State of Louisiana v. Darren Bridges

STATE OF LOUISIANA * NO. 2023-KA-0166

VERSUS *
COURT OF APPEAL
DARREN BRIDGES *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 538-512, SECTION “SECTION L”
Judge Angel Harris
******
Judge Nakisha Ervin-Knott
******
(Court composed of Chief Judge Terri F. Love, Judge Tiffany Gautier Chase,
Judge Nakisha Ervin-Knott)

Jason Rogers Williams
District Attorney
Brad Scott
Chief of Appeals
Zachary M. Phillips
Assistant District Attorney
ORLEANS PARISH
619 South White Street
New Orleans, Louisiana 70119

COUNSEL FOR STATE OF LOUISIANA

Mary Constance Hanes
LOUISIANA APPELLATE PROJECT
P.O. Box 4015
New Orleans, Louisiana 70178-4015

Darren Bridges #534935
Elayn Hunt Correctional Center
P.O. Box 174
St. Gabriel, Louisiana 70776

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
MAY 17, 2024

The defendant, Darren Bridges (“Defendant”), seeks review of his convictions
NEK
TFL for first degree murder of a peace officer; possession of buprenorphine; possession
TGC
with intent to distribute cocaine, alprazolam, and tramadol; obstruction of justice;

and attempted aggravated assault on a peace officer with a firearm. For the reasons

that follow, we affirm the Defendant’s convictions.

STATEMENT OF THE FACTS

In the early morning hours of October 13, 2017, four New Orleans Police

Department (“NOPD”) officers, assigned to the NOPD Seventh District Task Force,

were conducting a proactive patrol in New Orleans East. Officer Michael Sartain

(“Officer Sartain”) and Officer Marcus McNeil (“Officer McNeil”) were together in

a marked NOPD vehicle, with Officer Sartain as the driver and Officer McNeil as

the passenger. In another marked NOPD vehicle, Officer Alexander Kelly (“Officer

Kelly”) and Officer Stephen Stephano (“Officer Stephano”) were together, with

Officer Kelly as the driver and Officer Stephano as the passenger. The officers were

patrolling an area in New Orleans East near Tara Lane and Cindy Place, a residential

neighborhood known for illegal drug activity and other criminal activity. The

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officers entered Tara Lane from the South I-10 service road and drove towards Lake

Forest Boulevard.

According to Officer Kelly, he drove to the back of one of the buildings in the

apartment complex and noticed a group of females. Officer Stephano glanced into

the courtyard and saw a man – later identified as the Defendant – who looked

suspicious to him, as the man appeared to be trying to get away from the police

officers. Officer Stephano noted that Defendant had a multicolored backpack and

wore a white tank top. Simultaneously, from the other vehicle, Officer Sartain also

observed Defendant. Officer Sartain testified that moments after his observation, the

Defendant took off running towards the I-10 service road near Tara Lane. Officer

Sartain notified Officers Kelly and Stephano that Defendant was on the run, and the

officers proceeded to position themselves in a way to create a perimeter around him.

Officer Sartain turned his vehicle around and proceeded towards Cindy Place.

As Officer Sartain turned onto Cindy Place, Officer McNeil exited the vehicle and

took off running in order to cut off the Defendant. Officer Sartain went back around

to Tara Lane to block off the other side. Officer Kelly drove the other police vehicle

toward the 6800 block of Tara Lane, where the Defendant was last seen running.

Officer Stephano exited the vehicle to assist Officers Kelly and Sartain establish the

perimeter. In his pursuit of the Defendant, Officer McNeil ran down Cindy Place out

of view of the other officers. Officers Sartain and Kelly parked and exited their

respective vehicles.

Suddenly, two gunshots rang out, followed by a pause, and then a third

gunshot. Officers Sartain, Kelly, and Stephano immediately ran in the direction of

the gunfire’s sound. Officer Stephano observed Defendant running up the street with

a gun in his hand. Officer Stephano chased Defendant, and eventually drew his

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firearm. As Officer Stephano and Defendant rounded the corner, Defendant raised

his pistol in Officer Stephano’s direction. Officer Stephano immediately fired three

rounds at him, repositioned himself, and fired two more rounds. After firing the final

round, Officer Stephano saw Defendant fall. Then, Officer Stephano ran back and

tried to find Officer McNeil, but he was unable to get over the fence. He circled back

to the spot where Defendant was shot and observed blood on the ground; however,

Defendant was gone. Officer Stephano followed the trail of blood until it ended at

an apartment with keys in the door. He assisted some officers with barricading the

door to prevent the Defendant from escaping until the SWAT team arrived.

Sergeant Ray Jones, who supervised the Seventh District Task Force, arrived

on the scene and saw Officer McNeil lying on the ground unresponsive. He and

Officer Kelly helped paramedics lift Officer McNeil onto a stretcher, and an

ambulance transported him to the hospital. Officer McNeil died that night as a result

of sustaining multiple gunshot wounds.

As part of their investigation, the police executed a search warrant of

Defendant’s apartment and several items were recovered, including gray tennis

shoes with blood on them; a blue basketball jersey with blood on it; gray sweatpants

with blood on them; and a revolver that was found inside a boot. The bullets that

were recovered from Officer McNeil’s body were determined to have been fired

from the revolver found inside Defendant’s apartment. Additionally, the backpack

Defendant was seen wearing on the night of the shooting was recovered, and several

narcotics were found inside: 50 red tablets of tramadol; 16 blue tablets of alprazolam;

several white tablets of alprazolam; 24 small plastic bags all containing a total of 2.3

grams of powder cocaine; 11.3 grams of crack cocaine; and an amount of

buprenorphine.

