KA-0018-0278 Nonprecedential Processed

State of Louisiana v. Joshua David Evans

Louisiana Court of Appeal, Third Circuit · Filed May 22, 2019

Also decided on this docket: La. Ct. App. 3d Cir., December 9, 2020

Authorities cited

Identified automatically; this list may not be exhaustive.

State v. Wommack 770 So. 2d 365
State v. Wommack 797 So. 2d 62
State v. Conway 101 So. 3d 1132
State v. Julien 139 So. 3d 1152
State ex rel. Hamburg v. State 169 So. 3d 383
State Ex Rel. Graffagnino v. King 436 So. 2d 559
State v. Duncan 420 So. 2d 1105
State v. Moody 393 So. 2d 1212
State v. Richardson 425 So. 2d 1228
State v. Kennerson 695 So. 2d 1367
McGrail v. Lee 874 So. 2d 66
State v. Williams 448 So. 2d 753
State v. Bosley 691 So. 2d 347
State v. Rogers 494 So. 2d 1251
State v. Free 499 So. 2d 83
State v. White 674 So. 2d 1018
State v. White 682 So. 2d 760
STATE EX REL. RANDOLPH v. State 719 So. 2d 1048
State v. Allen 742 So. 2d 949
State v. MEGASON 47 So. 3d 31
State v. Thomas 48 So. 3d 1210
State v. Johnson 60 So. 3d 1248
State v. Clark 643 So. 2d 463
State v. Johnson 649 So. 2d 418
State v. Maxey 527 So. 2d 551
State v. Maxey 541 So. 2d 868
State v. Carmouche 117 So. 3d 136
State v. Lively 153 So. 3d 1061
State ex rel. Davillier v. State 157 So. 3d 1124
State v. Gibson 867 So. 2d 793
State v. Murray 799 So. 2d 453
State v. Magee 103 So. 3d 285
State v. Mahogany 225 So. 3d 489
State v. Jacobs 242 So. 3d 1225
234 So. 3d 27 not in our corpus
State v. Young 216 So. 3d 236
State v. Tolbert 849 So. 2d 32
State v. Coleman 756 So. 2d 1218
State v. Holden 30 So. 3d 1053
State v. Sauce 45 So. 3d 1072
State v. Brooks 838 So. 2d 725
State v. Perkins 423 So. 2d 1103
State v. Soler 636 So. 2d 1069
State v. Soler 644 So. 2d 1055
State v. Miller 83 So. 3d 178
State v. Miller 89 So. 3d 1191
State v. Lyles 858 So. 2d 35
State v. Doucet 237 So. 3d 598
State v. Doucet 253 So. 3d 789
State v. Haine 255 So. 3d 1052
State v. Talbot 408 So. 2d 861
State of Louisiana v. Quincy McKinnies, Jr. 171 So. 3d 861
Louisiana State Bar Ass'n v. Cannon 427 So. 2d 827
State v. Jones 381 So. 2d 416
State v. Simmons 414 So. 2d 705
State v. Edwards 420 So. 2d 663
State v. Bertrand 6 So. 3d 738

Opinion text

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 18-278

STATE OF LOUISIANA

VERSUS

JOSHUA DAVID EVANS

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 16-CR 000980
HONORABLE KEITH R.J. COMEAUX, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED
WITH INSTRUCTIONS.

Cooks, J., dissents for reasons stated in the dissent in State of Louisiana v.
Elvin Bryant Jinks, Jr., 2019 WL 1929961 (La.App. 3 Cir. 5/1/19) __So.3d__.

p. 2

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Joshua David Evans

M. Bofill Duhe
District Attorney, Sixteenth Judicial District Court
W. Claire Howington
Craig Colwart
Assistant District Attorneys, Sixteenth Judicial District Court
300 Iberia St., Suite 200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR APPELLEE:
State of Louisiana

p. 3

EZELL, Judge.

On August 9, 2016, the State filed a bill of information charging Defendant

Joshua David Evans with attempted second degree murder, a violation of La.R.S.

14:27 and 14:30.1; simple criminal damage to property, a violation of La.R.S.

14:56; and illegal use of weapons, a violation of La.R.S 14:94. The parties

selected a jury on August 8, 2017. The next day, the jury heard evidence and

returned verdicts of guilty for illegal use of weapons and attempted second degree

murder. The charge of simple criminal damage to property was not presented to

the jury and was ultimately nolle prossed.

On December 1, 2017, the trial court denied Defendant’s motion for new

trial. On December 5, 2017, the court sentenced him to twenty years at hard labor

for attempted second degree murder and two years at hard labor for illegal use of a

weapon. Subsequently, the State filed a bill of information charging Defendant as

a habitual offender. On July 13, 2018, the trial court conducted a hearing and

adjudicated him as a second habitual offender. On the same date, the court vacated

Defendant’s twenty-year sentence for attempted second degree murder and

sentenced him to eighteen years at hard labor for the habitual offender

adjudication. The court further ordered that the sentence run concurrent with the

two-year sentence imposed for illegal use of a weapon and concurrent with an

unrelated conviction.

Defendant now seeks review by this court, assigning six errors. After

review, we find the convictions and sentences should be affirmed.

FACTS

On May 27, 2016, the victim Akeem Rhine was living with his girlfriend

Myiesha Leon, their infant son, and another child who was Defendant’s daughter.

p. 4

On that date, Rhine called Leon from work and they conversed via speaker phone.

Rhine could hear that Defendant was at his residence. He objected to Defendant’s

presence without a prior announcement. Rhine testified he did not want to

interfere with Defendant seeing his daughter, but Rhine expected him to call before

showing up.

