State of Louisiana v. Kendall Barnes Derrick Groves

STATE OF LOUISIANA * NO. 2020-KA-0450

VERSUS *
COURT OF APPEAL
KENDALL BARNES *
DERRICK GROVES FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 544-352, SECTION “D”
Honorable Paul A. Bonin, Judge
******
Judge Dale N. Atkins
******
(Court composed of Judge Sandra Cabrina Jenkins, Judge Tiffany G. Chase, Judge
Dale N. Atkins)

JENKINS, J., CONCURS WITH REASONS

Jason R. Williams
DISTRICT ATTORNEY
G. Ben Cohen
CHIEF OF APPEALS
Adele Krieger
ASSISTANT DISTRICT ATTORNEY
ORLEANS PARISH
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE

Mark D. Plaisance
Marcus J. Plaisance
ATTORNEYS AT LAW
PO Box 1123
Prairieville, LA 70769

COUNSEL FOR DEFENDANTS/APPELLANTS

CONVICTIONS AND SENTENCES FOR SECOND DEGREE MURDER
AND ATTEMPTED SECOND DEGREEE MURDER VACATED;
CONVICTIONS FOR FELON IN POSSESSION OF A FIREARM
AFFIRMED; REMANDED
June 10, 2021

DNA
TGC This is a criminal case. Defendants, Kendall Barnes and Derrick Groves

(collectively, “Defendants”), appeal their convictions and sentences for second

degree murder and attempted second degree murder. Additionally, Defendant

Barnes appeals his two convictions and sentences for possession of a firearm by a

convicted felon. For the following reasons, we vacate Defendants’ convictions for

second degree murder and attempted second degree murder and remand for further

proceedings. Further, we affirm Defendant Barnes’ convictions and sentences for

possession of a firearm by a convicted felon but remand for the imposition of the

mandatory fines.

FACTUAL AND PROCEDURAL HISTORY

On February 13, 2018, Mardi Gras evening, a group of people convened at a

house in the 5400 block of St. Claude Avenue in the Lower 9th Ward

neighborhood in New Orleans, Louisiana. Some of the people gathered outside.

Beginning around 8:11 p.m., the New Orleans Police Department (“NOPD”)

received seven 911 calls reporting a shooting on St. Claude Avenue. In the course

of the shooting, Jamar Robinson and Byron Jackson were shot and killed; and Eric

Robinson, Fred Henry, and Dalvin Wright were shot and injured.

1

On January 31, 2019, an Orleans Parish grand jury indicted both Defendants

for the February 13, 2018 second degree murder of Jamar Robinson and Mr.

Jackson, violations of La. R.S. 14:30.1; the attempted second degree murders of

Eric Robinson, Mr. Henry, and Mr. Wright, violations of La. R.S. 14:(27)30.1; and

one count each of obstruction of justice, violations of La. R.S. 14:130.1.1 The

grand jury also indicted Defendant Barnes for two counts of possession of a

firearm by a convicted felon, violations of La. R.S. 14:95.1: one count related to

the date of the murders and attempted murders on February 13, 2018, and the other

related to February 15, 2018, two days after the murders and attempted murders.

A jury trial commenced on October 21, 2019 and continued through October

24, 2019. In voir dire proceedings, Defendants challenged two particular jurors for

cause due to their alleged connection to the State’s attorneys, but the district court

denied their challenges. Defendants subsequently used peremptory challenges to

strike these jurors.

On October 22, 2019, after trial began, Defendant Barnes moved to sever the

second count of possession of a firearm by a convicted felon from the rest of the

charges. The district court denied the motion to sever.

Ultimately, the jury rendered its verdicts on October 24, 2019. The jury

found both Defendants guilty as charged by non-unanimous verdicts for the second

degree murder of Jamar Robinson and Mr. Jackson, as well as for the attempted

second degree murder of Eric Robinson and Mr. Henry. The jury found Defendants

not guilty of the attempted second degree murder of Mr. Wright. Additionally, the

1
On October 22, 2019, the State dismissed the obstruction of justice charges as to both
Defendants.

2

jury unanimously found Defendant Barnes guilty of both counts of possession of a

firearm by a felon.

Following trial, both Defendants moved for post-verdict judgments of

acquittal and for a new trial. In Defendant Groves’ motion for new trial, he argued

that his convictions should be set aside because the verdicts for his murder and

attempted murder convictions were not unanimous. On November 7, 2019, the

district court denied Defendants’ motions for post-verdict judgments of acquittal

and for a new trial.

On November 22, 2019, the district court sentenced both Defendants to life

sentences, without the benefit of probation, parole, or suspension of sentence, for

their second degree murder convictions. With regard to Defendants’ attempted

second degree murder convictions, the district court imposed concurrently-running

sentences of thirty years without the benefit of probation, parole, or suspension of

sentence. For Defendant Barnes’ conviction for being a felon in possession of a

firearm on February 13, 2018, the district court imposed a sentence of fifteen years

without the benefit of probation, parole, or suspension of sentence, to be served

concurrently with the other sentences imposed. As to Defendant Barnes’ other

conviction for possession of a firearm by a convicted felon on February 15, 2018,

the district court sentenced Defendant Barnes to twenty years’ incarceration

without the benefit of probation, parole, or suspension of sentence to be served

concurrently with the other sentences imposed. Defendants’ timely appeal of their

convictions and sentences followed.

DEFENDANTS’ TRIAL

The following evidence and testimony was presented at Defendants’ trial:

3

Dr. Erin O’Sullivan

Dr. Erin O’Sullivan testified as an expert forensic pathologist. Dr.

O’Sullivan explained that she worked at the Orleans Parish Coroner’s Office and

she performed the autopsies on Jamar Robinson and Mr. Jackson. Dr. O’Sullivan

recounted that Jamar Robinson had sustained gunshot wounds to his arm and chest.

She concluded that someone with that type of injury could survive only “[a] few

minutes[,]” and she ruled his death a homicide. Additionally, Dr. O’Sullivan stated

that Mr. Jackson had sustained a gunshot wound to the head. She provided that

someone with that type of injury could survive only for “minutes[,]” and she ruled

Mr. Jackson’s death a homicide, as well.

Detective Michael Poluikis

Detective Michael Poluikis of the NOPD Homicide Unit testified that, on

February 13, 2018, he responded to a reported shooting that had occurred in the

5100 block of St. Claude Avenue. Det. Poluikis stated that when he arrived at the

scene, he came upon a crowd of hundreds of people gathered at a gas station and at

the attached convenience store. Det. Poluikis reported that he assisted in

documenting the physical evidence at the scene. While at the scene, Det. Poluikis

observed a sedan with bullet holes, strike marks, two flat tires, and a shattered

window. Det. Poluikis learned that there were two deceased victims and three other

victims of the shooting. He testified that one of the deceased victims had expired

after Emergency Medical Services transported the victim for medical treatment

prior to Detective Poluikis’ arrival at the scene. Det. Poluikis discovered that the

other deceased victim was inside the sedan Det. Poluikis had seen that was

damaged by bullet holes and had a shattered window. The victim’s body

apparently sustained bullet wounds. Det. Poluikis explained that no one

4

approached him at the scene with a description of or information about the shooter

but that “[i]n [his] experience investigating violent crimes, the night of, to get

information is somewhat rare regarding a suspect’s name or a significant lead like

who might be responsible, for any number of reasons.”

Det. Poluikis stated that investigators quickly ascertained that the shooting

had not occurred at the gas station. Rather, investigators ultimately concluded that

the shooting happened about three blocks away from the gas station, at a house

located in the 5400 block of St. Claude Avenue, where other detectives located

many spent bullet casings. Det. Poluikis explained, however, that he neither went

to the actual scene of the shooting nor spoke with any of the victims who survived

the shooting. Det. Poluikis provided that the lead detective assigned to this incident

was Detective Maggie McCourt.

Detective Maggie McCourt

Detective McCourt, also of the NOPD Homicide Unit, testified, that on

February 13, 2018, she responded to a call in the 5100 block of St. Claude Avenue

and met with Det. Poluikis upon arrival. Det. Poluikis notified her that five victims

had been shot; that one victim died at the gas station on the 5100 block of St.

Claude Avenue; that another victim died after transportation to a hospital; and that

the actual scene of the crime was in the 5400 block of St. Claude Avenue. Det.

