State of Louisiana Versus Perry Bell

STATE OF LOUISIANA NO. 21-KA-599

VERSUS FIFTH CIRCUIT

PERRY BELL COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 20-3750, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

June 22, 2022

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Hans J. Liljeberg

AFFIRMED
SJW
JGG
HJL

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Zachary L. Grate

COUNSEL FOR DEFENDANT/APPELLANT,
PERRY BELL
Bertha M. Hillman

DEFENDANT/APPELLANT,
PERRY BELL
In Proper Person

WINDHORST, J.

Defendant/appellant, Perry Bell, appeals his conviction and sentence for

possession of a firearm by a convicted felon. For the following reasons, we affirm.

Facts and Procedural History

On July 31, 2020, the Jefferson Parish District Attorney filed a bill of

information charging Bell with possession of a firearm by a convicted felon in

violation of La. R.S. 14:95.1. After a one-day trial on April 15, 2021, a twelve-

person jury unanimously found defendant guilty as charged.

On May 4, 2021, the trial court sentenced defendant to fifteen years

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

sentence and ordered defendant to pay a fine of one thousand dollars. Immediately

thereafter, the State filed an habitual offender bill of information alleging defendant

to be a second-felony offender.

After an habitual offender bill hearing on May 13, 2021, the trial court

adjudicated defendant a second-felony offender. The trial court vacated defendant’s

original sentence and sentenced him as an habitual offender to twenty years

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

sentence. Defendant made a motion for reconsideration of sentence regarding the

enhanced sentence, which the trial court denied. Defendant also filed a motion for

appeal, which the trial court granted. This appeal followed.

The testimony and evidence at trial revealed the following. On July 1, 2020,

a 9-1-1 caller reported that multiple males were shooting dice and had guns on their

hips in the area of 28 Helen Street.1 The Jefferson Parish Sheriff’s Office dispatched

Sergeant Emily Brinser to investigate. According to Sergeant Brinser’s testimony

1 At trial, Nancy Clary with the Jefferson Parish Sheriff’s Office confirmed that the 9-1-1 call in the instant
case was made at 5:08 P.M., that Sergeant Brinser responded to this call at 5:13 P.M., that Sergeant
Brinser observed a subject drop a “95g by a white Pontiac” at 5:16 P.M., and that one “95g” was “under
206 Helen” at 5:19 P.M.

21-KA-599 1

at trial, the following occurred upon her arrival at the scene in a marked police unit.

Multiple males began running towards the back of an apartment complex but

defendant, who was wearing a bright, lime green shirt and carrying a gun with a blue

handle in his hand, ran alone in a different direction. She focused her attention on

defendant and told the other officers in the area about the other males.

As she followed defendant, he ran along the side of a building before turning

a corner. Defendant was briefly out of her sight but came back by himself with his

hands up and holding a cell phone. Defendant asked Sergeant Brinser why she was

stopping him, and she responded by asking him about the gun. At that point,

Sergeant Brinser had Deputy Boyken, who had recently arrived, detain defendant.

She then went around the corner and saw the gun underneath an air conditioning

unit. She testified that she could see the blue handle of the gun sticking out from

underneath the air conditioner vent. She took custody of the firearm because there

were no other officers who could have stayed by the gun, and there were “lots of

children in that area.”

At trial, Sergeant Brinser identified the firearm that she recovered from

underneath the air conditioner unit as State’s Exhibit 7. She stated that it was the

same firearm that she saw in defendant’s hand as he turned the corner. She

confirmed that she was able to clearly identify it as a firearm as defendant was

running away and that defendant was the only person in the area where the gun was

located.

David Cox, a JPSO expert in DNA testing analytics and procedures, testified

that objects taken from an individual’s possession or seen in that individual’s

possession are not eligible for DNA testing. He also indicated that the laboratory

would not conduct a test in this situation even if the District Attorney’s Office

requested testing the item.

21-KA-599 2

Dona Quintanilla of the Jefferson Parish Sheriff’s Office Crime Laboratory

testified as an expert in fingerprint examination and comparison. Ms. Quintanilla

identified a ten-print fingerprint card as State’s Exhibit 2 containing the fingerprints

of defendant that she had previously taken prior to testifying. She also identified

defendant in open court. She stated that she matched defendant’s fingerprints to

those affixed to certified court records for a 2014 conviction for manslaughter and

that another analyst confirmed her findings.

