23-KA-161 4
defendant, who was wearing the same clothing as the person being chased, inside
one of the trashcans, because defendant’s feet were hanging out.
Officer M. Vega identified a black hooded sweatshirt, light gray pants, and
an orange mask as the clothing worn by defendant. He also identified a cell phone
that had been found next to the suspect when he was pulled out of the trashcan. He
asked the suspect where the gun was, and defendant informed him that the gun was
still inside the vehicle. Officer M. Vega stated that the gun was found in the
victims’ vehicle along with one glove. The matching glove was found where
defendant had been hiding in the bushes. He testified that defendant’s shoes were
also found in the bushes and that defendant had run barefoot. Officer M. Vega
confirmed that he was on the scene when the victims identified defendant as the
person who forced them to enter the bank.
Mrs. Kokatnur testified that she and her husband have been married for fifty-
nine years; her husband was ninety years old and she was eighty-two years old at
the time of the incident. She and her husband met defendant through their gardener,
who brought him to their house to assist with work. She stated that she and her
husband liked defendant. They occasionally allowed him to complete tasks inside
their home and he sometimes ate a meal with them. On July 9, 2021, while she was
in the master bathroom, Mrs. Kokatnur heard “somebody with the black thing” but
she could not see his face, only his eyes, and that he had a gun. She stated: “Then I
could see his eyes were a little turned down, Alexy’s, and his gun was down. Then
I could see I know this person through his eyes. I felt it strong. I could see him.”
She stated that she could see “familiarness in him.” She explained that her husband
thought “it was him” and that he recognized defendant more than she did. When
asked if defendant pointed the gun at her, she answered, “[j]ust gun was there. No,
he didn’t point, he wanted to kill him maybe.”
23-KA-161 5
Mrs. Kokatnur testified that defendant instructed her to come out and told
her that he wanted $50,000 in cash. Mrs. Kokatnur stated that her husband was
doing laundry, and defendant said, “[w]here is your husband,” and “I want to kill
him.” She testified that she called her husband in their native language to tell him
to come out and that someone had a gun.3 When Dr. Kokatnur entered, defendant
stated, “I want fifty thousand dollars.” Mrs. Kokatnur explained that she lied and
told defendant that she could not go to the bank alone because she was unable to
write well in English, believing that this was the only way to save her husband.4
Afterward, Mrs. Kokatnur went to her vehicle, followed by her husband who
walked slowly due to arthritis. Defendant pushed her husband and told him to
move faster. As she drove to Chase Bank, her husband was in the front passenger
seat, and defendant sat behind him in the back seat while he held a gun to her
husband’s head and cursed at her. When they arrived, defendant wanted Mrs.
Kokatnur to enter the bank alone, but she told him that her husband had to
accompany her because he was the main person on the account. She testified that at
this time, defendant did not threaten them and the gun was on the seat. When they
entered the bank, the Kokatnurs told Mr. Kraus what was happening, and he called
the police.
Mrs. Kokatnur further testified that a female police officer informed her that
the suspect hid in a garbage can. A few minutes later, as they sat in the back seat of
a police vehicle, the Kokatnurs were asked to make an identification. Mrs.
Kokatnur confirmed that the police showed her the person who held her and her
husband at gunpoint. She stated, “I could see his figure and all. Like we could
3
Mrs. Kokatnur explained that they are from south of Bombay and speak “Marathi.”
4
When asked if defendant forced them into the vehicle, Mrs. Kokatnur explained:
No, no. What happened, then I said we had to go to the bank because—if he want. He was ready
to go to bank. But I think, if that would happen any really bad person, he would have killed us
right there, and money, you know. But he said, Take to the bank, you know. I said, [w]e have to
go to the bank. And then we’ll take out. Because I told him I cannot write that much English to
spell. I had to lie for my husband’s life. I lied. First time.
23-KA-161 6
recognize.” She recalled that an officer held onto him, but she could not see if he
was in handcuffs. She confirmed that the police told her that this was the person
who had been in their house.
After the trial court allowed the State to ask defendant to put on the mask
that previously had been admitted into evidence, Mrs. Kokatnur positively
identified defendant as the individual who was in her house that day. She
confirmed that defendant was the same person she was shown while they were in
the back of the police unit. She denied that she or her husband called the police and
told them that they had concerns about defendant being the perpetrator. She also
denied telling officers that the perpetrator had a Hispanic accent or that he was
wearing jeans.
After determining that the incident had begun in an unincorporated portion
of Jefferson Parish, the Kenner Police Department contacted the Jefferson Parish
Sheriff’s Office (JPSO) for purposes of taking over the investigation. Detective
Justin Jerry with the JPSO robbery section explained that certain items were
collected from the scene at Chase Bank, including a black glove and a loaded .38
special revolver containing six bullets found inside the victims’ vehicle. A pair of
Nike shoes and a matching glove were located in the bushes behind Wendy’s.
Photographs of all of these items were admitted into evidence. Detective Jerry
testified that surveillance video taken near defendant’s residence showed defendant
leaving his home wearing the same shoes; he further explained that when
defendant was found, he was not wearing shoes. Detective Jerry subsequently went
to the victims’ residence, determining that defendant entered through an unlocked
bathroom window. He stated that the victims did not tell him that they knew the
suspect, who was covered from “head to toe,” but they told him that the perpetrator
had a Hispanic accent. The victims said that defendant asked for various amounts
of money, ranging from $10,000 to $100,000.
23-KA-161 7
Detective Eric Hymel with the JPSO robbery section testified that he was the
lead investigator in this case. He explained that defendant was arrested at the scene
and was brought in for questioning. The JPSO recovered multiple surveillance
videos that assisted in the investigation.5 Detective Hymel stated that he reviewed a
report created by the digital forensic unit for a cell phone registered to “Alexy
Mejia,” which report had been produced pursuant to a search warrant. GPS
locations from the phone showed that the cell phone traveled along an area that
overlapped with the location of Chase Bank, noting that one of the “dots”
overlapped on Martinique Boulevard, where defendant was apprehended while
hiding in the trashcan.
Detective Hymel stated that he learned that a friend of both the victims and
defendant contacted the Kokatnurs to coordinate a meeting with defendant’s
mother and brother, so that they could ask the Kokatnurs for forgiveness and to ask
the district attorney’s office to drop the charges against defendant. Afterward, Mrs.
Kokatnur expressed her concerns to Detective Hymel about properly identifying
defendant, and, in light of her relationship with defendant, she had a hard time
comprehending that he would do this. Detective Hymel testified that Ms. Kokatnur
was “second guessing” herself. He reminded her of the information that she
already had provided and told her not to let anyone taint her original account of the
incident.6
James Carollo, formerly with the JPSO, conducted an interview of defendant
that was audio and video recorded. Portions of the interview were played for the
5
The detective explained that the surveillance videos were recovered from Chase Bank, a nearby
building, and defendant’s apartment complex. Except for the video from the apartment complex,
he agreed that the videos did not show defendant’s face. He believed that defendant wore shorts
and a t-shirt and was carrying a backpack and a garbage bag when defendant left his apartment.
He denied that defendant wore a mask, jeans, sweatpants, or a black hooded sweatshirt.
6
Detective Jerry corroborated that he was aware of at least one call by the victims in which they
expressed concern about defendant being the aggressor. He testified that they were informed that
defendant’s associates were contacting the victims and asking them not to pursue the case.
23-KA-161 8
jury. He testified that before taking defendant’s statement, he went through the
Juvenile Rights form with both defendant and his mother, obtaining assistance
from another JPSO officer, Detective Jesus Falcon, who served as an interpreter.
He said that the form was written in Spanish and English, and defendant was
advised of his rights in the presence of his mother. He indicated that defendant’s
mother was not in the room for the entirety of the interview because defendant did
not want her present.
JPSO Detective Jesus Falcon testified that his first language is Spanish, his
second language is English, and he often translates for other parties who speak
only Spanish. He confirmed that he assisted in advising defendant and his mother
of defendant’s rights, and stated that the entire conversation with defendant and his
mother was captured on video, which was played for the jury while he translated.
He read the form to defendant and his mother in Spanish and filled out the form as
they read along. Detective Falcon stated that defendant could speak English. He
indicated that defendant signed the form and waived his rights, and that Detective
Falcon and defendant’s mother then left the room.
In defendant’s statement given to Detective Charles Carollo after Detective
Falcon and defendant’s mother left the room, Detective Carollo asked defendant if
he knew the victims. Defendant stated in English that he knew them because he
worked for them until about a month before the incident. Defendant further
indicated to Detective Carollo that on the day of the incident, defendant’s friend
gave him a ride to the victims’ residence. After entering the backyard, defendant
entered their home through an unlocked bathroom window. Once inside, he told
the woman to give him money and pointed a gun at her. He had purchased the gun,
a black revolver, off the street in New Orleans for $300. Defendant motioned for
her to exit the room and he followed her, and she called out to her husband, whom
defendant had seen in the laundry room. Defendant stated that he told them to get
23-KA-161 9
$20,000; she informed him that she did not have any cash and would need to go to
the bank. After they denied having that amount, defendant agreed to $10,000.