McCourt confirmed that there were “a lot”2 of spent shell casings on the 5400

block of St. Claude Avenue, as well as several vehicles that sustained damage from

bullets. Det. McCourt noted during her testimony that investigators never

recovered any weapons that matched the spent shell casings. She described the gas

2
At trial, the State presented over one hundred spent shell casings that had been collected from
the scene by investigators.

5

station scene as “chaotic” and explained that she did not speak to any witnesses at

the scene. She explained that “[i]t would be rare for someone on scene to flag

down an officer in front of a multitude of people to say they are a witness to a

crime, especially something that was . . . as much . . . gunfire that was involved.”

Det. McCourt also discussed her progress in investigating the shootings. Det.

McCourt testified that, on February 14, 2018, the morning after the shooting, she

received an Instagram video from Agent Matthew Richard of the Bureau of

Alcohol, Tobacco, Firearms and Explosives. The video was an Instagram video of

someone with the username “A.Woothy” who was rapping a song about killing

two people shortly after the homicide. Det. McCourt identified the video and it was

offered into evidence. Defendants objected to its admission for lack of foundation,

and the district court allowed the evidence. Det. McCourt stated the video depicted

two individuals: one was Defendant Groves, whose nickname is “Woo,” and the

other was Defendant Barnes. During Det. McCourt’s testimony, the State played

the video for the jury, over Defendants’ objections.

Det. McCourt explained that, in the days after the shooting, she interviewed

two of the shooting victims, namely Eric Robinson and Mr. Henry, but neither

cooperated or provided useful information. Det. McCourt stated that on February

16, 2018, she spoke with Chelsea Thomas who was present at the shooting with

her boyfriend, Richard Green. The witness told Det. McCourt that there were two

shooters on the night of the shooting.

Det. McCourt testified that on February 19, 2018, she received information

that federal agents arrested Defendant Barnes pursuant to an arrest warrant for

possession of a firearm by a convicted felon and seized two cellular phones from

him during Defendant Barnes’ arrest. Additionally, Det. McCourt explained that a

6

sergeant in the Multiagency Gang Unit of the NOPD contacted her on March 12,

2018, to notify her of an individual who wished to speak with her about the

investigation. Det. McCourt interviewed the individual, Patrick Schexnayder, but

he refused to permit a recording of the conversation. According to Det. McCourt,

during a separate, recorded proceeding, NOPD Detective Sergeant Robert Barrere

showed Mr. Schexnayder a lineup, from which Mr. Schexnayder identified

Defendant Barnes as one of the shooters from February 13, 2018.3

Det. McCourt further testified that she obtained an arrest warrant for

Defendant Barnes for second degree murder and attempted second degree murder

following Mr. Schexnayder’s identification. Det. McCourt stated that, after

Defendant Barnes’ arrest, she interviewed Defendant Barnes. The State played

audio from Defendant Barnes’ recorded statement for the jury. Defendant Barnes

denied that he was at the scene of the shooting on February 13, 2018. According to

Det. McCourt, Defendant Barnes stated that he had been on Bourbon Street in the

French Quarter for most of the day of the shooting and went to the Lower 9th

Ward around 7 or 8 p.m. after receiving a text message indicating that someone

named “PS” had been shot. Further, Det. McCourt explained that Defendant

Barnes provided the names of two friends that he was with that day, neither of

which was Defendant Groves.

Det. McCourt stated that Defendant Barnes ultimately said that Defendant

Groves was also with him that day. Det. McCourt stated that by June 2018,

3
The State called Mr. Schexnayder to testify at trial. Despite having reached a plea agreement in
federal court in which he agreed to cooperate with this investigation, Mr. Schexnayder refused to
answer any questions other than confirming that he was presently incarcerated on federal
charges. Det. Barrere also testified at trial that he worked in the Homicide Division of the NOPD
and confirmed that he assisted Det. McCourt with a lineup on March 12, 2018. In particular, he
explained that he showed a lineup to Mr. Schexnayder, who identified a photograph in the lineup
as “Kendall, the shooter from Mardi Gras night.”

7

Defendant Groves’ name had come up “[t]hroughout the duration of the

investigation” and that “[n]umerous” people provided Defendants’ names as

suspects in the shooting.” Det. McCourt testified that, in August 2018, she

interviewed the third surviving victim, Mr. Wright, who provided information but

did not identify anyone; and, she re-interviewed Mr. Henry who did not provide

any new information from his first interview.

Agent Crystal Bender

FBI Agent Crystal Bender also testified at trial. She stated that, in February

2018, she was on assignment with the New Orleans Violent Crime Task Force. She

explained that in this capacity, she participated in the investigation of the shootings

that occurred on February 13, 2018, on St. Claude Avenue. Agt. Bender stated that

she holds an FBI certification to serve as an undercover online employee, which

enables her to create an undercover social media page to befriend the people she

investigates on social media and to follow them and look at their social media

pages.

Agt. Bender testified that she had already been monitoring Defendants based

upon other suspected criminal activities4 by Defendants in the months prior to the

February 13, 2018 shootings, but increased her efforts following the subject

shootings. Agt. Bender provided background information on the video the State

had already played during Det. McCourt’s testimony. Specifically, Agt. Bender

related that she observed and recorded the video in connection with her social

media monitoring of Defendants. Agt. Bender testified that, while she observed

and recorded the video on February 14, 2018, at approximately 8:45 a.m., she

4
According to Agent Bender, she first began looking into Defendant Groves around 2014 and
began looking into Defendant Barnes “a little bit later. We knew he was an associate of Derrick
Groves, but we knew about Derrick Groves first.”

8

ascertained that it had been posted around 9:45 p.m. on February 13, 2018, the

night of the shootings. After the State replayed the video during Agt. Bender’s

testimony over Defendants’ objection, Agt. Bender stated that the video depicted

Defendants holding firearms and singing lyrics about killing people. Agt. Bender

explained that she recorded the video because she had heard about the shootings on

February 13, 2018. In addition, Agt. Bender testified about a second video, as well

as a screenshot from that second video, that she captured on February 15, 2018.

Agt. Bender described the second video as depicting Defendant Barnes holding an

“AR-style rifle in his hand.”

Agt. Bender explained that she participated in arresting Defendant Barnes on

February 19, 2018. Agt. Bender testified that she interviewed Defendant Barnes

following his arrest and that he informed her that he, Defendant Groves, and two

other friends were together on February 13, 2018. As Agt. Bender relayed it,

Defendant Barnes stated that he, Defendant Groves, and their friends spent time on

Basin and Canal Streets in New Orleans and went to the Popeye’s restaurant on

Canal Street around 7 or 8 p.m. on February 13, 2018. Agt. Bender stated that she

also questioned Defendant Barnes about the social media posts of him holding a

weapon to which he responded that “on Mardi Gras day he did take a photograph”

and that “he knew that gun was real . . . .”

Eric Robinson

Eric Robinson, who was present at the scene during the shooting, also

testified at trial. At the outset, Eric Robinson admitted that he had one prior state

conviction for possession with intent to distribute marijuana and that he was

currently facing firearm and drug offense charges in state court, along with federal

charges. He confirmed that, in connection with his federal charges, he pled guilty

9

and signed a cooperation agreement to neither implicate anyone falsely, exculpate

anyone, nor protect anyone falsely in his testimony. He explained that he received

no promises regarding his federal sentencing pursuant to that agreement, but he

hoped for leniency. Further, he reported that he understood that he could receive

perjury charges for lying on the witness stand but that his testimony was the truth.

Eric Robinson testified that the two deceased victims of the subject

shootings, Jamar Robinson and Mr. Jackson, were his first cousin and best friend,

respectively. Eric Robinson testified that on the evening of February 13, 2018, he,

along with numerous friends, were gathered outside of his aunt’s house, i.e. Jamar

Robinson’s mother’s house, in the 5400 block of St. Claude Avenue. Eric

Robinson explained that while the group gathered, “a random car just pulled up at

the corner of Andry and St. Claude and just stopped and sat there for a few

minutes. And then that’s when they just skirted off . . . like they [were] . . . up to

something or whatever.” Eric Robinson stated that he did not recognize the car and

could not see the passenger(s) inside because the windows were tinted.

According to Eric Robinson, about “15 minutes later, guys just ran up and

just started shooting . . . .” Eric Robinson testified that, when the shooting

commenced, he was approximately five feet from the shooters but then ran away

from the shooters and towards the house, at which point he was shot six times. Eric

Robinson identified Defendants by name and in open court as the shooters. He

stated that he had known Defendants since about 2013 and recognized them on the

night of the shooting.