Rhine and Defendant texted one another during the day; Defendant called

Rhine as he was getting off work, and the two men argued. When Rhine got home,

Leon was sitting in her vehicle in the parking lot. He tried to show her the series of

texts he and Defendant had exchanged. She was not receptive and drove away to

pick up one of her sons. Rhine followed her; as they pulled away, he noticed

Defendant and three other men on the opposite side of the parking lot near a black

Ford Taurus. Rhine was texting Leon as he drove and accidentally ran into her car.

They both drove home, but they got into an argument. She drove away again, and

he followed her again. They stopped at a nearby four-way stop, Rhine pulled up

alongside her, then noticed the same Taurus he had seen earlier was at the corner;

Defendant got out and shot at Rhine. Rhine and Leon both drove away. Rhine

turned wide and drove into a nearby cemetery, striking a tombstone. He returned

to the road and continued to drive away. He soon saw two deputies in their vehicle

and reported the crime.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we find there is

one error patent. Additionally, the court minutes of sentencing require correction.

First, the court minutes of sentencing indicate Defendant was informed that

he has two years in which to file an application for post-conviction relief. This is

2

p. 5

verified by the sentencing transcript. Louisiana Code of Criminal Procedure

Article 930.8(A) provides defendant has two years after the conviction and

sentence become final to seek post-conviction relief. Although the court minutes

of the subsequent habitual offender sentencing indicate Defendant was told he has

two years from the “date [the] judgment becomes final” to file an application for

post-conviction relief, the transcript from that proceeding indicates he was simply

told he had two years. “[W]hen the minutes and the transcript conflict, the

transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770

So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.

In State v. Conway, 12-525 (La.App. 3 Cir. 11/7/12), 101 So.3d 1132, and

State v. Julien, 13-1327 (La.App. 3 Cir. 5/21/14), 139 So.3d 1152, writ denied, 14-

1406 (La. 5/15/15), 169 So.3d 383, this court found an advisement that defendant

had two years to apply for post-conviction relief was insufficient; thus, it directed

the trial court to inform defendant of the provisions of La.Code Crim.P. art. 930.8

by sending appropriate written notice to defendant within ten days of the rendition

of the opinion and to file written proof in the record that defendant received the

notice. Therefore, the trial court is directed to inform Defendant of the provisions

of La.Code Crim.P. art. 930.8 by sending appropriate notice to him within ten days

of the rendition of this opinion and to file written proof into the record indicating

that Defendant received the notice.

We also find the court minutes concerning Defendant’s sentence for illegal

use of a weapon require correction. The sentencing minutes reflect that the court

originally imposed a sentence of twenty years at hard labor for attempted second

degree murder and a two-year hard labor sentence for illegal use of a weapon. The

minutes then state, “[s]aid sentence is to be served without the benefit of probation

3

p. 6

or parole and is to run concurrent with each other. . . .” However, the sentencing

transcript indicates that only the attempted second degree murder sentence was

imposed without benefit of parole, probation, or suspension of sentence. As

discussed above, the transcript prevails when a conflict exists. Accordingly, the

trial court is ordered to correct the sentencing minutes to accurately reflect that the

sentence for illegal use of a weapon does not contain a denial of probation or

parole.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the State’s evidence was

insufficient to support his convictions. Specifically, he argues the evidence that he

was the shooter was insufficient. He also questions whether intent to kill was

established. He notes that Akeem Rhine was the sole identifying eyewitness.

Defendant correctly cites the established analysis:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, 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.

4

p. 7

Further, he notes that a conviction for attempted second degree murder

requires proof of a specific intent to kill and that a conviction for illegal use of a

weapon requires that death or great bodily harm be foreseeable. Thus, Defendant

presents this court with two alternative arguments: first, there was insufficient

proof that he was the shooter; second, for purposes of the attempted murder charge,

if his identity as the shooter was proved, there was insufficient proof that he had

the specific intent to kill; for the purposes of the illegal discharge of a weapon

charge, if his identity was proved, then the State adduced insufficient evidence that

harm to Rhine was foreseeable. He acknowledges the well-established

jurisprudence that a lone witness’s testimony can support a conviction.

However, he also cites the equally well-established principle that when the

identity of the offender is at issue, any reasonable probability of misidentification

must be negated. He notes that the only witness to identify him as the shooter was

Rhine. He argues that no physical evidence linked him to the shooting and that

Rhine was angry with and jealous of him. The alleged anger and jealousy

stemmed from the fact that Rhine was Leon’s boyfriend and Defendant was her ex-

boyfriend and the father of one of her children. The general circumstances

indicated Rhine may have been concerned that Leon and Defendant still had a

relationship or that Defendant still wanted to have a relationship with Leon.

Defendant notes that Rhine and Leon were both eyewitnesses to events

immediately surrounding the shooting and both testified at trial. After conflicts

earlier in the day, Leon sat crying in her car in the parking lot of the apartment

complex where she and Rhine lived. Rhine knocked on her window, and she drove

away. Rhine followed her. Leon stopped at a four-way stop and noticed a black

Taurus pull up to the stop on her left. Leon recognized the Taurus as belonging to

5

p. 8

a friend of Defendant’s. She saw three men inside but could not identify any of

them. A man in a black hoodie exited the car, but she could not see his face as it

was too dark by that time. Rhine pulled up next to Leon and tried to talk to her but

then she heard gunfire; she made a right turn and fled the scene. In her rearview

mirror, she saw Rhine drive into a nearby cemetery; he backed up and caught up to

her. Rhine then drove off a separate way. Leon picked up her aunt then returned

home, where police were waiting and took her to the police station to give a

written statement. She testified that at some point after the shooting, she called

Rhine to see if he was all right. He accused her of setting him up to be shot.

