State of Louisiana v. Mark L. Magee

STATE OF LOUISIANA * NO. 2022-KA-0635

VERSUS *
COURT OF APPEAL
MARK L. MAGEE *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 17-1715, DIVISION “B”
Honorable Michael D. Clement,
******
Judge Tiffany Gautier Chase
******
(Court composed of Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase,
Judge Dale N. Atkins)

JENKINS, J., CONCURS IN THE RESULT

Jeffrey L Smith
Autumn Towns
2735 Tulane Avenue
New Orleans, LA 70119

COUNSEL FOR DEFENDANT/APPELLANT

Charles Joseph Ballay, District Attorney
Jason Napoli, Assistant District Attorney
DISTRICT ATTORNEY'S OFFICE, 25TH JDC,
PLAQUEMINES PARISH
333 F. Edward Hebert Blvd.
Building 201
Belle Chase, LA 70037

COUNSEL FOR PLAINTIFF/APPELLEE

CONVICTIONS AFFIRMED
REMANDED FOR RE-SENTENCING
MARCH 20, 2023

TGC
DN Defendant/Appellant Mark Magee (hereinafter “Defendant”), seeks review
A
of his convictions and sentences for one count of sexual battery of a juvenile, a

violation of La. R.S. 14:43.1, and one count of cruelty to juveniles, a violation of

La. R.S. 14:93(A)(1). For the reasons that follow, we affirm his convictions and

remand this matter to the trial court for re-sentencing.

PROCEDURAL HISTORY

Defendant was charged by bill of indictment with one count of sexual

battery upon a juvenile and one count of cruelty to juveniles. Defendant was

arraigned and pled not guilty to both counts. Following multiple motions to

continue, a jury trial commenced on May 9, 2022. Three days later a unanimous

jury found Defendant guilty as charged.

On July 6, 2022, Defendant filed a motion for new trial pursuant to La.

C.Cr.P. art. 851. On September 7, 2022, the trial court denied his motion for new

trial and conducted a sentence hearing. The trial court sentenced Defendant to

serve ten years, without hard labor, on the count of sexual battery of a juvenile and

ten years on the count of cruelty to a juvenile - each count is to run concurrently

without eligibility for probation or parole.

1

Defendant filed a motion to reconsider his sentences which the trial court

denied. This appeal followed.

STATEMENT OF FACTS

R.L.,1 the victim, was twenty-one years old at the time of the Defendant’s

trial. R.L. and her older brother (hereinafter “D.L.”), began living with their

paternal grandparents, Defendant and Angela Magee (hereinafter “Mrs. Magee”),

following a custody dispute between D.L. and R.L.’s mother and father. D.L. and

R.L. began living with Defendant and Mrs. Magee at the approximate ages of nine

and six, respectively.

R.L. ran away from the home of her grandparents and was picked up in

Plaquemines Parish by her mother (hereinafter “R.L.’s mother”) who drove her to

Texas. Mrs. Magee reported R.L. as a runaway on January 1, 2017. On that same

day, R.L. sent an e-mail to Defendant and Mrs. Magee alleging sexual and physical

abuse. Mrs. Magee forwarded the email to the Plaquemines Parish Officer

investigating R.L.’s runaway.

Lieutenant Holly Hardin (hereinafter “Detective Hardin”) - then a Sergeant

and Detective with the Plaquemines Parish Sherriff’s Office Special Victims Unit -

was contacted by a deputy regarding R.L.’s allegations of sexual and physical

abuse on January 1, 2017. Detective Hardin opened an investigation into the

allegations three days later.

Upon Detective Hardin’s request, R.L.’s mother returned R.L. to Louisiana.

R.L. met with the Department of Children and Family Services (hereinafter

“DCFS”) to determine proper custody arrangements due to the allegations of

1 In accordance with La. R.S. 46:1844(W)(1)(a), to keep confidential the identities of the
persons who were minors at the time of the offenses, initials have been used in place of names.