Eric Robinson recounted, however, that he spoke to a detective while he

recuperated in the hospital after the shooting and informed the detective that he did

not know who the perpetrators were “because [he] was trying to handle the

10

incident [himself].” He explained that ultimately he “started thinking clear[ly]. . .

and came forward” with the information in part because he had “seen [his] family

and [his] aunt just going through it every day, every day, and [he] just kept lying to

her, just telling them that [he did not] know what was going on, and [he] really

did.” Eric Robinson reported that he took the witness stand despite fearing for his

family members’ safety due to his testimony.

Richard Green

Mr. Green, another eyewitness to the shooting, also testified and

admitted that he had a prior state conviction for attempted armed robbery and was

currently incarcerated on federal charges to which he had already pled guilty but

was awaiting sentencing. Mr. Green confirmed that, in connection with his guilty

plea, he signed a cooperation agreement, which provided that he “would be willing

to testify truthfully and give any information that law enforcement is seeking . . . .”

Mr. Green affirmed that he understood that one condition of his cooperation

agreement was not to lie in his testimony, and he asserted that he was telling the

truth. He hoped that, in exchange for his testimony, a federal judge might consider

his cooperation favorably in sentencing him.

Mr. Green identified Eric and Jamar Robinson as his childhood friends and

explained that, in the evening on February 13, 2018, he, Eric, and Jamar gathered

outside of Jamar’s mother’s house with other friends. Mr. Green stated that he and

several others noticed a vehicle that “just kept making the block” and that “[i]t was

up to something . . . .” Mr. Green testified that he did not recognize the vehicle and

could not ascertain who was inside due to the vehicle having tinted windows. As

Mr. Green explained, ultimately, “two people just ran up and just started shooting.”

He identified the shooters as Defendants and informed that he had known

11

Defendants since they were children. Mr. Green believed that he was the target of

the shooting. He explained that he left the scene before police arrived and elected

not to speak with the police initially after the shootings because he “was wanted by

the police” at that time. Mr. Green confirmed that he did not identify Defendants as

the shooters until after he was in custody. Mr. Green also stated that he chose to

testify after hearing about Jamar Robinson’s and Mr. Jackson’s family members’

grief.

Agent James Ollinger

Special Agent James Ollinger of the FBI New Orleans Violent Crime Task

Force testified at trial that he was assigned to the Gang Task Force on February 13,

2018, at which time he learned of the double homicide on St. Claude Avenue. Agt.

Ollinger explained that he switched to the Violent Crime Task Force in May 2018,

and began focusing on the subject shooting at that time. As Agt. Ollinger

explained, by May 2018, he knew that Defendant Barnes had been identified as a

suspect5 in the shootings, and that another individual in addition to Defendant

Barnes had been involved in the shootings. Regarding the other individual, Agt.

Ollinger stated that “[Defendant Groves’] name had come up as possibly being the

second shooter in this event.”

Additionally, Agt. Ollinger discussed an interview he conducted with

Defendant Groves in October 2018, in which Defendant Groves “indicated that he

and [Defendant] Barnes, [and two other friends] were all together that Mardi Gras

Day. They were in the French Quarter and then they stayed in the French Quarter

and did not return back to [the] Lower 9th Ward until after they had heard a

5
Agt. Ollinger specified that he believed Mr. Schexnayder was the one to initially identify
Defendant Barnes.

12

shooting had taken place.” Agt. Ollinger participated in the arrest of Defendant

Groves and interviewed him in October 2018 and January 2019. Regarding the

information that Defendant Groves provided in the interviews, Agt. Ollinger stated

that “the fact that they were together and did not return to the 9th Ward until after

the shooting . . . ended up being not consistent with what we later learned.”

During Agt. Ollinger’s testimony, the State played the audio from his

interview with Defendant Groves. During the interview, Defendant Groves’ prior

arrests for other criminal activity were discussed. Defendant Groves moved for a

mistrial based on the jury hearing inadmissible “other crimes”6 evidence, which the

district court denied.

Agt. Ollinger also testified that he separately interviewed Eric Robinson, Mr.

Green, and Mr. Schexnayder; and, Agt. Ollinger contended that the testimony Eric

Robinson and Mr. Green gave in open court was consistent with the information

that they had provided to him. In particular, Agt. Ollinger stated that he

interviewed Mr. Green in January 2019, at which time Mr. Green identified

Defendants as the shooters and described the location of various people, structures,

and vehicles at the scene on the night of the shootings. Further, during the

interview, Agt. Ollinger showed pictures of Defendants to Mr. Green “to

6
La. C.E. art. 404(A) provides that, generally, “[e]vidence of a person’s character or a trait of his
character, such as a moral quality, is not admissible in a civil or criminal proceeding for the
purpose of proving that he acted in conformity therewith on a particular occasion[.]”
Additionally, La. C.E. art. 404(B) provides that:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident, provided that upon request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial, of the nature of any such
evidence it intends to introduce at trial for such purposes, or when it relates to
conduct that constitutes an integral part of the act or transaction that is the subject
of the present proceeding.

13

completely ensure we were talking about the same individuals that we had been

discussing this whole time.” Agt. Ollinger stated that Mr. Green confirmed that

Defendants were the ones he identified as the shooters on February 13, 2018.

Likewise, in January 2019, Agt. Ollinger stated that he interviewed Eric Robinson

who also described the scene on the night of February 13, 2018, and confirmed that

Defendants were the shooters and also were the individuals in the photos shown to

him by Agt. Ollinger.

During his testimony, Agt. Ollinger mentioned that investigators obtained

search warrants for Defendants’ cell phone records and that Special Agent William

Charles Williams of the FBI’s Cellular Analysis Survey Team handled those

records. The State asked Agt. Ollinger whether Defendants’ cell phone records

were “consistent with what Kendall Barnes and Derrick Groves had indicated

where they were at the time the homicide occurred[,]” and Agt. Ollinger testified

that the cell phone records were not consistent with Defendants’ explanations. He

clarified that “tower cell phone location information matched up with [Defendants]

being near the crime scene at the time of the murder.”

Agent William Charles Williams

Agt. Williams7 testified as an expert in historical cell site analysis. Agt.

Williams described “what is significant to [his] work is [] the particular tower that

was used in the transaction and—is noted on those records.”8 He explained that, in

7
Agt. Williams explained that to become a member of the Cellular Analysis Survey Team, he
“received over 500 hours of specialized training from the FBI, from third-party vendors, and a
significant amount of that training is through the personnel with the big four cell providers:
AT&T, T-Mobile, Sprint, and Verizon.”
8
Agt. Williams provided background information on cellular data analysis:

Just a little bit about the methodology, which we’ve already spoken to. An
investigator, being a special agent or detective, or even the District Attorney’s

14

February 2018, he served on the Violent Crime Task Force and that Agt. Ollinger

“asked [him] to opine on the approximate location of [certain] phones[9] both

immediately before and after a homicide that occurred approximate to 5400 St.

Claude Avenue, and it was provided to me that the 911 call occurred at

approximately 8:11.” Agt. Williams summarized his findings that “[w]e know both

before and after the time [Defendants’ phones] were in the French Quarter, they

utilized the [cell phone] towers in close proximity to the crime scene.”

Janis Robinson

Janis Robinson testified that she is Eric Robinson’s mother and Jamar

Robinson’s aunt. She testified that, on the evening of February 13, 2018, she went

to her sister’s home on the 5400 block of St. Claude Avenue after attending a

Mardi Gras parade earlier that day. Ms. Robinson explained that, immediately

before the shootings, she walked outside to tell Eric Robinson that she intended to

Office, a law enforcement agency, receives the records, and what we do is,
amongst the many things that we do, in this particular case, we would take those
records and map those calls or where—the towers that were utilized where those
calls were made, and opine on the general location of the phone at those times.

....

And your cell phone decides which tower is going to be used to initiate contact
with a network, and that is what is first reported on any given line item for the
business record.

....

The phone is always going . . . to choose the best signal. That is an infallible
known, and that is often—not always, but, most predominantly, is going to be the
closest tower to you.

....

[A]nd these little cell towers . . . they’re pointed down so they cover a very small
area of the Earth.

So, with that, we can opine on the—knowing which tower is used, we can opine
on the general location of the phone.
9
Agt. Williams explained that he received two phone numbers attributed to Defendant Barnes
and one phone number attributed to Defendant Groves.

