State of Louisiana v. Ja'shun Ja'marick Smith

Judgment rendered April 16, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 56,209-KA
No. 56,210-KA
No. 56,211-KA
No. 56,212-KA
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

Versus

JA’SHUN JA’MARICK SMITH Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court Nos. 397,671; 385,121; 385,251; 385,519

Honorable John D. Mosely, Jr., Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Paula Corley Marx

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

REBECCA A. EDWARDS
WILLIAM J. EDWARDS
COURTNEY N. RAY
Assistant District Attorneys

*****

Before PITMAN, STEPHENS, and ROBINSON, JJ.

STEPHENS, J.,

This criminal appeal arises out of the First Judicial District Court,

Parish of Caddo, State of Louisiana, the Honorable John Mosely, Jr., Judge,

presiding. On September 4, 2021, the defendant, Ja’Shun Ja’Marick Smith,

was involved in an altercation between two groups of juveniles that began

earlier in the day at the Tinseltown Theater in Shreveport, Louisiana, and

culminated in a rolling gun battle with over 50 shots fired from the parking

lot of the Circle K at the intersection of Youree Drive and Bert Kouns a few

blocks away from the movie theater. The bullets fired by the young men

involved struck the Willis Knighton Pierremont Medical Center and vehicles

stopped at the traffic light of that intersection, killing 13-year-old Kel’vonte

Daigre, a passenger in the back seat of a white Honda Accord, and injuring

several others.

Smith, who was 15 years old at the time of the shooting, was tried as

an adult and was convicted as charged of one count of second degree

murder, a violation of La. R.S. 14:30.1 (Count 1), eight counts of attempted

second degree murder, violations of La. R.S. 14:30.1 and La. R.S. 14:27

(Counts 2-9), and four counts of aggravated criminal damage to property,

violations of La. R.S. 14:55 (Counts 10-13). The trial court imposed a

sentence of life imprisonment without benefit of probation or suspension of

sentence, but with the benefit of parole on the second degree murder

conviction (Count 1); concurrent sentences of 30 years at hard labor without

benefit of probation or suspension of sentence, but with the benefit of parole

on the attempted second degree murder convictions (Counts 2-9), with the

concurrent sentences to be served consecutively to the life sentence imposed

on Count 1; and concurrent sentences of 15 years at hard labor on the

aggravated criminal damage to property convictions (Counts 10-13), with

these concurrent sentences to be served consecutively to the other sentences.

Smith has appealed, urging three assignments of error.

FACTS/PROCEDURAL HISTORY

The shooting from which the instant charges arose involved multiple

crime scenes, perpetrators, and victims. On September 4, 2021, at

approximately 10:25 p.m., Shreveport Police Department (“SPD”) patrol

officers responded to a call from Tinseltown Movie Theater at 8400

Millicent Way in Shreveport, Louisiana, regarding a shooting. Off-duty SPD

officers working security at Tinseltown had broken up an altercation earlier

that day inside the complex between a large crowd of juveniles who were

then asked to leave the premises. One of the officers, Sgt. Daniel Sawyer, is

the K-9 supervisor for SPD. As soon as he and another officer heard the

shots, which came from the northeast corner of the theater’s parking lot right

behind the Hampton Inn, they immediately headed out toward that area. The

officers observed two young males running from the gunfire. As they were

dealing with these initial shots fired, which included locating two victims,

one at the intersection of Millicent Way and John Hendricks Drive, and the

other in the lobby of the Hampton Inn,1 they heard more shots coming from

the area of Bert Kouns and Youree Drive.

As more SPD officers responded to the shootings that occurred at

Tinseltown, a call came in reporting multiple shooting victims at the

Longhorn Steakhouse on Youree Drive. Patrol officers found a white 2009

1
Both victims had non-life-threatening injuries and were transported to
Ochsner/LSU Health Center. Sgt. Sawyer recognized the victim in the hotel lobby as one
of the juveniles who had been told to leave Tinseltown earlier that day.

2

Honda Accord that had been reported stolen. In its back seat was an

unresponsive black male with gunshot wounds to his back. His injuries were

life-threatening, and he was taken to Ochsner/LSU Health Center. He was

pronounced dead on arrival. This victim was identified as Kel’vonte Daigre

(B/M, d.o.b. 12/18/07). Kentravious Kennedy (B/M, d.o.b. 2/11/06), who

had been driving the white Accord, was found by officers walking near the

Longhorn Steakhouse. He had non-life-threatening gunshot wounds to the

back and was transported to Ochsner/LSU Health Center.

While responding to the calls, Corporal Robert Cerami noticed a gray

Kia Optima heading westbound on West 70th Street towards Line Avenue.

The Kia Optima did not have its headlights on, and it was moving fast. Cpl.

