State Of Louisiana v. Jerrell Alexander

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2020 KA 1337

STATE OF LOUISIANA

VERSUS

JERRELL ALEXANDER

Judgment Rendered: OCT 1 8 2021

On Appeal from the
17th Judicial District Court
In and for the Parish of Lafourche
State of Louisiana
Trial Court No. 583000

Honorable F. Hugh Larose, Judge Presiding

MMEM

Cynthia K. Meyer Attorney for Defendant -Appellant,
New Orleans, LA Jerrell Alexander

Kristine M. Russell Attorneys for Appellee,
District Attorney State of Louisiana
Shaun -Philip George
Assistant District Attorney
Thibodaux, LA

BEFORE: WHIPPLE, C. J., PENZATO, AND HESTER, JJ.

HESTER, I

The defendant, Jerrell Alexander, was charged by grand jury indictment with

two counts of second degree murder, violations of La. R. S. 14: 30. 1, and pled not

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

unanimous verdicts on both counts. He was sentenced to consecutive terms of life

imprisonment at hard labor without benefit of probation, parole, or suspension of

sentence. He moved for reconsideration of sentence, but the motion was denied. He

also filed an untimely motion for new trial which was denied. See La. Code Crim.

P. art. 853( A). The defendant now appeals raising four assignments of error. For

the following reasons, we affirm the convictions and sentences.

FACTS

On December 15, 2018, Trevor Smith was playing pool with the victims,

Jeremiah Ballard and Marcel Turner, in the garage of a home on Market Street in

Lafourche Parish. During the early afternoon, the defendant and his brother Kerry

Razor" Alexander entered the garage wearing camouflage masks and waving

handguns. Smith was familiar with the defendant and Kerry Alexander because he

had previously seen them when he went to buy sweets and drinks from their mother,

who sold those items two streets over from where Smith lived. Smith was able to

see the faces of the defendant and Kerry Alexander through openings in the masks.

Smith saw Kerry Alexander " cock[] ... back [ his gun]" and heard him say, " Give it

up." Smith then ran from the garage. As he ran through the house, he heard " a little

bit more than five" shots fired.

Ballard and Turner were killed in the gunfire. Ballard suffered a potentially

fatal wound to the left side of his chest, a fatal wound to his back, and a wound to

his right arm. Turner suffered a fatal wound to the left side of his back.

FA

The defendant testified at trial. He had prior convictions for armed robbery

and attempted second degree murder. He denied going to the scene of the crime.

He implicated Kerry Alexander and Justin Boudreaux in the crimes.

RIGHT TO FAIR TRIAL

In assignment of error number 1, the defendant contends two trial court rulings

violated his constitutional right to a fair trial. First, the defendant argues the trial

court erred in refusing to allow him to cross- examine Trevor Smith with a photo

line-up prepared by defense counsel. Second, the defendant argues the trial court

erred in accepting St. Tammany Parish Crime Laboratory Lieutenant Jodie Clements

as an expert in gunshot residue analysis.

DEFENSE PHOTO LINE- UP

A criminal defendant' s right to present a defense is guaranteed by the Sixth

Amendment of the United States Constitution and Article I, § 16 of the Louisiana

Constitution. Evidentiary rules may not supersede the fundamental right to present

a defense. See U.S. Const. amend. VI; La. Const. art. I, § 16; State v. Van Winkle,

94- 0947 ( La. 6/ 30/ 95), 658 So. 2d 198, 202. However, constitutional guarantees do

not assure the defendant the right to the admissibility of any type of evidence, only

that which is deemed trustworthy and has probative value can be admitted. See State

v. Governor, 331 So.2d 443, 449 ( La. 1976). Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, misleading the jury, or by considerations of undue

delay or waste of time. La. Code Evid. art. 403. Ultimately, questions of relevancy

and admissibility of evidence are discretion calls for the district court. Such

determinations regarding relevancy and admissibility should not be overturned

absent a clear abuse of discretion. See State v. Mosby, 595 So. 2d 1135, 1139 ( La.

1992); State v. Bridges, 2014- 0777 ( La. App. 1st Cir. 3/ 6/ 15), 2015 WL 9971629

4 ( unpublished), writ denied, 2015- 0675 ( La. 2/ 26/ 16), 187 So. 3d 467.

