State of Louisiana Versus Jyrease Havies

STATE OF LOUISIANA NO. 22-KA-133

VERSUS FIFTH CIRCUIT

JYREASE HAVIES COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 19-7312, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

December 22, 2022

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.

CONVICTIONS AFFIRMED;
SENTENCES ON COUNTS FOUR AND FIVE VACATED; REMANDED
SJW
HJL
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Jennifer C. Voss
Joshua K. Vanderhooft

COUNSEL FOR DEFENDANT/APPELLANT,
JYREASE HAVIES
Kevin V. Boshea

WINDHORST, J.

Defendant/appellant, Jyrease Havies, appeals his convictions and sentences

for second degree murder, aggravated criminal damage to property, obstruction of

justice, attempted simple escape, and solicitation to commit murder. For the

following reasons, we affirm defendant’s convictions, vacate his sentences on counts

four and five, and remand for resentencing on these counts.

PROCEDURAL BACKGROUND

On December 12, 2019, a Jefferson Parish Grand Jury indicted defendant,

Jyrease Havies, with the second degree murder of Christopher Wilson in violation

of La. R.S. 14:30.1 (count one); aggravated criminal damage to property to 6136

Victorian Drive in violation of La. R.S. 14:55 (count two); obstruction of justice in

violation of La. R.S. 14:130.1 (count three); simple escape in violation of La. R.S.

14:110 (count four); and solicitation to commit the second degree murder of Haylee

Lester in violation of La. R.S. 14:28.1 (count five). Defendant was arraigned and

pled not guilty on December 23, 2019.

On October 13, 2021, trial commenced before a twelve-person jury, and after

a two-day trial, defendant was found guilty as charged on counts one, two, three, and

five and guilty of attempted simple escape on count four. On December 6, 2021, the

trial court sentenced defendant to life imprisonment without the benefit of parole,

probation, or suspension of sentence on count one; imprisonment at hard labor for

15 years on count two; imprisonment at hard labor for 40 years on count three;

imprisonment at hard labor for one year on count four; and imprisonment at hard

labor for 20 years on count five. The trial court ordered defendant’s sentences on

counts one through four to run consecutively. According to the sentencing

transcript, however, the trial court also ordered defendant’s sentence on count four

to run concurrently, and did not specify whether defendant’s sentence as to count

five was to run concurrently or consecutively with his other sentences.

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On January 4, 2022, defendant filed a motion to reconsider his sentences and

a motion for appeal. On that same date, the trial court granted the motion for appeal.

A hearing on the motion to reconsider sentences was set for February 4, 2022. On

January 6, 2022, defendant filed a motion for new trial, which was also set for

hearing on February 4, 2022. After a hearing on February 4, 2022, the trial court

denied defendant’s motion to reconsider sentences and the motion for new trial.

Defendant now appeals his convictions and sentences, challenging the

sufficiency of the evidence, the denial of his right to counsel of his choice, and the

denial of his motion for new trial. Defendant also challenges the denial of his motion

to reconsider his sentences and alleges that the consecutive maximum sentences are

unconstitutionally excessive.

THE EVIDENCE

The following evidence was developed at trial involving the August 27, 2019

shooting and death of Christopher Wilson.

Ms. Haylee Lester, defendant’s girlfriend at the time of the crime, testified

regarding the events leading up to the shooting and discussed video surveillance

footage and other exhibits the State introduced into evidence. On the day of the

incident, while Ms. Lester was in class, defendant sent her a text message, which

stated, “I’m going to hit a lick.” She explained that this meant defendant wanted to

rob someone. She did not know whom defendant was going to rob, and she did not

know the victim, but she agreed to drive him. After she picked up defendant and

Coby Harris, she drove to Victorian Drive where they waited for Mr. Wilson to

arrive. Defendant sat in the front passenger seat, and Mr. Harris sat in the back

passenger seat of the vehicle.

When Mr. Wilson arrived at the scene in a gray vehicle and stopped on the

opposite side of the street, defendant exited the vehicle, and soon thereafter, she

heard gunshots. At this point, Mr. Harris exited Ms. Lester’s vehicle, and she drove

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off because she was scared. She testified that she did not witness the shooting

because after defendant exited her vehicle, she got on her phone. She confirmed that

both defendant and Mr. Harris had guns, but that Mr. Harris told her his gun had

jammed.