2

sexual and physical abuse within Defendant’s home.2 During her interview with

DCFS, R.L. stated that she ran away from her grandparents because she could no

longer endure the sexual and physical abuse from Defendant.

DCFS held a meeting with Defendant, Mrs. Magee, R.L., and Detective

Hardin wherein the Defendant told R.L. the following: that he would send her to

Brother Martin High School3 so she could be with all of the boys she pleased; that

she should kill herself; and that she was going to be a prostitute. R.L. was placed in

foster care and removed from Defendant and Mrs. Magee’s custody.

On January 20, 2017, R.L. attended a forensic interview at the Children’s

Advocacy Center (hereinafter “Advocacy Center”) wherein she recounted

numerous instances of sexual and physical abuse by the Defendant.4 Dr. Neha

Mehta (hereinafter “Dr. Mehta”), a certified child abuse expert with the Audrey

Hepburn Care Center, also interviewed R.L.

At trial the following witnesses testified: Detective Hardin, Dr. Mehta, D.L,

R.L., R.L.’s mother, R.L.’s younger brother (hereinafter “C.L.”), R.L.’s second

younger brother (hereinafter “K.L”), Mrs. Magee, and R.L.’s fiancé.

During the State of Louisiana’s (hereinafter “the State”) case in chief,

Detective Hardin testified that she interviewed both the Defendant and Mrs. Magee

as part of her investigation. Detective Hardin noted that R.L. met with DCFS upon

2 When R.L.’s mother returned R.L. to Plaquemines Parish, Defendant and Mrs. Magee still had

legal custody of R.L. who was still considered a runaway.
3 Brother Martin High School is a private, all boys Catholic school located in New Orleans,

Louisiana.
4 R.L.’s interview with the Advocacy Center was both audibly and visually recorded. R.L.’s

Advocacy Center interview was submitted as an exhibit at Defendant’s trial.

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her request and that she was present during DCFS’ joint interview of Defendant,

Mrs. Magee, and R.L.

D.L. testified that he lived with Defendant and Mrs. Magee for a majority of

his life. D.L. denied ever witnessing Defendant sexually, physically, or

emotionally abuse R.L. or any of his siblings. D.L. maintained that their mother

was forcing R.L. to make up the allegations against the Defendant and that R.L.

enjoyed the attention of Defendant’s trial.

Dr. Mehta, qualified as an expert in the field of child abuse, interviewed

R.L. at the Audrey Hepburn Care Center. Dr. Mehta determined that R.L was a

victim of child sexual abuse, child physical abuse, and child emotional abuse. She

testified that R.L. articulated the sexual abuse by the Defendant. Nothing during

the interview suggested to Dr. Mehta that R.L had been untruthful when she

provided an account for the sexual, physical, and emotional abuse by Defendant.

R.L. testified that Defendant began sexually abusing her at the approximate

age of thirteen. R.L. described the incidents of sexual and physical abuse by

Defendant in detail. She recalled that she decided to run away from her

grandparents’ home following a hunting trip in Alabama. When asked about her

father, R.L. testified that he threatened to kill her, her child, and her fiancé. She

stated that she feared for her life and believed he would kill her if he got the

chance.

C.L. testified he began living with Defendant and Mrs. Magee when he was

approximately four years old. He testified that he never witnessed R.L. being

sexually or physically abused by Defendant nor did he recall either of his

grandparents calling R.L. derogatory names. K.L. also testified at trial and

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maintained that he was never physically abused by his grandparents and could not

recall witnessing R.L. being sexually or physically abused by the Defendant.

Mrs. Magee, testified that she had been married to Defendant for over forty

years. She claimed that R.L. and R.L.’s mother were lying about her husband’s

conduct and denied ever abusing R.L. or any of R.L’s younger brothers. She also

testified that she knew R.L. to be a girl who enjoyed the attention of males, was

often disrespectful, and dramatic.

During the State’s rebuttal, Detective Hardin and R.L.’s fiancé testified as to

testimony elicited from D.L., regarding their father.

