State of Louisiana v. Zachary Alexander Bench

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-79

STATE OF LOUISIANA

VERSUS

ZACHARY ALEXANDER BENCH

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 26440-15
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT-APPELLANT:
Zachary Alexander Bench

John Foster DeRosier
Fourteenth Judicial District Attorney
Ross Murray
Elizabeth B. Hollins
Assistant District Attorneys
901 Lakeshore Dr., Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR STATE-APPELLEE:
State of Louisiana

PICKETT, Judge.

FACTS

Julia Barlow, the victim’s widow, testified that on August 25, 2015, she

spoke to her husband, Jody Barlow, around 8:30 p.m. Julia stated she and the

victim lived in Texas and the victim was at Niblett’s Bluff, an RV Park near

Starks, LA, looking for a place for the two of them to go camping the following

weekend. She testified she spent much of the following day trying to contact the

victim, calling him around 6:30 a.m. on her way to work along with several other

calls and numerous text messages.

Julia stated she left work around 5 p.m. when Jody’s sister contacted her and

told her Jody had failed to meet their dad for coffee. She contacted Jody’s mother,

Tammy, and they began searching for him at hospitals, jails, and anywhere they

could think to look. Julia stated her and Jody’s camper was at the RV park, and she

stayed there on August 26 after she was unable to contact Jody. Julia noted Jody

was familiar with the Starks area, having spent time there while young. Julia and

Tammy reported Jody missing to authorities at 8 a.m. on Thursday, August 27,

2015. Jody’s body was found and identified later that day.

Julia testified Jody had been prescribed medication for Attention Deficit

Disorder. Julia testified that after Jody’s death, she also learned he had been taking

additional medication including the narcotic pain reliever Suboxone which were

delivered to Jody’s father’s house. She testified she only remembered one occasion

during the three and a half years she and Jody were together where Jody seemed

high on narcotics. She further testified that Jody was a loving, generous person

whom she had never known to be violent.

Mr. Steven Hyatt, a life-long resident of Starks, Louisiana, testified that he

saw the defendant, Zachary Alexander Bench, in a side-by-side vehicle on the

morning of August 26, 2015. Mr. Hyatt identified a picture of the victim’s side-by-

side as the vehicle the defendant was riding when Mr. Hyatt spoke to him that

morning. Mr. Hyatt also verified that he had previously picked the defendant out of

a photo lineup.

Mr. Matt Nichols, an employee at Niblett’s Bluff, an RV park, testified that

he spoke with Elizabeth Demarest, the defendant’s girlfriend, between 7:30 and 8

in the morning on August 26, 2015. Mr. Nichols testified Ms. Demarest was upset

and crying and told him she “was looking for Jody and Zack.” He also testified he

knew Ms. Demarest from Vinton High School, as it is a small town, and that she

left through the front gate of the park headed toward a side-by-side.

Mr. James McDonald, a friend of Jody Barlow’s, testified Jody typically

kept his side-by-side at James’s house, as Jody lived in Houston and had nowhere

to store it. He stated Jody had picked up his side-by-side around 10 p.m. on

August 25, 2015. Mr. McDonald also testified that the following morning, he saw

Jody’s truck, pulling his side-by-side on its trailer, but that the truck did not honk

the horn at him like Jody always does. This occurred in front of Mr. McDonald’s

business on Wright Road. Mr. McDonald believed he saw Jody’s truck around 10

or 10:30 a.m., then again about thirty minutes later.

Ms. Brenda Doyle, a fifty-nine-year resident of Calcasieu Parish, testified

that on the morning of August 26, 2015, sometime between 9:45 and 9:55 a.m., she

saw smoke just above the tree line while driving to her mother’s house. She

marked the area where she saw smoke on a pair of aerial photographs of the

Greenmoor area, noting she never saw fire, just the smoke. Ms. Doyle

acknowledged that she never reported the fire she believed she saw. Ms. Doyle did

note however, that it was common for people to burn things in the area and she

only noticed the smoke because there was a strong smell emanating from it.
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Mr. David Smith, a retired Calcasieu Parish resident, testified that on August

27, 2015, he and his wife discovered a body hidden underneath their boat near their

normal fishing spot. He testified he never got closer than about ten feet from the

body, but that he called 9-1-1 once he was able to get out of the woods where his

phone had service.) Mr. Smith noted you would need some type of off-road or

four-wheel-drive vehicle to reach the spot where his boat was located.

Jason Alexander, a Lieutenant with the Calcasieu Parish Sheriff’s Office’s

forensic investigative unit, testified that he oversaw the collection of evidence at

the scene of the crime, assisted in some of the evidence collection, and took

photographs at the scene. The state introduced photographs Lieutenant Alexander

identified as photographs he took at the defendant’s home. The state also

introduced photographs Lieutenant Alexander took at the burn site.

Lieutenant Alexander identified a number of items he recovered, including a

muddy pack of Marlboro Light cigarettes and a muddy Porter-Cable light

recovered from the defendant’s bedroom as well as a Marlin Model 60 .22 caliber

rifle recovered from the living room of the defendant’s home. Lieutenant

Alexander acknowledged on cross-examination that he did not know who owned

the rifle and that he collected evidence irrespective of its ultimate relevancy to an

investigation.

Sergeant Kent Johnson, a ten-year veteran of the Calcasieu Parish Sheriff’s

Office, testified that he recovered a pair of latex gloves at the burn site.

Detective Brandon Peresich, a member of the Calcasieu Parish Sheriff’s

Office’s Forensic Division, testified that he created a hand-drawn sketch at the

body site and recovered evidence from the site. The evidence included a couple of

Marlboro Light cigarette butts, several spent .22 caliber shell casings, and multiple

live .22 caliber rounds.
3

Ms. Melissa Durflinger, a sixteen-year veteran of the Calcasieu Parish

Sheriff’s Office, testified she is part of the Forensic Investigative Unit and took a

number of pictures of the body site which were introduced into evidence. Ms.

Durflinger also collected a partially burned cigarette from next to the victim’s right

hand.

Mr. Charles Hunter, Jr., the chief investigator for the Calcasieu Parish

Coroner’s Office, was certified as an expert in the field of “death investigation.”

He discussed the process the coroner’s office takes in documenting and recovering

evidence from a victim’s body, which in this case included small caliber bullets

taken from the victim’s neck and head.

Jade Marler, a SANE (Sexual Assault Nurse Examiner) nurse at Lake

Charles Memorial Hospital, testified she drew blood and obtained buccal swabs

from the defendant on August 29, 2015.