Rhine testified that he pulled up beside Leon at the four-way stop and

noticed a black Taurus at the corner. Defendant got out of the Taurus with a gun

and started shooting. Although it was dark by that time, Rhine stated there was

enough light from a nearby streetlight to make the identification. He and Leon

both turned; a bullet or bullets broke his window; Rhine ducked. He turned wide,

went into a nearby cemetery, and struck a headstone. He backed out of the

cemetery and drove away. He saw police officers in a nearby parking lot and

reported what happened.

Defendant argues that since Rhine had pulled up beside Leon at the

intersection to talk to her, he would not have been looking left toward the shooter.

Defendant also notes that that Leon testified it was too dark to identify the shooter.

Defendant acknowledges that Rhine told officers that the shooter was “Josh,” the

father of Leon’s child. However, Defendant suggests that Rhine’s identification of

him was unduly influenced by the earlier acrimony between them and from seeing

Defendant earlier in the day.

6

p. 9

Defendant states: “A conviction cannot stand on the testimony of a single

witness whose testimony contains internal contradictions.” However, this is an

overstated extrapolation from the case he cites, State v. Robinson, 02-1869, p. 16

(La. 4/14/04), 874 So.2d 66, 78-79, cert. denied, 543 U.S. 1023, 125 S.Ct. 658

(2004):

Further, this court’s authority to review questions of fact in a
criminal case does not extend to credibility determinations made by
the trier of fact. La. Const. Art. 5, § 10(B); State v. Williams, 448
So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great
deference to a jury’s decision to accept or reject the testimony of
witnesses in whole or in part. State v. Bosley, 691 So.2d 347; State v.
Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499
So.2d 83 (La.1987). In the absence of internal contradiction or
irreconcilable conflict with physical evidence, one witness’ testimony,
if believed by the trier of fact, is sufficient support for a requisite
factual conclusion. State v. White, 28, 095 (La.App.2d Cir.5/8/96),
674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760,
writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

Defendant fails to demonstrate internal conflicts or irreconcilable differences

within Rhine’s testimony. The conflicts and differences shown are those with the

testimony of Leon or matters upon which Defendant feels Rhine was incredible,

such as being able to identify him by the illumination of a streetlight or the

question of which way Rhine was looking when the offender opened fire. As

shown by the jurisprudence already cited, such questions of credibility belong to

the trial jury. Thus, this argument lacks merit.

As for Defendant’s claim that intent to kill was not established, we observe

he fired multiple gunshots in the victim’s direction. This court has stated:

“Specific criminal intent is that state of mind which exists when the
circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.”
La.R.S. 14:10(1).

Because specific intent is a state of mind, it does not need
to be proven by fact; it may be inferred from the

7

p. 10

circumstances and the actions of the defendant. State v.
Allen, 99-320 (La.App. 5 Cir. 7/27/99), 742 So.2d 949.
The existence of specific intent is for the trier of fact to
determine, and review of this determination is correctly
made under the Jackson standard. Id.

State v. Megason, 10-112, p. 5 (La.App. 3 Cir. 10/6/10), 47 So.3d 31,
34. “It is well-settled that the act of pointing a gun at a person and
firing the gun is an indication of the intent to kill that person.” State v.
Thomas, 10-269, p. 7 (La.App. 3 Cir. 10/6/10), 48 So.3d 1210, 1215,
writ denied, 10-2527 (La.4/1/11), 60 So.3d 1248, cert. denied, [565]
U.S. [859], 132 S.Ct. 196, 181 L.Ed.2d 102 (2011).

Mr. Prejean testified at trial that he “looked at a .45 in [his]
face” and that Defendant then shot him in the leg. We find that
pointing a gun in someone’s face and then shooting him, albeit the
bullet entered the leg, is an indication of intent to kill.

. . . .

This court has held “[a]iming a firearm directly at a victim is
indicative of intent to kill or inflict great bodily harm.” State v. Clark,
93-1470, p. 3 (La.App. 3 Cir. 10/5/94), 643 So.2d 463, 466, writ
denied, 94-2715 (La.2/9/95), 649 So.2d 418 (citing State v. Maxey,
527 So.2d 551 (La.App. 3 Cir.1988), writ denied, 541 So.2d 868
(La.1989)). However, this court has also recognized “that a shooting
at close range does not prove specific intent.” State v. Carmouche, 12-
1052, pp. 15-16 (La.App. 3 Cir. 4/3/13), 117 So.3d 136, 146.

In Carmouche, this court looked to additional facts to conclude
the defendant possessed the specific intent to kill. The defendant and
the victim had an acrimonious relationship and had scuffled just prior
to the shooting when the victim threw the first punch. Thus, the
defendant had a motive for the shooting. Also, the defendant fled the
scene and the city to avoid capture.

State v. Lively, 13-883, pp. 11-12 (La.App. 3 Cir. 2/12/14), 153 So.3d 1061, 1068-

69, writ denied, 14-755 (La. 1/16/15), 157 So.3d 1124 (third alteration in original).

Defendant’s act of getting out of a nearby car with a weapon and firing multiple

shots in the victim’s direction formed a sufficient basis for the jury to rationally

infer specific intent the kill. This argument and the assignment as a whole lack

merit.

8

p. 11

We will next address Defendant’s sixth assignment of error out of order, as

it alleges double jeopardy and thus, could lead to reversal of one of the convictions

if found to have merit.

ASSIGNMENT OF ERROR NUMBER SIX

In this assignment of error, Defendant argues that his convictions for

attempted second degree murder and illegal use of a weapon violate constitutional

protections against double jeopardy. The State observes the fourth circuit

addressed a similar argument:

Mr. Mahogany contends that “[t]he convictions for both attempted
second degree murder and the intentional discharge of a firearm
violated the prohibition against double jeopardy.” Mr. Mahogany does
not dispute that the Blockburger test, discussed below, is not met;
rather, he contends that the “same evidence test” was met. He
contends that the same evidence—his shooting at Mr. Brazile with the
intent to do him harm—was used to prove both offenses and that this
violated double jeopardy. He thus contends that his conviction for
intentional discharge of a firearm must be vacated.

