State Of Louisiana v. Jerome Gray

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 KA 0685

STATE OF LOUISIANA

VERSUS

JEROME GRAY

Judgment Rendered: JUN 17 2021

APPEALED FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT,
IN AND FOR THE PARISH OF IBERVILLE
STATE OF LOUISIANA
DOCKET NUMBER 267- 16, DIVISION " B"

HONORABLE TONYA LURRY, JUDGE

Richard J. Ward, Jr. Attorneys for Appellee
District Attorney State of Louisiana
Plaquemine, Louisiana

Terri Russo Lacy
Antonio M. " Tony" Clayton
Assistant District Attorneys
Port Allen, Louisiana

Jane L. Beebe Attorney for Defendant/ Appellant
Addis, Louisiana Jerome Gray

Jerome Gray In Proper Person
Angola, Louisiana

BEFORE: WDONALD, HOLDRIDGE, and PENZATO, JJ.

McDonald, I

The State of Louisiana charged the defendant, Jerome A. Gray, by an

amended grand jury indictment with second degree murder, a violation of La. R. S.

14: 30. 1 ( count one),
and possession of a firearm or carrying a concealed weapon

by a convicted felon, a violation of La. R.S. 14: 95. 1 ( count two). He pled not

guilty. After a trial by jury, he was found guilty as charged on both counts. The

defendant was sentenced on count one to life imprisonment at hard labor without

the benefit of probation, parole, or suspension of sentence. On count two, he was

sentenced to twenty years imprisonment at hard labor, to run concurrent to the

sentence imposed on count one. The defendant now appeals, challenging the

sufficiency of the evidence and the denial of his motion for mistrial in a counseled

brief and the amendment of the grand jury indictment in a pro se brief. For the

following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

On November 26, 2015, officers of the Plaquemine Police Department

PPD) received a call reporting that someone had been shot in a part of

Plaquemine, Louisiana, known as the Fort area.' Responding officers, including

Sergeant Detective John Little, found the victim, identified as Derrick Askins,

lying on the ground in a field. Acadian Ambulance arrived on the scene and

pronounced the victim deceased. A .40 caliber bullet casing ejected from a semi-

automatic firearm was located at the scene. The victim was shot once, and the

entry wound was located underneath his left shoulder. The bullet traveled through

the victim' s body, causing an exit wound on the right side of his chest. The victim

did not have any defensive marks on his hands.

Based on testimony presented at trial, the Fort area consists of Engolio Street, Canal Street, and
Church Street in Plaquemine, and the crime scene was included in that area.

2

After canvasing the scene, the officers began gathering names and

information from witnesses who were on the scene that night. Based on their

investigation, the officers developed the defendant as the suspected shooter and

arrested Terry Baker as a suspected principal to the offense. In addition to

statements from witnesses at the scene, Crime Stoppers received a phone call

regarding the shooting, in which the caller identified the defendant as the shooter.

COUNSELED ASSIGNMENT OF ERROR NUMBER ONE

In counseled assignment of error number one, the defendant concedes that

the identity of the shooter is the only issue in question in this case. He contends

that none of the eyewitnesses testified that they told the police at the scene that he

was the shooter. The defendant contends that Baker was initially arrested for the

offense and challenges Baker' s credibility based on Baker' s admission that he lied

to the police and his inconsistent pretrial statements. The defendant claims that the

police eventually decided that he was the shooter based on inconsistent statements

from people who were allegedly at the scene and may have only named him " to

save their own skins." He further contends the statements were not corroborated

by physical evidence, fingerprints, or DNA. He also notes that there was no

motive for the shooting and that he and the victim "were presumably friends." The

defendant argues that despite the State' s attempt to portray his actions after the

offense as " flight," none of his actions were indicative of a person who had just

shot his friend for no apparent reason. He concludes that the evidence was

insufficient to support the requisite elements beyond a reasonable doubt.

A conviction based on insufficient evidence cannot stand as it violates Due

Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of

review for sufficiency of the evidence to support a conviction is whether, viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found that the State proved the essential elements of the crime and the

3

defendant' s identity as the perpetrator of the crime beyond a reasonable doubt. See

La. Code Crim. P. art. 821( B); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

27819 2789, 61 L.Ed.2d 560 ( 1979); State v. Ordodi, 2006- 0207 ( La. 11/ 29/ 06),

946 So. 2d 654, 660; State v. Williams, 2019- 0077 ( La. App. 1st Cir. 5/ 31/ 19),

2019 WL 23153401 * 2, writ denied, 2019- 01060 ( La. 10/ 1/ 19), 280 So. 3d 158.

The Jackson standard of review, incorporated in Article 821( B), is an objective

standard for testing the overall evidence, both direct and circumstantial, for

reasonable doubt. When analyzing circumstantial evidence, La. R. S. 15: 438

provides that the fact finder must be satisfied that the overall evidence excludes

every reasonable hypothesis of innocence. State v. Patorno, 2001- 2585 ( La. App.

1st Cir. 6/ 21/ 02), 822 So. 2d 141, 144. When a case involves circumstantial

evidence and the jury reasonably rejects the hypothesis of innocence presented by

the defense, that hypothesis falls, and the defendant is guilty unless there is another

hypothesis which raises a reasonable doubt. State v. Vaughn, 2018- 0344 ( La.

