State of Louisiana v. Miles J. Guidry

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-867

STATE OF LOUISIANA

VERSUS

MILES J. GUIDRY

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 156140
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and John E. Conery, Judges.

Conery, J., concurs.

CONVICTION AND SENTENCE AFFIRMED.

Keith A. Stutes
Fifteenth Judicial District Attorney
Michele S. Billeaud
Assistant District Attorney
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Miles J. Guidry

Miles J. Guidry
Louisiana State Prison
Camp D Hawk 3-R-3
Angola, LA 70712
PRO SE:
Miles J. Guidry

GREMILLION, Judge.

Defendant, Miles J. Guidry, was charged by indictment on March 23, 2016,

with one count of second degree murder, a violation of La.R.S. 14:30.1. On May

24, 2016, he waived formal arraignment and entered a plea of not guilty. Defendant

filed numerous motions, including a “Motion for Prieur Hearing,” “Motion to

Suppress Search of Vehicle In Colorado,” “Motion to Suppress Gruesome but

Otherwise Extremely Prejudicial Photographs and Evidence,” “Motion to Exclude

the Note Recovered from the Suzuki XL-7 by Glendale Police,” “Motion in Limine

to Exclude Irrelevant and Inadmissible Character Evidence,” “Motion in Limine to

Exclude Evidence of Prior Bad Acts as it is Inadmissible Hearsay,” and “Motion in

Limine to Preclude the Forensic Pathologist from Offering Any Opinion Testimony

Outside His Written Reports.” All of the motions were denied by the trial court.

Defendant then sought supervisory writs with this court as to the gruesome

photographs, and this court remanded the matter, ruling that the trial court must make

an individual determination as to each of the over 400 photographs.

Trial began on May 7, 2018, and on May 15, 2018, a unanimous jury returned

a verdict of guilty. At the May 29, 2018 sentencing hearing, the trial court ruled on

Defendant’s May 25, 2018 motion for a new trial, advising him that the motion was

denied. Defendant then made an oral motion for a post-verdict judgment of acquittal,

which was also denied. Defendant was then sentenced to the statutorily-mandated

life imprisonment at hard labor without benefit of probation, parole, or suspension

of sentence, and the trial court instructed him that he was given credit for time

served. On May 29, 2018, Defendant filed a Motion for Appeal and Designation of

Record which the trial court granted on May 31, 2018. Defendant assigns the

following errors, which we address in differing order:

1. The trial court erred in allowing inadmissible other crimes
evidence to be admitted.

2. The trial court erred in denying defense counsel’s challenges for
cause.

3. The trial court erred in denying defense counsel’s Motion in
Limine regarding the note found in Miles Guidry’s vehicle.

4. The trial court erred in allowing Detective Neil St. Cyr to testify
as an expert in several areas.

5. The trial court erred in allowing Dr. Christopher Tape to testify
to information not in his autopsy report.

6. The trial court erred in that the evidence, when viewed in a light
most favorable to the prosecution, was insufficient to find Miles
Guidry guilty of second degree murder.

7. The trial court erred in denying defense counsel’s Motion to
Suppress Gruesome or Otherwise Extremely Prejudicial
Photographs and Evidence.

FACTS

On November 28, 2015, the victim, Claire Walley, and Defendant brought

their four-week-old son to the victim’s mother’s house so that the couple could go

out and celebrate Defendant’s birthday. At approximately 11:40 p.m., the victim

and Defendant returned to pick up their son, talked to the victim’s mother about

returning the next day to watch the Saints game, and then went home.

The next morning at about 6:00 a.m., Defendant’s mother received a call from

Defendant instructing her to come over to his home he shared with the victim and

told his mother to enter through the back door. Once Defendant’s mother arrived,

she tried to enter through the back door, but it was locked, so she let herself in

through the side door and discovered a trail of blood on the floor that lead to the

victim. Defendant’s mother then observed the victim lying on the floor in a pool of

blood, with more blood coming from a cut on her neck, and a knife nearby. After

calling her husband for support, she then called 911 as she tended to her grandson

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who she found crying, but unharmed, in a back room of the house. One of the

responding officers, Deputy Jordan Ancelet, arrived and found two deputies on the

scene. The three officers then entered the residence and found the deceased victim

on the floor. The officers began to search the house to make sure there were no other

occupants. After completing the sweep of the house, the officers exited the house to

avoid contaminating the crime scene. The officers then ran the information on

Defendant’s vehicle to attempt to locate it, and cameras located the vehicle, via its

license plate, going into Texas at about 3:49 a.m. Defendant was subsequently

stopped for speeding in Woodville, Texas and issued a citation; however, the officer

was delayed in receiving information that there was a warrant for Defendant’s arrest.

Defendant was eventually located in Glendale, Colorado, when Officer Trace

Warrick observed Defendant’s vehicle parked in an empty parking lot at 4:00 a.m.

on December 7, 2015. After the officer ran the license plate and learned of the

warrant for a homicide connected with a possible occupant of the vehicle, Defendant

was handcuffed, and the vehicle was treated as a crime scene. Defendant was then

sent back to Lafayette and booked into jail.

SUFFICIENCY OF THE EVIDENCE

In assignment of error six, Defendant contends the evidence introduced at trial

was insufficient to sustain his conviction of second-degree murder. We consider this

assignment of error first, in accordance with State v. Hearold, 603 So.2d 731

(La.1992).

The analysis for a sufficiency of the evidence 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
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.
3

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 weight 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 “[w]hen the offender has a specific intent to kill or to inflict

great bodily harm[.]” As the fourth circuit noted in State v. White, 14-397, p. 17

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

1577 (La. 10/10/16), 207 So.3d 408, “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.” “The severity of the attack on the victim is

an indicator of the defendant’s specific intent to kill.” State v. Corley, 97-235, p. 6

(La.App. 3 Cir. 10/8/97), 703 So.2d 653, 659, writ denied, 97-2845 (La. 3/13/98),

712 So.2d 875.

In the instant case, Defendant contends that “[t]he essential elements of the

crime of second degree murder were not proven beyond a reasonable doubt. In the

alternative, it is respectfully submitted the trier of fact erred in finding Miles guilty

of second degree murder instead of manslaughter as the record supports such a

reduction.”

First, Defendant argues that too many errors were committed at the

investigatory stage and at trial to allow a verdict of guilty beyond a reasonable doubt.

To support his claim, Defendant highlights several alleged errors, many of which

will be addressed in the assignments of error that follow due to Defendant’s claims

4

regarding the inadmissibility of certain pieces of evidence and claims regarding

rulings made by the trial court on some of Defendant’s motions.

He first notes that a detective with the Lafayette Police Department, Detective

Chris Beasley, testified that a suspect was immediately identified, which negated the

need to prioritize the identification of a fingerprint found on one of the homicide

weapons. Defendant also argues that the fingerprint that was found did not match

Defendant and was not able compared to the victim because the victim was laid to

rest without being fingerprinted.

Secondly, Defendant points to the fact that all of his motions were denied by

the trial court.

Defendant next points out that one juror was a member of law enforcement

(Kimberly Sassau) and another was a relative of the victim (Fritz Farrar). This issue

is fully and more appropriately discussed in assignment of error number two.

The next alleged error Defendant urges is his assertion that highly prejudicial

“other crimes” evidence was admitted. The alleged inadmissible “other crimes”

evidence is testimony from Detective St. Cyr, an investigator for the Lafayette

Sheriff’s Department, regarding marijuana he found when he opened some of the

evidence boxes he received pursuant to the warrant executed by the Glendale Police

Department. Defendant objected to the admissibility of the testimony as highly

prejudicial “other crimes” evidence because possession of marijuana is illegal in

Louisiana; however the trial court ruled it admissible with the agreement that the

State would bring out the fact, through questioning, that Defendant was not

committing a crime when he purchased and then possessed the marijuana since he

was in Colorado, where it is legal. The admissibility of this evidence is addressed

below. The evidence regarding the possession of marijuana was properly admitted.

