State of Louisiana v. Byran Louis Fogleman

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 12-16

STATE OF LOUISIANA

VERSUS

BYRAN LOUIS FOGLEMAN

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 303,545
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

AFFIRMED.

James C. Downs
District Attorney
9th Judicial District
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Paula Corley Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757

COUNSEL FOR DEFENDANT/APPELLANT:
Byran Louis Fogleman

John T. Giordano
Assistant District Attorney
Post Office Drawer 1472
Alexandria, LA 71309-1472
(318) 473-6650
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

PETERS, J.

A jury convicted the defendant, Byran Louis Fogleman, of the offense of

creating or operating a clandestine laboratory for the unlawful manufacture of a

controlled dangerous substance, a violation of La.R.S. 40:983. The trial court

sentenced the defendant to ten years at hard labor with the first three years of the

sentence to be served without the benefit of probation, parole, or suspension of

sentence. The defendant appealed his conviction, asserting two assignments of

errors. For the following reasons, we affirm the conviction in all respects.

DISCUSSION OF THE RECORD

On the morning of June 29, 2010, Lieutenant Kevin Rhodes of the Louisiana

State Police stopped a vehicle being driven by Stanley Ammons near the

intersection of Louisiana Highway 28 (La. 28) and Hyman Lane in Alexandria,

Louisiana. The traffic stop resulted in the recovery of a black duffle bag

containing various items used to manufacture methamphetamine. The bag was

found on the passenger floorboard. The defendant occupied the passenger seat

where the bag was situated.

Lieutenant Rhodes testified that at approximately 10:15 a.m. on June 29,

2010, he was traveling east on La. 28 and was stopped at a red light La. 28’s

intersection with Hyman Lane. He observed an older model Cadillac two cars

ahead of him and ran a check on the vehicle’s license plate. When the computer

program reflected that the license plate had been cancelled, he initiated a stop of

the vehicle. Ammons exited the vehicle, met Lt. Rhodes at the rear of the vehicle,

and produced his driver’s license.

While explaining to Ammons why he had made the traffic stop, Lt. Rhodes

received a message on his portable radio that the license plate number he had

provided was actually registered to a different vehicle. Believing that he was now

dealing with a case of switched license plates, Lt. Rhodes radioed for a tow truck

for the Cadillac. As he made arrangements for the vehicle to be towed, Lt. Rhodes

saw Ammons move to the passenger side of the vehicle and initiate a whispered

discussion with the defendant. As soon as Ammons stepped back, the defendant

attempted to exit the vehicle. Following agency policy to deal with one person at a

time, Lt. Rhodes pushed the door shut, instructed the defendant to remain in the

vehicle, and instructed Ammons to move to the front of the patrol unit and remain

there. He then radioed for a backup unit.

A few moments later, Louisiana State Trooper Nathan Scharbono arrived at

the scene, and Lt. Rhodes asked him to handle Ammons while he dealt with the

defendant. He patted the defendant down and found no weapons or contraband.

Still, he observed that the defendant seemed very nervous and anxious. Lt. Rhodes

then requested a criminal background check on both Ammons and the defendant.

This request revealed an outstanding warrant for Ammons, and he was

immediately taken into custody.

After Lt. Rhodes had allowed the defendant to exit the vehicle, he noticed

the black duffle bag on the floorboard and asked the defendant what the bag

contained. According to Lt. Rhodes, the defendant initially responded that it

contained his clothes. However, upon further questioning, he suggested that it

belonged to a friend, but he could not supply the friend’s name.

At this point, given the totality of the circumstances, Lt. Rhodes placed the

defendant in handcuffs. A few moments later, Ammons informed Trooper

Sharbono that the bag contained the components of a methamphetamine lab.

Lieutenant Rhodes then placed the defendant under arrest as well, and Trooper

Sharbono opened the bag to confirm Ammons’ assertion. Upon his determination

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that the bag contained contraband, Lt. Rhodes summoned members of the narcotics

investigation team.