Terry Faulk, a deputy with the Calcasieu Parish Sheriff’s Office, testified

that he was called out to an area about a quarter-mile west of Greenmoor regarding

the discovery by a couple of people on four-wheelers of a burned-out truck. He

was not sure if it was August 28 or 29, 2015.

Bob Nordan, fifteen-year veteran of the Calcasieu Parish Sheriff’s Office,

testified that he is a security auditor in the corrections department whose duties

include flying a drone in order to get aerial surveillance photographs. Mr. Nordan

stated that on August 28, 2015, he was called out to deploy the drone and take

photographs of the burn site.

Lieutenant Nicholas Heinen of the State Fire Marshal’s Office was accepted

as an expert in the field of fire origin and cause investigation. Lieutenant Heinen

investigated the burned truck, trailer, and side-by-side at a warehouse after the

sheriff’s office secured the vehicle. Lieutenant Heinen testified that the truck “was
4

burned down to the bare metal” and he was unable to definitively determine the

cause of the fire. Lieutenant Heinen noted the truck was powered by diesel, which

burns at a lower rate than gasoline and thus burns longer, and that it is uncommon

for a diesel-powered vehicle to self-ignite. Lieutenant Heinen was unsure of the

date of his examination of the truck.

The state’s next witness was LeeAnn Hebert, the former general manager of

Hebert’s Country Grocery in Vinton, Louisiana. She testified she knew the

defendant by face, but not name, and identified him in open court. Ms. Hebert

testified that the defendant always came to the store in a cut-off shirt and shorts,

and typically bragged about his possessions. She stated that on August 26, 2015,

however, the defendant came in wearing a long-sleeved shirt, a ball cap, and was

very quiet. She also stated it was the first time she had ever seen him wear a ball

cap.

Detective Cory Myers, a sixteen-year veteran of the Calcasieu Parish -

Sheriff’s Office who is currently a vehicle crimes detective, testified that he

worked a missing person’s report on Jody Barlow on August 27, 2015. He

testified that he spoke with the defendant at the defendant’s residence in Vinton.

Detective Myers stated that during this initial conversation, the defendant denied

knowing who Jody was and even acted as if he thought Jody was a woman.

The state then called Michelle Bench, the defendant’s mother. Ms. Bench

testified that on August 25, 2015, the defendant, who was living with her at the

time, left sometime after 10 p.m. to “go somewhere with someone” and that she

went right back to sleep. Ms. Bench stated she woke up about 5:15 a.m. the

following morning and left for work around 6:15 a.m. but did not know if the

defendant was at home. She testified that when law enforcement initially

contacted her, she told them Elizabeth, the defendant’s girlfriend, was looking for
5

the defendant so she assumed he was not home. She also testified the family

owned a camouflage side-by-side and that the defendant had spent about two years

in the Navy.

Ms. Bench testified that the defendant’s biological father disappeared from

his life around the age of seven and that the defendant’s step-father was an

alcoholic who was physically abusive toward the defendant at least once, noting

they believed he had broken the defendant’s ribs in early 2012. Ms. Bench

claimed that it was common for the defendant to wear a ball cap and that he

frequently wore a long-sleeved flannel shirt even when it was hot. She testified that

the defendant had a little trouble with male authority figures and that it pre-dated

his military service and continued after it.

The state next called Detective Patrick Smith, a digital forensics investigator

for the Calcasieu Parish Sheriff’s Office who was a violent crimes investigator in

August of 2015. Detective Smith testified that as part of the investigation he

obtained surveillance footage from Niblett’s Bluff RV Park. The videos

introduced by Detective Smith show Elizabeth Demerest arriving at Niblett’s Bluff

RV Park at approximately 7:39 a.m. and leaving at 7:46 a.m. on August 26, 2015.

Detective Smith also noted he recovered video from approximately 10:25 a.m. the

same day from Dollar General, where Ms. Demerest purchased supplies to treat

burns.

Detective Smith testified video pulled from the Starks E-Z Mart gas station

established both the defendant and the victim were at the gas station

simultaneously prior to Jody Barlow’s disappearance on August 25, 2015. Video

from the Starks Truck Stop also showed the defendant and the victim walking

around the store and approaching the register together, as well as leaving. The

video was taken around 11 p.m. on August 25, 2015.
6

Detective Smith testified video pulled from Hebert’s showed the defendant

getting gas in his truck at 8:32 p.m. on August 25, 2015. The truck left at 8:35

p.m. Another video taken from Hebert’s from August 27, 2015, showed the

defendant wearing a long-sleeved shirt and a ball cap.

Detective Smith testified that on the night of August 27, 2015, he and

Detective Casey LaFargue interviewed the defendant. The defendant executed a

waiver of Miranda rights form at 1:24 a.m. on August 28, 2015. Detective Smith

stated that, initially, the defendant was interviewed as a potential witness, the last

person to see the victim alive. Thus, the defendant was not read his Miranda rights

until about a quarter of the way through his interview. Detective Smith noted that,

after the interview, he subsequently noticed burn marks on the defendant’s body,

including burns to both arms.

Defendant’s Interview

The defendant’s interview with Detectives Casey LaFargue and Patrick

Smith began at 12:51 a.m. on Friday, August 28, 2015. The defendant initially told

the detectives that he had never met Jody. He then stated he met Jody “last night at

the gas station---or maybe it was the night before that.” The defendant stated he

bought Jody some ice when he met him at Hebert’s in exchange for tire spacers for

the defendant’s truck and that he and Elizabeth went to town to hang out with his

friend Brandon. The defendant told detectives he saw Jody again around 1:00 a.m.

when Jody came to his house after seeing his truck. There appeared to be

considerable confusion between the detectives and the defendant regarding when

these events happened.

The defendant stated he tried to wake Elizabeth up to go with him, even

though he claimed he did not want to go with Jody, but she stayed behind. He

claimed that although Jody said he wanted to go to an area called Dynamite, he
7

instead went towards Starks, stopping at multiple gas stations. The defendant

stated that Jody was using a prepaid phone to call people trying to get some “bars.”

The defendant claimed he was getting paranoid because Jody was heading

towards Starks, not Dynamite, so the defendant told him he had bars at his house

so that Jody would bring him home. The defendant stated he pretended to look for

bars before telling Jody he could not find them and that his “baby mama’s tripping

on [him],” at which point he claimed Jody left and he never saw him again.

The defendant stated he told other sheriff’s deputies he was probably the last

to see Jody alive because he had been with him late into the morning, then

proceeded to reiterate that Jody was “fucked up,” had taken three or four Xanax,

was falling asleep at the wheel, and “had a gun on him tripping me out---a little

revolver.” When asked what the gun looked like, the defendant responded “It was

a gray revolver. I didn’t---I never touched it.” The defendant claimed both his

mom and Elizabeth saw him come home around three a.m. that morning. He also

claimed that his mom looked out her bathroom window and saw him. The

defendant claimed that when Elizabeth woke up, he was in a different room and

she got angry and was looking for him around the house and at his grandmother’s

house next door. He then stated he met Jody for the first time Wednesday night.