After leaving the crime scene, she went around the block, came back, and saw

defendant running towards her car. Defendant and Mr. Harris got back in her

vehicle, and they left the crime scene. Defendant, however, soon realized that he

had left his cell phone in Mr. Wilson’s car. They attempted to go back to the scene

to find the phone but were unable. Ms. Lester testified that defendant used her phone

that night after the shooting and that he logged into his iCloud account to erase his

phone. During her testimony, she identified text messages that were sent by

defendant from her phone after the shooting on August 27, 2019.

Because defendant was concerned that his sweatshirt had gunpowder residue

on it, he gave the sweatshirt to Mr. Harris when they dropped him off after the

shooting to dispose of it. Ms. Lester confirmed that defendant shot and killed Mr.

Wilson, and testified that defendant admitted to her that he killed Mr. Wilson.

At trial, Ms. Lester acknowledged that after her arrest and during her

interview, she told police detectives that defendant did not do it on purpose, that he

did it in self-defense, and that he went to buy some “weed.” At this interview, she

said that “the dude” pulled his gun on defendant and that they did not know him.

During her testimony at trial, she testified that she lied when she told the officers

that defendant went to get weed because she wanted to protect defendant. Ms. Lester

agreed that her story had changed from a drug deal and self-defense, to an armed

robbery and a murder. She stated that she had nothing to lie about now. She

explained that she was testifying because defendant killed somebody, and she

realized he would not protect her. Ms. Lester also answered questions regarding her

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plea agreement, in which she pled guilty to accessory after the fact to second degree

murder and obstruction of justice.

Dr. Ellen Connor, a forensic pathologist with the Jefferson Parish Coroner’s

Office, was accepted as an expert in the field of forensic pathology. Dr. Connor

performed an autopsy of Mr. Wilson, classified his death as a homicide, and

determined that the victim’s cause of death was four gunshot wounds.

Detective Brandon Cheron with the Jefferson Parish Sheriff’s Office testified

that on August 27, 2019, he was dispatched to the 6100 block of Victorian Drive

regarding a black male who had possibly been shot inside a vehicle. Upon his

arrival, Detective Cheron observed a gray vehicle in the front yard of a residence

and found an unresponsive black male, later identified as Mr. Wilson, in the driver’s

seat. He checked for a pulse and signs of life but he did not observe any. He noticed

a firearm underneath the driver’s seat of the vehicle and bullet holes on the side of

the car.

Lorenza McCollum testified that while living on Victorian Drive in August

2019, she went outside when she saw a red car parked in her driveway. Ms.

McCollum later heard somebody screaming, came back outside, and learned that

somebody was just killed. She denied seeing the shooting or being able to identify

anyone. On the same day, an officer knocked on her door and told her that they

believed a bullet went into her house. She testified that the bullet hole and

accompanying bullet were found inside the wall of her den, where her grandson was

present playing a game.

JPSO Detective Harold Wischan testified as the senior investigator for Mr.

Wilson’s homicide investigation. He explained that two locations were involved in

this incident: one where the actual shooting occurred and another where the victim

was located by responding deputies. He stated that photographs of the crime scene

showed that the victim’s vehicle crashed into a white Ford Expedition in the yard at

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6124 Victorian Drive. During a search of the victim’s vehicle, he found a yellow

iPhone on the front passenger side, a semi-automatic pistol with an extended

magazine on the front driver side, a red iPhone on the dashboard, the victim’s ID,

and a backpack, which contained a large Ziploc bag with 122 grams of marijuana, a

couple of sandwich bags, and a plastic cup. He indicated that ballistic materials were

found on the ground at 6137 and 6141 Victorian Drive, where the actual shooting

occurred.

JPSO Detective Anthony Buttone testified that on August 27, 2019, he

responded to the scene of Mr. Wilson’s homicide. While there, he questioned

witnesses, who said that they observed a black male, who was wearing a gray hooded

sweatshirt. Following the shooting, the witnesses observed a female driver in a red

car fleeing the area.1

During their investigation, detectives initially believed that Brianna Perrin

was defendant’s girlfriend. When the detectives interviewed Ms. Perrin, they learned

that she was defendant’s former girlfriend, and that he was dating another white

female, Ms. Lester, who had a red sedan. Detective Buttone testified that they

observed a “red Chevy car, four-door sedan” parked outside Ms. Lester’s residence

consistent with the description of the vehicle seen at the crime scene.

