State of Louisiana Versus Ron C. Youngblood

STATE OF LOUISIANA NO. 18-KA-445
VERSUS FIFTH CIRCUIT
RON C. YOUNGBLOOD COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 72,64, DIVISION "C"
HONORABLE KATHERINE TESS STROMBERG, JUDGE PRESIDING
May 22, 2019
MARC E. JOHNSON
JUDGE
Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and John J. Molaison, Jr.
AFFIRMED
MEJ
SJW
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Ricky L. Babin
Lindsey D. Manda
COUNSEL FOR DEFENDANT/APPELLANT,
RON C. YOUNGBLOOD
Ron C. Youngblood
Lieu T. Vo Clark
JOHNSON, J.
Defendant appeals his convictions and sentences for attempted first degree
murder and felon in possession of a firearm raising numerous issues, both through
counsel and pro se, including the sufficiency of the evidence, alleged Batson1
violations, police and prosecutorial misconduct, the incompleteness of the
appellate record, the denial of a jury instruction regarding an alleged responsive
verdict to the charge of felon in possession of a firearm, and the excessiveness of
his consecutive maximum sentences. For the reasons that follow, we affirm
Defendant’s convictions and sentences.
STATEMENT OF THE CASE
Defendant, Ron Youngblood, was indicted by a grand jury on August 11,
2015 and charged with two counts of attempted first degree murder of Deputy
Michael Dufresne and Sergeant Dustin Jenkins, in violation of La. R.S. 14:27 and
La. R.S. 14:30 (counts one and two), and one count of felon in possession of a
firearm, in violation of La. R.S. 14:95.1 (count three). He pled not guilty and
proceeded to trial on September 25, 2017. After a five-day trial, the jury found
Defendant guilty on counts one and three and not guilty on count two (attempted
first degree murder of Sergeant Jenkins). On January 22, 2018, the trial court
sentenced Defendant to 50 years at hard labor on count one and 20 years at hard
labor on count three, both without benefit of parole, probation or suspension of
sentence, to run consecutively to each other. This appeal follows.
FACTS
On May 24, 2015, the St. James Parish Sheriff’s Office (“SJPSO”) received
a 911 call regarding a suspicious male, described as a bald-headed “bright skinned
male” wearing a suit, who was walking up and down Legion Street with a gun.
Officers Michael Dufresne and Dustin Jenkins with the SJPSO responded
1
Batson v. Kentucky, 476 U.S. 79, 104, 106 S.Ct. 1712, 1727, 90 L.Ed.2d 69 (1986).
18-KA-445 1
separately to the call. Upon their arrival, the officers observed four African-
American males standing near two cars parked on the side of the roadway, one of
whom appeared to match the description provided to the 911 dispatcher. Officer
Jenkins testified that the dash-cam video from his police unit depicted the subject
matching the description given by the 911 caller holding a shiny object in one of
his hands. Both officers were driving fully marked patrol units and were dressed in
SJPSO department issued uniforms.
As the officers exited their police units, which they strategically parked near
the four individuals so as to block them in, and began their approach, one of the
men began firing a pistol at Officer Dufresne who was approximately twenty feet
away.2 Officer Jenkins explained that when he exited his vehicle he could hear
that Officer Dufresne had already exited his vehicle, and as he turned around to
close his door, he heard a loud “pop.” Officer Jenkins recalled that he then heard
three to four subsequent “pops,” which drew his attention towards the four subjects
where he saw the “tall, slender, light-skinned” male subject in a tan jumpsuit with
his hand outstretched and “an object in his hand with a flash coming from it.” It
was then that Officer Jenkins registered that the subject was firing a gun pointed in
Officer Dufresne’s vicinity. Officer Jenkins testified that it was at that time that he
returned fire.
Meanwhile, Officer Dufresne testified that when he exited his vehicle, he
observed one of the male subjects dressed in red run towards a trailer. As he was
ordering the subject to stop, shots were fired. He indicated that he did not
immediately know which direction the shots were fired from but knew they were
coming from his left side. When he turned toward his left, the muzzle flash from a
gun drew his attention, at which time he saw the suspect matching the description
2
The dash-cam video from Officer Jenkins’ police unit was out of view of the shooting; however,
numerous gunshots can be heard on the video, which was played for the jury.
18-KA-445 2
provided by the 911 caller shooting at him. Officer Dufresne testified that the gun
was directed straight at him, so he returned fire. The individual who fired the shots
at Officer Dufresne was later identified as Defendant.
The officers’ return fire struck Defendant who attempted to flee while
continuing to fire his weapon. Defendant was subsequently apprehended, and a
silver handgun was recovered approximately ten feet from where he was arrested.
A DNA analysis of the recovered firearm indicated that Defendant’s DNA was on
the weapon and that the weapon had, in fact, been fired at the scene of the
shooting.3 While Defendant was being detained, a subsequent shot was fired near
the original location of the shooting.4
The other three males that were present at the scene with Defendant were
identified as Roderick Bourgeois, Quindell Jones, and Tavish Milton.5 While all
three individuals provided statements to the police, Bourgeois was the only one of
the three to testify at trial. Bourgeois testified that he was standing next to
Defendant when he observed Defendant fire the first gunshot towards the police
car prompting the police to return fire. He could not recall the exact number of
times Defendant fired his gun after the initial shot was fired but stated that it was
multiple times. Bourgeois further explained that he did not see the officer holding
a weapon at the time the officer exited his vehicle.
ISSUES
On appeal, appellate counsel raises two assignments of error, both relating to
the excessiveness of Defendant’s consecutive maximum sentences. Additionally,
Defendant filed a pro se brief raising 21 assignments of error, all of which were
3
Four shell casings from this weapon were recovered at the scene.
4
A .40 caliber casing and magazine were recovered from the scene that did not belong to the weapon
fired by Defendant or either of the officers.
5
Bourgeois was the only subject left on the scene when the officers returned after Defendant was
arrested.
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not properly briefed.6 Of the assignments of error that were properly briefed, many
overlapped and relate to the following six issues: sufficiency of the evidence of
both convictions, prosecutorial misconduct, police misconduct, Batson violation,
an incomplete appellate record, and failure to charge the jury with a responsive
verdict.
DISCUSSION
Sufficiency of Evidence
The standard of review for determining the sufficiency of the evidence is
whether after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). Under the Jackson standard, a review of a criminal
conviction record for sufficiency of evidence does not require the court to ask
whether it believes that the evidence at trial established guilt beyond a reasonable
doubt but rather whether any rational trier of fact could have found the defendant
guilty beyond a reasonable doubt after viewing the evidence in the light most
favorable to the prosecution. State v. Flores, 10-651 (La. App. 5 Cir. 5/24/11); 66
So.3d 1118, 1122.
Attempted First Degree Murder
Defendant argues that the State failed to prove beyond a reasonable doubt
that he had specific intent to kill Officer Dufresne. He asserts that the officers’
testimonies should not be considered because they are perjured and that eyewitness
Bourgeois’ testimony is insufficient to meet the State’s burden. Defendant also
contends the State failed to prove that he fired the first shot and was not acting in
6
All assignments of error made to the courts of appeal must be briefed, and the court may consider any
assignment of error that has not been briefed as abandoned. Uniform Rules – Courts of Appeal, Rule 2-
12.4; State v. Camp, 16-473 (La. App. 5 Cir. 3/15/17); 215 So.3d 969, 973. Restating an assigned error in
brief without argument or citation of authority does not constitute briefing. State v. Lauff, 06-717 (La.
App. 5 Cir. 2/13/07); 953 So.2d 813, 819.
18-KA-445 4
self-defense when he returned fire. He further avers that the interviews of Quindell
Jones and Tavish Milton establish that the police started the “gun battle” without
provocation and that the audio recording from Officer Jenkins’ police unit’s dash-
cam further aids in proving the police shot first based upon the recorded sounds
establishing the proximity of the gunfire.
Defendant was convicted of attempted first degree murder of Officer
Dufresne in violation of La. R.S. 14:27 and La. R.S. 14:30. La. R.S. 14:30(A)(2)
defines first degree murder as the killing of a human being when the offender has a
specific intent to kill or inflict great bodily harm upon a peace officer.7 The crime
of attempted first degree murder requires proof of the specific intent to kill and the
commission of an overt act tending toward the accomplishment of that goal. La.
R.S. 14:27(A); State v. Girod, 94-853 (La. App. 5 Cir. 3/15/95); 653 So.2d 664.
Specific intent is “that state of mind which exists when the circumstances indicate
that the offender actively desired the prescribed criminal consequences to follow
his act or failure to act.” La. R.S. 14:10(1). Because specific intent is a state of
mind, it need not be proven as a fact but may be inferred from the circumstances
and actions of the accused. Girod, supra.