Both the Fifth Amendment to the United States Constitution
and Article 1, § 15 of the Louisiana Constitution guarantee that no
person shall be twice placed in jeopardy for the same offense. See La.
C.Cr.P. art. 591 (providing that “[n]o person shall be twice put in
jeopardy of life or liberty for the same offense”); see also La. C.Cr.P.
art. 596. Although La. C.Cr.P. art. 596 speaks of double jeopardy
relative to a second prosecution, the double jeopardy prohibition also
protects an accused from multiple punishments for the same criminal
conduct. State v. Gibson, 03-0647, p. 8 (La. App. 4 Cir. 2/4/04), 867
So.2d 793, 798-99; State v. Murray, 00- 1258, p. 3 (La. 9/18/01), 799
So.2d 453, 454-55 (citing North Carolina v. Pearce, 395 U.S. 711,
717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)) (holding that “[t]he
Double Jeopardy Clauses of the federal and Louisiana constitutions
not only prohibit successive trials for the same offense but also
‘protect [ ] against multiple punishments for the same offense.’ ”).
This principle thus covers the situation presented here of a defendant
charged, tried, convicted, and sentenced in one case for two offenses
arising out of the same criminal conduct.

In State v. Magee, 11-0574, p. 75 (La. 9/28/12), 103 So.3d 285,
335, the Louisiana Supreme Court succinctly set forth, as follows, the
two tests employed by Louisiana courts to determine whether a
defendant’s right against double jeopardy has been violated:

9

p. 12

When the same act or transaction constitutes a
violation of two distinct statutory provisions, in assessing
whether there are two offenses or only one, the Supreme
Court uses the “additional fact” test Blockburger v.
United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76
L.Ed. 306 (1932). Under this test, the provisions of each
statute are analyzed to determine whether each requires
proof of a fact which the other does not. Id. . . .

....

Applying either the Blockburger test or the “same evidence
test,” no double jeopardy violation is established here. In a
prosecution for attempted second degree murder, the State must prove
that the defendant: (1) intended to kill the victim and (2) committed
an overt act tending towards the accomplishment of the victim’s
death. La. R.S. 14:27(30.1). In a prosecution for illegal use of a
weapon during a crime of violence, the State is required to prove:
(1) that the defendant intentionally, or through criminal negligence,
discharged a firearm, (2) that it was foreseeable that it may result in
death or great bodily harm to a human being, and (3) that the
defendant did so while committing, attempting to commit, conspiring
to commit or otherwise trying to get someone to commit a crime of
violence. La. R.S. 14:94.

Comparing the elements necessary for a conviction of
attempted second degree murder with the elements necessary for a
conviction of discharge of a weapon during a crime of violence
reveals that each of the offenses requires proof of additional facts that
the other does not. Attempted second degree murder does not require
the discharge of a firearm; discharge of a weapon does. Attempted
second degree murder requires evidence of specific intent to kill;
discharge of a weapon during a crime of violence does not. Moreover,
attempted second degree murder does not require an underlying crime
of violence; discharge of a weapon does. Thus, the offenses of
attempted second degree murder and discharge of a weapon during a
crime of violence each contain an element of proof that the other does
not require. The prosecution for those two offenses therefore would
not constitute double jeopardy under the Blockburger test, as Mr.
Mahogany acknowledges.

State v. Mahogany, 17-377, pp. 26-30 (La.App. 4 Cir. 7/26/17), 225 So.3d 489,

507-10, writ denied, 17-1416 (La. 5/18/18), 242 So.3d 1225 (footnote omitted)

(alterations in original).

10

p. 13

When the fourth circuit decided Mahogany, Louisiana courts still used two

tests to assess double jeopardy claims; however, the supreme court has since stated

that the Blockburger test is the sole test to be used in such analyses. State v.

Frank, 16-1160 (La. 10/18/17), 234 So.3d 27. Considering the Blockburger

analysis in Mahogany, we find the current assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues the trial court’s

instruction to the jury unduly conflated two of the charged offenses, attempted

second degree murder and illegal discharge of a firearm. He focuses on the

following passage from the instruction:

In order to convict the defendant of the offenses charged, you
must find beyond a reasonable doubt one or more of the following:
that he had specific intent to kill Akeem Rhine and that he
intentionally discharged a firearm and it was foreseeable that such
discharge might result in death or great bodily harm to a human being.

We note, however, there were no objections to the jury instructions. As the

State observes, the controlling statute is La.Code Crim.P. art. 801(C), which states:

A party may not assign as error the giving or failure to give a
jury charge or any portion thereof unless an objection thereto is made
before the jury retires or within such time as the court may reasonably
cure the alleged error. The nature of the objection and grounds
therefor shall be stated at the time of objection. The court shall give
the party an opportunity to make the objection out of the presence of
the jury.

Pursuant to the clear dictates of the article, this assignment was not preserved for

review.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Defendant argues the trial court erred in

some of its evidentiary rulings. The first ruling he complains of is the trial court’s

limitation of his trial counsel’s cross-examination of Rhine. The parties both

11

p. 14

acknowledge that the appropriate standard of review is abuse of discretion. In

State v. Young, 51,101, pp. 10-11 (La.App. 2 Cir. 2/15/17), 216 So.3d 236, 242-43,

the second circuit stated:

[T]he admissibility of a witness’s prior convictions and any extrinsic
evidence is subject to the balancing test required by La. C.E. Art.
403. State v. Tolbert, 03–0330 (La. 06/27/03), 849 So.2d 32, 38. A
trial court is afforded great discretion in controlling the scope and
extent of cross-examination and its rulings will not be
disturbed absent a finding of an abuse of discretion. State v. Coleman,
32,906 (La.App. 2 Cir. 04/05/00), 756 So.2d 1218, 1244. Improper
questioning under La C.E. Art. 609.1 is subject to harmless error
analysis.