Trooper Sharbono’s testimony supported that of Lt. Rhodes. He testified

that when the outstanding warrant information was received, he physically took

Ammons in custody by placing him under arrest, handcuffing him, informing him

of his Miranda rights, and placing him in the back seat of his patrol unit. After

Trooper Sharbono placed Ammons in the patrol car, he asked if there was anything

“illegal” in the Cadillac. According to Trooper Sharbono, Ammons told him that

the vehicle contained “stuff to cook meth.” After Lt. Rhodes placed the defendant

under arrest, Trooper Sharbono unzipped the black duffle bag and observed the

contraband therein. According to Trooper Sharbono, the narcotics division was

notified because of the unsafe nature of the chemicals. Thereafter, members of the

narcotics division assumed the responsibility of handling the seized evidence.

Louisiana State Trooper Keith Nugent was the narcotics officer primarily

responsible for securing the seized evidence. According to Trooper Nugent, the

black duffle bag contained a box of salt, drain cleaner, an ice pack, a cap with a

tube on the end, lithium batteries, a can of Coleman fuel, a bottle of rubbing

alcohol, a pill grinder, and pseudoephedrine/ephedrine tablets. He testified that all

of these items are used to manufacture methamphetamine. Additionally, Trooper

Nugent testified that he recovered a Wal-Mart receipt from the black duffle bag

which indicated that the pseudoephedrine/ephedrine pills had been purchased

approximately ten to fifteen minutes before Lt. Rhodes conducted his traffic stop.1

He also recovered a pump sprayer from the back seat of the vehicle, another device

which he suggested would be commonly found in methamphetamine labs.

1
The record establishes that a Wal-Mart store is located on La. 28 immediately west of
the location where Lt. Rhodes initiated the traffic stop.
3

As a part of his investigation, Trooper Nugent interviewed the defendant on

the day of his arrest. According to Trooper Nugent, the defendant asserted that

Ammons had contacted him and that they had agreed to meet at the Nottingham

Apartments in Alexandria, whereafter both men injected methamphetamine. Next,

they traveled to Wal-Mart where the seized material was purchased by Ammons.

The defendant informed Trooper Nugent that he had wanted a ride to his brother’s

house in the Hineston community in Rapides Parish. The defendant also informed

Trooper Nugent that Ammons had told him that he intended to cook

methamphetamine later that evening. According to Trooper Nugent, the defendant

also noted that he and Ammons had used methamphetamine the previous day.

Trooper Nugent also interviewed Ammons, who had a story different from

that of the defendant. According to Trooper Nugent, Ammons told him that the

defendant was going to Hineston to cook methamphetamine, and that the black

duffle bag belonged to the defendant. However, at no time did the defendant ever

state that the bag belonged to him.

The seized evidence was ultimately transferred to the North Louisiana Crime

Lab where it was analyzed by Alex King, a forensic chemistry expert. Mr. King

confirmed in his trial testimony that the items seized by Lt. Rhodes and Trooper

Sharbono on June 29, 2010, were all items commonly combined to manufacture

methamphetamine.

OPINION

In his appeal, the defendant asserts two assignments of error:

1. In the absence of proof of the requisite intent, the State failed to
prove beyond a reasonable doubt that Bryan Louis Fogleman was
guilty of creating or operating a clandestine laboratory for the
unlawful manufacture of a controlled dangerous substance.

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2. The trial court violated Bryan Louis Fogleman’s right to present a
defense when it refused to allow the introduction of Stanley
Ammon[s]’s exculpatory affidavit in evidence.

Assignment of Error Number One

Louisiana Revised Statutes 40:983(B) provides that “[i]t shall be unlawful

for any person to knowingly or intentionally create or operate a clandestine

laboratory for the unlawful manufacture of a controlled dangerous substance.”

One may commit the offense of creation or operation of a clandestine laboratory

through “[t]he purchase, sale, distribution, or possession of any material,

compound, mixture, preparation, supplies, equipment, or structure with the intent

that it be used for the unlawful manufacture of a controlled dangerous substance.”

La.R.S. 40:983(A)(1). Methamphetamine is a Schedule II controlled dangerous

substance. La.R.S. 40:964.

In this assignment of error, the defendant does not question the finding that

the contents of the black duffel bag sufficiently met the definition of La.R.S.

40:983(A)(1). Instead, he argues that there was insufficient evidence to establish

beyond a reasonable doubt that he possessed the items in the bag with the requisite

intent to use them to unlawfully manufacture a controlled dangerous substance.

The defendant asserts that the requisite intent is specific criminal intent, while the

state argues that it is only required to prove a general criminal intent to satisfy its

burden of proof.

The defendant argues that the use of phrase “with the intent” in La.R.S.