After Detective Smith asked the defendant to go through his story again, the

defendant stated the last time he saw Jody was about 4 a.m. Detective Smith then

exited the room, and upon re-entry the detectives executed a Miranda rights waiver

form. The defendant stated he decided to go with Jody because it was clear Jody

was not going to leave, so he decided he might as well go and have some fun. The

defendant again stated he started getting worried because Jody headed towards

Starks, not Dynamite, stopped at multiple gas stations, was carrying a gun and had

been taking pills, namely Xanax. He claimed Jody was arguing with someone on
8

the phone about getting more Xanax, and the defendant lied to him about having

pills at his house so that Jody would bring him home. The defendant also claimed

that when he told Jody at his house that he could not find the Xanax that Jody was

annoyed and had his hand on the gun he was wearing on his hip. He was also

adamant that his mother woke up and saw Jody outside the house when they

returned. The defendant stated he was wearing a white t-shirt, sweatpants and

boots when they stopped at the gas stations.

The defendant told the detectives that he was at home sleeping in bed with

his daughter when Elizabeth woke up, to which the detectives informed him that

Elizabeth claimed he was at his friend Brandon’s house. The defendant

subsequently admitted to taking half of a bar himself, and told detectives that Jody

had “quite a few prescriptions in his glove box.” He then claimed they never went

mud-riding and that they never took the side-by-side off the trailer. The defendant

asked the detectives if Jody was okay, to which they responded “[y]ou’re the last

one to see him, so we’re hoping you can tell us.” The defendant repeatedly denied

having ever been to Jody’s camper. The defendant stated that after Jody brought

him home around 4 a.m., he went inside and did not leave again until after the

sheriff’s deputies woke him up around 11 a.m.

Detectives Smith and LaFargue left the defendant alone, during which time

he stated out loud that he “sure hope[d] everything’s okay.” After about ten

minutes alone, the defendant again speaks aloud, wondering why violent crimes is

looking into a missing persons case.

After initially telling the detectives that he had no problem with them

searching his home and truck and telling them he had no problem helping with

anything they needed, the defendant was reluctant to give written consent for the

sheriff’s office to search his home, so the detectives ceased requesting for his
9

consent. Again, the defendant admitted to taking half of a Xanax bar, stating Jody

had already broken them up but also claimed he saw Jody take a whole bar. When

Detective LaFargue mentioned maybe they had gone somewhere else that he had

not mentioned, the defendant was adamant that he had already told the detectives

everywhere that he and Jody went. Again, he stated that he went home and that his

mother saw him when he arrived.

The defendant stated that he was wearing a white shirt in the videos from the

gas stations, as he and Jody switched shirts and he took Jody’s orange cut-off shirt

on the way home. The defendant repeatedly stated that they “never got that side-

by-side off the trailer. When he was with me, that side-by-side was on the trailer.”

At this point, the Detectives exited the room for roughly eight minutes. When

asked about talking to the deputies who woke him, the defendant stated he told

them he did not know Jody because he did not remember his name.

Detectives Smith and LaFargue confronted the defendant with the fact that

his mother said she never saw anyone drop him off, and he continued to insist that

she saw him get dropped off by Jody around 4 a.m. When asked why Elizabeth

would say he was at Brandon’s when he claimed to be asleep in the house, the

defendant stated “[s]he probably just thought---look, she probably thought that in

the emergency situation that we were talking to the police, that’s where she should

say I go.” When asked if Jody had any other guns, the defendant claimed Jody

only had the revolver that he was carrying strapped to his hip.

The detectives continued to disbelieve the defendant’s story that he was at

home from 4 a.m. onwards, given his mother’s statement that she did not see him

come home but saw his daughter asleep on the couch and Elizabeth’s statement

that he was at Brandon’s house. The defendant continued to insist that he was

home the entire time.
10

Going back over the gas stations, the defendant gives descriptions of the

three gas stations he and Jody visited. He stated the reason Jody was cold, which

led to them switching shirts, was the fact the windows were down because they

were smoking; the defendant was smoking Marlboro Red 100’s and Jody was

smoking Marlboro Lights. The defendant informed the detectives that his gun,

which he previously noted he picked up and put by the front door when Jody

brought him home, had been previously returned to his mother’s night stand, then

the recording skipped and the defendant was sitting by himself due to the

detectives’ having to switch disks for the recording.

The defendant acknowledged the detectives did not attempt to speak with

him while they were switching disks. When asked about the weapon he told the

detectives he placed by the door when Jody dropped him off, the defendant stated

it was his mother’s, and the detectives informed him she said there was no way he

went into her room and grabbed the weapon. He claimed he went in without

waking her, despite his prior claims that she was already awake when he came

home. When the defendant stated he was done talking, Detective LaFargue asked

where Jody was and told the defendant that “[h]e’s fucking dead!” Detective

LaFargue then left the room, and the recording was stopped roughly a minute later.

Following the playing of the defendant’s interview for the jury, Detective

Smith went through a detailed series of images from Google Earth that indicated

the location where Ms. Doyle testified she saw smoke was approximately where

Jody Barlow’s truck, trailer, and side-by-side were burned, and which further

indicated Mr. Steven Hyatt would have seen the defendant while the defendant was

driving said truck, trailer, and side-by-side to the burn site. Detective Smith

testified that he spent eight years in the United States Army and discussed the DD

Form 214, the military discharge papers. Detective Smith noted that Jody
11

Barlow’s DD 214 indicates that he was a chemical operations specialist assigned to

the first Special Forces group out of Fort Lewis, Washington. Detective Smith

noted the DD 214 made it apparent Jody Barlow was not Special Forces-trained

and that he received a general separation under honorable conditions but that it also

noted “[m]isconduct. And in parenthesis [sic] it says ‘Drug abuse.’”

Warden Orey Scot Nugent of the Calcasieu Parish sheriff’s prison took the

stand, noting he had been the warden since October of 2015 and had been the

custodian of inmate telephone records since 2004. The state introduced copies of

two telephone calls made by the defendant.

Ms. Cheryl Swearingen, a thirteen-year veteran of the Louisiana State Police

Crime Lab, was recognized as an expert in the field of firearms examination. After

discussing the procedure for test firing and comparing spent rounds, Ms.