Cerami got behind the Optima, turned on his lights and siren, and attempted

a traffic stop. Cpl. Cerami called for assistance, and a vehicle pursuit ensued

through the Cedar Grove neighborhood before the Kia Optima “wrecked

out” at 706 Damaka Drive. Four black males jumped out of the car and took

off running, three heading south and one going north.2 Cpl. Cerami

described the clothing of the occupants for assisting officers. Patrol officers

set up a perimeter, and with the help of SPD K-9 officers, including Sgt.

Sawyer and his K-9 partner, they managed to locate one of the suspects and

an AR pistol inside the perimeter.3 The suspect was identified as Ikerryunt’a

2
Cpl. Cerami’s dash cam footage was introduced into evidence and shown to the
jury.
3
SPD Sgt. Clinton Grigsby assisted in the search and found the AR pistol and a
black ski mask in the back of a Nissan truck parked at a residence at 718 Bringhurst
Street, which is just behind Damaka Drive in the Cedar Grove neighborhood. The
homeowner, Anthony Rogers, told Sgt. Grigsby that neither item belonged to him, and
that he had heard dogs barking earlier that evening. Mr. Rogers thought maybe the
suspects had jumped his fence. The next day, as he was getting ready to mow his yard,
L.D. George, who resides at 705 Bringhurst Street, found a gun (that he did not own)
laying in the yard by his lawnmower. Mr. George called the police as soon as he found
3

Stewart (B/M, d.o.b. 4/9/04). Stewart, who had been hiding in “thick

vegetation,” was taken to the hospital for treatment of a dog bite. He was

then taken to the Violent Crimes Unit office for a post-Miranda interview.

Detective Jeremy Blanchard was the on-call investigator in the

Homicide Unit of the SPD the night of the shooting. He initially responded

to the Damaka Drive location where the search for the suspects was ongoing.

He assisted with setting up the perimeter there, then went to the scene at

Tinseltown. He was briefed by Cpl. Presley at the theater and walked the

scene of the shooting there. Officers were looking for spent projectiles at

the time, but none were ever recovered.

Det. Blanchard then responded to a crime scene at the Circle K at the

corner of 7950 Youree Drive and Bert Kouns. At that location, officers

found multiple expended shell casings (7.62, .223, 5.56, and 9mm) in the

west entrance to the parking lot on the Bert Kouns side of the property.

They also found a black ski mask among the shell casings.

Det. Blanchard pulled and watched surveillance video footage from

the Circle K, which showed a gray Kia Optima enter the property at

approximately 10:22 p.m., circle the gas pumps, and park in the west

entrance of the lot facing Bert Kouns. At 10:24:19, all four of the vehicle’s

occupants exit the vehicle. The driver was wearing a white tank top with

what appeared to be blue jean shorts and white socks. At 10:24:24 p.m.,

three of the males are seen discharging firearms in the direction of the

intersection. There are muzzle flashes, something commonly observed when

a firearm is fired and projectiles are expelled from the barrel. All four males

the gun. The night before, Mr. George woke up when he heard “some commotion” when
the K-9 was outside, and he figured “those boys” threw the gun in his yard.
4

jump back into the vehicle, which then takes off westbound on Bert Kouns.

This was the gray Kia Optima spotted by Cpl. Cerami at West 70th and Line

Avenue. The footage also showed several vehicles being hit by the gunfire.4

The vehicles struck by gunfire were a blue Nissan Armada, a white

Honda Accord, a silver Toyota Sienna, and a white Jeep Renegade. Willis

Knighton Pierremont also received damage from the gunfire. As noted

above, the driver and passenger of the white Honda Accord were hit by shots

fired from the men in the Circle K parking lot. The driver died as a result of

his injuries, and the passenger was shot three times in the back. The driver

of the silver Toyota Sienna was also shot once in the right shoulder. The

drivers and passengers of the other vehicles were at risk from the gunfire, as

all vehicles were struck by bullets.

Corporal Christopher Collins is a crime scene investigator with SPD’s

Crime Scene Investigations (“CSI”) Unit. Cpl. Collins was called out to the

homicide scene at Youree and Regal Drives that evening around 11:30 p.m.

He was briefed by officers on the scene, then he photographed the scene and

collected evidence. Officer Matthew Dixon, also with the CSI Unit, took

photographs of the deceased. Ofc. Dixon then went to Damaka Drive where

he photographed and secured the gray Kia Optima. Cpl. Collins noted that

any photographs of or evidence collected from the white Honda Accord’s

interior were only done after the car was taken to a secure bay at the SPD

impound lot and search warrants had been obtained. The white Accord had

several projectile defects and what appeared to be a blood stain on its rear

4
Det. Blanchard also obtained video surveillance footage from the Take 5 Oil
Change across the street from the Circle K. This footage shows the Kia Optima and shots
being fired. It also shows the white Honda Accord in which the victim, Kel’vonte
Daigre, was a passenger.