15

go home but heard a gunshot. Ms. Robinson provided that, upon the start of

gunfire, she brought her “little girl” inside before returning outside to the porch,

which proved to be a relatively safe spot to witness the shootings because no

bullets traveled in the direction of the house. She provided physical descriptions of

two shooters and stated that she “didn’t know them personally, but . . . knew them

from the Lower 9th Ward.” In particular, Ms. Robinson stated that she had seen

Defendant Groves “multiple times” in the Lower 9th Ward. In open court, Ms.

Robinson identified Defendants as the shooters. Ms. Robinson explained that no

police officers questioned her on the night of the shootings and that she did not

independently come forward with the identifications until the week before trial

commenced because she was afraid and “skeptical about which route [she] should

take.”

Following presentation of the witnesses’ testimony, Defendant Barnes

stipulated that he was a convicted felon, having been convicted of possession with

the intent to distribute heroin on June 12, 2018.

ERRORS PATENT

In accordance with La. C.Cr.P. art. 920, we review all appeals for errors

patent. An error patent is one “that is discoverable by a mere inspection of the

pleadings and proceedings and without inspection of the evidence.” La. C.Cr.P.

art. 920(2).

Upon review of the record, we note two errors patent. First, La. R.S.

14:95.1(B) provides, in pertinent part, that a person convicted of possession of a

firearm by a convicted felon “shall be imprisoned at hard labor for not less than

five nor more than twenty years without the benefit of probation, parole, or

suspension of sentence and be fined not less than one thousand dollars nor more

16

than five thousand dollars.” Here, the district court failed to impose the mandatory

fine for Defendant Barnes’ convictions for possession of a firearm by a convicted

felon. In State v. Williams, 2003-0302, p. 3 (La. App. 4 Cir. 10/6/03), 859 So.2d

751, 753, this Court held that a reviewing court must remand cases for the

imposition of a mandatory fine where the trial court has failed to do so. See also

State v. Dorsey, 2020-0029, pp. 4-5 (La. App. 4 Cir. 12/9/20), ___ So.3d ___, 2020

WL 7240008, *3.

Second, the jury verdicts convicting Defendants of second degree murder

and attempted second degree murder were non-unanimous. A non-unanimous

verdict is an error patent under Louisiana law. See, e.g., State v. Monroe, 2020-

00335 (La. 6/3/20), 296 So.3d 1062. The Louisiana Supreme Court has directed

appellate courts to consider non-unanimous jury verdicts as part of the appellate

courts’ error patent reviews in light of Ramos v. Louisiana, 590 U.S. ____, 140

S.Ct. 1390, 206 L.Ed.2d 583 (2020), even if a defendant did not preserve the claim

for review or abandoned the claim at some stage of the proceedings. See Monroe,

2020-00335, 296 So.3d 1062 (citing La. C.Cr.P. art. 920(2)); see also State v.

Taylor, 2018-1039 (La. App. 4 Cir. 6/17/20), 302 So.3d 145. Accordingly, as

discussed more fully below in conjunction with our discussion of Defendants’

assignments of error, we vacate Defendant’s second degree murder and attempted

second degree murder convictions because the verdicts were not unanimous. We

remand this matter for new trials on Defendants’ second degree murder and

attempted second degree murder charges.

17

DISCUSSION

Joint Representation on Appeal

At the outset, before discussing Defendants’ assignments of error, we note

that, though Defendants were separately represented at trial, they are represented

by a single law firm on appeal. Accordingly, on November 30, 2020, while this

appeal was pending before this Court, we ordered appellate counsel to show cause,

in writing, whether counsel’s joint representation of defendants created a conflict

of interest. In response, on December 29, 2020, defense counsel filed a

memorandum and “affidavits”10 from both Defendants waiving any potential

conflict of interest and attesting that neither believed a conflict of interest existed,

explaining: “While at trial we had separate counsel, we did not have conflicting

defenses. Our position then and now remains we were not involved in the alleged

crime and did not point the finger at each other. The brief filed on our behalf

reflects that position.”

It is well-established that “multiple representation does not violate the Sixth

Amendment unless it gives rise to a conflict of interest.” Cuyler v. Sullivan, 446

U.S. 335, 348 (1980) (citing Holloway v. Arkansas, 435 U.S. 475, 482 (1978)).

The Court explained, however, that because a possible conflict of interest exists in

almost every instance of multiple representation, a litigant who objects to multiple

representation must have an opportunity to show that potential conflicts imperil his

right, in this instance, to a fair appeal. Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718.

Furthermore, “[n]o conflict results from multiple representation when the defenses

are compatible and consistent and neither defendant tries to inculpate the

10
Defendants’ affidavits are not notarized and were attached to defense counsel’s memorandum
filed in response to this Court’s November 30, 2020 Order.

18

other.” State v. Hughes, 587 So.2d 31 (La. App. 2 Cir. 1991) (citing State v.

Kahey, 436 So.2d 475 (La. 1983)).

Defendants raised no objection to their joint representation by retained

counsel on appeal. Additionally, Defendants did not present incompatible defenses

at trial or on appeal. Both Defendants raised the same defense, i.e., that they were

not present when the shootings occurred and neither accused the other of having

singularly committed the shootings. Thus, there is no basis to conclude that a

conflict of interest exists based upon Defendants’ joint representation on appeal.

Assignments of Error

Defendants assign eight errors on appeal:

(1) The jury erred in finding that the State presented sufficient
evidence to convict Defendants of second degree murder,
attempted second degree murder, and possession of a firearm by a
convicted felon;

(2) The district court erred by allowing the State to introduce social
media evidence that had not been properly authenticated;

(3) The district court erred in denying Defendant Groves’ motion for
mistrial because the State made impermissible reference to
inadmissible other crimes evidence;

(4) The district court erred in allowing the State to introduce 911 calls
into evidence because the calls are testimonial in nature and
violated Defendants’ right to confrontation;

(5) The district court erred in denying Defendant Barnes’ motion to
sever two counts of a felon in possession of a firearm;

(6) The district court erred in not striking two prospective jurors for
cause, thus forcing Defendants to use peremptory challenges;

(7) Defendants are entitled to a new trial because their convictions for
second degree murder and attempted second degree murder were
non-unanimous; and

(8) Because Defendant Barnes is entitled to a new trial regarding the
second degree murder and attempted second degree murder

19

convictions, Defendant Barnes should also receive a new trial
regarding his convictions for felon in possession of a firearm.

We discuss Defendants’ assignments of error out of order due to the non-

unanimous verdicts in this case. Further, we do not discuss Defendants’ third and

fourth assignments of error, as our Opinion vacating Defendants’ convictions for

second degree murder and attempted second degree murder and remanding this

matter for a new trial renders Defendants’ third and fourth assignments of error

moot.

Assignment of Error No. 1: Sufficiency of the Evidence

In their first assignment of error, Defendants argue that the evidence

introduced at trial is insufficient to support their convictions for second degree

murder, attempted second degree murder, and for Defendant Barnes’ convictions

for being a felon in possession of a firearm. In particular, they contend that there is

a lack of physical evidence and that the eyewitness accounts are untrustworthy and

insufficient to support their convictions.

This Court has held that when appellants argue both insufficient evidence to

support a conviction and unconstitutional verdicts based on non-unanimous jury

votes under Ramos v. Louisiana, 590 U.S. _____, 140 S.Ct. 1290, 206 L.Ed. 582

(2020), the Court must address the appellants’ insufficiency of evidence argument

first. State v. Dorsey, 2020-0029, p. 6 (La. App. 4 Cir. 12/9/20), ___ So.3d ___,

2020 WL 7240008, *3; State v. Hunter, 2019-0901, p. 1 (La. App. 4 Cir. 5/27/20),

___ So.3d ___, 2020 WL 2751914, *1. The Louisiana Supreme Court has

explained the standard of review for a sufficiency of the evidence claim, as well as

the reasoning behind discussing the sufficiency of the evidence prior to other

issues raised on appeal:

20

When issues are raised on appeal both as to the sufficiency of the
evidence and as to one or more trial errors, the reviewing court should
first determine the sufficiency of the evidence. 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
accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) in the light most favorable to the prosecution,
could not reasonably conclude that all of the essential elements of the
offense have been proved beyond a reasonable doubt.

State v. Hearold, 603 So.2d 731, 734 (La. 1992).