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PROCEDURAL HISTORY

On November 16, 2017, Defendant was charged by grand jury indictment with

the following eight counts – (1) Count One: first degree murder of a peace officer, a

violation of La. R.S. 14:30(A)(2); (2) Count Two: possession of a firearm by a

convicted felon, a violation of La. R.S. 14:95.1; (3) Count Three: possession with

intent to distribute buprenorphine, a Schedule III controlled dangerous substance, a

violation of La. R.S. 40:968(A)(1); (4) Count Four: possession with intent to

distribute cocaine, a Schedule II controlled dangerous substance, a violation of La.

R.S. 40:967(A)(1); (5) Count Five: possession with intent to distribute alprazolam,

a Schedule IV controlled dangerous substance, a violation of La. R.S. 40:969(A)(1);

(6) Count Six: possession with intent to distribute tramadol, a Schedule IV controlled

dangerous substance, a violation of La. R.S. 40:969(A)(1); (7) Count Seven:

obstruction of justice, a violation of La. R.S. 14:130.1; and (8) Count Eight:

aggravated assault on a peace officer with a firearm, a violation of La. R.S. 14:37.2

(A). On November 29, 2017, Defendant pled not guilty to all charges.

Prior to trial, the State and Defendant engaged in active motion practice.

Pertinent to this appeal, Defendant filed a motion to quash the short form indictment;

the trial court denied the motion. Additionally, Defendant filed a motion to sever

Counts Two through Six from Counts One, Seven, and Eight. The State agreed to

sever Count Two, and the trial court denied the motion to sever as to Counts Three

through Six.

Trial commenced with jury selection on September 19, 2022. At the

conclusion of jury selection, Defendant filed a motion to quash the venire, or in the

alternative, for a recess in the proceedings, asserting that the jury venire was so

under-representative of the African-American population that it violated his

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constitutional rights to a fair cross-section of jurors. The trial court denied the

motion. On September 27, 2022, the trial concluded with the jury unanimously

finding Defendant guilty of first degree murder; possession of buprenorphine;

possession with intent to distribute cocaine; possession with intent to distribute

alprazolam; possession with intent to distribute tramadol; obstruction of justice; and

attempted aggravated assault.

On November 2, 2022, the trial court sentenced Defendant as follows – (1)

Count One: life without the benefit of probation, parole, or suspension on the first

degree murder of a peace officer conviction; (2) Count Three: five years on the

possession of buprenorphine conviction; (3) Count Four: five years on the

possession with intent to distribute cocaine conviction; (4) Count Five: five years on

the possession with intent to distribute alprazolam conviction; (5) Count Six: five

years on the possession with intent to distribute tramadol conviction; (6) Count

Seven: thirty years on the obstruction of justice conviction; and (7) Count Eight: five

years on the attempted aggravated assault on a peace officer with a firearm

conviction. The trial court ordered the sentences to run concurrently, with credit for

time served. On the same day, Defendant filed a motion for appeal that was granted

by the trial court after the sentencing proceeding. As to Count Two, the State filed a

nolle prosequi on November 3, 2022. This appeal followed.

ERRORS PATENT

Appellate courts review all criminal appeal records for the existence of a

patent error. See La. C.Cr.P. art. 920(2).1 A review of the record revealed one

1 Louisiana Code of Criminal Procedure Article 920(2) provides that the scope of appellate review

includes: “[A]n error that is discoverable by a mere inspection of the pleadings and proceedings
and without inspection of the evidence.”

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possible error patent, which is also raised as assignment of error number four in

Defendant’s original appellant brief. This error will be discussed infra in conjunction

with assignment of error number four.

DISCUSSION

In his original appellant brief, Defendant assigns four errors for this Court’s

review: (1) the evidence is insufficient to support Darren Bridges’s conviction for

first degree murder of a police officer (Count One) because the State failed to prove

beyond a reasonable doubt that Mr. Bridges did not commit the homicide in self-

defense; (2) the trial court erred in denying the defense’s motion for mistrial after

the prosecutor, in his rebuttal to closing argument, commented on Darren Bridges’s

failure to testify; (3) the trial court abused its discretion in denying the defense’s

motion for mistrial after the prosecutor elicited character evidence about the victim

from his mother, and subsequently denying the defense’s motion for mistrial after

the prosecutor, in his rebuttal to closing argument, made repeated comments about

the victim’s good character and the defendant’s purported bad character; and (4) the

verdict of attempted aggravated assault with a firearm upon a police officer (Count

Eight) is not an authorized responsive verdict such that the return of such a verdict

constitutes patent error and operates as an acquittal on the charge.

Defendant has also filed two pro se supplemental briefs. In his original

supplemental pro se brief, Defendant assigns one error for this Court to review: the

grand jury indictment form was insufficient concerning first degree murder of

Officer McNeil (Count One) because it does not list every essential element of the

offense charged in the indictment. Additionally, in his second supplemental pro se

brief, Defendant assigns two errors for this Court to review: (1) the evidence is

insufficient to support Darren Bridges's conviction for first degree murder of a police

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officer (Count 1) because the State failed to prove beyond a reasonable doubt that

Mr. Bridges did not commit the homicide in self-defense; and (2) Mr. Darren

Bridges's right to Due Process under the Sixth and Fourteenth Amendments to the

United States Constitution was infringed upon because the jury in his case was not

drawn from a fair cross-section of the community. As assignment of error number

one in both the original and second supplemental pro se briefs are the same, we will

address both assignments simultaneously under assignment of error number one.

