State of Louisiana v. Kearney Alsandor

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 07-623

STATE OF LOUISIANA

VERSUS

KEARNEY ALSANDOR

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 05-K-2588-C
HONORABLE ALONZO HARRIS, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and J. David Painter,
Judges.

AFFIRMED.

Earl B. Taylor
District Attorney
27th Judicial District Court
P. O. Drawer 1968
Opelousas, LA 70571-1968
(337) 948-3041
Counsel for Appellee:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 2775
Monroe, LA 71207-2775
(318) 387-6124
Counsel for Defendant:
Kearney Alsandor

Kearney Alsandor
Hickory 3
Louisiana State Penitentiary
Angola, LA 70712
In Proper Person

SAUNDERS, Judge.

On November 29, 2005, Defendant, Kearney Alsandor, was charged in a bill

of indictment with second degree murder, in violation of La.R.S. 14:30.1. Defendant

entered a plea of not guilty on February 17, 2006. A jury was selected on March 7,

2007, and trial began on March 21, 2007. The jury returned a verdict of guilty as

charged on March 22, 2007. Defendant waived all legal delays and was sentenced

to life imprisonment at hard labor, to be served without benefit of probation, parole,

or suspension of sentence. Following sentencing, an oral motion for appeal was made

and granted. A “Notice of Appeal, Request for Transcript and Request for the

Appointment of the Louisiana Appellate Project to Handle the Appeal” was filed on

March 29, 2007.

Defendant asserts one assignment of error in brief filed by counsel. Therein,

Defendant contends the evidence presented at trial was not sufficient to convict him

of the murder of Robert Rumback. We find that this assignment of error lacks merit.

In his pro se brief, Defendant asserts six assignments of error, which contain the

following claims:

1. The prosecution knowingly used false testimony to obtain a
tainted conviction and defense counsel was ineffective in failing to
impeach such false testimony.

2. During jury instruction, the prosecution misstated the law,
purposely misleading the jury.

3. The prosecution’s use of peremptory strikes against African-
American prospective jurors and prospective jurors who wanted proof
of Defendant’s guilt was improper. The trial court erred in denying the
motion for mistrial regarding prospective juror Buckner. Defense
counsel was ineffective during jury selection. The State misstated the
law during jury selection; thus, misleading the jury.

4. Defendant asserts a Batson challenge. The transcript is
incomplete. The trial court erred in denying Defendant’s peremptory
challenges. Defense counsel was ineffective.

5. Defendant was not timely arraigned and trial was not timely
conducted.

6. At the time of the arrest, police officers had no arrest warrant
and no indictment papers to show why Defendant was being held.

All claims regarding ineffective assistance of counsel should be relegated to

post-conviction relief. Of the remaining claims, several were not properly raised by

Defendant and, thus, have not been considered. The remaining assignments raised by

Defendant lack merit.

FACTS:

Defendant was convicted of second degree murder for killing Robert Rumback

in May of 2005.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this

court for errors patent on the face of the record. After reviewing the record, we find

that there are no errors patent.

ASSIGNMENT OF ERROR:

Defendant contends the evidence presented at trial was not sufficient to convict

him of the murder of Robert Rumback. Defendant argues that the State did not prove,

either through direct or circumstantial evidence, that he delivered a fatal blow.

Further, even if the fight between Robert and Defendant resulted in a fatal blow,

Defendant contends the State did not prove that he had the specific intent to kill.

Moreover, Defendant claims he acted in self-defense when he struggled with Robert.

Second degree murder is the killing of a human being when the
offender has specific intent to kill or inflict great bodily harm. La.R.S.
14:30.1(A)(1).

In evaluating the sufficiency of the evidence to
support a conviction, a reviewing court must determine

2

whether, viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have
found proof beyond a reasonable doubt of each of the
essential elements of the crime charged. Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979); State v. Captville, 448 So.2d 676, 678 (La.1984).
Additionally, where circumstantial evidence forms the
basis of the conviction, the evidence must exclude every
reasonable hypothesis of innocence, “assuming every fact
to be proved that the evidence tends to prove.” La. R.S.
15:438; see State v. Neal, 2000-0674[,] p. 9 (La.6/29/01),
796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct.
1323, 152 L.Ed.2d 231 (2002). The statutory test of La.
R.S. 15:438 “works with the Jackson constitutional
sufficiency test to evaluate whether all evidence, direct and
circumstantial, is sufficient to prove guilt beyond a
reasonable doubt to a rational jury.” Neal, 2000-0674[,] p.
9, 796 So.2d at 657.

State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170.

Louisiana courts have held that a showing that a Defendant
inflicted multiple cut, slash, or stab wounds on a victim is sufficient to
support a finding that the Defendant intended to commit second degree
murder. State v. Pagan, 04-1478 (La.App. 5 Cir. 5/31/05), 905 So.2d
435, writ denied, 05-2003 (La.2/17/06), 924 So.2d 1013; State v.
Mackens, 35,350 (La.App. 2 Cir. 12/28/01), 803 So.2d 454, writ denied,
02-413 (La.1/24/03), 836 So.2d 37; State v. Bates, 95-1513 (La.App. 1
Cir. 11/8/96), 683 So.2d 1370; State v. Segura, 464 So.2d 1116
(La.App. 3 Cir.), writ denied, 468 So.2d 1203 (La.1985). Additionally,
when a Defendant flees or attempts to avoid apprehension, the trier of
fact may infer a guilty conscience. State v. Cazenave, 00-183, 00-184
(La.App. 5 Cir. 10/31/00), 772 So.2d 854, writ denied, 00-3297
(La.10/26/01), 799 So.2d 1151 (citing State v. Fuller, 418 So.2d 591,
593 (La.1982)).