We note the relevant colloquy:

CROSS EXAMINATION

BY MR. BURTON:

Q. Akeem were you ever in Pennsylvania?

A. Yes, sir.

Q. Okay. In Pennsylvania, did you get a conviction?

A. Yes, sir.

Q. What were you convicted of?

A. Simple assault.

Q. You were convicted of assault, correct?

A. Yes, sir.

Q. In Pennsylvania, it’s a felony, correct?

A. I think.

BY MR. COLWART:

Objection, Your Honor. Can we approach the
bench?

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p. 15

BY THE COURT:

Approach.

* * *

(Colloquy at bench begins)

BY MR. COLWART:

We’re going to ask for a special instruction. It
may be a felony in Pennsylvania, but it’s a misdemeanor
in Louisiana. I’m not so sure it’s a felony in
Pennsylvania.

BY MR. BURTON:

What is the basis of this?

BY MR. COLWART:

Can I finish? I’m sorry for interrupting you, but --

BY MR. BURTON:

The jurors heard this. We need to step out where
they don’t hear, Judge.

(Colloquy at the bench concludes)

* * *

BY THE COURT:

Let’s retire the jury.

(Jurors retired from courtroom)

BY THE COURT:

Hold on just a second. I want to look at something.
The only thing that can be referred to is the name of the
crime for which he was convicted and the date of
conviction.

BY MR. COLWART:

Correct. So I’m going to ask for an instruction.
First of all, the point he was making was that the victim

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p. 16

BY THE COURT:

They’re going to look it up?

BY MR. COLWART:

Yeah.

BY THE COURT:

Good enough. Let’s bring the jury back.

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p. 21

BY MR. BURTON:

Q. Akeem, I just asked you if you’ve been to Pennsylvania and
[sic]you convicted of a crime. You stated you were. You also stated
that it was a felony, correct?

A. I didn’t state it was felony. I said --

BY MR. BURTON:

I do not.

BY THE COURT:

Stop! Retire the jury.

(Jurors retired from the courtroom)

BY THE COURT:

Mr. Rhine, you go outside the courtroom.

I don’t know that, Craig. I don’t know it for a fact.
I have no earthly idea. Maybe the RAP sheet has been
expunged. I don’t know that. He has a right to explore
what the witness says.

During the bench conference, the court mistakenly cited La.Code Crim.P.

art. 609 instead of La.Code Crim. P. art. 609.1 as authority but ruled in defense

counsel’s favor, noting the evidence that had entered the record at that point would

remain in the record. The trial court admonished both counsel regarding their

behavior in front of the jury. Defendant moved for a mistrial due to the

prosecutor’s statements before the jury. The court denied the motion but stated it

would revisit the issue if the State failed to clarify the relevant facts on redirect.

When cross-examination continued, Rhine admitted to two Louisiana convictions:

one for destruction of property and a marijuana conviction as a juvenile. On

redirect, Rhine refreshed his memory by reading over a copy of his Pennsylvania

plea agreement, then testified he was convicted of simple assault. The State sought

to enter a copy of the Pennsylvania documentation into the record, but the court

sustained Defendant’s objection. Defendant did not re-urge the motion for mistrial.

However, Defendant’s motion for new trial included an argument that the motion

for mistrial should have been granted. In the motion for new trial, as in the current

appeal, Defendant alleged his case had been prejudiced by hearing the prosecutor

make statements about Rhine’s record in front of the jury; in effect giving unsworn

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testimony. Defendant also complains that he was not allowed to “delve into” detail

of Rhine’s prior convictions.

Although the State agrees with Defendant that the trial court erred by relying

on La.Code Evid. 609, it cites the text of La.Code Evid. art. 609.1, which states, in

pertinent part:

A. General criminal rule. In a criminal case, every witness by
testifying subjects himself to examination relative to his criminal
convictions, subject to limitations set forth below.

B. Convictions. Generally, only offenses for which the witness
has been convicted are admissible upon the issue of his credibility,
and no inquiry is permitted into matters for which there has only been
an arrest, the issuance of an arrest warrant, an indictment, a
prosecution, or an acquittal.

C. Details of convictions. Ordinarily, only the fact of a
conviction, the name of the offense, the date thereof, and the sentence
imposed is admissible. However, details of the offense may become
admissible to show the true nature of the offense:

(1) When the witness has denied the conviction or denied
recollection thereof;

(2) When the witness has testified to exculpatory facts or
circumstances surrounding the conviction; or

(3) When the probative value thereof outweighs the danger of
unfair prejudice, confusion of the issues, or misleading the jury.

As the State points out, Rhine admitted to the Pennsylvania assault

conviction, which was clarified to be simple assault, as well as a Louisiana

conviction for destruction of property, and a marijuana-related conviction when he

was a juvenile. As the State observes, the juvenile conviction could have been

ruled inadmissible pursuant to La.Code Evid. art. 609.1(F). It appears Defendant

was able to address all of the information he was entitled to under the relevant

article. For the reasons discussed, we find the trial court did not abuse its

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discretion in its handling of the evidence regarding Rhine’s prior convictions,

including its treatment of the motion for mistrial. This argument lacks merit.