Law and Analysis

In defense counsel’s brief, defendant challenges the alleged excessiveness of

his enhanced sentence. In a pro se brief, defendant alleges the following:

(1) insufficient evidence to support the verdict; (2) denial of the right to self-

representation; and (3) ineffective assistance of counsel.

Sufficiency of the Evidence

Defendant asserts that the evidence was insufficient to support his conviction.

He contends there is insufficient evidence to establish that he possessed the weapon

and attacks the credibility of Sergeant Brinser. Based on the following, we find this

assignment of error lacks merit.

An appellate court reviews whether evidence was sufficient to support a

conviction under the standard enunciated by the United States Supreme Court

in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The

appellate 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 of the

elements of the crime have been proven beyond a reasonable doubt. State v.

Garrison, 19-62 (La. App. 5 Cir. 4/23/20), 297 So.3d 190, 203, writ denied, 20-

00547 (La. 9/23/20), 301 So.3d 1190, and cert. denied, 141 S.Ct. 2864, 210 L.Ed.2d

967 (2021). The trier of fact makes credibility determinations and may, within the

bounds of rationality, accept or reject the testimony of any witness. State v. Harmon,

21-KA-599 3

19-570 (La. App. 5 Cir. 9/9/20), 301 So.3d 1278, 1284, writ denied, 20-1160 (La.

10/14/20), 303 So.3d 306. A reviewing court may impinge on the fact finder’s

discretion only to the extent necessary to guarantee the fundamental due process of law.

La. R.S. 14:95.1 sets forth the elements for possession of a firearm by a

convicted felon, which reads, in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of
violence as defined in R.S. 14:2(B), which is a felony or simple
burglary, burglary of a pharmacy, burglary of an inhabited dwelling,
unauthorized entry of an inhabited dwelling, felony illegal use of
weapons or dangerous instrumentalities, manufacture or possession of
a delayed action incendiary device, manufacture or possession of a
bomb, or any violation of the Uniform Controlled Dangerous
Substances Law which is a felony, or any crime which is defined as a
sex offense in R.S. 15:541, or any crime defined as an attempt to
commit one of the above-enumerated offenses under the laws of this
state, or who has been convicted under the laws of any other state or of
the United States or of any foreign government or country of a crime
which, if committed in this state, would be one of the above-enumerated
crimes, to possess a firearm or carry a concealed weapon.
* * *
C. Except as otherwise specifically provided, this Section shall not
apply to the following cases:

(1) The provisions of this Section prohibiting the possession of firearms
and carrying concealed weapons by persons who have been convicted
of certain felonies shall not apply to any person who has not been
convicted of any felony for a period of ten years from the date of
completion of sentence, probation, parole, or suspension of sentence.

Thus, for defendant to be convicted of possession of a firearm by a convicted felon,

the State must prove beyond a reasonable doubt: (1) the possession of a firearm;

(2) a previous conviction of an enumerated felony; (3) absence of the ten-year

statutory period of limitation; and, (4) general intent to commit the offense. Only

general criminal intent must be proved. La. R.S. 14:95.1. “General criminal intent

is present ... when the circumstances indicate that the offender, in the ordinary course

of human experience, must have adverted to the prescribed criminal consequences

as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2).

Intent is a question of fact and may be inferred from the circumstances of a

21-KA-599 4

transaction. State v. Brown, 42,188, 42,189, 42,190 (La. App. 2 Cir. 9/26/07), 966

So.2d 727, writ denied, 07-2199 (La. 4/18/08), 978 So.2d 347.

Sergeant Brinser’s testimony at trial clearly established that defendant had

possession of the firearm. She testified that when she arrived at the scene, she saw

defendant in a bright, lime green shirt run in a different direction from the other

males, and instantly noticed the gun in his hand, which had a blue handle. She

specifically stated, “He had the barrel in his palm of his hand and the butt or the

handle of the gun was sticking out where I could see it.” She estimated that there

was approximately ten to fifteen feet between her and defendant and that “it wasn’t

that far.” According to Sergeant Brinser’s testimony, she followed defendant around

the side of a building, and he then turned the corner, but returned from around the

corner with his hands up and holding a phone. She provided that defendant was only

briefly out of her sight. She found the gun underneath an air conditioner around the

corner defendant had taken because she saw the same blue handle sticking out from

the air conditioner vent.