Swearingen testified she was able to confirm that none of the recovered rounds

were fired from the Marlin rifle recovered at the defendant’s home. Furthermore,

she determined eight of the nine shell casings recovered were fired from the same

weapon, but she was unable to say with certainty whether the ninth casing was

fired by the same weapon. She testified that aside from the bullet recovered from

Jody Barlow’s neck, the bullet fragments represented pieces of six .22 caliber

bullets pulled from Jody Barlow’s head. Additionally, she noted there were

fragments that were too damaged to determine if they were part of the other bullets

or if they were additional bullets. On cross-examination, Ms. Swearingen testified

the only gun ever submitted to her for testing was the Marlin rifle recovered from

the defendant’s home, which was not the murder weapon.

Ms. Monica Quaal of the Southwest Louisiana Crime Lab was accepted by

stipulation as an expert in forensic DNA analysis. Ms. Quaal testified she was

unable to obtain a good DNA profile from the latex gloves found at the burn site.
12

She also stated the DNA profile she obtained from the recovered koozie belonged

to Jody Barlow. She also testified that she recovered the defendant’s DNA from

two of the cigarette butts which were recovered at the body site and one with the

victim’s DNA on it. Ms. Quaal also testified she found two spots of blood on the

Porter-Cable light recovered from the defendant’s home and that both spots were

matches to Jody Barlow.

Lieutenant Brent Young, of the Calcasieu Parish Sheriff’s Office’s sex

crimes division, testified he was the lead detective on the case when he was senior

sergeant with the violent crimes unit. Lieutenant Young testified that Jody

Barlow’s orange cut-off t-shirt, which the defendant claimed in his interview

would be at his home, was never recovered. Jody’s Porter-Cable flashlight, which

had Jody’s blood on it, was recovered from the defendant’s home.

Lieutenant Young testified that he had listened to the defendant’s jail calls.

The calls were played to the jury, after which and Lieutenant Young noted the

defendant had mentioned potentially going to Arkansas. There was a discussion of

threats which were allegedly made against the defendant’s mother and Elizabeth,

with Elizabeth reporting that she had been run off the road. Defense counsel

repeatedly raised the issue of a man named Pablo Rojas to Lieutenant Young, who

stated they never followed-up on Rojas as a suspect because they could never

eliminate the defendant as a suspect and the evidence kept pointing to the

defendant.

Dr. Terry Welke, the Calcasieu Parish Coroner, was accepted by stipulation

as an expert in the fields of medicine and forensic pathology. Dr. Welke testified

he performed an autopsy on Jody Barlow on August 29, 2015. Dr. Welke stated

Jody Barlow’s death was a homicide as a result of multiple gunshot wounds to the

head and neck, noting there were seven wounds. Dr. Welke’s autopsy report was
13

admitted into evidence. Dr. Welke testified Jody had no defensive wounds on his

body and Dr. Welke felt the order of shots would have been the shot to the back of

the neck,1 followed by the five shots to the right side of the head, then the final shot

to the top of the head.

On cross-examination, Dr. Welke verified the order of shots fired was his

own theory, not something that could be definitively proven. Dr. Welke also

verified that Jody’s toxicology report showed six drugs in his system at various

quantities: phentermine, nordiazepam, alprazolam, buprenorphine,

norbuprenophine, and naloxone. Dr. Welke noted the levels of some of the drugs

were higher than one would normally expect in an individual properly taking

medication but noted that psychiatrists sometimes advise patients to take higher

dosages when the medication is not working properly. Accordingly, he could not

say the levels of the drugs indicated to him a substance abuse issue.

The defendant’s case-in-chief consisted entirely of testimony from the

defendant. Initially, the defendant’s testimony centered on his family life, the loss

of his step-father and the impact of that loss on him, and his “protective,

defensive” personality. Acknowledging that he has a history of lying, the

defendant admitted the following lies with regards to his recorded statement: “I

told the detectives that I was overseas. I told the detectives that Jody Barlow had

brought me home. I told the detectives that my mother had saw [sic] us, and I also

told them that I was telling the truth when I was lying.” He also acknowledged

that during his interview, he was aware that Jody Barlow was dead.

1
Dr. Welke’s report lists the shot to the back of the neck as medium-range, which Dr.
Welke described as being a shot where there is less than two feet between the barrel of the gun
and the victim. The other six shots were of an indeterminate range, meaning some distance
greater than two feet between the gun and the victim.

14

The defendant stated that while he was a veteran who served in the Navy, he

was not a combat veteran nor had he ever been sent overseas. He testified that

while enlisted he was an electronics technician and that he left the Navy over

issues arising from him being a single parent with full custody of his daughter,

noting he was unwilling to give up custody. The defendant also acknowledged that

he received an Article 92 reprimand for returning to base late before he received

his general separation under honorable conditions.

The defendant’s description of how he met Jody was rather identical to the

story he told detectives during his interview, aside from his adding that Jody made

a comment about Elizabeth being cute and asking if she had any friends. The

defendant testified he and Jody discussed going fishing or mud riding either the

next day or on the weekend, but that his phone was turned off so Elizabeth took

down Jody’s number. As in his interview, he testified he and Elizabeth went to his

friend Brandon’s house after leaving the gas station and that he did not see Jody

again until Jody showed up at his house around 11 or 11:30 p.m.

Again, the defendant stated he did not want to go anywhere with Jody, but

that after talking to him he “figured we might have some fun, and I went ahead and

went.” He stated Jody “seemed like he was on something, but that’s not

necessarily odd where I live. And it wasn’t that bad at the time.” The defendant

stated he told Elizabeth he was going, but she was sleeping and chose not to go

with him. The defendant testified they drove around for a few hours while Jody

was drinking and taking multiple drugs from pill bottles in the center console of his

truck including Xanax, again claiming he only had one beer and two pieces of a

Xanax pill.

The defendant testified that he had a habit of calling everyone “Bill” as a

throw-away name when he was not familiar with them and claimed that as the
15

night went on Jody got progressively more annoyed by the defendant continuing to

call Jody “Bill.” The defendant testified that as time wore on and Jody continued

drinking and taking pills, he began falling asleep while driving and getting more

violent and aggressive. The defendant stated that he tried getting Jody to bring him

home but that he was afraid of setting him off since he had been taking Xanax.

The defendant testified that eventually they stopped at Old River Road near

an area called D-Hart Bend, which he described as “a set of trails in a camping

area, follows along a little river.” The defendant testified that Jody again

mentioned Elizabeth, asking him if he could wake her up or else contact one of her

friends, which the defendant claimed put him a little on edge. He then testified he

and Jody put a case with a loaded rifle onto the side-by-side and went riding,

driving five or six miles into the woods before stopping, at which point Jody

continued drinking. The defendant claimed Jody took out the rifle, which he stated

shot .45 caliber rounds, and began trying to shoot banana spiders off their webs.