40:983(A)(1) establishes a specific criminal intent requirement. In asserting this

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argument, he relies on the following supreme court’s language in State v. Elzie,

343 So.2d 712, 713-14 (La.1977): 2

[I]n Louisiana, we require proof of specific intent where the statutory
definition of a crime includes the intent to produce or accomplish
some prescribed consequence (the frequent language being “with
intent to . . .”). See e.g. State v. Lewis, 288 So.2d 348 (La.1974)
(burglary); State v. Fontenot, 256 La. 12, 235 So.2d 75 (1970)
(obscenity); and State v. Daniels, 236 La. 998, 109 So.2d 896 (1959)
(public intimidation), (overruled insofar as a procedural point, State v.
Gatlin, 241 La. 321, 129 So.2d 4, 7--8 (1961), but not as to its
substantive holding). See also LaFave and Scott, Criminal Law,
Section 28 (1972).

In considering the defendant’s argument, we note that in State v. Shumaker,

40,275, pp. 9-10 (La.App. 2 Cir. 10/28/05), 914 So.2d 1156, 1164 (footnote

omitted), the second circuit specifically discussed the intent required for a violation

of La.R.S. 40:983(B) and reached the following conclusion:

The contested statute states that it is unlawful to “knowingly or
intentionally create or operate” a laboratory for the illegal
manufacture of a CDS and lists four groups of activities that may
amount to the crime of creation or operation of a clandestine
laboratory. La. R.S. 40:983. The first group describes activities
encompassing preparatory work for the manufacture of
methamphetamine. See subsection A(1) of the statute. This provision
deals with possession of materials, compounds and equipment, “with
the intent” that they be used for the manufacture of a CDS. In the
absence of qualifying provisions, the term “intent” has reference to
general criminal intent, La. R.S. 14:11, and such general criminal
intent is present when the circumstances indicate that the offender, in
the ordinary course of human experience, must have adverted to the
prescribed criminal consequences of his act or failure to act. La. R.S.
14:10.

In State v. Holmes, 388 So.2d 722, 727 (La.1980), the supreme court stated: “In

general intent crimes, [the] criminal intent necessary to sustain a conviction is

shown by the very doing of the acts which have been declared criminal.”

2
The defendant also cites as authority for his position State v. Robertson, 06-167
(La.App. 3 Cir. 7/16/08), 988 So.2d 294, writ denied, 08-2301 (La. 9/4/09), 17 So.3d 950.
However, we do not find that Robertson addressed the issue of requisite intent required in
La.R.S. 40: 983(A)(1).
6

Based on the language of La.R.S. 14:11, the second circuit’s interpretation

of La.R.S. 40:983 in Shumaker, 914 So.2d 1156, and the language used by the

supreme court in Holmes, 388 So.2d 722, we conclude that creation or operation of

a clandestine laboratory is a general intent crime, and that the mere act of

possessing the items found in the bag is sufficient to prove the general intent to

commit the offense at issue.

Having concluded that the state need only establish that the defendant

possessed the items found in the black duffle bag to establish the requisite intent

required to convict the defendant of the charged offense, we next turn to an

analysis of the evidence presented on the possession issue. The defendant asserts

that it was insufficient to establish his possession beyond a reasonable doubt.

The standard of review in a sufficiency of the evidence claim 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, 319 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);
State v. Mussall, 523 So.2d 1305 (La.1988). A determination of the
weight of evidence is a question of fact, resting solely with the trier of
fact who may accept or reject, in whole or in part, the testimony of
any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27,
35. A reviewing court may impinge on the factfinding function of the
jury only to the extent necessary to assure the Jackson standard of
review. State v. Bordenave, 95-2328 (La. 4/26/96), 678 So.2d 1920.
It is not the function of an appellate court to assess credibility or re-
weigh the evidence.

State v. Macon, 06-481, pp. 5-6 (La. 6/1/07), 957 So.2d 1280, 1285-86.

The defendant argues that his admission to Trooper Nugent regarding his

and Ammons’ use of methamphetamine, coupled with the black duffle bag’s

proximity to his person, are not sufficient factual findings standing alone to satisfy

the state’s burden of proof on the possession element. He notes that the record also

establishes that the vehicle belonged to Ammons; that Ammons was the one who

told Trooper Sharbono that the contraband was not only in the vehicle, but was
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specifically present in the black duffle bag; that he was not in physical possession

of the bag when the contents were discovered by Trooper Sharbono; and that,

based on the conflicting statements made by he and Ammons accusing each other

of intending to later use the contents of the bag to manufacture methamphetamine,

there is reasonable doubt concerning his acts of possession.