5

Defendant alleges that the crime scene was contaminated because of the

unknown number of people who entered the residence after the murder. He bases

this argument on testimony by Deputy Jordan Ancelet with the Lafayette Sheriff’s

Office indicating that he did not know how many people entered the house prior to

his arrival. Further, Defendant points to Deputy Ancelet’s testimony that he lacked

training in crime scene integrity, and the only formal training he received was a basic

course in the police academy about things like what not to step on when securing a

crime scene. Deputy Ancelet did testify that he was only in the home long enough

to verify that no one else was inside so as not to contaminate the scene any further

than it might be contaminated during their sweep, then he and two other officers

secured the scene by putting up crime scene tape to secure a primary and secondary

perimeter. Defendant states that Detective Shea of the Lafayette Police Department

testified that he was the only person at the crime scene wearing protective garments;

however, his testimony, when asked whether he had on protective garments was,

“We wore gloves and, I call them booties.” Actually, it was Detective Beasley who

testified that when the scene was being processed, he was the only person wearing

Tyvek sleeves and a surgical mask in addition to the booties they wore.

According to Defendant, another error was the admission into evidence of a

highly prejudicial, unauthenticated note found in Defendant’s vehicle. The note in

question was found pursuant to the search executed by the Glendale Police

Department on Defendant’s vehicle following his arrest in Colorado. The note,

which was read out loud by Detective Wroblewski with the Glendale Police

Department, explained Defendant’s actions and stated in relevant part:

This letter is not intended to be my excuse for why I did what I did,
just an insight to the monster that built up inside of me and the cause
that unleashed him. Claire did not deserve what she received, and
now I am here full of regret and sorrow who [sic] are stricken with

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pain by my actions. Worst of all, I fear for our son and the life of
opportunity that I have denied him. . . .

Before Wyatt was born, there was great stress between us.
Our arguments increased in frequencies up until a few weeks before
his birth. . . . She didn’t want others to know about our problems
though every now and then I would get so worked up feeling
disrespected that I would forcefully grab her wanting her to
understand my anger, but that would only lead her to fear me and
want to leave. . . . I would get physical. It wasn’t her faults [sic]
that angered me. I loved her and accepted them. It was her inability
to admit to them. . . . To make matters worse, I was constantly in
school the entire time she was pregnant and that carried stress into
us. . . . Whenever I wasn’t consumed by school work, I would be at
home, cook for her, tend to her needs, and all I wanted in return is
to let me put all my attention on school for a few days so that I can
achieve. Every time I would start getting into a rhythm, she would
bring something up that pushes my buttons. . . . It made me feel so
unsupported in my school work after as supportive I felt I’ve been
with her and the pregnancy whenever I have a chance. . . . It grew
resentment in her towards me, that her life is now over because of
the baby. It would anger me so much that she was taking away the
joy of being a parent. . . . [N]o matter what I said or did, that negative
feeling towards me persisted. . . . I felt unwanted. . . . I just wish
she would have taken the time to respect how my busy life consumes
my time necessary away from her. It was this constant feeling of a
lack of respect that I had, after I felt I had done well enough to
deserve it. That grew into rage. . . .

Defendant also cites the failure of twenty-two swabs of DNA to be submitted

for testing as another error supporting his claim that the evidence was not sufficient

to find him guilty of second degree murder. Detective Beasley testified that he did

not submit twenty-two of thirty-seven DNA swabs for testing; however, he did state

that later in the investigation other people would sometimes submit swabs to the lab

after finding out additional information. Defendant also notes that there was a

backpack found near the victim’s head that was never swabbed.

Defendant next points to the testimony of Winnie Kurowski, a forensic

chemist with the Acadiana Crime Lab. On direct examination, Ms. Kurowski

testified about the testing of blood samples on a bread knife found at the scene. Ms.

Kurowski stated that the DNA profile on that knife matched the profile of the victim,

7

and no other DNA profiles were found on these samples. Ms. Kurowski was

questioned on cross-examination about testing of blood evidence. She testified that

the crime lab tested samples that they deemed to be of probative value. Out of

twenty-three items, seven were not tested for the presence of blood, because the

crime lab did not suspect that they would be probative in nature; however, Ms.

Kurowski did state that the defense, prosecution, or law enforcement agencies

involved in the investigation could request testing on any items that had not been

tested. Some of these items that were not tested included an infant onesie, a swab

from a PT Cruiser, a swab from a set of blinds, a swab from a first aid kit latch, the

victim’s fingernails, and a swab from a bottle. Ms. Kurowski further testified that

there was DNA present on the blade of the kitchen knife that did not match either

the victim or Defendant. She further testified that to avoid cross-contamination of

the samples, they wear gloves and masks, they wear their hair back, they keep their

nails short, and they do not eat or drink near the samples. Despite these precautions,

Ms. Kurowski stated that cross-contamination can still occur, and in the situation

here with the mixed DNA profile, because the lab was not able to attribute the DNA

profile to anyone associated with the case, they included in the report that the DNA

profile could have been from contamination from a lab employee.

Finally, according to Defendant, Dr. Christopher Tape, a forensic pathologist

who performed the autopsy on the victim, was erroneously allowed to testify to

information that was not included in his autopsy report, admitted to making

mistakes, and his autopsy report indicated no prior trauma to the victim’s abdomen

despite her having had a C-section four weeks before. On direct examination, Dr.

Tape testified that he performed an autopsy on the victim and found that she had

suffered fatal incise wounds, which are slices made with a knife or other bladed

object, across the whole front of her neck. These wounds were multiple cuts that
8

formed the same wound, and these cuts damaged the vascular structures and airway

in her neck. Dr. Tape stated that his interpretation of the neck wounds was that they

were formed from multiple sawing motions across the neck and that the purpose of

doing that would be to kill, possibly in an attempt to decapitate the person. Dr. Tape

later testified regarding the manner in which the wounds may have been inflicted.

When the State asked him what the left side of the cut being deeper than the right

side would indicate, he stated that it would be consistent with someone making cuts

from behind the victim using their right hand. Defendant objected to this hypothesis

because Dr. Tape had not included it in his report, but the trial court overruled the

objection. Similarly, Defendant objected to Dr. Tape’s testimony regarding his

opinion that the wounds were not done in an instant because the sawing motion takes

time and there were several cuts because Defendant stated that this testimony was

also outside the information contained in his report. The trial court also overruled

this objection. These issues are discussed in assignment of error number six.

In its reply brief, the State argues that the evidence supporting Defendant’s

guilt is abundant. For example, the State points to the testimony of DNA analysts,

Carolyn Booker and Ms. Kurowski, who both testified as to their analyses of the

blood evidence. The State notes that Ms. Kurowski testified that the analysis of the

blood found on Defendant’s clothes that he was last seen wearing and the blood on

the serrated knife found at the scene showed that it was victim’s blood. Further, she

testified that blood found on the victim’s abdomen belonged to Defendant. When

Defendant was arrested, he had an injury to his hand that he stated was from a self-

inflicted cut that he sustained after midnight on November 29th, but he would not

provide further details about how it was sustained. Booker testified that her analysis

of the DNA found on the straight-edge knife belonged to both the victim and

Defendant. Regarding the note found in Defendant’s vehicle, the State argues that
9

the note provided an explanation from Defendant as to why he committed the acts

in question.