A review of the record indicates that the jury accepted Sergeant Brinser’s

testimony and found defendant guilty as charged. It is the role of the fact-finder to

weigh the credibility of the witnesses, and a reviewing court will not second-guess

the credibility determinations of the trier of fact beyond the sufficiency evaluations

under the Jackson standard of review. State v. Reed, 11-507 (La. App. 5 Cir.

2/14/12), 88 So.3d 601, 607, writ denied, 12-644 (La. 9/14/12), 97 So.3d 1014.

After viewing the evidence in a light most favorable to the State, we find that

a rational trier of fact could have found defendant guilty beyond a reasonable doubt

of possession of a firearm by a convicted felon and that there was sufficient evidence

to support defendant’s conviction.

21-KA-599 5

Excessiveness of Sentence

In his counseled brief, defendant asserts that his sentence of twenty years as a

second felony offender is excessive because it is grossly disproportionate to the

severity of the crime and is a “needless infliction of pain and suffering.” Defendant

argues that the trial court failed to give adequate consideration to grounds set forth

in La. C.Cr.P. art. 894.1.

The Eighth Amendment to the United States Constitution and Article I, Sec.

20 of the Louisiana Constitution prohibit the imposition of excessive punishment.

A sentence is considered excessive, even if it is within the statutory limits, if it is

grossly disproportionate to the offense or imposes needless and purposeless pain and

suffering. State v. Dixon, 18-79 (La. App. 5 Cir. 8/29/18), 254 So.3d 828, 836, writ

not considered, 18-1909 (La. 2/18/19), 263 So.3d 1154, and writ denied, 18-1909

(La. 4/8/19), 267 So.3d 606. A sentence is grossly disproportionate if, when the

crime and punishment are considered in light of the harm done to society, it shocks

the sense of justice. Id.

A trial judge has broad discretion when imposing a sentence and a reviewing

court may not set a sentence aside absent a manifest abuse of discretion. State v.

Dufrene, 12-716 (La. App. 5 Cir. 4/10/13), 115 So.3d 22, 26. In considering whether

a sentence is excessive, three factors are considered: 1) the nature of the crime; 2)

the nature and background of the offender; and 3) the sentence imposed for similar

crimes by the same court and other courts. State v. Pearson, 07-332 (La. App. 5 Cir.

12/27/07), 975 So.2d 646, 656. The appellate court will not set aside a sentence for

excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4 D.

In addition, the reviewing court shall consider the crime and the punishment in light

of the harm to society and gauge whether the penalty is so disproportionate as to

shock the court’s sense of justice, while recognizing the trial court’s wide discretion.

State v. Hankton, 20-388 (La. App. 5 Cir. 7/3/21), 325 So.3d 616, 623-24, writ

21-KA-599 6

denied, 21-01128 (La. 12/7/21), 328 So. 3d 425; State v. Ortego, 382 So.2d 921 (La.

1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980).

In determining a proper sentence, a trial judge is not limited to considering

only a defendant’s prior convictions, but may properly review all prior criminal

activity. State v. Arceneaux, 19-472 (La. App. 5 Cir. 1/29/20), 290 So.3d 313,

316, writ denied, 20-324 (La. 5/14/20), 296 So.3d 608. The sentencing court may

rely on sources of information usually excluded from the courtroom at the trial of

guilt or innocence, e.g., hearsay and arrests, and conviction records. State v. Myles,

94-217 (La. 6/3/94), 638 So.2d 218, 219. These matters may be considered even in

the absence of proof the defendant committed the other offense. Arceneaux, 290

So.3d at 316.

The record indicates that defendant orally objected to his enhanced sentence

and filed a written motion for reconsideration of sentence, but did not specifically

raise the issue of the trial judge’s lack of compliance with La. C.Cr.P. art. 894.1.

This Court has held that when the specific grounds for objection to a sentence,

including alleged non-compliance with La. C.Cr.P. art. 894.1, are not specifically

raised in the trial court, defendant is precluded from raising those issues on appeal

and they are not included in the bare review for unconstitutional excessiveness. State

v. Francois, 17-471 (La. App. 5 Cir. 3/14/18), 242 So.3d 806, 819, writ denied, 18-

530 (La. 2/11/19), 263 So.3d 898. Thus, to the extent that defendant asserts that the

trial court failed to articulate specific reasons for sentencing pursuant to La. C.Cr.P.

art. 894.1, we cannot consider this allegation on appeal.