5

driver’s side door. Inside the car, there was blood on the rear left side

floorboard, door frame, and that seat’s outer edge. No firearms were

recovered from the vehicle. An expended 9mm cartridge casing and

projectile fragments were recovered.5

The gray Kia Optima was also secured in an SPD bay, a warrant was

obtained, and then it was photographed and searched for evidence by Cpl.

Collins. The interior of the Optima had one projectile defect on its rear

driver’s side door, which according to Cpl. Collins was consistent with a

bullet having travelled from the vehicle’s interior to its exterior. Latent

fingerprints were taken, and the interior door handles, steering wheel,

gearshift, and a soda pop can found in the center console were swabbed for

DNA.

Found inside the Kia Optima were a .300 Blackout expended

cartridge, an expended 7.62 caliber cartridge casing, a black hoodie, an

Apple watch, a blue baseball cap, some slippers, a bank card, a wallet, and

some memorial pamphlets. The firearm turned in by Sgt. Grigsby (an AR

pistol) is a .556/.223 pistol rather than a rifle because it has no stock. The

other weapon recovered (the one turned in by Mr. Rogers) is a Romarm

Cugir pistol. At trial, both of these weapons were matched up to a bullet

jacket and fragments and/or cartridge cases found at the crime scenes.

On September 9, 2021, Cpl. Collins informed Det. Blanchard that a

print found on the exterior window of the rear driver’s side door of the Kia

Optima was determined to match Ja’Shun Smith’s fingerprint. A few weeks

5
Cpl. Collins also testified about photographs taken showing damage to and
evidence collected from the other vehicles that were shot up by the young males in the
Kia Optima. Likewise, there was testimony at trial from some of the terrified people in
those vehicles that night.

6

later, Cpl. Collins and Det. Blanchard were present for the search of a

residence associated with Smith. Although he tried to run during the search,

Smith was apprehended and placed under arrest. A 9mm handgun, two

phones,6 and two 7.62 mm magazines were found in Smith’s bedroom. No

weapon matching the magazines was found. Det. Blanchard found a black

BBG (“Blue Benji Gang”) hoodie in a closet. At trial, Det. Blanchard was

shown a photo taken by Cpl. Collins of the three memorial pamphlets found

in the Kia Optima. He stated that they were memorial pamphlets of

homicide victims who had been members of the BBG.

Katie Edwards was also at the home when the search warrant was

executed. Det. Blanchard spoke with her that day and again at the SPD

Violent Crimes Unit office. Katie told Det. Blanchard that she saw Smith at

Tinseltown on the night of the shooting. Her description of his clothing that

night matched the clothing seen in Cpl. Cerami’s MVS video of the driver of

the Kia Optima. Katie gave Det. Blanchard permission to download her

phone at their second interview. Text messages between Katie and Ja’Shun

from around 10:20 p.m. on September 4, 2021, the night of the shooting

were:

Katie: That ya’ll?

Ja’Shun: Nah.

Katie: Stop lying.

Ja’Shun: The second was,

Katie: I know.

Ja’Shun: Okay.

One of the phones belonged to Ja’Shun Smith, and the other belonged to Katie
6

Edwards.

7

Katie: Stupid as fuck, Bruh.

Katie had previously been a passenger in the gray Kia Optima when Smith

was driving it, and she had seen Smith with a Glock and an AK in the past.

Kentravious Kennedy testified that he was a close friend/relative of

the victim, Kel’vonte Daigre. Kennedy was driving the white Honda Accord

on September 4, 2021, and was shot in the back in the area of his left

shoulder. Kel’vonte was in the back seat directly behind him. A person “he

does not know” was on the other side of Kel’vonte and a guy called Marquis

was in the front passenger seat.

Kennedy drove through the Tinseltown parking lot that night. When

he got onto Bert Kouns, he stopped at the intersection and was reading a text

message. As Kennedy looked down, “I seen a person in front of me, back

window got busted out, glass shatter(ed).” That’s when Kennedy ducked for

cover and got shot. He didn’t know where the shots came from and didn’t

know why it happened. Kennedy stated that he had not shot at anyone that

night. After Kennedy was hit, he drove to the Longhorn Steakhouse, ran

inside, and asked for medical assistance. He saw Kel’vonte open his door

but didn’t see what the other two occupants of the car did or where they

went.

Kennedy stated that he was familiar with the Three Babies Gang, and

that his cousin Kel’vonte “used to hang with some people out of there,” but

“he wouldn’t be around him that much.” Kennedy denied hanging out with

the Three Babies Gang and stated that he was not familiar with the Blue

Benji Gang, Ja’Shun Smith, Christopher Davenport, Ikerryunt’a Stewart, or

Rodney Stewart.