The State also points to the circumstantial evidence presented at trial. The

victim was found wearing the same clothes she was last seen in by her mother the

night before, which would indicate that the murder happened not long after she

arrived home for the night. Further, the trail of blood led from the victim’s body

through the house to Defendant’s bloody clothes and to the couple’s baby. As noted

above, when Defendant was arrested, he had an injury to his hand. The jury was

presented with information about Defendant fleeing despite making plans to see the

victim’s mother the next day and that when Defendant was found, he appeared to be

living in his car and was in possession of the victim’s wallet as well as the

previously-mentioned note that explained Defendant’s actions. The State further

notes that the jury was also presented with evidence regarding the victim’s injuries,

including a punctured lung, punctured liver, and cuts to her neck so severe that Dr.

Tape could not testify to how many wounds were inflicted there.

Alternatively, Defendant argues that he is entitled to a reduction of the

conviction to the lesser included offense of manslaughter. Louisiana Revised

Statutes 14:31(A) defines manslaughter, in pertinent part, as follows:

(1) A homicide which would be murder under either Article
30 (first degree murder) or Article 30.1 (second degree murder), but
the offense is committed in sudden passion or heat of blood
immediately caused by provocation sufficient to deprive an average
person of his self-control and cool reflection. Provocation shall not
reduce a homicide to manslaughter if the jury finds that the
offender’s blood had actually cooled, or that an average person’s
blood would have cooled, at the time the offense was committed . .
..

Sudden passion and heat of blood are mitigating factors that defendant must prove

by a preponderance of the evidence. State v. Cofer, 16-871 (La.App. 3 Cir. 4/5/17),

216 So.3d 313, writ denied, 17-1150 (La. 5/11/18), 241 So.3d 1014.
10

Defendant argues that given the couple’s plans to return to the victim’s

mother’s house the next day, if Defendant did commit the crime, it must have been

done in sudden passion and heat of blood. To further support this claim, Defendant

hypothesizes that the stress of school, work, and a newborn became too much, and

an argument ensued which caused him to snap and kill the victim.

There is no evidence in the record supporting a reduction to manslaughter.

Aside from Defendant’s hypothesis, there is nothing in the record that even

approaches a preponderance of the evidence for any mitigating factors.

Considering the evidence presented in this case and the jurisprudence above,

the unanimous guilty verdict was a rational decision pursuant to Kennerson. As the

record supports a rational conclusion that Defendant had the specific intent to kill or

inflict great bodily harm of the victim, this assignment of error is without merit.

OTHER CRIMES EVIDENCE

In Defendant’s first assignment of error, he alleges that the trial court erred in

allowing inadmissible other crimes evidence to be admitted. The admission of this

evidence occurred when the State’s witness, Detective St. Cyr, was being questioned

on direct examination. The following exchange took place:

Q. Okay. So was that evidence that was collected pursuant to
that search warrant, was it sent to you?

A. Yes, ma’am.

Q. Tell me how that – what’s that process? What happens when
you’re getting evidence from another state or another jurisdiction?

A. They box it. And in this situation, they put it in two separate
boxes that are sealed by the crime scene tech that obtained the
evidence. She then initials it, that it’s sealed. She ships it to us
which in this case was Fed-Ex. We sign for it upon its arrival, and
then I took pictures of the box that’s still sealed and signed.

Q. So when you get the boxes – and it’s Fed-Ex’d to you, is what
you said?

11

A. Yes, ma’am.

Q. When you get that box, you open that box and how is the
evidence stored in that box?

A. It’s all individually packaged.

....

Q. Did you open any of them?

A. I did open some of them, yes.

....

Q. So I want to talk about maybe the ones that you did open. Did
you open – well, which ones did you open?

A. I don’t necessarily recall all the items I opened. I know I
opened the notebook, the laptop, maybe the package of marijuana.

MR. LUSKIN: Objection, Judge. Can we have a sidebar?

THE COURT: On the record I’m sure, right?

MR. LUSKIN: On the record.

THE COURT: Okay. Remove the jury, please.

(AT THIS TIME THE JURY WAS ESCORTED FROM THE
COURTROOM.)

DEPUTY SHERIFF: Twelve jurors and two alternates have exited
the room.

THE COURT: All right. Please be seated, ladies and gentlemen.

MR. LUSKIN: Judge, I think you can guess my objection here. The
State’s witness just testified to a package of marijuana. Before he
testified to the package of marijuana, he made it clear where that
marijuana came from. In fact, the State walked him through how
secure the process was getting from the car to here. Marijuana,
possession of marijuana is a crime.

THE COURT: Not in Colorado.

MR. LUSKIN: It’s 404 evidence that was not sought to be admitted
by the State, that was not part of their 404 motion. The witness just
testified to it in front of the jury. We’re moving for a mistrial, Judge.

THE COURT: I’m sorry?
12

MR. LUSKIN: That’s our basis for a motion for a mistrial.

MS. BILLEAUD: Your Honor, the State’s position is, you know, I
did not know that Detective St. Cyr was going to mention that, and
– but the marijuana is legal in Colorado and that’s where it was
obtained. And I believe even in the car, and I’m willing to – you
know, we can find that and introduce that as well, that there was a
receipt that it was bought in Colorado.

I think that any error that was made can be easily corrected by giving
an instruction to the jury that that is not a crime in Colorado and that
he didn’t break any laws, so it should not be held against him or be
considered a crime in any manner or any kind of wrong doing at all
because it wasn’t. It was a completely legal action that he did while
he was in Colorado. And I think that would cure the problem. I
mean, it shouldn’t be held against him. We’re telling them that. It’s
not a crime there.

THE COURT: Well, it also could be cured if you would just ask
him about that receipt, if they found out whether it was bought in
Colorado.

MS. BILLEAUD: I absolutely can.

THE COURT: And then he says yes, and then you ask him why he
didn’t arrest Miles for possession of marijuana, and then he says
because it’s legal in Colorado and not a crime over there. And then
you go on and then everything’s solved and I don’t have to give them
a limiting instruction.

MS. BILLEAUD: Okay.

MR. LUSKIN: Judge, if I can briefly. It’s legal under federal law.1

THE COURT: What?

MR. LUSKIN: Possession of marijuana is legal under federal law,
right. The fact that it’s legal in Colorado doesn’t necessarily render
it harmless. This was specifically addressed. This has been
specifically addressed repeatedly. I put it in my motion in limine for
this exact reason. We had a 404 hearing in order to clarify what
exactly the State was going to seek to use in terms of prior bad acts.
This wasn’t part of that. This was never intended to be part of that.
It’s too late. We can’t unring the bell. This is now – this is the third
or the fourth piece of evidence that’s been brought out through this
witness. Each one of those pieces of evidence I’ve taken an issue

1
The transcript shows that defense counsel incorrectly stated that possession of marijuana was
legal under federal law; however, in a following argument, discussed below, when using the same
line of reasoning, counsel correctly states that possession of marijuana is a federal crime.
13

with, unauthenticated evidence, hearsay evidence, and now we’ve
got 404 evidence. The jury’s heard all of that.

A limiting instruction is going to be unsuccessful. It’s not going to
cure the prejudice. Further questioning of Detective St. Cyr is not
going to cure the prejudice. It’s too late. I think we need a mistrial.
That’s the only way to fix this. We can start fresh.

THE COURT: Denied. Anything further before we bring the jury
in?

MR. LUSKIN: Not at this time, Judge.

THE COURT: All right. Bring the jury in.