App. 1st Cir. 9/ 24/ 18), 259 So. 3d 1048, 1058, writ granted in part, jud ment

reversed in part on other grounds, 2018- 01750 ( La. 11/ 25/ 19), 283 So. 3d 494.

Second degree murder is defined in pertinent part as " the killing of a human

being: ( 1)[ w]hen the offender has a specific intent to kill or to inflict great bodily

harm[.]" La. R.S. 14: 30. 1( A)( 1). 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). The

State bears the burden of proving those elements, along with the burden to prove

the identity of the defendant as the perpetrator. State v. Coleman, 2017- 1045 ( La.

App. 1st Cir. 4/ 13/ 18), 249 So. 3d 872, 877, writ denied, 2018- 0830 ( La. 2/ 18/ 19),

263 So. 3d 1155. When the key issue is the defendant' s identity as the perpetrator,

rather than whether the crime was committed, the State is required to negate any

reasonable probability of misidentification. A positive identification by only one

F

witness is sufficient to support a conviction. State v. Weary, 2003- 3067 ( La.

4/ 24/ 06), 931 So. 2d 297, 311, cert. denied, 549 U.S. 1062, 127 S. Ct. 682, 166

L.Ed.2d 531 ( 2006).

Relative to the defendant' s felon in possession of a firearm conviction, La.

R.S. 14: 95. 1( A) makes it unlawful for any person who has been convicted of

certain felonies to possess a firearm. To prove a violation of La. R. S. 14: 95. 1, the

State must prove: ( 1) the defendant' s status as a convicted felon; and ( 2) that the

defendant was in possession of a firearm. State v. Loper, 2010- 0582 ( La. App. 1 st

Cir. 10/ 29/ 10), 48 So. 3d 1263, 1266. The State must also prove that ten years have

not elapsed since the date of completion of the punishment for the prior felony

conviction. See La. R.S. 14: 95. 1( C). Thus, a violation of La. R.S. 14: 95. 1 by the

defendant required proving no more than that he had a certain prior felony
conviction and was in possession of a firearm. See Loper, 48 So. 3d at 1266. In

this case, the defendant does not contest his predicate conviction on appeal and

only contests his identification as the shooter.

In cases where the key issue is the defendant' s identity as the perpetrator,

rather than whether the crime was committed, the state is required to negate any

reasonable probability of misidentification. A positive identification by only one

witness is sufficient to support a conviction. A victim' s or witness' s testimony

alone is usually sufficient to support the verdict, as appellate courts will not

second- guess the credibility determinations of the fact finder beyond the

constitutional standard of sufficiency. In the absence of internal contradiction or

irreconcilable conflict with physical evidence, one witness' s testimony, if believed

by the trier of fact, is sufficient support for a requisite factual conclusion. State v.

Dorsey, 2010- 0216 ( La. 9/ 7/ 11), 74 So. 3d 603, 633- 634, cert. denied, 566 U.S.

930, 132 S. Ct. 1859, 182 L.Ed. 2d 658 ( 2012). Further, where there is conflicting

testimony about factual matters, the resolution of which depends upon a

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determination of the credibility of the witnesses, the matter is one of the weight of

the evidence, not its sufficiency. State v. Lavy, 2013- 1025 ( La. App. 1st Cir.

3/ 11/ 14), 142 So. 3d 1000, 1006, writ denied, 2014- 0644 ( La. 10/ 31/ 14), 152 So. 3d

150. Accordingly, on appeal, this court will not assess the credibility of witnesses

or reweigh the evidence to overturn a fact finder' s determination of guilt. See

Lavy, 142 So. 3d at 1006.

Detective Little testified that the shooting in this case took place on

November 26, 2015, Thanksgiving Day, in the Fort area, while the victim was near

the home of Cynthia James ( also referred to as " I.D.' s house" and " Inee' s house").

Detective Little further testified that the ejected . 40 caliber bullet casing located at

the scene was fired by a Glock Model 22 . 40 caliber semi- automatic pisto12 that

fires one round with each single pull of the trigger. It has a magazine that holds

fifteen rounds and holds one round in the chamber, so it holds sixteen rounds of .40

caliber ammunition. Detective Little explained that a Glock ejects a casing after

being fired, unlike revolvers that have a cylinder in which the casings remain after

they are fired.

Although he interviewed several witnesses, including Michael Williams,

Felton Henderson, and Baker, Detective Little confirmed that some witnesses did

not cooperate because they were afraid for their safety. Detective Little noted that

he had known Baker for years at the time of his arrest, as Baker was " always on

the street." Baker was arrested as a suspected principal, as the officers initially

believed that he set the victim up to be murdered. Thus, Baker was under arrest at

the time of his initial statement and did not cooperate at that time. Officers of the

PPD began to look for the defendant at different locations, including the residences

of his mother and girlfriend and other places that people frequent, but they were

2 The State introduced a semi- automatic Glock Model 22 . 40 caliber for demonstrative purposes
only, labeled as S- 1.

2

unable to locate him. The officers contacted the defendant' s cell phone carrier for

ping information and sought assistance from the Louisiana Attorney General' s

Office and U.S. Marshals Service to locate the defendant. A cell phone ping

located the defendant' s cell phone in New Orleans and officers proceeded to the

New Orleans location. However, there was a news media release of their attempt

to locate the defendant, informing the public to be on the lookout for him. When

the officers arrived at the New Orleans location, the defendant' s cell phone ping

was lost. Specifically, there was no longer any service going to the phone,

indicating that it had been turned off or the battery was dead. On December 3, the

U.S. Marshals Service, which had a joint fugitive task force with other federal

agencies, located the defendant in Baton Rouge, and he was placed under arrest.