8

On October 1, 2021, a bill of information was filed in district court

No. 385,251 (56,211-KA) charging Smith with eight counts of attempted

first degree murder, violations of La. R.S. 14:27 and La. R.S. 14:30. On that

same date, a motion to divest the juvenile court of jurisdiction was filed. On

October 4, 2021, in No. 385,519 (56,212-KA), the second degree murder

case, counsel was appointed to represent Smith, and his bond was set at one

million dollars.

On December 15, 2021, in No. 385,121 (56,210-KA), an indictment

was filed charging Ikerryunt’a Vernell Stewart, Christopher Michael

Davenport, and the defendant with one count of second degree murder, eight

counts of attempted second degree murder, and four counts of aggravated

criminal damage to property. On that same date, the State made a motion to

increase Smith’s bond to $50,000 on each count of aggravated criminal

damage to property, and the filings from docket Nos. 385,251 and 385,519

were incorporated into No. 385,121.

On January 4, 2022, Smith, with counsel, appeared at arraignment and

pled not guilty to the charges. On September 20, 2023, all of the minutes

and filings of the above three docket numbers were incorporated into Docket

No. 397,671 (56,209-KA). Also on September 20, 2023, an amended

indictment was filed charging only Smith with the aforementioned 13

counts. The defendant, through counsel, pled not guilty at an arraignment

held that same date.

On October 6, 2023, the State filed a 404(B) notice as well as

supplementary responses to discovery. On October 12, 2023, the defense

filed two motions in limine: one to exclude untimely disclosed evidence filed

and one to restrict the use of prejudicial terminology. The State filed its
9

response to the motions on October 13, 2023, and on October 16, 2023, the

trial court heard and denied both motions. The State announced it was ready

for trial, and the defense took writs to the Second Circuit seeking review of

the trial court’s denial of its motions in limine. The trial court did not stay

the trial, and jury selection began. On October 18, 2023, the Second Circuit

denied the defendant’s writ application, and the jury was empaneled. On

October 25, 2023, the jury rendered its verdict, finding the defendant guilty

as charged of all counts. Smith filed motions for post-verdict judgment of

acquittal and new trial on November 27, 2023. On November 28, 2023,

those motions were considered and denied, and Smith was sentenced. On

January 8, 2024, Smith filed a motion to reconsider sentence, which was

denied. His motion for appeal was filed on January 30, 2024.

DISCUSSION

Lack of Subject Matter Jurisdiction

Arguments of the Parties

In his first assignment of error, Smith contends that the district court

had no basis for jurisdiction over his case as to the charges of aggravated

criminal damage to property, since that offense is not one of the enumerated

offenses set forth in La. Ch. C. art. 305(2). Appellate counsel urges that the

juvenile court was not divested of its jurisdiction over Smith simply by the

State’s filing against him in district court of the indictment on second degree

murder and attempted first degree (later amended to attempted second

degree) murder charges.

Smith was 15 years old on September 4, 2021, when he was alleged to

have committed the four counts of aggravated criminal damage to property.

Adjudication of Smith for those offenses is subject to the exclusive
10

jurisdiction of the juvenile court. La. Ch. C. art. 305. If an offense is not an

enumerated offense set forth in subparagraph (2) of La. Ch. C. art. 305, the

filing of an indictment alleging such noncovered offenses does not divest the

juvenile court of its jurisdiction over a juvenile alleged to have committed

those offenses. Therefore, the district court convictions of Smith as to the

four counts of aggravated criminal damage to property, Counts 10-13,

cannot stand. See, State v. Newton, 12-510 (La. App. 3 Cir. 2/13/13), 129

So. 3d 11, writ denied, 13-0595 (La. 10/11/13), 123 So. 3d 1214.

Smith urges this Court to vacate these four convictions and remand

the matter to the juvenile court for further proceedings. The Louisiana

Supreme Court in State in the Interest of D.T., 19-01445 (La. 4/3/20), 340

So. 3d 745, observed that La. Const. art. V, § 19 constitutes “an exhaustive

list of offenses which may be excepted from the juvenile court’s

jurisdiction.” Id., 19-01445, p. 11, 340 So. 3d at 753. Both second degree

murder and attempted second degree murder are among the offenses which

may be excepted from the juvenile court’s jurisdiction. The State

acknowledges, however, that aggravated criminal damage to property is not,

but maintains that the district court properly exercised jurisdiction as to that

charge nonetheless.