State v. Richards, 06-1553, pp. 14-15 (La.App. 3 Cir. 5/2/07), 956 So.2d 160, 169-70.

Homicide is justifiable in some instances: in cases of self defense;
if necessary to prevent a violent or forcible felony involving danger to
life or great bodily harm; in situations where the offender reasonably
believes the victim is likely to use unlawful force against a person
present in a dwelling, business, or motor vehicle; and when the offender
is lawfully inside a dwelling, business, or motor vehicle and the offender
reasonably believes that deadly force is necessary to either repel an
intruder or force the intruder to leave the premises. La.R.S. 14:20.
“When a Defendant claims self-defense in a homicide case, the State
bears the burden of establishing beyond a reasonable doubt that the

3

Defendant did not act in self-defense.” State v. Loston, 03-977, p. 9
(La.App. 1 Cir. 2/23/04), 874 So.2d 197, 204, writ denied, 04-792
(La.9/24/04), 882 So.2d 1167.

In examining a claim of self-defense, it is necessary to consider:
(1) whether the Defendant had a reasonable belief that he was in
immediate danger of death or great bodily harm; (2) whether, under
circumstances such as the possibility of escape, killing was necessary to
prevent that death or great bodily harm; and (3) whether the Defendant
was the aggressor in the conflict. State v. Jenkins, 98-1603 (La.App. 4
Cir. 12/29/99), 750 So.2d 366, writ denied, 00-556 (La.11/13/00), 773
So.2d 157.

Id. at 170-71.

Paul Rumback, along with police, discovered his brother Robert’s body in the

closet of Robert’s home on May 26, 2005. Robert had been wrapped in a blanket,

which had been duct taped and bound securely with an extension cord.

On the same date, Dr. Joel Carney, who was accepted as an expert in the field

of pathology with a subspecialty in forensic pathology, performed an autopsy on

Robert. Dr. Carney testified that Robert received nine lacerations to the scalp. He

was not able to determine if any of the nine blows caused trauma to the brain because

the brain showed moderately advanced decompositional changes. However, in his

autopsy report, Dr. Carney stated that all of the scalp wounds collectively could be

considered a fatal injury due to bleeding.

Dr. Carney testified that Robert was also stabbed in the midline at the back of

the neck, in the right upper back, and the right flank. The stab wounds to the back

and right flank did not penetrate any body cavity and did not produce any damage to

the internal organs; thus, they were considered superficial stab wounds and were not

considered life threatening.1 The stab wound to the back of the neck passed through

1
The wound to the back was a depth of approximately one inch and the wound
to the flank was approximately one and a half inches in depth.

4

the atlanto-occipital membrane into the cranial vault. The brain had liquified;

therefore, Dr. Carney was not able to document damage to the brain. Dr. Carney was

then asked, “If it did enter the brain would that have been a fatal wound.” Dr. Carney

answered affirmatively. Dr. Carney testified that the area at issue was known as the

medulla oblongata, which controls respiration and heart rate, and any injury to that

area, even a minute injury, was essentially fatal. Dr. Carney testified that Robert died

from a combination of blunt force trauma to include multiple lacerations to the scalp

and three stab wounds.

Both Defendant and Adeline Fruge were present when Robert was killed, and

both testified at trial.2 Fruge indicated Defendant hit Robert several times and

Defendant testified that he hit Robert several times during an altercation, but Fruge

stabbed Robert. Their version of the events that occurred in May of 2005 follows.

Fruge testified that she accompanied Defendant to Robert’s home on a Sunday

in May of 2005. While in Robert’s bedroom, Defendant asked Robert for twenty

dollars he owed him, and Robert indicated he did not have the money because he had

not gotten paid. Robert then answered a knock at his door and told the person to

come back later because he had company. Robert reentered the bedroom and sat on

the bed. Defendant then asked Robert, “did you freak my baby last night.” Robert

did not answer, and Fruge told Defendant it was none of his business. Fruge testified

that she eventually told Defendant she and Robert did not have sexual intercourse, but

that Robert performed oral sex on her. Fruge testified Defendant became furious.

Defendant then stated to Robert that he had been told three times that if he ever

2
Fruge testified she had previously dated Defendant for three to four years, but
the two had not been together for approximately eleven months prior to the offense
at issue. The two separated because she had been incarcerated for simple burglary.

5

touched Fruge, Defendant would kill him. Defendant told Robert, “today is the day

you are going to die.” Robert put his head down, and Defendant got a rock out of a

bag he had brought with him and hit Robert in the middle of the head with it. Robert

fell to his hands and knees. Defendant then hit Robert with the rock “a lot” and then

retrieved something else from his bag. Robert was on his back at this point and

Defendant turned him over and hit him with the object on both sides, the legs, and the

back of the neck. Fruge testified that she asked Defendant to stop, but he told her she

was going to die next and then he was going to kill himself. Fruge further testified

that, at some point, Defendant threw her a blanket and told her to cover her head,

because he felt she would not want to see a specific blow he intended to inflict. Fruge

testified that she covered her head, but peeked and saw Defendant hit Robert in the

back of the head with an object. When Fruge came out from under the blanket, she

saw that Robert was covered with blood and was not moving. At that time,

Defendant asked her to find a rope, and Defendant wrapped Robert up in a blanket

using duct tape and an extension cord. Defendant then put Robert in a closet.