Defendant stated that he told them to get in the vehicle, where the woman
was in the driver seat, her husband was in the passenger seat, and defendant was in
the back seat. He placed the gun on the center console of the vehicle and instructed
them not to ask questions and to drive. When they arrived at Chase Bank,
defendant told her to go inside alone, but she told him that she could not, and
defendant said “okay.” About ten minutes later, defendant saw a police car arrive,
so he exited the vehicle and started to run. He explained that he was not thinking
and did not take the gun with him. He told the detective that he tried to take his
mask off, but it was stuck, so he could not see. After he got the mask off, defendant
had difficulty running because his shoes kept coming off. He ran around Chase
Bank and through a shopping center parking lot before jumping inside a bush. He
placed his shoes there and threw his broken glasses on the ground. After a police
vehicle arrived, an officer exited the vehicle and turned near the bushes. Defendant
jumped out of the bushes and ran away, and when he turned around, he observed
the officer chasing him. He jumped inside a dumpster headfirst, but it fell over,
which was how the officer knew he was inside. While in the dumpster, he took his
phone out.
Defendant confirmed that he initially wore shorts and a jersey, which he
took off and, while in the victims’ backyard, he put on pants, Nike shoes, a jacket,
a bandana, an orange ski mask, and a pair of glasses. When asked by the detective
why he went to the victim’s residence, defendant responded that they were old and
vulnerable. He also said that the victims were a doctor and a teacher, and he
assumed that they had money. He explained that he planned to purchase a vehicle
with the money. Detective Carollo subsequently asked defendant about an alleged
accomplice who defendant had told the victims would blow up the victim’s house
23-KA-161 10
and kill them. Defendant explained that he told them this to threaten them and
stated that he was just trying to scare them.
ASSIGNMENTS OF ERROR
1. The Appellant’s rights to a fair trial and Due Process, under the
Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and Art. 1, §§ 2 and 16 of the Louisiana Constitution
of 1974, were violated when the trial court abused its discretion
and denied him the right to present his defense and right to
confront the victim.
2. The Appellant’s rights pursuant to the Fifth and Fourteenth
Amendments to the United States Constitution and Article 1 § 5
of the Louisiana Constitution of 1974 were violated with the
introduction of the statement at trial that was not free and
voluntary.
3. The sentence imposed by the trial court is unconstitutionally
excessive and the trial court failed to comply with the
requirements of La. C.Cr.P. art. 894.1 and the statutory mandates
of La. R.S. §15:574.4.
4. The testimony at trial was insufficient to prove an essential
element of the crime of Aggravated Kidnapping.
5. The trial court erred by failing to suppress the show up
identification made by both victims that was unduly suggestive.
DISCUSSION
Assignment of Error #4
We first address defendant’s fourth assignment of error, in which he argues
that the testimony at trial was insufficient to prove an essential element of the
crime of aggravated kidnapping. When the issues on appeal relate to both the
sufficiency of the evidence and one or more trial errors, the reviewing court should
first determine the sufficiency of the evidence by considering the evidence in its
entirety. State v. Hearold, 603 So.2d 731, 734 (La. 1992). The reason for
reviewing sufficiency first is that the accused may be entitled to an acquittal under
Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a
rational trier of fact, viewing the evidence in the light most favorable to the
prosecution in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
23-KA-161 11
61 L.Ed.2d 560 (1979), could not reasonably conclude that all of the essential
elements of the offense have been proved beyond a reasonable doubt. Hearold, 603
So.2d at 734. When addressing the sufficiency of the evidence, consideration must
be given to the entirety of the evidence, including inadmissible evidence that was
erroneously admitted, to determine whether the evidence is sufficient to support
the conviction. Id. See also State v. Griffin, 14-251 (La. App. 5 Cir. 3/11/15), 169
So.3d 473, 483.
The question of sufficiency of the evidence is properly raised in the trial
court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art.
821. State v. Leach, 22-194 (La. App. 5 Cir. 12/28/22), 356 So.3d 531, 541.
Defendant did not file such a motion in this case, but the failure to file a motion for
post-verdict judgment of acquittal does not preclude appellate review of the
sufficiency of the evidence. State v. Faciane, 17-224 (La. App. 5 Cir. 11/15/17),
233 So.3d 195, 205, writ denied, 17-2069 (La. 10/8/18), 253 So.3d 797.
The constitutional standard for sufficiency of the evidence is whether, upon
viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could find that the State proved all of the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319; State v.
Chinchilla, 20-60 (La. App. 5 Cir. 12/23/20), 307 So.3d 1189, writ denied, 21-274
(La. 4/27/21), 314 So.3d 838, cert. denied, -- U.S. --, 142 S.Ct. 296, 211 L.Ed.2d
138 (2021). This directive that the evidence be viewed in the light most favorable
to the prosecution requires the reviewing court to defer to the actual trier of fact’s
rational credibility calls, evidence weighing, and inference drawing. State v.
Clifton, 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 702. This deference to
the fact-finder does not permit a reviewing court to decide whether it believes a
witness or whether the conviction is contrary to the weight of the evidence. State v.
Hayman, 20-323 (La. App. 5 Cir. 4/28/21), 347 So.3d 1030, 1040. A reviewing
23-KA-161 12
court errs by substituting its appreciation of the evidence and the credibility of
witnesses for that of the fact-finder and overturning a verdict on the basis of an
exculpatory hypothesis of innocence presented to, and rationally rejected by, the
jury. State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310 So.3d 794, 804. As a
result, under the Jackson standard, a review of the record for sufficiency of the
evidence does not require the reviewing court to determine whether the evidence at
trial established guilt beyond a reasonable doubt, but instead whether, upon review
of the whole record, any rational trier of fact would have found guilt beyond a
reasonable doubt. Id.Evidence may be either direct or circumstantial. Circumstantial evidence
consists of proof of collateral facts and circumstances from which the existence of
the main fact can be inferred according to reason and common experience. State v.
Lloyd, 21-645 (La. App. 5 Cir. 8/24/22), 348 So.3d 222, 231, writ denied, 22-1354
(La. 11/22/22), 350 So.3d 499. Where circumstantial evidence forms the basis of a
conviction, the circumstances must be so clearly proven that they point not merely
to the possibility or probability of guilt, but to the moral certainty of guilt. State v.
Nelson, 14-252 (La. App. 5 Cir. 3/11/15), 169 So.3d 493, 501, writ denied, 15-685
(La. 2/26/16), 187 So.3d 468. “The rule as to circumstantial evidence is: assuming
every fact to be proved that the evidence tends to prove, in order to convict, it must
exclude every reasonable hypothesis of innocence.” Id. (citing La. R.S. 15:438).
This is not a separate test from the Jackson standard but rather provides a helpful
basis for determining the existence of reasonable doubt. State v. Manuel, 20-172
(La. App. 5 Cir. 6/2/21), 325 So.3d 513, 539, writ denied, 21-926 (La. 10/12/21),
325 So.3d 1071.
23-KA-161 13
Here, defendant challenges the sufficiency of the evidence only as to the
aggravated kidnapping convictions (counts one and two).7 The crime of aggravated
kidnapping is set forth in La. R.S. 14:44, which provides:
Aggravated kidnapping is the doing of any of the
following acts with the intent thereby to force the victim,
or some other person, to give up anything of apparent
present or prospective value, or to grant any advantage or
immunity, in order to secure a release of the person under
the offender’s actual or apparent control:
(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.
Defendant asserts that the evidence was insufficient to establish the element
of aggravated kidnapping that requires the forcible seizing and carrying of a victim
from one place to another. He contends that the State offered no direct evidence to
prove that defendant entered the residence with the intent to take the victims to the
bank. Instead, defendant claims that the evidence shows that the victims suggested
going to the bank in order to escape. Moreover, defendant points out that Dr.
Kokatnur did not testify at trial, and the bank manager’s testimony about Dr.
Kokatnur’s statements were inadmissible hearsay.
The State responds that the evidence was sufficient to allow a rational trier
of fact to conclude that defendant was guilty of aggravated kidnapping. The State
7
Even though the sufficiency of the evidence as to the aggravated burglary conviction (count
three) is not raised, our review of the record reveals that the State presented sufficient evidence
under the Jackson standard to establish the essential statutory elements of this charge under La.
R.S. 14:60. To prove the crime of aggravated burglary, the State must prove beyond a reasonable
doubt that the defendant made an unauthorized entry of a structure with the intent to commit a
theft or a felony. The State also must prove beyond a reasonable doubt one of the three
aggravating circumstances listed in La. R.S. 14:60. State v. Pike, 18-538 (La. App. 5 Cir. 5/8/19),
273 So.3d 488, 502, writ denied, 19-927 (La. 2/10/20), 292 So.3d 60. The State presented
sufficient evidence to prove that defendant was armed with a dangerous weapon in the
Kokatnur’s home after having unlawfully entered with the intent to commit a felony or theft
therein.
23-KA-161 14
contends that even if it is unclear who initially suggested going to the bank, the
evidence established that defendant forcibly seized the victims and forced them to
get in their car and drive to the bank with the intent to force them to turn over
money to secure their release.
Aggravated kidnapping is a specific intent crime. Proof of intent to extort
can be shown by “analyzing whether a reasonable person in the victim’s position
would believe that [he] would not be safely released unless [he] complied with the
kidnapper’s demands.” State v. Amos, 15-954 (La. App. 4 Cir. 4/6/16), 192 So.3d
822, 828 (citing State v. Arnold, 548 So.2d 920, 924 (La. 1989)).