At trial, Williams testified that he grew up in Plaquemine, and he had known

the defendant, whom he referred to as " Dusty," for over fifteen years by the time of

the trial and was friends with the victim.3 He further testified that on the day of the

shooting, Williams went to his cousin' s home for a second Thanksgiving meal

after the victim, who was there at the time, told him that the food was ready.

Williams and the victim then rode around Plaquemine and later picked up Felton

Henderson, who joined them as they continued to ride around. When they arrived

in the Fort area, at the James' residence, Williams saw several friends outside

having fun" and decided to stop.

Williams testified that they were at the residence, " having a good little

time," when the defendant and Baker pulled up. Williams noted that the defendant

and Baker " looked like they were high." He explained that their eyes were puffy

and that they "[ 1] ooked like they were up to no good." At one point, the defendant

3 Several of the witnesses identified and referred to the defendant by his nickname " Dusty"
during testimony. To be consistent, we refer to him as " the defendant."

7

called Baker across the street, to where Williams' s truck was parked on the

sidewalk. Williams testified that he " felt something wasn' t right[,]" as he observed

the defendant and Baker talking. Just as the defendant walked away, Baker called

the victim over. Williams walked toward Baker with the victim and members of

the crowd followed. Then, "[ o] ut of the blue," the defendant came back, ran

towards the crowd, and swung at the victim.

The defendant did not hit the victim, as the victim ducked and smiled at the

defendant when he came back up. Williams testified, " Then [ the defendant] come

up and I ran towards him saying no, no. Then he shot him." Williams further

testified that the victim was " shocked" after the first shot. The defendant fired

another shot, and when Williams looked around, he did not see the victim.

Williams stated that he was " one hundred percent sure" the defendant shot the

victim and that he " wouldn' t lie on" the defendant. Williams described the gun

used by the defendant as a black gun. Williams saw the defendant " cock back" the

gun and ran towards the defendant. Williams stated that he was going to push the

defendant, but the defendant " shot too fast." Williams further stated, " When he

shot, it kinda like shocked me. He shot [ the victim] and shot again, and I took off

running." He testified that at the time of the shooting, the defendant was wearing a

gray hoodie, a black shirt, and blue jeans. Williams denied seeing the victim with

a gun or any weapon on him that day.

Williams further testified that after the shooting, about a month and a half to

two months before the trial, he had been approached by Daniel Lewis, whom he

described as a jailhouse lawyer. According to Williams, Lewis told him that the

defendant, who was incarcerated at the time, wanted him to change his statement.

Lewis had been in jail with the defendant and had just been released. As to how he

felt about the defendant' s request, Williams testified, " That' s something I wouldn' t

do. That was my best friend he killed. I wouldn' t do that."

8

On cross- examination, Williams noted that the victim was wearing all black

when he was shot and that he did not see him once he fell to the ground. While he

assumed that the victim had been shot, he thought the victim may have been able

to run away. He then heard Baker stating that the victim was dead and telling

someone to call the police. Williams left the scene before the police arrived. He

confirmed that he had drank beer and " probably" smoked marijuana ("[ p] robably

one blunt") earlier that day. He, however, stated that he was not drunk and had

one cup of alcohol and probably about three, four beers." He further said he

wasn' t even finished the alcohol when all of this occurred." After the shooting,

the next morning, Williams hid from the defendant when he saw him in

Plaquemine with a fishing pole. Williams stated he was " thinking that [ the

defendant] was going to come after me next."

Williams' s pretrial audio and video recorded statement, given the day after

the shooting, was consistent with his trial testimony. He specifically detailed his

actions of the day, noted the moment " out of the blue" when "[ the defendant]"

swung at the victim, and stated that the victim " dodged the lick." He stated that

the defendant almost fell before pulling a gun out of his pocket and firing it.

Williams stated that he heard another gunshot as he fled. He saw the victim

walking towards a field and thought that he, perhaps, had not been shot. However,

he subsequently heard, Baker, who also walked towards the field, state that the

victim was dead. When asked why anyone would have shot the victim, Williams

explained that the victim had been shot in the leg in an unrelated incident in 2013

and had identified the shooter in that incident. According to Williams, the shooter

in the unrelated incident was arrested but later killed. The victim was viewed as

having " ratted" on the other shooter, and the victim' s life was being threatened as a

result. Williams was unaware of any other reason that someone may have had to

hurt the victim.