Defendant mopped up the blood on the floor two to three times. Defendant

then changed his clothes, putting on clothes and tennis shoes that belonged to Robert.

Defendant put his clothes in a garbage bag. Fruge testified Defendant also took

money, two or three dollars, from Robert’s wallet.3 However, Fruge did not mention

this to police. Fruge and Defendant subsequently left Robert’s house. Defendant

then put his clothes in a dumpster behind a furniture store. At the dumpster,

Defendant decided to go back to Robert’s home. Fruge testified she stayed by the

dumpster, and Defendant had someone watch her until he returned.

3
Lieutenant Donald Thompson testified that Robert’s wallet was found at the
foot of his bed, and there was no money in it.

6

Fruge spoke to attorney Ed Lopez about this matter on June 1, 2005.4 Lopez

then phoned the police and Fruge gave a statement at that time. Fruge did not recall

Lopez reaching an agreement that she would not be charged in this matter.5

Fruge testified she did not initially report the incident to police because she was

scared of Defendant. However, Fruge lived with Defendant after he was initially

arrested and released. At the time of trial, Fruge testified she had not used drugs in

two weeks.

Defendant testified that, on the day Robert died, he met Fruge on his way to

Robert’s house to collect money he was owed, and she accompanied him there.

Robert invited them in and the group went into the bedroom. Some time later, a man

and woman came to Robert’s door, but he did not let them in. Robert returned to the

room, and he and Fruge smoked crack while Defendant ate pudding. Another person

came to Robert’s door. Robert argued with the person but did not let that person

inside the residence.

Once Robert returned to the room, he and Fruge began acting funny.

Defendant questioned Robert and Fruge, and Fruge eventually told him she and

Robert did the “freaky dicky.” Defendant testified that he started crying. Fruge then

informed Defendant that she and Robert merely had oral sex for five minutes. Robert

said Fruge was lying. Defendant testified that Fruge then “went off,” and Robert

4
Lieutenant Thompson interviewed Defendant on May 31, 2005. At that time,
he told Defendant he was going to get a warrant for Fruge’s arrest. Defendant was
released after the interview. The following day, Lieutenant Thompson received a call
from Attorney Ed Lopez stating Fruge wanted to give a statement.
5
Lieutenant Thompson testified that he spoke to Lopez about Fruge, but never
made an agreement that Fruge would not be arrested or charged and he did not talk
to anyone at the district attorney’s office. Lopez testified that he spoke to Lieutenant
Thompson, who said he had spoken to the district attorney’s office and they would
not charge Fruge or have her arrested.

7

came at him like he was attacking him. Defendant testified that he pushed Robert

backwards onto the bed. Robert sat down, and Defendant told him, “stay there, I’m

telling you, do not attack me.” Later, Robert charged Defendant again, and

Defendant pushed Robert back onto the bed, stating, “stop, man.” Fruge then told

Robert to tell the truth. Robert again said Fruge was lying and came at Defendant.

Defendant testified that he hit Robert with his fists and knocked him down. Robert

grabbed a bottle and came at Defendant again. Defendant testified Robert attempted

to hit him in the head with the bottle and he blocked the blow and hit Robert once

with his fists. Defendant then picked up a rock from the bedside table and hit Robert

in the head with it once.6 Defendant hit Robert on the head with the rock again, and

he fell to the floor. Defendant then put the rock back on the table, telling Robert,

“stay down, don’t come at me anymore.”7 Defendant testified that Robert was still

conscious at that time. Defendant looked at him and said, “man, what’s wrong with

you . . . . why don’t you stop . . . . don’t make me hurt you.” Robert grabbed the

bottle again and came at Defendant. Defendant took the bottle from Robert and hit

him in the face once or twice. Robert fell, and Defendant threw the bottle down and

told Robert, “this time stay down. I’m telling you, if you get up this time I will hurt

you. I said, do not make me hurt you.” Defendant testified that Robert had three cuts

and had hit his head on the bedside table.

Defendant testified that he knew Robert was hurt, and he did not want to go

back to jail, as he had previously been incarcerated for simple battery. He saw a knife

6
Defendant testified he found the rock at the bottom of the steps when he
arrived at Robert’s house. The rock was approximately the size of a golf ball and
shaped almost like a diamond.
7
Defendant testified that he hit Robert with the rock no more than three times.

8

in the room and picked it up because he had decided to take his own life. Defendant

then told Fruge he would make her watch him kill himself. Defendant testified that

Fruge took the knife from him, went to Robert, spoke with Robert, and Defendant

then saw Robert’s legs jump. Fruge subsequently turned around and had blood on her

hands and shirt and cried “help me.” Defendant testified that he sent Fruge to get two

bags. He then saw the knife, which was at least seven inches long, in the back of

Robert’s head, about the middle of the neck.8 Fruge pulled the knife from Robert’s

body, and Defendant checked Robert, who was dead, for vital signs. Fruge then took

the blanket off the bed, and he helped her wrap Robert in it. Fruge dragged Robert

toward the closet. She then got some duct tape, and he helped her tape the blanket

around Robert’s head so that blood would not drip on the floor. Defendant and Fruge

then cleaned up blood that was in the room. Defendant testified that the door to the

closet was not closed when he and Fruge left, and the electric cord was not wrapped

around Robert at that time. Defendant later went back to Robert’s house to get syrup

out of the refrigerator because he remembered he touched the syrup bottle when he

got pudding out of Robert’s refrigerator.