According to the State, the juvenile court was automatically divested

of jurisdiction over the charge of second degree murder upon the filing of

the indictment on December 15, 2021. (No. 56,210-KA, p. 4). Asserting

initial charges of eight counts of attempted first degree murder, the State

filed a bill of information and a motion to divest after the juvenile court

found probable cause for the charges. (No. 56,211-KA, pp. 2-8). The State

then indicted Smith for attempted second degree murder (Counts 2-9)
11

instead of attempted first degree murder as initially billed. (No. 56,210-KA,

p. 4).

The State argues that, upon properly divesting the juvenile court of its

jurisdiction and transferring jurisdiction to the district court pursuant to La.

Ch. C. art. 305(A) and (B) as to the count of second degree murder and eight

counts of attempted second degree murder, the district court properly

exercised jurisdiction over the four counts of aggravated criminal damage to

property. The State contends that the aggravated criminal damage to

property charges were part of the same event that resulted in the second

degree murder and attempted second degree murder charges and, as such,

were properly tried with them in spite of the fact that the offense of

aggravated criminal damage to property is not one of the enumerated

offenses under either La. Const. art. V, § 19 or La. Ch. C. art. 305.

The State points out that it would be a waste of judicial resources and

time, taxpayer money, and the State’s limited resources to conduct the same

trial in two courts to ensure that the defendant be held accountable for his

actions. The State notes that there is jurisprudence in support of the

defendant’s position. See, State v. Myles, 23-0585 (La. App. 4 Cir. 2/5/24),

384 So. 3d 938, 940-41,7 writ denied, 24-00291 (La. 4/23/24), 383 So. 3d

603, writ denied sub nom. State v. Smith, 24-00258 (La. 4/23/24), 383 So. 3d

609.

Analysis

In State v. Myles, supra, in July 2022, 17-year-old Kendall Myles and

15-year-old Kayla Smith were arrested and booked into the Juvenile Justice

7
This case was a consolidated case involving two separate juvenile matters.
12

Intervention Center in Orleans Parish. Initially Myles was charged by

petition in juvenile court. While the petition was pending, the State filed the

bill of indictment in Orleans Parish Criminal District Court on September

14, 2022. Id., 23-0585, 384 So. 3d at 940-41. Myles’ charges included La.

R.S. 14:26, La. R.S. 14:64-conspiracy to commit armed robbery with a

firearm; La. R.S. 14:64.3(A)-armed robbery with the use of a firearm; La.

R.S. 14:27, La. R.S. 14:30.1-attempted second degree murder; La. R.S.

14:94(F)-discharging a firearm during a crime of violence; and La. R.S.

14:108.1(C)-aggravated flight from an officer. Myles was charged as an

adult pursuant to La. Ch. C. art. 305(B).8 Id., 23-0585, pp. 1-2, 384 So. 3d at

941.

On July 19, 2022, the State filed a petition in juvenile court charging

Smith with aggravated second degree battery, armed robbery, unauthorized

use of a motor vehicle, and resisting an officer. She entered a plea of not

guilty in juvenile court. While that case was pending, Smith was charged in

the same indictment with Myles for violations of La. R.S. 14:26, La. R.S.

14:64-conspiracy to commit armed robbery with a firearm; and La. R.S.

14:64.3(A)-armed robbery with the use of a firearm. Id., 23-0585, p. 2, 384

So. 3d at 941.

In response, both defendants moved to quash the indictment on two

grounds: it was untimely because more than 60 days had passed before it

was handed down; and none of the crimes alleged therein were among those

8
La. Ch. C. art. 305(B)(1)(a) provides that the district attorney shall have the
discretion to file a petition alleging any of the offenses listed in Subparagraph (2) of this
Paragraph in the juvenile court or, alternatively, to obtain an indictment or file a bill of
information. If the child is being held in detention, the district attorney shall file the
indictment, bill of information, or petition in the appropriate court within sixty calendar
days after the child’s arrest unless the child waives this right.

13

set forth in La. Ch. C. art. 305(B)(2). Id. On February 2, 2023, the trial

court quashed the bill of indictment against both Smith and Myles in its

entirety. Id., 23-0585, p. 3, 384 So. 3d at 941.

The Fourth Circuit found that the trial court erred in quashing the bill

of indictment against both Myles and Smith to the extent that both were

charged with offenses enumerated in Subparagraph (2) of La. Ch. C. art.

305(B)—Myles, armed robbery with a firearm and attempted second degree

murder; and Smith, armed robbery with a firearm. Upon their indictment

with these charges, the juvenile court was properly divested of jurisdiction.

Smith v. Myles, 23-0585, pp. 8-9, 384 So. 3d at 944. The Fourth Circuit then

noted that the remaining charges, conspiracy to commit armed robbery with

a firearm, discharging a firearm during a crime of violence, and aggravated

flight from an officer, were not enumerated in Subparagraph (2) of La. Ch.