E

Lewis, the defendant' s friend, testified that he made up his mind " rather

slowly" to testify. He confirmed that the defendant was his " buddy" and they

served time together in jail. Lewis further confirmed that the defendant asked him

to speak to Williams on his behalf. While he also confirmed that he approached

Williams as requested by the defendant, he denied telling Williams to change his

testimony. He testified, " That is false. I asked Mr. Michael Williams if he had

made an accurate testimony or was he drunk when he made it, and he said he was

sure about what he had said." After he was asked if he wanted Williams to say that

he was drunk, Lewis noted that such an admission would have at least led to some

doubt regarding Williams' s testimony. Lewis further confirmed that he provided

the defendant with legal assistance regarding the instant case and that the

defendant specifically asked him to talk to Williams to find out if Williams was

drunk when he made his prior statement.

At trial, Baker described the defendant as a close friend and noted, " I love

him."' Baker also admitted that he did not want to testify and that he " told a lot of

lies" prior to trial. Baker admitted being present at the Thanksgiving gathering on

the day in question. He noted that he was standing in someone' s yard on Canal

Street when the defendant walked up to him, put his arm around him, and stated,

General, Lsl let me talk to you." As they walked across the street talking, the

victim and some other " fellas" approached and they " dapped each other." He

added, " For whatever reason, [ the victim] came up, he [ the defendant] swung at

the victim]." Baker further testified that in response to the defendant taking a

swing at him, the victim asked in part, " what the hell you doing, man, what [ sic] I

did you[?]" Baker added, " So, he walked off, back on the end. He [ the defendant]

4 Baker also referred to the defendant as " Dusty."

5 The defendant referred to Baker by his nickname, " General." Baker also noted that they called
the victim " Dizzy."

10

pulled out a gun and clicked it and shot over that way." Baker confirmed that it

was the defendant who pulled out a gun and fired it, that he was telling the truth,

and that he saw the shooting, stating, " Yes, I was standing there." He further

confirmed that Detective Little arrested him as a " Principal" to murder after the

shooting, and that he was upset with Detective Little about his arrest.

When asked about his ultimate decision to testify despite his reluctancy, he

testified, " I like to clear my conscience, man. ` Cause I done had love for him and

the victim]. Both of them stayed at my house many of times.... I been knowing

them. We' ve been friends, you know." He added, " But anyway, I kind of feel like,

that lady there, they from the Fort. He' s from the Fort. That' s the neighborhood I

live in. I just can' t keep that in no more, man. I feel for her too. This man dead.

He gone, man." Baker confirmed that he was also approached by Lewis before the

trial and that they talked about the case. On cross- examination, Baker testified that

he previously lied because he wanted to protect the defendant.

On December 1, 2015, Baker provided a pretrial recorded statement in

which he provided details of the shooting consistent with his trial testimony.

Baker stated that he had known the victim since the victim was a kid. As to the

moments before the shooting, Baker stated that the defendant, his " other friend"

punched the victim (" or missed him"), pulled out his black gun, and shot the

victim. Baker demonstrated the defendant' s actions with the gun and noted that

the gun made clicking noises (" click -click") before the defendant fired it. Baker

stated that after the defendant shot the victim, the defendant stated, " Ain' t [ sic]

nobody saw a mother -f* * * *thing
* * either." Baker stated that he perceived the

defendant' s statement as a threat. He described the victim as humble and scared,

and noted that he did not deserve to die. He further noted that he never saw the

6 Baker was sixty-four years old at the time of the trial, significantly older than the defendant
who was forty-two at the time of the trial.

11

victim with a weapon and stated that the defendant killed him for no reason, stating

that it was " cold blooded murder." Baker stated that the defendant did not give

him any indication that he was going to hurt the victim,' and just attempted to

punch him without any reason. He described the defendant as a violent person

who picked on " weaker dudes."

Henderson testified that he was with the victim when the victim was shot on

Thanksgiving Day 2015. 8 He identified the defendant in court as the shooter and

confirmed that he saw the shooting. He also confirmed that he saw the defendant

swing at the victim before shooting him. He denied that the victim had a gun or

any other kind of weapon or did anything to cause the defendant to shoot him.

Henderson confirmed that it was dark outside at the time, but that he saw the

shooting in the dark and described the gun as being black. He confirmed that he

and Williams left the scene together after the shooting and did not call the police.

Henderson did not know the defendant before the shooting but had seen him on the

streets before the shooting and knew him as " Dusty."

Consistent with his trial testimony, in his recorded pretrial interview given

the day after the shooting, Henderson confirmed that he saw Baker and the

defendant standing near Williams' s truck before the defendant busted through the

crowd, swung at the victim, and then started shooting. He stated that the defendant

shot at the victim three times but denied seeing the victim get hit and saw the

victim take off. Williams told him that "[ the victim] got killed" and stated, " Come

on, let' s go." Henderson confirmed that he voluntarily came to the police to make

a statement about his observations of the shooting.

Baker indicated that the defendant made derogatory comments about an unrelated person and
incident before approaching the victim.

8 Henderson also referred to the victim as " Dizzy."

12

According to Dr. Michael Defatta, who reviewed the victim' s autopsy report

and testified at trial as an expert in forensic pathology, the victim had his side

turned to the gun or the shooter based on the trajectory of the bullet and may have

been running or ducking. He noted that the victim' s heart would have been able to

pump blood after the shooting to allow him to run, noting that it is not uncommon

for some people to be able to walk as far as 100 feet after such a gunshot to the

heart. Dr. Defatta confirmed that the cause of death was the gunshot wound to the

left chest.