In this case, the jury was instructed that aggravated kidnapping was the
forcible seizing and carrying of any person from one place to another. When the
State relies upon the “forcible seizing” provision of the aggravated kidnapping
statute, the State is required to prove: (1) the forcible seizing, and; (2) the carrying
of any person from one place to another (the asportation element); (3) with the
intent to force the victim, or some other person, to give up anything of apparent
present or prospective value (the extortion element); (4) in order to secure the
release of that person. State v. Roblow, 623 So.2d 51, 57 (La. App. 1st Cir. 1993)
(citing Arnold, 548 So.2d at 923). The term “from one place to another” requires
evidence that the offender relocated the victim from one physical setting or
environment to another. State v. Davillier, 99-1204 (La. 12/10/99), 752 So.2d 149,
150.
In Arnold, 548 So.2d at 920, the Louisiana Supreme Court held that there is
no question that a victim who was grabbed in the parking lot of a grocery store,
forced inside her truck, and threatened with a knife if she resisted, was forcibly
seized, and the first element was satisfied. The Court further found that the second
element was satisfied because the defendant drove the victim from one parking lot
to another in an attempt to isolate the victim from passersby. The Court determined
23-KA-161 15
that any rational trier of fact could have found that the essential elements of the
crime of aggravated kidnapping were proven beyond a reasonable doubt). See also
State v. Orbro, 10-1289 (La. App. 3 Cir. 5/4/11), 64 So.3d 410, 417-18, writ
denied, 11-1105 (La. 11/14/11), 75 So.3d 940 (finding sufficient evidence to
support a second-degree kidnapping conviction where the defendant, armed with a
pistol, forced his estranged wife from her place of business, through the parking
lot, and across the street while pointing a gun at her).8
Here, the evidence presented at trial was sufficient to prove that defendant
forcibly seized the victims and carried them from one place to another. Mrs.
Kokatnur’s testimony showed that defendant, while armed with a gun, forced the
victims to leave their home, get in their car, and drive to Chase Bank. On the way
to the bank, defendant held a gun to Dr. Kokatnur’s head. Mrs. Kokatnur stated on
several occasions that she was scared and she believed defendant would kill her
husband. She asserted that she lied to defendant in order to save her husband’s life.
Moreover, defendant confessed to the offenses in his videorecorded
statement. He informed the detective that Mrs. Kokatnur told him that they would
need to go to the bank for money. He told them to get in the car, where he claims
that he placed the gun on the center console of the vehicle and instructed the
Kokatnurs to not ask questions and to drive.
Defendant’s suggestion that the elements of aggravated kidnapping were not
met because the victims voluntarily got in their vehicle to travel to the bank is
belied by the evidence showing that defendant demanded money while he held a
loaded gun on the victims, hurried the Kokatnurs into the vehicle, and pointed the
gun at Dr. Kokatnur en route. The evidence also established that defendant told the
8
Although the crime at issue in Orbro was second-degree kidnapping, the First Circuit noted that
the “forcible seizing and carrying” elements are identical for aggravated kidnapping and second-
degree kidnapping, and therefore are useful in the analysis. State v. Westbrook, 14-1055 (La. App.
1 Cir. 12/23/14), 2014 WL 7338523, at *8 (unpublished opinion), writ denied, 15-175 (La.
11/30/15), 184 So.3d 32.
23-KA-161 16
victims that an accomplice would blow up their house and kill them if they did not
cooperate. Even if aggravated kidnapping was not defendant’s original intention
upon entering the victims’ residence, it became his intention when the victims said
that they did not have the money in their house. Defendant rode with the victims to
the bank while holding them at gunpoint, thereby escalating the situation. The
evidence in the record supports a finding that defendant forcibly seized and carried
the victims from one place to another in satisfaction of the elements of aggravated
kidnapping.
The jury heard all the evidence presented at trial and entered a unanimous
verdict of guilty. Viewing the evidence in a light most favorable to the prosecution,
a rational trier of fact could have found beyond a reasonable doubt that the
evidence was sufficient, under the standard set forth in Jackson, to support
defendant’s convictions for two counts of aggravated kidnapping. This assignment
of error lacks merit.
Assignment of Error #1
In this assignment of error, defendant argues that he was deprived of his
Fifth, Sixth, and Fourteenth Amendment rights to face his accuser when the trial
court precluded him from calling Dr. Kokatnur to testify at trial. Defendant asserts
that this prohibited his counsel from questioning this victim, thereby limiting the
defense’s ability to explore issues like misidentification, recantation, and the
elements of aggravated kidnapping. Defendant further asserts that the court
allowed testimony that contained inadmissible hearsay statements by Dr. Kokatnur.
Defendant claims that the victim’s unavailability to testify was not established on
the record, and the trial court made no effort to arrange for him to testify.
Defendant argues that the defense was lulled into a belief that this victim would be
called in the State’s case.
23-KA-161 17
The State responds that the trial court did not err in denying counsel’s oral
motion for mistrial when one of the victims did not testify at trial. The State argues
that defendant was not denied the ability to secure Dr. Kokatnur’s appearance at
trial, nor was defendant prohibited from doing so. The State claims that the defense
did not subpoena the victim or move to perpetuate his testimony despite being
advised on previous occasions that the victim’s health was declining. The State
further claims that the defense has not established that the victim was capable of
testifying at trial.
Additionally, the State contends that the complained-of hearsay testimony
was actually elicited during defense counsel’s cross-examination of Mrs. Kokatnur
about Dr. Kokatnur’s statements made to her, and that it resulted in a sustained
objection to hearsay. The State further denies that the trial court prevented the
defense from questioning Detective Jerry about Dr. Kokatnur’s identification and
maintains that the court allowed defense counsel to ask Detective Hymel about the
identification. Defendant therefore was not precluded from placing the information
related to Dr. Kokatnur’s identification before the jury. Regardless, the State
contends that any alleged error would be harmless error.
On the second day of trial, Mrs. Kokatnur testified that Dr. Kokatnur was at
home recovering because he had a small stroke. She indicated that he could talk,
“but very little,” and that he could take a walk at their home using a walker. When
asked by the defense if Dr. Kokatnur directly told her that he did not think
defendant was the person involved, Mrs. Kokatnur answered, “Yeah, he just in the
living room and he said, I think Alexsy came to our house. That’s what came in his
mind.” She reiterated that Dr. Kokatnur said, “I think it was Alexsy. That’s all he
say.” The trial judge sustained the State’s objection to hearsay.
Defense counsel subsequently asked JPSO Detective Jerry on cross-
examination if he interviewed the alleged victims, which he confirmed. When
23-KA-161 18
counsel attempted to ask Detective Jerry about Dr. Kokatnur’s percentage of
certainty of his identification, the State again objected that it was hearsay because
Dr. Kokatnur had not testified, and the trial court sustained the objection.9
Later, JPSO Detective Hymel testified that he met with the victims, and on
cross examination, defense counsel asked if Dr. Kokatnur said he was only “ninety
percent sure,” to which Detective Hymel agreed.
After the State rested its case, during another bench conference, defense
counsel moved for the matter to be dismissed. The trial court excused the jury and
the defense moved for a mistrial, alleging a Brady10 violation because the State
failed to disclose that Dr. Kokatnur would not be called as a witness. In response,
the State asserted that the defense was told about Dr. Kokatnur’s declining health
and that the State had asked defendant to pick a “date to perpetuate his testimony.”
The prosecutor explained that she personally visited Dr. Kokatnur in his home and
observed that he could not sit up or speak. In any event, the State maintained that
Dr. Kokatnur was not required to testify, even if his name appeared on the State’s
witness list.
Defense counsel alleged that there was no proof or evidence that Dr.
Kokatnur was unavailable and denied that he was asked to take his deposition for
perpetuation purposes. The trial court denied defendant’s motion for a mistrial.
When the jury returned, defense counsel said: “Your Honor, I’d like to call Mr.
Mohan Kokatnur to the witness stand.” The trial court denied the request.
“A mistrial is a drastic remedy and, except in instances in which a mistrial is
mandatory, is warranted only when trial error results in substantial prejudice to
defendant, depriving him of a reasonable expectation of a fair trial.” State v. Smith,
9
At a bench conference, defense counsel stated that he wanted to ask: “Basically, did he say that
he was only ninety percent sure that it was Mr. Mejia? If I would ask if he could identify him, he
said he was only ninety percent sure.” The court asked for the answer to the objection, and the
State replied, “He was ninety percent sure.”
10
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
23-KA-161 19
04-340 (La. App. 5 Cir. 10/26/04), 888 So.2d 280, 285. “Whether a mistrial should
be granted is within the sound discretion of the trial court and the denial of a
motion for mistrial will not be disturbed absent an abuse of that discretion.” Id.The standard to judge whether a mistrial should have been granted is whether the
defendant “suffers such substantial prejudice that he has been deprived of any
reasonable expectation of a fair trial.” State v. Smith, 433 So.2d 688, 696 (La.
1983) (citing State v. Cushenberry, 407 So.2d 700 (La. 1981)).11
The Sixth Amendment to the United States Constitution and Article I, § 16
of the Louisiana Constitution guarantee an accused in a criminal prosecution the
right to confront witnesses against him. State v. Jackson, 03-883 (La. App. 5 Cir.
4/27/04), 880 So.2d 841, 852, writ denied, 04-1399 (La. 11/8/04), 885 So.2d 1118.