We review sufficiency of the evidence prior to reviewing anything else

because, if there is not sufficient evidence to support a conviction, an accused is

not entitled to a new trial; rather, an accused is entitled to an acquittal. If an

accused is entitled to an acquittal, this prevents the need for a retrial. State v.

Gaines, 1996-1850, p. 4 (La. App. 4 Cir. 1/29/97), 688 So.2d 679, 682. As

discussed in Gaines, even if the record presents an error so prejudicial as to

warrant a new trial, there can be no new trial if there is insufficient evidence. Id. at

n. 2. Further, in State v. Morris, the Louisiana Supreme Court held that if an

appellate court fails to address the sufficiency of the evidence when raised, then

this constitutes error. 615 So.2d 327, 328 (La. 1993). Accordingly, we review

Defendants’ claim regarding the sufficiency of the evidence first.

Appellate courts review the sufficiency of evidence by determining whether,

after viewing all of the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found that all of the elements of the offense had

been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

State v. Tate, 2001-1658, p. 4 (La. 5/20/03), 851 So.2d 921, 928. Therefore, we

review the record to ascertain whether, after viewing the evidence in the light most

favorable to the State, any rational trier of fact could have found that the State

21

proved beyond a reasonable doubt all of the elements of second degree murder,

attempted second degree murder, and felon in possession of a firearm.

La. R.S. 14:30.1(A)(1) defines second degree murder as the “killing of a

human being . . . when the offender has a specific intent to kill or to inflict great

bodily harm.” Under La. R.S. 14:27(A), “[a]ny person who, having a specific

intent to commit a crime, does or omits an act for the purpose of and tending

directly toward the accomplishing of his object is guilty of an attempt to commit

the offense intended; and it shall be immaterial whether, under the circumstances,

he would have actually accomplished his purpose.”

Additionally, for possession of a firearm by a felon under La. R.S. 14:95.1,

the State had to prove beyond a reasonable doubt that Defendant Barnes: 1)

possessed a firearm; 2) was previously convicted of an enumerated felony; 3)

possessed the firearm within ten years of the previous conviction; and 4) had the

general intent to commit the crime. The jury unanimously found Mr. Barnes guilty

of two counts of possession of a firearm by a felon in violation of La. R.S. 14:95.1.

Specific intent “exists when the circumstances indicate that the offender

actively desired the prescribed criminal consequences to follow his act or failure to

act.” La. R.S. 14:10(1). “Specific intent may be inferred from the circumstances

and the defendant’s actions.” State v. Smith, 1994-2588, p. 5 (La. App. 4 Cir.

3/27/96), 672 So.2d 1034, 1037. Conversely, “[g]eneral criminal intent is present

whenever there is specific intent, and also when the circumstances indicate that the

offender, in the ordinary course of human experience, must have adverted to the

prescribed criminal consequences as reasonably certain to result from his act or

failure to act.” La. R.S. 14:10(2).

22

In the instant case, Defendants question the lack of physical evidence tying

them to the murders and attempted murders, as well as the reliability of the

eyewitness testimony that identified them as the shooters. As explained in State v.

Neal, generally, if the main issue is the defendant’s identity as the perpetrator,

rather than whether a crime was committed, the State must negate any reasonable

probability of misidentification. 2000-0674, p. 11 (La. 6/29/01), 796 So.2d 649,

658. However, even in the absence of other witness testimony, a positive

identification by only one witness is sufficient to support a conviction. Id. This

holds true even in the absence of physical evidence. State v. Dussett, 2013-0116, p.

11 (La. App. 4 Cir. 10/2/13), 126 So.3d 593, 601. Because credibility

determinations and the weight of the evidence are within the discretion of the

factfinder, appellate courts do not reassess the credibility of witnesses or reweigh

the evidence. State v. Scott, 2012-1603, p. 11 (La. App. 4 Cir. 12/23/13), 131 So.3d

501, 508.

Turning to the facts of this case, Eric Robinson, Mr. Green, and Ms.

Robinson all testified unequivocally at trial that Defendants were the shooters on

February 13, 2018. Eric Robinson estimated that he was approximately five feet

away from the shooters when the shooting began. When he identified Defendants

as the shooters, he explained that he had known them since approximately 2013.

Eric Robinson admitted that he did not initially come forward with this

identification because he intended to “deal with” the shooting himself. Further,

Eric Robinson provided that, with his testimony, he hoped for leniency in

sentencing for charges he was facing in federal court, but he confirmed that he had

not received any promises to that effect.

23

Likewise, Mr. Green testified that he had a prior state conviction and was

currently incarcerated in connection with federal charges to which he pled guilty.

Mr. Green explained that, in connection with his guilty plea, he signed a

cooperation agreement and hoped to receive favorable sentencing if he testified

truthfully. Mr. Green testified that he had known Defendants since childhood.

Regarding the night of the shooting, Mr. Green explained that he witnessed a

vehicle circle around and then two people exit the vehicle and begin shooting. He

identified those shooters as Defendants. Mr. Green admitted that he did not

initially go to the police with this identification out of concern for outstanding

criminal charges against him. Only after his incarceration did he provide this

information.

Ms. Robinson testified that she heard one gunshot and, shortly thereafter,

numerous gunshots. She testified that she was standing on the porch of her sister’s

home, which appeared to be a safe location, so she remained outside and witnessed

the shooting. Ms. Robinson stated that she did not know Defendants personally but

knew of them in the Lower 9th Ward neighborhood. In open court, she provided

physical descriptions of the shooters and identified Defendants as the shooters on

February 13, 2018. She explained, however, that she did not go to police and

identify the shooters initially because she was afraid, stating: “I was seeing a lot of

things . . . going on, so I was really skeptical about which route that I should take.”

Although Defendants contend that the witnesses’ testimony is untrustworthy,

we observe that the jurors knew of Eric Robinson’s and Mr. Green’s legal troubles

and associated potential for bias. Additionally, we note that the jury was also aware

that all three of these witnesses delayed identifying Defendants as the shooters.

Nevertheless, the jury determined that Eric Robinson, Mr. Green, and Ms.

24

Robinson were credible and believed some—or all—of their testimony as

evidenced by the jury’s return of guilty verdicts.

As noted above, the testimony of only one witness is sufficient to uphold a

conviction even in the absence of physical evidence, and an appellate court does

not reassess the trier of fact’s credibility determinations. Here, the jury heard not

one but three witnesses identify Defendants as the shooters.

Regarding Defendant Barnes’ convictions for being a felon in possession of

a firearm, three eyewitnesses identified Defendant Barnes as being at the scene of

the shootings on February 13, 2018 with a firearm. Eric Robinson and Mr. Green

testified that they were well acquainted with Mr. Barnes prior to the shootings. In

particular, Mr. Green stated that he had known Defendants since childhood, and

Eric Robinson testified that he had known Defendants since 2013. Further, Eric

Robinson estimated that he was approximately five feet away from Mr. Barnes

when the shooting began. Both Eric Robinson and Mr. Green unequivocally

identified Defendant Barnes as one of the shooters. Additionally, Ms. Robinson

testified that she could see the shooters from her vantage point, and she provided a

physical description of the shooters. In court, she identified Defendant Barnes as

one of the shooters. She testified that, prior to the shootings, she did not know

Defendant Barnes personally but knew of him.

Further, social media videos reflected Defendant Barnes brandishing

firearms on February 13, 2018 and on February 15, 2018. As elaborated above,

Agt. Bender testified regarding the authenticity and content of that evidence. The

jurors’ unanimous verdicts reflect that they believed the eyewitnesses’ testimony

and the videos to the effect that Defendant Barnes possessed a firearm on February

13, 2018 and February 15, 2018.

25

Additionally, Defendant Barnes stipulated to the fact that he was convicted

of possession with the intent to distribute heroin—a conviction which makes it

unlawful for him to possess a firearm—in 2018, within the ten-year period required

by La. R.S. 14:95.1.

Considering the foregoing eyewitness testimony, the record reveals

sufficient evidence to conclude that any rational trier of fact could have found that

the State proved beyond a reasonable doubt all of the elements of second degree

murder, attempted second degree murder, and felon in possession of a firearm.

Accordingly, we conclude that this assignment of error is without merit.

Assignment of Error No. 7: Non-Unanimous Convictions for Murder and
Attempted Murder

In their seventh assignment of error, Defendants assert that they are entitled

to a new trial for their charges of second degree murder and attempted murder

because the jury’s verdicts on these charges were non-unanimous and, as a result,

violate their constitutional due process rights under the Sixth and Fourteenth

Amendments to the United States Constitution. We find that this assignment of

error has merit.