ERRORS PATENT

Our review of the record reveals one error patent. See La. C.Cr.P. art. 920.

When a defendant is convicted of a felony and a motion for new trial is filed, the

trial court shall not impose a sentence until at least twenty-four hours after the

motion is overruled (hereinafter “the 24-Hour Delay”). See La. C.Cr.P. art. 873. In

the matter sub judice, the trial court denied Defendant’s motion for new trial and

sentenced him on the same day without an express waiver of the 24-Hour Delay.

We find that the trial court’s error of failing to observe the 24-Hour Delay was not

a harmless error. See State v. Kisack, 2016-0797, pp. 7-8 (La. 10/18/17), 236 So.3d

1201, 1205-06 (holding that the trial court’s failure to observe the sentencing delay

required by La. C.Cr.P. art. 873 is not harmless error). Accordingly, the case is

remanded to the trial court solely for the purpose of re-sentencing Defendant.

DISCUSSION

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Defendant asserts six assignments of error: (1) the trial court erred in

denying his motion for new trial as the State’s evidence was insufficient to obtain a

conviction; (2) the trial court erred in allowing the State’s rebuttal evidence which

caused prejudice to Defendant; (3) the trial court erred in imposing the maximum

sentence on both of Defendant’s convictions; (4) the trial court erred in denying

Defendant’s motion for mistrial regarding statements made about Defendant’s

post-Miranda silence; (5) the trial court erred in failing to suppress evidence not

turned over by the State; (6) Defendant was unfairly prejudiced by the

ineffectiveness of his trial counsel. We address each in turn.

Assignment of Error No. 1: Insufficiency of Evidence

In his first assignment of error, Defendant contends that the evidence

presented at trial was insufficient to support his convictions and maintains that the

State failed to establish the essential age elements within the crimes. He further

asserts that the testimony of the State’s witnesses failed to prove beyond a

reasonable doubt that he committed either crime for which he was charged.

“The standard for determining an insufficiency of evidence claim is well

settled.” State v. Campbell, 2015-0017, p. 7 (La.App. 4 Cir. 6/24/15), 171 So. 3d

1176, 1182. Claims for insufficiency of evidence must be viewed in a light most

favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct

2781, 2789, 61 L.Ed.2d 560 (1979); State v. Wilson, 2022-0346, p. 4 (La.App. 4

Cir. 12/9/22), 353 So.3d 389, 393. An appellate court is tasked with determining if

the evidence is sufficient to convince a rational trier of fact that all elements of a

crime have been proven beyond a reasonable doubt. Id.

“This Court must review ‘the record as a whole since that is what a rational

trier of fact would do.’” Wilson, 2022-0346, p. 4, 353 So.3d at 393 (citation

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omitted). This Court is not tasked with assessing the credibility of witnesses or re-

weighing evidence. Campbell, 2015-0017, p. 8, 171 So.3d at 1182 (citations

omitted). The credibility determination of the trier of fact will not be disturbed

unless clearly contrary to the evidence. Id. The testimony of a single witness, if

believed by the trier of fact, is sufficient to support a factual conclusion. Id.

In the matter sub judice, Defendant contends that the State failed to prove

the charges of sexual battery upon a juvenile and cruelty to juveniles. We

separately address each conviction.

Sexual Battery

The jury found Defendant guilty of sexual battery upon a juvenile, a

violation of La. R.S. 14:43.1. Defendant avers that the evidence presented at trial

was insufficient to support his conviction and alleges that La. R.S. 14:43.1 contains

an age component which the State failed to prove. He also contends that the

testimony of R.L. is inconsistent with her siblings and his wife’s testimony, all of

whom lived in the same house as R.L. when the alleged sexual battery took place.

He maintains that due to the lack of forensic and corroborative evidence, his

conviction cannot stand on inconsistent testimony alone.

The State contends that Defendant committed sexual battery upon R.L. from

January 1, 2013 to December 31, 2016. From August 2011 to July 2015, La. R.S.