Once detectives learned that Ms. Lester was defendant’s girlfriend, they

conducted an interview with her. During Ms. Lester’s interview, detectives located

defendant inside Ms. Lester’s residence at 412 Bluebonnet. They advised defendant

of his Miranda rights and brought him to the investigation bureau. Detective Buttone

provided that he obtained a DNA search warrant for a buccal swab from defendant

and that the swab was sent to the crime lab.

1 Detective Buttone explained that the video-surveillance footage corroborated the witnesses’

statements about the red vehicle. He explained that there were twenty-four clips and that the
date/time was “8-27-2019 16:58-56.”

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Detective Buttone also testified that while at the bureau, he removed

defendant’s handcuffs, asked defendant if he needed to use the bathroom, and

defendant said that he did. As defendant walked out of the room, Detective Buttone

turned his back to turn off the light. He explained that by the time he turned around,

defendant was “running down the hallway.”

At trial, Ms. Perrin testified that she and defendant once shared a phone, which

he had taken back, and that defendant used a yellow XR phone. Ms. Perrin stated

that she talked with defendant while he was in jail. She relayed that defendant asked

her about Ms. Lester and wanted her to bond Ms. Lester out of jail. She explained

that she did not know why he asked.

Dr. Marcela Zozaya, an expert in forensic DNA analysis and a forensic DNA

analyst with JPSO, received items of evidence in this case to analyze and a DNA

buccal swab from defendant. She determined that the DNA profile obtained from

the yellow iPhone was consistent with the mixture of DNA from at least four

individuals and that there were two major contributors and two minors. She found

that defendant could not be excluded as a major contributor to the DNA mixture.

Dr. Zozaya testified that the DNA profile from the major contributor to the firearm

was greater than 631 million times more likely to be a mixture of DNA from

defendant than a mixture of DNA from two unknown, unrelated individuals.

JPSO Sergeant Soloman Burke testified that he was the supervisor of the

digital forensic unit and was accepted as an expert in the field of mobile device

forensics. Sergeant Burke examined cell phones in connection with the instant case

and generated a report regarding his findings. He was able to extract data from an

iPhone associated with the number 504-***-3618. He confirmed that the Apple ID

for the device was “Haylee.Lester1@gmail.com.” He testified that this cell phone

contained multiple text messages exchanged with the number 504-***-4104 on

August 27, 2019. Sergeant Burke confirmed that they could not extract anything

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from the yellow iPhone because someone had wiped it.2 He indicated that the

registered owner of the 504-***-4104 number was “Jyrease Havies.”

JPSO Detective Daniel Whamond, who was accepted as an expert in the field

of mobile device forensics, testified that he extracted data from a red iPhone, and

that the red iPhone contained text messages exchanged with defendant’s number,

504-***-4104. He explained that an attachment was sent from defendant’s number

to the red iPhone, which belonged to Mr. Wilson, of GPS coordinates that pin

pointed the location of 6137 Victorian Drive.

Sergeant Jene Rauch of the Jefferson Parish Crime Laboratory, who was

accepted as an expert in firearms, tool mark examination, and crime scene

reconstruction, investigated the crime scene and performed a crime scene

reconstruction. She testified that a .40 caliber Glock pistol and five .40 caliber

casings were found inside the vehicle found at the scene, and that the casings were

“fired in” that Glock pistol. She also determined that eight 9 mm casings found at

the scene were fired from the same weapon.

Based on her ballistic analysis, Sergeant Rauch concluded that there was

gunshot damage to the vehicle consistent with the front passenger door being open

at the time of the shots. She also concluded that other damage was consistent with

“traveling from the passenger side of the vehicle towards the driver side.” She stated

that projectiles traveled from the front driver side of the vehicle towards the

passenger side as well. She denied that any ballistics evidence recovered on the

scene indicated that there was a third shooter.

The State also called as a witness Sergeant Thomas Gai from the JPSO

Homicide Section who was the lead investigator assigned to Mr. Wilson’s homicide.

Sergeant Gai testified that he obtained a search warrant and participated in its

2 Sgt. Burke explained that an Apple iPhone could be wiped from the device itself or remotely

from an iCloud account on someone else’s phone, a computer, or from a cell phone carrier.