Assignment of Error Number One

In his assignment of error number one, Defendant contends that the evidence

is insufficient to support his conviction for first degree murder of a peace officer as

the State failed to prove beyond a reasonable doubt that he was not acting in self-

defense. In the alternative, Defendant asserts the first degree murder conviction

should be modified to the lesser included offense of manslaughter as Defendant

killed Officer McNeil in sudden passion or heat of blood. We first determine whether

sufficient evidence exists to support the conviction of first degree murder.2

Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979), this Court must determine that the evidence, viewed in the light most

favorable to the prosecution, “was sufficient to convince a rational trier of fact that

all the elements of the crime had been proved beyond a reasonable doubt.” State v.

Neal, 2000-0674, p. 9 (La. 6/29/01), 796 So.2d 649, 657 (citations omitted). The

statutory test of La. R.S. 15:4385 “works with the Jackson constitutional sufficiency

2 “When issues are raised on appeal both as to the sufficiency of the evidence and as to one or

more trial errors, the reviewing court should first determine the sufficiency of the evidence. The
reason for reviewing sufficiency first is that the accused may be entitled to an acquittal . . . .” State
v. Groves, 2020-0450, p. 21 (La. App. 4 Cir. 6/10/21), 323 So.3d 957, 971 (citing State v. Hearold, 603 So. 2d 731, 734 (La. 1992)).

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test to evaluate whether all the evidence, direct and circumstantial, is sufficient to

prove guilt beyond a reasonable doubt to a rational jury.” Id. (citing State v. Rosiere,

488 So.2d 965, 968 (La. 1986)). This Court has set forth the applicable standard of

review for sufficiency of the evidence:

In evaluating whether evidence is constitutionally sufficient to support
a conviction, an appellate court must determine whether, viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the defendant guilty beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991).
However, the reviewing court may not disregard this duty simply
because the record contains evidence that tends to support each fact
necessary to constitute the crime. State v. Mussall, 523 So. 2d 1305 (La.
1988). The reviewing court must consider the record as a whole since
that is what a rational trier of fact would do. If rational triers of fact
could disagree as to the interpretation of the evidence, the rational
trier’s view of all the evidence most favorable to the prosecution must
be adopted. The fact finder’s discretion will be impinged upon only to
the extent necessary to guarantee the fundamental protection of due
process of law. Mussall; Green; supra. “[A] reviewing court is not
called upon to decide whether it believes the witnesses or whether the
conviction is contrary to the weight of the evidence.” State v. Smith, 600 So. 2d 1319 (La. 1992) at 1324.

State v. Berniard, 2014-0341, p. 10 (La. App. 4 Cir. 3/4/15), 163 So.3d 71, 80 (citing

State v. Ragas, 1998-0011, p. 13 (La. App. 4 Cir. 7/28/99), 744 So.2d 99, 106-07).

The State charged Defendant with the first degree murder of Officer McNeil,

and the jury found him guilty as charged. La. R.S. 14:30 (A)(2) defines first degree

murder of a police officer as the killing of a human being “when the offender has a

specific intent to kill or to inflict great bodily harm upon a…peace officer… engaged

in the performance of his lawful duties….” La. R.S. 14:10(1) defines specific

criminal intent as “that state of mind which exists when the circumstances indicate

that the offender actively desired the prescribed criminal consequences to follow his

act or his failure to act.” “Specific intent may be inferred from the circumstances

surrounding the offense and the conduct of the defendant.” State v. Bishop, 2001-

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2548, p. 4 (La. 1/14/03), 835 So.2d 434, 437 (citations omitted). Thus, in order to

sustain a conviction for first degree murder of a peace officer, the State must prove

that (1) the victim was a peace officer engaged in the performance of his lawful

duties; and (2) the defendant intended to kill or inflict great bodily harm upon the

victim. Defendant argues that there is insufficient evidence for his conviction of first

degree murder of a peace officer because the State failed to prove beyond a

reasonable doubt that the shooting was not the result of self-defense. Defendant

argues that he acted in self-defense when he killed Officer McNeil; thus, his actions

were legally justified.

A homicide is justifiable “[w]hen committed in self-defense by one who

reasonably believes that he is in imminent danger of losing his life or receiving great

bodily harm and that the killing is necessary to save himself from that danger.” La.

R.S. 14:20(A)(1). Therefore, there are two necessary components to invoke this

justification: (1) the defendant’s reasonable belief that he is in imminent danger of

losing his life or receiving great bodily harm, and (2) that the killing of the other

person is necessary to save himself from that danger. State v. Miller, 2014-0406, p.

19 (La. App. 4 Cir. 2/25/15), 160 So.3d 1069, 1082. “In a homicide case in which

the defendant asserts he acted in self-defense, the State has the burden of establishing

beyond a reasonable doubt that the defendant did not act in self-defense.” State v.

Kirk, 2011-1218, pp. 6-7 (La. App. 4 Cir. 8/8/12), 98 So.3d 934, 939-40 (citing State

v. Taylor, 2003-1834, p. 7 (La. 5/25/04), 875 So.2d 58, 63).