14:43.1 defined sexual battery, in pertinent part, as follows:

the intentional touching of the anus or genitals of the victim by the
offender using any instrumentality or any part of the body of the
offender, or the touching of the anus or genitals of the offender by the
victim using any instrumentality or any part of the body of the victim,
when any of the following occur:
(1) [t]he offender acts without the consent of the victim.

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The current version of La. R.S 14:43.1, effective August 1, 2015 provides, in

pertinent part:

Sexual battery is the intentional touching of the anus or genitals of the
victim by the offender using any instrumentality or any part of the
body of the offender, directly or through clothing, or the touching of
the anus or genitals of the offender by the victim using any
instrumentality or any part of the body of the victim, directly or
through clothing, when any of the following occur…the offender acts
without the consent of the victim [or] [t]he victim has not yet attained
fifteen years of age and is at least three years younger than the
offender.

La. R.S. 14:43.1(A)(1) and (2).

To support a conviction of sexual battery, the State is required to prove the

following beyond a reasonable doubt: (1) between January 1, 2013 to December

31, 2016, R.L. was under fifteen years old at the time of the offense; (2) R.L. was

at least three years younger than Defendant; and (3) Defendant touched R.L’s

genitals, directly or through clothing, using any instrumentality or any part of his

body.

R.L. testified that she lived with her grandparents, Defendant and Mrs.

Magee, following a custody dispute between her mother and father. R.L. stated that

Defendant first began sexually abusing her at the age of thirteen by touching her

breasts, buttocks, and vaginal area over her clothes. She recalled that she feared

Defendant was going to rape her when he rubbed her thigh and told her he could

have sex with her without anyone knowing. R.L. also testified that she would lock

the bathroom door when she showered as Defendant would require her to inform

him when she showered so he could watch her.

The State introduced an e-mail from R.L. to Defendant and Mrs. Magee in

which R.L. maintains that she was tired of the physical and sexual abuse within

their home.

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R.L’s three brothers testified that they never witnessed any inappropriate

sexual touching between Defendant and R.L. D.L. testified that R.L. and her

mother were lying about the allegations against Defendant. All of R.L.’s brothers

described Defendant as a “good parent.”

While we recognize that conflicting testimony exists, we find that R.L.’s

testimony was sufficient to establish the crime of sexual battery of a juvenile. “In

cases involving sexual offenses, the testimony of the victim alone may be

sufficient to establish the elements of the offense, even where the State does not

introduce medical, scientific, or physical evidence to prove the commission of the

offense.” State v. Barbain, 2015-0404, p. 10 (La.App. 4 Cir. 11/4/15), 179 So.3d

770, 778. Further, it is not the role of this Court to assess the credibility of

witnesses or re-weigh the evidence submitted at trial. See State v. Brown, 2016-

0965, p. 28 (La.App. 4 Cir. 5/3/17), 219 So.3d 518, 536 (concluding that “[t]he

credibility of witnesses presenting conflicting testimony on factual matters is

within the sound discretion of the trier of fact.”) (citation omitted).

In addressing the Defendant’s argument as to the age component set forth in

La. R.S. 14:43.1, it can be inferred that R.L. was at least thirteen when Defendant

first began touching her in a sexual manner. R.L. specifically testified that the

abuse began around the age of thirteen. Further, in accordance with La. R.S.

14:43.1, Defendant is over the age of seventeen as he was tried as an adult, his wife

testified that she had been married to him for over forty years, and that they were

both the grandparents of R.L. and her siblings.

A jury of six heard the conflicting testimony of the witnesses and found

Defendant to be guilty of sexual abuse battery of a victim under the age of thirteen.

The testimony of R.L., Detective Hardin, and Dr. Mehta support this finding. This

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Court has concluded that a jury may infer the age of a defendant when no direct

evidence of the defendant’s age is presented. See State v. Johnson, 2011-1213, p.11

(La.App. 4 Cir. 2/7/13), 109 So.3d 994, 1001. Moreover, a defendant’s age may be

inferred based on their appearance in court and by the fact they are being tried as

an adult. See State v. Lewis, 97-1549, p. 6 (La.App. 4 Cir. 2/3/99), 727 So.2d 1274,

1277.