Defendant admitted he told police, in a statement he gave on May 26, 2005,

that Robert was alive when he left the house. In a statement given on June 1, 2005,

Defendant stated that Fruge picked up the knife from somewhere in the room and

stabbed Robert twice at the base of the skull. Defendant also stated he wore gray

gloves when he got the knife from Fruge after she pulled it from Robert’s body and

white gloves when he put Robert in the closet. He left the gloves in the house.

8
Defendant testified that he saw two stab wounds, one where the knife went in
all the way and a second where the knife must have went in and hit bone.

9

Paul Rumback testified that on Wednesday, May 25, 2005, he saw Defendant

walking down the steps of Robert’s home with a fold-up shovel in his hand.

Albertha Young testified that she saw Defendant and Robert on Saturday night.

That night, Fruge dropped Defendant off at Young’s house to take a bath, and Fruge

later dropped her and Defendant off “on the Hill.” Young also saw Defendant on

Sunday, some time between 1:00 and 3:00 p.m. At that time, Defendant wanted to

see Fruge. Young testified she told Defendant Fruge was at Robert’s house.

Defendant then said, “Rob, that white boy that used to work offshore.” “I told that

M _ _ _ er F_ _ _ er not to be around her no more.” Young testified she could see

Defendant was angry. Later that same day, Young went to Robert’s apartment with

Reed (Pojo) Roy looking for Fruge, but no one answered the door.

Young gave a statement to police on May 27, 2005, which read as follows:

On Saturday, May 21, 2005, I Albertha Young went to Robert
Rumback’s apt. to getting Ataline [sic] for someone. I did see Robert at
that time, and he was alive and healthy.

The Sunday afternoon Reid Roy from around Krotz Springs
picked me up to look for Ataline [sic], we went to Robert Rumback’s
apt. I knocked and no one answer the door. I noticed that the locked
that was on the door wasn’t locked. I didn’t want to go in the apt.
without no one answering so I left.

Early Sunday evening about 2:pm Kerney [sic] Alsandor came
over to my home asking for Ataline [sic]. He had a pt. Heaven Hill, a
24% can of beer and money in his pockets. I told him to check on the
North End a Robert Rumback’s apt. He then got mad and said he was
going over there.

Young testified that her memory was probably better at trial than when she

made the statement to police.9 She later clarified that Defendant stopped at her house

looking for Fruge before Roy arrived at her home.

9
Young admitted she had been charged with possession of crack cocaine and
in 2005 she traded sexual favors for drugs.

10

Defendant argues the State failed to prove he had the specific intent to kill

Robert. Defendant then points out that Fruge, in her testimony, stated that Defendant

attacked Robert and beat him severely, but she did not mention any knives or stab

wounds. Defendant contends that his version of the events supports the findings of

the coroner, that there were multiple contusions and blunt force trauma, but the fatal

blow was caused by a knife to the base of the skull. Defendant contends Fruge

caused the fatal injury.

Defendant further argues that to give credence to Fruge’s version of events, one

must take the word of a crack-addicted prostitute who ran to a criminal defense

attorney rather than police to give the true version of events. Defendant contends that

Fruge’s story does not fit with the autopsy findings and her credibility is frail. Yet,

on the basis of Fruge’s testimony, Defendant was convicted of murder.

The testimony of both Fruge and Defendant put them in Robert’s home on the

date of his death. They both testified that Defendant hit Robert several times with a

rock, and Defendant testified that he hit Robert with his fists and a bottle. The

testimony of Defendant and Fruge differs as to who actually stabbed Robert.

Fruge testified that Defendant hit Robert in the back of the neck with an object,

which she could not make out. Fruge’s testimony further indicates that she did not

inflict any injuries upon Robert. Based on Fruge’s testimony, we find that Defendant

caused Robert’s death, as Defendant inflicted nine scalp lacerations and three stab

wounds upon Robert. The number of wounds inflicted by Defendant is indicative of

his specific intent to kill. Additionally, Fruge testified Defendant told Robert, “today

is the day you are going to die.” Based on this evidence, we find that the State

proved, beyond a reasonable doubt, that Defendant committed second degree murder.

11

If the jury chose to believe Fruge’s version of the events, its verdict was based on a

credibility determination and that determination should not be second guessed by this

court. State v. Roberson, 06-1568, p. 7 (La.App. 3 Cir. 5/2/07), 956 So.2d 736, 740.

Moreover, if the jury chose to believe Defendant’s testimony, he is still guilty

of second degree murder. Defendant testified that he hit Robert with his fists, a rock,

and a bottle and that Fruge stabbed Robert. Dr. Carney testified that Robert received

nine lacerations to the scalp, and collectively those wounds could be considered a

fatal injury due to bleeding. Based on this testimony, the jury could have found

Defendant caused Robert’s death. The supreme court has held that “‘[i]t is not

essential that the act of Defendant should have been the sole cause of the death; if it

hastened the termination of life, or contributed, mediately or immediately, to the

death, in a degree sufficient to be a clearly contributing cause, that is sufficient.’