In addressing a possession case where the defendant was not in physical

possession of the narcotics at issue, the supreme court in State v. Toups, 01-1875,

pp. 3-4 (La. 10/15/02), 833 So.2d 910, 913 stated the following:

The State need not prove that the defendant was in physical
possession of the narcotics found; constructive possession is sufficient
to support a conviction. The law on constructive possession is as
follows:

A person may be in constructive possession of a drug
even though it is not in his physical custody, if it is
subject to his dominion and control. Also, a person may
be deemed to be in joint possession of a drug which is in
the physical custody of a companion, if he willfully and
knowingly shares with the other the right to control it. . . .
Guilty knowledge is an essential ingredient of the crime
of unlawful possession of an illegal drug . . . .

State v. Trahan, 425 So.2d 1222 (La.1983) (citing State v. Smith, 257
La. 1109, 245 So.327, 329 (1971)).

However, it is well settled that the mere presence in an area
where drugs are located or the mere association with one possessing
drugs does not constitute constructive possession. State v. Harris,
94-0970 (La.12/8/94), 647 So.2d 337; State v. Bell, 566 So.2d 959
(La.1990).
A determination of whether there is “possession” sufficient to
convict depends on the peculiar facts of each case. Factors to be
considered in determining whether a defendant exercised dominion
and control sufficient to constitute constructive possession include his
knowledge that drugs were in the area, his relationship with the person
found to be in actual possession, his access to the area where the drugs
were found, evidence of recent drug use, and his physical proximity to
the drugs. State v. Hughes, 587 So.2d 31, 43 (La.App. 2 Cir. 1991),
writ denied, 590 So.2d 1197 (La.1992); see also Bujol v. Cain, 713
F.2d 112 (5 Cior.1983), cert denied, 464 U.S. 1049, 104 S.Ct. 726, 79
L.Ed. 2d 187 (1984) (listing above factors as well as a sixth factor:
“evidence that the area was frequented by drug users”).
8

Applying the supreme court holding in Toups and viewing the evidence

before us in the light most favorable to the prosecution, we conclude that a rational

trier of fact could conclude that the state met its burden of proof in establishing

beyond a reasonable doubt that the defendant had the requisite criminal intent to

possess the contents of the black duffle bag. See also State v. Ankrum, 573 So.2d

244 (La.App. 1 Cir. 1990); State v. Collins, 43,645 (La.App. 2 Cir. 10/29/08), 998

So.2d 765, writ denied, 09-233 (La. 4/9/10), 31 So.3d 379. Thus, we find no merit

in the defendant’s first assignment of error.

Assignment of Error Number Two

Based on the investigative findings of the June 29, 2010, incident, the state

charged both Ammons and the defendant with a violation of La.R.S. 40:983. On

January 27, 2011, or roughly three months before the beginning of the defendant’s

trial on May 3, 2011, Ammons entered a guilty plea to the charge. Less than two

months later, on March 17, 2011, Ammons executed an affidavit which reads in

pertinent part as follows:

Affiant, Stanley Ammons states that he was arrested on June
29, 2010 for create/operate clad [sic] lab and pled guilty to this charge
on January 27, 2011.

Affiant also states that on June 29, 2010 before being arrested
for the above charge, a person by the name of Byran Fogleman,
PIN#26563 asked him to give him a ride from one place to another.
Affiant states that while giving Mr. Fogleman a ride, he was stopped
and arrested. Mr. Fogleman was also arrested for the same charge.

Affiant further states that Mr. Fogleman had no knowledge
whatsoever that there was [sic] any type of illegal materials inside
affiant’s vehicle or trunk area.

Affiant states that this is a true statement.

Immediately after the state rested its case, the defendant’s counsel

announced that he intended to call Ammons as a witness for the defendant.
9

Although Ammons had already entered a guilty plea to his activity giving rise to

the June 29, 2010, criminal charges, he had other charges pending and at the time

of the defendant’s trial, those charges were subject to the involvement of a sanity

commission which had yet to return a report. The attorney representing Ammons

in the pending charges was not available to consult with his client and the trial

court appointed a representative of the Public Defender’s Office to counsel him

concerning testifying. The appointed attorney conferred with Ammons and then

announced to the trial court that Ammons declined to testify, invoking his Fifth

Amendment privilege pursuant to the United State Constitution.