Cruelty to Juveniles

The jury also found Defendant guilty of cruelty to juveniles, a violation of

La. R.S. 14:93 (A)(1), which provides, “[t]he intentional or criminally negligent

mistreatment or neglect by anyone seventeen years of age or older of any child

under the age of seventeen whereby unjustifiable pain or suffering is caused to said

child.”

Defendant again avers that the crime defined within La. R.S. 14:93 (A)(1)

contains an age component that the State failed to prove. He submits that the

testimony presented at trial is inconsistent and failed to prove, beyond a reasonable

doubt, that he committed cruelty to R.L.

R.L. testified that Defendant, would physically abuse her by shoving her off

of chairs forcing her head to hit hard surfaces, resulting in bruises. She further

testified that he once hit her head with the scope of a gun resulting in bruises. R.L.

testified that Defendant would pinch her sides if she denied his sexual advances.

Dr. Mehta corroborated this testimony when she concluded R.L. was the victim of

physical abuse.

R.L. also testified that Defendant abused her brothers and cited to a letter,

written by her brother D.L., alleging abuse by Defendant. D.L. admitted to writing

the letter, but maintained that his mother forced him to fabricate the allegations

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against Defendant. D.L. further testified that R.L. and their mother, were

fabricating the allegations against Defendant. C.L. and K.L. stated that they were

never physically abused by Defendant and testified that R.L. was treated like a

“princess” growing up.

R.L.’s testimony coupled with Dr. Mehta’s expert opinion that R.L. was the

victim of physical abuse supports the jury’s finding that Defendant committed the

crime of cruelty to juveniles. D.L., C.L., and K.L.’s testimony that they were never

abused or had first-hand knowledge that Defendant physically abused R.L. requires

a determination of the credibility of witnesses and the weighing of evidence – a

sole function of the trier of the fact. Contrary to Defendant’s contentions, there was

sufficient evidence to support his conviction of cruelty to juveniles as the jury

found R.L. and Dr. Mehta to be credible witnesses. See Wilson, 2022-0346, p. 6,

353 So.3d at 394 (holding that credibility determinations are within the sole

discretion of the trier of fact and will not be disturbed upon review) (citation

omitted).

Further, Defendant was tried as an adult, not a juvenile, and R.L. testified

that the physical abuse occurred around the same time as the sexual abuse, i.e. at

the approximate age of thirteen. It was also determined that Mrs. Magee was the

wife of Defendant for over forty years and that they are the grandparents of R.L.

and her three brothers. See Lewis, 97-1549, p. 6, 727 So.2d at 1277 (holding that a

trier of fact can infer the age of the accused based upon physical appearance and

the fact that they are being tried as an adult).

Thus, there was sufficient evidence for a six person jury to convict

Defendant of sexual battery and cruelty to juveniles. This assignment or error lacks

merit.

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Assignment of Error No. 2: Rebuttal Evidence

Defendant’s second assignment of error contends that the trial court

impermissibly allowed the State to introduce, as rebuttal evidence, Detective

Hardin and R.L’s fiancé’s testimony regarding R.L.’s father. Defendant maintains

that the testimony regarding his stepson, R.L.’s father, improperly prejudiced him

before the jury. The State contends that the testimony of R.L.’s fiancé was proper

as it was put forth to disprove facts introduced by the defense.

The general rules governing rebuttal arguments provides that a rebuttal

argument “shall be confined to evidence admitted, to the lack of evidence, to

conclusions of fact that the state or defendant may draw therefrom, and to the law

applicable to the case.” La. C.Cr.P. art. 774. The state’s rebuttal shall only pertain

to answering the argument of the defendant and that no argument shall appeal to

prejudice. La. C.Cr.P. art. 774. The state, in a criminal prosecution, has the right to

rebut evidence adduced by their opponents. La. C.E. art. 611(E).