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execution on Ms. Lester’s residence, and that they seized the backpacks belonging

to defendant, which contained two extended “30-round glock 9 millimeter

magazines, an ID, and a prescription.” According to Sergeant Gai, the forensic

analysis showed the yellow iPhone was wiped in this case. He testified about the

text messages and phone calls exchanged between the victim’s phone number 504-

***-9913 and defendant’s phone number 504-***-4014 in this case. He explained

that the text messages discussed prices and types of narcotics for sale. Sergeant Gai

stated that the text messages show they continued to talk about meeting up, and that

defendant ultimately sent his location, which was in the 6100 block of Victorian

Drive. He testified that the text messages were consistent with the time that the

incident happened and the time the victim stated it would take to get there.

While the investigation was ongoing, Courtland Hardwick contacted Sergeant

Gai, and said that defendant “actually confessed to a robbery and murder.” Mr.

Hardwick confirmed that he entered into a plea agreement where his charge was

reduced to a lesser grade of theft in exchange for his testimony. He stated that he

bunked with defendant at the jail, and knew him as “Little Jy” and from “the

neighborhood.” Mr. Hardwick indicated that defendant said he killed “that person,”

and that he went out to the location “to lick him, to rob him” because he was broke.

He testified that defendant also told him how the shooting occurred, that his

girlfriend was present the day of the incident, and that defendant said one of his

friends had the murder weapon and took care of it.

Corielle Barnes, another ex-girlfriend of defendant, testified that on August

27, 2019, defendant confessed to her that he killed someone before he went to jail.

She spoke with defendant while he was in jail on the phone, and some of the jail

calls between her and defendant were played for the jury. She had multiple phone

calls with defendant in which he indicated he wanted to have Ms. Lester killed. In

one call, she explained that defendant wanted Ms. Lester bailed out because she was

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“talking too much” in jail, and wanted her killed if she bonded out. She testified that

they used code words while talking, and she noted that defendant’s “candy” was his

gun. In other calls, Ms. Barnes stated that someone named “Coby” was also on the

call with them, and that they discussed defendant wanting Ms. Lester killed and

discussed the gun. She said that she received a letter in the mail from defendant with

a map to Ms. Lester’s house but that she ripped the letter up. When defense counsel

asked if defendant said, “Go kill Haylee?” Ms. Barnes responded, “He said it in so

many words, so yes” and “You can see how he was talking, the slang he was saying,

yes.”

Defendant did not testify in this trial; however, he provided his statement,

which was admitted into evidence. In his statement, defendant said that on August

27, 2019, around 10:00 or 11:00 A.M., he woke up with Ms. Lester, and she dropped

him off in Woodmere. He told the detective that she drove a red Chevy. He stated

that he hung out with his friends until 11:00 P.M. He said that he slept in Woodmere.

Defendant stated that he heard about the incident on Victorian Drive through social

media. He denied knowing the individual who was shot. The detective told

defendant that the phone he gave Ms. Perrin was found in the victim’s vehicle on

Victorian Drive.3 Defendant stated, “I don’t know anything about that.” He stated

that he had “some gun” before the summer. He explained that he had two extended

“mags” with 9 mm in them from his “partner” in Woodmere.

Defendant claimed Ms. Lester was lying, and he did not know why she told

them that he was present at the shooting on Victorian Drive. In the video, Ms. Lester

was brought into the interview room. Defendant again denied that he was with her,

and he told her, “I was in Woodmere, huh?” Ms. Lester replied, “Yeah, I bring you

3 Defendant explained that he previously lost his phone at the Walmart in Marrero. He stated
that his phone number was 504-***-4144, his phone was an “x,” and he provided the password.
When the detective tells him that the phone number came up as 504-***-4014, defendant
explained that was the number of the phone he gave Ms. Perrin.

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in Woodmere.” Defendant also stated to Ms. Lester, “I lost the phone in Walmart,

huh?” Later, Ms. Lester came back in the interview room, and he told her, “Don’t

let them get in your f**king head.” Defendant told her “to stop talking” repeatedly.

He also said to her that “it was not too late” and to tell them that she was not with

him. In the video, defendant told Ms. Lester, “don’t say nothing.” He also instructed

her to tell them that she dropped him off in Woodmere at 10:00. Defendant told her

“not to give up” and that they do not have enough evidence.

LAW and ANALYSIS

Defendant asserts the following assignments of error: (1) the verdicts of guilty

are contrary to the law and the evidence; (2) he was denied his sixth amendment

right to counsel; (3) the district court erred in the denial of the motion for new trial;

(4) the imposition of consecutive sentences at hard labor without benefit of parole,

probation or suspension or sentence is unconstitutionally excessive; and (5) the

district court erred in the denial of the motion to reconsider sentence.