Herein, the jury heard the testimony of all the witness and saw the pretrial

interviews. The jury further heard Baker' s explanation for not initially being

forthcoming. The eyewitnesses consistently described the moments leading to the

shooting and all unequivocally identified the defendant as the shooter. We further

note that courts have long recognized that "[ e] vidence of flight, concealment, and

attempt to avoid apprehension is relevant. It indicates consciousness of guilt and,

therefore, is one of the circumstances from which the jury may infer guilt. This

rule applies notwithstanding that the evidence may disclose another crime." State

v. Davies, 350 So. 2d 586, 588 ( La. 1977); see also State v. Newberry, 2016- 0147

La. App. 1st Cir. 9/ 16/ 16), 2016 WL 4942429, at * 9 ( observing that ' If]light'

comprehends continued concealment to avoid arrest and prosecution as well as the

act of leaving the jurisdiction" and that " the jury may consider evidence of flight

from the scene of the crime whether or not law enforcement personnel are

involved."). Moreover, actions by a defendant that are designed to influence the

testimony of witnesses or prevent witnesses from testifying give rise to an

inference that he acted from an awareness or consciousness of his own guilt. See

State v. Burnette, 353 So. 2d 989, 992 ( La. 1977); see also State v. Johnson, 426

So. 2d 95, 102 ( La. 1983); State v. Williams, 2016- 0519 ( La. App. 1st Cir.

13

9/ 15/ 17), 2017 WL 4082077, at * 5, writ granted in part on otherrog unds, 2017-

1753 ( La. 6/ 15/ 18), 245 So. 3d 1042 ( per curiam).

The verdict rendered in this case indicates that the jury rejected the

defendant' s theory that the eyewitnesses to the shooting misidentified him as the

person who shot the victim. See State v. Brothers, 2017- 0870 ( La. App. 1 st Cir.

11/ 1/ 17), 233 So. 3d 110, 116, writ denied, 2017- 2160 ( La. 10/ 8/ 18), 253 So. 3d 803

finding the evidence sufficient to support the second degree murder conviction,

despite key witnesses recanting their statements at trial, because the witnesses'

original statements positively identified the defendant as the shooter). In

reviewing the evidence presented at trial, we cannot say that the jury' s

determination was irrational under the facts and circumstances presented. See

Ordodi, 946 So. 2d at 662. Considering the consistent eyewitness testimony and

police statements presented at trial, the jury could have rationally concluded that

the defendant was the shooter in this case.

An appellate court errs by substituting its appreciation of the evidence and

credibility of witnesses for that of the fact finder and thereby overturning a verdict

on the basis of an exculpatory hypothesis of innocence presented to, and rationally

rejected by, the jury. See State v. Calloway, 2007- 2306 ( La. 1/ 21/ 09), 1 So. 3d

417, 418 ( per curiam). A court of appeal impinges on a fact finder' s discretion

beyond the extent necessary to guarantee the fundamental protection of due

process of law in accepting a hypothesis of innocence that was not unreasonably

rejected by the fact finder. See State v. Mire, 2014- 2295 ( La. 1/ 27/ 16), 269 So. 3d

698, 703 ( per curiam). After a thorough review of the record, we are convinced

that a rational trier of fact, viewing the evidence presented in this case in the light

most favorable to the State, could find that the State proved beyond a reasonable

doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the

elements of second degree murder, the defendant' s identity as the perpetrator, and

14

all of the elements of possession of a firearm or carrying a concealed weapon by a

convicted felon. Thus, counseled assignment of error number one lacks merit.

COUNSELED ASSIGNMENT OF ERROR NUMBER TWO

In counseled assignment of error number two, the defendant argues that the

trial court erred in denying his motion for mistrial after the State revealed during

its opening statement specific details of the defendant' s predicate offense. He

contends the State should have revealed only the existence and timing of his prior

second degree battery conviction, the predicate used to charge him as a convicted

felon in possession of a firearm, but instead, revealed the specific facts of the

offense. He argues that once the jury heard the details of the other crime and its

similarity to some of the facts alleged in this case, the jury' s ability to fairly assess

the evidence and his ability to mount a defense were prejudiced. He contends the

State was allowed to portray him as a bad person who acted in conformity with the

actions to which he pled no contest just months before the instant alleged offense.

He asserts that the introduction of the evidence was not harmless since the jury' s

verdict cannot be considered " unattributable" to the error.

The primary function of the prosecutor' s opening statement is to set forth, in

general terms, the nature of the charge sufficiently to enable the jury to follow the

proceedings and to inform the accused of what acts on his part the State intends to

prove. See La. Code Crim. P. art. 766. Statements made outside the permissible

scope of an opening statement may result in a mistrial under La. Code Crim. P.

arts. 770 and 771. State v. Banks, 2009- 0052 ( La. App. 1st Cir. 6/ 12/ 09), 2009

WL 1655006, at * 2, writ denied, 2009- 1609 ( La. 3/ 12/ 10), 28 So. 3d 1024. Article

770 provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a
remark or comment, made within the hearing of the jury by the judge,
district attorney, or a court official, during the trial or in argument,
refers directly or indirectly to:

15

2) Another crime committed or alleged to have been
committed by the defendant as to which evidence is not admissible;

Emphasis added.)