In Crawford v. Washington, 541 U.S. 36, 53-4, 124 S.Ct. 1354, 1365, 158 L.Ed.2d
177 (2004), the Supreme Court held that the Confrontation Clause bars “admission
of testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” The Court held that the admission of a recorded statement made by
the defendant’s wife during interrogation violated the defendant’s right under the
Confrontation Clause because the statement was hearsay, because it was
testimonial in nature, and because his wife did not testify at trial due to the State’s
marital privilege. Id.Hearsay is an oral or written assertion, other than one made by the declarant
while testifying at the present trial, offered in evidence to prove the truth of the
matter asserted. La. C.E. art. 801. Hearsay evidence is not admissible except as
otherwise specified in the Code of Evidence or other legislation. La. C.E. art. 802.
11
Defendant does not argue on appeal that the trial court abused its discretion in denying his
motion for mistrial, and none of the instances in which a mandatory mistrial must be declared
appear to exist here. See La. C.Cr.P. art. 770.
23-KA-161 20
Hearsay is excluded because the value of the statement rests on the credibility of
the out-of-court asserter, who is not subject to cross-examination and other
safeguards of reliability. State v. Hernandez, 11-712 (La. App. 5 Cir. 4/10/12), 93
So.3d 615, 624, writ denied sub nom. State ex rel. Hernandez v. State, 12-1142
(La. 9/28/12), 98 So.3d 834. Although a statement may constitute inadmissible
hearsay, if the statement is merely cumulative or corroborative of other evidence,
the admission of the evidence is harmless error. State v. Hester, 99-426 (La. App. 5
Cir. 9/28/99), 746 So.2d 95, 107, writ denied sub nom. State v. Patterson, 99-3217
(La. 4/20/00), 760 So.2d 342.
Defendant complains that the State introduced multiple hearsay statements
of Dr. Kokatnur at trial but that the trial court refused to allow the defense to probe
into “this testimony as hearsay” by questioning Dr. Kokatnur directly. Defendant
further complains that he was not allowed to question Detective Jerry concerning
the lack of a positive identification by Dr. Kokatnur, because the trial court
sustained the State’s objection based on hearsay. The record reveals, however, that
the trial court subsequently allowed Detective Hymel to respond to defense
counsel’s question regarding Dr. Kokatnur’s identification. The record further
reveals that Mrs. Kokatnur’s complained-of testimony was actually elicited by the
defense. The Louisiana Supreme Court has held that defense counsel cannot claim
reversible error based on evidence that the defense elicited. State v. Kimble, 375
So.2d 924, 928-29 (La. 1979). On appeal, defendant does not point to any further
instances in which the defense objected to any witness testimony based on
allegations of hearsay.12
12
The defense elicited further details regarding the identification when cross-examining Officers
L. Vega and M. Vega. Moreover, defense counsel did not object to Mrs. Kokatnur’s testimony
regarding the identification, and on cross-examination, he elicited more information from her as
to the identification. See La. C.Cr.P. art. 841(A) (“An irregularity cannot be availed of after
verdict unless it was objected to at the time of occurrence.”).
23-KA-161 21
La. C.Cr.P. art. 61 provides, in pertinent part: “[T]he district attorney has
entire charge and control of every criminal prosecution instituted or pending in his
district, and determines whom, when, and how he shall prosecute.” Thus, the State
may choose to present its case through evidence and the testimony of only one of
the victims. Considering that the defense elicited certain hearsay testimony and
that Dr. Kokatnur’s testimony, had it been obtained, would have been cumulative
of other testimony given at trial, under these circumstances, we do not find that
defendant’s rights of confrontation were violated when Dr. Kokatnur failed to
testify.
Even if defendant’s right to confrontation was violated, however, such a
violation is subject to a harmless error analysis. State v. Payne, 17-553 (La. App. 5
Cir. 10/17/18), 258 So.3d 1015, 1023, writ denied, 18-1932 (La. 4/15/19), 267
So.3d 1122. An error is harmless when the guilty verdict surely was not
attributable to the error. Whether an error is harmless in a particular case depends
upon many factors, including: (1) the importance of the witness’s testimony; (2)
whether the testimony was cumulative in nature; (3) whether corroborating or
contradictory evidence regarding the major points of the testimony existed; (4) the
extent of cross-examination permitted; and (5) the overall strength of the State’s
case. Id.Dr. Kokatnur’s testimony was likely to have been cumulative of Mrs.
Kokatnur’s testimony and would have corroborated the key aspects of her version
of events. Mrs. Kokatnur’s identification of defendant as the perpetrator, as well as
her version of the events of that day, were further corroborated by law enforcement
testimony. Additionally, the State presented physical evidence such as gloves,
defendant’s cellphone, and Nike shoes that linked defendant to the suspect who
exited the victims’ vehicle at the bank and ran. Finally, the evidence includes
23-KA-161 22
defendant’s recorded confession. Thus, any error in the omission of Dr. Kokatnur’s
testimony at trial constituted harmless error. This assignment of error lacks merit.
Assignment of Error #2
Defendant argues in his second assignment of error that the trial court erred
in denying his motion to suppress the statement because it was obtained in
violation of his constitutional rights, as it was not free and voluntarily given. At the
time he provided a statement to law enforcement, defendant was only 16 years old
and although his mother was present for the discussion of his Miranda13 rights,
defendant claims that law enforcement ignored her requests for an attorney and
that the language barrier gave the officer the opportunity to rebuff his mother’s
inquiry about her son’s right to counsel. Defendant further argues that he and his
mother were not advised of the charges against him, and asserts that Detective
Falcon improperly translated during trial.
The State argues that defendant’s statement is admissible and that the
Juvenile Rights form was explained to defendant and to his mother, through a
translator, and defendant was less than four months away from his seventeenth
birthday and had completed the tenth grade. The State points out that defendant
and his mother were aware of the serious and violent nature of the offense, and the
video evidence of defendant’s statement shows that he wished to speak with the
detectives without his mother present. The State further maintains that defendant
mistakenly alleges that his mother invoked his right to counsel on his behalf.
Finally, the State argues that defendant has not alleged any prejudice concerning
Detective Falcon’s translation of the video.
13
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
23-KA-161 23
On August 25, 2022, the trial court held a hearing on defense counsel’s oral
motion to suppress identifications and statement.14 At the hearing, JPSO Detective
Falcon testified that on July 19, 2021, he was advised that someone who spoke
Spanish was needed to go over defendant’s Juvenile Rights form, that he is fluent
in Spanish, and that he often translates for other deputies who do not speak
Spanish. Detective Falcon testified that he went over defendant’s rights with
defendant and his mother, as enumerated in the Juvenile Rights Form, which was
written in both Spanish and English. He testified that defendant’s mother was in
the room when he went over the rights form, and that she and defendant both
signed the form, indicating that they understood defendant’s rights. The State
played a few seconds of the video, at which point Detective Falcon identified
himself, Detective Carrollo, defendant, and defendant’s mother, and the section of
the video in which he reviewed the rights form with defendant and his mother. The
trial court admitted the portion of the video showing defendant and his mother
being informed of defendant’s rights into evidence.
Detective Falcon explained that he made sure defendant’s mother
understood the form.15 He noted that defendant spoke English and Spanish
fluently, so he was interpreting for defendant’s mother only. Once the defendant
and his mother had been informed of defendant’s rights, Detective Falcon testified
that defendant asked his mother to leave, and Detective Falcon left as well.
14
A motion to suppress should be in writing. See State v. Simmons, 08-269 (La. App. 5 Cir.
10/28/08), 996 So.2d 1177, 1182 n.1, writ denied, 09-15 (La. 9/25/09), 18 So.3d 81 (citing State
v. Royal, 255 La. 617, 232 So.2d 292 (1970)).
15
Detective Falcon testified that the first section on page one regarding the Miranda warnings was
reviewed with both defendant and his mother but that there was no place for their signatures on
the first page. He pointed out that on page one, they were advised that the suspect could request
an attorney at any time during questioning. Detective Falcon agreed that the top section on page
two did not advise defendant or his mother that they had a right to have a lawyer present during
questioning. He noted that the top section said that the suspect has a right to stop answering
questions at any time. Detective Falcon further testified that the second section at the bottom of
page two titled, “Juvenile’s Waiver of Rights,” was only signed by defendant. He agreed that this
section did not advise defendant that he had the right to have an attorney present during
questioning.
23-KA-161 24
Detective Falcon testified that neither defendant nor anyone else indicated to him
that they wished to have a lawyer present. Detective Falcon believed that
defendant’s statement was free and voluntary.
The trial court denied defendant’s motion to suppress the statement and
identification at the conclusion of the suppression hearing. Defendant filed a writ
application challenging the trial court’s ruling.16 This Court denied the writ,
finding that the trial court did not abuse its great discretion in denying defendant’s
oral motion to suppress. Mejia, 22-K-461.