The defendant’s counsel then moved to introduce the March 17, 2011,

affidavit as a statement against interest under La.Code Evid. art. 804(B). The state

objected, asserting that it was not a statement against interest because it was made

after he entered a guilty plea to the charge. Thus, the state asserted, the affidavit is

inadmissible hearsay. The trial court agreed and rejected the defendant’s motion.

The defendant then proffered the affidavit.

Louisiana Code of Evidence Article 804(B)(3) provides that a statement

against interest is not excluded by the hearsay rule if the declarant is unavailable as

a witness. That Article defines a statement against interest as follows:

A statement which was at the time of its making so far contrary to the
declarant's pecuniary or proprietary interest, or so far tended to subject
him to civil or criminal liability, or to render invalid a claim by him
against another, that a reasonable man in his position would not have
made the statement unless he believed it to be true. A statement
tending to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.

The defendant asserts that the “corroborating circumstances” element is satisfied

by the evidence to the effect that the defendant had asked Ammons for a ride to his

brother’s house, that the materials for the methamphetamine lab were found in
10

Ammons’ vehicle, and that Ammons was the individual who pointed out the

contraband to the investigating officers. The defendant also argues that the

affidavit should have been admitted to safeguard his fundamental constitutional

right to present a defense, and without it the jury was deprived of the evidence it

needed to justly and fairly make a decision in his case.

On the other hand, the state argues that the defendant failed to establish the

trustworthiness of the affidavit. In making this argument, the state points to the

fact that Ammons executed the affidavit over two months after his conviction, and

additionally, that Ammons refused to testify at the defendant’s trial.

In considering these arguments, we first note that a criminal defendant’s

right to present a defense is a constitutional right protected by both the United

States and Louisiana Constitutions. U.S. Const. Amend. 6; La.Const. art. 1 § 16;

State v. Van Winkle, 94-0947 (La. 6/30/95), 658 So.2d 198. Additionally, the right

of a defendant to use a statement made against penal interest has also been

recognized as a fundamental right if presented within certain parameters. In State

v. Hammons, 597 So. 2d 990, 995-97 (La.1992) (footnotes omitted), the supreme

court summarized the history of this fundamental right as follows:

Louisiana’s rule as to statements against penal interest is
closely patterned after Fed.R.Evid. 804. The history of the federal
rule is therefore pertinent.

At common law, only statements against pecuniary or
proprietary interest were originally admissible as an exception to the
hearsay rule. Statements against penal interest were not accepted
because of the fear that such statements, particularly when offered to
exculpate the accused, would be fabricated by the witness testifying to
his knowledge of the statement or by someone who would then make
himself unavailable. 5 John H. Wigmore, Evidence in Trials at
Common Law § 1476-77 (Chadbourn rev., 1974); 4 David W. Louisell
& Christopher B. Mueller, Federal Evidence § 489 (1980); 2
Stephen A. Saltzburg & Michael M. Martin, Federal Rules of
Evidence Manual 401 (5th ed. 1990). Scholars and dissenting jurists
persistently criticized the exclusion of such evidence. Donnelly v.
11

United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913)
(Holmes, J., dissenting); Wigmore, supra, § 1476-77. Eventually
courts began to admit declarations against penal interest. Louisell &
Mueller, supra, § 489; McCormick on Evidence § 278 (Edward W.
Cleary ed., 3rd ed 1984); see Chambers v. Mississippi, 410 U.S. 284,
93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

Prompted by these rulings, Congress incorporated in the federal
rules an exclusion from the hearsay rule for statements against penal
interest. However, because of the traditional suspect nature of
admitting statements by a third-party that exculpate an accused, the
federal rules specifically prohibited admission of these statements
unless the declarant is unavailable and corroborating circumstances
clearly indicate the trustworthiness of the declaration. Fed.R.Evid.
804(b)(3); McCormick on Evidence, supra, § 278; Louisell & Mueller,
supra, § 489.