We can consider whether defendant’s twenty-year sentence as a second felony

offender is unconstitutionally excessive. Defendant pled guilty on October 7, 2014,

to manslaughter, which is a violent crime, and on January 28, 2019, to possession of

heroin, a narcotics-related offense. Defendant’s twenty-year sentence as a second

felony offender is a mid-range sentence that falls well below the forty-year

21-KA-599 7

maximum penalty the trial court could have imposed. In addition, based on the facts

in this case, the jurisprudence supports the imposition of defendant’s twenty-year

enhanced sentence. See, State v. Martin, 17-1100 (La. App. 1 Cir. 2/27/18), 243

So.3d 56, writ denied, 18-568 (La. 3/6/19), 266 So.3d 901; State v. Brown, 42,188

(La. App. 2 Cir. 9/26/07), 966 So.2d 727, 753-54, writ denied, 07-2199 (La.

4/18/08), 966 So.2d 727. Furthermore, the trial testimony established that defendant

ran from the police, demonstrating a disregard for police authority, and created a

dangerous environment with other people including children in the area,

demonstrating a disregard for human safety. Thus, considering defendant’s conduct,

along with his prior criminal record, and that he received a mid-range sentence, we

do not find defendant’s sentence unconstitutionally excessive.

Denial of Self-Representation

Defendant argues in his pro se brief that his defense attorney filed a motion

for new trial against his wishes and that he relayed this complaint to the trial court.

He contends that he was denied the right to represent himself.

According to the record, at defendant’s sentencing hearing via Zoom, defense

counsel informed the trial court that he filed a motion for new trial and would submit

on the motion, which the trial court denied. The transcript reflects that, at one point,

defendant stated to defense counsel, “I don’t need you to file nothing!” and then a

second time restated, “I don’t need him to file nothing. I’m going to file everything

myself.” Defense counsel then asked defendant, “Are you representing yourself

now, sir?” The Court responded, “No, no, sir. That’s not what he’s doing. No, sir.

He’s not doing that. We were talking about as far as additional filing. What you filed,

the Court signed it and the Court ruled on it, two minutes ago.”

Subsequent thereto, defendant attended with his counsel his original

sentencing hearing on May 4, 2021 and his habitual offender hearing and sentencing

on May 13, 2021 without objection.

21-KA-599 8

The Sixth Amendment to the United States Constitution and Article I, Sec. 13

of the Louisiana Constitution give a defendant the right to counsel as well as the

right to defend himself. The right to self-representation is not absolute. A defendant

must voluntarily and intelligently reject representation by an attorney and elect to

conduct his own defense and do so in a timely manner. Martinez v. Court of Appeal

of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). A defendant

may represent himself only if he makes an unequivocal request to represent himself

and knowingly and intelligently waives his right to counsel. Faretta v. California,

422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Bridgewater, 00-1529

(La. 1/15/02), 823 So.2d 877, 894, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154

L.Ed.2d 1089 (2003); State v. Perry, 17-567 (La. App. 5 Cir. 6/27/18), 250 So.3d

1180, 1191, writ denied, 18-1325 (La. 11/14/18), 256 So.3d 285. Assertion of that

right “must also be clear and unequivocal.” State v. Bell, 09-199 (La. 11/30/10), 53

So.3d 437, 448, cert. denied, 564 U.S. 1025, 131 S.Ct. 3035, 180 L.Ed.2d 856

(2011).

There is no inflexible criteria or magic-word formula for determining the

validity of a defendant’s waiver of the right to counsel. State v. Stevison, 97-3122

(La. 10/30/98), 721 So.2d 843, 845; State v. Bruce, 03-918 (La. App. 5 Cir.

12/30/03), 864 So.2d 854, 857. Whether a defendant has knowingly, intelligently,

and unequivocally asserted the right to self-representation must be determined on a

case-by-case basis, considering the facts and circumstances of each case. State v.

Leger, 05-11 (La. 7/10/06), 936 So.2d 108, 147-48, cert. denied, 549 U.S. 1221, 127

S.Ct. 1279, 167 L.Ed.2d 100 (2007).