State v. Wilson, 114 La. 398, 38 So. 397 (1905) (death from pneumonia caused by

gunshot wound); State v. Matthews, 38 La.Ann. 795 (1886); State v. Scott, 12

La.Ann. 274 (1857).” State v. Matthews, 450 So.2d 644 (La.1984). The jury could

have also found Defendant had the specific intent to inflict great bodily harm when

he struck Robert numerous times knocking him onto the bed and the floor. In State

v. Runyon, 05-36, p. 13 (La.App. 3 Cir. 11/2/05), 916 So.2d 407, 418, writs denied,

06-1348 (La. 9/1/06), 936 So.2d 207 and 06-667 (La. 11/17/06), 942 So.2d 526, this

court found the following:

Viewing the evidence in the light most favorable to the State, a
rational trier of fact could have determined that Defendant Runyon hit
Mr. Wiley on the head with a log and the hit satisfied the requirements
of La.R.S. 14:31(A)(1), i.e., Defendant Runyon's hitting Mr. Wiley on
the head with a log with enough force to knock him to the ground
evidenced the specific intent to, at the least, inflict great bodily harm on
him.

12

Based on the evidence presented, we find that the State proved, beyond a

reasonable doubt, that Defendant committed the second degree murder of Robert

Rumback.

SELF-DEFENSE

Defendant contends the State failed to prove beyond a reasonable doubt that

he did not kill Robert in self-defense. Defendant asserts that even if one of the blows

he inflicted upon Robert was fatal, he was defending himself when the blows were

struck. Defendant asserts that Robert attacked him, charging him three times, and

hitting him in the head with a bottle. Defendant admits that he hit Robert, but only

in an attempt to keep Robert from harming or even killing him. Defendant asserts the

State did not prove that hitting Robert in the head with a rock was not necessary to

save himself from danger.

If the jury chose to believe Fruge’s testimony, Defendant’s claim of self-

defense lacks merit. Under Fruge’s version of the events, Defendant began to hit

Robert while Robert was seated on the bed and there was no testimony from Fruge

that Robert charged or hit Defendant. Based on this testimony, the State proved

beyond a reasonable doubt that Defendant did not act in self-defense. Further, if the

jury chose to believe Defendant’s testimony, Defendant’s claim of self-defense also

lacks merit. Defendant’s testimony indicates Robert never hit him, although he

charged him several times, once while armed with a bottle. Each time Defendant

either pushed Robert away or hit him, knocking him down. During the altercation,

Defendant told Robert the following:

•“stay there, I’m telling you, do not attack me”

•“stay down, don’t come at me anymore”

13

•“man, what’s wrong with you. . . . why don’t you stop. . . . don’t
make me hurt you”

•“this time stay down. I’m telling you, if you get up this time I
will hurt you. I said, do not make me hurt you.”

These comments made by Defendant do not indicate he had a reasonable belief

he was in immediate danger of death or great bodily harm. Additionally, Defendant

never testified that he feared for his safety. Furthermore, Defendant never attempted

to leave Robert’s home. Finally, “a Defendant’s concealment of the body is

inconsistent with a self-defense argument. State v. Patorno, 01-2585 (La.App. 1 Cir.

6/21/02), 822 So.2d 141.” Richards, 956 So.2d at 171.

Based on the evidence presented, we find that the State proved beyond a

reasonable doubt that Defendant did not act in self-defense.

PRO SE ASSIGNMENT OF ERROR NO. 1:

Defendant contends the State knowingly used false testimony to obtain a

tainted conviction. Defendant asserts that a conviction obtained through use of false

testimony, known to be such by the State, must fall under the Fourteenth Amendment.

Additionally, the same result occurs when the State, although not soliciting false

evidence, allows it to go uncorrected when it appears.

Defendant argues that both Lieutenant Thompson and Fruge gave false

testimony. In support of his argument, Defendant discusses testimony regarding an

agreement not to prosecute Fruge in this matter. Lopez testified that he spoke to

Lieutenant Thompson, who said he had spoken to the district attorney’s office and

they would not charge Fruge or have her arrested. Lieutenant Thompson testified that

he spoke to Lopez about Fruge, but never made an agreement that Fruge would not

be arrested or charged, and he did not speak to anyone at the district attorney’s office

14

about the matter. Fruge did not recall Lopez reaching an agreement that she would

not be charged in this matter.

Defendant failed to object to the alleged testimony as perjury; therefore, he

waived his right to assert this error on appeal. La.Code Crim.P. art 841. See also

State v. Singleton, 05-634, p. 9 (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 810, writ

denied, 06-1208 (La. 11/17/06), 942 So.2d 532.

Within this assignment of error, Defendant asserts that defense counsel erred

by not using video taped statements to impeach the testimony of Fruge and Lieutenant

Thompson. Defendant references video taped statements given by himself on May

31, 2005, and video taped statements given by Fruge on May, 26, 2005, June 1, 2005,

and June 9, 2005. Defendant does not discuss the contents of these taped statements.

Additionally, the only taped statement admitted into evidence was a statement given

by Fruge on May 26, 2005.

This as a claim of ineffective assistance of counsel. We find that the record is

insufficient to rule on Defendant’s claim of ineffective assistance of counsel. Rather

than on direct appeal, ineffective assistance of counsel claims are most appropriately

addressed through an application for post-conviction relief filed in the trial court

where a full evidentiary hearing can be conducted. State v. Leger, 05-11, p. 44 (La.