Specific intent to kill can be inferred from the intentional use of a deadly
weapon such as a knife or a gun. State v. Knight, 09-359 (La. App. 5 Cir. 2/9/10);
34 So.3d 307, 317, writ denied, 10-2444 (La. 10/21/11); 73 So.3d 376. It may also
be inferred from the act of pointing a gun and firing it at a person. State v. Alsay,
11-562 (La. App. 5 Cir. 12/13/11); 81 So.3d 145, 149, writ denied, 12-1041 (La.
9/21/12); 98 So.3d 335; State v. Gonzalez, 07-449 (La. App. 5 Cir. 12/27/07); 975
So.2d 3, 8, writ denied, 08-0228 (La. 9/19/08); 992 So.2d 949. Whether a
defendant possessed the requisite intent in a criminal case is a question for the
7
La. R.S. 14:30(B)(1) defines a peace officer as “any peace officer, as defined in R.S. 40:2402, and
includes any ... sheriff, deputy sheriff, local or state policeman ... [or] federal law enforcement officer[.]”
18-KA-445 5
trier-of-fact, and a review of the correctness of this determination is guided by the
Jackson standard. State v. Deweese, 13-293 (La. App. 5 Cir. 10/30/13); 128 So.3d
1186, 1192.
The evidence at trial established that Defendant pointed and fired his gun at
Officer Dufresne multiple times while the officer was engaged in the performance
of his lawful duty as a peace officer.8 Defendant does not contest that he fired a
weapon, only that the State failed to prove he fired the first shot. Defendant
maintains he did not fire the first shot and, thus, was justified in his actions;
however, the evidence proves otherwise.
Although neither Officer Dufresne nor Officer Jenkins observed Defendant
fire the initial gunshot, their attention was drawn toward the shooter because of the
initial firing, at which time they observed Defendant fire the remaining gunshots
directed at Officer Dufresne who was standing approximately 20 feet away.9 As
noted above, specific intent may be inferred from the act of pointing a gun and
firing it at a person. See Alsay, supra.Additionally, eyewitness Bourgeois testified that he was standing next to
Defendant and personally observed Defendant fire the first gunshot in the direction
of the officer’s car. Whether anyone else in the group may have also fired a
weapon, as alluded to by Defendant, is irrelevant because the officers’ testimonies
established that they observed Defendant shoot at Officer Dufresne before they
returned fire. In the absence of internal contradiction or irreconcilable conflict
with physical evidence, the testimony of one witness, if believed by the trier of
8
The parties stipulated to the fact that Officer Dufresne was engaged in the performance of his lawful
duty as a peace officer at the time of the incident.
9
While Defendant contends the officers’ testimonies should be disregarded as perjured, as raised in one
of Defendant’s pro se assignments relating to prosecutorial misconduct, the reviewing court is to consider
both admissible and inadmissible evidence when determining whether the evidence is sufficient to
support the conviction. See State v. Hearold, 603 So.2d 731, 734 (La. 1992).
18-KA-445 6
fact, is sufficient to convict. See State v. Addison, 00-1730 (La. App. 5 Cir.
5/16/01); 788 So.2d 608, 613, writ denied, 01-1660 (La. 4/26/02); 814 So.2d 549.
While Defendant argues eyewitness Bourgeois’ testimony does not provide
support for the element of specific intent to kill as he testified that Defendant was
shooting towards the officer’s car and not the officer himself, Officer Dufresne
testified that he was standing next to his car when Defendant was shooting at him.
Thus, Bourgeois’ testimony corroborates the officers’ testimonies that Defendant
was shooting in the direction of Officer Dufresne.
Defendant also attempts to rely on the statements given by Quindell Jones
and Tavish Milton, who were also present on the scene at the time of the shooting,
to prove that the officers “started the gun battle without provocation”; however,
neither Jones nor Milton testified at trial, and their statements were not introduced
into evidence or considered by the jury. Thus, we do not consider them.
Defendant further avers that the dash-cam video establishes that the first shot
fired is “loud and can easily be distinguished as being right in the immediate
vicinity of the recording device, and the subsequent three to four shots are easily
distinguished as being fired from a distance,” thus, proving the initial shot was
fired by one of the officers and not him. In conjunction with the witnesses’
testimonies, the jury listened to the audio from the dash-cam video and apparently
rejected Defendant’s theory. It is not the function of the appellate court to assess
the credibility of witnesses or re-weigh the evidence. State v. Smith, 94-3116 (La.
10/16/95); 661 So.2d 442, 443.
Finally, Defendant argues that his actions were done in self-defense.
However, Defendant presented no such evidence or theory at trial nor was there a
jury instruction given by the trial court as to self-defense. An appellate court need
not consider a claim of self-defense raised for the first time on appeal. State v.
Jackson, 06-565 (La. App. 5 Cir. 12/27/06); 948 So.2d 269, 273.
18-KA-445 7
Based on the evidence, we find a rationale trier of fact could have found
beyond a reasonable doubt that Defendant had specific intent to kill Officer
Dufresne. Accordingly, we find the evidence sufficient to sustain Defendant’s
conviction for attempted first degree murder.
Felon in Possession of a Firearm
Regarding his conviction for possession of a firearm by a convicted felon,
Defendant asserts the evidence was insufficient because the State failed to prove
that the ten-year cleansing period under La. R.S. 14:95.1(C) had not lapsed.
Specifically, he claims the State erroneously computed the ten-year cleansing
period as to his prior attempted manslaughter conviction, which was used to charge
him with a violation of La. R.S. 14:95.1. He acknowledges that a stipulation was
agreed upon regarding his prior conviction, but he maintains the stipulation did not
include the satisfaction of the ten-year cleansing period.
To obtain a conviction for possession of a firearm by a convicted felon, the
State was required to prove beyond a reasonable doubt that Defendant had: (1)
possession of a firearm; (2) a prior conviction for an enumerated felony; (3)
absence of the ten-year statutory period of limitation; and (4) the general intent to
commit the offense. State v. Chairs, 12-363 (La. App. 5 Cir. 12/27/12); 106 So.3d
1232, 1250, writ denied, 13-0306 (La. 6/21/13); 118 So.3d 413.
On appeal, Defendant only challenges the evidence regarding the absence of
the ten-year cleansing period. However, Defendant stipulated to the fact that he
had been previously convicted of an enumerated felony and that his conviction was
within the statutory ten-year cleansing period. This stipulation was reduced to
writing and signed by Defendant, his two defense attorneys, and the State. The
jury was advised by the trial court of the stipulation – that on March 5, 1992,
18-KA-445 8
Defendant was convicted of a felony enumerated in La. R.S. 14:2(B)10 and that the
ten-year cleansing period as provided in La. R.S. 14:95.1(C) had not passed since
the date of Defendant’s parole on December 7, 2012. Thereafter, the trial court
instructed the jury that in order to convict Defendant of the offense of possession
of a firearm by a convicted felon, it must find Defendant possessed a Bryco Arms,
semi-automatic 9 mm pistol on May 24, 2015.
Despite the language of the stipulation, Defendant argues it did not
incorporate the ten-year cleansing period. He contends the stipulation was
ambiguous and, thus, should be construed against the State and in accordance with
his reasonable understanding of the agreement. He further asserts the stipulation
was not properly filed into the record and, therefore, should not have been
considered as evidence.
The appellate record contains a written stipulation that was filed into the
lower court record on the last day of trial, which states:
STATE OF LOUISIANA and the defendant, Ron C. Youngblood
(BM, DOB: 08/14/69), SID: 0001421912, through his undersigned
counsel herein stipulate to the following:
I.
Defendant Ron C. Youngblood (BM, DOB: 08/14/69), charged
with R.S. 14:95.1 Possession of a Firearm by a Person Convicted of
Certain Felonies, arrested on June 12, 2015, and charged by formal
Bill of Indictment on August 11, 2015 is in fact one in the same
person as the Ron C. Youngblood (BM, DOB: 08/14/69), who was
arrested on March 5, 1992 by the St. James Parish Sheriff’s Office and
convicted of R.S. 14:27(31) Attempted Manslaughter on September 3,
1992, in the Parish of St. James.
II.
And that the ten (10) year cleansing period as provide [sic] in
R.S.14:95.19 © [sic] has not passed since the date of his parole on
December 7, 2012 and that the current charge complies with the
provisions of R.S. 14:95.1 as evidenced by the exhibit attached hereto
from.