The defendant testified he was standing next to the side-by-side drinking a

beer and smoking a cigarette, reloading the rifle for Jody and placing the spent

rounds back into the ammo boxes. He stated he eventually reloaded the rifle and

handed it back to Jody while calling him “Bill,” at which point Jody pushed him.

The defendant testified that he had his back turned when Jody pushed him, so he

turned around with his arm cocked back as if to hit Jody, at which point the

defendant claims Jody tried to draw his pistol and the defendant managed to disarm

him and take the pistol. The defendant stated that when he disarmed Jody, he

turned around to face Jody with the pistol in hand, saw Jody raising the rifle while

looking to the side of him, and pulled the trigger, shooting Jody in the base of his

neck. The defendant claimed it was so dark he could not really see well.

16

The defendant testified that Jody was turning towards him with the rifle, so

he fired until the revolver was empty, noting it was an eight-shot revolver. The

defendant stated Jody fell towards him and the defendant pulled the rifle away

from him before realizing what had happened, at which point he panicked. He

testified that after he covered Jody’s body with a small boat to keep animals from

getting at it, he took Jody’s side-by-side because it “was several miles off into the

middle of nowhere, and there was just no way to get out of there without an ATV.”

The defendant testified that once he got back to Jody’s truck, he loaded the side-

by-side back onto the trailer and went home in Jody’s truck, around sunrise.

Th defendant stated that he went home, woke Elizabeth up and told her to

meet him on Greenmoor Road in about fifteen minutes, then drove Jody’s truck as

if they were heading to Dynamite through a logging trail. He testified that once he

drove the truck onto the logging trail, he used a gas can that was in the truck to set

it all on fire “to destroy evidence.” He claimed he was not thinking very clearly

and that he burned himself while igniting Jody’s possessions. When asked why he

did not attempt to sell Jody’s truck and side-by-side, the defendant responded “the

only reason I got on the side-by-side was to get out. And the only reason I took the

truck was because I was an hour away from home, and it was the only way I was

getting home.” The defendant testified that he did not call the police because he

thought it would mean “[his] life was going to be over.”

The defendant testified that when he got home, Elizabeth was the only

person home, but she was sleeping, so he put on a long-sleeved shirt and woke her

up without telling her that anything had happened. The defendant also testified that

he was unsure how the Porter-Cable light with Jody’s blood ended up in his

bedroom, but that he had taken both of Jody’s guns home to dispose of them and

eventually melted them down with an oxy-acetylene torch at his house.
17

The defendant testified that Elizabeth picked him up on Greenmoor Road

without knowing what had happened and that she bought supplies to treat his burn

later when he told her he had burned himself. The defendant clarified that when he

spoke to his mother on a phone call about leaving for Alaska “if he got out,” that

he meant if he was found not guilty he would have to leave, stating it was

impossible for him to be able to make bond and get out without going to trial first.

On cross-examination, the defendant acknowledged the muddy cigarettes

recovered from his house were cigarettes bought by Jody. He also confirmed that

he and Elizabeth both smoked the joint he got from Brandon. The defendant stated

that he commented on Jody nodding off while driving, but that Jody took a

different pill and seemed to be fine after that. When asked why he asked Steven

Hyatt for directions to D-Hart Bend after saying he had been there a few times, the

defendant testified that he did not remember that happening, and that he might not

remember because he was on drugs at the time. The defendant argued Jody went

for his pistol, rather than the loaded rifle the defendant had just handed him,

because it was too close for him to use the rifle but could not explain why the shot

to Jody’s neck went straight through when the defendant testified he was turning

toward him and did not have his back to him. He ultimately stated he was never

sure what had happened to the rifle, but he assumed Jody was raising it toward him

because it was near him when he fell down dead. The state pointed out the

inconsistency with defendant’s initial story that he put on a long-sleeved shirt to

cover up his burns before he woke Elizabeth up, but testified that he woke her up

before he went and burned the truck.

The state questioned the defendant about his destruction of evidence, namely

Jody’s vehicles and guns, noting the defendant destroyed the best evidence of his

claim of self-defense, the rifle with which he claimed Jody was coming after him.
18

The defendant responded that he believed .45 caliber shell casings were found at

the scene and was confused by the state’s assertion that no .45 caliber shell casings

were found at the murder scene. The defendant testified that he did not clean up

the murder scene, that he covered up Jody’s body then jumped in the side-by-side

and ran. His only explanation for why there were no .45 caliber shells at the scene

was his claim that he was placing the shells back into the ammo boxes as he went.

Finally, the defendant could not explain how the final shot happened that would

lead it to pass through the victim’s skull, which Dr. Welke testified could have

been from someone standing over Jody and shooting down.

On December 17, 2015, a grand jury indicted the defendant, Zachary

Alexander Bench, on charges of second degree murder, in violation of La.R.S.

14:30.1; armed robbery with a firearm, in violation of La.R.S. 14:64 and 14:64.3;

and obstruction of justice, in violation of La.R.S. 14:130.1. The defendant went to

trial on the above charges on March 6, 2017, and on March 10, 2017, the jury

found him guilty as charged of second degree murder and obstruction of justice.

The jury found him not guilty of armed robbery with a firearm. Polling of the jury

revealed a 10-2 verdict on the second degree murder charge and a unanimous

verdict on obstruction of justice.

On June 19, 2017, the defendant filed a motion for new trial under La.Code

Crim.P. art. 851, alleging the verdict was contrary to law and evidence; there was

new evidence, namely trial counsel was able to confirm the make and model of the

weapons involved (there were identification issues at trial as the defendant had

taken a blowtorch to the guns); and the “ends of justice would be served by the

granting of a new trial.” The motion was denied without reasons the same day.

On June 23, 2017, the defendant received a mandatory life sentence without

benefit of probation, parole, or suspension of sentence for the second degree
19

murder conviction and a forty-year sentence for the obstruction of justice charge.

Both sentences are at hard labor and were ordered to run consecutively.

The defendant now appeals his convictions and sentences, alleging five

assignments of error.

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 there are no errors patent.

ASSIGNMENTS OF ERROR

1. The evidence presented at trial was not sufficient to negate a claim
of self-defense. In the alternative, the evidence at trial was insufficient
to support a conviction for Second Degree Murder.

2. The prosecutor committed prosecutorial misconduct by
commenting on the evidence or the lack thereof.

3. The trial court erred in interjecting during defense counsel’s voir
dire examination. In the alternative, counsel was ineffective for failing
to object or request a mistrial.

