State of Louisiana v. F.B.A.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1526

STATE OF LOUISIANA

VERSUS

F.B.A.

************

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT,
PARISH OF ALLEN, NO. CR-05-3813
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

************

JIMMIE C. PETERS
JUDGE

************

Court composed of Jimmie C. Peters, Michael G. Sullivan, and J. David Painter,
Judges.

AFFIRMED.

Douglas L. Hebert, Jr.
District Attorney
Sherron Ashworth
Assistant District Attorney
Thirty-Third JDC
Post Office Box 839
Oberlin, LA 70655
(337) 639-2641
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Post Office Box 1641
Lake Charles, LA 70602
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
F.B.A.

F.B.A.
4001 S. Decatur #37-603
Las Vegas, NV 89103
IN PROPER PERSON DEFENDANT/APPELLANT:
F.B.A.

PETERS, J.

A jury convicted the defendant, F.B.A.,1 of aggravated rape, a violation of

La.R.S. 14:42, and aggravated incest, a violation of La.R.S. 14:78.1. Thereafter, the

trial court sentenced him to serve life imprisonment at hard labor without benefit of

probation, parole, or suspension of sentence on the aggravated rape conviction and

to serve fifteen years at hard labor without the benefit of probation, parole, or

suspension of sentence on the aggravated incest conviction. The trial court ordered

that the sentences run concurrent to one another. The defendant has appealed his

convictions, asserting that the evidence was insufficient to support the convictions

and that he was denied effective assistance of counsel at trial. For the following

reasons, we affirm the convictions in all respects.

SUFFICIENCY OF THE EVIDENCE ISSUE

The first assignment of error raised by the defendant’s counsel, as well as the

first assignment of error raised by the defendant in his pro se assignments of error,

addresses the sufficiency of the evidence presented by the State of Louisiana (state)

in support of the convictions. The basic argument is that the testimony of the victim

is so inconsistent that it does not meet the proof beyond a reasonable doubt standard.

In fact, the defendant suggests that the testimony is “unreliable, untrustworthy and

incredible.”

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436
So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibilities of the witnesses, and

1
In compliance with La.R.S. 46:1844(W), initials are used to protect the identity of the
victim.

therefore, the appellate court should not second guess the credibility
determinations of the trier of fact beyond the sufficiency evaluations
under the Jackson standard of review. See Graffagnino, 436 So.2d at
563, citing State v. Richardson, 425 So.2d 1228 (La.1983). To obtain
a conviction, the elements of the crime must be proven beyond a
reasonable doubt.

State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580.

Furthermore, the testimony of a single witness is sufficient to support a

conviction “[i]n the absence of internal contradiction or irreconcilable conflicts with

physical evidence.” State v. Dixon, 04-1019, p. 12 (La.App. 5 Cir. 3/15/05), 900

So.2d 929, 936. The trier of fact may accept or reject the testimony of any witness,

and the determination of credibility of that witness, in whole or in part, is left to its

sound discretion and “will not be re-weighed on appeal.” Id. at 936.

At the time the offenses now before us occurred, La.R.S. 14:42(A)(4) defined

aggravated rape in pertinent part as “a rape committed . . . where the anal or vaginal

sexual intercourse is deemed to be without lawful consent of the victim because it is

committed . . . [w]hen the victim is under the age of twelve years.” Additionally,

La.R.S. 14:78.1 defined aggravated incest as follows:

A. Aggravated incest is the engaging in any prohibited act
enumerated in Subsection B with a person who is under eighteen years
of age and who is known to the offender to be related to the offender as
any of the following biological, step, or adoptive relatives: child,
grandchild of any degree, brother, sister, half-brother, half-sister, uncle,
aunt, nephew, or niece.

B. The following are prohibited acts under this Section:

(1) Sexual intercourse, sexual battery, second degree sexual
battery, carnal knowledge of a juvenile, indecent behavior with
juveniles, pornography involving juveniles, molestation of a juvenile,
crime against nature, cruelty to juveniles, parent enticing a child into
prostitution, or any other involvement of a child in sexual activity
constituting a crime under the laws of this state.

2

(2) Any lewd fondling or touching of the person of either the
child or the offender, done or submitted to with the intent to arouse or
to satisfy the sexual desires of either the child, the offender, or both.