C. art. 305(B), and, as such, were properly quashed by the trial court. Id.,

23-0585, p. 9, 384 So. 3d at 945.

In the instant case, this Court finds, as did the Fourth Circuit in State

v. Myles, supra, that the district court had jurisdiction only over the crimes

specifically set forth in La. Ch. C. art. 305(B), i.e., second degree murder

and attempted second degree murder. The offense of aggravated criminal

damage to property is not an enumerated offense under La. Ch. C. art.

305(B) or La. Const. art. V, § 19. Therefore, the district court lacked the

jurisdiction to try the defendant, Ja’Shun Smith, on four counts of

aggravated criminal damage to property. These convictions and sentences

will be vacated for lack of jurisdiction over Smith as to these charges.9

9
However, regarding the convictions having been declared null because of lack of
jurisdiction, double jeopardy does not attach. La. C. Cr. P. art. 595(1) provides that a
14

Introduction of Evidence of Gang Affiliation/Involvement

Arguments of the Parties

In his second assignment of error, Smith argues that the district court

deprived him of his right to the presumption of innocence and the right to a

fair trial and erred by allowing the introduction of evidence of involvement

with a gang or group to show motive. This evidence was not relevant, but if

it was, it was more prejudicial than probative.

Prior to trial, the State filed a 404(B) notice of its intent to introduce

evidence that Smith was affiliated with the Step or Die or Blue Benji Gang,

and that some of the victims were associated with Three Babies Gang, a

rival gang. The defense filed a motion in limine seeking to restrict the use of

prejudicial terminology, including gang references (and the use of the word

“defendant” by the State when referring to Smith), which was denied by the

trial court. A writ was filed and denied by this Court “on the showing

made.”

According to Smith, a review of the record shows that the trial court

erred in denying his motion in limine. Gang references introduced into

evidence in his trial implied guilt by association on his part. Smith urges

that the trial court’s admission of evidence of gang affiliation and that the

shooting was gang-related was not harmless error. The evidence admitted in

this case had little probative value and was tenuous. Such evidence

included: clothing with gang lettering “BBG” found at Smith’s

house; testimony by Annalies Smith that the defendant was affiliated with

BBG (the Blue Benji Gang) in September 2021; a photograph of memorial

person shall not be considered as having been in jeopardy in a trial in which the court
lacked jurisdiction. State v. Mock, 18-530 (La. App. 3 Cir. 2/6/19), 265 So. 3d 1029.

15

pamphlets of homicide victims who were members of the BBG found inside

the Kia Optima involved in the shooting; and testimony from Kentravious

Kennedy, the driver of the white Honda Accord who was shot on September

4, 2021, that: he was familiar with but did not hang out with the Three

Babies Gang; he was not familiar with the Blue Benji Gang; he did not know

the defendant or the other suspects; and the victim, Kel’vonte Daigre, “used

to hang with some people out of there,” meaning the Three Babies Gang,

“but would not be around them that much.”

Smith urges that the prejudicial effect of painting him as a gang

member out for revenge outweighed any probative value of the evidence

introduced at trial, as the evidence introduced by the State failed to show

that a gang rivalry led to the shooting on September 4, 2021.

The State, on the other hand, asserts that the trial court did not err in

admitting evidence of Smith’s gang involvement at trial. The State points

out that at trial, defense counsel did not make contemporaneous objections

to any of the complained of references at all. Furthermore, the defense

motion in limine alleged simply that use of the terms “gang” or “gang”

member or reference to the name of a “gang” would be misleading and

would be highly prejudicial and contrary to La. C.E. art. 403. Thus, on

appeal, this Court should consider the defendant’s art. 404(B) objections

waived.

According to the State, this evidence of Smith’s gang involvement,

discovered during the investigation, was relevant to establish motive and

intent. It explained why the 15-year-old defendant and his friends would

open fire at a busy intersection that Saturday night; more specifically, it

provided the reason why they were targeting the white vehicle in which
16

Daigre, who was in a rival gang, and Kennedy, were riding. The State also

suggests that this evidence was relevant in proving that Smith committed the

shooting with the required specific intent to kill. However, should this Court

find that the admission of this evidence was in error, then it was harmless in

light of the overwhelming evidence of the defendant’s guilt.

Analysis

La. C. Cr. P. art. 841(A) provides in part that an irregularity or error

cannot be availed of after verdict unless it was objected to at the time of

occurrence. However, subsection (B) of art. 841 provides that the

requirements of an objection shall not apply to the court’s ruling on any

written motion.