At the time of Defendants’ trial in October 2019, Louisiana law accepted

non-unanimous jury verdicts in felony trials, and Louisiana jurisprudence upheld

the constitutionality of such verdicts. See State v. Bertrand, 2008-2215 (La.

3/17/09), 6 So.3d 738. However, while Defendants’ appeal was pending before this

Court, the United States Supreme Court rendered its decision in Ramos v.

Louisiana, on April 20, 2020. 590 U.S. ____, 140 S.Ct. 1390, 206 L.Ed.2d 583

(2020). In Ramos, the Court reviewed whether the federal Sixth Amendment right

to trial “by an impartial jury” in criminal prosecutions calls for a unanimous jury

26

verdict11 and, if so, whether that requirement applies in state criminal trials via the

Fourteenth Amendment.12 Id. at 1394. The Court definitively ruled that the Sixth

Amendment right to a jury trial requires a unanimous jury verdict to convict a

defendant of a serious offense in a federal or state criminal prosecution. 13 Id. at

1395-97. Thus, per Ramos, a non-unanimous jury verdict in a federal or state

felony trial is unconstitutional. Id. Further, Ramos invalidated the convictions of

defendants by non-unanimous jury verdicts whose cases are still on direct appeal.

Id. at 1406-08; see also State v. Myles, 2019-0965, p. 1 (La. App. 4 Cir. 4/29/20),

299 So.3d 643, 644; Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (providing for

the retroactivity of new rules in the prosecution of criminal matters).
11
Of relevance, the Sixth Amendment affords to the accused in a criminal prosecution “the right
to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall
have been committed . . . .”
12
The Fourteenth Amendment provides, in pertinent part:

No State shall make or enforce any law which shall abridge the privileges
and immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
13
The Ramos Court explained:

Wherever we might look to determine what the term “trial by an impartial
jury trial” meant at the time of the Sixth Amendment’s adoption—whether
it’s the common law, state practices in the founding era, or opinions and
treatises written soon afterward—the answer is unmistakable. A jury must
reach a unanimous verdict in order to convict.

***

There can be no question either that the Sixth Amendment’s unanimity
requirement applies to state and federal criminal trials equally. This Court
has long explained that the Sixth Amendment right to a jury trial is
“fundamental to the American scheme of justice” and incorporated against
the States under the Fourteenth Amendment. This Court has long
explained, too, that incorporated provisions of the Bill of Rights bear the
same content when asserted against States as they do when asserted
against the federal government. So if the Sixth Amendment’s right to a
jury trial requires a unanimous verdict to support a conviction in federal
court, it requires no less in state court.

140 S.Ct. 1390, 1395-97.

27

Having found that the jury’s non-unanimous verdicts for Defendants’

charges of second degree murder and attempted second degree murder are subject

to remand under our error patent review, we consider this issue regardless of

whether Defendants preserved it for appeal.

Here, the jury rendered non-unanimous verdicts for Defendants’ charges for

second degree murder and attempted second degree murder.14 Based on Ramos, we

conclude that Defendants’ convictions for second degree murder and attempted

second degree murder are unconstitutional. Accordingly, we vacate Defendants’

convictions and sentences for second degree murder and attempted second degree

murder and remand the matter to the district court for a new trial on those charges.

See, e.g., Dorsey, 2020-0029, p. 9 (La. App. 4 Cir. 12/9/20), 2020 WL 724008, *5.

Assignment of Error No. 2: Non-Authenticated Social Media Evidence

In their second assignment of error, Defendants argue that the district court

erred in allowing the Instagram videos and still shots into evidence because the

State did not properly authenticate the evidence. We have already found that

Defendants are entitled to new trials for their second degree murder and attempted

second degree murder charges and thus do not consider the social media evidence

in relation to those charges. Nevertheless, to the extent that the social media

evidence played a role in the jury’s guilty verdicts for Defendant Barnes’ charges

for being a felon in possession of a firearm, we consider this assignment of error in

relation to those charges only.

14
At the request of Defendants’ counsel, the district court polled the jury following the recitation
of the jury’s verdicts. As to count one (second degree murder of Jamar Robinson), with respect
to both Defendants, the jury found them guilty by a vote of ten-to-two. As to count two (second
degree murder of Byron Jackson), with respect to both Defendants, the jury found them guilty by
a vote of ten-to-two. As to count three (attempted second degree murder of Eric Robinson), with
respect to both Defendants, the jury found them guilty by a vote of eleven-to-one. As to count
four (attempted second degree murder of Mr. Henry), with respect to both Defendants, the jury
found them guilty by a vote of ten-to-two.

28

Authentication is a condition precedent to admissibility. La. C.E. art.

901(A). A party satisfies this condition by providing “evidence sufficient to

support a finding that the matter in question is what its proponent claims.” Id. A

district court has great discretion in deciding whether a party laid a sufficient

foundation for the admission of evidence. State v. Ashford, 2003-1691, p. 14 (La.

App. 4 Cir. 6/16/04), 878 So.2d 798, 806. An appellate court reviews a district

court’s ruling on the admissibility of evidence under the abuse of discretion

standard. State v. Wright, 2011-0141, pp. 10-11 (La. 12/6/11), 79 So.3d 309, 316.

La. C.E. art. 901(B) provides examples of methods by which a party may

authenticate evidence, one of which is the testimony of a witness with knowledge

that the matter is what it claims to be. La. C.E. art. 901(B)(1). In State v. Smith,

this Court reviewed the admissibility of social media evidence and applied the

“reasonable juror” standard to the authentication of evidence under La. C.E. art.

901, explaining:

[W]e find the proper inquiry is whether the proponent has “adduced
sufficient evidence to support a finding that the proffered evidence is
what it is claimed to be . . . . ” Sublet [v. State, 442 Md. 632], 113
A.3d [695,] 717 [(2015)] (quoting [U.S. v.] Vayner, 769 F.3d [125,]
131 [(2d Cir. 2014)]). Sufficient proof will vary from case to case, and
“[t]he ‘proof of authentication may be direct or circumstantial.’ ” Id.
at 716 (quoting Vayner, 769 F.3d at 130). Consequently, the type and
quantum of evidence will depend on the context and the purpose of its
introduction. Evidence which is deemed sufficient to support a
reasonable juror’s finding that the proposed evidence is what it is
purports [sic] to be in one case, may be insufficient in another.

2015-1359, pp. 9-10 (La. App. 4 Cir. 4/20/16), 192 So.3d 836, 842.

Under this standard, we must determine whether the State offered sufficient

facts from which a reasonable juror could find the evidence authentic. Id. If so, the

district court did not abuse its discretion in ruling the social media posts admissible

at trial. Id.

29

We considered similar evidence to the evidence presented here in State v.

Gray, 2016-1195, p. 23 (La.App. 4 Cir. 6/28/17), 2017 WL 3426021, *12, wherein

the State sought to introduce certain YouTube videos into evidence and attempted

to authenticate the videos by presenting the testimony of the detective who

investigated social media evidence in search of crimes and gang activities. Id. The

detective identified the videos and made an in-court identification of the defendant

as the person in the videos. Id. The detective also provided the location of the

videos and estimated that the videos were filmed sometime between 2010 and

2013. Id. On appeal, this Court concluded that the detective’s testimony provided

sufficient support for the district court’s finding that the YouTube videos were

what the State claimed them to be and thus admissible. Id.

In the instant case, the evidence at issue consists of videos from the social

media site Instagram, as well as still shots from the videos. FBI Agt. Bender, who

collected the social media evidence at issue, testified at trial and spoke generally as

to her undercover online training and work. In particular, at the time of the subject

shootings, Agt. Bender testified that she was part of the New Orleans Violent

Crime Task Force and that she participated in the investigation of the subject

shootings. She explained that she held a certification from participation in an FBI

class, which classified her as an “undercover online employee.” Agt. Bender

explained that her training and duties enabled her to become “friends” with people

she was investigating on social media, which enabled her to look at their social

media pages.

Agt. Bender also provided background on some of her methods of obtaining

social media evidence. Agt. Bender testified that she had her computer equipment

set up to alert her when one of the people she was monitoring posted “live” videos

30

to their social media accounts. Agt. Bender further testified that, upon receiving

such a notification, she utilized a screen capture application on her computer

equipment to capture the live video. Agt. Bender stated that she used the screen

capture application for regular Instagram posts too, as well as for “live” videos.