Returning to Defendant’s other argument, the substance of it can easily be

addressed since the State clarified that Rhine’s Pennsylvania conviction was for

simple assault. Thus, the prosecutor’s earlier assertion regarding the conviction

was correct. Therefore, there is little likelihood that the prosecutor’s outburst

prejudiced Defendant’s case. Thus, this argument lacks merit.

Next, Defendant complains that Rhine and the State violated the court’s

sequestration order. At trial, defense counsel alleged the prosecutor spoke to a

deputy and the victim at the same time, despite the rule of sequestration. The

prosecutor acknowledged that while he was talking to a deputy, the victim walked

up to them, but they did not stop the conversation. In response to the court’s

questioning, the prosecutor stated that he and the deputy were discussing the

possibility of locating security cameras, presumably in the area of the shooting.

The court denied Defendant’s motion for mistrial because there was no security

camera footage introduced at trial. On appeal, Defendant points to no use of

security camera evidence in the trial. Thus, as a factual matter, the conversation

had no substantive bearing on the trial or any of the testimony. Consequently,

Defendant has failed to show prejudice. Therefore, the trial court did not err in

denying the motion for mistrial. See State v. Holden, 45,038 (La.App. 2 Cir.

1/27/10), 30 So.3d 1053, writ denied, 10-491 (La. 9/24/10), 45 So.3d 1072.

Next, Defendant argues the trial court erred by allowing the jury to view

maps on which Rhine and Leon had made notations. After the jury retired for

deliberations, it asked to see two Google-map photographs depicting the area of the

crime scene. Defense counsel said, “I might have an objection,” noting that the

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maps had marks on them that had been made by witnesses. The court treated this

statement as an objection and overruled it, explaining that the marks were not

testimonial.

The fifth circuit has explained:

La. C.Cr.P. art. 793 generally prohibits “access to any written
evidence” for its verbal content and prohibits the repeating of
testimony to jurors during deliberations. State v. Brooks, 01-0785 (La.
1/14/03), 838 So.2d 725, 727 (per curiam). The Louisiana Supreme
Court has recognized that jurors may inspect physical evidence in
order to arrive at a verdict, but they cannot inspect written evidence to
assess its verbal contents. State v. Perkins, 423 So.2d 1103, 1109 (La.
1982).

This Court has found that the general rule as expressed by
Article 793 is that the jury is not to inspect written evidence except for
the sole purpose of a physical examination of the document itself to
determine an issue, which does not require the examination of the
verbal contents of the document. State v. Soler, 93-1042 (La. App. 5
Cir. 4/26/94), 636 So.2d 1069, 1081, writ denied, 94-1361 (La.
11/4/94), 644 So.2d 1055. The danger that La. C.Cr.P. art. 793 seeks
to avoid is that the testimony or written evidence in question will be
given undue weight. State v. Miller, 10-718 (La. App. 5 Cir.
12/28/11), 83 So.3d 178, 198, writ denied, 12-0282 (La. 5/18/12), 89
So.3d 1191, cert. denied, 568 U.S. 1157, 133 S.Ct. 1238, 185 L.Ed.2d
177 (2013).

In State v. Lyles, 03-141 (La. App. 5 Cir. 9/16/03), 858 So.2d
35, 48–49, the defendant was convicted of two counts of indecent
behavior with a juvenile. On appeal, the defendant contended that the
trial court erred in allowing the jury to view, during jury deliberations,
a diagram drawn by the victim. The defendant also contended that
allowing the jury to view the diagram during deliberations was not
harmless error.

At trial, the victim drew a diagram depicting the layout of the
room in which the offense occurred and the location of other
individuals in the room, including the defendant. The diagram was
received into evidence without objection. This Court found that unlike
a photograph, which was a reproduction of a physical object or scene,
the diagram in its case was drawn by a witness/victim in conjunction
with her testimony. It asserted that the jury’s viewing of the diagram
was for its verbal contents, i.e., the victim’s testimony regarding the
description of the room and its occupants. Therefore, this Court found
that the trial court erred in allowing the jury to view the diagram.
However, it further found that the error was harmless in that it did not

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depict what occurred or any other significant fact nor did it bear
directly on the element of the crime. This Court noted that the
evidence of each element of the offenses was clear.

In the instant case, State’s Exhibit 18 is a one-page document
that contains several pictures and writing on it. The bottom right hand
portion contains the drawing the jury wanted to see, namely, a picture
of a person behind bars. Next to that picture is written, “You’re a
monster . . .” Above that picture is a drawing of another person, and
next to that person is written, “I’m going to kill you when I get out of
this place!” In the top right hand corner is a gavel with the words,
“Not guilty!” written next to it. In the middle of the page is a drawing
of what appears to be a girl, and next to that drawing are the words,
“This is all just a bad dream . . . and you’re never waking up!!!” In the
top left hand corner is a drawing of a girl with the words, “We didn’t
gather enough evidence, so we think you have been lying to us and
there was no case.” Below that picture is a drawing of a person, who it
appears has cut marks on her arms. In the bottom left hand corner,
there is a drawing of an individual, and there are words next to it
stating, “Look at what you’ve done!!!” At the top of the exhibit in the
middle are the words, “Was it because of me? Yeah, it was me . . .”

In this case, our review reveals that the trial judge erred by
permitting the jury to view State’s Exhibit 18 during jury
deliberations. That exhibit contained numerous writings that
duplicated the victim’s testimony by written words contained on that
page. As such, we find that the jury could have viewed the exhibit for
its verbal contents, i.e., the victim’s feelings and emotions about
defendant wanting to kill her, about going to court, and about
committing suicide, which she had testified about at trial. Thus, when
the trial judge allowed the jury to view this document with the
victim’s writings, the jury was allowed “access to . . . written
evidence” for its verbal content, which is prohibited by La. C.Cr.P.
art. 793.