Otherwise, an admonition to the jury may suffice, as provided in Article 771:

In the following cases, upon the request of the defendant or the state,
the court shall promptly admonish the jury to disregard a remark or
comment made during the trial, or in argument within the hearing of
the jury, when the remark is irrelevant or immaterial and of such a
nature that it might create prejudice against the defendant, or the state,
in the mind of the jury:

1) When the remark or comment is made by the judge, the district
attorney, or a court official, and the remark is not within the scope of
Article 770; or

In such cases, on motion of the defendant, the court may grant a
mistrial if it is satisfied that an admonition is not sufficient to assure
the defendant a fair trial.

Mistrial is a drastic remedy and warranted only when substantial prejudice

will otherwise result to the accused to deprive him of a fair trial. State v. Booker,

2002- 1269 ( La. App. 1st Cir. 2/ 14/ 03), 839 So. 2d 455, 467, writ denied, 2003-

1145 ( La. 10/ 31/ 03), 857 So. 2d 476. A trial court' s ruling denying a mistrial will

not be disturbed absent an abuse of discretion. State v. Givens, 99- 3518 ( La.

1/ 17/ 01), 776 So. 2d 443, 454. Before a verdict will be overturned on the basis of

improper argument, the court must be thoroughly convinced that the comment

influenced the jury and contributed to the verdict. In determining whether

improper argument has contributed to the verdict, a reviewing court should give

credit to the good sense and fairmindedness of the jurors who have heard the

evidence. State v. Thompson, 2016- 1348 ( La. App. 1st Cir. 5/ 2/ 17), 2017 WL

1755594, at * 7, writ denied, 2017- 1199 ( La. 5/ 11/ 18), 241 So. 3d 1011.

In the instant case, during opening remarks, the State, in pertinent part,

stated as follows,

16

Now, I start with the road map to what you are going to hear in
this case. And this road map will lead you to a conviction of both
charges with him. I' ll start off with him with a felon in possession of
a firearm. He was convicted of two counts of second degree battery
and that' s where he took his fist and busted a head open and punched -

The defense attorney interjected to request a bench conference and argued

that the State was only allowed to say that the defendant was convicted. In

response, the State noted that it intended to present testimony regarding the facts of

the predicate offense. The trial court noted that it would research whether the State

would be allowed to present such facts and the State proceeded with opening

remarks. The State then, by way of an analogy to the facts of the instant case,

mentioned the predicate offense again as follows, "... and I told you about the

second degree battery charge is a felony —for some inexplicable reason he runs up

to and he just (demonstrating), and he punches at [ the victim]."

Later, when the trial court disclosed that it was unable find any cases to

support allowing the facts of the predicate offense to be presented to the jury, the

defense attorney moved for a mistrial, based on the State' s comments during its

opening statement, noting that the State mentioned the predicate offense a second

time even after the initial objection. The defense attorney argued that the

defendant was prejudiced by the admission of the facts of the second degree

battery offense and noted that the State " combined facts" from the previous

conviction to indicate the defendant could have done the same in the instant case.

The State noted that the jury would be instructed that the underlying felony was

not to be considered to be a part of the instant case. The trial court stated that the

parties would be allowed to research the issue. After noting that giving the facts of

the predicate offense would be prejudicial, the trial court added, " But it was so

brief when you talked about it that I think I can admonish the jury to disregard any

facts about the conviction and the conviction can only be used for the felon in

17

possession without declaring a mistrial." After the bench conference, the State

resumed questioning Detective Little and the defense attorney did not request an

admonition.

Initially, we note that in his brief, the defendant states, "[ t]he trial court

should have stemmed the damage by giving a specific and immediate

admonishment as requested or granting the motion for new trial." However, the

record reflects that the defendant did not request an admonition, when offered by

the trial court or thereafter, or subsequently move for a new trial. Additionally, we

agree with the trial court' s ruling, as a mistrial was not mandated by Article 770 or

warranted under Article 771 in this case.

While the statements by the prosecutor at issue herein may be construed as

remarks or comments on inadmissible evidence of other crimes, the remarks also

could be construed as the State referencing an offense that constituted an element

of one of the offenses for which the defendant stood trial, being a convicted felon

in possession of a firearm. Furthermore, prior to the opening remarks, the trial

court instructed the jury that the opening statement by the State is not evidence and

that statements made by attorneys at any time during the trial are not evidence.

During jury instructions before deliberations, the trial court reiterated that

statements made by attorneys are not evidence. The trial court further specifically

reminded the jury that opening statements were permitted solely to tell the jury the

facts the State expected to prove and are not to be considered evidence. We,

moreover, are not convinced that the passing references at issue contributed to the

verdicts. See State v. Guidry, 2019- 1624 ( La. App. 1 st Cir. 10/ 21/ 20), So. 3d

2020 WL 6156698, at * 6- 7 ( in which the prosecutor' s hyperbolic and

improper reference to the possibility of the defendant committing another crime

was found not to have contributed to the jury' s finding of guilt and was deemed

harmless error). We find no error or abuse of discretion in the trial court' s denial

18

of the defendant' s motion for mistrial. See State v. Joyner, 50, 740 ( La. App. 2d

Cir. 6/ 22/ 16), 197 So. 3d 724, 735- 37, writ denied, 2016- 1493 ( La. 6/ 16/ 17), 219

So. 3d 1111 ( wherein the prosecutor referred during its opening statement to

evidence that was ultimately not admitted, and the court found9 the defendant

failed to prove the prosecutor' s statements rose to the level of "bad faith" or " clear

and substantial prejudice" and further found that the statements were not so

prejudicial as to merit a mistrial). Counseled assignment of error number two

lacks merit.