C. Consent is not a defense under this Section.

The record in this matter establishes certain facts that are not in dispute. The

individual that the state asserts is the victim in these criminal charges is V.J.L., who

was born on December 22, 1989, and is the defendant’s step-daughter. V.J.L.’s

mother, S.J., is a citizen of the Netherlands and met the defendant while residing in

South Carolina in 1997. She and the defendant began cohabiting, and in 1998, the

couple had a son, C.M.2 In that same year, after C.M.’s birth, the family moved from

South Carolina to Houston, Texas. In 1999, S.J. and the defendant were married. In

2001, the family moved to Kinder, Louisiana, where S.J. obtained employment at the

local casino. Because the defendant continued to work in Houston, he was separated

from the family for days at a time.

The first suggestion of any sexual activity involving V.J.L. arose in January of

2002 when S.J. noticed blood in V.J.L.’s underwear.3 In response to this finding, the

defendant4 took V.J.L. to Dr. Darryl Elias, a Jennings, Louisiana physician, who

examined her to determine the cause of this discharge. The defendant remained in the

room while Dr. Elias examined V.J.L. Based on his findings, the doctor concluded

that V.J.L. suffered from the human papilloma virus (HPV), a sexually transmitted

disease which causes genital warts and lesions. According to Dr. Elias, V.J.L’s

hymen was no longer present and the condition of her vagina and the lesions around

her genital area were consistent with sexual intercourse. From the size of the lesions,

2
V.J.L. has a younger brother, B.J.L., who was also born to S.J. before she met the defendant.
3
V.J.L. had celebrated her twelfth birthday less than a month before her mother’s observation.
4
S.J. had a job interview on the day that V.J.L. saw Dr. Elias.

3

he estimated that the sexually transmitted disease had been present for six to twelve

months prior to his examination. Additionally, the vaginal warts present at the time

of his examination extended from the top of the vaginal opening to the rectum.

Despite his physical findings, when he questioned V.J.L., she denied having been

involved in any sexual activity. Dr. Elias reported his findings to the local office of

the State of Louisiana Office of Community Services (OCS) and informed that office

of his concerns that V.J.L. had been a victim of molestation.

Although OCS attempted to investigate Dr. Elias’ suspicion, the investigation

reached no conclusion one way or the other. When interviewed by James R. Lemaire,

an OCS investigator, V.J.L. continued to deny any sexual activity, and an interview

of S.J. produced no helpful information. Mr. Lemaire did not interview the

defendant. Because of V.J.L.’s continued denials and the lack of any other evidence

of sexual abuse, Mr. Lemaire closed his file.

Thereafter, the family unit apparently began to disintegrate. In December of

2003, the defendant moved to Las Vegas, Nevada, with another woman. In fact, he

returned to Kinder, Louisiana, only one time thereafter. This visit occurred in

September of 2004 to celebrate his son’s birthday.

In July of 2005,5 less than one year after her step-father’s last visit, V.J.L.

informed her mother that her statements to Dr. Elias and Mr. Lemaire were not

truthful and that she and the defendant had engaged in sexual activity during that

period. S.J. immediately contacted Mr. Lemaire, who interviewed V.J.L. and initiated

the investigation that led to the defendant’s arrest.

5
V.J.L. would have been sixteen years old at the time.

4

When the trial on the merits began on July 23, 2007, V.J.L. was seventeen

years old. She testified that her sexual involvement with her step-father began after

the family moved from Houston, Texas, to Kinder, Louisiana. According to V.J.L.,

the defendant began by fondling and kissing her, but soon he began using a dildo on

her to help her adjust to sexual intercourse. V.J.L. testified that she and the defendant

watched pornographic movies during their sexual activity6 and that he caused her to

perform oral sex on him as often as possible. This activity was accepted by her

because the defendant told her that what they were doing was normal, that her mother

knew about the activity and approved of it, that she was beautiful, and that when she

grew up they would run away and get married.

With regard to her denials to Dr. Elias, V.J.L. testified that the defendant had

told her to lie about their sexual activity.7 After Dr. Elias’s examination, the

defendant stopped having sexual intercourse with her until after her symptoms had

resolved themselves.