Courts must indulge in every reasonable presumption against a waiver of

counsel. State v. Simmons, 13-258 (La. App. 5 Cir. 2/26/14), 136 So.3d 358, 371,

writ denied, 14-674 (La. 10/31/14), 152 So.3d 151. The trial court is given much

discretion in determining whether the defendant’s waiver was knowing and

21-KA-599 9

intelligent. State v. LaGarde, 07-288 (La. App. 5 Cir. 10/30/07), 970 So.2d 1111,

1120. “An appellate court should not reverse the trial court ruling absent an abuse

of its discretion.” State v. Barnett, 18-254 (La. App. 5 Cir. 4/3/19), 267 So.3d 209,

233.

Upon review, we do not find defendant made a clear and unequivocal request

to represent himself. Defendant’s alleged request occurred only once when he

initially appeared for his original sentencing and after the trial court already denied

his motion for new trial. Defendant merely stated, “I don’t need you to file nothing!”

to his counsel, and “I don’t need him to file nothing. I’m going to file everything

myself.” Defendant did not expressly request to represent himself even when his

counsel asked if he was or when the trial court responded that defendant did not wish

to represent himself. In light of the foregoing, we find this assignment of error lacks

merit.

Ineffective Assistance of Counsel

In his final pro se assignment of error, defendant contends that his counsel

was constitutionally ineffective for failing to compel the appearance of a witness at

trial, injecting prejudice during cross-examination, not requesting fingerprints or

DNA, and failing to object to any sleeping jurors.

Under the Sixth Amendment to the United States Constitution and Article I,

Sec. 13 of the Louisiana Constitution, a defendant is entitled to effective assistance

of counsel. State v. Taylor, 18-126 (La. App. 5 Cir. 10/17/18), 258 So.3d 217, 227,

writ denied, 18-1914 (La. 5/20/19), 271 So.3d 200; State v. Casimer, 12-678 (La.

App. 5 Cir. 3/13/13), 113 So.3d 1129, 1141. A claim for ineffective assistance of

counsel is generally more appropriately addressed through an application for post-

conviction relief filed in the trial court, where a full evidentiary hearing can be

conducted, rather than on direct appeal. State v. Washington, 03-1135 (La. App. 5

Cir. 1/27/04), 866 So.2d 973, 983. When, however, the record contains sufficient

21-KA-599 10

evidence to rule on the merits of the claim and the issue is properly raised by

assignment of error on appeal, it may be addressed in the interest of judicial

economy. State v. Deruise, 98-0541 (La. 4/3/01), 802 So.2d 1224, 1248, cert.

denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001); State v. Moore, 16-

644 (La. App. 5 Cir. 3/15/17), 215 So. 3d 951, 967-68, writ not considered, 18-0495

(La. 11/14/18), 256 So. 3d 283.

In this case, upon review, we find that the record contains sufficient evidence

to rule on the merits of defendant’s ineffective assistance of counsel claims.

Defendant challenges several aspects of defense counsel’s decisions at trial,

including failing to compel the appearance of a witness at trial, injecting prejudice

during cross-examination, not requesting fingerprints or DNA, and failing to object

to any sleeping jurors. Given that the record contains the trial transcript, we have

evidence before us to consider these issues. However, defendant’s allegations

regarding these claims are conclusory and unsubstantiated.

Effective assistance of counsel does not mean errorless counsel or counsel

who may be judged ineffective on mere hindsight. State v. Hollins, 99-278 (La.

App. 5 Cir. 8/31/99), 742 So.2d 671, 681, writ denied, 99-2853 (La. 1/5/01), 778

So.2d 587. To prove ineffective assistance of counsel, a defendant must satisfy the

two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). Under the Strickland test, the defendant must show: (1) that

counsel’s performance was deficient; that is, that the performance fell below an

objective standard of reasonableness under prevailing professional norms; and (2)

that the deficient performance prejudiced the defense. Taylor, supra; State v.

Dabney, 05-53 (La. App. 5 Cir. 6/28/05), 908 So.2d 60, 63. The error is prejudicial

if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result

is reliable.” Strickland, supra; State v. Serio, 94-131 (La. App. 5 Cir. 6/30/94), 641

So.2d 604, 607, writ denied, 94-2025 (La. 12/16/94), 648 So.2d 388. To prove

21-KA-599 11

prejudice, the defendant must demonstrate that, but for counsel’s unprofessional

conduct, the outcome of the trial would have been different. Strickland, 466 U.S. at

694, 104 S.Ct. at 2068; State v. Woods, 20-73 (La. App. 5 Cir. 9/9/20), 303 So.3d

403, 408-09, writ denied, 21-27 (La. 2/17/21), 310 So.3d 1150.