As part of an investigation into other criminal activities, Agt. Bender

explained that she had been monitoring Defendants’ social media activity “for

quite a few months . . . and then [] really started looking into them a lot more

specifically, probably, maybe, six months prior to” the shooting. She stated that

she accelerated her efforts after learning of the shooting. She explained that it was

during these monitoring efforts that she captured and recorded the particular

Instagram posts that the State introduced into evidence.

Agt. Bender provided that she captured the first video on the morning of

February 14, 2018 and ascertained that the video had been posted on Instagram

since approximately 9:45 p.m. the previous night, February 13, 2018, the night of

the subject shootings. She explained that the video was on an Instagram page

rather than a “live” story. As the video played at trial, Agt. Bender identified

Defendant Barnes and further relayed that the video depicted Defendants holding

firearms and pointing them at the screen when reciting lines in a song about killing

people. Agt. Bender explained that she observed and captured the second video on

the “live” video feature of Defendants Barnes’ Instagram account on February 15,

2018. When the prosecution showed her a still shot from the second video, Agt.

Bender identified it as depicting Defendant Barnes with what appeared to be an

AR-style rifle in his hand.

Like the detective in Gray, Agt. Bender provided significant information

about the social media evidence. Namely, she identified the videos and still shots

31

from the videos; Defendants as the people in the videos; the dates of the videos;

and her method of obtaining the videos. Considering Agt. Bender’s testimony, we

find that the State offered sufficient facts from which a reasonable juror could find

that the evidence is what it claims to be. By extension, we find that the district

court did not abuse its discretion in ruling the evidence authenticated and thus

admissible at trial. Accordingly, we find that this assignment of error is without

merit.

Assignment of Error No. 5: Severance of Possession of Firearm Charges

In Defendants’ fifth assignment of error, Defendant Barnes argues that the

district court erred in denying his motion to sever the second count of possession

of a firearm by a felon from the rest of the charges against him. The first count of

possession of a firearm by a felon pertains to February 13, 2018, the date of the

shootings, and the second count pertains to February 15, 2018, the date of the

second social media video. Defendant Barnes contends that the latter charge is not

connected to the first count of possession of a firearm or to the murder and

attempted murder charges. Accordingly, Defendant Barnes argues that the jury

may have found him guilty of the second count of possession of a firearm merely

due to the association with the other crimes charged.

Offenses may be charged together if they “are of the same or similar

character or are based on the same act[s] or transaction[s] . . . provided that the

offenses joined must be triable by the same mode of trial.” La. C.Cr.P. art. 493. In

discussing whether the offenses were of the same or similar character so as to

make joinder proper, in State v. Evans, the Fifth Circuit noted that the subject

attacks occurred within a relatively short time period (just over one month) and

32

that the attacks were alike. 2003-0752, p. 20 (La. App. 5 Cir. 12/9/03), 864 So.2d

682, 694.

If a party requests a severance of offenses, a court should grant the

severance “or provide whatever other relief justice requires” if the party

demonstrates prejudice by the joinder of the offenses. La. C.Cr.P. art. 495.1. A

defendant has a heavy burden of proof when he alleges prejudicial joinder of

offenses. State v. Evans, 2003-0752, p. 19, 864 So.2d at 694.

In State v. Deruise, the Louisiana Supreme Court articulated five factors for

a court to consider in determining whether joinder is prejudicial:

[T]he trial court must weigh the possibility of prejudice to the
defendant against the important considerations of economical and
expedient use of judicial resources. In determining whether joinder
will be prejudicial, the court should consider the following: (1)
whether the jury would be confused by the various counts; (2)
whether the jury would be able to segregate the various charges and
evidence; (3) whether the defendant would be confounded in
presenting his various defenses; (4) whether the crimes charged would
be used by the jury to infer a criminal disposition; and (5) whether,
especially considering the nature of the charges, the charging of
several crimes would make the jury hostile.

1998-0541, p. 7 (La. 4/3/01), 802 So.2d 1224, 1232.

This Court has explained that prejudice is not present if the facts and

evidence of each offense are distinct and not complex and if there is little

likelihood that the jury will be confused by the evidence of multiple crimes. State

v. Adams, 2010-1140, p. 9 (La. App. 4 Cir. 6/2/11), 68 So.3d 1165, 1171. When an

appellate court reviews the joinder of offenses, the standard of review is for abuse

of discretion because a motion to sever is within the sound discretion of the district

court. Deruise, 1998-0541, p. 7, 802 So.2d at 1232.

This Court addressed this issue in State v. Graps, wherein the State charged

the defendant with possession of a firearm by a felon, as well as drug possession

33

charges. 2009-1202, p. 2 (La. App. 4 Cir. 6/23/10), 42 So.3d 1066, 1068. The

defendant argued that the joinder of the offenses resulted in prejudice because the

State introduced evidence in each case that the defendant had a separate, prior

felony conviction. Id. at 1070. This Court rejected this argument, holding that the

State presented the evidence of each offense in a simple manner and that the

defendant had not shown that the jury was confused by the joinder of offenses. Id.

at 1071. See also State v. Lomax, 2009-1129, p. 9 (La. App. 4 Cir. 3/24/10), 35

So.3d 396, 401 (“The defendant has not shown that the jurors were confused by the

presentation of the evidence or that they could not segregate evidence as to the two

counts,” nor “that the joinder of these two offenses caused the jury to infer a

criminal disposition on his part, or that the joinder made the jury hostile. Indeed,

although the jury found him guilty as charged as to the possession of heroin count,

it failed to return a verdict on the felon in possession of a firearm count.”).

Here, the State alleged that the first count of possession of a firearm

occurred on February 13, 2018, the date of the murders and attempted murders,

and that the second count of possession of a firearm occurred on February 15,

2018. On appeal, Defendant Barnes argues that the second count of possession of a

firearm is unrelated to the other charges against him. We note, however, that all of

the charges against Defendant Barnes relate to his possession or use of a firearm

within a few days’ time span surrounding the timing of the shooting. As to the

second count of possession of a firearm on February 15, 2018, specifically, Agt.

Bender testified that she discovered the second video during the investigation of

the murders and attempted murders. Further, she testified that she ascertained that

the second video had been manipulated by the addition of the date February 13,

2018, which is the date of the subject shootings, even though the second video was

34

not posted until February 15, 2018. Considering the foregoing, we find that the

charges for second degree murder, attempted second degree murder, and the two

separate counts of possession of a firearm share enough similarities to make

joinder permissible.

Regarding whether the charges are triable by the same method, the State

charged Mr. Barnes with second degree murder, attempted second degree murder,

and possession of a firearm by a convicted felon.15 Because the punishment for

second degree murder, attempted second degree murder, and possession of a

firearm by a felon is necessarily imprisonment at hard labor, these offenses were

all triable by a jury of twelve jurors, the same mode of trial.

Last, we consider whether Defendant Barnes has demonstrated prejudice in

the joinder of the offenses. As discussed previously, eyewitnesses identified

Defendant Barnes as one of the shooters on the night of the shooting, thus

providing evidence for first count of possession of a firearm. Additionally, Agt.

Bender testified that she discovered and captured the two social media videos

depicting Defendant Barnes holding a firearm. The first video appeared on

Instagram on the night of the shooting and contained footage of Defendant Barnes

wielding a firearm and rapping about killing someone. The second video appeared

on Instagram on February 15, 2018 and relates to the second count of possession of

a firearm.

Defendant Barnes has not shown that the jurors were confused by the

presentation of the evidence or that they could not separate the evidence for the

15
La. R.S. 14:30.1 states that someone found guilty of second degree murder “shall be punished
by life imprisonment at hard labor . . . ” La. R.S. 14:95.1 provides that someone found guilty of
possession of a firearm by a felon “shall be imprisoned at hard labor for not less than five nor
more than twenty years . . . ”

35

counts charging Defendant Barnes with offenses on February 13, 2018, from the

count charging Defendant Barnes with being a convicted felon in possession of a

firearm on February 15, 2018. The charges share enough similarities to make

joinder permissible, but the facts of each offense are not identical and are easily

distinguishable from each other. Significantly, the evidence against Defendant

Barnes on each count was not complex; and, the State presented it in an orderly

fashion, which allowed the jury to segregate the charges and evidence.

Accordingly, we find that Defendant Barnes has failed to demonstrate prejudice,

and the trial court did not abuse its discretion by denying his motion to sever.

Thus, we conclude that this assignment of error has no merit.