Turning to the facts of this case, it is undisputed that Officer McNeil was

killed while engaged in the performance of his lawful duties as a police officer – he

was on a proactive patrol of Tara Lane and Cindy Place with his partner and two

other officers. The officers observed a suspicious male in the area, began to

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investigate, and Officer McNeil encountered Defendant during the performance of

this investigation. Therefore, Officer McNeil was operating within the course and

scope of his police officer duties when he was killed.

Regarding the “specific intent to kill or to inflict great bodily harm” element,

the evidence presented at trial supports the conclusion that, at a minimum, Defendant

intended to inflict great bodily harm upon Officer McNeil. Surveillance video

footage of 6800 Cindy Place shows Officer McNeil and Defendant struggling on the

ground. Defendant manages to obtain a dominant position, and as he is standing,

Defendant fires his gun twice at Officer McNeil, who, at the time, was on his knees.

Time passes. One second. Two seconds. As Officer McNeil’s motionless body lies

face-down on the ground, Defendant steps over him, takes a step away, turns back,

and fires a third shot into Officer McNeil’s head, before running off. Approximately

two full seconds pass in the surveillance footage between the second and third

gunshots. This fact provides sufficient evidence for the jury to determine

Defendant’s intent was to either kill or inflict great bodily harm upon Officer

McNeil.

Defendant claims he shot Officer McNeil in self-defense and focuses on

Officer McNeil’s pursuit and use of his taser on Defendant. To support his self-

defense claim, Defendant attempts to utilize his expert, Dr. W. Lloyd Grafton (“Dr.

Grafton”), to opine on the behavioral effects of the deployment of a taser. While Dr.

Grafton’s testimony addresses the varying effects a deployed taser can have on an

individual – from no pain to it being “the most pain they had ever felt” – his

testimony does not provide a justification for shooting someone in response to being

tased moments earlier. Dr. Grafton testified that the deployment of a taser is an

intermediate use of force equivalent to “a canine, a dog, a baton, chemical sprays.”

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Further, Sergeant David Barnes (“Sergeant Barnes”) testified that under the policies

and procedures in place at the time of this incident, Officer McNeil’s use of his taser

in this situation would have triggered a use of force investigation, “but it wouldn’t

have been what we [the NOPD] considered a serious use of force.” Assuming

Defendant has a reasonable belief that he was in imminent danger of losing his life

or receiving great bodily harm due to Officer McNeil’s pursuit and use of his taser

on him, shooting Officer McNeil three times – while he was in non-dominant

positions – and killing him was not necessary to save Defendant from any self-

perceived danger of the taser. Based on the evidence presented at trial, we find that

the State presented sufficient evidence to show Defendant was not acting in self-

defense.

Alternatively, Defendant asserts that his first degree murder conviction should

be modified to the lesser included offense of manslaughter as his encounter with

Officer McNeil began suddenly and ended so quickly that he had no time to regain

his self-control. We disagree. According to La. R.S. 14:31(A)(1), manslaughter is

defined as:

A homicide which would be murder under either Article 30 (first degree
murder) or Article 30.1 (second degree murder), but the offense 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. Provocation shall not reduce a homicide to
manslaughter if the jury finds that the offender's blood had actually
cooled, or that an average person's blood would have cooled, at the time
the offense was committed[.]

The surveillance footage debunks any manslaughter argument. Defendant shot

Officer McNeil twice while he was on his knees. Two seconds pass, and Defendant

delivers a final shot into Officer McNeil’s head as he is laying on the ground. This

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third shot clearly demonstrates Defendant’s specific intent to kill or cause great

bodily harm to Officer McNeil.

The surveillance footage speaks for itself. Defendant maintains that he acted

in self-defense when he shot Officer McNeil or, in the alternative, killed Officer

McNeil in sudden passion or heat of blood. However, when viewing the evidence in

the light most favorable to the prosecution, a rational trier of fact could have found

beyond a reasonable double that Defendant was not acting in self-defense, nor was

he provoked, when he killed Officer McNeil. Officer McNeil and his fellow officers

were proactively patrolling the area when Defendant was first spotted. When Officer

McNeil encountered Defendant, Defendant took off running in the opposite

direction. As this chase ensued, Officer McNeil utilized his taser – an intermediate,

non-lethal use of force – on Defendant in order to subdue him. Defendant pulled out

a gun and shot Officer McNeil three times, ultimately leading to his death. Officer

McNeil’s use of non-lethal force in order detain Defendant did not warrant

Defendant’s use of deadly force to protect himself.

After a review of the evidence before this Court, we find that the jury made

reasonable credibility determinations in favor of the State and rationally rejected

Defendant’s assertion of self-defense. The record reveals sufficient evidence to

conclude that any rational trier of fact could have found that the State proved beyond

a reasonable doubt all the elements of first degree murder of a peace officer.

Accordingly, we conclude that this assignment of error, regarding the first degree

murder of a peace officer conviction, is without merit.

Assignment of Error Number Two

In his assignment of error number two in his original brief, Defendant

maintains that the trial court erred in denying his motion for mistrial after the

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prosecutor commented on his failure to testify. “The law is well-settled that

‘[m]istrial is a drastic remedy that is only authorized where substantial prejudice will

otherwise result to the defendant’[sic], and ‘[t]he determination of whether prejudice

has resulted lies within the sound discretion of the trial court.’” State v. Trung Le,

2017-0164, p. 37-38 (La. App. 4 Cir. 4/11/18), 243 So.3d 637, 668 (citing State v.