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During the cross- examination of Smith, defense counsel asked whether Smith

would be able to identify the parties in the shooting if presented with another

photographic lineup. Smith answered affirmatively. Thereafter, at an on -the -record

bench conference, the trial court stated, "[ n] ot in my courtroom." The trial court

asked defense counsel to provide a factual basis and explain the relevancy of

showing Smith a new lineup. Counsel replied, "[ t]he relevance is that this witness

has testified that he chose two people on the initial lineup. He also testified that he

only saw the eyes ...." The trial court interrupted defense counsel, stating "[ o] nly

one is relevant. [ It] [ i] s the one that is used to identify. You cannot impeach his

testimony by attempting to fabricate another lineup. It' s not the same line. It' s not

under the same circumstances and not at the same time. I' m not allowing it unless

you got a case that says to the contrary." Defense counsel responded that he did not

have any such case. The trial court also asked defense counsel if he had a statute or

a] nything" that would allow admission of the new lineup, but defense counsel

answered negatively.

The new lineup was prepared by the " staff' of defense counsel. Defense

counsel described the new lineup as " just what the witness saw. Not the whole facial

features. Just the cut out of the eyes[.]" The trial court found that "[ t] his is an

absolute recreation without any control, without being able to subject it to any

testing. It was completely designed by [ defense counsel' s] staff on some kind of

Photoshop deal and that has no relevancy to the hearing today, and I will absolutely

not allow it." Defense counsel objected to the ruling and was given permission to

proffer the new lineup.

There was no clear abuse of discretion in the ruling excluding the new lineup.

The probative value, if any, of the new lineup was substantially outweighed by the

danger of unfair prejudice, confusion of the issues, misleading the jury, and by

considerations of undue delay and waste of time. Defense counsel claimed the new

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lineup had probative value because it was "[ j]ust the cut out of the eyes" and was

just what the witness saw." Smith, however, testified that although the gunmen

wore masks under their eyes, he "[ could] see through [ the masks]" because the

masks had " openings." He indicated he could see identifying features through the

masks. He also indicated he had seen the defendant " several times" before the

incident and identified him as one of the gunmen based on his body build, and " how

he acts, mannerisms." See State v. Duncan, 99- 2615 ( La. 10/ 16/ 01), 802 So. 2d

533, 556, cert. denied, 536 U.S. 907, 122 S. Ct. 2362, 153 L.Ed.2d 183 ("[ In contrast

to true illustrations,] replications of an original event ... are admissible only if a

similarity requirement is satisfied. That is, the replication must be conducted under

substantially similar circumstances.").

This portion of this assignment of error is without merit.

QUALIFICATION OF EXPERT

Louisiana Code of Evidence article 702 addresses the admissibility of expert

testimony and, in pertinent part, provides:

A. A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:

1) The expert' s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;

2) The testimony is based on sufficient facts or data;

3) The testimony is the product of reliable principles and
methods; and

4) The expert has reliably applied the principles and methods to
the facts of the case.

A determination regarding the competency of a witness is a question of fact.

It is well settled that a trial judge is vested with wide discretion in determining

questions of fact. Therefore, rulings on the qualifications of an expert witness will

not be disturbed on appeal absent manifest error. State v. Young, 2009- 1177 ( La.

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4/ 5/ 10), 35 So. 3d 1042, 1046, cert. denied, 562 U.S. 1044, 131 S. Ct. 597, 178

L.Ed.2d 434 ( 2010).

The State offered Lieutenant Clements as an expert in the field of primer

gunshot residue testing. She earned a bachelor' s degree in forensic chemistry from

Loyola University and a master' s degree in criminal justice administration. At the

time of the trial, she had been with the St. Tammany Parish Sheriff' s Office Crime

Lab for six years and was assistant lab director, the quality manager, and a primer

gunshot residue analyst.

In regard to primer gunshot residue, Lieutenant Clements had been certified

by the St. Tammany Parish Sheriff' s Office Crime Lab to analyze gunshot residue

after completing an " intensive training program." The nine- month long training

program had knowledge- based components and practical exercises. Lieutenant

Clements worked under a field training officer in the program and had to pass a

competency test to complete the program. In order to pass the competency test,

Lieutenant Clements had to be 100% accurate when testing unknown samples

containing positives and negatives. During the training program, Lieutenant

Clements completed " twenty cases total [ of] partially observe[ d] and partially

supervise[ d] casework." Following the training program, Lieutenant Clements had

completed thirty cases for her agency.