Assignment of Error No. 6: Peremptory Challenges to Jurors

In their sixth assignment of error, Defendants argue that the district court

erred in failing to dismiss two potential jurors for cause due to their alleged

association with the prosecutors. The only convictions that Defendant Groves

received in this matter were for second degree murder and attempted second

degree murder. Because we have already concluded that the United States Supreme

Court’s ruling in Ramos calls for us to vacate those convictions and remand for a

new trial, this assignment of error is moot with respect to Defendant Groves and

with respect to Defendant Barnes’ convictions for second degree murder and

attempted second degree murder. We still review this assignment of error,

however, in relation to Defendant Barnes’ convictions for possession of a firearm

by a convicted felon.

Article I, § 17 of the Louisiana Constitution guarantees to a defendant the

right to full voir dire examination of prospective jurors and to challenge jurors

peremptorily. In trials of offenses punishable by imprisonment at hard labor, as in

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the present case, a defendant has twelve peremptory challenges. La. C.Cr.P. art.

799. When a defendant uses all twelve of his peremptory challenges, a trial court’s

erroneous ruling on a defendant’s challenge for cause that results in the deprivation

of one of his peremptory challenges constitutes a substantial violation of his

constitutional and statutory rights, requiring reversal of his conviction and

sentence. State v. Juniors, 2003-2425, pp. 7-8 (La. 6/29/05), 915 So.2d 291, 304;

State v. Fields, 2013-1493, p. 22 (La. App. 4 Cir. 10/8/14), 151 So.3d 756, 771.

Therefore, to establish reversible error in the denial of one of his challenges for

cause, a defendant needs to show that: (1) he exhausted all of his peremptory

challenges; and (2) the district court erred in refusing to grant his challenge for

cause. Juniors, 2003-2425, p. 8, 915 So.2d at 305.

A challenge for cause is authorized under La. C.Cr.P. art. 797(2) on the

ground that “[t]he juror is not impartial, whatever the cause of his partiality.” In

State v. Mickelson, the Louisiana Supreme Court explained:

[A] prospective juror’s responses during voir dire cannot be
considered in isolation and . . . a challenge for cause should be
granted, even when a prospective juror declares his or her ability to
remain impartial, if the juror’s responses, as a whole, reveal facts from
which bias, prejudice, or inability to render a judgment according to
law may be reasonably inferred. State v. Frost, [19]97-1771, p. 4 (La.
12/1/98), 727 So.2d 417, 423; State v. Hallal, 557 So.2d 1388, 1389-
1390 (La. 1990); State v. Brown, 496 So.2d 261, 264-265 (La. 1986);
State v. Jones, 474 So.2d 919, 929 (La. 1985). Nevertheless, a refusal
to disqualify a prospective juror on grounds he or she is biased will
not constitute reversible error or an abuse of discretion if, after further
inquiry or instruction (frequently called “rehabilitation”), the
prospective juror demonstrates a willingness and ability to decide the
case according to the law and the evidence. [State v.] Jacobs, [19]99-
1659, [p.] 6 [(La. 6/29/01)], 789 So.2d [1280], 1285; [State v.]
Robertson, [19]92-2660, [p.] 4 [(La. 1/14/94)], 630 So.2d [1278],
1281.

2012-2539, p. 13 (La. 9/3/14), 149 So.3d 178, 187 (emphasis omitted).

37

The Mickelson Court also recognized that “the line-drawing required of

district courts faced with challenges for cause of prospective jurors who give

equivocal or contradictory responses during voir dire is complicated and

oftentimes daunting.” Id., 2012-2539, p. 12, 149 So.3d at 186. Thus, the Court

reiterated the well-settled principle that an appellate court should accord great

deference to the district court’s ruling on a challenge for cause which is necessarily

based, at least in part, upon the trial court’s personal observations during

questioning. Id., 2012-2539, p. 12, 149 So.3d at 186-87. Therefore, a trial court is

vested with broad discretion in ruling on challenges for cause, and its rulings will

be reversed only when a review of the voir dire record as a whole reveals an abuse

of discretion. Id., 2012-2539, pp. 12-13, 149 So.3d at 187.

The record reflects that Defendants challenged venire members eight and

fourteen for cause, and the district court denied their challenges for cause.

Following the trial court’s denial of their challenges for cause, Defendants used

peremptory challenges to excuse prospective jurors eight and fourteen. Defendants

ultimately exhausted their peremptory challenges. Because Defendants exhausted

their peremptory challenges, we consider whether the district court abused its

discretion in denying the challenges for cause.

Defendants assert that venire member number eight should have been

excused for cause “because his wife worked with one of the prosecutors in the

case.” However, a review of the voir dire transcript reflects that Defendants have

mischaracterized the venire member’s relationship to one of the prosecutors,

specifically, Mike Trummel. The transcript reflects that Mr. Trummel’s wife

worked at a law firm associated with the venire member. Based upon this

attenuated association, Mr. Trummel informed the district court as follows: “My

38

wife does work at [that firm]. There’s a chance I’ve seen [the venire member]

once, at most, at a social function. I have no recollection of a conversation I’ve

ever had with him. I would not have been able to recognize him out of a lineup

prior to today.” After hearing Mr. Trummel’s explanation of how he “knew” the

venire member, the district court denied Defendants’ request that the venire

member be excused for cause.

Similarly, Defendants contend that venire member number fourteen should

have been dismissed for cause. The basis for the cause objection was the fact that

the venire member worked at the U.S. Attorney’s office and that one of the

prosecutors, Inga Petrovich, was “going to work with the U.S. Attorney’s Office.

They know each other.” Again, however, Defendants exaggerate the alleged

relationship. Upon questioning, the venire member stated that he thought he had

met Ms. Petrovich “once.” Further, despite his one introduction to Ms. Petrovich,

the venire member answered affirmatively when asked whether he could be a fair

and impartial juror. Based upon the above, the trial court denied the Defendants’

request that the venire member be excused for cause.

In this case, venire members eight and fourteen were arguably acquainted

with prosecutors but just barely. Mr. Trummel stated that he may have met venire

member eight on one social occasion, and venire member fourteen believed he may

have met Ms. Petrovich one time. Further, venire member fourteen was

specifically asked whether, despite the fact that he had met Ms. Petrovich on one

occasion, he could, nevertheless, be a fair and impartial juror. He answered

affirmatively. Such attenuated associations with the prosecutors are insufficient to

overcome the great deference to which the trial court’s ruling denying Defendants’

cause challenges are accorded. We find this assignment of error has no merit.

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Assignment of Error No. 8: Unanimous Convictions for Possession of a Firearm
Charges

Defendant Barnes argues that if he receives a new trial for second degree

murder and attempted second degree murder charges, he should also receive a new

trial for his convictions for possession of a firearm by a felon even though the

jury’s verdicts on those charges were unanimous. More particularly, he contends

that the felon in possession of a firearm charges against him merely emanate from

the murder and attempted murder charges. He states that the firearm possession

charges are inconsistent and unable to stand on their own without the murder and

attempted murder charges.

Following Ramos, in Dorsey, this Court vacated the defendant’s non-

unanimous convictions for murder and attempted murder, but affirmed his

conviction for obstruction of justice that was unanimous. 2020-0029, 2020 WL

7240008.

Based on Dorsey, the fact that Defendant Barnes’ convictions for second

degree murder and attempted second degree murder must be vacated as the

verdicts were not unanimous pursuant to Ramos, does not require that this Court

vacate Mr. Barnes’ felon in possession of a firearm convictions, as those verdicts

were returned unanimously. We have already found that there was sufficient

evidence to support Defendant Barnes’ convictions for being a felon in possession

of a firearm and that Defendant Barnes failed to show that the jury was not able to

segregate the evidence for those charges from the evidence for the second degree

murder and attempted second degree murder charges. Accordingly, we conclude

that this assignment of error is without merit.

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DECREE

For the foregoing reasons, we vacate Defendants’ convictions and sentences

for second degree murder and attempted second degree murder and remand the

matter to the district court for a new trial. We affirm Defendant Barnes’

convictions and sentences for possession of a firearm by a convicted felon but

remand for the imposition of the mandatory fine.

CONVICTIONS AND SENTENCES FOR SECOND DEGREE MURDER
AND ATTEMPTED SECOND DEGREE MURDER VACATED;
CONVICTIONS FOR FELON IN POSSESSION OF A FIREARM
AFFIRMED; REMANDED

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