Monroe, 2015-1151, pp. 13-14 (La. App. 4 Cir. 8/10/16), 198 So.3d 259, 267). A

mistrial shall be ordered upon motion of the defendant if the State directly or

indirectly refers to the defendant’s failure to testify in his own defense. La. C.Cr.P.

art. 770(3).

In his rebuttal to closing argument, the prosecutor stated:

What evidence from the witness stand over the past two weeks? What
evidence on that table have you seen or heard that supports that the
murder of Marcus McNeil was justified, excusable? What evidence
have you heard from this witness stand or seen in this courtroom that
supports the fact that what you did in New Orleans east to that man, to
her son, is excusable? Not a single piece of evidence. Not a single
witness has taken the stand to support the ludicrous accusation that what
he did was okay.

Defendant moved for a mistrial based upon the prosecutor’s comments, which was

denied. This Court must determine whether the prosecutor’s comments made in

rebuttal to closing argument directly or indirectly refers to the Defendant’s failure to

testify at trial.

In State v. Trung Le, this Court recognized:

Comment on the defendant’s failure to take the stand at trial is a trial
error, not a structural defect in the proceedings, that has been subject to
harmless-error analysis at the federal level since Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967). Moreover, we have clarified that as a matter of Louisiana law,
the mandatory mistrial provisions of La.C.Cr.P. art. 770,
which encompass a prosecutor’s direct or indirect comment on the
defendant’s failure to testify, are directives to the trial judge and do not
preclude an appellate court from conducting harmless-error
analysis. State v. Johnson, 1994-1379 (La. 11/27/95), 664 So.2d 94.

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In State v. Wormser, 467 So. 2d 58, 60 (La.App. 4 Cir.1985), the
defendant argued that the trial court improperly allowed the prosecutor
to comment on his failure to testify. Wormser noted that:

Perhaps the prosecution’s statement, during closing argument, that
“nobody ever came and took the stand ...” may be construed as a
disguised reference to the defendant’s failure to testify on his own
behalf. But even so, art. 770 applies; and, such a statement constitutes
reversible error if the statement was intended to draw the attention of
the jury to the defendant’s failure to testify. State v. Smith, 433 So.2d
688, 697 (La.1983). When the defendant is the only person who can
dispute the testimony, a reference to the testimony or uncontroverted
focuses the jury’s attention of the defendant’s failure to testify. State v.
Latin, 412 So.2d 1357, at 1362 (La.1982). However, in the instant case,
there were numerous witnesses who could have testified for the
defendant; therefore, the prosecutor’s remarks did not focus the jury’s
attention on the defendant’s failure to testify. Furthermore, it cannot be
inferred that the prosecutor intended to emphasize defendant’s failure
to take the stand. State v. Smith, 327 So.2d 355 (La.1976).

2017-0164, p. 41, 243 So.3d at 669-70.

Additionally, in State v. Harry, defendant asserted that the prosecutor’s

statement – “you’ve heard absolutely nothing to refute any of these events” – was

intended to refer to her failure to testify, and the trial court erred in not granting the

motion for mistrial based on Article 770(3). 2001- 2336, p. 11 (La. App. 4 Cir.

6/26/02), 823 So.2d 987, 996. On appeal, this Court stated:

Addressing this issue, the Louisiana Supreme Court in State v. Mitchell,
2000-1399, p. 5 (La.2/21/01), 779 So.2d 698, 702, listed “‘[s]tatements
in argument to the effect that there is no refuting evidence’” as
illustrative of a permissible indirect reference not intended to focus on
a defendant’s failure to testify. The Supreme Court also stated that such
a statement is “permissible, though not favored.” 2000-1399 at p. 5,
779 So.2d at 701. Although the prosecutor in this case, as Ms. Lee
emphasizes, used the modifier “absolutely,” we find the statement at
issue falls squarely within the category of arguing that there is “no
refuting evidence,” classified in Mitchell as permissive. We thus reject
this argument.”

Harry, 2001-2336, pp. 11-12, 823 So.2d at 996.

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Here, the prosecutor remarked that no evidence had been presented to show

Defendant’s actions were justifiable. Although the prosecutor’s remarks bordered on

the lines of impermissibility, we find the rebuttal remarks were permissible. Within

the context of closing argument, the rebuttal remarks constituted comment on the

evidence – comparing the evidence presented by both sides and highlighting the

State’s position that Defendant’s murder of Officer McNeil was not justified – rather

than an impermissible reference to the Defendant’s failure to testify. Even assuming

the rebuttal remarks improperly referenced Defendant’s failure to testify, based on

the evidence presented at trial, it appears that the prosecutor’s remarks did not

contribute to the guilty verdict. Considering the strength of the State’s case, which

included surveillance video, any perceived error is harmless. Therefore, this

assignment of error is without merit.

Assignment of Error Number Three

In his assignment of error number three in his original brief, Defendant argues

the trial court abused its discretion in denying his motion for mistrial after the

prosecutor violated the trial court’s limiting instruction prohibiting a victim impact

statement and improperly elicited character evidence about Officer McNeil from his

mother, Dr. Kimberly McNeil. Victim impact testimony is “evidence of the character

of the victim, evidence of the emotional, physical, and economic impact of the crime

on the family of the murdered victim, and evidence of the survivors’ opinions of the

crime and of the murderer.” State v. Hoffman, 1998-3118, p. 25 (La. 4/11/00), 768

So.2d 542, 567 (citing State v. Bernard, 608 So.2d 966, 967-68 (La.1992)). On direct

examination, Dr. McNeil testified that she was a pediatrician and Officer McNeil’s

mother. She further testified that Officer McNeil was accepted into the police

academy in August 2014, and that he wanted to become a police officer in order to

15

help the community. An examination of her testimony clearly reveals that her

statements at trial were not victim impact testimony and did not violate the trial

court’s limiting instruction.