The State then asked the following:

Q. Detective, before we broke you mentioned that one of the
items that you located was marijuana?

A. Yes, ma’am.

Q. Did you arrest Mr. Guidry and charge him with possession of
marijuana?

A. No, ma’am.

Q. Why not?

A. The marijuana was located in a vehicle in Colorado. There
was a receipt with the marijuana indicating that he purchased it in
Colorado. And as far as my knowledge, it’s not illegal to possess or
purchase marijuana in Colorado.

Q. So it was not a crime—

A. No, ma’am.

Q. —that he had committed at that point?

A. No, ma’am.

Later, Defendant again argued for the need for a mistrial pursuant to La.Code

Crim.P. art. 770, which states in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a
remark or comment, made within the hearing of the jury by the judge,
attorney, or a court official, during the trial or in argument, refers
directly or indirectly to:

14

....

(2) Another crime committed or alleged to have been
committed by the defendant as to which evidence is not admissible;

....

An admonition to the jury to disregard the remark or comment
shall not be sufficient to prevent a mistrial. If the defendant, however,
requests that only an admonition be given, the court shall admonish the
jury to disregard the comment but shall not declare a mistrial.

He further argued that possession of marijuana is a federal crime, that Defendant is

being prosecuted in Louisiana where possession of marijuana is a crime, and that

Louisiana procedural and substantive laws were being applied. The trial court again

denied Defendant’s motion for a mistrial.

In his brief, Defendant contends that under La.Code Evid. art. 404(B), “other

crimes” evidence is generally prohibited from being introduced unless it is being

introduced to show the defendant’s “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake or accident.” See State v. Harris, 383 So.2d

1 (La.1980). He notes that this court previously said, “[t]he prohibition against

evidence of other crimes is largely based upon the excessively prejudicial effect

upon the accused’s constitutional presumption of innocence of the crime for which

(alone) the accused is on trial.” State v. Dixon, 628 So.2d 1295, 1298 (La.App. 3

Cir. 1993) (citing State v. Morris, 362 So.2d 1379, 1380 (La.1978)). Defendant

asserts that the marijuana found in his possession was inadmissible because it was

not introduced to show any of the enumerated exceptions to the prohibition against

other crimes evidence.

The weight of Defendant’s argument rests on his assertion that the legal status

of marijuana in Colorado, where Defendant was found possessing it, is of no moment

when he is being prosecuted in Louisiana, under Louisiana law, where it is against

both Louisiana state law and federal law. See La.R.S. 40:966; 21 U.S.C. § 811.
15

Additionally, Defendant notes that Colo. Const. art. 18, § 16 2 still requires that

individuals be twenty-one years of age or older to buy or sell marijuana and that they

have a government issued identification to show proof of age. Defendant then points

to the fact that his driver’s license was expired, which the officer who issued the

citation in Woodville, Texas testified to at trial, making it illegal for him to purchase

in Colorado.

Defendant points to State v. Womack-Grey, 99-416 (La.App. 4 Cir. 5/17/00),

764 So.2d 108, where the fourth circuit held that testimony regarding the defendant’s

illegal drug use, which was unrelated to the crime being prosecuted, was

inadmissible as other crimes evidence because its prejudicial effect far outweighed

its relevance. In that case, the court granted a mistrial under La.Code Crim.P. art.

770(2). Id. This case was subsequently overturned by the supreme court which held

that the testimony regarding the drug use was harmless error because the defendant’s

own admissions, which established her involvement in helping her cohort conceal

the murder for which she was convicted, were far more compelling than the

testimony of her illegal drug use, which was unrelated to the crime. State v.

Womack-Grey, 00-1507 (La. 12/7/01), 805 So.2d 1116.

In its reply, the State argues that Defendant failed to accept the admonition

offered by the court, and instead, objected to it, moving only for a mandatory mistrial

which was denied by the trial court.

The State then notes that under La.Code Evid. art. 404(B)(1), other crimes

evidence is prohibited when it is being offered to demonstrate a person’s character

and that he acted in conformity therewith. Here, the State asserts, and we agree that

the question was meant to demonstrate to the jury that the officer had only opened a

2
In his brief, Defendant cites article 185 of the Colorado Constitution; however, article 185 does
not exist. Rather, Colo. Const. art. 18, § 16 contains the point of law he is referring to.
16

few pieces of evidence prior to trial and was not meant to speak to the character of

Defendant. Further, following Defendant’s objection to the admission of the

testimony regarding the marijuana, the State asked the officer follow-up questions

that demonstrated to the jury that Defendant had committed no crime or wrongdoing

by possessing the marijuana in Colorado. The State asserts that it was not required

to provide notice of the testimony, nor was the testimony in violation of La.Code

Evid. art. 404(B), because no law was broken.

The jury was provided with testimony that Defendant did not commit a crime

while in possession of marijuana in Colorado. The admission of testimony that he

was in possession of marijuana does not violate La.Code Crim.P. art. 770, which

states that a mistrial is mandatory when the judge, prosecutor, or a court official

makes a direct or an indirect reference to an inadmissible crime committed by the

defendant.

Additionally, the State contends that Defendant’s second request for a mistrial

was not timely because the record reflects that it was made fifteen pages following

the State’s follow-up questions, rather than contemporaneously with the questions.

According to the State, even if the testimony regarding the marijuana is found to be

other crimes evidence, admitting it into evidence amounted to harmless error given

the other “overwhelming evidence” in this case.

As noted by the State, this court stated:

[I]t is well established jurisprudence in Louisiana that inadmissible
other-crimes evidence is subject to a harmless error analysis. In State v.
Peloquin, 04–667, pp. 5–6 (La.App. 3 Cir. 11/17/04), 888 So.2d 393,
397, writ denied, 04–3170 (La.4/8/05), 898 So.2d 1280, this court
discussed harmless error in the context of inadmissible other-crimes
evidence, as follows:

In State v. Johnson, 94–1379 (La.11/27/95), 664 So.2d 94,
the trial court erroneously admitted other crimes evidence
introduced by the State to attack the credibility of the
defendant under La.Code Evid. art. 609.1. In Johnson, the
17

supreme court held “that the introduction of inadmissible
other crimes evidence results in a trial error subject to
harmless error analysis.” Id. at 102. In its ruling, the
supreme court set out the following regarding the harmless
error analysis:

The history of Louisiana’s harmless error
rule makes clear that there has been one
common directive: appellate courts should
not reverse convictions for errors unless the
accused’s substantial rights have been
violated. This comports with the general
theory that “appeals in criminal cases are not
granted merely to test the correctness of the
trial court’s ruling, but only to rectify injuries
caused thereby.” State v. Saia, 212 La. 868,
876, 33 So.2d 665, 668 (1947), citing State v.
Cullens, 168 La. 976, 123 So. 645, 648
(1929).

This Court adopted the federal test for
harmless error announced in Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967), as a practical guide for
determining whether substantial rights of the
accused have been violated. See State v.
Gibson, 391 So.2d 421 (La.1980). Chapman
tests whether it appears “beyond a reasonable
doubt that the error complained of did not
contribute to the verdict obtained.” 386 U.S.
at 24, 87 S.Ct. at 828. An error did not
“contribute” to the verdict when the
erroneous trial feature is unimportant in
relation to everything else the jury considered
on the issue. Yates v. Evatt, 500 U.S. 391,
403, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432
(1991), overruled as to standard of review for
erroneous jury instructions in Estelle v.
McGuire, 502 U.S. 62, 112 S.Ct. 475, 116
L.Ed.2d 385 (1991).