Attached to the stipulation, which as noted above was signed by Defendant, his
defense attorneys, and the State, was documentation which established the
10
Defendant stipulated that he was previously convicted of attempted manslaughter, a violation of La.
R.S. 14:27 and La. R.S. 14:31.
18-KA-445 9
existence of the prior conviction and Defendant’s discharge from custody as proof
that ten years had not passed since completion of his sentence for his 1992
conviction and the commission of the offense of possession of a firearm by a
convicted felon. We find this stipulation is clear, was properly filed into the
record, and directly contradicts Defendant’s allegation that the satisfaction of the
ten-year cleansing period was not incorporated into the stipulation.
A stipulation has the effect of withdrawing a fact from issue and disposing
with the need for proof of that fact. State v. Seals, 09-1089 (La. App. 5 Cir.
12/29/11); 83 So.3d 285, 320-21, writ denied, 12-293 (La. 10/26/12); 99 So.3d 53,
cert. denied, 569 U.S. 1031, 133 S.Ct. 2796, 186 L.Ed.2d 863 (2013). “A
stipulation has the effect of binding all parties and the court . . . . Such agreements
are the law of the case.” Id., quoting State v. Smith, 39,698 (La. App. 2 Cir.
6/29/05), 907 So.2d 192, 199. Accordingly, the State only needed to prove
possession and general intent at trial. The State accomplished this through the
testimonies of Officer Dufresne, Officer Jenkins, and eyewitness Bourgeois who
all testified that they observed Defendant firing a handgun, as well as through the
DNA evidence linking Defendant to the Bryco Arms semi-automatic 9 mm pistol
found near him at the time of his arrest.11
Considering the stipulation and the evidence presented,12 we find any
rational trier of fact could have found all of the essential elements of the offense of
11
Defendant did not challenge the sufficiency of the evidence regarding these remaining statutory
elements. Nonetheless, pursuant to a review under State v. Raymo, 419 So.2d 858, 861 (La. 1982), we
note the evidence was sufficient to prove the remaining elements of the crime of possession of a firearm
by a convicted felon.
12
In a pro se assignment of error, Defendant asserts the State abandoned its right to present any evidence
regarding the cleansing period set forth under La. R.S. 14:95.1(C) when it failed to address this essential
element during its opening statement. Thus, Defendant contends the State should have been precluded
from presenting this proof before the jury. The only proof of the satisfaction of the cleansing period was
the trial court’s advisal to the jury regarding the parties’ stipulation, and we note that Defendant did not
object to the jury being advised of the stipulation. Therefore, we find this alleged error has been waived.
See La. C.Cr.P. art. 841; State v. Berrora-Reyes, 12-581 (La. App. 5 Cir. 1/30/13); 109 So.3d 487, 499.
We further point out that Defendant’s argument that the trial court had ruled evidence regarding the
cleansing period was inadmissible is misplaced. The ruling to which Defendant refers pertained to the
State being precluded from specifically referencing the crime – attempted manslaughter – for which
Defendant had been previously convicted. The ruling was based on the parties’ stipulation that Defendant
had been convicted of an enumerated felony, thereby satisfying that essential element of La. R.S. 14:95.1.
18-KA-445 10
possession of a firearm by a convicted felon were proven beyond a reasonable
doubt. Therefore, we find the evidence sufficient to support his conviction.
Prosecutorial Misconduct
In several assignments of error, Defendant maintains that the State through
the testimony of Detective Barry Ward, knowingly relied upon false testimony to
obtain a conviction for attempted first degree murder. In particular, Defendant
avers that the State had access to Detective Ward’s investigative report in which he
found that none of the witnesses were able to state that they observed Defendant
fire the first shot. Thus, he contends that when the State solicited contrary
testimony from Officers Dufresne and Jenkins at trial, it knowingly solicited the
witnesses to perjure their testimonies.
If a prosecutor allows a state witness to give false testimony without
correcting it, a reviewing court must reverse the conviction gained as a result of the
perjured testimony, even if the testimony was only relevant to the credibility of the
witness. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217(1959); State v. Reed, 14-1980 (La. 9/7/16); 200 So.3d 291, 321, rehearing granted
in part on other grounds, 14-1980 (La. 10/19/16); 213 So.3d 384, cert. denied, 137
S.Ct. 787, 197 L.Ed.2d 787, 85 USLW 3407 (2017). To prove a Napue claim,13
the defendant must show that the prosecutor acted in collusion with the witness to
facilitate false testimony. State v. Broadway, 96-2659 (La. 10/19/99); 753 So.2d
801, 814, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).
13
In Napue, supra, at the defendant’s murder trial, the principal state witness, then serving a 199-year
sentence for the same murder, testified in response to a question by the State that he had received no
promise of consideration in return for his testimony. The State had, in fact, promised him consideration
but did nothing to correct the witness’ false testimony. The jury was apprised, however, that a public
defender had promised “to do what he could” for the witness. The Supreme Court found the failure of the
State to correct the testimony of the witness, which it knew to be false, denied the defendant due process
of law in violation of the Fourteenth Amendment to the Constitution of the United States. The Supreme
Court reasoned that a jury’s estimate of the truthfulness and reliability of a given witness may well be
determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the
witness in testifying falsely that a defendant’s life or liberty may depend. It concluded that had the jury
been apprised of the true facts, it might well have found the witness had fabricated testimony in order to
curry the favor of the State who was prosecuting the case in which the witness was testifying.
18-KA-445 11
When false testimony has been given under such circumstances, the
defendant is entitled to a new trial unless there is no reasonable likelihood that the
alleged false testimony could have affected the outcome of the trial. State v.
Ventris, 10-889 (La. App. 5 Cir. 11/15/11); 79 So.3d 1108, 1126, citing Giglio v.
United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). However, the
grant of a new trial based upon a Napue violation is proper only if: (1) the
statements at issue are shown to be actually false; (2) the prosecution knew they
were false; and (3) the statements were material. Ventris, supra at 1126.
Defendant claims that both Officer Jenkins and Officer Dufresne offered
perjured testimony when they both initially indicated that they did not see the first
shots fired but later stated, through prompting by the State, that Defendant fired the
first shot. During Officer Jenkins’ direct examination by the State, he testified that
he heard a loud pop as he was closing the door to his vehicle after exiting. After
registering that the sound he heard was gunfire, Officer Jenkins stated that he heard
three to four more pops, turned his attention towards the four subjects, and saw
Defendant firing a weapon in Officer Dufresne’s direction at which time he drew
his service weapon and returned fire.
The prosecutor attempted to clarify Officer Jenkins’ testimony by asking,
“So is it accurate to say when you heard the initial shots, you couldn’t tell where
they –”, at which time Officer Jenkins interrupted by responding, “The initial one
or two, no sir.” The prosecutor then asked, “Now, just to be accurate, Lieutenant
Jenkins, the subject shot first?” and Officer Jenkins affirmatively replied.
During Officer Dufresne’s direct testimony, he testified that when exited his
vehicle, one subject started running, and he immediately ordered the subject to
stop. It was then that Officer Dufresne heard shots fired. He stated that he could
not immediately tell from which direction the shots were being fired, but
subsequently realized the shots were coming from his left side. Officer Dufresne
18-KA-445 12
explained that when he turned in that direction, he saw the muzzle flash and saw
Defendant shooting at him. On re-direct, the prosecutor asked, “And was it this
defendant that fired first?” to which Officer Dufresne responded, “Yes, sir.”
Defendant mischaracterizes the testimonies of Officers Jenkins and
Dufresne. The officers consistently testified that they only returned gunfire after
Defendant first fired at one of them. Contrary to Defendant’s assertion, at no time
did the officers testify that Defendant was the person who fired the first shot at the
scene. Therefore, Defendant has failed to establish the first part of the Napue test –
that the statements at issue are actually false. As such, we find no merit to
Defendant’s claims that the State knowingly solicited perjured testimony.
Police Misconduct
Defendant also argues that his due process rights were violated when
procedural policies governing officer involved shootings were violated.
Specifically, he asserts that Officers Dufresne and Jenkins violated policy by
speaking with one another regarding the incident and failing to be kept separate
from one another until after they had been interviewed by the Louisiana State
Police regarding the shooting incident. As a result, Defendant asserts the integrity
of the investigation was compromised by the officers’ collusion.
Detective Barry Ward with the Louisiana State Police testified at trial that he
interviewed the officers after the shooting. On cross-examination he was asked
about the interview process when two police officers are involved in a shooting
incident. Detective Ward explained that the officers are interviewed separately so
as to preserve the integrity of the statements given. He further stated that he would
expect the officers to be kept apart before they are interviewed. Detective Ward
testified that he was unaware whether Officers Dufresne and Jenkins had an
opportunity to speak to one another before their interviews, but recalled they were
18-KA-445 13
kept in separate rooms of the courthouse where the interviews were being
conducted.