At the time that defendant’s statement was admitted into evidence at trial,
defense counsel re-urged the “original motion” to suppress, and the trial court
noted the objection from defendant but permitted the statement to be offered, filed
and introduced into the record. Although not required to do so, an appellate court
may review the testimony adduced at trial in addition to the testimony adduced at
the suppression hearing in determining the correctness of the trial court’s pretrial
ruling on a motion to suppress. State v. Mitchell, 15-524 (La. App. 5 Cir. 12/9/15),
182 So.3d 365, 373.
At trial, Detective Falcon was subject to more in-depth questioning than at
the suppression hearing, and he translated for the jury the portion of the video
pertaining to notifying defendant and his mother of defendant’s rights. Although
16
In his writ application, defendant argued that his statement was obtained in violation of his
constitutional rights; that the evidence did not show that he was fully advised of his Miranda rights
before he made the statement; that it was unclear if he was informed of his right to have an attorney
present before and during questioning; and that the Miranda warnings given to him were
ambiguous at best, and therefore, his statement should have been suppressed. Defendant noted that
the first page of the Juvenile Rights Form introduced at the hearing states that the suspect has the
right to talk with a lawyer before being asked any questions and to have a lawyer present during
questioning, but this page is not signed or acknowledged by him or his mother. Defendant asserted
that the signed acknowledgement by his mother on the second page acknowledges that his mother
advised him only that he had the right to an attorney appointed to represent him without cost to
him. He also asserted that his mother never acknowledged that she advised him that he had the
right to talk with a lawyer for advice before he was asked any questions and to have the lawyer
with him during questioning. Further, defendant argued that he was not personally informed that
he had the right to talk with a lawyer before questioning and have the lawyer with him during
questioning, as reflected by the portion of the form that was left blank. Additionally, he pointed
out that Detective Falcon testified at the hearing that immediately after executing the form, his
mother left the room. Thus, his mother was not present with him during his interrogation.
23-KA-161 25
the defense objected because Detective Falcon was not a certified interpreter,
defendant never objected on the basis that defendant’s mother had invoked his
right to counsel or that defendant was not properly informed of the charges against
him.17
On appeal, defendant attempts to offer these new arguments in favor of
suppressing the statement for the first time. Yet defendant did not file a written
motion to suppress and did not present these arguments at the suppression
hearing.18
La. C.Cr.P. art. 841(A) provides: “An irregularity or error cannot be availed
of after verdict unless it was objected to at the time of occurrence.” Articulating a
new basis for the motion to suppress for the first time on appeal is prohibited under
La. C.Cr.P. art. 841, because the trial court would not be afforded an opportunity to
consider the merits of the particular claim. State v. Berroa-Reyes, 12-581 (La. App.
5 Cir. 1/30/13), 109 So.3d 487, 496.19 As such, in failing to object on these
grounds at trial, defendant waived these issues on appellate review.
Moreover, Detective Falcon’s trial testimony regarding the circumstances
surrounding defendant’s statement appears to be largely consistent with the
testimony presented at the suppression hearing. As such, to the extent that
17
Detective Falcon testified at trial that he told defendant’s mother that defendant was charged
with attempted armed robbery—that a firearm was involved—and that she understood this.
18
Defendant primarily argued in his writ application that the Miranda warnings he was given were
ambiguous, and that his mother was absent when he gave his statement. See 22-K-461.
19
A defendant bears the burden of asserting the basis for his motion to suppress in order to give
the State adequate notice so that it may present evidence and address the issue. La. C.Cr.P. art.
703(E); State v. Jackson, 04-1388 (La. App. 5 Cir. 5/31/05), 904 So.2d 907, 911, writ denied, 05-
1740 (La. 2/10/06), 924 So.2d 162; State v. Smith, 94-120 (La. App. 5 Cir. 5/31/94), 638 So.2d
452, 455. After the defendant files a motion to suppress, the State has the burden to prove the
defendant’s confession was of a free and voluntary nature. La. C.Cr.P. art. 703(D); Jackson,
supra. Therefore, on appeal, the defendant is limited to the grounds he articulated at trial, and a
new basis for the claim, even if it would be meritorious, cannot be raised for the first time on
appeal. State v. Sam, 11-469 (La. App. 5 Cir. 2/14/12), 88 So.3d 580, 585, writ denied, 12-631
(La. 9/12/12), 98 So.3d 301. See also La. C.Cr.P. art. 703(F); State v. Montejo, 06-1807 (La.
5/11/10), 40 So.3d 952, 967, cert. denied, 562 U.S. 1082, 131 S.Ct. 656, 178 L.Ed.2d 513(2010); State v. Brown, 434 So.2d 399 (La. 1983) (rejecting the defendant’s alternative argument
regarding the denial of his motion to suppress because he had not raised the issue at trial).
23-KA-161 26
Detective Falcon’s additional testimony constitutes new evidence, it does not alter
this Court’s previous determination that the trial court did not err in denying the
motion to suppress defendant’s statement.
Defendant also takes issue with the fact that at trial, Detective Falcon
translated the portion of defendant’s statement in which he went over the Juvenile
Rights Form with defendant and his mother. During the trial testimony, the defense
objected to the video being played for the jury, arguing there was no English
translation of what Detective Falcon said to defendant’s mother. The prosecutor
therefore asked Detective Falcon to translate, and defense counsel objected,
arguing that Detective Falcon was not offered as an interpreter. Detective Falcon
confirmed that he is not certified by the Louisiana Supreme Court as an interpreter.
The trial court overruled counsel’s objection.
La. C.E. art. 604 provides that an interpreter is subject to the provisions of
the Code of Evidence relating to qualification as an expert and the administration
of an oath or affirmation that he will make a true translation. An interpreter of
foreign-language testimony must be competent and qualified by virtue of
knowledge, skill, experience, training, or education, have no substantial interest in
the proceedings, and be sworn to give a true bilateral translation of the questions
and answers given during testimony. Thongsavanh v. Schexnayder, 09-1462 (La.
App. 1 Cir. 5/7/10), 40 So.3d 989, writ denied, 10-1295 (La. 9/24/10), 45 So.3d
1074. An interpreter should be a neutral and detached individual whose abilities
are first screened by the court and who is sworn to make a true, literal and
complete bilateral translation. State v. Tamez, 506 So.2d 531, 533 (La. App. 1 Cir.
1987).
We have located no Louisiana cases directly on point, but in People v.
Munoz-Casteneda, 300 P.3d 944, 947 (Colo. App. 2012), cert. denied, 2013 WL
1409900 (2013), the defendant contended that the trial court erred by allowing the
23-KA-161 27
detective who interrogated him to translate the recorded interrogation during his
trial testimony without meeting the requirements for interpreters set forth in
Federal Rules of Evidence 604 and 702. The court discussed the functional
distinction between court-certified interpreters and fact witnesses, concluding that
as long as the translating witness has personal knowledge of the relevant
conversation or evidence, is capable of testifying to a translation of its contents
without misleading the jury, and is subject to cross-examination, he may testify
without first being certified as an interpreter. Munoz-Casteneda, 300 P.3d at 948-
49.
Here, Detective Falcon was present at the interview only to interpret
defendant’s rights for his mother. Although Detective Falcon was not certified or
sworn by the court as an official interpreter, he had personal knowledge of the
relevant conversation, there is no indication that he was not sufficiently capable of
translating a recording of the conversation without misleading the jury, and he was
subject to extensive cross-examination by defense counsel. As such, we see no
error in the trial court’s decision to overrule defendant’s objection and to permit
Detective Falcon to translate for the jury his conversation with defendant and his
mother.
Defendant’s second assignment of error lacks merit.
Assignment of Error #5
In this assignment of error, defendant maintains that the trial court erred in
denying his motion to suppress identifications because the victims identified him
during an impermissibly suggestive “show-up” procedure. He contends that the
victims, who were driven to the location and viewed him from the back seat of a
police unit, identified him only by his clothing and his body stature. Defendant
further points out that Mrs. Kokatnur testified that a police officer told her that he
was found hiding in a garbage can. He argues that the identifications by the victims
23-KA-161 28
were tentative at best, noting Mrs. Kokatnur’s testimony that her husband
recognized defendant more than she did. As such, defendant contends that the
convictions should be reversed.
The State posits that this Court correctly denied defendant’s writ application
seeking review of the trial court’s judgment denying defendant’s pre-trial motion
to suppress. See State v. Mejia, 22-K-461. In any event, the State argues that any
error in refusing to suppress the victims’ identification would be harmless because
the identification was merely cumulative of other testimony.
Defendant’s arguments on appeal are similar to those set forth in his prior
writ application. However, on appeal, defendant references the trial testimony from
Officer L. Vega and Mrs. Kokatnur, who did not testify at the suppression hearing.
Specifically, defendant asserts that Mrs. Kokatnur’s trial testimony revealed that
the police told her that the individual they were identifying was found hiding in a
garbage can.
A trial court is afforded great discretion when ruling on a motion to
suppress, and its ruling will not be disturbed absent an abuse of that discretion.
State v. McQuarter, 19-594 (La. App. 5 Cir. 11/25/20), 305 So.3d 1055, 1073, writ
not considered, 21-295 (La. 8/6/21), 322 So.3d 247. In determining whether the
trial court’s ruling on a defendant’s motion to suppress is correct, an appellate
court is not limited to the evidence adduced at the suppression hearing but may
also consider the evidence presented at trial. Berroa-Reyes, 109 So.3d at 495.
Pursuant to La. C.Cr.P. art. 703(D), defendants have the burden of proof on
a motion to suppress an out-of-court identification. State v. Newsome, 19-439 (La.
5/28/19), 273 So.3d 305, 306. A defendant challenging an identification procedure
has the burden of proving that the identification was suggestive, and there was a
substantial likelihood of misidentification as a result of the identification process.