Statements against penal interest were first recognized by this
court as exceptions to the hearsay rule in State v. Gilmore, 332 So.2d
789 (La.1976). In Gilmore the defendant presented a witness’
testimony that another man had confessed to committing the crime for
which the defendant was charged. The declarant died after making
the statement and was unavailable for trial. Other evidence
established that the declarant had been in a struggle with the victim
moments before the victim was shot and had also confessed the
shooting to others. This court held that this additional evidence
indicating the statement’s reliability, along with the unavailability of
the declarant, made the statement admissible as an exception to the
hearsay rule.

Admission of statements against interest, as a traditional
exception to the hearsay rule, is based on necessity and
trustworthiness. The unavailability of the declarant requirement
generally establishes the need to admit his out-of-court statement.
The “against interest” requirement assures some degree of
trustworthiness, because a person ordinarily does not make a
statement that is disadvantageous to himself without substantial
reason to believe that the statement is true. Louisell & Mueller,
supra, § 489.

Fed.R.Evid. 804(b)(3) requires for admissibility of a statement
against interest the objective determination that “a reasonable man in
his position would not have made the statement unless he believed it
to be true.” This standard is especially appropriate to the admission of
having committed a crime. Louisell & Mueller, supra, § 489;
McCormick on Evidence, supra,§ 279; State v. Rushing, 464 So.2d
268 (La.1985); State v. Hudson, 361 So.2d 858 (La.1978).

When the statement is one against the declarant’s penal interest,
the circumstances surrounding the making of the statement may be
12

significant in determining its trustworthiness. If a declarant admits
sole responsibility for a serious crime, the statement is generally
prima facie against interest so as to satisfy this requirement of the
rule. Louisell & Mueller, supra, § 489. However, if the statement is
clearly self-serving, as when the declarant is seeking favorable
treatment for himself in return for cooperation, the statement may be
deemed not against his interest and thus may fall outside the
exception. Id. Likewise, when the declarant unknowingly speaks to
informants or undercover agents, the statement is usually admissible
under the exception. Id.; see also McCormick on Evidence, supra, §
279; Saltzburg & Martin, supra, 401.

When the statement tending to expose the declarant to criminal
liability is offered to exculpate the accused, La.Code.Evid. art. 804
B(3) expressly requires corroborating circumstances indicating
trustworthiness. The burden of satisfying the corroboration
requirement is on the accused. Louisell & Mueller, supra, § 489
(Supp.1991). That burden may be satisfied by evidence independent
of the statement which tends, either directly or circumstantially, to
establish a matter asserted by the statement. Louisell & Mueller,
supra, § 489. Circumstantial evidence of the veracity of the declarant
as to the portion of the statement exonerating the accused is generally
sufficient. Typical corroborating circumstances include statements
against the declarant's interest to an unusual or devastating degree, or
the declarant’s repeating of consistent statements, or the fact that the
declarant was not likely motivated to falsify for the benefit of the
accused. Id. at 1160.

The first element a defendant must establish in order to obtain admissibility

of a statement against penal interest is that the when the statement was made, it

was “so far contrary to the declarant’s pecuniary or proprietary interest, or so far

tended to subject him to civil or criminal liability, or to render invalid a claim by

him against another, that a reasonable man in his position would not have made the

statement unless he believed it to be true.” La. Code Evid. art. 804(B)(3). We find

that the defendant failed to meet this burden of proof.

This statement was made by Ammons at a time when his criminal troubles

with the June 29, 2010, incident were over. Thus, the statement was not contrary

to his pecuniary or proprietary interest, did not subject him to civil or criminal

liability, and did not invalidate a claim by him against another person. To accept

13

such a statement as an exception to the hearsay rule would, in all probability, open

the floodgates for statements from convicted criminal offenders asserting the

innocence of other untried codefendants. The affiant, in aid of a codefendant,

could simply decline to testify based on his Fifth Amendment privilege, claim sole

responsibility for an offense without any further repercussions to himself, and

avoid cross-examination relative to his motives for making the statement. We find

no error in the trial court’s refusal to allow Ammons’ affidavit introduction into

evidence.

Errors Patent

In addition to the assignment of errors raised by a defendant, La.Code Crim.

P. art. 920 requires that we review an appeal for “[a]n error that is discoverable by

a mere inspection of the pleadings and proceedings and without inspection of the

evidence.” We have performed this error patent review and find no such errors.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s conviction in all

respects.

AFFIRMED.

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