Officer Dufresne was specifically asked on cross-examination about his
communication with Officer Jenkins after the shooting incident. Officer Dufresne
stated that he “may have” spoken briefly with Officer Jenkins about what had
happened before State police arrived, but explained that he and Officer Jenkins
were both more worried about calling their families to let them know they were
okay.
Defendant relies on Detective Ward’s and Officer Dufresne’s testimonies to
support his position that there was collusion between the officers which
compromised the integrity of the investigation and violated his due process
rights.14 The record does not support Defendant’s argument. First, there is nothing
in the record regarding the substance of anything that may have been discussed
between the officers; thus, there is no evidence that the officers colluded in an
effort to fabricate a story favorable to themselves. Second, the jury was presented
with Defendant’s theory of collusion and, despite Defendant’s allegations, clearly
found the officers to be credible. Third, the testimony of Roderick Bourgeois, an
independent witness, corroborated the officers’ version of events. Therefore, we
find nothing to support Defendant’s claim of collusion between the officers.
Defendant further alleges police misconduct during the interviews of Tavish
Milton and Quindell Jones. Defendant contends that Detective Oliver Jackson’s
questioning of Milton constituted obstruction of justice because the detective was
not seeking the truth but rather was trying to attribute the initiation of the “gun
battle” to Defendant. He asserts Detective Jackson lied, threatened, intimidated,
14
To the extent Defendant argues that the officers violated the Louisiana State Trooper’s Handbook
governing officer involved shootings, which in turn violated his due process rights, Defendant failed to
raise this argument before the trial court. Thus, he has waived the issue for purposes of appeal. See La.
C.Cr.P. art. 841(A).
18-KA-445 14
manipulated, and badgered Milton so badly that he became scared yet never
wavered as to who fired the first shot – the police. Defendant further contends
Detective Jackson and Detective Barry Ward also obstructed justice when they
badgered Jones during the interview into providing them with information that
would vindicate the officers in this case from any wrongdoing.
Neither Milton’s nor Jones’ statement was introduced into evidence at trial.
Additionally, neither Milton, Jones, nor Detective Jackson testified at trial. While
Detective Ward testified at trial, he did not testify regarding Jones’ or Milton’s
statement. As such, none of the statements of which Defendant now complains
were presented to or considered by the jury. Accordingly, Defendant has failed to
demonstrate any wrongdoing in connection with the statements or any resulting
prejudice.
Batson Violation
In a single assignment of error, Defendant avers the State systematically
excluded five African-American jurors – Bryan Bourgeois, Melissa Roussel,
Bridget Landry, Anthony Nelson, and Overton Celestin – from the jury on the
basis of race and failed to offer adequate race-neutral reasons for the prospective
jurors’ exclusion.
The accused has a right to full voir dire examination of prospective jurors
and to challenge jurors peremptorily. The number of peremptory challenges is
fixed by law, with the State and the defendant each having 12 peremptory
challenges when the charged offense is necessarily punishable by imprisonment at
hard labor. La. Const. art. 1, §17; La. C.Cr.P. art. 799.
The Equal Protection Clause of the United States Constitution prohibits
purposeful discrimination on the basis of race in the exercise of peremptory
challenges. Batson v. Kentucky, 476 U.S. 79, 104, 106 S.Ct. 1712, 1727, 90
L.Ed.2d 69 (1986). The Batson decision is codified in La. C.Cr.P. art. 795(C),
18-KA-445 15
which provides that no peremptory challenge made by the State or the defendant
shall be based solely upon the race of the juror.
When a claim is made that a peremptory challenge was based on race, a
three-step analysis applies. First, the defendant challenging the peremptory strike
must establish a prima facie case of purposeful discrimination. Second, if a prima
facie showing is made, the burden shifts to the State to articulate a neutral
explanation for the challenge. Third, the trial court must then determine if the
defendant has carried his burden of proving purposeful discrimination. State v.
Sparks, 88-0017 (La. 5/11/11); 68 So.3d 435, cert. denied, -- U.S. --, 132 S.Ct.
1794, 182 L.Ed.2d 621 (2012).
To establish a prima facie case of purposeful discrimination, the defendant
must show: (1) the prosecutor’s challenge was directed at a member of a
cognizable group; (2) the challenge was peremptory rather than for cause; and (3)
relevant circumstances sufficient to raise an inference that the prosecutor struck the
venire person on account of his being a member of that cognizable group. Id. In
determining whether the defendant has established a prima facie case, the trial
court should consider all relevant circumstances, including any pattern of strikes
by the State against members of a suspect class, statements or actions of the
prosecutor which support an inference that the exercise of the peremptory strikes
was motivated by impermissible considerations, the composition of the venire and
the jury finally empaneled, and any other disparate impact upon the suspect class
which is alleged to be the victim of purposeful discrimination. State v. Massey, 11-
357 (La. App. 5 Cir. 3/27/12); 91 So.3d 453, 468, writ denied, 12-991 (La.
9/21/12); 98 So.3d 332.
If the trial court determines the defendant failed to establish the threshold
requirement of a prima facie case, then the analysis is at an end, and the burden
never shifts to the prosecutor to articulate neutral reasons. Sparks, supra.
18-KA-445 16
However, a trial judge’s demand that a prosecutor justify his peremptory strikes is
tantamount to a finding that the defense has produced enough evidence to support
an inference of discriminatory purpose. State v. Green, 94-887 (La. 5/22/95); 655
So.2d 272, 288.
If the prima facie showing is made, the burden shifts to the prosecutor to
present a race-neutral explanation for striking the juror in question. State v.
Jacobs, 07-887 (La. App. 5 Cir. 5/24/11); 67 So.3d 535, writ denied, 11-1753 (La.
2/10/12); 80 So.3d 468, cert. denied, --U.S.--, 133 S.Ct. 139, 184 L.Ed.2d 67(2012), citing Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24. At the second step
of the Batson inquiry, the issue is the facial validity of the prosecutor’s
explanation. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131
L.Ed.2d 834 (1995) (per curiam). Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race-neutral. Id.The trial court must then determine whether the defendant has established
purposeful discrimination. Jacobs, supra (citing Batson, 476 U.S. at 98, 106 S.Ct.
at 1724). The final step of Batson requires the trial court to evaluate the
persuasiveness of the justification proffered; however, the ultimate burden of
persuasion regarding racial motivation rests with, and never shifts from, the
opponent of the strike. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771.
In this third step, it is the trial court’s responsibility to assess the plausibility
of the prosecutor’s proffered race-neutral reason “in light of all evidence with a
bearing on it.” Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 2325, 162
L.Ed.2d 196 (2005). The trial court must evaluate the prosecutor’s credibility by
assessing “not only whether the prosecutor’s demeanor belies a discriminatory
intent, but also whether the juror’s demeanor can credibly be said to have exhibited
the basis for the strike attributed to the juror by the prosecutor.” Snyder v.
Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008).
18-KA-445 17
In determining whether a defendant has met his burden of showing
purposeful racial discrimination in the State’s exercise of peremptory challenges,
the question is whether the proof offered by the defendant, when weighed against
the State’s proffered race-neutral reasons, is strong enough to convince the trier of
fact that the claimed discriminatory intent is present. State v. Bourgeois, 08-457
(La. App. 5 Cir. 12/16/08); 1 So.3d 733, 738, writ denied, 09-336 (La. 11/6/09), 21
So.3d 298. The focus of the Batson inquiry is upon the intent of the prosecutor at
the time he exercised his peremptory strikes. State v. Tilley, 99-0569 (La. 7/6/00);
767 So.2d 6, 12, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375(2001).
A trial judge’s findings on a claim of purposeful discrimination are entitled
to great deference by the reviewing court because they depend largely on
credibility evaluations. Credibility can be measured by factors including the
prosecutor’s demeanor, how reasonable or how improbable the explanations are,
and whether the proffered reason has some basis in accepted trial strategy. State v.
Wilson, 09-170 (La. App. 5 Cir. 11/10/09); 28 So.3d 394, 405, writ denied, 09-
2699 (La. 6/4/10); 38 So.3d 299. The trial judge has the advantage of observing
the characteristics and demeanor of the attorneys and prospective jurors.
Therefore, the trial court occupies the best position for deciding whether a
discriminatory objective underlies the peremptory challenges. Id. “[A] trial
court’s ruling on the issue of discriminatory intent must be sustained unless it is
clearly erroneous.” Snyder v. Louisiana, 552 U.S. at 477, 128 S.Ct. at 1207.