Nevertheless, we further find that this error was harmless in that
the exhibit did not depict what occurred during the crimes themselves
or any other significant fact nor did it bear directly on an element of
the crime. See Lyles, supra. Here, as noted above, without viewing the
document in question, a rational trier of fact could have found that the
evidence was sufficient under the Jackson standard to support
defendant’s conviction of aggravated rape of a known juvenile under
the age of thirteen. Although this argument has merit, any error is
harmless.

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p. 30

State v. Doucet, 17-200, pp. 13-16 (La.App. 5 Cir. 12/27/17), 237 So.3d 598, 608-

09, writ denied, 18-77 (La. 10/8/18), 253 So.3d 789, writ denied, 18-196 (La.

11/5/18), 255 So.3d 1052.

The present case clearly hung upon the credibility of Rhine, and the exhibits

do not appear to be of a kind that would render him more believable. Even with

the marks on them, they more likely served the purpose of helping jurors visualize

the scene. Therefore, this argument lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, Defendant argues the trial court erred by

denying his motion for new trial, which was based upon La.Code Crim.P. art.

851(B)(2) and (B)(3). As the State observes, the supreme court has discussed the

appropriate law and analysis:

Grounds for seeking a new trial are set forth in La.C.Cr.P. art.
851, which provides in pertinent part:

. . . The court, on motion of the defendant, shall grant a
new trial whenever:

(1) The verdict is contrary to the law and the evidence;

(2) The court’s ruling on a written motion, or an
objection made during the proceedings, shows
prejudicial error;

(3) New and material evidence that, notwithstanding
the exercise of reasonable diligence by the
defendant, was not discovered before or during the
trial, is available, and if the evidence had been
introduced at the trial it would probably have
changed the verdict or judgment of guilty;

(4) The defendant has discovered, since the verdict or
judgment of guilty, a prejudicial error or defect in
the proceedings that, notwithstanding the exercise
of reasonable diligence by the defendant, was not
discovered before the verdict or judgment; or

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(5) The court is of the opinion that the ends of justice
would be served by the granting of a new trial,
although the defendant may not be entitled to a
new trial as a matter of strict legal right.

La.C.Cr.P. article 851 also states the new trial motion is based on the
supposition that an injustice has been done to the defendant. A
defendant has the burden to show an injustice was done to him, or the
motion will be denied, no matter what allegations are raised.

A motion for new trial alleging newly discovered evidence
requires the defendant to prove additional allegations of fact, listed in
La.C.Cr.P. art. 854:

(1) That notwithstanding the exercise or reasonable
diligence by the defendant, the new evidence was
not discovered before or during the trial;

(2) The names of the witnesses who will testify and a
concise statement of the newly discovered
evidence;

(3) The facts which the witnesses or evidence will
establish; and

(4) That the witnesses or evidence are not beyond the
process of the court, or are otherwise available.

We have previously held:

Thus, a new trial shall be granted based on Article
851(B)(3) when: (1) new evidence was discovered after
trial; (2) the new evidence is material; (3) the failure to
discover the evidence was not due to a lack of diligence
on the part of the defense; and, (4) had the evidence been
introduced, the verdict or judgment of guilty probably
would have been changed.

La.C.Cr.P. art. 858 limits our review of the trial court’s ruling
on the new trial motion: “In reviewing the granting or the refusal to
grant a new trial, neither the appellate nor the supervisory jurisdiction
of the Supreme Court may be invoked, except for error of law.”
Therefore, we review the trial court’s ruling on the new trial motion
only for legal error. An abuse of the trial court’s discretion in ruling
on a new trial motion on the ground of newly discovered evidence
presents a question of law.

This court will attach great weight to the exercise of the trial
judge’s discretion. “On the other hand, the discretion vested in the

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trial court must be exercised in whole-hearted good faith and be
guided by the statutes, not by the court’s private opinion of what the
statute ought to be. Where the exercise of discretion is arbitrary and
not judicial, and the judgment is unjust, it will be set aside.” It has
been described as “self-evident,” that when “discretion is
inappropriate an incorrect decision is not entitled to deference. For
example, a trial court has no discretion or choice to disregard statutory
rules . . . in deciding a new trial motion.”

This court explained the duty of a trial judge considering a new
trial motion based on newly discovered evidence in State v. Talbot[,
408 So.2d 861 (La.1980) (on rehearing)]:

The scope of the trial judge’s duty toward the motion for
a new trial based upon the new evidence must be kept in
mind. It was not for him to determine the guilt of
[another alleged suspect] or the innocence of [the
defendant]; it was not for him to weigh the new evidence
as though he were a jury, determining what is true and
what is false. The judge’s duty was the very narrow one
of ascertaining whether there was new material fit for a
new jury’s judgment. If so, will honest minds, capable of
dealing with evidence, probably reach a different
conclusion, because of the new evidence, from that of the
first jury? Do the new facts raise debatable issues? Will
another jury, conscious of its oath and conscientiously
obedient to it, probably reach a verdict contrary to the
one that was reached on a record wholly different from
the present, in view of evidence recently discovered and
not adducible by the defense at the time of the original
trial?

We have found that the trial judge’s duty is an objective test, “in that
the trial judge does not sit as the ultimate arbiter of the resolution of
the case once the new evidence is considered, that is, the trial court
does not weigh the evidence.” In other words, “[t]he role of the trial
court is to review the evidence constituting the State’s case, not to
determine the sufficiency of the evidence, but to evaluate the effect of
the newly discovered evidence.”

State v. McKinnies, 13-1412, pp. 7-10 (La. 10/15/14), 171 So.3d 861, 868-69

(footnotes omitted) (first, second, fourth, fifth, and sixth alterations in original).