4. The non-unanimous verdict for second degree murder is
unconstitutional.

5. The imposition of consecutive sentences was constitutionally
excessive.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant claims the evidence presented

at trial was insufficient to negate his claim of self-defense or, in the alternative,

that the evidence was insufficient to support a conviction for second degree

murder.

The analysis for a sufficiency claim is well-settled:

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
20

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, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (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 credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however, the
record must reflect that the state has satisfied its burden of proving the
elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Under La.R.S. 14:30.1, second degree murder is relevantly defined as the

killing of a human being “when the offender has a specific intent to kill or to inflict

great bodily harm.” As the fourth circuit recently noted in State v. White, 14-397,

p. 17 (La.App. 4 Cir. 7/29/15), 174 So.3d 177, 189, writ denied, 15-1577 (La.

10/10/16), 207 So.3d 408 (footnote omitted), “to prove second degree murder the

state must prove the killing of a human being either with specific intent or when

the offender is engaged in one of the listed crimes.”

As noted by the defendant, “[t]here is no question that [the defendant] shot

Jody Barlow. [The defendant] took the stand and testified to this fact.”

Nonetheless, the defendant claims he killed Jody Barlow in self-defense. In State

ex rel. D.P.B., 02–1742, pp. 4–6 (La.5/20/03), 846 So.2d 753, 756–57 (footnote

omitted), the supreme court explained an appellate court’s standard of review when

the defendant asserts a claim of self-defense in a homicide case:

“In reviewing the sufficiency of the evidence to support a conviction,
an appellate court in Louisiana is controlled by the standard
enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . . [T]he
appellate court must determine that the evidence, viewed in the light
most favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime had been
proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676,
21

678 (La.1984). . . . Furthermore, in a case in which defendant asserts
that he acted in self-defense, the state has the burden of establishing
beyond a reasonable doubt that he did not act in self-defense. State v.
Brown, 414 So.2d 726, 728 (La.1982). When defendant challenges the
sufficiency of the evidence in such a case, the question becomes
whether, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found beyond a
reasonable doubt that the homicide was not committed in self-defense.
State v. Matthews, 464 So.2d 298 (La.1985).

Under La.R.S. 14:20(A)(1), a homicide is relevantly considered justified

“[w]hen committed in self-defense by one who reasonably believes that he is in

imminent danger of losing his life or receiving great bodily harm and that the

killing is necessary to save himself from that danger.” The defendant testified at

trial that he was terrified, despite having just disarmed Jody, because Jody was

bringing a .45 caliber rifle to bear on him and the defendant was aware of how

much damage a .45 caliber bullet could do to him.

The jury was presented with two arguments about what happened out in the

middle of the woods the night Jody Barlow died. The state argued that the

defendant murdered Jody Barlow with a specific intent to kill or to inflict great

bodily harm. The defendant claimed that Jody had drawn a pistol on him, which

the defendant took from Jody, then went after the defendant with a rifle the

defendant had just loaded. The defendant, fearing for his life, shot Jody in the

head seven times at close range. As noted above, “when the defendant challenges

the sufficiency of the evidence in such a case, the question becomes whether,

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

trier of fact could have found beyond a reasonable doubt that the homicide was not

committed in self-defense.” D.P.B., 846 So.2d at 757.

The only evidence presented to support the defendant’s claim of self-defense

was the defendant’s own self-serving testimony. Indeed, the defendant’s version

of events required Jody Barlow to be coming after the defendant with a .45 caliber
22

rifle to justify the defendant’s belief that his life was in danger and his action based

on said belief. No evidence supported the claim of a .45 caliber rifle being at the

murder scene. No .45 caliber shell casings were recovered from the body site to

corroborate the defendant’s claim that Jody was shooting banana spiders with the

rifle. The defendant testified he decided to melt down and dispose of the rifle

which meant there was no rifle which might have been recovered and tested to

determine if it had indeed been fired recently.

This case boils down to an issue of witness credibility, namely, whether the

jury found the defendant’s story of self-defense credible. Given the defendant’s

admitted history of lying, his prior lengthy set of lies to detectives viewed by the

jury, and the lack of any evidence to corroborate the defendant’s claim that Jody

Barlow was bringing a .45 caliber rifle to bear on him when he shot Jody seven

times in the head and neck at close range, with the first shot being to the back of

his neck, “viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found beyond a reasonable doubt that the homicide

was not committed in self-defense.” Id.

The defendant argues that, alternatively, his conviction should have been for

manslaughter, not second degree murder, because “[a]ny rational trier of fact could

have found [Defendant] established the mitigating factors of manslaughter by a

preponderance of the evidence.” Specifically, defendant argues he never had “the

specific intent to kill or inflict great bodily harm on anyone.” Although the

defendant did not argue that the death of Jody Barlow was manslaughter to the

jury, the jury was nonetheless instructed as to the law regarding manslaughter as a

responsive verdict. Nonetheless, ten members of the jury found the defendant had

committed murder with specific intent rather than manslaughter. Although the

defendant cites State v. Carmouche, 12-1052 (La.App. 3 Cir. 4/3/13), 117 So.3d
23

136, for the proposition that lack of motive may be considered as mitigating

against a finding of specific intent, reliance on Carmouche is misplaced.

In Carmouche, the defendant was charged with second degree murder and

found guilty of the responsive verdict of manslaughter. On appeal, the defendant

argued the evidence failed to establish either second degree murder or

manslaughter, arguing there was no evidence presented to suggest the shooting

happened “in sudden passion or heat of blood immediately caused by provocation

sufficient to deprive an average person of his self-control and cool reflection” as

required by La.R.S. 14:31(A). This court did note that “[a]lthough motive is not an

essential element of second degree murder, ‘a lack of motive may properly be

considered as a circumstance mitigating against specific intent.’” Carmouche, 117

So.3d at 146 (citing State v. Mart, 352 So.2d 678, 681 (La.1977)). However, this

court also upheld the defendant’s conviction for manslaughter given “the evidence

at trial supported the verdict of manslaughter because it could have sustained a

verdict for second degree murder.” Id. at 145.

In the instant case, the state proved specific intent to kill existed. This court

noted in Carmouche that specific intent to kill or inflict great bodily harm can be

found based on a defendant’s “actions during and after the commission of the

offense.” Id. at 146. The Carmouche court noted “specific intent may be inferred

when a wound is inflicted at close range . . . or when a weapon is pointed directly

at the victim.” Id. Additionally, the Carmouche court noted:

Evidence of flight, concealment, and attempt to avoid
apprehension is relevant. It indicates consciousness of guilt and,
therefore, is one of the circumstances from which the jury may infer
guilt. This rule applies notwithstanding that the evidence may disclose
another crime. State v. Brown, La., 322 So.2d 211 (1975); State v.
Graves, La., 301 So.2d 864 (1974); State v. Nelson, 261 La. 153, 259
So.2d 46 (1972). See also State v. Lane, La., 292 So.2d 711
(1974); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966); State v.
Goins, 232 La. 238, 94 So.2d 244 (1957); 29 Am.Jur.2d, Evidence, §§
24

280 et seq., pp. 329 et seq. A court may admit a wide range of
evidence to prove flight, concealment, and attempt to avoid
apprehension. State v. Nelson, supra.