In this case, Defendant made several Batson challenges to the State’s use of
peremptory challenges to exclude prospective jurors who were African-American.
The record shows the trial court called four venire panels. During the first venire,
the State utilized only one peremptory challenge to excuse Bryan Bourgeois, an
African-American male, and accepted six jurors – three African-American females
18-KA-445 18
and three white males. The State later used two backstrikes on two of the three
African-American females from the first panel—Melissa Roussel and Bridget
Landry—at which time a Batson challenge was raised.
In the second venire, the State utilized one peremptory challenge to excuse
Newrita Bowser, an African-American female15 and later exercised a backstrike to
excuse a previously selected white female juror. During this panel, the parties
accepted three additional jurors – two white males and one African-American
male.
In the third venire, the State used five peremptory challenges to excuse five
African-American males, including Anthony Nelson and Overton Celestin, and
accepted the last five jurors – three white females and two white males – and an
African-American female as the first alternate juror. Defendant raised Batson
challenges as to all five of the State’s peremptory challenges in this venire;
however, on appeal, Defendant only challenges the race-neutral reasons offered by
the State as to Mr. Nelson and Mr. Celestin.
No peremptory challenges were made by the State in the fourth venire.
Ultimately two African-Americans served on the jury and one African-American
served as one of the alternate jurors.
Because the trial court ruled on the ultimate question of whether there was
intentional discrimination, the preliminary issue of whether Defendant made a
prima facie showing of purposeful discrimination is moot. Sparks, 68 So.3d at
473. The issue before us now is whether the trial court erred in finding that the
State’s explanations for exercising its peremptory challenges on the five
prospective jurors identified by Defendant on appeal were sufficiently race-neutral.
As stated above, unless a discriminatory intent is inherent in the State’s
15
The State offered race-neutral reasons for striking Ms. Bowser who had been excused before the State
exercised its back-strikes on Ms. Roussel and Ms. Landry; however, Defendant does not challenge the
reasons offered by the State as to Ms. Bowser on appeal.
18-KA-445 19
explanation after review of the entire record, the reason offered will be deemed
race-neutral. State v. Elie, 05-1569 (La. 7/10/06); 936 So.2d 791, 801, citing
Purkett, 514 U.S. at 767, 115 S.Ct. at 1771. Thereafter, the question is whether the
defendant’s proof, when weighed against the prosecutor’s proffered race-neutral
reasons, is strong enough to persuade the trier-of-fact that such discriminatory
intent is present. Green, 655 So.2d at 290.
Prospective Juror Bourgeois
During voir dire, Mr. Bourgeois, age 30, stated that he was married, a father
of three young children, employed as a process operator, did not have any family
members who were the victims of any violent crimes, had no family in law
enforcement, and had been arrested before for possession of a Schedule I narcotic
with the intent to distribute, which was later reduced to a misdemeanor offense.
The State specifically asked the prospective jurors whether they had ever
had any prior negative interactions with law enforcement. Mr. Bourgeois indicated
that he had, explaining that he had been pulled over because his car exhaust was
too loud. He stated that he did not receive a ticket but was harassed by law
enforcement for a little while.
The State also questioned the venire as to whether there was anything going
on in their lives that would distract their attention from this case. Mr. Bourgeois
raised his hand in response, stating he was in the process of building a house for
which he was overseeing the construction. Defense counsel followed up by asking
whether he would be able to get by for a couple of days by checking in with the
contractors to ensure everything was ok, to which Mr. Bourgeois replied, “my wife
may divorce me.” Mr. Bourgeois was also questioned about his prior drug
conviction and indicated that he had learned his lesson.
The State initially challenged Mr. Bourgeois for cause, arguing that he had a
negative experience with law enforcement, was previously arrested for narcotics
18-KA-445 20
with intent to distribute, and had an ongoing building construction project which
would preclude him from staying focused. The trial court denied the State’s
challenge for cause, after which the State exercised one of its peremptory challenge
to exclude him.
Defendant raised a Batson challenge, arguing that the State had already used
three peremptory challenges on African-Americans. In offering race-neutral
reasons for striking Mr. Bourgeois, the State explained that Mr. Bourgeois
indicated that he had a bad experience with law enforcement having been harassed
by the St. James Parish Sheriff’s Office and that his wife would be very upset with
him if he could not oversee their house construction.
Lack of interest or distraction due to personal affairs has been found to be
race-neutral explanations to exclude prospective jurors. See Green, 655 So.2d at
287 n.17; State v. Johnson, 00-1552 (La. App. 5 Cir. 3/28/01); 783 So.2d 520, 526,
writ denied, 01-1190 (La. 3/22/02); 811 So.2d 921; State v. Williams, 545 So.2d
651 (La. App. 5th Cir. 1989), writs denied, 556 So.2d 53 (La. 1990) and 584 So.2d
1157 (La. 1991). Additionally, a prior bad experience with police has also been
found to be a race-neutral reason for striking a prospective juror. See State v.
Jones, 00-162 (La. App. 5 Cir. 7/25/00); 767 So.2d 862, writ denied, 00-2484 (La.
6/22/01); 794 So.2d 783; State v. Wilson, 40,767 (La. App. 2 Cir. 8/23/06); 938
So.2d 1111, 1135, writ denied, 06-2323 (La. 4/20/07); 954 So.2d 159, cert. denied,
552 U.S. 917, 128 S.Ct. 275, 169 L.Ed.2d 201 (2007). Thus, we find the State
provided a race-neutral explanation for exercising its peremptory challenge on Mr.
Bourgeois.
Turning to Batson’s third step, Defendant argues for the first time on appeal
that two white male jurors also expressed that they either had a prior bad
experience with law enforcement or had been previously arrested for a crime, yet
were not stricken by the State. Defendant argues that this demonstrates purposeful
18-KA-445 21
discrimination. The United States Supreme Court has held that “[i]f a prosecutor’s
proffered reason for striking a black panelist applies just as well to an otherwise-
similar nonblack who is permitted to serve, that is evidence tending to prove
purposeful discrimination to be considered at Batson’s third step.” Miller-El,
supra. However, the mere fact that a prosecutor excuses one person with a
particular characteristic and not another similarly situated person does not in itself
show that the prosecutor’s explanation was a mere pretext for discrimination. The
accepted juror may have exhibited traits which the prosecutor could have
reasonably believed would make him desirable as a juror.16 State v. Collier, 553
So.2d 815, 822 (La. 1989).
Here, the trial judge accepted the State’s race-neutral explanation as to Mr.
Bourgeois and continued voir dire without further objection from Defendant. It is
only now, for the first time on appeal, that Defendant claims, under a comparative
analysis argument, that the State’s race-neutral explanation was riddled with
discriminatory intent. We find Defendant waived this argument by failing to
challenge the prosecutor’s explanations on this ground at the trial court level. See
La. C.Cr.P. art. 841. “To withhold in the trial court a fact-specific argument in
support of a Batson challenge carries with it all of the unfairness of holding
challenges until ‘trial has concluded unsatisfactorily,’ and ought not to be
permitted or encouraged.” Delvalle v. Herbert, 2004 WL 1661075 (U.S. S.D.N.Y
2004), quoting McCrory v. Henderson, 82 F.3d 1243, 1249, 1247 (2nd Cir. 1996)
(quoting United States v. Forbes, 816 F.2d 1006, 1011 (5th Cir. 1987)).
16
We note that in addition to Mr. Bourgeois’ past experience with law enforcement and his criminal
history, the State cited Mr. Bourgeois’ potential distraction due to the construction of his home as a race-
neutral reason for exercising a peremptory challenge to exclude him. The potential for distraction did not
apply to the two white male jurors to whom Defendant refers.
18-KA-445 22
We find Defendant did not carry his burden of proving discriminatory intent
in the State’s exclusion of Mr. Bourgeois, and thus, the trial court did not err in
denying Defendant’s Batson challenge.
Prospective Juror Roussel
Ms. Roussel, age 51, stated she worked as a secretary at the First Assembly
of God Church in Vacherie, Louisiana, had two grown children, had never been the
victim of a crime, and had never been arrested or convicted of a crime. She
informed the court that her cousin, who she sees “every now and then,” was in law
enforcement; however, she did not feel that her relationship with her cousin would
affect her ability to be fair and impartial. When asked by the trial court whether
she was related to anyone in the district attorney’s office, she answered that she
was related to “the guy who was sitting at that table” but did not feel her
relationship would influence her as a juror.