V.J.L.’s explanation for coming forward with her accusations at such a late

date was the influence of her boyfriend, J.L. According to V.J.L., she met and began

dating J.L. in 2003, after her step-father left the home. At the time, she was fifteen

and he was seventeen. Over several months their relationship became of such a

nature that she felt comfortable enough with him to confide in him. When she told

him of the defendant’s actions, he encouraged her to discuss the matter with her

mother. In fact, according to V.J.L., on one occasion when she was talking with the

defendant on the telephone, J.L. took the telephone from her and confronted him with

6
In her testimony, S.J. acknowledged that during the time at issue, there was a dildo and
pornographic movies in the home.
7
Dr. Elias testified that he found it unusual that the defendant remained in the room during
his examination of V.J.L.

5

her allegations. The defendant responded that “I would do it again,” and hung up.

Soon after this telephone conversation, V.J.L. had the conversation with her mother

that gave rise to the criminal charges.

In his testimony, J.L. acknowledged that V.J.L. confided in him, but that she

only did so some eight months after they began dating. When he initially encouraged

her to discuss the matter with her mother, V.J.L. was reluctant to do so. Finally, he

gave her the ultimatum that if she did not inform her mother of the defendant’s

actions, he would. He confirmed V.J.L.’s testimony concerning the telephone

conversation with the defendant, asserting that during the initial conversation, he was

listening on a separate receiver. According to J.L., the defendant “came on the phone

and she asked him why did you do this to me; why did you take my innocence, my

childhood, my virginity. And he said if you don’t keep your mouth shut I’ll do it

again.” At that point, J.L. stepped into the conversation, and the defendant quickly

terminated the telephone call by hanging up.

Sometime after V.J.L’s discussion with her mother, she was referred for

evaluation and treatment to Terri Theaux, a licensed professional counselor with the

Psychology Clinic in DeRidder, Louisiana. Based on her findings in the evaluation,

Ms. Theaux concluded that V.J.L.’s history was consistent with that of a sexually

abused child.

In contrast to the evidence presented in support of the allegations, D.A.E., who

is the defendant’s mother, testified that she had visited the family home in Kinder on

two occasions and observed nothing indicating a family problem. She described her

son as a caring and gentle man who could not have done what he was accused of

having done to V.J.L. The defendant’s current love interest testified that she and he

6

had a healthy sex life and that during their relationship she had not contracted any

form of sexually transmitted disease.

The defendant testified on his own behalf. He stated that he never actually

lived in Kinder, Louisiana, was seldom there, and had only bought the house there for

the benefit of S.J. and the children. According to the defendant, he never loved S.J.,

he had married her for the sole purpose of helping her and her children to remain in

this country, and everyone understood that he would continue to have other

girlfriends in Houston, Texas. The defendant testified that the initial plan was for S.J.

and the children to move to Las Vegas, where he would continue to take care of them,

but this plan was scuttled when S.J. became aware that he was living with his new

girlfriend. According to the defendant, S.J. became very angry and told him he would

not be allowed to see his son. The defendant responded to this threat by threatening

her with a divorce action wherein he would challenge her right to custody of their

son.

With regard to V.J.L.’s accusations, the defendant denied any type of sexual

conduct with V.J.L. He also disputed Dr. Elias’ testimony that he was present in the

examination room with V.J.L. in January of 2002 when Dr. Elias examined her.

Furthermore, although he denied the substance of the telephone conversation testified

to by V.J.L. and J.L., he acknowledged having a telephone conversation with V.J.L.

regarding J.L. According to the defendant, that telephone conversation occurred

because he had been informed that J.L. was eighteen and that he had been seeing a

thirteen-year-old girl. Based on what he had been told, he informed V.J.L. that he

disapproved of her dating J.L. and threatened her with the possibility of J.L. being

7

incarcerated for having sex with his previous girlfriend. He testified that she

responded by stating that “she would say that I raped her.”

In brief and at trial, the defendant argues that his employment in Houston,

Texas, precluded even the opportunity to have abused V.J.L. to the extent she

asserted in her testimony.8 He blames V.J.L.’s accusations on the assertion that she

and her mother were angry at him and that as two women scorned, they had concocted

the sexual abuse story to prevent him from having access to his son. Obviously, the

jury concluded otherwise.

In reviewing the complete evidentiary record, we agree with the defendant that

there exist some inconsistencies in the trial testimony. However, the defendant has

not pointed to any irreconcilable conflict with the physical evidence. Considering the

evidentiary record as a whole, and considering the evidence in the light most

favorable to the state, we conclude that a rational trier of fact could have found the

essential elements of both offenses proven beyond a reasonable doubt. Freeman, 801

So.2d 578. No internal contradiction or irreconcilable conflict with the physical

evidence or testimony of the victim exists. Thus, the testimony of V.J.L., which the

jury obviously believed, was sufficient to support the convictions. Dixon, 900 So.2d

929.