PRO SE ASSIGNMENT OF ERROR

In the sole pro se assignment of error, the defendant argues that the

amendment of the indictment three years after it was returned by the grand jury to

add count two, possession of a firearm or carrying a concealed weapon by a

convicted felon, constituted a constructive amendment in violation of the Fifth

Amendment of the United States Constitution. Relying on the argument that his

constitutional right was violated, the defendant contends that the lack of a

contemporaneous objection should be disregarded. The defendant contends that he

had insufficient notice of the new charge against him and was deprived of

presenting a proper defense thereto. The defendant further argues that the

indictment is fatally defective on its face in that no filing date or signature of the

grand jury foreman appears on the indictment. He concludes, " his conviction is

unauthorized in that the record fails to disclose a valid indictment."

Under Louisiana law, prosecution for a capital offense or an offense

punishable by life imprisonment shall be instituted by indictment by the grand jury,

and prosecution of other felony offenses shall be initiated by indictment or

information. La. Const. art. I, § 15; La. Code Crim. P. art. 382( A). An indictment

9 The court cited State v. Green, 343 So. 2d 149, 151 ( La. 1977), to note the general rule that,
absent bad faith on the part of the prosecutor or clear and substantial prejudice, the reference in
the opening statement to evidence later ruled inadmissible is not a ground for a mistrial."

19

is a written accusation of crime made by a grand jury that must be concurred in by

not less than nine grand jurors, indorsed a " true bill," and the indorsement must be

signed by the foreman. La. Code Crim. P. art. 383. State v. Brazell, 2017- 0032

La. App. 4th Cir. 4/ 18/ 18), 245 So. 3d 15, 29, writ denied, 2018- 0868 ( La. 3/ 6/ 19),

266 So. 3d 900, cert. denied, U.S. , 140 S. Ct. 263, 205 L.Ed.2d 167 ( 2019).

Under La. Code Crim. P. art. 487, the court may at any time cause the indictment

to be amended in respect to a formal defect and may order an indictment amended

with respect to a defect of substance at any time before the trial begins. Such

amendments may include adding a charge or a count to an indictment. State v.

Sanders, 93- 0001 ( La. 11/ 30/ 94), 648 So.2d 1272, 1283, cert. denied, 517 U.S.

1246, 116 S. Ct. 25045 135 L.Ed.2d 194 ( 1996); State v. Pitree, 2005- 1513 ( La.

App. 3d Cir. 5/ 3/ 06), 930 So. 2d 265, 280, writ denied, 2006- 1897 ( La. 3/ 23/ 07),

951 So. 2d 1092.

Likewise, it is well- settled law that district attorneys are empowered to

amend indictments, both as to form and substance, at any time before trial. See La.

Code Crim. P. art. 487( A); State v. Charles, 2019- 0757 ( La. App. 1st Cir.

8/ 19/ 19), 2019 WL 3891818, at * 1, writ denied, 2019- 01615 ( La. 7/ 24/ 20), 299

So. 3d 49; State v. Frost, 53, 312 ( La. App. 2d Cir. 3/ 4/ 20), 293 So. 3d 708, 720,

writ denied, 2020- 00628 ( La. 11/ 18/ 20), 304 So. 3d 416. The purpose of requiring

the State to file an amendment to an indictment before trial is to provide the

defendant with adequate notice of the crime for which he is charged so he can

properly prepare his defense. When the indictment against the defendant provides

sufficient notice of the crime with which he is charged, a defendant suffers no

prejudice. State v. Delandro, 2001- 2514 ( La. App. 1st Cir. 5/ 10/ 02), 818 So. 2d

10111 1017. The time for testing the sufficiency of an indictment or bill of

information is before trial by way of a motion to quash or an application for a bill

of particulars. State v. Draughn, 2005- 1825 ( La. 1/ 17/ 07), 950 So. 2d 583, 623,

20

cert. denied, 552 U.S. 1012, 128 S. Ct. 537, 169 L.Ed.2d 377 ( 2007). A post -

verdict attack on the sufficiency of an indictment should be rejected unless the

indictment failed to give fair notice of the offense charged or failed to set forth any

identifiable offense. State v. Thibodeaux, 98- 1673 ( La. 9/ 8/ 99), 750 So. 2d 916,

930, cert. denied, 529 U.S. 11125 120 S. Ct. 1969, 146 L.Ed.2d 800 ( 2000); State v.

Young, 2019- 0773 ( La. App. 1st Cir. 8/ 19/ 19), 2019 WL 3891091, at * 1.