Sufficiency of the Evidence

In his first assignment of error, defendant contends the evidence is insufficient

to convict him of the second degree murder of Mr. Wilson, aggravated criminal

damage to property, and/or solicitation for murder of Ms. Lester. He argues that the

State failed to prove beyond a reasonable doubt his identity as the perpetrator of the

offenses and that there was no ballistic evidence, no credible eyewitness testimony,

no DNA evidence, and no cell phone evidence that excluded Mr. Harris. Defendant

asserts that his convictions are based on unreliable evidence.

The constitutional standard for sufficiency of the evidence is whether, upon

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could find that the State proved all of the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). Under the Jackson standard, a review of a criminal conviction

22-KA-133 10

record for sufficiency of evidence does not require the court to ask whether it

believes that the evidence at trial established guilt beyond a reasonable doubt, but

rather, whether any rational trier of fact could have found the defendant guilty

beyond a reasonable doubt after viewing the evidence in the light most favorable to

the prosecution. State v. Flores, 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118,

1122. The credibility of witnesses is within the sound discretion of the trier of fact,

who may accept or reject, in whole or in part, the testimony of any witness. State v.

Miller, 20-182 (La. App. 5 Cir. 12/23/20), 308 So.3d 1246, 1256, writ denied, 21-

233 (La. 4/27/21), 314 So.3d 838. On appeal, the credibility of the witnesses will

not be reassessed. State v. Veillon, 19-606 (La. App. 5 Cir. 7/29/20), 297 So.3d

1091, 1099, writ denied, 20-1297 (La. 2/9/21), 310 So.3d 178.

In order to prove all the elements of an offense, the State must prove the

identity of the defendant as the perpetrator. State v. Ray, 12-684 (La. App. 5 Cir.

04/10/13), 115 So.3d 17, 20, writ denied, 13-1115 (La. 10/25/13), 124 So.3d 1096.

Where the key issue is identification, the State is required to negate any reasonable

probability of misidentification in order to carry its burden of proof. Id. In the

absence of internal contradiction or irreconcilable conflict with physical evidence,

one witness’ testimony, if believed by the trier of fact, is sufficient to support a

requisite factual finding. State v. Caffrey, 08-717 (La. App. 5 Cir. 05/12/09), 15

So.3d 198, 203, writ denied, 09-1305 (La. 02/05/10), 27 So.3d 297. A reviewing

court may impinge on the factfinder’s discretion only to the extent necessary to

guarantee the fundamental due process of law. State v. Garrison, 19-62 (La. App. 5

Cir. 4/23/20), 297 So.3d 190, 203–04, writ denied, 20-547 (La. 9/23/20), 301 So. 3d

1190, and cert. denied, 210 L. Ed. 2d 967, 141 S. Ct. 2864 (2021).

Defendant was convicted of second degree murder, aggravated criminal

damage to property, obstruction of justice, attempted simple escape, and solicitation

to commit second degree murder. On appeal, defendant only references his

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convictions for second degree murder (count one), aggravated criminal damage to

property (two), and solicitation to commit second degree murder (five). Defendant

does not raise an issue relating to the sufficiency of evidence of the statutory

elements of the offenses. Instead, defendant challenges whether the State proved his

identity as the shooter, attacking the credibility of the witnesses and the DNA

evidence. Upon review, the record indicates that a rational trier of fact, viewing the

evidence in a light most favorable to the prosecution, could have found beyond a

reasonable doubt that the evidence was sufficient to prove that defendant was the

perpetrator of the murder.

Defendant asserts that the State failed to eliminate Mr. Harris as the killer and

relies on Ms. Lester’s testimony that she brought both defendant and Mr. Harris to

the crime scene, that both were armed, and that both exited the vehicle.

Ms. Lester’s testimony indicates that when Mr. Wilson arrived to meet

defendant, defendant exited her vehicle and entered Mr. Wilson’s vehicle, but that

Mr. Harris did not exit her vehicle until after the shooting. In addition, the record

indicates that defendant dropped his phone in Mr. Wilson’s car, and that defendant

had to discard his sweatshirt because it likely had gun residue on it. Defendant also

admitted to Ms. Lester that he shot Mr. Wilson.

Ballistics evidence also supports defendant’s conviction for the shooting.