We find no merit in the argument that the evidence is insufficient to support the

convictions.

INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE

In arguing this issue, the defendant, through his appeal counsel as well in his

pro se assignments of error, asserts that his trial counsel was ineffective because she

8
The defendant points specifically to V.J.L.’s assertion that she had sexual intercourse with
the defendant two hundred times.

8

failed to introduce several important and relevant documents into evidence and failed

to object to prejudicial testimony given by Dr. Elias. He asserts that these errors were

of such significance that the verdict would have been different had they not occurred.

Generally, the issue of ineffective assistance of counsel is a matter
more properly addressed in an application for post conviction relief,
filed in the trial court where a full evidentiary hearing can be conducted.
State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557
So.2d 1030 (La.App. 4 Cir.1990); State v. Reed, 483 So.2d 1278
(La.App. 4 Cir.1986). Only if the record discloses sufficient evidence
to rule on the merits of the claim do the interests of judicial economy
justify consideration of the issues on appeal. State v. Seiss, 428 So.2d
444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982); State v.
Garland, 482 So.2d 133 (La.App. 4 Cir.1986); State v. Landry, 499
So.2d 1320 (La.App. 4 Cir.1986).

The defendant’s claim of ineffective assistance of counsel is to be
assessed by the two part test of Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119
(La.1984). The defendant must show that counsel’s performance was
deficient and that he was prejudiced by the deficiency. Counsel’s
performance is ineffective when it can be shown that he made errors so
serious that counsel was not functioning as the “counsel” guaranteed to
the defendant by the Sixth Amendment. Strickland, supra, 466 U.S. at
686, 104 S.Ct. at 2064. Counsel’s deficient performance will have
prejudiced the defendant if he shows that the errors were so serious as
to deprive him of a fair trial. To carry his burden, the defendant “must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, supra, 466 U.S. at
693, 104 S.Ct. at 2068. The defendant must make both showings to
prove that counsel was so ineffective as to require reversal. State v.
Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).

This Court has recognized that if an alleged error falls “within the
ambit of trial strategy” it does not “establish ineffective assistance of
counsel.” State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986).
Moreover, as “opinions may differ on the advisability of a tactic,
hindsight is not the proper perspective for judging the competence of
counsel’s trial decisions. Neither may an attorney’s level of
representation be determined by whether a particular strategy is
successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987).

9

State v. Griffin, 02-1703, pp. 8-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40, writ

denied, 03-809 (La. 11/7/03), 857 So.2d 515.

The record in this matter is sufficient for us to rule on the merits of most of the

issues raised in this assignment of error. That being the case, and in the interest of

judicial economy, we will address those issues that we can and relegate the remaining

issues to post-conviction relief proceedings.

The documents the defendant argues should have been admitted into evidence

are:

1. Dr. Elias’ progress notes dated January 25, 2002.

2. The transcript of an interview with V.J.L. conducted by Anna
Theus of the Rapides Parish Children’s Advocacy Center on July
19, 2005.

3. The Allen Parish Hospital Emergency Nursing Triage Assessment
prepared by Kathy Marler and dated July 18, 2005.

4. The Office of Community Service Report prepared by Mr.
Lemaire and dated July 19, 2005.

5. The Psychological Assessment Report prepared by Terri Theaux
and dated May 28, 2007.

Specifically, he asserts that these documents would have established numerous

inconsistencies in the testimony of V.J.L. concerning the nature and frequency of

sexual activity with him.

In considering the defendant’s argument, we first note that of the individuals

listed, only Ms. Theus did not testify at trial. Additionally, while we agree that some

of the material found in the documents does reveal inconsistencies in V.J.L.’s

testimony, the record establishes that the defendant’s counsel cross-examined all of

the witnesses concerning the documents’ content, thereby placing the issues raised

by the documents’ content before the jury.

10

With regard to Dr. Elias, the defendant asserts that his progress notes would

have established that the doctor’s memory was somewhat deficient when considering

the particulars of his examination of V.J.L., as was his knowledge of sexually

transmitted diseases. Specifically, he argues that his trial counsel failed to discredit

the doctor by establishing that he had forgotten that V.J.L. made a follow-up visit to

his office and that the doctor was incorrect when he suggested that men can be tested

for HPV when there is no such test. We find no merit in this argument because,

assuming Dr. Elias forgot the follow-up visit, and assuming there is no HPV test for

a male, those facts would not have discredited his finding that V.J.L. suffered from

HPV. Additionally, the record reflects that the defendant’s trial counsel, while using

the doctor’s progress notes, questioned Dr. Elias concerning statements he made in

the progress notes, addressing the very issues raised by the defendant.