117 So.3d at 146 (citing State v. Davies, 350 So.2d 586, 588 (La.1977)).

In addition to shooting Jody Barlow in the back of the neck from a distance

of less than two feet and following that shot with six more shots to the head, the

defendant fled the scene of the murder, burned up Jody’s vehicle and side-by-side

in order to conceal evidence, then lied to the police about what happened in order

to try and avoid suspicion. All of these actions can be viewed as indicative of the

defendant’s guilty conscience. We find that “viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found

beyond a reasonable doubt that the homicide was not committed in self-defense.”

Jones, 128 So.3d at 597.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant claims the state “committed

prosecutorial misconduct by commenting on evidence or the lack thereof,”

specifically noting the state’s attacking the defendant’s claim regarding the

recovery of .45 caliber shell casings from the body site.

As noted by the defendant, La.Code Crim.P. art. 774 confines the scope of

opening and closing arguments: “The argument shall be confined to evidence

admitted, to the lack of evidence, to conclusions of fact that the state or the

defendant may draw therefrom, and to the law applicable to the case.” As

previously noted, there were no .45 caliber shell or shell casings found at the body

site, where the defendant claimed Jody had been shooting at banana spiders with

the .45 caliber rifle with which the defendant claimed Jody was trying to aim at

him.

25

As noted by the fourth circuit in State v. Wiley, 16-999, p. 23 (La.App. 4 Cir.

11/15/17), 231 So.3d 774, 790, “prosecutors have wide latitude in choosing closing

argument tactics,” and “the trial judge has broad discretion in controlling the scope

of closing arguments.” During closing argument, the state referenced the

defendant’s claim that .45 caliber casings were found at the scene of the murder,

noting that “[n]ot one place at that crime scene was there a .45 casing collected.”

As it was clear, in context, the state was talking about the body site when it said

“that crime scene,” the state’s comment was an accurate reflection of the physical

evidence recovered and entered into the record at trial. The defendant next

complains about the state’s objection to defense counsel talking about the .45

caliber shells recovered from the truck on the ground, as those shells and their

recovery was never in evidence. The objection was sustained because, while the

recovery of those shells was included in the appellate record as part of the state’s

discovery responses, the shells were never discussed or introduced into evidence

during the trial itself. Again, the state’s comment was accurate.

Finally, the defendant contends it was misconduct when the state again

referenced the fact that there were no .45 caliber shells recovered from the body

site during rebuttal argument. Again, the state’s comments are supported by the

record. Despite the defendant’s contention that “[t]heir assertion that there were no

.45 casings recovered was misleading and false, even if the casings were not

admitted into evidence[,]” the fact remains that, taken in context, the state’s

comments were completely accurate. There were no casings found at the scene of

the murder, which is where the defendant argued during his testimony the rifle was

used. As La.Code Crim.P. art. 774 allows argument regarding “evidence

admitted” as well as “lack of evidence,” the state’s comments were completely

proper and within the scope of argument allowed by law. Additionally, the article
26

clearly allows the state to respond to the defendant’s proposed version of events

during rebuttal. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the defendant claims the trial court erred by

interjecting during voir dire or, alternatively, that trial counsel was ineffective for

not objecting to the interjection. The defendant’s argument is based on a portion of

voir dire in which defense counsel was attempting to explain the meaning of the

state having the burden of proof beyond a reasonable doubt. Defense counsel was

attempting to discuss the state’s burden and there appears to be confusion on the

part of prospective jurors regarding that burden. The trial court attempted to help

the defense get the point across that the state must prove its case, not vice versa.

The defendant claims “[d]efense counsel was stripped of voir dire by the court’s

altering of the flow of voir dire and subsequent tainting of the jury pool. However,

no objection was made nor was a mistrial requested by defense counsel. The

failure to do so rendered counsel ineffective.” Additionally, the defendant claims

“[t]he trial court only seemed to confuse the prospective juror even further by its

help. Accordingly, counsel’s performance must be deemed ineffective under the

Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)] standard of

review, and Zachary’s convictions must be reversed.”

This interpretation of the exchange lacks merit. Not only did the prospective

jurors appear to understand, after the court’s interjection, that they should vote not

guilty if they feel the state has not proved its case beyond a reasonable doubt,

defense counsel continued voir dire after the interjection and even noted the trial

judge was attempting to assist her in explaining her point. After two different

potential jurors appeared to be confused about the effect of reasonable doubt on the

state’s burden, the following exchange occurred:
27

THE COURT: Let me just interject here and just say that, you know,
I know it’s kind of hard when we’re only talking about theory and you
don’t have any facts to go along with it to digest and to think about.
But, I mean, I think in theory, like, as you were asked earlier, if the
State said, okay, let’s just say if y’all were the jurors in this case and
the State said, okay, -- and I said, “Okay. Let’s go ahead and get
started. Put on your evidence.” And the State said, “Okay. Look, we
rest. We don’t have any witnesses to call,” what your verdict be?

PROSPECTIVE JUROR: I would have to go to the defense -- I
mean, to the --

MS. GEORGE: Hang on.

THE COURT: Well, hang on a second. Well, I’m going to let you
go ahead and finish your thought. But let me just explain this to y’all.
You understand the State -- is what we’ve talked about all afternoon --
is the State is required to prove the case against Mr. Bench. All these
elements of all these crimes that they’ve talked about, okay, they have
to prove each of those elements to your individual satisfaction beyond
a reasonable doubt. They have to prove that with evidence, okay, that,
you know, -- so that in order to convict Mr. Bench of those crimes,
you have to have no reasonable doubt in your mind, based on the
evidence that’s presented, that Mr. Bench is guilty of those crimes in
order for you to convict him, okay? And they have that burden.

MS. GEORGE: Right.

THE COURT: Mr. Bench and his lawyers, they don’t have to say
anything; they don’t have to do anything under our constitution, you
know?

MS. GEORGE: And so what I’m trying to get at is -- and Judge
Ritchie is giving me an assist here to help explain -- is that it’s a
tiebreaker okay? Who gets the benefit of the doubt in your mind?

PROSPECTIVE JUROR: Then I’ll go with y’all.