For evidence to be deemed admissible, it must be analyzed by the trial court

in accordance with La. C.E. art. 403 which provides that “[a]lthough relevant

evidence may be excluded if its probative value is substantially outweighed by the

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

considerations of undue delay, or waste of time.” A trial court’s determination of

relevancy and the admissibility of evidence, will not be disturbed on appeal absent

a clear abuse of discretion. Campbell, 2015-0017, p. 24, 171 So.3d at 1190.

During the State’s case in chief, R.L. testified that her father sent her death

threats upon learning about her allegations against Defendant and his mother. She

further claimed that her father’s threats made her fear for her life and believed he

would kill her. C.L. and K.L. testified for Defendant and maintained that their

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father often says things he does not mean. Mrs. Magee also testified for the defense

and claimed her son has substance abuse issues, suffers from bipolar disorder, and

has never witnessed R.L.’s father carry out any of his threats. During the State’s

rebuttal, R.L.’s fiancé corroborated R.L.’s testimony and testified that he also

received death threats from R.L.’s father.

The trial testimony and evidence supports R.L. and her fiancé’s testimony

regarding the death threats. Further, the defense elicited testimony from Mrs.

Magee and R.L.’s three brothers in an attempt to discredit R.L.’s testimony. Thus,

the State introduced rebuttal testimony from R.L.’s fiancé to refute Defendant’s

allegations that R.L.’s father often fails to carry out his many threats. There is

nothing within the record to suggest the Defendant’s contention that the State’s

rebuttal argument was improperly introduced. Pursuant to La. C.E. art. 611(D) the

State is permitted to rebut evidence set forth by the defense.

Additionally, we conclude that even if the trial court erred in admitting the

evidence, the error is subject to the harmless error analysis. See State v. Session,

2021-0118, p. 6 (La.App. 4 Cir. 12/14/21), 332 So.3d 729, 737 (citing Chapman v.

California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). “In the

harmless error analysis, ‘[t]he inquiry…is not whether, in a trial that occurred

without the error, a guilty verdict would surely have been rendered, but whether

the guilty verdict actually rendered in this trial was surely unattributable to the

error.’” Id. (quoting State v. Trung Le, 2017-0164, p.20 (La.App. 4 Cir. 4/11/18),

243 So.3d 637, 657-58)).

The State set forth a substantial case against Defendant which included the

testimony of three fact witnesses and Dr. Mehta’s expert opinion which

corroborated R.L.’s testimony. Considering the evidence and testimony in this

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matter, we conclude that the guilty verdict rendered by the jury cannot be

attributed to an error by the trial court in admitting the rebuttal testimony of R.L.’s

fiancé. We find that the trial court did not err in overruling Defendant’s objection

to the State’s rebuttal witness. This assignment of error lacks merit.

Assignment of Error No. 3: Excessive Sentences

In his third assignment of error, Defendant avers that the trial court erred in

enforcing the maximum ten-year sentence on both convictions. As previously

noted, the trial court committed error when it denied Defendant’s motion for new

trial and sentenced him on the same day. See La. C.Cr.P. art. 873. Thus, this matter

is remanded for the sole purpose of re-sentencing. As such, we pretermit the issue

of Defendant’s excessive sentences.

Assignment of Error No. 4: Motion for Mistrial

In his fourth assignment of error, Defendant argues that the trial court erred

in denying his motion for mistrial. Specifically, Defendant maintains that Detective

Hardin’s testimony pertaining to his post-Miranda silence improperly prejudiced

him before the jury.

If the state or witness makes a remark that is prejudicial to the defendant, the

trial court “shall promptly admonish the jury to disregard the remark or comment

made during trial.” La. C.Cr.P. art. 771. A defendant may motion for mistrial in

which the court may grant if it determined that “an admonition is not sufficient to

assure the defendant a fair trial.” Id. “The decision to grant or deny a mistrial for

prejudicial conduct rests within the trial court’s discretion and will not be disturbed

absent an abuse of discretion.” State v. Irons, 2022-0515, p. 6 (La.App. 4 Cir.