Further, Defendant argues that the trial court erred when it subsequently

denied Defendant’s motion for mistrial after the prosecutor, in his rebuttal to closing

argument, made repeated comments about Officer McNeil’s good character and

Defendant’s purported bad character. Louisiana Code of Criminal Procedure Article

775, states, in part, “Upon motion of a defendant, a mistrial shall be ordered and in

a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom

makes it impossible for the defendant to obtain a fair trial.” “The standard of review

is whether the prosecutor’s comments in closing argument rendered the trial

fundamentally unfair and the resulting conviction a denial of due process.” State v.

Williams, 575 So.2d 452, 455 (La. App. 4th Cir. 1/31/91). In State v. Casey, the

Louisiana Supreme Court stated:

Louisiana jurisprudence on prosecutorial misconduct allows
prosecutors wide latitude in choosing closing argument tactics. See
State v. Martin, 539 So.2d 1235, 1240 (La.1989) (holding closing
arguments that referred to “smoke screen” tactics and defense as
“commie pinkos” inarticulate but not improper); State v. Copeland, 530
So.2d 526, 545 (La.1988) (holding prosecutor’s waving gruesome
photo at jury and urging members to look at it if they became “weak
kneed” during deliberations as not improper). Further, the trial judge
has broad discretion in controlling the scope of closing
arguments. State v. Prestridge, 399 So.2d 564, 580 (La.1981). And,
even if the prosecutor exceeds these bounds, the court will not reverse
a conviction unless “thoroughly convinced” that the argument
influenced the jury and contributed to the verdict. See State v.
Martin, 93–0285, p. 17 (La.10/17/94), 645 So.2d 190, 200; State v.
Jarman, 445 So.2d 1184, 1188 (La.1984); State v. Dupre, 408 So.2d
1229, 1234 (La.1982).

Even if we were to assume that the prosecutor's comments in this case
were outside the proper scope of closing arguments, the defendant is
still not entitled to relief. The court must be thoroughly convinced that
the argument influenced the jury and contributed to the verdict before

16

reversing a conviction based on misconduct during the closing
arguments.

1999-0023, p. 17 (La. 1/26/00), 775 So.2d 1022, 1036.

An examination of the trial records demonstrates that Defendant’s counsel

attempted to portray Officer McNeil as the first aggressor. During the cross-

examination of Sergeant David Barnes, defense counsel introduced Officer

McNeil’s body camera footage and stills from this footage, which depicted Officer

McNeil grabbing the back of Defendant’s neck and showed two taser lights in his

back. Further cross-examination of Sergeant Barnes attempted to elicit testimony

that Officer McNeil was the first aggressor in the situation and he used excessive

force in utilizing his taser. Moreover, during closing arguments, defense counsel

attempted to tarnish Officer McNeil’s character and depict him as the first aggressor

by stating:

He [Officer McNeil] runs at him [Defendant]; he [Officer McNeil]
grabs him [Defendant]; it’s the wrong guy. He [Officer McNeil] grabs
him [Defendant] by the neck to force him [Defendant] down to arrest
him [Defendant] with no information. . . . So then what happens next?
As he [Defendant] runs, light him [Defendant] up with a taser and put
him [Defendant] to the ground. And, again, he’s [Defendant’s] not
fighting, he’s [Defendant’s] being held down. And he [Defendant] gets
50,000 volts and then another 50,000 volts of extreme pain that he
[Defendant] doesn’t know what it is. He [Defendant] doesn’t know
what it can do to him [Defendant]. But you heard the witnesses testify
that it’s potentially lethal force.

As defense counsel attempted to depict Officer McNeil as the first aggressor, the

State was permitted to rebut such evidence with its own character evidence.3 Given

the wide latitude provided to prosecutors in closing arguments, and again, the

3 “Evidence of a character trait of peacefulness of the victim offered by the prosecution in a

homicide case to rebut evidence that the victim was the first aggressor” is admissible at trial. La.
C.E. art. 404(A)(3).

17

strength of the State’s case, we find the State’s closing and rebuttal remarks in this

case did not improperly influence the jury or contribute to the verdict. Thus, we find

this assignment of error is without merit.

Assignment of Error Number Four

In his assignment of error number four in his original brief, Defendant argues

that the verdict of attempted aggravated assault with a firearm upon a police officer

is not an authorized responsive verdict; thus, the return of such a verdict constitutes

patent error and operates as an acquittal on the charge. This Court, in State v. Baugh,

stated:

Returning a verdict of a lesser crime is well within the jury’s authority
if that lesser crime is deemed a responsive verdict. However, recent
Supreme Court jurisprudence suggests that the jury’s return of an
unauthorized responsive verdict, even in the absence of an objection,
constitutes an error patent, which is tantamount to an acquittal. State v.
Price, 2017-0520 (La. 6/27/18), 250 So.3d 230 (finding that the
verdicts of guilty of simple kidnapping, which were not responsive to
charges of second-degree kidnapping, constituted implicit acquittal on
charges for second-degree kidnapping, thus warranting reversal of
convictions and post-verdict judgment of acquittal on charges); State v.
Campbell, 95-1409, p. 3 (La. 3/22/96), 670 So.2d 1212, 1213
(“Relators acquiesced in the list of responsive verdicts given jurors by
the trial judge but the return of the unresponsive verdicts of attempted
jury tampering constitutes an error patent on the face of the record and
requires reversal of relators’ convictions.”); State v. Mayeux, 498 So.2d
701, 702 (La. 1986) (“non-responsive verdict [is] error patent on the
face of the record and therefore reviewable on appeal despite the
absence of an objection during trial.”); State v. Jones, 2013-1118, p. 6
(La. App. 4 Cir. 1/30/14), 156 So.3d 126, 129 (“a non-responsive
verdict is a patent error which does not require a contemporaneous
objection,” citing La. C.Cr.P. art. 920(2) ).