Lieutenant Clements indicated she had completed her training program on

May 24, 2019, and had never previously been either offered or been qualified as an

expert in the field of primer gunshot residue testing. Defense counsel objected to

Lieutenant Clements being qualified as an expert " for the reasons that she' s never

testified before, never been certified before, and is — has not been doing this even a

year, yet." The trial court ruled, " based upon [ Lieutenant Clements' s] training, her

stated certification, and other things[,] that she is qualified in fact to give opinion

testimony as an expert in the gunshot residue analysis."

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At trial, Lieutenant Clements testified she analyzed potential gunshot residue

in the instant case. She indicated primer gunshot residue is formed when a firing pin

hits the back of ammunition —the primer cap. There is then a small explosion in the

firearm and the particles that are in the primer are heated up and melded together.

Those particles then rapidly cool as they exit the firearm and fall to the surfaces or

people in the vicinity. Gunshot residue analysis looks for those particles, i.e.,

antimonium, barium, and lead, that have melded together. The analysis also looks

for the specific shape of the melding event.

In regard to the gunshot residue kit performed on the defendant, Lieutenant

Clements identified two gunshot residue particles taken from the back of his left

hand. In regard to the gunshot residue kit performed on Kerry Alexander, Lieutenant

Clements identified four gunshot residue particles. Lieutenant Clements indicated

that when less than four gunshot residue particles were identified in a sample, it was

considered to be of limited evidentiary value because "[ i] f you are an individual or

someone who fires a lot of firearms on a regular basis, it' s possible that you would

be a person that might have one particle on you in a typical collection. So at that

point to be perfectly clear about the importance of the number of particles on the

hand, we included that statement so those factors can be taken into account when

interpreting the results."

There was no manifest error in the trial court' s ruling. Lieutenant Clements

had scientific, technical, or other specialized knowledge that would help the jury in

understanding the evidence concerning gunshot residue and was qualified as an

expert by her knowledge, skill, experience, training, or education to testify thereto

in the form of an opinion or otherwise. Her testimony was based on sufficient facts

or data; was the product of reliable principles and methods; and she had reliably

applied the principles and methods to the case. See La. Code Evid. art. 702( A).

This portion of this assignment of error is also without merit.

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JURY CHARGE

In assignment of error number 2, the defendant contends the trial court erred

in charging the jury as to the elements of the responsive verdict of manslaughter. He

argues the language regarding unauthorized entry of an inhabited dwelling was

neither pertinent to the case nor supported by the evidence because the victims and

the defendant grew up in the same neighborhood and the garage where the shooting

occurred was a gathering place for the victims and their friends.

Louisiana Revised Statutes 14: 31, in pertinent part, provides:

A. Manslaughter is:

2) A homicide committed, without any intent to cause death or
great bodily harm.

a) When the offender is engaged in the perpetration or attempted
perpetration of any felony not enumerated in Article 30 or 30. 1, or of
any intentional misdemeanor directly affecting the person[.]

The trial court charged the jury on manslaughter as follows:

Because a verdict of guilty of manslaughter is a responsive
verdict in this case it is my duty to explain the law as it applies to
manslaughter. Manslaughter is the killing of a human being when the

defendant has a specific intent to kill or inflict great bodily harm, but
the killing is committed in sudden passion or heat of blood immediately
caused by provocation sufficient to deprive an average person of his
self-control and cool reflection.

Also manslaughter is the killing of a human being when the
defendant is engaged in the commission or attempted commission of
unauthorized entry of an inhabited dwelling even though there is no
intent to kill. [ R.S.] 14: 62. 3( A) of our criminal code provides that
unauthorized entry of an inhabited dwelling is the intentional entry by
a person without authorization into any inhabited dwelling or other
structure belonging to another and used in whole or in part as a home
or place of abode by a person.

Thus, in order to convict the defendant of a manslaughter, you
must find under number one that the defendant killed Jeremiah Ballard
and/ or Marcel Turner, and that the defendant had a specific intent to
kill or inflict great bodily harm but that the killing was committed in
sudden passion or heat of blood immediately caused by provocation
sufficient to deprive an average person of his self-control and cool
reflection.

Or second, the defendant killed Jeremiah Ballard and/ or Marcel
Turner whether or not he had an intent to kill and that the killing took
place while the defendant was engaged in the commission of or
attempted commission of unauthorized entry of an inhabited dwelling.

Prior to the charging of the jury, the defense objected to the latter part of the

manslaughter jury charge " which basically says any felony or misdemeanor is

committed and that person dies as long as it is not a felony enumerated in first-degree

murder or second- degree murder." The defense objected to the charge containing a

chosen crime." The defense argued, "[ i] f the Court is inclined to say no, I think

there should be a single crime chosen as in second- degree murder we' ve chosen

arm[ ed] robbery for ease of the jury and not confusion things like that."