Based on her ballistic analysis, Sergeant Rauch explained that ballistics evidence

recovered at the scene of the murder indicated that it involved two shooters, and the

9 mm casings, which were found outside the vehicle, matched casings recovered

with defendant’s belongings when he was arrested. She explained that a .40 caliber

Glock pistol, which belonged to Mr. Wilson, and .40 caliber casings were located

inside the vehicle. She denied that any ballistic evidence recovered on the scene

indicated that there was a third shooter.

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Furthermore, defendant’s yellow iPhone was found on the passenger side of

Mr. Wilson’s vehicle. Dr. Zoyaza testified that defendant could not be excluded as

a major contributor to the DNA mixture obtained from the yellow iPhone. Ms.

Lester’s testimony established that defendant erased his phone, the yellow iPhone,

using her phone following the shooting.

Other evidence at trial that supports defendant’s conviction for the shooting

came from Mr. Hardwick and Ms. Barnes, who both testified that defendant told

them he committed the shooting. Mr. Hardwick encountered defendant when he

bunked with him in the Jefferson Parish Correctional Center. He stated that

defendant told him that he killed “that person.” Mr. Hardwick relayed that defendant

explained that he went out to the location “to lick him, to rob him.” Defendant also

told him that the police were led to him by his phone and the car. He testified that

defendant said he pulled his gun, “the guy bucked,” and defendant shot him.

Finally, defendant challenges Ms. Lester’s credibility because she admitted to

lying in her first interview with detectives and had an interest in testifying against

him to obtain reduced charges. The jury heard all the testimony in this matter,

including information regarding Ms. Lester’s first interview and her plea agreement,

and made a credibility determination after listening to all of the testimony and

evidence. It is not the province of this appellate court to reassess the factfinder’s

credibility determinations.

Considering the law, the testimony, and the evidence admitted at trial, we find

that a rational trier of fact, viewing the evidence in a light most favorable to the

prosecution, could have found beyond a reasonable doubt that the evidence was

sufficient to support defendant’s conviction for second degree murder and

aggravated criminal damage to property.

Also, as to the solicitation for murder conviction, defendant only alleges “the

offense was based on the selective interpretations and ‘belief’” of Ms. Barnes. The

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jury chose to believe her testimony that defendant asked her to have Ms. Lester killed

and sent her a map of directions to Ms. Lester’s house. It is not the function of the

appellate court to assess credibility or reweigh the evidence. State v. Smith, 94-

3116 (La. 10/16/95), 661 So.2d 442, 443. The trier of fact shall evaluate credibility,

and when faced with a conflict in testimony, is free to accept or reject, in whole or

in part, the testimony of any witness. State v. Garrison, 297 So.3d at 204.

Accordingly, we find that a rational trier of fact, viewing the evidence in a

light most favorable to the prosecution, could have found beyond a reasonable doubt

that the evidence was sufficient to support defendant’s conviction for solicitation to

commit murder.

This assignment of error lacks merit.

Motion for New Trial

The trial court sentenced defendant on December 6, 2021. On January 4,

2022, defendant filed a motion to reconsider his sentences and a motion for appeal,

the latter of which the trial court granted that day. On January 6, 2022, defendant

filed a motion for new trial pursuant to La. C.Cr.P. art. 851. On February 4, 2022,

the trial court considered the merits of the motion to reconsider sentences and the

motion for new trial and denied both motions.

La. C.Cr.P. art. 853 mandates, in relevant part, that a “motion for a new trial

must be filed and disposed of before sentence.” State v. Robinson, 14-453 (La. App.

5 Cir. 12/23/14), 167 So.3d 793, 799; State v. Williams, 09-82 (La. App. 5 Cir.

12/29/09), 30 So.3d 975, 976. However, the article contains two exceptions to that

general rule: when a motion for new trial is based on La. C.Cr.P. art. 851 B(3) (newly

discovered evidence), or on La. C.Cr.P. art. 851 B(6) (where the defendant is a

victim of human trafficking). See State v. Brundy, 16-263 (La. App. 4 Cir. 8/24/16),

198 So.3d 1247, writ denied, 16-1748 (La. 6/16/17), 220 So.3d 755.

22-KA-133 14

Because defendant filed his motion for new trial on January 6, 2022, a month

after his sentencing on December 6, 2021, the motion for new trial was untimely. In

his written motion, defendant generally alleges that the trial court should grant him

a new trial pursuant to La. C.Cr.P. art. 851. Defendant also argues that he was denied

his right to counsel of his choice. Considering these arguments, defendant’s motion

for new trial was not based on an enumerated exception. We therefore find that

defendant’s motion was untimely in that it was not filed before his sentencing on

December 6, 2021, and should have been denied on that basis.