7/28/22), 346 So.3d 299, 303.

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Defense counsel elicited questions regarding Detective Hardin’s

investigation of Defendant, maintaining that he was cooperative at all times during

his interview with Detective Hardin. On re-direct, the State questioned Detective

Hardin regarding her interview of Defendant after his arrest in which she testified

that he invoked his Fifth Amendment right. This is the only reference to

Defendant’s post-Miranda silence.

There is no indication that the State or Detective Hardin provided

information regarding Defendant’s post-Miranda silence for impeachment

purposes. It is clear from the record that Detective Hardin cited to Defendant’s

post-Miranda silence as a response to Defendant’s questions pertaining to her

interview of Defendant following his arrest. Further, the trial testimony reveals the

discussion of Defendant’s post-Miranda silence was brief when compared to the

trial testimony of the State’s three fact witnesses and Dr. Mehta which resulted in a

guilty verdict from the jury.

A brief reference to a defendant’s post-Miranda silence does not mandate a

mistrial or a reversal when the following circumstances are present: the trial as a

whole was fairly conducted; the proof of guilt is strong; and the prosecution made

no use of the silence for impeachment purposes. See State v. Hollins, 2011-1435, p.

29 (La.App. 4 Cir. 8/29/13), 123 So.3d 840, 861. The trial court did not abuse its

discretion in denying Defendant’s motion for mistrial. Accordingly, this

assignment of error lacks merit.

Assignment of Error No. 5: Discovery Violation

In his fifth assignment of error, Defendant contends that the trial court erred

in allowing the State to submit an Instagram conversation between D.L. and his

mother (hereinafter “State’s Exhibit 7”). He further maintains that the State

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violated discovery rules by failing to provide the Instagram conversation during

pre-trial discovery.5 Conversely, the State avers that it properly submitted the

exhibit as it was intended to impeach D.L.’s testimony.

Louisiana’s Code of Evidence provides that “extrinsic evidence, including

prior inconsistent statements and evidence contradicting the witness’ testimony, is

admissible when offered solely to attack the credibility of a witness.” La. C.E. art.

607(D)(2). A trial court is tasked with determining if extrinsic evidence and its

“probative value … is substantially outweighed … by unfair prejudice.” Id.

Our Supreme Court has noted that a party can impeach its own witness. See

State v. Cousins, 96-2973, pp. 10-11, 710 So.2d 1065, 1070-71. In performing the

weighing process within La. C.E. art. 607(D)(2), a court must consider and weigh

the relevancy of the prior statement with the credibility of the in-court statement

and the motivation for impeachment. Cousins, 96-2973, p.11, 710 So.2d at 1071.

“The court should further consider the prejudicial effect of the statement if used

improperly as substantive evidence, and the effectiveness of a limiting instruction

in avoiding improper use of the statement.” Id.

D.L. testified for the State and maintained that R.L. was fabricating the

allegations made against the Defendant. D.L. claimed that he did not have a

relationship with his mother and maintained he had not spoken to his mother since

2010. The State submitted State’s Exhibit 7, evidencing Instagram messages, from

2017, wherein D.L. stated he missed his mother and wished to live with her. We

find that the Instagram messages between D.L. and his mother indicate that he

made inconsistent statements regarding his relationship with his mother.

5 Pursuant to La. C.Cr.P. art. 716(D), Defendant submits that the State should have provided the

Instagram conversation during discovery as it was a “written or recorded statement” of a
“witness the state intend[ed] to call in its case in chief at trial.”