Chapman was refined in Sullivan v.
Louisiana, 508 U.S. 275, 113 S.Ct. 2078,
124 L.Ed.2d 182 (1993). The Sullivan
inquiry “is not whether, in a trial that
occurred without the error, a guilty verdict
would surely have been rendered, but
whether the guilty verdict actually rendered
in this trial was surely unattributable to the
error.” Id., 508 U.S. at 279, 113 S.Ct. at
2081. This Court adopted the Sullivan
18

refinement of Chapman. See State v. Code,
627 So.2d [1373,] 1384; State v. Bourque,
622 So.2d [198,] 241 fn. 20.

Id. at 100.

State v. Barnes, 13-576, pp. 3-5 (La.App. 3 Cir. 12/11/13), 127 So.3d 1070, 1073–

74, writ denied, 14-43 (La. 6/13/14), 140 So.3d 1188.

In the case at bar, the State argues that a substantial amount of evidence was

presented that established Defendant’s guilt. For example, evidence was presented

that showed Defendant’s blood was present on the victim’s body and on the murder

weapons, the clothes Defendant was last seen in were found at the crime scene

covered in the victim’s blood, Defendant’s blood was found throughout the house,

and Defendant was the last person seen with the victim. Additionally, when

Defendant was arrested, a handwritten note stating his regret for what he had done

was found in his vehicle.

Defendant’s right to a fair trial was not compromised by the admission of the

testimony regarding the marijuana. The brief mention of the marijuana possession

during the officer’s testimony did not constitute other crimes evidence because

Defendant possessed it in a jurisdiction that allows for such possession. Further, as

previously discussed, Defendant’s reliance on Womack-Grey, 764 So.2d 108, was

incorrect since the supreme court overturned the appellate court’s ruling on the

grounds that the brief mention of the illegal drug use in that case amounted to

harmless error when the jury was presented with so much other evidence supporting

the defendant’s guilt. Similarly, as the State notes, the amount of evidence

demonstrating Defendant’s guilt far outweighs any prejudice caused by the brief

mention of the fact that Defendant possessed marijuana, especially when that

prejudice was mitigated through follow-up questions that resulted in direct testimony

19

that Defendant did not commit a crime when he was in possession of the marijuana.

This assignment of error is without merit.

JUROR CHALLENFGES

In Defendant’s second assignment of error, he alleges that the trial court erred

in denying Defendant’s challenges for cause. Louisiana Code of Criminal Procedure

Article 797 governs challenges for cause and states:

The state or the defendant may challenge a juror for cause on the
ground that:

(1) The juror lacks a qualification required by law;

(2) The juror is not impartial, whatever the cause of his partiality.
An opinion or impression as to the guilt or innocence of the defendant
shall not of itself be sufficient ground of challenge to a juror, if he
declares, and the court is satisfied, that he can render an impartial
verdict according to the law and the evidence;

(3) The relationship, whether by blood, marriage, employment,
friendship, or enmity between the juror and the defendant, the person
injured by the offense, the district attorney, or defense counsel, is such
that it is reasonable to conclude that it would influence the juror in
arriving at a verdict;

(4) The juror will not accept the law as given to him by the court;
or

(5) The juror served on the grand jury that found the indictment, or
on a petit jury that once tried the defendant for the same or any other
offense.

Defendant argues that the jurors at issue were not impartial. Defendant notes

that the trial court has broad discretion in ruling on challenges for cause and such

rulings are only reversed where the voir dire record, as a whole, demonstrates that

there was an abuse of discretion. State v. Robertson, 92-2660 (La. 1/14/94), 630

So.2d 1278; State v. Ross, 623 So.2d 643 (La.1993). Defendant states that because

he exhausted all of his peremptory challenges, his only burden is to show that the

trial court abused its discretion in denying any of his challenges for cause.

20

Kimberly Sassau

During voir dire, Kimberly Sassau testified that she was a communications

deputy with the sheriff’s department. When asked if she could still be impartial as

a juror, she stated, “[p]ossibly not. . . . I work with them closely, so more than

[likely] not.” Additionally, she testified that her fiancé was a sheriff’s deputy, but

she stated that this relationship would not affect her testimony. When asked later

about her previous statement that she may not be able to be impartial, the following

colloquy took place:

A. Right. When I say that, I kind of thought about it. If they’re going
to read their affidavits like they have read them, I believe it’ll be the
truth. I don’t believe that – I mean, they’re sworn deputies just like I
am and that’s what I meant.

Q. So the police officers are going to tell the truth?

A. I can’t say that they will for sure, but like I said they’re sworn
deputies and I believe their testimony.

....

Q. I guess what you were saying yesterday was the reason you said
“possibly maybe” because you know all these deputies and you’re
going to believe what they have to say?

A. Yes.

Q. More than an average Joe?

A. More than an average Joe.

Q. So you’re going to believe a police officer over a random person
testifying?

A. It depends on the facts. Like I said, if they’re going to read exactly
what they wrote on that day, then there’s no question about what they’re
saying.

Q. So what if they were not telling the truth on the report?

A. If they weren’t telling the truth on the report, it’s somebody’s job to
catch them in that.

21

Sassau also stated that if the State failed to prove its case and she had any

doubt that a defendant was not guilty, she would not be able to return a guilty verdict.

Defendant argued that because of Sassau’s testimony regarding her

relationship to law enforcement and her views about defendants, she is unable to be

an impartial juror. Defendant did acknowledge that Sassau stated that she could find

a defendant not guilty if the state failed to prove their case but argued that this does

not cure her impartiality.

To support this claim, in Defendant’s brief he cites State v. Hallal, 557 So.2d

1388, 1389-90 (La.1990), in which the supreme court held that “[a] challenge for

cause should be granted, even when a prospective juror declares his ability to remain

impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice

or inability to render judgment according to law may be reasonably implied.”

The State contends that although Sassau initially stated that her and her

relatives’ employment in law enforcement could affect her ability to remain

impartial, she later clarified that she would believe law enforcement’s sworn

testimony, which does not amount to bias because it is not unreasonable that any

juror would think sworn testimony is truthful. Sassau also clarified that if there was

contradictory evidence presented, such evidence could cause her to doubt the

truthfulness of the testimony. The State also notes that Sassau left room for

Defendant to explain why he may have fled, even if she was suspicious of his guilt

because he fled.

This court held in State v. Dotson, 16-473, p. 5, 17 (La. 10/18/17), 234 So.3d

34, 39, 45, writ denied, 18-177 (La. 12/17/18), 259 So.3d 340:

A trial judge is vested with broad discretion in ruling on
challenges for cause, and such a ruling is subject to reversal only when
a review of the entire voir dire reveals the judge abused his discretion.
[State v.] Robertson, [92-2660, (La. 1/14/94),] 630 So.2d [1278],
1281. The trial judge’s refusal to excuse a prospective juror on the
22

ground he is not impartial is not an abuse of discretion where, after
further inquiry or instruction (frequently called “rehabilitation”), the
prospective juror has demonstrated a willingness and ability to decide
the case impartially according to the law and the evidence. Id.

....