7/10/06), 936 So.2d 108, 142, cert. denied, __ U.S. __, 127 S.Ct. 1279 (2007).

Accordingly, we find that Defendant’s claim of ineffective assistance of counsel

should be relegated to post-conviction proceedings.

PRO SE ASSIGNMENT OF ERROR NO. 2:

In his second pro se assignment of error, Defendant contends that during jury

instruction, the State misstated the law thereby purposely misleading the jury.

15

During voir dire, the following exchange occurred between the State and a

prospective juror:

Q. The question you didn’t hear was have you had any friends that
had gone and seen something happened, you weren’t present, and they
come back to you separately and they tell you different stories. Now
they’re all trying to tell you the truth but the stories are different.
You’ve had that happen, haven’t you? They telling you the truth.

A. They add something.

Q. They add or it’s something different.

A. Right.

Q. That’s human nature, right?

A. Right.

Defense counsel failed to object to the comments complained of by Defendant;

therefore, review of this issue on appeal was waived. La.Code Crim.P. art. 841.

Defendant also complains about the following statements made by the State:

“But Judge Boagni can’t sit in this case. Judge Harris can’t sit in this case. It must

be a jury of Defendant’s peers. You hadn’t thought about that, had you. A judge is

not competent to judge this kind of case, only a jury.” Defense counsel objected on

the basis that the State was misleading the jury. The State then responded with the

following remarks to the prospective jurors:

Well, what Mr. Olivier’s is objecting to is if Defendant waives the jury,
but he has to waive the jury, and it’s only if he waives the jury. So until
he waives the jury, the Judge cannot decide this case. Our law is
prejudice in favor of juries in this kind of case. I don’t think I misstated
that, did I? But you are the proper parties if you’re chosen to serve on
this jury to decide this case. And that’s important.

Given the remarks above, any misstatement of the law by the State during voir

dire was corrected after defense counsel’s objection. Thus, Defendant failed to prove

the jury was misled. Accordingly, this assignment of error lacks merit.

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PRO SE ASSIGNMENT OF ERROR NO. 3:

In his third pro se assignment of error, Defendant contends the State’s “use of

peremptory strikes against African American prospective jurors and prospective

jurors who wanted proof of” his guilt was improper.

PROSPECTIVE JURORS JOHNSON AND TYLER

Defendant complains about the State’s challenges to prospective jurors Patrick

Johnson and Calvin Tyler. The State moved to strike prospective jurors Johnson and

Tyler. Defense counsel subsequently challenged the State’s striking of the two

prospective jurors, indicating the State had struck the only black males in the jury

panel. The State asserted it struck Johnson because he knew Defendant, and the two

grew up together in the same neighborhood. The State asserted it struck Tyler

because he had a lot of trouble with some of the concepts, particularly self-defense

and justification. The trial court then stated it had no problem excusing Johnson

because he stated he knew Defendant, grew up in the neighborhood with him, and

said they were friends, although they did not socialize or hangout. The trial court

then accepted the excuse for Tyler, indicating “he’s sort of on the borderline” with

regard to understanding.

[T]he Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.
1712, 90 L.Ed.2d 69 (1986), held that an equal protection violation
occurs if a party exercises a peremptory challenge to exclude a
prospective juror on the basis of a person’s race. See also La.C.Cr.P.
art. 795. If Defendant makes a prima facie showing of discriminatory
strikes, the burden shifts to the state to offer racially-neutral
explanations for the challenged members. The neutral explanation must
be one which is clear, reasonable, specific, legitimate and related to the
particular case at bar. State v. Collier, 553 So.2d 815, 820 (La.1989).
If the race-neutral explanation is tendered, the trial court must decide,
in step three of the Batson analysis, whether Defendant has proven
purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 115 S.Ct.
1769, 131 L.Ed.2d 834 (1995) (per curiam). A reviewing court owes the
district judge’s evaluations of discriminatory intent great deference and

17

should not reverse them unless they are clearly erroneous. Hernandez
v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 1868-69, 114 L.Ed.2d
395 (1991); Batson, 476 U.S. at 98, n. 21, 106 S.Ct. at 1724.

The Batson explanation does not need to be persuasive, and
unless a discriminatory intent is inherent in the explanation, the reason
offered will be deemed race-neutral. Purkett, 115 S.Ct. at 1771. The
Hernandez court explained:

A neutral explanation in the context of our analysis
here means an explanation based on something other than
the race of the juror. At this step of the inquiry, the issue
is the facial validity of the prosecutor’s explanation.
Unless a discriminatory intent is inherent in the [party’s]
explanation, the reason offered will be deemed race
neutral.
Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866. The ultimate burden of
persuasion remains on the party raising the challenge to prove
purposeful discrimination. Purkett, 514 U.S. at 767-68, 115 S.Ct. at
1771; Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866.

State v. Scott, 04-1312, pp. 57-58 (La. 1/19/06), 921 So.2d 904, 944, cert. denied, __

U.S. __, 127 S.Ct. 137 (2006).

Defendant asserts he had no relationship with Johnson, who is at least twenty

years older than him, and Johnson admitted the two never socialized or hung out

together. He further asserts the “pattern is set Mr. Johnson is African American [and]

he wanted proof Defendant was guilty. He told Mr. Richard he was not going to trick

him. This is why he was released.” Defendant asserts that Tyler gave the same

answers as the rest of the panel, except he mentioned the State would have to prove

Defendant was guilty.