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Pursuant to La. C.E. art. 607(D)(2) the Instagram messages were extrinsic

evidence presented to impeach the prior inconsistent statements of D.L. with no

prejudicial effect to Defendant. D.L.’s testimony revealed hostility towards his

mother as he maintained that his mother and R.L. were fabricating the allegations

against Defendant. State’s Exhibit 7 was submitted to refute D.L.’s hostile

testimony regarding his mother and R.L., indicating its probative value was to

show the jury numerous inconsistent statements made by D.L. during trial. See

State v. Edwards, 419 So.2d 881, 895 (La. 1982) (holding the probative value of an

exhibit must outweigh any prejudicial effect upon the jury and must be relevant to

a material at trial). Accordingly, we find that the trial court did not err in allowing

the introduction of State’s Exhibit 7. This assignment of error lacks merit.

Assignment of Error No. 6: Ineffective Assistance of Counsel

Defendant’s final assignment of error submits that trial counsel rendered

ineffective assistance of counsel by failing to object to the State’s impermissible

leading of R.L.’s testimony during trial. By this assignment of error, Defendant

further maintains this was prejudicial and improper. Conversely, the State contends

that Defendant has failed to establish a proper claim of ineffective assistance of

counsel and has not demonstrated that he was deprived of a fair trial.

A defendant’s ineffective assistance of counsel claim is properly raised by

an application for writ of habeas corpus in the trial court. See State v. Deloch, 380

So.2d 67, 68 (La. 1980). However, our Supreme Court has noted that if the issue of

ineffective assistance of counsel is raised by an assignment of error on appeal and

the record indicates that the issue need be decided, the issue will be considered in

the interest of judicial economy. State v. Seiss, 428 So.2d 444, 449 (La. 1983).

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In accordance with the standard set forth in Strickland v. Washington, to

support a claim for ineffective assistance of counsel a defendant must (1) show that

counsel’s representation was deficient and (2) the aforementioned deficiency

prejudiced the defendant. 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674

(1984); Boyd, 2014-0408, p. 7, 318 So.3d at 402 (citation omitted). “In deciding an

ineffective assistance of counsel claim, a court is not required to address both

components if the defendant makes an insufficient evidentiary showing on one

component.” State v. Boyd, 2014-0408, p.7 (La.App. 4 Cir. 7/25/18), 318 So.3d

397, 402 (citation omitted).

The defendant must first “show that counsel made errors so serious that he

was not operating as the type of counsel guaranteed by the Sixth Amendment to

the United States Constitution.” Boyd, 2014-0408, p. 7, 318 So.3d at 402 (citation

omitted). Second, the defendant must prove that the counsel’s error was so severe

that that it deprived the defendant of a fair trial. Id. Thus, in the matter sub judice,

Defendant must prove that but for counsel’s deficient performance, there is a

reasonable probability that the result of his trial and subsequent conviction would

be different. Boyd, 2014-0408, p. 8, 318 So.3d at 403. Further, absent an abuse of

discretion a conviction will not be reversed because of leading questions. See State

v. Felde, 422 So.2d 370, 385 (La. 1982).

Defendant maintains that the State’s improper leading of R.L. upon re-direct

was a prosecutorial error that diminishes the reliability of the jury’s verdict.

During the State’s re-direct of R.L., Defendant’s trial counsel objected to leading

questions and the trial court instructed the State to “get to the point.” Other

instances in which Defendant’s trial counsel objected to leading questions, the

objections were sustained. There is no evidence within this record to indicate that

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there was a prosecutorial error that diminished the reliability of the jury’s verdict.

See Felde, 422 So.2d 379, 385 (holding that “[l]eading questions are not the type

of prosecutorial error which diminish the reliability of jury’s verdict.”).

Moreover, Defendant has failed to prove that but for his trial counsel’s

alleged “severe” failure in objecting to the leading questions - for one of five of the

State’s witness - a different verdict would have resulted. We therefore find the

guilty verdict is not attributed to Defendant’s trial counsel failing to object to the

State’s leading questions of R.L. Thus, finding no clear abuse of discretion that

prejudiced Defendant’s rights at trial, this assignment or error lacks merit.

DECREE

For the foregoing reasons we affirm Defendant’s convictions and remand

this matter to the trial court for the sole purpose of re-sentencing Defendant.

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