MS. GEORGE: Why do you think you should do that?

PROSPECTIVE JUROR: Well, like if he stated, that they rested and
didn’t -- didn’t give any other [sic] for me to decide upon, then I
would go with that.

Nothing about the trial court’s interjection interfered with defense counsel’s

ability to assess the potential jurors’ understanding and acceptance of the law.

Accordingly, there is no merit to the claim that the court’s interjection harmed the

defendant or his trial in any way.
28

With regard to the defendant’s claim that trial counsel was ineffective for

not objecting to the court’s interjection and seeking a mistrial, under Strickland,

the defendant must prove prejudice in order to prevail on a claim of ineffective

assistance of counsel. In order to do so, 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.” Id. at 694. The court’s interjection had no

impact on the defendant’s ability to receive a fair trial, the defendant cannot meet

the burden of proving prejudice. Accordingly, defense counsel’s failure to object

and seek a mistrial was not ineffective assistance. This assignment of error lacks

merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, the defendant claims his conviction for

second degree murder is unconstitutional because it was obtained from a non-

unanimous jury. The defendant argues the trial court erred in refusing to instruct

the jury that they “must all agree to the same verdict.” This assignment of error

lacks merit.

Louisiana Code of Criminal Procedure Article 782 specifically states that

“[c]ases in which punishment is necessarily confinement at hard labor shall be

tried by a jury composed of twelve jurors, ten of whom must concur to render a

verdict.” The defendant acknowledges this law; he acknowledges the Supreme

Court’s ruling in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628 (1972), which

held a state court conviction obtained by a less than unanimous jury was

constitutional, and he acknowledges the supreme court’s recent decision to uphold

the constitutionality of La.Code Crim.P. art. 782 in State v. Bertrand, 08-2215, 08-

2311 (La. 3/17/09), 6 So.3d 738. Nonetheless, he contends the non-unanimous

jury verdict is a denial of due process. As noted above, this argument has been
29

made and denied numerous times and is contrary to Louisiana law as it stands.

Accordingly, the argument lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

In his final assignment of error, the defendant argues the trial court’s

imposition of consecutive sentences is constitutionally excessive. The defendant’s

argument regarding his sentence appears to be confined to the propriety of a

consecutive sentence, rather than the actual length of his sentence for obstruction

of justice. Louisiana Code of Criminal Procedure Article 881.1 provides the

mechanism for preserving the review of a sentence on appeal:

A. (1) In felony cases, within thirty days following the
imposition of sentence or within such longer period as the trial court
may set at sentence, the state or the defendant may make or file a
motion to reconsider sentence.

....

E. Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the

defendant failed to object to the sentence imposed at the sentencing hearing and

did not timely file a motion to reconsider sentence. Thus, this court found his claim

of excessiveness of sentence was barred. See also State v. Williams, 01-998

(La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La. 1/31/03), 836

So.2d 59.

No objection was made to the consecutive nature of the defendant’s

sentences, nor was any motion to reconsider sentence ever filed. However, this

court has reviewed claims of excessiveness where no objection was made and no

motion to reconsider sentence was filed. See State v. Johnlouis, 09-235 (La.App. 3

30

Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10), 38 So.3d 336, cert.

denied, 562 U.S. 1150, 131 S.Ct. 932 (2011); State v. Thomas, 08-1358 (La.App. 3

Cir. 5/6/09), 18 So.3d 127; State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d

342, writ denied, 09-1955 (La. 6/25/10), 38 So.3d 352; State v. H.J.L., 08-823

(La.App. 3 Cir. 12/10/08), 999 So.2d 338, writ denied, 09-606 (La. 12/18/09), 23

So.3d 936; State v. Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38 So.3d 1102, writ

denied, 10-1355 (La. 1/7/11), 52 So.3d 885. Accordingly, we will consider the

defendant’s complaint regarding the consecutive nature of his sentences.

The defendant acknowledges that, under La.Code Crim.P. art. 883, a trial

court has the authority to order consecutive sentences, even when the crimes are

“committed as part of the same transaction or series of transactions.”

Concurrent sentences are preferred when offenses arise out of a
common scheme or plan. A trial court is given the discretion,
however, to impose consecutive sentences in such cases. Louisiana
Code of Criminal Procedure Article 883 states that “[i]f the defendant
is convicted of two or more offenses . . . constituting parts of a
common scheme or plan, the terms of imprisonment shall be served
concurrently unless the court expressly directs that some or all be
served consecutively.” The imposition of consecutive sentences,
however, requires particular justification beyond the standard
sentencing guidelines, justification which must be articulated by the
trial court at sentencing. State v. Compton, 11–68 (La.App. 3 Cir.
6/1/11), 66 So.3d 619, writ denied, 11–1362 (La.12/2/11), 76 So.3d
1177. “The factors to consider when imposing consecutive sentences
include defendant’s criminal record, the severity or violent nature of
the offenses, or the danger the defendant poses to the public.” State v.
Wallace, 11–1258, p. 14 (La.App. 3 Cir. 5/30/12), 92 So.3d 592, 602.

State v. Bethley, 12-853, pp. 11-12 (La. App. 3 Cir. 2/6/13), 107 So.3d 841, 850.

The defendant has no prior criminal history nor did the trial court

specifically find the defendant constitutes an unusual risk of danger to the public.

However, the fact remains that Jody Barlow was shot seven times, once in the back

of the neck at a range of less than two feet and six times in the head. The

defendant met Jody Barlow less than twelve hours before he killed him in the

31

woods, and the defendant went to great lengths to destroy evidence in order to

attempt to avoid being caught. Indeed, in sentencing the defendant, the trial court

stated:

And, just because of the extent to which he went to to try and to get
away with murder, I am going to impose the 40 years, the maximum
sentence at hard labor on Mr. Bench. And, even though, generally,
the law considers that when it arises out of the same set of facts and
circumstances that it generally would be considered concurrent, to be
concurrent, just because there was such a degree that Mr. Bench went
to to try to -- and he almost did it. He almost got away with murder. I
think it’s appropriate to have -- to run this sentence consecutive to the
life sentence to the extent that really matters. And so, I’m going to
impose a 40-year sentence.

Additionally, the trial court noted it considered the aggravating and

mitigating factors and applied them in this case without specifically stating which

factors were applicable. The trial court made it clear that it was sentencing the

defendant to consecutive sentences based upon his attempts to evade responsibility

by destroying evidence and for the violent nature of the killing, noting on multiple

occasions that it did not believe the defendant’s story of how events occurred was

credible. Given La.Code Crim.P. art. 883’s reservation to the trial court of the

authority to give consecutive sentences, we find the trial court committed no error

in imposing consecutive sentences.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

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