As the defendant concedes, he did not object to the amendment of the grand

jury indictment. On February 13, 2019, the State filed a motion to amend the

indictment, to add the charge of felon in possession of a firearm ( count two),

10
arising out of the same incident. The State attached to the motion an

AMENDED BILL OF INDICTMENT" that is not dated or signed by the

foreman. However, on August 14, 2019, the State made a handwritten amendment

to the original grand jury indictment to add count two, and the amended indictment

was filed in open court. The amended indictment contains the original and the

post -amendment filing dates. The defendant was arraigned on count two and pled

not guilty. While the defendant did not object to the amendment of the indictment,

defense counsel indicated that a motion to sever would be filed to allow the

defense to prepare for the additional charge. However, on the next hearing date,

September 20, 2019, the defense attorney informed the court that the defendant no

io In pertinent part, a conviction of felon in possession of a firearm provides for imprisonment " at
hard labor for not less than five nor more than twenty years." La. R. S. 14: 95. 1( B). While a
prosecution for an offense punishable by death or life imprisonment must be instituted by a
grand jury indictment, all other prosecutions can be instituted by a bill of information. See La.
Code Crim. P. art. 382( A). A bill of information made by the district attorney must be filed in
open court or in the office of the clerk. La. Code Crim. P. art. 384. In State v. Smith, 35, 699
La. App. 2d Cir. 4/ 5/ 02), 815 So. 2d 412, 414, writ denied, 2002- 1502 ( La. 4/ 4/ 03), 840 So. 2d
1200, the defendant was originally charged by grand jury indictment with one count of
aggravated rape. The prosecutor later amended the indictment, without approval of the grand
jury, to add a count of molestation of a juvenile relative to the victim of the original aggravated
rape charge and two counts of aggravated rape relative to two new victims. Id. On appeal, the
court found the amended indictment should have been quashed with respect to the two new
aggravated rape counts, but the court affirmed the defendant' s conviction of the added
molestation of a juvenile count. See Smith, 815 So. 2d at 418 and 421. As further recognized in
a concurrence to the opinion, the State can " add to an indictment any related charge against the
same defendant, so long as the added charge may be initiated by a bill of information." Smith,
815 So. 2d at 423 ( Drew, J., concurring).

21

longer wished to file a motion to sever and that said motion would not be filed."

Two months later, on November 19, 2019, the trial began.

Louisiana Code of Criminal Procedure article 841( A) provides, in pertinent

part, that "[ a] n irregularity or error cannot be availed of after verdict unless it was

objected to at the time of occurrence." The defendant' s failure to object to the

amendment of the indictment, request a continuance, or move to quash the

indictment precludes relief on this claim. See Draughn, 950 So. 2d at 623; see also

State v. Dean, 2010- 1020 ( La. App. 1st Cir. 12/ 22/ 10), 2010 WL 5442005, * 85

writ denied, 2012- 0011 ( La. 8/ 22/ 12), 97 So. 3d 355. Moreover, the defendant has

failed to prove any prejudice flowing from the amendment at issue. We find that

the State amended the indictment before trial in conformity with Article 487. See

also La. Code Crim. P. arts. 489 & 761. The sole pro se assignment of error lacks

merit.

PATENT SENTENCING ERROR

Pursuant to Louisiana Code of Criminal Procedure article 920, this court

routinely conducts a review for error discoverable by mere inspection of the

pleadings and proceedings and without inspection of the evidence. After a careful

review of the record, we have found a sentencing error. Louisiana Revised Statute

14: 95. 1( B) mandates imposition of a fine of not less than $ 1, 000, nor more than

5, 000. The defendant' s sentence does not include a fine. Because the sentence

imposed on count two does not comply with Section 14: 95. 1( B), it is illegally

11 We also note that the defendant did not file a motion to continue based on the amendment of
the indictment. Instead, he filed a " MOTION FOR PRELIMINARY EXAMINATION,
ALTERNATIVELY FOR BAIL AND FOR SPEEDY TRIAL" on August 26, 2019, wherein he
included a request for a speedy trial with respect to the felon in possession of a firearm charge.
He also filed a separate " MOTION FOR SPEEDY TRIAL" on the same date with respect to the
second degree murder charge. At the September 20, 2019 hearing, however, the defendant
declared that his speedy trial request was only for the second degree murder charge and did not
relate to the felon in possession of a firearm charge.

22

lenient. 12 However, since the sentence is not inherently prejudicial to the

defendant, and neither the State nor the defendant has raised this sentencing issue

on appeal, we decline to correct this error. See State v. Price, 2005- 2514 ( La.

App. 1st Cir. 12/ 28/ 06), 952 So. 2d 112, 124- 25 ( en banc), writ denied, 2007- 0130

La. 2/ 22/ 08), 976 So.2d 1277.

CONVICTIONS AND SENTENCES AFFIRMED.

12 We further note that when imposing the sentence on count two, the trial court did not state that
the sentence would be served without the benefit of parole, as statutorily required. See La. R.S.
14: 95. 1( B). Nonetheless, as La. R.S. 15: 301. 1( A) provides, any applicable " without benefits"

provision is self -activating. State v. Williams, 2000- 1725 ( La. 11/ 28/ 01), 800 So. 2d 790, 799.

23