In offering race-neutral reasons for striking Ms. Roussel in response to
Defendant’s Batson challenge, the State asserted that Ms. Roussel was related to a
deputy sheriff and to an employee of the sheriff’s department. Defendant offered
no objection to the race-neutral explanation offered by the State or any further
argument and continued with voir dire.
Connection with law enforcement may affect a juror’s impartiality and has
been found to be a sufficiently race-neutral reason for a peremptory challenge.
State v. Wilson, 25,775 c/w 25,776 (La. App. 2 Cir. 2/23/94); 632 So.2d 861, 864.
Defendant does not contest the adequacy of the race-neutral reason provided by the
State but rather claims the race-neutral reason also applied to two non-African-
American prospective jurors who were not struck by the State, thereby establishing
the State’s discriminatory intent in excluding Ms. Roussel. Again, Defendant did
not raise this argument in support of his Batson challenge at the trial court level.
Thus, we find he is precluded from raising this ground on appeal.
18-KA-445 23
We find the trial court was not clearly erroneous in accepting the State’s
race-neutral reason for its use of a peremptory challenge on Ms. Roussel and
denying Defendant’s Batson challenge. Defendant failed to carry his burden of
proving any discriminatory intent in the State’s exercise of its peremptory
challenge on Ms. Roussel.
Prospective Jurors Landry and Nelson
The record shows that Ms. Landry was a 50-year-old mother of two
teenaged children, who had never been arrested, and that neither she nor any of her
immediate family members had ever been the victim of a crime. As for Mr.
Nelson, there is no personal background information in the record.
During voir dire, Ms. Landry informed the court that her brother was in jail,
having been convicted of a violent crime. She further stated that she was related to
a St. James Sheriff’s Office deputy and that she knew the prosecutor, Charles
Long. Nonetheless, Ms. Landry indicated that she could be fair and impartial and
render a verdict in accordance with the law.
The State exercised a backstrike against Ms. Landry. In response to
Defendant’s Batson challenge, the prosecutor, Mr. Long, submitted that Ms.
Landry knew him, that her brother had been convicted of a crime, and that she was
related to a St. James Sheriff’s Office deputy. The court stated that it was satisfied
with the State’s proffered reasons and continued with voir dire without any further
argument by Defendant.
Next, Mr. Nelson was asked whether he had ever been stopped by the police.
He responded that he had been stopped a few times, explaining that on one
occasion it had been for an expired license plate which was resolved after they
“talked for a little while.” He indicated that he felt he was treated fairly. Mr.
Nelson further stated that he believed he could be a fair and impartial juror.
18-KA-445 24
In response to Defendant’s Batson challenge as to the exclusion of Mr.
Nelson by use of a peremptory challenge, the State indicated that one of the
prosecutors was on some board with which Mr. Nelson was affiliated and that
there was a “relationship with [the prosecutor] being on this board that he’ll get an
appointment for the executive level.” The State also noted that Mr. Nelson was
related to two deputies in St. James Parish. It further noted that the Gramercy
Police Department had stopped Mr. Nelson and given him a hard time for his
license plate bulb being out.
The reasons offered by the State for exercising its peremptory challenges on
Ms. Landry and Mr. Nelson are sufficiently race-neutral. Having relatives in jail is
a valid race-neutral reason for exercising a peremptory strike. See State v. Jacobs,
09-1304 (La. 4/5/10); 32 So.3d 227, 235; State v. Lamark, 584 So.2d 686, 696-97
(La. App. 1st Cir. 1991), writ denied, 586 So.2d 566 (La. 1991). Also, knowledge
of the parties constitutes a race-neutral reason for a peremptory challenge. See
Tilley, 767 So.2d at 13-14; State v. Qualls, 40,630 (La. App. 2 Cir. 1/27/06); 921
So.2d 226, 241; State v. Mamon, 26,337 (La. App. 2 Cir. 12/16/94); 648 So.2d
1347, writ denied, 95-0220 (La. 6/2/95); 654 So.2d 1104. And, as previously
discussed, connection with law enforcement and prior bad experiences with police
may affect a juror’s impartiality and are sufficiently race-neutral reasons for a
peremptory challenge. See Wilson, 632 So.2d at 864; Jones, 767 So.2d at 868-69.
As he did with Mr. Bourgeois and Ms. Roussel, Defendant argues that the
reasons proffered by the State for excusing Ms. Landry and Mr. Nelson – relatives
in law enforcement and relatives in jail – also applied to non-African-American
prospective jurors who were not struck by the State.17 Again, Defendant failed to
17
We note that the State also struck Ms. Landry on the basis of her knowledge of one of the
prosecutors, which did not apply to the other non-African-American jurors referenced by Defendant.
18-KA-445 25
assert this argument at the trial court level and, thus, is precluded from raising it for
the first time on appeal.
Upon review, we find the trial court did not abuse its discretion in denying
Defendant’s Batson challenges as to Ms. Landry and Mr. Nelson. Defendant did
not carry his burden of proving discriminatory intent.
Prospective Juror Celestin
The record does not contain the preliminary questions asked by the court to
all jurors regarding Mr. Celestin’s background. Nonetheless, the State initially
challenged Mr. Celestin for cause on the grounds that he was occasionally sleeping
in court, which it argued demonstrated his inability to pay attention for three to
four days of trial and to effectively participate in deliberations. The trial court
denied the challenge for cause after it and defense counsel stated they had not
noticed Mr. Celestin sleeping.
The State later exercised one of its peremptory challenges on Mr. Celestin,
an African-American, to which Defendant raised a Batson challenge. When asked
for its reasons for excusing Mr. Celestin, the State proffered that Mr. Celestin had
been arrested for fighting in the past. It further stated it was still of the belief,
based on personal observations by members of the prosecution team, that Mr.
Celestin had been dozing off during voir dire. The trial court indicated that it was
satisfied with the State’s proffered reasons.
Defendant argues that the State’s proffered reasons for excusing Mr.
Celestin established discriminatory intent because no one observed Mr. Celestin
sleeping except members of the State’s prosecution team. He further claims, again
for the first time on appeal, under a comparative analysis of Mr. Celestin’s
testimony with that of non-African-American prospective jurors who were not
struck by the State, yet who had also been convicted of a crime and/or arrested,
established the State’s discriminatory intent.
18-KA-445 26
The fact that a juror was asleep has been found to be a facially race-neutral
reason for exclusion. State v. Touissant, 98-1214 (La. App. 5 Cir. 5/19/99); 734
So.2d 961, writ denied, 99-1789 (La. 11/24/99); 750 So.2d 980. Defendant did not
challenge the State’s proffered reason at the trial court level – Defendant never
argued to the trial court that no one saw Mr. Celestin sleeping except the
prosecution. Additionally, Defendant offered no argument regarding the State’s
alleged discriminatory intent based upon its non-exclusion of similarly situated
non-African-American jurors. Because these argument were not made at the trial
court level, they are not properly before us on appeal. See La. C.Cr.P. art. 841.
We do not find the trial court was clearly wrong in accepting the race-neutral
reasons proffered by the State as to Mr. Celestin.
In summary, we do not find the State employed a tactic to exercise its
peremptory challenges for a racially discriminatory purpose. Considering that a
trial judge’s determination regarding purposeful discrimination rests largely on
credibility evaluations and that great deference is given to the trial judge in making
this determination, we do not find the trial court erred in denying Defendant’s
Batson challenges. The trial judge was in the best position to examine the State’s
sincerity in its race-neutral explanations for challenging the prospective jurors.
Incomplete Appellate Record
Defendant argues his constitutional rights of appeal and judicial review have
been violated based upon the insufficiency of the voir dire record provided in this
case. Defendant contends that a total of one hour and 46 minutes are missing from
the voir dire transcript and that at some points the voir dire transcript fails to
identify the speaker. Defendant maintains he is substantially prejudiced without
these recordings because he has “nothing to refer to concerning certain aspects of
the voir dire process.”
18-KA-445 27
Louisiana Constitution Article I, § 19 provides that no person shall be
subjected to imprisonment without the right of judicial review based upon a
complete record of all evidence upon which the judgment is based. La. C.Cr.P. art.
843 requires, in all felony cases, the recording of “all of the proceedings, including
the examination of prospective jurors, the testimony of witnesses, statements,
rulings, orders, and charges by the court, and objections, questions, statements, and
arguments of counsel.”
A defendant has a right to a complete transcript of the trial proceedings,
particularly where, as in this case, appellate counsel did not represent Defendant at
trial. Material omissions from trial court proceedings bearing on the merits of an
appeal require reversal; however, a slight inaccuracy in a record or an
inconsequential omission from it which is immaterial to a proper determination of
the appeal does not require reversal of a conviction. A defendant is not entitled to
relief because of an incomplete record absent a showing of prejudice based on the
missing portions of the transcript. State v. Lampkin, 12-391 (La. App. 5 Cir.