We reviewed the motion in limine as well as the trial transcript for any

objections to the allegedly erroneously admitted evidence by defense

counsel.10 There were no objections made, much less any urging violations

of La. C.E. art. 404(B).11 The sole basis for Smith’s motion in limine as to

the admission of this evidence was La. C.E. art. 403. Specifically, defense

counsel argued, “[t]o allow the use of the term… ‘gang’ or ‘gang’ member or

the reference of the name of a ‘gang’ would be misleading, would imply to

the jury that the accused is guilty, and necessarily, must defend himself in

the proceedings. Such implications are highly prejudicial and contrary to

Louisiana Code of Evidence Art. 403.” Most importantly, the trial court’s

10
See, R. p. 418 (during Cpl. Collins’ testimony-introduction of photograph of
B.B.G. hoodie found during search of home in Bossier City); R. pp. 734-35 (during Det.
Blanchard’s testimony-introduction of photograph of memorial pamphlets found in gray
Kia Optima;); R. p. 671-72 (Kennedy’s testimony); R. pp. 694-95 (Annalies Smith’s
testimony).
11
Arguably, this is because Smith’s motion in limine was filed in response to the
State’s 404(B) Notice of its intent to introduce at trial evidence of both the defendant’s
and the victim’s gang affiliations.
17

denial of the defense motion was based solely on La. C.E. art. 403. In light

of the above, this Court will review Smith’s assignment of error, but we will

not consider the defendant’s art. 404(B) argument.

La. C.E. art. 403 provides that although relevant, evidence may be

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

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

considerations of undue delay, or waste of time. A trial court’s ruling on the

admissibility of evidence is reviewed for an abuse of discretion. State v.

Wright, 11-0141 (La. 12/6/11), 79 So. 3d 309; State v. Cosey, 97-2020 (La.

11/28/00), 779 So. 2d 675, cert. denied, 533 U.S. 907, 121 S. Ct. 2252, 150

L. Ed. 2d 239 (2001). As the Third Circuit noted in State v. Hamilton, 99-

523, p. 10 (La. App. 3 Cir. 11/3/99), 747 So. 2d 164, 170:

Relevant evidence of other crimes or misconduct of an accused
will always be inculpatory and thus prejudicial. It is only
unduly prejudicial evidence of other crimes which inflames the
jury’s emotions or otherwise causes them to convict the
Defendant for reasons other than his actual guilt which should
be excluded. Inculpatory evidence is probative of an
incriminating fact, circumstance, or involvement which tends to
either establish guilt or from which guilt may be inferred.
Inculpatory evidence, by its nature, is prejudicial to a defendant
accused of a crime. Unfairly prejudicial evidence makes a
conviction more likely because it inflames the emotions of the
jury or affects the jury’s attitude toward the defendant wholly
apart from its judgment as to his guilt or innocence of the crime
charged.

Courts have held that evidence of gang involvement or affiliation was

properly admitted to show motive and intent to commit murder. See, State v.

Sumlin, 44,805 (La. App. 2 Cir. 10/28/09), 25 So. 3d 931, writ denied, 09-

2738 (La. 11/19/10), 49 So. 3d 400; State v. Brown, 42,054 (La. App. 2 Cir.

8/29/07), 965 So. 2d 580, writ denied, 07-1939 (La. 2/15/08), 976 So. 2d

174; State v. Gray, 14-1213 (La. App. 4 Cir. 11/25/15), 179 So. 3d 936, writ

18

denied, 16-0006 (La. 1/13/17), 215 So. 3d 241; and, State v. Weatherspoon,

06-539 (La. App. 5 Cir. 12/12/06), 948 So. 2d 215, writ denied, 07-0462 (La.

10/12/07), 965 So. 2d 398. As in these cases, urges the State, evidence of

Smith’s gang affiliation was properly admitted. We agree.

At the 404(B)/motion in limine hearing, the State asserted its intent to

elicit testimony that the shooting of the 13-year-old Kel’vonte Daigre was

over “gang issues” and the motive of the defendant. The complained of

evidence was not direct proof of gang affiliation on the part of Smith; there

was no testimony that he was in fact a member of the BBG; however, the

BBG sweatshirt and memorial pamphlets found in the Kia Optima, together

with the testimony of Kennedy and Ms. Smith, were circumstantial evidence

from which the jury could have made such an inference. Furthermore, such

a determination is reasonable in light of the totality of the evidence

introduced at trial, since the facts unequivocally established that the shooting

of Daigre came after the fight between two groups of juveniles at Tinseltown

and a subsequent shooting in the corner of the theater parking lot in which

two other young men sustained serious injuries. The trial court did not

abuse its vast discretion in finding that the above evidence was admissible.

This assignment of error is without merit.

Imposition of Consecutive Sentences

Arguments of the Parties

In his third and final assignment of error, Smith urges that the trial

court erred in failing to set forth sufficient justification for imposing

consecutive sentences in this case, which are excessive by constitutional

standards and must be reversed.