An alleged error that is within the ambit of trial strategy does not establish

ineffective assistance of counsel because “opinions may differ on the advisability of

such a tactic.” State v. Singleton, 05-634 (La. App. 5 Cir. 2/14/06), 923 So.2d 803,

811, writs denied, 06-1208 (La. 11/17/06), 942 So.2d 532 and 08-2386 (La. 1/30/09),

999 So.2d 753.

First, defendant claims defense counsel should have called Deputy Boyken as

a witness. He asserts that Deputy Boyken and Sergeant Brinser had a disagreement

about arresting defendant for possession of a firearm by a convicted felon. “The

selection of witnesses and the introduction of evidence are questions of trial strategy

and the mere choice of trial strategy is not a foundation for finding ineffective

assistance of counsel.” See State v. Blank, 16-213 (La. 5/13/16), 192 So.3d 93, 100.

To prevail on an ineffective assistance claim based on counsel’s failure to call a

witness, the petitioner must name the witness, demonstrate that the witness was

available to testify and would have done so, set out the content of the witness’s

proposed testimony, and show that the testimony would have been favorable to a

particular defense.” See State v. Reeves, 18-270 (La. 10/15/18), 254 So.3d 665, 672.

Here, defendant has failed to demonstrate that Deputy Boyken was available to

testify and would have done so, set out the content of his proposed testimony, or

shown that the testimony would have been favorable to any particular defense. In

addition, based on Deputy Brinser’s testimony, Deputy Boyken’s testimony would

not have affected the outcome of trial because he was not present when Deputy

Brinser initially observed defendant with the firearm.

21-KA-599 12

Defendant secondly asserts that defense counsel injected prejudice in his trial

when he inquired about gang-related activity. “General statements and conclusory

allegations will not suffice to prove a claim of ineffective assistance of counsel.”

State v. Fisher, 19-488 (La. App. 5 Cir. 6/24/20), 299 So.3d 1238, 1247. This

allegation is conclusory and speculative. In addition, based on the evidence and

testimony presented at trial, defendant cannot show the outcome of the trial would

have been different if defense counsel had not brought up the gang-related activity

issue during trial.

Third, defendant argues that his trial counsel was deficient in failing to pursue

fingerprinting, DNA testing, or some other identification method to show that he did

not handle the gun. Defendant also argues that at trial his counsel should have

focused on the cell phone he had in his hand. This Court has held an attorney’s

decision regarding gathering and introduction of similar evidence fell within the

ambit of trial strategy. State v. Esteen, 846 So.2d at 174. In addition, Mr. Cox

testified that objects taken from an individual’s possession or seen in that

individual’s possession are not eligible for DNA testing. Sergeant Brinser testified

that she saw defendant with the gun, and she identified the gun in open court. Thus,

because Sergeant Brinser observed the gun in defendant’s possession on the scene,

the laboratory did not conduct DNA testing on it. There is nothing to show that

fingerprinting, DNA test, or some other identification method would have

contradicted Sergeant Brinser’s testimony and proven that defendant did not handle

the gun. Consequently, defendant cannot show that there is any evidence that would

have resulted in a different outcome.

Finally, defendant asserts that he was denied effective assistance of counsel

because his counsel failed to object to a sleeping juror, to request that the juror be

removed, or to request a mistrial. The record reflects that during jury instructions

the trial judge questioned whether one juror was paying attention and reminded the

21-KA-599 13

jurors that he needed eyes on him. The record does not indicate that a juror was

sleeping during trial. Thus, this is another purely speculative and conclusory

allegation.

Considering the foregoing, we find that defendant has failed to show that trial

counsel’s performance was deficient; and thus, that defendant has failed to sustain

his burden under Strickland. This assignment of error lacks merit.

We have reviewed the record for errors patent according to the mandates of

La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v.

Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none.

Decree

For the reasons stated above, we find all the assignments of error lack merit

and affirm defendant’s conviction and sentence.

AFFIRMED

21-KA-599 14

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JUNE 22, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-KA-599
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT)

MAILED
PERRY BELL #629273 (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
PLAQUEMINE PARISH DETENTION (APPELLEE)
CENTER DISTRICT ATTORNEY
POST OFFICE BOX 67 ZACHARY L. GRATE (APPELLEE)
POINTE À LA HACHE, LA 70082 ASSISTANT DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053