2018-0506, p. 2 (La. App. 4 Cir. 12/19/18), 262 So.3d 312, 313. In Baugh, the

defendant was charged with one count of battery of a police officer with injury that

required medical attention, and the jury returned with the responsive verdict of

simple assault. Id., at p. 1, 262 So.3d at 312-13. Defendant filed motions for post-

verdict judgment of acquittal and new trial, and the trial court granted the defendant's

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motion for post-verdict judgment of acquittal and vacated the verdict, finding that

the evidence presented at trial was insufficient to support the verdict of simple

assault. Id., at p. 1, 262 So.3d at 313. This Court affirmed the trial court’s judgment,

reasoning that both methods of committing an assault – the lessor offense – include

the element of specific intent, which the charged offense – battery – does not include;

thus, assault was not a valid responsive verdict. Id., at p. 3, 262 So.3d at 314.

Louisiana Revised Statute 14:37.2(A) defines aggravated assault upon a peace

officer as “an assault committed upon a peace officer who is acting in the course and

scope of his duties.” “Assault is an attempt to commit a battery, or the intentional

placing of another in reasonable apprehension of receiving a battery.” La. R.S.

14:36. And, “[b]attery is the intentional use of force or violence upon the person of

another; or the intentional administration of a poison or other noxious liquid or

substance to another.” La. R.S. 14:33. While this Court has not directly addressed

attempted aggravated assault, in State v. Barnett, the Fifth Circuit found that

attempted aggravated assault was a proper responsive verdict to aggravated assault.

2012-0816 (La. App. 5 Cir. 5/16/13), 118 So.3d 1156. The Fifth Circuit reasoned:

Although La. C.Cr.P. art. 814 does not list responsive verdicts for La.
R.S. 14:37.4, La.C.Cr.P. art. 815 provides that “[i]n all cases not
provided for in Article 814, the following verdicts are responsive: (1)
Guilty; (2) Guilty of a lesser and included grade of the offense even
though the offense charged is a felony, and the lesser offense a
misdemeanor; or (3) Not Guilty.” The Louisiana Supreme Court has
held that La. R.S. 14:27(C) makes an attempt a lesser included offense
of the charged crime. State v. Ford, 407 So.2d 688, 691 (La.1981).

Id., at p. 12, 118 So.3d at 1163-64. In so finding, the Fifth Circuit recognized that

assault has more than one definition, and the record reflected that defendant's charge

of aggravated assault with a firearm was based on the latter definition of assault –

the intentional placing of another in reasonable apprehension of receiving a battery.

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Id., at p. 12, 118 So.3d at 1164. Ultimately, the Fifth Circuit determined “[T]he

record supports a finding that the state's theory of culpability rests on the alternative

definition of assault and thus, . . . the responsive verdict of attempted aggravated

assault with a firearm is appropriate in this case.” Id., 2012-0816, p. 12-13, 118 So.3d

at 1164. Notably, in State v. Brown, this Court applied the Barnett case, recognizing

“the definition of a lesser included offense…does not account for those exceedingly

few offenses—such as cruelty to juveniles and assault—that by statutory definition

may be committed in more than one manner.” 2013-0268, p. 13 (La. App. 4 Cir.

7/24/13), 163 So.3d 1, 8.

In the matter herein, we find that attempted aggravated assault with a firearm

upon a police officer is a responsive verdict to aggravated assault with a firearm

upon a peace officer. The record indicates that Defendant's charge of aggravated

assault with a firearm was based on the following definition of assault – the

intentional placing of another in reasonable apprehension of receiving a battery. At

trial, the trial court instructed the jury that “in order to convict the defendant you [it]

must find that the defendant intentionally placed Stephen Stefano in reasonable

apprehension of receiving a battery with a firearm; and two, that Stephen Stefano

was a peace officer acting in the course of scope of his duties.” For that reason, the

responsive verdict of attempted aggravated assault with a firearm is appropriate in

this case. This assignment of error is without merit.

Original Supplemental Pro Se Brief – Assignment of Error Number One

In his assignment of error number one in his original supplemental pro se

brief, Defendant asserts that the grand jury indictment form was insufficient

concerning the first degree murder of Officer McNeil (Count One) because it does

20

not list every essential element of the offense charged in the indictment. Louisiana

Code of Criminal Procedure Article 464 provides:

The indictment shall be a plain, concise, and definite written statement
of the essential facts constituting the offense charged. It shall state for
each count the official or customary citation of the statute which the
defendant is alleged to have violated. Error in the citation or its
omission shall not be ground for dismissal of the indictment or for
reversal of a conviction if the error or omission did not mislead the
defendant to his prejudice.

Further, La. C.Cr.P. art. 4654 “authorizes the use of specific short form indictments

in charging certain offenses, including first degree murder,” and “[t]he

constitutionality of short forms has been consistently upheld by this Court.” State v.