The defendant had the use of the transcript of Ms. Theus’ interview at trial as

well. In his brief, the defendant notes that in the interview, V.J.L. stated that she and

the defendant had vaginal sexual intercourse more than twenty times, and had anal

intercourse and oral sex only once. In contrast, V.J.L. testified at trial that she had

sexual contact with her step-father over two hundred times. He further points to

statements in the interview where V.J.L. said that she could not remember the first

time or the last time she and the defendant had sex and that she also had trouble

distinguishing between dreams and reality. He complains that Ms. Theus should have

been required to testify at trial concerning the content of her interview. We disagree.

Although Ms. Theus did not testify at trial, she was merely the one who

conducted the interview. The defendant had a copy of the transcribed interview

before trial, and his trial counsel cross-examined V.J.L. concerning the

11

inconsistencies now complained of by the defendant. Additionally, while Ms.

Theaux’s report was not introduced into evidence, she testified extensively as to its

content, which included the comments in Ms. Theus’s interview. Furthermore, the

defendant’s trial counsel cross-examined Ms. Theaux extensively concerning these

statements. Thus, the evidence of the inconsistent statements complained of by the

defendant was presented to the jury.

Ms. Marler testified that she was present in the Allen Parish Hospital

emergency room on July 18, 2005, when V.J.L. presented herself as a rape victim.

According to Ms. Marler, both Mr. Lemaire and S.J. accompanied V.J.L. to the

hospital. Testifying from her report, Ms. Marler summarized the admission and

examination process and noted that no examination was performed because more than

eighteen months had lapsed since V.J.L.’s last sexual contact with the defendant.

Although the report contained a notation that V.J.L. was sexually active with her

boyfriend, the trial court sustained the state’s objection to the admissibility of that

information given the fact that no examination had been performed and any evidence

of the victim’s sexual activity with her boyfriend was not admissible. The defendant

does not complain of the trial court’s ruling in that respect, and directs us to nothing

in the report that, if admitted, would have changed the outcome of the trial.

Mr. Lemaire was also subject to cross-examination by the defendant’s trial

counsel. A review of his report reflects that anything in it that might have changed

the outcome of the trial was discussed through his testimony or the testimony of

others. This includes the notation in the report that V.J.L. originally reported that her

family life was normal and that she denied any sexual activity whatsoever.

12

Finally, as previously stated, Ms. Theaux testified extensively concerning the

content of her report.

Concerning his argument that his trial counsel failed to object to prejudicial

testimony from Dr. Elias, the defendant complains in brief that the doctor testified

that “he could only recall two other incidents where the biological father or step-

father refused to leave the examination room, and in both instances the children were

determined to be victims of sexual abuse.” (Emphasis in the defendant’s brief). He

asserts on appeal that his counsel’s failure to object to this statement left the jury with

the impression that he refused to leave the examination room after being requested

to do so by the examining physician. We agree with the defendant that he did not

refuse to leave the examination room when requested to do so by Dr. Elias and that

Dr. Elias did not request that he leave the examination room. Dr. Elias testified only

that “[w]e also asked if [V.J.L.] would feel more comfortable if [the defendant] would

leave the room. She did not request that he left [sic] the room.”

The actual full in-court exchange on the issue of whether Dr. Elias suggested

the defendant refused to leave the examination room came after his testimony cited

above and involved responses to questions from the attorney for the state. The

exchange was as follows:

Q. On how many other occasions was it where a male would actually
be in the exam room when the female, a young female was being
examined?

A. Only two other incidents that I’ve had in my practice in seven
years.

Q. And what was[sic] those?

A. One of them was another case where a step-father refused to leave
the room on an examination where she had been, come to find out
later on, had been the victim of sexual abuse.

13

Q. Uh huh (yes).

A. And then another one was the biological father that refused to
leave the room, and that was also a victim of sexual abuse.