Clearly, La. C.Cr.P. art. 797(2) does not require that a
prospective juror state with absolute certainty that he/she cannot be
impartial in order to be removed for cause. However, in the absence of
such a statement, the trial court’s denial of a challenge for cause will
not be reversed if, on review of the entire voir dire examination, the
prospective juror demonstrates a willingness and ability to decide the
case impartially according to the law and evidence. [State v.]
Passman, 345 So.2d [874,] 880 [(La.1977)]. Reversal is appropriate
only where it appears, upon review of the voir dire examination as a
whole, that the trial judge’s exercise of that discretion has been arbitrary
or unreasonable, resulting in prejudice to the accused. Id.; see Dorsey,
10–0216 at 28, 74 So.3d at 625; State v. Lee, 93-2810 (La. 5/23/94),
637 So.2d 102, 108. This standard of review is utilized “because the
trial judge has the benefit of seeing the facial expressions and hearing
the vocal intonations of the members of the jury venire as they respond
to questions by the parties’ attorneys.” Lee, 93–2810 at 9, 637 So.2d at
108. “Such expressions and intonations are not readily apparent at the
appellate level where review is based on a cold record.” Id. As noted in
State v. Miller, 99-0192 (La. 9/6/00), 776 So.2d 396, because of the
“complicated and oftentimes daunting” task faced by a trial court in
deciding “challenges for cause of prospective jurors who give
equivocal . . . responses during voir dire,” “an appellate court should
accord great deference to the [trial] court’s ruling on a challenge for
cause, which is necessarily based, in part, on the court’s personal
observations during questioning.” Id., 99–0192 at 14, 776 So.2d at
405–06.

Like in the present case, in State v. Dorsey, 10-216 (La. 9/7/11), 74 So.3d 603,

cert denied, 566 U.S. 930, 132 S.Ct. 1859 (2012), the supreme court found no abuse

of discretion where the trial court denied a challenge for cause of a juror who initially

said he would give more weight to the testimony of a law enforcement officer than

that of a lay witness but later said he could change his mind if the evidence

contradicted the officer’s testimony and that officers can sometimes make mistakes.

Here, as previously noted, Sassau initially stated that she would believe the sworn

testimony of an officer over that of a lay person because of her employment with the

sheriff’s department, but then she later stated that whether she believed them over a
23

lay person would depend on facts and if they were being untruthful in a report then

she would expect someone to catch such deception.

The second circuit stated in State v. Colby, 51,907, p. 31 (La.App. 2 Cir.

5/30/18), 244 So.3d 1260, 1281, writ denied, 18-1256 (La. 3/25/19), __ So.3d __:

A potential juror who is associated with law enforcement duties
must be closely scrutinized and may justify a challenge for cause;
however, such association is not automatic disqualification. State v.
McIntyre, 365 So.2d 1348 (La. 1978); State v. Hampton, 50,561 (La.
App. 2 Cir. 5/18/16), 195 So.3d 548, writ denied, 2016-1181 (La.
5/26/17), 221 So.3d 854. A prospective juror’s association with law
enforcement is grounds for disqualification only if one might
reasonably conclude that it would influence him in arriving at a verdict.
State v. Hampton, supra; State v. Rhodes, 1997-1993 (La. App. 4 Cir.
11/18/98), 722 So.2d 1078. Louisiana courts have generally
disqualified persons who are currently actively associated with law
enforcement. However, courts have also held that there is no abuse of
discretion in denying a challenge for cause where “a juror’s association
with law enforcement has ended by the time of trial, he has no personal
knowledge of the case at hand, and he states that he can be impartial
despite the prior law enforcement background.” State v. White, supra;
State v. Rhodes, supra.

Sassau testified that her fiancé was a sheriff’s deputy; however, she unequivocally

stated that this would not influence her impartiality as a juror. Upon review of the

entirety of Sassau’s testimony during voir dire, the record shows no instance of abuse

of discretion by the trial court regarding its denial of Defendant’s challenge for cause

concerning Sassau.

Shawana Bokenkamp

Shawana Bokenkamp testified that she would return a verdict of guilty if the

State proved their case by clear and convincing evidence. However, when asked

what clear and convincing evidence meant to her, she agreed with another

prospective juror’s definition of clear and convincing evidence when he stated that

the evidence would be clear and convincing if it was “overwhelming evidence that’s

presented.” Defense counsel went through some fact patterns with the prospective

jurors, and during one of the fact patterns, he asked whether someone arrested on
24

suspicion of OWI who was out on bond should be allowed to bond out again if they

are in an accident that causes a fatality. Bokenkamp responded that accidents can

happen without alcohol involved even if the person was previously arrested on

suspicion of OWI, and in that case, they should not be penalized, but if this was a

second case of suspicion of OWI, then that person should have some restrictions but

did not need to be in jail. In a second fact scenario, Defendant presented a situation

where someone is suspected of murder and witnesses stated the suspect committed

the murder, but the case had not yet gone to trial, and he asked the prospective jurors

if that suspect should be able to bond out of jail while awaiting trial. Bokenkamp

stated that the suspect should be able to bond out.

After Bokenkamp’s voir dire testimony, Defendant challenged her for cause

and cited her responses to the OWI and murder fact scenarios being contradictory to

information counsel had gathered from Bokenkamp’s online activity as one of the

grounds for the challenge. Defendant stated that he found that Bokenkamp had

signed a petition to keep a murder suspect from bonding out which caused him to

question her ability to maintain a presumption of innocence. Additionally,

Defendant noted that she had signed another petition to revoke the bond of an OWI

suspect, to have the State prosecute the suspect to fullest extent of the law, and to

fight for the maximum sentence. He stated that he questioned the prospective jurors

on identical fact patterns after finding this information and Bokenkamp’s responses

were contradictory to her internet conduct. The State countered that Defendant

failed to question Bokenkamp about how her internet activity contradicted her voir

dire testimony. The trial court denied Defendant’s motion, stating that the proper

procedure was to impeach Bokenkamp regarding her prior statements, by

confronting her with the statements which Defendant failed to do.

25

Now, Defendant highlights that Bokenkamp stated she could convict by clear

and convincing evidence, which is a lower standard than beyond a reasonable doubt.

Further, Defendant raises in his brief his concern that Bokenkamp stated she

wondered how Defendant had gotten into the position he is in. Defendant also argues

that her online activity showed that she had signed a petition to deny bond to a

defendant arrested for murder, and she requested that others join her in fighting to

revoke the bond of a defendant facing DWI charges. Defendant believes this is

evidence that she does not believe in the principle of innocent until proven guilty.

The State argues that although Bokenkamp stated that clear and convincing

evidence was enough for her to convict, a full reading of the exchange shows that

her understanding of what constituted clear and convincing evidence would require

that the State provide “overwhelming evidence” that Defendant was guilty and that

this is actually in line with the beyond-a-reasonable-doubt standard. Regarding the

information found on Bokenkamp’s Facebook account, the State argues that

Defendant’s failure to confront her with what it deems as contradictory to her

testimony during voir dire is not evidence of dishonesty on the part of Bokenkamp.

Rather, the State suggests that she may have had personal reasons for feeling so

strongly about the cases in question or perhaps those statements were attributable to

someone she could share an account with, but those are all hypotheticals with no

answers because of Defendant’s failure to confront her with her past statements.

Defendant’s argument about Bokenkamp’s lack of understanding about the

different burdens of proof, her statement that she could convict if presented with

clear and convincing evidence, and his argument that Bokenkamp wondered about

how Defendant was in this situation were not raised in the trial court during the

discussion of the challenge for cause. According to our supreme court, failure to

argue a basis for challenging a prospective juror for cause in the trial court prevents
26

a party from arguing that ground on appeal. State v. Clark, 12-508 (La. 12/19/16),

220 So.3d 583, cert. granted, judgment vacated on other grounds, ___ U.S. ___, 138

S.Ct. 2671 (2018).

Regarding Defendant’s issue with Bokenkamp’s internet activity, we find no

abuse of discretion in the trial court’s ruling, because, as noted by the trial court,

Defendant had the opportunity to confront Bokenkamp and impeach her as to her

prior statements and failed to do so.

Nevertheless, we have reviewed the whole of Bokenkamp’s voir dire

testimony and found no indication that the trial court abused its discretion in denying

the challenge for cause.