Furthermore, pursuant to La. C.Cr.P. art. 916, a trial court is divested of

jurisdiction upon the granting of a defendant’s motion for appeal. State v. Lampkin,

12-391 (La. App. 5 Cir. 5/16/13), 119 So.3d 158, 162, writ denied, State ex rel.

Lampkin v. State, 13-2303 (La. 5/23/14), 140 So.3d 717. Once the trial court is

divested of jurisdiction, it may take only certain specified actions, none of which

include ruling on a motion for a new trial. State v. Johnson, 13-75 (La. App. 5 Cir.

10/9/13), 128 So.3d 325, 327.

Prior to the filing of the untimely motion for new trial, defendant filed a

motion for appeal on January 4, 2022. The court granted the motion on that same

date. Accordingly, at the time of the February 4, 2022 hearing, the trial court lacked

jurisdiction to rule on defendant’s untimely motion for new trial.

This assignment of error lacks merit.

Right to Counsel of Choice

Defendant argues that he was denied his right to counsel of choice because he

hired Martin Regan to represent him but he did not represent him at trial. The State

responds that defendant waived the issue by not objecting to his representation in a

timely manner. Specifically, defendant first raised this issue in his motion for new

trial, which was untimely. Nonetheless, the State asserts that this assignment of error

has no merit in that Mr. Regan could not represent defendant at trial because he was

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ineligible to practice law at the time; and that defendant had well-prepared and

highly competent counsel at trial, Mr. Tony Angelette from the law firm of Regan

Law, P.L.C. The State also argues that defendant did not terminate Mr. Angelette,

inform the court of his desire to seek other counsel, move to continue the case, or

object to proceeding to trial.

La. C.Cr.P. art. 841 provides that “An irregularity or error cannot be availed

of after verdict unless it was objected to at the time of occurrence.” To preserve the

right to seek appellate review of an alleged trial court error, the party alleging the

error must state an objection contemporaneously with the occurrence of the alleged

error, as well as the grounds for that objection. State v. Lyons, 13-564 (La. App. 5

Cir. 1/31/14), 134 So. 3d 36, 40, writ denied sub nom. State ex rel. Lyons v. State,

2014-0481 (La. 11/7/14), 152 So. 3d 170. The purpose behind the contemporaneous

objection rule is to put the trial judge on notice of an alleged irregularity so that he

may cure the problem and to prevent the defendant from gambling for a favorable

verdict and then resorting to appeal on errors that might easily have been corrected

by an objection. State v. Styles, 96-897 (La. App. 5 Cir. 3/25/97), 692 So. 2d 1222,

1228, writ denied, 97-1069 (La. 10/13/97), 703 So. 2d 609.

When issues are first asserted in an untimely motion for new trial filed by

appellate counsel, they are not timely urged, and the merits of the legal issues are

not properly before an appellate court for review. State v. Williams, 370 So.2d 516,

518 (La. 1979).

In addition, the Louisiana Supreme Court has consistently held that the right

to counsel of choice cannot be manipulated to obstruct the orderly procedure of the

courts and cannot be used to interfere with the fair administration of justice. State

v. Champion, 412 So.2d 1048, 1050 (La. 1982); State v. Johnson, 389 So.2d 1302,

1304 (La.1980); State v. Jones, 376 So.2d 125, 129 (La. 1979); State v. Lee, 364

So.2d 1024, 1028 (La. 1978). Defendant must exercise his right to counsel of his

22-KA-133 16

choice at a reasonable time, in a reasonable manner, and at an appropriate stage of

the proceedings. State v. Seiss, 428 So.2d 444, 447 (La. 1983).

The record does not reflect that defendant asserted any issue with his defense

counsel prior to trial, nor did he object to proceeding to trial with his counsel. The

record only shows that defendant first raised the issue of retained counsel in an

untimely motion for new trial filed on January 6, 2022, after his trial and his

sentencing. Thus, we find that defendant did not make a timely objection to his

counsel.

We therefore find that this assignment of error lacks merit.

Error Patent in Sentencing

We reviewed the record for errors patent pursuant to the mandates of La.

C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d (La. 1975); and State v. Weiland, 556

So.2d 175 (La. App. 5 Cir. 1990), and for the following reasons, we find an error in

the sentencing on counts four and five.