5/16/13); 119 So.3d 158, 166, writ denied, 13-2303 (La. 5/23/14); 140 So.3d 717.
“The materiality of a given omission is measured by the prejudicial effect of the
omission on the defendant in accessing the full scope of appellate review.” State v.
Pernell, 13-0180 (La. App. 4 Cir. 10/2/13); 127 So.3d 18, 28, writ denied, 13-2547
(La. 4/4/14), 135 So.3d 640.
The missing portion of the voir dire proceedings is not evidentiary and,
therefore, its absence has not compromised Defendant’s constitutional right to a
judicial review of all evidence. See Lampkin, 119 So.3d at 167. The voir dire
transcript in this case contains detailed information concerning which party
excused which jurors and for what reason. Defendant does not identify a specific
juror or jurors who should not have been seated based on the detailed information
available in the voir dire transcript regarding each prospective juror’s excusal or
18-KA-445 28
lack thereof. While Defendant correctly notes that the voir dire record does
contain two entries indicating there was a “machine glitch” causing “missing
audio,” which Defendant contends encompassed certain questions and answers by
prospective jurors Crystal Roberts, Vicky Simon, Lynell, Brown, Charli Giger,
Tanya Teague, Dylan Roussel, and Alex Matherne, Defendant fails make any
specific argument regarding challenges to any of these jurors.
Further, the alleged missing questions and answers of the prospective jurors
referenced by Defendant can be gleaned from the remaining portions of the voir
dire transcript or are immaterial. Specifically, the record shows that the defense
utilized peremptory challenges on Ms. Roberts, Ms. Simon, Mr. Giger, and Ms.
Teague after its challenges for cause were denied by the trial court. The record
also reflects that the defense’s challenges of Mr. Roussel and Mr. Matherne for
cause were denied and that the two were then accepted and served as jurors in this
case. The record reflects the detailed reasons provided by the defense to support
their challenges for cause for these prospective jurors. Additionally, the record
contains detailed reasons for the court’s granting of the State’s challenge for cause
as to Ms. Brown. Based on these discussions and rulings, we find the record was
sufficient to allow Defendant to have perfected assignments for any errors which
may have occurred during the unrecorded portion of voir dire.
Defendant further claims the record to be incomplete in that it fails to
identify the speaker on several occasions during the voir dire questioning.
However, Defendant fails to indicate how such lack of identification has caused
him prejudice. While there are multiple places in the record where the speaker is
listed as an “unidentified” male or female, the identity of most of those speakers
can be ascertained based upon the content of their comments. Where the identity
of the speaker cannot be ascertained, the responses provided by the unidentified
18-KA-445 29
individual are so general that they are not relevant or critical to a complete judicial
review.
We find the record is sufficient for proper appellate review. Defendant has
failed to demonstrate or particularize how he was prejudiced by the missing voir
dire transcriptions – specifically, the missing portions of the voir dire proceedings
do not relate to any specific errors assigned by Defendant on appeal.
Failure to Charge Jury with Responsive Verdict
Defendant argues that he was denied his constitutional rights when the trial
court failed to charge the jury of one of the responsive verdicts to possession of a
firearm by a convicted felon – attempted possession of a firearm by a convicted
felon.
At the conclusion of the trial testimony, defense counsel requested that the
responsive verdict of attempted possession of a firearm by a convicted felon be
added to the list of possible verdicts for the charged La. R.S. 14:95.1 offense. The
trial court denied the request and instructed the jury that it could find Defendant
either guilty as charged or not guilty of possession of a firearm by a convicted
felon.
When the accused requests and is refused an instruction on a lesser and
included offense, or when the accused timely objects to the court’s failure to give a
responsive verdict instruction to which he is statutorily entitled, the conviction may
be reversed. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 248 (La. 1982), cert.
denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983). However, in order
for the conviction to be reversed, the defendant must demonstrate that the inclusion
or exclusion of a responsive verdict was prejudicial and that fundamental due
process has been violated. State v. Serio, 94-131 (La. App. 5 Cir. 6/30/94); 641
So.2d 604, 607-08, writ denied, 94-2025 (La. 12/16/94); 648 So.2d 388.
18-KA-445 30
La. C.Cr.P. art. 814 does not mandate responsive verdicts for possession of a
firearm by a convicted felon; therefore, the responsive verdicts are set forth in La.
C.Cr.P. art. 815 as: (1) guilty; (2) guilty of a lesser and included grade of the
offense even though the offense charged is a felony, and the lesser offense a
misdemeanor; or (3) not guilty. State v. Morris, 05-290 (La. App. 5 Cir. 11/29/05);
917 So.2d 633. Attempted possession of a firearm by a convicted felon is a
responsive verdict to a charge of possession under La. R.S. 14:95.1. Id.The trial court shall charge the jury as to the law applicable to each offense
when the offense charged includes other “lesser” offenses of which the accused
could be found guilty under La. C.Cr.P. art. 815. See La. C.Cr.P. art. 803; State v.
Dufore, 424 So.2d 256 (La. 1982). However, although the court must charge the
jury of the law applicable to lesser included offenses under La. C.Cr.P. art. 803, the
charges must be pertinent – there must be evidence which would support a
conviction of the lesser offenses. La. C.Cr.P. art. 807; State v. Anderson, 390
So.2d 878, 882 (La. 1980); State v. Toomer, 395 So.2d 1320, 1335 (1981),
overruled on other grounds, State v. Guillory, 10-1231 (La. 10/8/10); 45 So.3d 612.
The trial judge is required to charge the jury only with those charges of which the
accused can be found guilty under the indictment and the evidence. State v. Henry,
449 So.2d 486, 488-89 (La. 1984).
In the present case, we find Defendant has failed to demonstrate that the
exclusion of the responsive verdict was prejudicial. The requested jury charge
would not have been appropriate considering the evidence set forth at trial. As
previously discussed in response to Defendant’s sufficiency argument, Defendant
does not contend that he did not fire a gun. Also, multiple witnesses testified that
they observed Defendant holding a gun. Further, Defendant’s DNA was found on
the discarded firearm used in the shooting and located near Defendant at the time
of his apprehension. Therefore, we find that any alleged error regarding the trial
18-KA-445 31
court’s refusal to instruct the jury with regard to all possible responsive verdicts for
the charge of La. R.S. 14:95.1 does not mandate reversal.
Excessiveness of Consecutive Maximum Sentences
Defendant argues that the consecutive nature of his maximum sentences,
which total 70 years, renders them unconstitutionally excessive as he is 48 years
old and, thus, will likely be incarcerated for the remainder of his natural life. He
avers that his criminal history is not as extensive as recited by the trial court during
sentencing since most of the references the trial court made to his past offenses did
not result in a conviction. Defendant further maintains the trial court failed to give
adequate consideration to the fact that there was a 23-year period between his last
conviction and the instant offenses and did not consider the fact that no one was
injured by him in the present case.
Defendant received the maximum 50-year sentence without benefits for his
attempted first degree murder conviction, which carries a sentencing range of 20-
50 years. La. R.S. 14:30 and La. R.S. 14:27(D)(1)(B). He also received the
maximum 20-year sentence without benefits for his possession of a firearm by a
convicted felon conviction, which carries a sentencing range of 10-20 years. La.
R.S. 14:95.1(B). Further, these sentences were ordered to run consecutively.
At the sentencing hearing, the trial court indicated that it had reviewed the
pre-sentence investigation report (PSI).18 Additionally, it is evident that the trial
court considered the sentencing guidelines of La. C.Cr.P. art. 894.1. Particularly,
the trial court noted that Defendant, age 48, had an extensive criminal history –
including an arrest for attempted first degree murder and armed robbery in 1989;
charges for disturbing the peace, resisting an officer, and simple battery of a police
officer in 1990 for which he served time in parish jail and was put on probation; an
18
The PSI was placed in the record under seal and is considered confidential under La. C.Cr.P. art. 877.
Because Defendant raises a claim of excessive sentence on appeal, we have reviewed the PSI as permitted
by La. C.Cr.P. art. 877(C).
18-KA-445 32
arrest in 1990 for aggravated battery with a dangerous weapon resulting in a
finding of guilty of simple battery; a 1991 charge for aggravated battery which was
later reduced to simple battery for which Defendant served thirty days in parish
jail; a 1991 first degree murder arrest which was later quashed; a 1991 second
degree battery charge; charges in 1992 for discharge of a firearm, first degree
murder which was later reduced to [attempted] manslaughter, and felony
aggravated criminal damage to property for which Defendant was sentenced to
over ten years imprisonment; a 1992 charge for simple battery on a police officer;
a 1992 conviction for felony simple escape for which Defendant was sentenced to
five years imprisonment; a charge for attempted second degree murder resulting in
a not guilty verdict; and a 2010 driving while intoxicated offense.