An identification procedure is suggestive if, during the procedure, the witness’s
23-KA-161 29
attention is unduly focused on the accused. Even if an identification procedure is
suggestive, it is the likelihood of misidentification, not the mere existence of
suggestiveness, which violates due process. State v. Torrence, 14-819 (La. App. 5
Cir. 2/25/15), 168 So.3d 870, 876, writ denied, 15-627 (La. 2/5/16), 186 So.3d
1163.
Fairness is the standard of review for identification procedures, and
reliability is the linchpin in determining the admissibility of identification
testimony. Factors to consider in assessing the reliability of an identification
include: (1) the witness’s opportunity to view the criminal at the time of the crime;
(2) the witness’s degree of attention; (3) the accuracy of his prior description of the
criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the
time between the crime and the confrontation. Torrence, 168 So.3d at 876; State v.
Walker, 10-536 (La. App. 5 Cir. 5/10/11), 66 So.3d 486, 492, writ denied, 11-1103
(La. 11/23/11), 76 So.3d 1149 (citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct.
2243, 2253, 53 L.Ed.2d 140 (1977)).
Although show up or one-on-one identifications are not favored in law,
circumstances may justify the use of such procedures. One such exception is when
the suspect is apprehended and viewed soon after the crime. Such immediate
identifications increase accuracy in identification and provide for the expeditious
release of innocent suspects. Torrence, 168 So.3d at 876.
At the suppression hearing, Detective Brad Ricke with the Kenner Police
Department testified that he responded to the scene at the Chase Bank located on
Williams Boulevard in Kenner. He explained that he was asked by one of the
patrol division supervisors to place the two victims in the back of his unit because
it was raining on and off. He was then asked to bring them to where the subject
was detained for a “show up” identification. He drove to where the subject was
detained with the two victims in the back of his unit approximately thirty minutes
23-KA-161 30
after the offense. He asked the victims if they recognized the subject, and they
stated that they did, making a positive identification. He did not fully interview
them after the identification, but the victims indicated that they knew defendant
because “he was a groundkeeper or a gardener or something of that sort at their
house.” They stated that they recognized him as the perpetrator and that they also
recognized him because he was their groundskeeper or gardener. The show up took
approximately two minutes and the victims “got full view of him” about thirty
yards away in a “pretty empty parking lot.”
Detective Ricke testified that he made sure that the victims could see the
defendant clearly, and they stated that they could, viewing him through the
windshield and between both of the front seats. Detective Ricke noted that he
parked with the front of his vehicle facing defendant and did not have a cage in the
back of his unit. Detective Ricke believed defendant was handcuffed, standing next
to a patrol car, and that an officer accompanied him. To the detective’s
recollection, there was no other person visible in the general area. Detective Ricke
did not recall what defendant was wearing. Detective Ricke denied getting into the
details of the crime with the victims.
At trial, the testimony of Officers M. Vega and L. Vega regarding the
circumstances of defendant’s identification appears to be largely consistent with
that presented at the suppression hearing. Officer L. Vega described that for the
identification procedure, the victims were placed in the back of a police unit, the
suspect was presented, and the victims positively identified him from his clothing
and his body stature. She indicated that the victims were only shown the
perpetrator, who was alone, handcuffed, and near a police unit. Officer M. Vega
stated that he was on the scene when defendant was taken out of the back of a
police car and the victims identified defendant. He indicated that the victims were
also in an unmarked police car at the time. Officer Vega explained that he only
23-KA-161 31
knew defendant was positively identified as the subject who forced them into the
bank.
At trial, Mrs. Kokatnur confirmed that the police asked her to do an
identification, and they told her and her husband to sit in a police vehicle. She
indicated that they stopped the car and showed the suspect to her as she and her
husband looked out of the front window of the police car. She confirmed that she
was shown the individual who held her and her husband at gunpoint. She
described, “I could see his figure and all. Like we could recognize.” She said that
the “police lady” told them: “Don’t worry, we caught him, he was hiding in the
garbage can.” She further indicated that the suspect was fifteen feet away from
them. Defense counsel asked: “And the police told you that that was the person
that was at your house?” She replied “yes.” She denied knowing what kind of
clothing the suspect wore.
In State v. Robinson, 09-922 (La. App. 4 Cir. 3/10/10), 50 So.3d 158, 165-
66, writ denied, 10-824 (La. 11/5/10), 50 So.3d 813, the Court found that the show
up identification was clearly suggestive where the victim identified the defendant
after the defendant was placed in the middle of a neutral ground, handcuffed,
bleeding, and surrounded by police. Further, shortly before the identification, one
of the officers said that the police had apprehended one of the men who robbed the
victim. However, the Court concluded that the circumstances did not indicate there
was a substantial likelihood of misidentification after applying the Manson factors
to the totality of the circumstances, noting that the police arrived on the scene
before the victim finished talking to the 9-1-1 operator, the victim identified the
defendant within twenty to twenty-five minutes of the robbery, the victim was
certain of his identification of the defendant because the defendant had pointed a
gun at him, the victim knew the defendant’s eyes and face because the defendant
23-KA-161 32
had “looked dead at [him]” during the robbery, and the victim’s description was
consistent throughout the process.
In State v. Briley, 13-1421 (La. App. 4 Cir. 10/1/14), 151 So.3d 633, the
court of appeal found that an arguably suggestive show-up identification procedure
after a robbery did not result in a likelihood of misidentification. There, the
defendant was in the spotlight, handcuffed, flanked by at least one officer, and the
hood of his sweatshirt was raised over his head and lowered. The Briley court
applied the Manson factors, reasoning that the defendant’s show-up identification,
although arguably suggestive, did not create a substantial likelihood of
misidentification, considering that the victim had ample lighting and an
opportunity to view the perpetrator at the time of the crime; the victim’s attention
was focused on the perpetrator; the victim’s description of the defendant to the
police; the certainty of his identification, although he was nervous and “kind of
freaked out at first;” and approximately twenty hours had lapsed between the crime
and the identification. Id. at 644-46. See also State v. Glenn, 49,705 (La. App. 2
Cir. 2/26/15), 162 So.3d 525, 529-30 (finding that although the identification
procedure was arguably suggestive, the totality of the circumstances did not
indicate that there was a substantial likelihood of misidentification).
The victims in the present case did not testify at the suppression hearing.
However, Detective Ricke’s testimony indicates that the positive identifications
took approximately two minutes. The victims were able to see the suspect clearly,
and they knew defendant through his prior employment at their house. The
identifications were made approximately thirty minutes after the offense. See State
v. Brown, 09-884 (La. App. 4 Cir. 3/31/10), 36 So.3d 974, 980, writ denied sub
nom. State ex rel. Brown v. State, 10-1120 (La. 4/29/11), 62 So.3d 105 (noting that
when considering the length of time between the crime and the confrontation,
“[t]his temporal factor is generally satisfied when the identification occurs within
23-KA-161 33
an hour of the crime.”). The circumstances of this case appear to justify this show-
up procedure as defendant was apprehended shortly after the offense.
Although the show-up identification was suggestive because of its undue
focus on defendant, we find no substantial likelihood of misidentification under the
circumstances of this case, given that the victims already knew defendant. See
State v. Winding, 00-364 (La. App. 4 Cir. 4/11/01), 787 So.2d 385, 390, writ
denied, 01-1445 (La. 4/19/02), 813 So.2d 417 (“Because both witnesses already
knew the defendant, there was not a substantial likelihood of misidentification
from the use of the one-on-one identification procedure.”); State v. Love, 611
So.2d 753, 755 (La. App. 4 Cir. 1992), writ denied, 93-1384 (La. 12/15/95), 664
So.2d 434 (finding no substantial risk of misidentification in the one-on-one
identification).
Based on the testimony elicited at the suppression hearing and at trial, we
find no error in the trial court’s ruling denying the motion to suppress the show-up
identifications. The positive identifications took approximately two minutes and
were made shortly after the offense. The victims were able to clearly see the
suspect, whom they knew before the incident, at the time of the identifications.
Defendant’s fifth assignment of error lacks merit.
Assignment of Error #3
Defendant argues in his third assignment of error that his sentences are
constitutionally excessive and that the trial court failed to comply with the
requirements of La. R.S. 894.1 and the statutory mandates of La. R.S. 15:574.4
when sentencing him. He avers that there were several mitigating factors, and that
the court failed to consider the constitutional and statutory provisions that relate to
sentencing of juvenile offenders under Miller v. Alabama and its progeny.20
20
In Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2466, 183, L.Ed.2d 407 (2012), the
United States Supreme Court held that a State’s sentencing scheme that mandates life
imprisonment without parole for those offenders under the age of eighteen at the time they
23-KA-161 34
Defendant maintains that he is subject to parole after serving twenty-five years of
his sentence pursuant to La. R.S. 15:574.4(D) and La. R.S. 15:574.4(J).
The State contends that the trial court did not abuse its broad sentencing
discretion, and that the trial court did not fail to consider the factors set forth in La.
C.Cr.P. art. 894.1. The State also asserts that the trial court noted that defendant
will be eligible for parole consideration under La. R.S. 15:574.4.