Draughn, 2005-1825, p. 61 (La. 1/17/07), 950 So.2d 583, 624. When short form

indictments are used, a defendant may obtain the “details as to the statutory method

by which he committed the offense through a bill of particulars.” Id. In State v.

Draughn, the Louisiana Supreme Court determined that the defendant was charged

in compliance with the law, which provides for the use of a short form indictment

for first degree murder. Id. at p. 62, 950 So.2d at 624.

Here, the grand jury indictment form concerning the first degree murder of

Officer McNeil (Count One) states:

THE GRAND JURORS of the State of Louisiana, duly impaneled and
sworn in and for the body of the Parish of Orleans, in the name and by
the authority of the said State, upon their oath, PRESENT, that one
DARREN D. BRIDGES late of the Parish of Orleans, on the 13th day
of OCTOBER in the year of our Lord, two thousand AND
SEVENTEEN in the Parish of Orleans aforesaid, and within the
jurisdiction of the Criminal District Court of the Parish of Orleans,
COMMITTED FIRST DEGREE MURDER OF POLICE OFFICER
MARCUS MCNEIL.

4 Louisiana Code of Criminal Procedure Article 465(A)(31) provides that the proper short form

indictment for first degree murder is “A.B. committed first degree murder of C.D.”

21

Defendant filed a motion to quash short form indictment, and later filed a bill

of particulars. In response to Defendant’s bill of particulars, the State answered that

Defendant violated La. R.S. 14:30(A)(2). Ultimately, the trial court denied

Defendant’s motion to quash. The record before this Court shows that Defendant

was provided fair notice of the first degree murder offense for which he was charged

in accordance with the law. Therefore, we find this assignment of error is meritless.

Second Supplemental Pro Se Brief – Assignment of Error Number Two

In his assignment of error number two in his second supplemental pro se brief,

Defendant argues that his right to Due Process under the Sixth and Fourteenth

Amendments to the United States Constitution was infringed because the jury in his

case was not drawn from a fair cross-section of the community. Specifically,

Defendant argues that the jury venire was “so unrepresentative” of the Orleans

Parish African-American registered voter population that it violated his state and

federal constitutional rights to a fair cross-section and to equal protection.

“[T]he selection of a petit jury from a representative cross-section of the

community is an essential component of the Sixth Amendment right to a jury trial.”

State v. Holliday, 2017-01921, p. 51 (La. 1/29/20), 340 So.3d 648, 691 (citing Taylor

v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)). Louisiana Code

of Criminal Procedure Article 419(A) states:

A general venire, grand jury venire, or petit jury venire shall not be set
aside for any reason unless fraud has been practiced, some great wrong
committed that would work irreparable injury to the defendant, or
unless persons were systematically excluded from the venires solely
upon the basis of race.

Adopting the language of the United States Supreme Court, our Supreme Court

articulated the elements of a violation of the fair cross-section requirement:

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[I]n order to establish a prima facie violation of the fair-cross-section
requirement, the defendant must show: 1) that the group alleged to be
excluded is a ‘distinctive’ group in the community; 2) that the
representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the
community; and 3) that the under-representation is due to systematic
exclusion of the group in the jury selection process.

Holliday, 2017-01921, p. 51, 340 So.3d at 692 (citing Duren v. Missouri, 439 U.S.

357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979)). Typically, courts assess the

degree of under-representation utilizing “the ‘absolute disparity’ measure (the

difference in the percentage of the group in the jury pool and the percentage of the

group in the jury-eligible population), the ‘comparative disparity’ measure (the ratio

of the absolute disparity to the distinctive group’s representation in the jury-eligible

population), or a standard deviation analysis.” Id. at p. 51, 340 So.3d at 692. There

is no jurisprudentially-specific qualifying degree of under-representation, and the

defendant must show how the jury selection process works to systematically exclude

the distinct group. Id. at p. 51, 340 So.3d at 692 (citing Berghuis v. Smith, 559 U.S.

314, 329, 130 S.Ct. 1382, 1393, 176 L.Ed.2d 249 (2010)). Moreover, a defendant

“cannot ‘make out a prima facie case merely by pointing to a host of factors that,

individually or in combination, might contribute to a group’s underrepresentation.’”

Id. (citing Berghuis, 559 U.S. at 332, 130 S.Ct. at 1395).

In his supplemental brief, Defendant suggests:

According to the Louisiana Secretary of State, there are 267,004
registered voters in Orleans Parish as of September 1, 2022, of which
approximately 54.5% are African-American, and 36.5% are white. Vol.
1, pp. 81, 86. The venire of 66 assembled for this case contained only
39.5% African-American (26-66), while 55.9% were white (37-66).
Compared to the number of African-American registered voters, this is
an absolute disparity of 19%, and a comparative disparity of 27%.

23

Despite Defendant’s use of venire and voter statistics, he does not demonstrate how

the jury selection process in Orleans Parish works to systematically exclude African-

Americans. Defendant’s failure in addressing this issue is fatal to his argument. As

such, we find Defendant failed to show the “systematic exclusion” of a distinct

group. Thus, there is no reversible error, and this assignment of error is without

merit.

CONCLUSION

For the foregoing reasons, we affirm the Defendant’s convictions for first

degree murder of a peace officer; possession of buprenorphine; possession with

intent to distribute cocaine, alprazolam, and tramadol; obstruction of justice; and

attempted aggravated assault on a peace officer with a firearm.

AFFIRMED

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