La. C.Cr.P. art. 879 requires the trial court to impose a determinate sentence.

If a sentence is indeterminate in violation of La. C.Cr.P. art. 879, it should be

remanded for the trial judge to clarify the sentence on resentencing. State v. Lai, 04-

1053 (La. App. 5 Cir. 4/26/05), 902 So.2d 550, 562, writ denied, 05-1681 (La.

2/3/06), 922 So.2d 1175. Generally, where there is a discrepancy between the

minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732,

734 (La. 1983).

When initially sentencing defendant, specifically with regard to whether his

sentences would run consecutively or concurrently on counts four for attempted

simple escape and count five for solicitation to commit second degree murder, the

trial court mistakenly referred to count four twice. The sentencing transcript indicates

that the trial court sentenced defendant as follows:

22-KA-133 17

The Court: On Count 1, for second degree murder, the Court shall sentence
you to life, without the benefit of probation, parole, or
suspension of sentence.

Count 2, the aggravated criminal damage to property, 15 years
of hard labor in the Department of Corrections.

For Count 3, the obstruction of justice, it’ll be 40 years at hard
labor in the Department of Corrections.

For Count 4, the simple escape, give it one year of hard labor at
the Department of Corrections

For Count 5, it’ll be 20 years at hard labor in the Department of
Corrections. I want the record to reflect that Counts 1, 2, 3,
and 4, will run consecutive to each other, and that on Count
4, I’ll run that concurrent. [Emphasis added.]

Based on the sentencing transcript, the trial court ordered defendant’s

sentence on count four to run both concurrently and consecutively with defendant’s

sentences as to counts one, two, and three, and did not specify whether defendant’s

sentence as to count five was to run concurrently or consecutively with his other

sentences. As a result, we find that defendant’s sentences on counts four and five

are indeterminate.

We also point out that on count four, the defendant was sentenced to one year

at hard labor for “simple escape,” but defendant was convicted of attempted simple

escape. While the sentence intended by the trial court was within the range

prescribed by La. R.S. 14:110 B(4) and La. R.S. 14:27 D(3), the court must sentence

defendant on the crime for which he was convicted, i.e., attempted simple escape.

La. R.S. 14:27 D(3) further provides that the term of imprisonment shall be in

the same manner as the crime attempted. In accordance with La. R.S. 14:110 B(4),

the term of imprisonment on count four “shall not run concurrently with any other

sentence.” To the extent that the trial court intended that defendant’s sentence on

count four would run concurrently with defendant’s sentences on his other counts,

such sentence would not be in accordance with La. R.S. 14:110 B(4).

22-KA-133 18

Considering the foregoing, we find that defendant’s sentences on counts four

and five are indeterminate. We must therefore vacate defendant’s sentences on

counts four and five and remand to the trial court for resentencing on these counts.

In assignments of error four and five, defendant asserts that the imposition of

consecutive sentences at hard labor without the benefit of parole, probation, or

suspension of sentence is unconstitutionally excessive and that the trial court erred

in denying his motion to reconsider sentence. Because defendant’s sentences on

counts four and five are vacated herein, and this case is remanded for resentencing,

we pretermit any discussion or review of defendant’s assignments of error pertaining

to his sentences.

With regard to the Uniform Sentencing Commitment Order, we point out that,

under part “D. Sentence Conditions,” neither “yes” or “no” is checked to determine

whether the sentence in this case “shall be concurrent with any or every sentence the

offender is now serving.” The lines immediately below indicate that the sentence is

concurrent with count four, and consecutive to counts one, two, three and five. This

inconsistency is moot in that we vacate defendant’s sentences on counts four and

five in this opinion,4 and consequently, a new uniform sentencing commitment order

will be completed. Thus, no corrective action is necessary.

DECREE

For the foregoing reasons, we affirm defendant’s convictions. We vacate

defendant’s sentences on counts four and five and remand for resentencing on these

counts consistent with this opinion.

CONVICTIONS AFFIRMED;
SENTENCES ON COUNTS FOUR AND
FIVE VACATED; REMANDED

4 It appears that these two lines are intended by the Dept. of Corrections to list sentences which
a defendant is already serving in D.O.C. custody.

22-KA-133 19

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
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
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
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
DECEMBER 22, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-133
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE) KEVIN V. BOSHEA (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
JENNIFER C. VOSS (APPELLEE)
DISTRICT ATTORNEY
JOSHUA K. VANDERHOOFT (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053