At the November 9, 2022 sentencing hearing , the State presented a victim
impact statement from the victims and a letter from Sharmila Mulkey, the victims’
daughter, who discussed the negative impact that the perpetrator had on her
parent’s outlook on safety in their home. The trial court then set forth detailed
reasons for defendant’s sentence. Among other factors, the trial court noted the
advanced age of the victims; the fact that defendant used a dangerous weapon to
threaten them; that defendant told the victims he had an accomplice who would
burn their house down if they called the police; defendant’s deliberate cruelty
toward people who previously had been kind to him; and defendant’s admission
that he preyed on them because they were old and couldn’t fight back, referencing
La. C.Cr.P. art. 894.1.
On counts one and two, the trial court sentenced defendant to life
imprisonment at hard labor without the benefit of parole, probation, or suspension
of sentence for the offenses of aggravated battery. On count three, the trial court
sentenced defendant to thirty years at hard labor without the benefit of parole,
probation, or suspension of sentence, and ordered the sentences to be served
concurrently. The trial court discussed the applicability of La. R.S. 15:574.4,
explaining that he believed the statute “operates by operation of law.” The record
does not reflect that defendant orally objected at sentencing.
committed a homicide offense violates the Eighth Amendment prohibition against cruel and
unusual punishment.
23-KA-161 35
On December 2, 2022, defense counsel filed a motion to reconsider
sentence, asserting that the imposed sentences were excessive and harsh in light of
defendant’s age and circumstances. On December 9, 2022, the trial court denied
the motion to reconsider sentence without a hearing.
Failure to make or file a motion to reconsider sentence, or to state the
specific grounds upon which the motion is based, limits a defendant to a review of
the sentence for constitutional excessiveness only. State v. Smith, 16-406 (La. App.
5 Cir. 8/30/17), 227 So.3d 337, 363, writs denied, 17-1643 (La. 9/14/18), 252
So.3d 481, and 17-1660 (La. 9/14/18), 252 So.3d 482. When the specific grounds
for objection to the sentences, including alleged non-compliance with La. C.Cr.P.
art. 894.1, are not specifically raised in the trial court, then these issues are not
included in the bare review for constitutional excessiveness, and the defendant is
precluded from raising these issues on appeal. State v. Clark, 19-518 (La. App. 5
Cir. 6/24/20), 296 So.3d 1281, 1291, writ denied, 21-62 (La. 3/9/21), 312 So.3d
585. While the record reflects that defense counsel filed a written motion to
reconsider sentence, counsel did not specifically raise the issue of the trial judge’s
lack of compliance with La. C.Cr.P. art. 894.1.
The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the
Louisiana Constitution prohibit the imposition of excessive punishment. State v.
Rubio, 22-205 (La. App. 5 Cir. 12/28/22), 357 So.3d 413, 421, writ denied sub
nom. Southland Engine Company, Inc. v. State, 23-67 (La. 3/28/23), 358 So.3d
518. A sentence is considered excessive, even if it is within the statutory limits, if
it is grossly disproportionate to the severity of the offense, or imposes needless and
purposeless pain and suffering. State v. Cepriano, 21-262 (La. App. 5 Cir.
3/30/22), 339 So.3d 32, 46.
According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside
a sentence for excessiveness if the record supports the sentence imposed. State v.
23-KA-161 36
Woods, 20-73 (La. App. 5 Cir. 9/9/20), 303 So.3d 403, 406, writ denied, 21-27 (La.
2/17/21), 310 So.3d 1150. In reviewing a sentence for excessiveness, the reviewing
court shall consider the crime and the punishment in light of the harm to society
and gauge whether the penalty is so disproportionate as to shock the court’s sense
of justice, while recognizing the trial court’s wide discretion. Id.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. Hayman, 347 So.3d at 1043. There is no requirement that specific
matters be given any particular weight at sentencing. State v. Picard, 19-593 (La.
App. 5 Cir. 3/17/21), 316 So.3d 129, 140, writ denied, 21-570 (La. 6/22/21), 318
So.3d 704.
Generally, maximum sentences are reserved for cases involving the most
serious violations of the offense charged and the worst type of offender. Hayman,
347 So.3d at 1043. The trial judge is granted great discretion in imposing a
sentence, and sentences will not be set aside as excessive absent clear abuse of that
broad discretion. State v. Brown, 01-41 (La. App. 5 Cir. 5/30/01), 788 So.2d 694,
704-05.
Regarding the nature of the crime, the evidence indicates that on July 9,
2021, a masked male, identified as defendant, entered the elderly victims’
residence through an unlocked bathroom window armed with a gun, pointed the
gun at the victims, and demanded money from them. He also threatened to kill Dr.
Kokatnur and told the Kokatnurs that an accomplice would blow up their house
and kill them in order to scare them. During the drive to the bank, defendant held a
gun to Dr. Kokatnur’s head and cursed at Mrs. Kokatnur. The bank’s branch
manager recalled that Mrs. Kokatnur was hysterical and was crying. Law
enforcement officers testified that defendant then exited the vehicle, fled the scene
23-KA-161 37
on foot, and was later apprehended. The detectives found a loaded revolver inside
of the victims’ vehicle.
At trial, Mrs. Kokatnur described being scared by the incident. At
sentencing, the victims’ impact statements discussed the impact that the crime had
on their family and explained that the victims had been terrified. Their statement
indicated that they begged defendant not to hurt them.
Contrary to defendant’s assertions, the trial court considered the sentencing
guidelines of La. C.Cr.P. art. 894.1 and provided detailed reasons for the sentences
imposed.21 The trial court further considered that the incident could have resulted
in a double homicide.
As to the background of the offender, although defendant was 16 years old
at the time of the offenses and appears to have no criminal history, his actions
showed extreme disregard for the safety of the victims, whom he knew through his
prior employment. Trial testimony also established that defendant’s family
contacted the victims in an effort to influence the Kokatnurs to drop the charges.
Additionally, the trial court considered the harmful nature of the offense and the
fact that defendant targeted an elderly couple, who previously had employed him.
Notwithstanding defense counsel’s assertions, the trial court did consider
defendant’s young age at sentencing, but the court also pointed out that defendant
“terrorized” the elderly victims, whom he described as “vulnerable.”
The third factor requires consideration of sentences imposed for similar
crimes by this Court and other courts. “Although a comparison of sentences
21
For example, the trial judge listed several sections of La. C.Cr.P. art. 894.1, including but not
limited to finding that defendant’s conduct during the “commission of the offense manifested
deliberate cruelty to the victim,” and that defendant “knew or should have known that the victim
of the offense was particularly vulnerable or incapable of resistance due to extreme youth,
advanced age, disability, or ill health,” he “used his or her position to facilitate the commission of
the offense,” he “knowingly created a risk of death or great bodily harm to more than one person,”
he “used threats of or actual violence in the commission of the offense,” and he “used a dangerous
weapon in the commission of the offense.”
23-KA-161 38
imposed for similar crimes may provide guidance, ‘[i]t is well settled that
sentences must be individualized to the particular offender and to the particular
offense committed.’” State v. Boudreaux, 11-1345 (La. App. 4 Cir. 7/25/12), 98
So.3d 881, 891, writ denied, 12-1907 (La. 11/9/12), 100 So.3d 841. While
comparison with other similar cases is useful in itself and sets the stage, the focus
of sentence review remains on the character and propensities of the offender and
the circumstances of the offense. State v. LeBlanc, 09-1355 (La. 7/6/10), 41 So.3d
1168, 1173.
Aggravated Kidnapping (counts one and two)
Defendant was convicted of two counts of aggravated kidnapping. The
penalty for aggravated kidnapping is life imprisonment at hard labor without
benefit of parole, probation, or suspension of sentence. La. R.S. 14:44. Louisiana
courts have affirmed life sentences for aggravated kidnapping. See, e.g., State v.
Gibson, 15-1390 (La. App. 4 Cir. 7/6/15), 197 So.3d 692, writ not considered, 15-
1530 (La. 6/5/17), 219 So.3d 337; State v. Lebreton, 03-321 (La. App. 4 Cir.
10/8/03), 859 So.2d 785, 798, writ denied, 03-3176 (La. 3/26/04), 871 So.2d 345;
State v. Hawkins, 99-217 (La. App. 5 Cir. 7/2/99), 740 So.2d 768; and State v.
Spitz, 93-2070 (La. App. 1 Cir. 12/22/94), 650 So.2d 271, writ denied, 95-742 (La.
9/1/95), 658 So.2d 1269.22
Here, defendant generally asserts that his convictions for aggravated
kidnapping are excessive. In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176
L.Ed.2d 825 (2010), the Supreme Court found that the life sentence for juvenile
offenders convicted of non-homicide offenses was not unconstitutional.
Furthermore, the mandatory life sentence for aggravated kidnapping has been
upheld as constitutional. See Gibson, 197 So.3d at 700.
22
These cases do not involve a defendant who was a juvenile at the time of the offenses, however.
23-KA-161 39
In addition, while defendant generally asserts that his sentences are
excessive, he did not specifically request a downward departure under Dorthey.23
Even if he had done so, however, defendant has not rebutted the presumption that
the mandatory minimum sentence is constitutional by clear and convincing
evidence that he is exceptional so as to justify a downward departure. The trial
court’s imposition of the mandatory life sentence is supported by the relevant
jurisprudence. See, e.g., State v. Barrett, 51,921 (La. App. 2 Cir. 4/11/18), 247
So.3d 164, 168-72, writ denied, 18-744 (La. 2/18/19), 265 So.3d 770 (finding that
La. R.S. 14:42(D) mandated the imposition of a life sentence for an aggravated
rape conviction).