Although the trial court never found a prima facie case of discrimination, the

State articulated race neutral reasons on the record for the two disputed challenges.

Further, as mentioned by Defendant during jury selection, the twelve-member jury

was comprised of eight whites and four blacks. Therefore, we find that no prejudice

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is apparent in this case. See State v. Brown, 03-897, p. 50 (La. 4/12/05), 907 So.2d

1, 34. Accordingly, Defendant’s claim lacks merit.

PROSPECTIVE JUROR FONTENOT

After prospective juror Johnson was excused, prospective juror Fontenot

informed the trial court that she knew Defendant’s father. The State approached the

bench and used a peremptory challenge against Fontenot. Fontenot was subsequently

excused by the trial court. Defense counsel moved for a mistrial, stating he felt the

jurors that were sworn in were tainted by the release of Fontenot in open court. He

further stated that Fontenot said she knew Defendant, and then she was suddenly

dismissed. The State indicated Fontenot was dismissed before the jury was sworn in

and that no one knew why she said what she had said. The trial court found the jury

was not tainted, stating Fontenot said, “‘I know Defendant’s father.’ And that was

a question that we asked all of ‘em early on.” The motion was then denied.

Defendant asserts the trial court erred in denying defense counsel’s motion for

mistrial. Defendant contends the trial court could not be sure the prospective jurors

were not tainted without questioning them about how they felt. Defendant asserts

Fontenot’s dismissal made her one of the first three prospective jurors dismissed by

the State, which were black.

Defendant has pointed to nothing in the record that indicates Fontenot was

black. Furthermore, for the reasons set forth below, we find that the trial court did

not err in denying Defendant’s motion for mistrial.

In State v. Weary, 03-3067, p. 36 (La. 4/24/06), 931 So.2d 297, 321, cert.

denied, __ U.S. __, 127 S.Ct. 682 (2006), the supreme court discussed motions for

mistrial as follows:

19

La.C.Cr.P. art. 775 states in part that a Defendant’s motion for
mistrial shall be ordered “when prejudicial conduct in or outside the
courtroom makes it impossible for Defendant to obtain a fair trial.” The
“prejudicial conduct” may include remarks of veniremen during voir
dire. State v. Carmouche, 2001-0405 p. 20 (La.5/14/02), 872 So.2d
1020, 1035. However, mistrial is a drastic remedy that is warranted only
when Defendant has suffered substantial prejudice such that he cannot
receive a fair trial. Carmouche, 2001-0405 p. 20, 872 So.2d at 1035;
State v. Wessinger, 1998-1234 p. 24 (La.5/28/99), 736 So.2d 162, 183,
cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999). “A
trial court need not order a new trial [or dismiss a jury panel] absent a
showing that comments made by a prospective juror affected other
jurors or prejudiced Defendant.” Carmouche, 2001-0405 p. 20, 872
So.2d at 1035; State v. Cushenberry, 407 So.2d 700, 701-702 (La.1981);
State v. Hutto, 349 So.2d 318, 320 (La.1977). The determination of
whether actual prejudice has occurred lies within the sound discretion
of the trial judge; this decision will not be overturned on appeal absent
an abuse of that discretion. Carmouche, 2001-0405 p. 20, 872 So.2d at
1035; Wessinger, 98-1234 p. 24, 736 So.2d at 183. In deciding the
correctness of the trial court’s voir dire rulings, a reviewing court
considers the entirety of the voir dire record. Carmouche, 2001-0405 p.
20, 872 So.2d at 1035; State v. Hall, 616 So.2d 664, 669 (La.1993).

Louisiana Code of Criminal Procedure Article 795 provides, in pertinent part,

as follows:

B. (1) Peremptory challenges shall be exercised prior to the
swearing of the jury panel.

(2) Peremptory challenges of jurors shall be made and
communicated to the court in a side bar conference of the judge, the
attorneys conducting the examination and selection of jurors, and
Defendant in a case in which Defendant chooses to represent himself.
The conference shall be conducted in a manner that only the court, the
attorneys, and Defendant in a case in which Defendant chooses to
represent himself, are aware of the challenges made until the court
announces the challenges without reference to any party or attorney in
the case.

We find that the State asserted its peremptory challenge in a bench conference

before the selected jurors were sworn in, in compliance with art. 795. Furthermore,

defense counsel based his motion for mistrial on the basis that Fontenot indicated she

knew Defendant when Fontenot actually said she knew Defendant’s father.

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Additionally, other prospective jurors, particularly Johnson and Edwards, said they

knew Defendant’s family during questioning of the jury panel at issue. We find that

there is nothing in the record to indicate Fontenot’s comments prejudiced Defendant.

Therefore, we cannot say the trial court abused its discretion when denying the

motion for mistrial.

PROSPECTIVE JUROR BUCKNER

Defendant next discusses prospective juror Buckner. He asserts Buckner had

reservations, but stated she would follow the law. However, she was dismissed for

cause because she wanted proof of his guilt.

The State moved to have Buckner dismissed for cause on the basis that she had

trouble accepting the concept of proof beyond a reasonable doubt and that she did not

believe in life imprisonment without benefit of probation, parole, or suspension of

sentence. Defense counsel made argument, and the trial court granted the challenge

for cause, stating Buckner had problems saying she could be fair and impartial.

Defense counsel failed to object to the dismissal of Buckner for cause.

Therefore, Defendant waived review of this issue on appeal. La.Code Crim.P. art.