Fritz Farrar

Fritz Farrar stated that his wife is the step-sister of the victim’s father.

Defendant argues that this relationship to the victim and Farrar’s relationship with

members of the victim’s family prevented him from being impartial. Defendant

notes that Farrar testified that he knew the victim’s father for over thirty years, but

his relation to the family would not influence his ability to be impartial. Further,

Defendant points out that contrary to Farrar’s statements that he did not know the

victim’s mother, the mother stated that she and Farrar were good friends. Defendant

concedes that “[t]he fact that a juror has a relationship with the victim is not itself

enough to sustain a challenge for cause.” See State v. Bourque, 622 So.2d 198

(La.1993), overruled on other grounds by State v. Comeaux, 93-2729 (La. 7/1/97),

699 So.2d 16.

The State contends that Farrar’s impartiality is not an issue because, as he

stated, he did not know the family well, despite the relationship by marriage, was

not friends with the victim’s father, did not know the victim’s mother or even

recognize her name, and he had never met the victim.
27

In State v. Brown, 496 So.2d 261, 265 (La.1986), the supreme court found a

challenge for cause was improperly denied where a prospective juror whose son had

dated the victim in high school, testified that she would have a difficult time facing

the victim’s parents if she returned a not guilty verdict and also indicated that her

son’s former relationship with the victim would make it difficult to be impartial. In

State v. Wiley, 614 So.2d 862 (La.App. 2 Cir. 1993), the second circuit found that

the trial court properly granted the State’s challenges for cause concerning two jurors

who stated that their relationships with the victim and/or the victim’s family would

influence their decisions. Regarding the issue, the second circuit stated:

In State v. Drumgoole, 517 So.2d 909 (La.App. 3d Cir.1987), a
challenge for cause based upon a relationship with the accused’s family
was found to have been properly granted. Although the potential juror
stated that she would vote if she had to, she also stated it would be hard
for her to be impartial. Likewise, although the instant potential jurors
stated that they would attempt to set aside their bias if forced to, both
stated that it would be hard to do so because they felt influenced by
their relationship with the defendant. Under these circumstances, the
trial court did not err in excusing Henderson and Wimberly for cause.

Id. at 866.

The instant case is distinguishable from Brown, 496 So.2d 261 and Wiley, 614

So.2d 862, because Farrar unequivocally stated that his relationship with the victim’s

family was not a close one, and he could be impartial. Based on Farrar’s testimony

during voir dire, we find that the trial court did not abuse its discretion in denying

Defendant’s challenge for cause as to Farrar. This assignment of error is without

merit.

MOTION IN LIMINE

In Defendant’s third assignment of error, he claims that the trial court erred in

denying his Motion in Limine regarding the note found in his vehicle. When

Defendant was arrested in Colorado, the arresting officer, Officer Warrick, testified

that he was instructed via the warrant attached to Defendant’s vehicle to treat the
28

vehicle like a crime scene. He testified that he put items back in the car that had

fallen out when Defendant got out of the vehicle. He then removed the keys from

the vehicle so he could lock it, closed the doors, and locked the car. He testified that

beyond that, nothing was touched or looked through within the vehicle. Officer

Warrick then sealed the vehicle with crime scene tape and had the vehicle towed to

the police department’s garage, where it was held under surveillance camera in a

secure lot.

Once the vehicle was impounded, Detective David Wroblewski, with the

Glendale Police Department, obtained a search order, and a search of the vehicle

produced the note in question. This note was read at trial by Detective Wroblewski.

The note, partially quoted above, explained that Defendant acted in the manner he

did because he had a rage built up inside of him and felt stress from dealing with a

newborn, school, and their relationship.

Defendant argues that the note was not authenticated by the State’s own

handwriting expert, and the State’s failure to authenticate the note makes it

inadmissible. Detective St. Cyr testified on cross-examination by Defendant that he

subpoenaed the University of Louisiana at Lafayette (ULL) for any handwritten

documents by Defendant, who was a student there. Detective St. Cyr testified that

because he was not a handwriting analyst, he hired Robert Foley, who was

recommended to him by another senior detective. Foley informed Detective St. Cyr

that the signature received from ULL would not represent a good enough sample to

compare with the note. Detective St. Cyr testified that in order to return to the crime

scene and try to obtain a writing sample of Defendant’s handwriting, he would have

had to apply for another search warrant to enter the home. Detective St. Cyr stated

that he did not attempt to obtain another warrant nor did he speak with Defendant’s

family members or Defendant’s potential employers in an attempt to find a suitable
29

writing sample to compare to the note. Detective St. Cyr testified that the note

contained no signature or date and was written on notebook paper. According to

Detective St. Cyr, no comparison was ever able to be made.

As noted by the State, La.Code Evid. art. 901 allows for the contents of the

writing to be considered with the circumstances to determine the authenticity of a

document. Further, La.Code Evid. art. 901(A) also states that a document is

admissible if the “evidence [is] sufficient to support a finding that the matter in

question is what its proponent claims.” The note’s author writes about intimate

details of his life that affected his emotional state and caused him to commit the act

in question. He also speaks from the point of view of the father of the couple’s child.

This is evidence that the author is Defendant, who was the victim’s significant other

and father to their newborn son. Additionally, the note was found in Defendant’s

vehicle when Defendant was arrested. As previously noted, the vehicle was sealed

and impounded immediately following the arrest, and the note was found in a

subsequent search of the vehicle. The record reflects that no person accessed the

vehicle between it being impounded and searched.

Given the evidence, the document was properly authenticated through its

contents and the evidence provided, and the trial court did not err in denying

Defendant’s Motion in Limine to exclude the note from being admitted as evidence.

This assignment of error is without merit.

MOTION TO SUPPRESS

Defendant’s fourth assignment of error claims that the trial court erred in

denying his Motion to Suppress Gruesome or Otherwise Extremely Prejudicial

Photographs and Evidence. In a pretrial writ to this court, Defendant sought to have

reversed the trial court’s denial of Defendant’s motion to exclude over 400

photographs from evidence. This court granted the pretrial writ, stating that the court
30

improperly ruled on the numerous photographs in toto instead of making

individualized determinations as to their admissibility. Defendant notes that at trial,

the State did not try to admit such a large number of photographs.

Defendant objects to some of the photographs that were admitted, stating that

they are highly prejudicial because of their gruesome nature, citing La.Code Evid.

art. 403. The first photograph Defendant objects to was S-13 because, as he told the

trial court, “it showed a juxtaposition of blood on baby related items such as a

pacifier and bottle warmer and was highly prejudicial.” During discussion of the

photograph with Defendant and the trial court, the State countered that the

photograph was relevant to show what steps the State believed Defendant took

following the murder, and the trial court allowed it to be admitted into evidence.

Defendant’s objections to photographs 19, 21-23, 28, 29, 6, and 7, which were also

based on the claim that they were highly prejudicial and could be described through

witness testimony, were also overruled. In his brief, Defendant states that he

objected to photograph 26, 8, and 9; however, the record shows Defendant stated he

had no objection to those photographs. Defendant also objects to other photographs

which depicted blood on various items around the house such as the light switches

and countertops. Defendant objects to photos S-32 and S-33 as well because they

showed possible blood stains on children’s clothing. The trial court admitted thirty-

three other photos of the crime scene that the Defendant objected to because they

depicted things like blood on the baby swing power switch and cushion. The actual

clothing the child was wearing when found at the crime scene was also admitted

over Defendant’s objections that they were cumulative and highly prejudicial.

The State presented the following arguments before the trial court as to the

photographs that Defendant objected to at trial and now brings on appeal.