Further, defendant asserts that because he is a juvenile offender, he was
entitled to parole eligibility after twenty-five years pursuant to La. R.S.
15:574.4(D). In Graham, the United States Supreme Court held that the Eighth
Amendment precludes sentencing a juvenile to life imprisonment without the
possibility of parole for a non-homicide offense. 560 U.S. at 82. Following
Graham, the Louisiana Supreme Court held that the appropriate remedy for
sentences of life without parole under Graham is to delete the restriction on parole
eligibility. State v. Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939, 942. In such
cases, the juvenile defendant must be given “some meaningful opportunity to
23
In State v. Dorthey, 623 So.2d 1276 (La. 1993), the Louisiana Supreme Court recognized that a
mandatory minimum sentence under the Habitual Offender Law may still be reviewed for
constitutional excessiveness. In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676, the
Louisiana Supreme Court re-examined Dorthey and outlined the criteria a defendant must meet in
order to show that a mandatory minimum sentence under the Habitual Offender Law is
constitutionally excessive. In order to rebut the presumption that a mandatory minimum sentence
is constitutional, the defendant must clearly and convincingly show that he is “exceptional, which
... means that because of unusual circumstances this defendant is a victim of the legislature’s failure
to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of
the offense, and the circumstances of the case.” Johnson, 709 So.2d at 676. A sentencing court
should exercise its authority to declare excessive a mandatory minimum sentence only under rare
circumstances. State v. Lindsey, 99-3302 (La. 10/17/00), 770 So.2d 339, 345, cert. denied, 532
U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001).
23-KA-161 40
obtain release based on demonstrated maturity and rehabilitation.” Id. at 941
(quoting Graham, 560 U.S. at 75, 130 S.Ct. at 2030). The Shaffer court concluded:
We therefore amend the sentence of [defendant] to delete
the restriction on parole eligibility…We reiterate that this
Court is not ordering relators released on parole. The
determination of whether relators may be released on
parole falls within the exclusive purview of the Board of
Parole, charged with the duty of ordering parole “only for
the best interest of society, not as an award of clemency.”
La. R.S. 15:574.4.1(B). Access to the Board’s
consideration will satisfy the mandate of Graham.
Id. at 942-43.
Here, in accordance with Graham and Shaffer, the appropriate remedy for
defendant’s sentences of life imprisonment without parole on counts one and two
is to amend the life sentences to make defendant eligible for parole consideration
pursuant to the criteria set forth in La. R.S. 15:574.4(D). Accordingly, the
Department of Corrections is ordered to revise defendant’s prison master. See
Barrett, 247 So.3d at 172 (modifying the life sentence to make the defendant
eligible for parole consideration under the criteria set forth in La. R.S. 15:574.4(D),
and ordering the Department of Corrections to revise the defendant’s prison master
to reflect that his sentence is no longer without benefit of parole); State v. Jenkins,
15-1694 (La. App. 1 Cir. 4/15/16), 193 So.3d 1175, 1178 (same).
Aggravated Burglary (count three)
Defendant was convicted on count three of aggravated burglary in violation
of La. R.S. 14:60. The penalty for aggravated burglary is imprisonment at hard
labor for not less than one nor more than thirty years. La. R.S. 14:60. The trial
court sentenced defendant to the maximum thirty-year sentence at hard labor
without benefit of parole, probation, or suspension of sentence.
Maximum sentences have been upheld for similarly situated defendants. For
example, in State v. Williams, 01-998 (La. App. 3 Cir. 2/6/02), 815 So.2d 908, 915-
16, writ denied, 02-578 (La. 1/31/03), 836 So.2d 59, the Third Circuit affirmed the
23-KA-161 41
defendant’s thirty-year sentence for his aggravated burglary conviction. The trial
court found that the defendant used threats against the victim, he knew or should
have known that the 80-year-old victim was vulnerable or incapable of resistance,
and the defendant’s actions in leaving the victim in the trunk of her car manifested
deliberate cruelty to the victim. The Court held that the defendant did not present
any substantial indication that the trial court abused its discretion when it imposed
a sentence of thirty years. The Court further held that the trial court complied with
La. C.Cr.P. art. 894.1, and the record reflected sufficient consideration was given
to the codal guidelines for sentencing. See also State v. Johnson, 99-385 (La. App.
1 Cir. 11/5/99), 745 So.2d 217, 220, writ denied sub nom. State ex rel. Johnson v.
State, 00-829 (La. 11/13/00), 774 So.2d 971 (affirming sentences of thirty and
fifty-five years at hard labor, respectively, for aggravated burglary and armed
robbery, as well as a consecutive ten-year sentence for armed robbery, imposed
against a 15-year-old first-felony offender).
The Louisiana Supreme Court has repeatedly stated “that sentence review
under the Louisiana constitution does not provide an appellate court with a vehicle
for substituting its judgment for that of a trial judge as to what punishment is more
appropriate in a given case.” State v. Savoy, 11-1174 (La. 7/2/12), 93 So.3d 1279,
1283. On appellate review of a sentence, the relevant question is not whether
another sentence might have been more appropriate but whether the trial court
abused its broad sentencing discretion. State v. Walker, 00-3200 (La. 10/12/01),
799 So.2d 461, 462.
As the trial court stated at sentencing, this was a heinous offense in which
defendant terrorized the elderly victims, whom he knew through his prior
employment at their home. Defendant admitted that he targeted them because they
were vulnerable and because he believed they had money. The trial court
articulated detailed reasons for the sentences imposed. On review, we cannot say
23-KA-161 42
that the trial court abused its discretion in imposing the maximum sentence on
count three.
Defendant further argues that his sentence on count three is excessive
because he was a juvenile and thus is entitled to parole eligibility as a juvenile
offender pursuant to La. 15:574.4(J). We find that the trial court should not have
restricted the benefits as to defendant’s sentence for aggravated burglary, because
La. R.S. 14:60 does not provide for such restrictions.24 When a sentencing error
involves the imposition of restrictions beyond what the legislature has authorized
in the sentencing statute, a court of appeal should correct the sentence on its own
authority under La. C.Cr.P. art. 882. State v. Sanders, 04-17 (La. 5/14/04), 876
So.2d 42.
Accordingly, the sentence imposed against defendant on count three is
hereby corrected to delete the restriction of benefits. The matter is remanded for
the correction of the uniform commitment order (UCO) to correctly reflect no
restrictions of benefits, as set forth above. The trial court is ordered to transmit the
original of the corrected UCO to the appropriate authorities in accordance with La.
C.Cr.P. art. 892(B)(2) and the Department of Corrections’ legal department. See
State v. Shelby, 18-185 (La. App. 5 Cir. 12/27/18), 263 So.3d 1218, 1222-23.
Errors Patent
The record was reviewed for errors patent according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175(La. App. 5 Cir. 1990). In addition to the sentencing issues discussed in assignment
of error number three, the sentencing minute entry reflects that defendant was
properly advised pursuant to La. C.Cr.P. art. 930.8,25 but the transcript does not
24
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.”
25
La. C.Cr.P. art. 930.8 provides that a defendant shall have two years after the judgment of
conviction and sentence has become final to seek post-conviction relief.
23-KA-161 43
reflect that defendant was so advised. Where there is a discrepancy between the
transcript and the minute entry, the transcript generally prevails. State v. Lynch,
441 So.2d 732, 734 (La. 1983). It is well settled that 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 in its opinion. State v. Taylor, 20-215
(La. App. 5 Cir. 4/28/21), 347 So.3d 1008, 1023. Accordingly, defendant is hereby
advised that no application for post-conviction relief, including applications that
seek an out-of-time appeal, shall be considered if 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. Id.DECREE
For the foregoing reasons, the judgment on defendant’s convictions is
affirmed. The sentences imposed for the aggravated kidnapping are amended to
acknowledge that defendant is eligible for parole consideration pursuant to the
criteria set forth in La. R.S. 15:574.4(D), and the Department of Corrections is
ordered to revise defendant’s prison master to reflect that his sentences on counts
one and two are no longer without benefit of parole. The sentence imposed for
count three is corrected to remove the restriction on benefits, and the matter is
remanded for the correction of the uniform commitment order (UCO) to correctly
reflect no restrictions of benefits. The trial court is ordered to transmit the original
of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P.
art. 892(B)(2) and the Department of Corrections’ legal department. Lastly,
defendant is hereby notified, pursuant to La. C.Cr.P. art. 930.8, that no application
for post-conviction relief shall be considered if filed more than two years after the
judgment of conviction and sentence has become final.
23-KA-161 44
CONVICTIONS AFFIRMED;
SENTENCES AMENDED AND CORRECTED,
MATTER REMANDED, PER INSTRUCTIONS
23-KA-161 45
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
NOVEMBER 29, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-161
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
JULIET L. CLARK (APPELLEE) THOMAS J. BUTLER (APPELLEE) ROGER W. JORDAN, JR. (APPELLANT)
MAILED
ARTHUR O. SCHOTT, III (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
IVAN A. ORIHUELA (APPELLANT) (APPELLEE)
ATTORNEYS AT LAW DISTRICT ATTORNEY
3213 FLORIDA AVENUE TWENTY-FOURTH JUDICIAL DISTRICT
SUITE C 200 DERBIGNY STREET
KENNER, LA 70065 GRETNA, LA 70053