Q. And for those reasons, sir, [the defendant’s] presence in the exam
room and given your finding sent up a red flag?

A. Yes, sir. That is why we notified the protection services.

The doctor did not state or even imply that the defendant refused to leave the

examination room. In response to a question from the state concerning his experience

in the area of child sexual molestation cases, the doctor responded with a statement

of his only two experiences. As we appreciate Dr. Elias’ testimony, he referred the

case to the appropriate authorities, not because the defendant refused to leave, but for

the mere fact that he stayed. This act on the part of the defendant “sent up a red flag”

in his mind. We find that this opinion was rationally based on his perception and was

helpful to a clear understanding of why he made the referral. See La.Code Evid. art.

701.

In brief, the defendant also states that the record was “replete with numerous

instances where trial counsel failed to object to leading questions posed to witnesses

by the State.” However, he does not specify any single instance where his trial

counsel failed to object. Our review of the trial record reveals that the defendant’s

trial counsel persistently objected to improper questions by the state.

In his pro se assignment of error on this issue, the defendant adopts the

argument of his appellate counsel, but further suggests his trial counsel was

ineffective for the following reasons not already discussed:

Trial counsel was ineffective in her efforts in selecting nonbiased
jurors. Six of the individuals that served on the jury were either related
to, neighbors of, or previously worked for someone in the District
Attorney’s Office.

14

Trial counsel failed to call upon character witnesses to testify on
my behalf.

Trial counsel failed to allow sufficient time in preparation for the
case. At counsel’s request, I had four days to spend with her preparing
for trial. This was highly inadequate for a case of this severity.

Concerning these issues, we find that the defendant failed to carry his burden of

demonstrating that his trial counsel’s performance was deficient and that he was

prejudiced by the deficient performance.

In his argument concerning his trial counsel’s failure to object to certain

prospective jurors, the defendant provides this court with no information concerning

which jurors he considered biased. He merely suggests that some of the prospective

jurors knew individuals employed in the Allen Parish District Attorney’s Office and

that this fact alone made them prejudicial to his case. The supreme court in State v.

Juniors, 03-2425, p. 11 (La. 6/29/05), 915 So.2d 291, 306, cert. denied, 547 U.S.

1115, 126 S.Ct. 1940 (2006) (citations omitted), stated:

The law in Louisiana is clear that a relationship between a
prospective juror and the district attorney does not automatically
disqualify the prospective juror from service. The existence of a
relationship, even one of blood or marriage, is not sufficient to
disqualify a juror unless the facts reveal that the nature of the
relationship is such that it is reasonable to conclude it would influence
the juror in arriving at a verdict. The law does not require that a jury be
composed of individuals who are totally unacquainted with the
defendant, the person injured by the offense, the district attorney, or
defense counsel. It requires that jurors be fair and unbiased.

Applying the supreme court’s rationale in Juniors, we find no merit in the defendant’s

argument on this issue.

When asserting his argument that his trial counsel was ineffective for failing

to call character witnesses on his behalf, the defendant does not identify any such

individuals. We find no merit in this argument.

15

Finally, the defendant argues that his trial counsel was unprepared for trial and

that he personally only had four days in which to prepare with his counsel prior to

trial which was, in his opinion, very inadequate. The trial record establishes that the

defendant’s first counsel of record withdrew from his representation on May 15,

2007, and that his trial counsel was appointed on May 29, 2007. Trial began on July

23, 2007. Therefore, his trial counsel had almost two months to prepare for trial.

United States Constitution Amendment VI and La.Const. art. 1, § 13 guarantee

an accused the effective assistance of counsel.

This right is fundamental to our system of justice and a cornerstone in
assuring that defendants receive a fair trial not unduly prejudiced by
their counsel’s ineffective assistance. ‘Effective counsel’ has been
defined to mean ‘not errorless counsel’, and not counsel judged
ineffective by hindsight, but counsel likely to render reasonably
effective assistance.

State v. Antoine, 00-564, p. 6 (La.App. 3 Cir. 12/6/00), 774 So.2d 353, 357 (citations

omitted).

We cannot address the preparedness issue as matters concerning trial strategy

or a trial counsel’s preparedness based on the record now before us. Thus, the

defendant’s claim in that regard is relegated to post-conviction relief proceedings

where, if warranted, a full evidentiary hearing may be conducted to develop a record

sufficient to consider the issue raised. See State v. Smith, 07-468 (La.App. 3 Cir.

10/31/07), 969 So.2d 694. Therefore, we decline to address this issue at this time.

DISPOSITION

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

AFFIRMED.

16