The State responded:

Louisiana Code of Criminal Procedure] 814 does list the responsive
verdicts. Manslaughter is one that is included. We are entitled to have
the entire manslaughter verdict. If it be a person just charged with
manslaughter, the State would pick the enumerated felony not listed in
30. 1, and we would charge him as such. Here the Court and the jury

has heard all the evidence and unauthorized entry of an inhabited
dwelling certainly fits as the underlying felony should manslaughter
become a responsive verdict and there is literally case law that says that
is perfectly fine.

The trial court overruled the defense, objection, noting " by limiting it, it

actually puts a higher burden on the State and does not in any way lead the jury to

an inconcise [ sic] understanding of the law as it applies to the case."

There was no error. Initially, we note " arm[ ed] robbery" could not be used in

the jury charge concerning La. R.S. 14: 31( A)(2) ( a) because it is a felony enumerated

in La. R.S. 14: 30( A)( 1) and La. R.S. 14: 30. 1( A)(2). See La. R.S. 14: 31( A)( 2)( a)

a] ny felony not enumerated in Article 30 or 30. 1" ( emphasis added)). Further,

we are not persuaded by the argument that because the victims and the defendant

grew up in the same neighborhood, and the garage where the shooting occurred was

a gathering place for the victims and their friends, there could be no unauthorized

entry of an inhabited dwelling in this case. Whatever the relationship between the

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victims and the defendant, there was nothing presented at trial to indicate the victims

authorized armed gunmen wearing masks to enter the garage to rob and/ or kill them.

The evidence in this case supported the manslaughter charge provided to the jury,

and thus, the trial court properly charged the jury on that offense. See La. Code

Crim. P. art. 802( 1) (" The court shall charge the jury: ( 1) [ a] s to the law applicable

to the case[.]")

This assignment of error is without merit.

UNCONSTITUTIONALLY EXCESSIVE SENTENCES

In assignment of error number 3, the defendant contends the consecutive life

sentences are excessive. He argues the convictions arose from a common scheme

that occurred over the span of a few minutes and La. Code Crim. P. art. 883 requires

that concurrent sentences must be imposed under these circumstances unless the trial

court expressly directs that the sentences are to be served consecutively. Relying on

State v. Cornejo-Garcia, 2011- 619 ( La. App. 5th Cir. 1/ 24/ 12), 90 So. 3d 458, 465,

defendant also argues that if a court elects to impose consecutive sentences for

crimes arising from a single course of conduct, it must articulate the reasons it feels

the sentence is necessary; however, the trial court gave no reasons for imposing

consecutive sentences.

Louisiana Constitution Article I, Section 20 prohibits the imposition of

excessive punishment. Although a sentence may be within statutory limits, it may

violate a defendant' s constitutional right against excessive punishment and is subject

to appellate review. Generally, a sentence is considered excessive if it is grossly

disproportionate to the severity of the crime or is nothing more than the needless

imposition of pain and suffering. A sentence is considered grossly disproportionate

if, when the crime and punishment are considered in light of the harm to society, it

is so disproportionate as to shock one' s sense ofjustice. A trial judge is given wide

discretion in the imposition of sentences within statutory limits, and the sentence

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imposed should not be set aside as excessive in the absence of manifest abuse of

discretion. State v. Parker, 2013- 1050 ( La. App. 1st Cir. 2/ 20/ 14), 2014 WL

687992, * 2 ( unpublished), writ denied, 2014- 0631 ( La. 10/ 24/ 14), 151 So. 3d 601,

cert. denied, 575 U.S. 941, 135 S. Ct. 17141 191 L.Ed.2d 687 ( 2015); State v.

Harper, 2007- 0299 ( La. App. 1st Cir. 9/ 5/ 07), 970 So. 2d 592, 602, writ denied,

2007- 1921 ( La. 2/ 15/ 08), 976 So. 2d 173.

The Louisiana Code of Criminal Procedure sets forth items which must be

considered by the trial court before imposing sentence. La. Code Crim. P. art. 894. 1.