The trial court concluded that there was an undue risk that during the period
of a suspended sentence or probation, Defendant would commit another crime
given his prior criminal history which included multiple arrests for violent crimes
and a previous conviction for attempted manslaughter. It ultimately agreed with
the PSI’s recommendation that Defendant receive the maximum sentence on each
count and that the two sentences be served consecutively, noting that a lesser
sentence would depreciate the seriousness of the offenses.
Defendant filed a motion to reconsider sentence under La. C.Cr.P. art. 881.1,
alleging his sentences were unconstitutionally excessive based on multiple
grounds, which was denied by the trial court. On appeal, Defendant only
challenges the consecutive nature of his sentences, arguing that the
consecutiveness of the sentences renders them excessive. He does not challenge
his individual maximum sentences as excessive.
The Eighth Amendment to the United States Constitution and Article I, § 20
of the Louisiana Constitution prohibit the imposition of excessive punishment. A
sentence is considered excessive if it is grossly disproportionate to the offense or
18-KA-445 33
imposes needless and purposeless pain and suffering. State v. Horne, 11-204 (La.
App. 5 Cir. 2/14/12); 88 So.3d 562, 569, writ denied, 12-0556 (La. 6/1/12); 90
So.3d 437. The trial judge is afforded broad discretion in sentencing, and a
reviewing court may not set aside a sentence for excessiveness if the record
supports the sentence imposed. Id.; La. C.Cr.P. art. 881.4(D).
In reviewing a sentence for excessiveness, an appellate court must consider
the crime and the punishment in light of the harm to society and gauge whether the
penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603
So.2d 739, 751 (La. 1992). On review, an appellate court does not determine
whether another sentence might have been more appropriate but whether the trial
court abused its discretion. Horne, 88 So.3d at 569. In considering whether the
trial court abused its discretion in sentencing a defendant, a reviewing court should
consider the nature of the crime, the nature and background of the offender, and
the sentences imposed for similar crimes by other courts. Id.In selecting a proper sentence, a trial judge is not limited to considering only
a defendant’s prior convictions but may properly review all prior criminal activity.
State v. Pamilton, 43,112 (La. App. 2 Cir. 3/19/08); 979 So.2d 648, 655-56, writ
denied, 08-1381 (La. 2/13/09); 999 So.2d 1145. The sentencing court may rely on
sources of information usually excluded from the courtroom at the trial of guilt or
innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles,
94-217 (La. 6/3/94); 638 So.2d 218, 219. These matters may be considered even
in the absence of proof the defendant committed the other offenses. State v. Doyle,
43,438 (La. App. 2 Cir. 8/13/08); 989 So.2d 864, 870.
When two or more convictions arise from the same act or transaction, or
constitute parts of a common scheme or plan, the terms of imprisonment “shall be
served concurrently unless the court expressly directs that some or all be served
consecutively.” La. C.Cr.P. art. 883. Although Article 883 favors the imposition
18-KA-445 34
of concurrent sentences for crimes committed as part of the same transaction or
series of transactions, like the ones committed in the instant matter, a trial court
retains the discretion to impose consecutive penalties on the basis of other factors,
including the offender’s past criminality, violence in the charged crimes, and the
risks he poses to the safety of the community. State v. Wilson, 14-551 (La. App. 5
Cir. 1/28/15); 167 So.3d 903, 912.
If the trial court imposes consecutive sentences for crimes arising from a
single course of conduct, it must articulate the reasons it feels the sentence is
necessary. Id. Although the imposition of consecutive sentences requires
particular justification when the crime arises from a single course of conduct,
consecutive sentences are not necessarily excessive. Wilson, 167 So.3d at 912.
In the present case, the trial court clearly provided reasons justifying the
imposition of consecutive sentences. The trial court took into consideration
defendant’s age, the facts of the case – including the fact that when officers arrived
at the scene to investigate a suspicious person report, they were fired upon for no
apparent reason – and his extensive criminal history, which included many arrests
and charges for violent crimes (some of which involved dangerous weapons) and
his previous attempted manslaughter conviction. Despite Defendant’s contention
to the contrary, the trial court properly considered his arrests as part of its
sentencing determination even though some of them did not result in a conviction.
See Pamilton, supra; Doyle, supra. The court also reasoned that Defendant’s
criminal history made him an undue risk for committing another crime. It further
found that Defendant was in need of correctional treatment and that a lesser
sentence would depreciate the seriousness of the crimes. We find these stated
reasons and the record support the imposition of consecutive sentences.
We further find that the consecutive nature of Defendant’s sentences do not
render them unconstitutionally excessive. Similar consecutive sentences have been
18-KA-445 35
upheld for similar crimes. See State v. Tillman, 47,386 (La. App. 2 Cir. 8/8/12);
104 So.3d 480, writ denied, 12-2035 (La. 1/25/13); 105 So.3d 714, where the
defendant’s total 83-year sentence (two 20-year sentences for attempted
manslaughter, 40 years for attempted second degree murder, and three years for
resisting an officer – all to run consecutively) was not found excessive where the
defendant had a criminal history including a prior arrest for two counts of second
degree murder for which he was acquitted, and where the defendant argued he was
not the first one to fire his weapon in a shooting outside of his home); State v.
Jones, 12-0891 (La. App. 4 Cir. 8/7/13); 122 So.3d 1065, writ denied, 13-2111
(La. 4/11/14); 137 So.3d 1212, where the defendants’ two consecutive 40-year
sentences for two counts of attempted second degree murder were not found
excessive considering the defendants’ actions during the drive-by-shooting where,
in addition to the two victims of the attempted second degree murder, bullets
struck several residences within two city blocks; State v. Vollm, 04-837 (La. App. 3
Cir. 11/10/04); 887 So.2d 664, 670, where the defendant’s two consecutive 32-year
sentences for two counts of attempted first degree murder were upheld when two
police officers were shot during the course of an investigatory stop; and State v.
Johnson, 11-1320, (La. App. 1 Cir. 2/13/12); 90 So.3d 556, where the defendant’s
consecutive two 50-year sentences for attempted first degree murder of two police
officers and 15-year sentence for possession of a firearm by a convicted felon were
not found to be excessive on the basis the defendant had an extensive, violent
criminal history; had repeatedly shown a complete disregard for human life; and
had disrespected law enforcement, the judicial system, and the community.
We find that Defendant’s consecutive sentences are not a needless infliction
of pain and suffering and are not grossly out of proportion to the severity of the
crimes; thus, they are not unconstitutionally excessive. Defendant’s violent and
deliberate actions against Officer Dufresne while performing his lawful duties as a
18-KA-445 36
peace officer were a grievous offense befitting serious consequences. The
evidence at trial established that Defendant immediately opened fire for no
apparent reason as the officers exited their vehicles in the middle of a residential
neighborhood near bystanders, causing a risk of undue harm to everyone in the
neighborhood. Based on these facts, we find no abuse of the trial court’s discretion
in imposing consecutive maximum sentences.
ERRORS PATENT
The record was reviewed for errors patent in accordance with La. C.Cr.P.
art. 920. We find Defendant was not properly advised of the applicable
prescriptive period for post-conviction relief. Specifically, the sentencing minute
entry and transcript reflect the trial court informed Defendant that he had “two
years to request any post-conviction relief, including out-of-time appeal, according
to code of criminal procedure 930.8” but failed to advise him that the time period
ran from when his conviction and sentence become final. Therefore, by way of
this opinion, we advise Defendant that no application for post-conviction relief,
including applications which seek an out-of-time appeal, shall be considered if it is
filed more than two years after the judgment of conviction and sentence have
become final under the provisions of La. C.Cr.P. arts. 914 or 922.
DECREE
For the foregoing reasons, Defendant’s convictions and sentences for
attempted first degree murder and felon in possession of a firearm are affirmed.
AFFIRMED
18-KA-445 37
SUSAN M. CHEHARDY MARY E. LEGNON
CHIEF JUDGE INTERIM CLERK OF COURT
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
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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
MAY 22, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
18-KA-445
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HON. KATHERINE TESS STROMBERG (DISTRICT JUDGE)
LINDSEY D. MANDA (APPELLEE) LIEU T. VO CLARK (APPELLANT)
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DISTRICT ATTORNEY LOUISIANA STATE PENITENTIARY
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