19

According to Smith, the trial court did not articulate its reasons or

justification for the imposition of consecutive sentences. Smith was 15

years old at the time of the offenses of conviction and should not be treated

as a grave risk to community safety. According to appellate counsel,

consecutive sentences totaling life in prison, plus 30 years and 15 years,

subject Smith to excessive punishment violative of the Eighth Amendment

to the U.S. Constitution and La. Constitution art. I, § 20.

The State argues that the record provides ample support for the

sentences imposed by the trial court in this case. La. C. Cr. P. art. 883

provides when a defendant is convicted of two or more offenses based on the

same act or transaction, or constituting parts of a common scheme or plan,

the terms of imprisonment shall be served concurrently unless the court

expressly directs that some or all be served consecutively. The State notes

that art. 883 is clear that concurrent sentences are not required, and that the

determination of whether to impose concurrent sentences is within the

discretion of the trial court.

The State contends that even though imposition of consecutive

sentences requires justification from the evidence or the record, the trial

court’s failure to set forth specific reasons for imposing consecutive

sentences does not require remand where the record provides an adequate

factual basis to support consecutive sentences. Prior to imposing sentence in

this case, the trial court stated that it considered the facts and evidence

produced at trial, the seriousness of the offenses, the number of victims and

incidents, the damage caused and life endangered, and the sentencing

articles, including La. C. Cr. P. arts. 893 and 894.1. Additionally, the court

considered that the defendant used a dangerous weapon and presented a risk
20

of loss of life or great bodily harm to more than one person, and that he was

15 years old at the time of the offenses and expressed no remorse.

Analysis

When two or more convictions arise from the same act or transaction,

or constitute part of a common scheme or plan, the terms of imprisonment

shall be served concurrently, unless the court expressly directs that some or

all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences are

not mandatory; the trial court has the discretion to run the sentences

consecutively. Id.; State v. Anderson, 55,550 (La. App. 2 Cir. 4/10/24), 383

So. 3d 1081, writ denied, 24-00779 (La. 10/23/24), 395 So. 3d 249, cert.

denied, ___ U.S. ___, 2025 WL 951183 (2025); State v. Minnieweather,

52,124 (La. App. 2 Cir. 6/27/18), 251 So. 3d 583.

Since Smith only contests the consecutive nature of his sentences, and

it was within the trial court’s discretion to order the sentences to run

consecutively rather than concurrently, the focus of our analysis is whether

the trial court stated the factors considered and its reasons for the

consecutive terms. La. C. Cr. P. art. 883; State v. Anderson, supra; State v.

Passaniti, 49,075 (La. App. 2 Cir. 6/27/14), 144 So. 3d 1220, writ denied,

14-1612 (La. 3/6/15), 161 So. 3d 14; State v. Smith, 46,343 (La. App. 2 Cir.

6/22/11), 71 So. 3d 485, writ denied, 11-1646 (La. 1/13/12), 77 So. 3d 950.

We find that the record provides an adequate factual basis for the trial

court’s determination that Smith’s sentences be served consecutively. The

defendant’s actions were brazen and committed with no regard for the

welfare and safety of people in the vicinity around him. Smith made a

conscious decision to open fire at a major intersection that Saturday night,

which we note was during the busy Labor Day weekend. There was no
21

justification for the shooting other than gang-related retaliation or a

continuation of the dispute that began earlier at Tinseltown. Fifty expended

casings were collected from the Circle K parking lot. Two males in the

targeted vehicle were hit—Daigre was killed, and Kennedy was injured.

Kaitlyn Harper was struck by a bullet while in a vehicle with her parents at

the intersection where the shooting took place. It is sheer luck that no one

else was killed or seriously injured. We find that the consecutive sentences

imposed by the trial court are not constitutionally excessive as they are not

grossly disproportionate to the severity of the offenses and do not shock the

sense of justice. This assignment of error has no merit.

CONCLUSION

For the reasons set forth above, the convictions and sentences of the

defendant, Ja’Shun Ja’ Marick Smith, for aggravated criminal damage to

property are vacated based upon our determination that the district court

lacked jurisdiction over the defendant as to those charges. The matter is

remanded to the trial court for further proceedings consistent with this

proceeding. The convictions and sentences of the defendant, Ja’Shun

Ja’Marick Smith, for second degree murder and attempted second degree

murder are hereby affirmed.

CONVICTIONS AND SENTENCES FOR COUNTS 10-13
(AGGRAVATED CRIMINAL DAMAGE TO PROPERTY) VACATED;
REMANDED.
CONVICTIONS AND SENTENCES FOR COUNT 1 (SECOND
DEGREE MURDER) & COUNTS 2-9 (ATTEMPTED SECOND
DEGREE MURDER) AFFIRMED.

22