There were three main arguments in the motion for new trial. First,

Defendant argued that his motion for mistrial, discussed in the previous

assignment, should have been granted. As noted earlier, he argues his case had

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been prejudiced by the actions of the prosecutor who waved a piece of paper in the

air during the argument over Defendant’s prior criminal record. This argument

lacks merit for the reasons discussed in an earlier assignment in regard to this

issue.

Defendant’s second argument is that the State did not disclose to him until

after trial that Rhine had told the State before trial that he wanted to drop the

charges. Further, Defendant argues this fact was “Brady material” that should

have been disclosed to him pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194 (1963), which requires the State to disclose evidence favorable to the

defense. At the hearing on the motion for new trial, the trial court ruled that

Rhine’s request to drop the charges did not affect Rhine’s testimony because it was

not based upon any assertion that Defendant did shoot at him. Rather, Defendant

had apparently contacted Rhine and given reasons for the shooting, which led the

victim to ask to drop the charges. Also, the court observed that the decision to

pursue the case was in the control of the State, not Rhine.

The present case clearly hinged upon Rhine’s testimony. Thus, any fact

bearing upon that testimony was subject to Brady disclosure. Nonetheless, if

Rhine’s request to drop the charges had been revealed to the defense and in turn

put before the jury during trial, any discussion of the request would have included

the assertion that Defendant did in fact shoot at Rhine or at least that he admitted to

Rhine that he shot at him. As already noted, the victim’s basis for asking to drop

the charges was that Defendant had given reasons for the shooting, not that he

denied the shooting. Therefore, the court did not abuse its discretion in its ruling on

this issue, and this argument lacks merit.

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p. 34

Defendant’s third argument is that Leon lied during her trial testimony

because she was afraid of Rhine, who was abusive. At the hearing on Defendant’s

motion for new trial, Leon’s affidavit was submitted in lieu of testimony. In the

affidavit, she asserted that Rhine was not in a position to see who the shooter was,

that an earlier collision she had with Rhine was not an accident as he had struck

her car deliberately and told her to lie about it, that when she had called Defendant

about the accident he had said he was at his sister’s house, and that while she could

not identify the shooter, she had noted that none of three men she had seen in the

Taurus at the scene had Defendant’s skin tone.

The court ruled that the assertions in the affidavit were not “newly

discovered” and they could have been reached via cross-examination. Leon did

not identify the shooter during her trial testimony. Also, Louisiana courts generally

view recantation of trial testimony with suspicion. State v. Clayton, 427 So.2d 827

(La.1982). As discussed earlier, Leon testified at trial. As discussed in the Jackson

review in the first assignment, the existing testimony left a legitimate question,

albeit one resolvable in the State’s favor, regarding whether Rhine was in a

position to the see the shooter. Thus, this facet of the case was not hidden from the

jury. Leon’s assertion in her affidavit was merely an explicit version of what some

trial evidence implied. Thus, it could be viewed as cumulative. Also, the record

shows that Leon was an ambivalent State witness who provided little positive

evidence to advance the State’s case. Another matter raised in the affidavit was a

phone call Leon allegedly made to Defendant in which he indicated he was not in

an area near the crime scene. However, as the trial court pointed out, this

information, if true, would have been known to Defendant himself and thus was

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p. 35

not newly-discovered. The trial court did not abuse its discretion in its ruling.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

In his fifth assignment of error, Defendant argues his trial counsel was

ineffective for failing to object to the jury instructions and for failing to object to

the non-unanimous verdict. As he correctly observes, any claim of ineffective

assistance of counsel is subjected to the two-part test set forth by Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). First, it must be demonstrated

that counsel’s performance was deficient. Second, said deficiency must have

prejudiced the defendant at issue.

The portion of the instructions that Defendant alleges was erroneous was

cited earlier in our discussion of the second assignment of error. Our reading of

that passage suggests it was neither incorrect not confusing; it named the offenses

and correctly stated the intent level for each. Also, as the State suggests, the

instructions as a whole correctly stated the relevant law, including the elements of

each offense. It seems unlikely that the short passage Defendant now attacks

would have misled or confused the jury in light of the overall jury charge.

Defendant has not demonstrated either component of Strickland.

Regarding the non-unanimous verdict, the State correctly notes that

Louisiana jurisprudence has upheld the constitutionality of such verdicts. The

supreme court has stated:

This Court has previously discussed and affirmed the
constitutionality of [Louisiana Code of Criminal Procedure] Article
782 on at least three occasions. In State v. Jones, 381 So.2d 416
(La.1980), we ruled that Article 782 did not violate the Sixth and
Fourteenth Amendments. Later, in State v. Simmons, 414 So.2d 705
(La.1982), we found that Article 782 did not violate either the Fifth or

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Fourteenth Amendments. Finally, in State v. Edwards, 420 So.2d 663
(La.1982), we again affirmed the statute’s constitutionality.

State v. Bertrand, 08-2215, 08-2311, p. 6 (La. 3/17/09), 6 So.3d 738, 742. The

recent constitutional change requiring unanimous verdicts has no effect on the

current case. As noted earlier, the trial took place in August of 2017. Although the

state constitution has since been amended to require unanimous verdicts, that

amendment explicitly does not apply to felonies committed prior to January 1,

2019. La.Const. art. 1, § 17.

This assignment of error lacks merit.

CONCLUSION

Defendant’s convictions and sentences are affirmed. The trial court is

instructed to correctly inform Defendant of the provisions of La.Code Crim.P. art.

930.8 by sending appropriate written notice to Defendant within ten days of the

rendition of the opinion and to file written proof in the record that Defendant

received the notice. Additionally, the trial court is ordered to correct the

sentencing minutes to accurately reflect that the sentence for illegal use of a

weapon does not contain a denial of probation or parole as reflected in the court

minutes of sentencing.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED
WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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