The trial court need not recite the entire checklist of Article 894. 1, but the record

must reflect that it adequately considered the criteria. In light of the criteria

expressed by Article 894. 1, a review for individual excessiveness should consider

the circumstances of the crime and the trial court' s stated reasons and factual basis

for its sentencing decision. Remand for full compliance with Article 894. 1 is

unnecessary when a sufficient factual basis for the sentence is shown. Parker, 2014

WL 687992 at * 2; Harper, 970 So. 3d at 602.

If the defendant is convicted of two or more offenses based on the same act

or transaction, or constituting parts of a common scheme or plan, the terms of

imprisonment shall be served concurrently unless the court expressly directs that

some or all be served consecutively. La. Code Crim. P. art. 883. Thus, La. Code

Crim. P. art. 883 specifically excludes from its scope sentences which the court

expressly directs to be served consecutively. Furthermore, although the imposition

of consecutive sentences requires particular justification when the crimes arise from

a single course of conduct, consecutive sentences are not necessarily excessive.

Parker, 2014 WL 687992 at * 2.

The pertinent question on appellate review is whether the trial court abused

its broad sentencing discretion, not whether another sentence might have been more

appropriate. A trial court abuses its discretion only when it contravenes the

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prohibition of excessive punishment in La. Const. art. I, § 20, i. e., when it imposes

punishment disproportionate to the offense. In making that determination, we must

consider the punishment and the crime in light of the harm to society caused by its

commission and determine whether the penalty is so disproportionate to the crime

committed as to shock our sense of justice. State v. Colvin, 2011- 1040 ( La.

3/ 13/ 12), 85 So.3d 663, 667- 68 ( per curiam), cert. denied, 568 U.S. 889, 133 S. Ct.

274, 184 L.Ed.2d 162 ( 2012). Consecutive sentences are justified when the offender

poses an unusual risk to public safety. State v. Barnett, 96- 2050 ( La. App. 1 st Cir.

9/ 23/ 97), 700 So. 2d 1005, 1013.

Whoever commits the crime of second degree murder shall be punished by

life imprisonment at hard labor without benefit of parole, probation, or suspension

of sentence. La. R.S. 14: 30. 1( B). In this case, the trial court imposed consecutive

sentences of life imprisonment at hard labor without benefit of probation, parole, or

suspension of sentence and expressly directed that the sentences in this matter were

to be served consecutively. Thus, they were beyond the scope of La. Code Crim. P.

art. 883. See Parker, 2014 WL 687992 at * 2.

In regard to the defendant' s claim that under Cornejo- Garcia, 90 So. 3d at

465, " if the trial court elects to impose consecutive sentences for crimes arising from

a single course of conduct, it must articulate the reasons it feels the sentence is

necessary[,]" we note the next sentence in that decision states, "[ t]he failure to

articulate specific reasons for imposing consecutive sentences does not, however,

require remand if the record provides an adequate factual basis to support the

consecutive sentences." At sentencing, the trial court stated, "[ i]n preparing for

today' s sentencing, I reviewed the facts of Article 894. 1( B)." Additionally, the

record provides a sufficient factual basis for consecutive sentences in this matter.

A thorough review of the record reveals the trial court adequately considered

the criteria of Article 894. 1 and did not manifestly abuse its broad sentencing

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discretion in imposing the sentences herein. See La. Code Crim. P. art. 894. 1( A)( 1-

3), ( B)( 1), ( B)( 5), ( B)( 6), ( B)( 9- 12). Additionally, the sentences imposed were not

grossly disproportionate to the severity of the offenses and thus, were not

unconstitutionally excessive.

Consecutive sentences were also warranted in this case because the defendant

poses an unusual risk to public safety. See Barnett, 700 So -2d at 1013. The

defendant, a repeat offender with convictions for armed robbery and attempted

second degree murder, was at least a principal, if not the actual gunman, in the brutal

killing of two victims in broad daylight.

This assignment of error is without merit.

DENIAL OF MOTION FOR NEW TRIAL

In assignment of error number 4, the defendant contends the trial court erred

in denying the motion for new trial. He argues his right to present a defense was

hampered through no fault of his own when a subpoenaed witness failed to appear

and a witness who was subject to recall was not available during the defendant' s

case.

During trial, defense counsel stated he had intended to recall Deputy

Christopher Ryan Simmons, who had testified during the State' s case -in -chief.

Defense counsel claimed the State had indicated that Deputy Simmons would be

available by phone call. However, defense counsel indicated that Deputy Simmons

was unavailable and could not be called by the defense. The State responded that

the trial court previously stated that Deputy Simmons was free to go, but the State

added that it could get ahold of him if need be. Nevertheless, the State indicated it

had called Deputy Simmons' s supervisor and learned he was on a family vacation

in Houston.