841.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant asserts he had a conflict with defense counsel because he wanted to

strike prospective jurors Lavergne, Tassin, Francois, and Miller, and defense counsel

did not want to. Defendant asserts this constituted ineffective assistance of counsel.

The record is insufficient to rule on Defendant’s claim of ineffective assistance

of counsel. Rather than on direct appeal, ineffective assistance of counsel claims are

21

most appropriately addressed through an application for post-conviction relief filed

in the trial court where a full evidentiary hearing can be conducted. Leger, 936 So.2d

108. Accordingly, we find that Defendant’s claim of ineffective assistance of counsel

should be relegated to post-conviction proceedings.

MISSTATEMENT OF THE LAW

Defendant asserts that during jury instructions the State misstated the law,

purposely misleading the jury. Defendant asserts the “court erred in Mr. Richards

remarks on reasonable doubt and possible doubt which was not objected to.”

Defendant failed to object to the alleged error; therefore, he has waived his right to

assert this error on appeal. La.Code Crim.P. art 841.

PRO SE ASSIGNMENT OF ERROR NO. 4:

In his fourth pro se assignment of error, Defendant asserts a Batson challenge.

Defendant asserts he was forced to object to the way the State was unfairly dismissing

black jurors in violation of the Batson rule. Defendant asserts the trial court’s ruling

was omitted from the transcript; therefore, the transcript is incomplete. Defendant

also asserts the trial court erred when it denied his peremptory challenges.

Additionally, defense counsel was ineffective in that he did and said nothing.

After the prospective alternate jurors were questioned, Defendant informed the

trial court of the following: “Right. Um - it’s like this, Your Honor, I’m gonna be

frank. I would like it to be more equally racial, and right now we’re looking at eight

(8) white people and four (4) blacks. And I don’t like the odds.” The trial court then

informed Defendant that there were African-Americans on the panel that were

excused, but they were excused for legitimate reasons and denied Defendant’s

objection.

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BATSON

In this assignment of error, Defendant has not set forth the names of

prospective jurors that were improperly challenged by the State on the basis of race.

Thus, this issue has not been properly briefed by Defendant and should be considered

abandoned.

TRANSCRIPT

We note the trial court’s denial of Defendant’s objection regarding jury

composition was in the transcript; therefore, Defendant’s claim that the transcript is

incomplete is incorrect.

PEREMPTORY CHALLENGES

Defendant contends the trial court erred when denying his peremptory

challenges. Defendant does not set forth the names of the prospective jurors he

wished to strike, the reasons the trial court’s rulings were erroneous, or the number

of peremptory challenges he used. Accordingly, Defendant has not sufficiently

briefed this issue. Therefore, we find this issue has been abandoned.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends defense counsel was ineffective in that he did and said

nothing. The record is insufficient to rule on Defendant’s claim of ineffective

assistance of counsel. Rather than on direct appeal, ineffective assistance of counsel

claims are most appropriately addressed through an application for post-conviction

relief filed in the trial court where a full evidentiary hearing can be conducted. Leger,

936 So.2d 108. Accordingly, Defendant’s claim of ineffective assistance of counsel

should be relegated to post-conviction proceedings.

PRO SE ASSIGNMENT OF ERROR NO. 5:

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In his fifth pro se assignment of error, Defendant contends he was not timely

arraigned, and his trial was not timely conducted. Defendant alleges he was indicted

on November 28, 2005. He further alleges that at his arraignment on February 17,

2006, he orally urged a motion to quash and to be relieved of his bail obligation

because more than thirty days had lapsed since he was indicted. Defendant contends

the trial court denied his oral motions and instructed defense counsel to put the

motions in writing and a hearing on the matter would be held in two weeks.

Defendant further contends he was never taken to court and that the motions were not

ruled on by the trial court. Defendant contends there is no record of the motions he

filed, the trial court’s rulings thereon, and defense counsel’s objections.

Defendant’s statutory right to a speedy trial is found in La.Code
Crim.P. art. 701(D), which provides that the trial of a Defendant
charged with a felony shall commence within 120 days if he is continued
in custody. “However, this article merely authorized the pre-trial release
of Defendant, and upon a Defendant’s conviction, the issue is moot.”
[State v.] McSweeney, 619 So.2d [861] at 865 [(La.App. 3 Cir. 1993)],
citing, State v. Cowger, 581 So.2d 283 (La.App. 5 Cir.1991); State v.
Johnston, 480 So.2d 823 (La.App. 2 Cir.1985).

State v. Williams, 96-1181, p. 9 (La.App. 3 Cir. 3/5/97), 692 So.2d 509, 514, writ

denied, 97-1484 (La. 12/19/97), 706 So.2d 449.

Defendant was convicted, thus, any violation of Defendant’s statutory right to

a speedy trial is moot. Accordingly, this assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NO. 6:

In his sixth pro se assignment of error, Defendant contends that at the time of

his arrest, police officers had no arrest warrant and no indictment papers to show why

he was being held. Defendant further contends he was never booked into the St.

Landry Parish jail or fingerprinted. Defendant also contends that the State’s records

24

did not show his correct arrest date on the computer because he was never booked

and still has not been to this date.

Defendant has failed to allege an error and properly brief the issue. Thus, this

assignment error will not be considered.

CONCLUSION:

Defendant’s conviction is affirmed.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3,
Uniform Rules, Courts of Appeal.

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