The trial court asked defense counsel if he had issued a subpoena for Deputy

Simmons, and defense counsel answered negatively. The trial court stated that the

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court reporter had listened to the tape made when Deputy Simmons testified. At the

conclusion of Deputy Simmons' testimony, the State commented that he could be

reached by phone; the defense made no comment concerning whether or not it

desired to call Deputy Simmons; and the trial court told him he was free to go. The

trial court ruled, "[ a] t that point in time, the witness was obviously not cautioned

about being subject to recall and for the record, it is what it is."

Additionally, defense counsel advised the trial court that he had subpoenaed

Chase Poindexter and domiciliary service was made on him, but he was not present

during trial. Defense counsel stated, "[ t]herefore, the Court advised that they wish I

not call him in the presence of the jury ... in my case." The trial court stated,

r] ight." Defense counsel stated he was now calling Deputy Simmons and

Poindexter. The trial court stated its only recourse in regard to Poindexter was to

issue a notice to him to appear to face contempt, and asked defense counsel if he

wanted the trial court to issue such a notice. However, defense counsel stated he

was " not requesting a contempt issue."

Following the conviction, the defense moved for a new trial on grounds that

the verdicts finding him guilty of two counts of second degree murder would result

in an injustice if permitted to stand as they were contrary to the law and the evidence:

1) because there was insufficient evidence to support the convictions; and ( 2)

because there were witnesses who were subpoenaed and unavailable to be called.

At the hearing on the motion defense counsel stated, "[ w] e just don' t simply

believe there was enough evidence based on the testimony that was given to present

that [ the defendant] was the person who committed the offense." Then defense

argued that its " most important point" was that it had been deprived of the right to

call back Deputy Simmons who was the first responding deputy to the scene of the

incident after the shooting took place. The defense reurged the objection it made at

trial concerning the unavailability of Deputy Simmons, arguing:

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That, you know, that could have swayed as there were other people in
the area and during the trial it was learned there were more people
leaving the scene or the area of the scene at the time and we want to re-
question that witness about that and he was unavailable. So for that
reason, we would ask that a new trial be granted to allow [ the
defendant] to present his whole case.

The State responded that Deputy Simmons was the first law enforcement

officer it called and defense counsel " very aggressively cross- examined him and

elicited all the testimony that he needed." The State argued the defense was not

prejudiced by the absence of Deputy Simmons for recall because " there was nothing

new or anything that happened throughout the trial that would have altered his

testimony." The State pointed out it had provided defense counsel with open -file

discovery and everything presented throughout the trial was consistent with that

discovery.

The trial court denied the motion for new trial. The trial court noted the matter

had been tried in front of a jury which had the opportunity to listen to numerous

witnesses including Deputy Simmons. The court found, while Deputy Simmons was

not available for recall by the defendant, he had testified earlier. The trial court also

found, "[ Deputy Simmons] had been cross- examined by the defendant' s attorney

and there was no showing at that time, nor now that there was any additional

information to be obtained from the testimony of [Deputy] Simmons."

The motion for a new trial is based on the supposition that injustice has been

done the defendant, and, unless such injustice is shown to have been the case, the

motion shall be denied, no matter upon what allegations it is grounded. La. Code

Crim. P. art. 851( A). The court, on motion of the defendant, shall grant a new trial

whenever the court' s ruling on an objection made during the proceedings, shows

prejudicial error. See La. Code Crim. P. art. 851( B)( 2). The denial of a motion for

a new trial is not subject to appellate or supervisory review of the supreme court,

except for error of law. See La. Code Crim. P. art. 858. Whether to grant or deny a

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motion for new trial rests within the sound discretion of the trial court, and that

decision will not be disturbed on appeal absent a clear abuse of discretion. State v.

Eason, 2019- 0614 ( La. App. 1st Cir. 12/ 27/ 19), 293 So. 3d 61, 74- 75.

There was no clear abuse of discretion in the denial of the motion for a new

trial. The defendant failed to show injustice was done by the challenged trial court

rulings.
The defendant failed to show how he was prejudiced by the unavailability

of Deputy Simmons after defense counsel had cross- examined him during the State' s

case -in -chief. In regard to Poindexter, defense counsel declined the trial court' s

offer of issuing a notice to him to appear to face contempt. Further, defense counsel

failed to set forth how he was prejudiced by the absence of Poindexter.

This assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.

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