Photograph 19 was needed to show the victim’s body in relation to one of the knives
31

found at the scene and to show what clothes the victim was wearing. According to

the prosecution, photograph 21 was needed to show the jury where the blood spatter

was located in relation to the victim’s body. Photograph 22 was being used to

demonstrate, from the blood evidence found next to the victim’s body, that a struggle

may have occurred. Photograph 23, which showed the victim’s head and neck, was

needed to show cause of death and intent. Further, the State pointed out that they

had narrowed the photos of the victim at the crime scene from 600 to five that would

demonstrate their arguments. The State asserted that photograph 28 was needed to

show the blood trail leading from the victim’s body, and 29 was needed to show the

continuation of the blood trail as it led past the bassinet toward the living room.

Photographs 6 and 7 were used to show Defendant’s movement through the house

as demonstrated by the blood droplets on the baby swing.

After a thorough reading of the record, the thirty-three photos Defendant notes

in his brief were admitted over his objections, appear to be a group of photos that

include photos 19, 26, 21-23, 28, and 29, discussed above. Before testimony began

that would include discussion of the crime scene, Defendant suggested that they go

through each photograph and deal with any issues of admissibility, rather than

continuously interrupting testimony with objections as to the photographs’

admissibility. During this discussion, the State noted that it had 33 photographs of

the kitchen area, and discussions of admissibility followed as to each photograph,

some of which Defendant did not object to. When Detective St. Cyr’s testimony

about the kitchen portion of the crime scene then began, the State marked the photos

as exhibit 4, went over each photo with Detective St. Cyr, then offered them into

evidence, which the trial court granted. Defendant then noted that their admission

into evidence was over defense’s objection; however, as previously noted, when

32

going through the photographs, there were some that Defendant explicitly stated he

was not objecting to.

Our supreme court ruled in State v. Magee, 11-574 (La. 9/28/12), 103 So.3d

285, cert. denied, 571 U.S. 830, 134 S.Ct. 56 (2013), that the state is entitled to the

moral force of its evidence, and the gruesome nature of admitted photographs does

not constitute reversible error unless the prejudicial effect of the photos substantially

outweighed their probative value.

Here, the State contends that the photographs were admitted to show the

wounds suffered by the victim, to show the identity of the victim, to corroborate the

statements in the previously-discussed note that Defendant had a rage built up inside

of him, and to show specific intent based on the severity of the attack and where the

wounds were located. Additionally, the crime scene photographs were introduced

to familiarize the jury with the crime scene, to show what the victim was wearing

when she died, to show the movement of Defendant through the house, as evidenced

by the blood trail, and the fact that the trail of blood was evidence of Defendant

injuring himself during the incident in question. The State notes that rather than

trying to introduce all of the 600 photographs in its possession, it only attempted to

introduce a fraction of that, 88 photos. Further, the State notes that Defendant failed

to contemporaneously note the observation that some jurors cried when viewing the

photos.

The State’s reasons for introducing the photographs were in accordance with

the jurisprudence in that they illustrated issues relevant to describe the victim, the

location of the crime, and other facts. Magee, 103 So.3d 285.

Our supreme court held in State v. Koon, 96-1208, p. 34 (La. 5/20/97), 704

So.2d 756, 776, cert. denied, 522 U.S. 1001, 118 S.Ct. 570 (1997), that

“[p]hotographic evidence will be admitted unless it is so gruesome as to overwhelm
33

the jurors’ reason and lead them to convict the defendant without sufficient other

evidence. State v. Perry, 502 So.2d 543, 558-559 (La.1986), cert. denied, 484 U.S.

872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987) (cites omitted).”

Further, the court in State v. Broaden, 99-2124 (La. 2/21/01), 780 So.2d 349,

cert. denied, 534 U.S. 884, 122 S.Ct. 192 (2001), stated that the admissibility of

photographic and any other evidence was subject to the same test under La.Code

Evid. art. 403, which weighs the probative value of relevant evidence against its

prejudicial nature.

Here, as discussed above, there was an abundance of evidence supporting

Defendant’s guilt such as DNA evidence and the note found in Defendant’s vehicle.

This assignment of error is without merit.

EXPERT WITNESSES

Defendant contends in his fifth assignment of error that the trial court erred in

allowing Detective St. Cyr to testify as an expert regarding blood splatter and

footprints, when he was not qualified as an expert in either area.

When the prosecutor questioned the detective about blood depicted in one of

the photographs, the following colloquy occurred:

A Kind of the same – I’m sorry. If you’re looking at the – Claire
Walley on the ground, to the left of her it’s basically showing the floor
is what the picture is showing.

Q These drops right here, are those significant to you?

A Those would be considered 90 degree drops and –

MR. LUSKIN: Judge, I’m going to object to the 90 degree drop
testimony. If the State wants to introduce testimony about the blood
drop evidence that there’s experts that can talk about that. It’s just that
Detective St. Cyr is not qualified.

MS. BILLEAUD: I think, Your Honor, that he can certainly explain
why they were relevant to his investigation.

THE COURT: Foundation.
34

BY MS. BILLEAUD:

Q How long have you been a detective?

A Three years, going on three years.
Q And you said you’ve been with the police force for how long?

A Twelve years.

Q And have you investigated murders before?

A This was the first murder at this time I’ve been – assisted with
several other murders.

Q This is the first you were the lead on?

A Yes, ma’am.

Q But you assisted with others?

A Yes, ma’am.

Q And have you ever seen blood evidence before?

A Yes ma’am. I took a class, Blood, Bullets and More, it was a class
out of Texas and it went over blood spatter and 90 degree drop and
things like that and learned, you know, not as much as the crime scene
guys would know, but the basics of how blood works.

Q And that – knowing that kind of information is important for a
detective for what reason?

MR. RUBIN: Judge, I’ll object to that question as leading.

MS. BILLEAUD: Well, I’m asking why it would be important to him.
THE COURT: It’s overruled because she’s trying to qualify him as an
expert.

THE WITNESS: It is important because blood tells a story. And in
this situation you can tell if it’s a 90 degree blood drop it tells a detective
or somebody that – whoever’s looking at it can tell that the drops of
blood were going straight down.

MS. BILLEAUD: Your Honor, I’d ask that Detective St. Cyr be
allowed to testify in regards to his knowledge of the evidence that he
found and why that’s relevant to his investigation, and as an expert as
far as that’s concerned for this investigation.

MR. LUSKIN: And I’ll object, Judge. Acadiana Crime Lab has plenty
of people who know this stuff very well. And if the State wanted to
35

introduce evidence about the blood drops and evidence about its source
and the way it may have fallen off, and what it may have fallen off, they
could have brought one of those people down; they didn’t.

THE COURT: Overruled.

BY MS. BILLEAUD:

Q Again, detective we were talking about this photograph. I think
you mentioned those droplets?

A Yes, ma’am. Ninety degree droplets and then the rest of the
picture, again, like I was saying, is the left side or the floor on the left
side of Claire Walley. And what it shows is, again, kind of what I
described in the previous picture on the cabinets with the blood kind of
smeared all over. It just leads to us that there was some type of struggle
that occurred in this area.

....

Q Okay. Photograph 24, I’m going to ask you to look at that one.

A This picture is the – it’s her stomach, Claire Walley’s stomach.
It’s kind of her stomach, the floor next to her, and her arm. And what it
shows is that on her stomach that’s smeared, but then there’s blood that
appears to be 90 degree drops on her stomach as well which would lead
me to believe that –

MR. LUSKIN: I object, Judge. This is speculation.

THE COURT: Overruled.

THE WITNESS: -- which would lead me to believe that there was a
tussle here and then after the fact, the blood was dropped on her
stomach because it’s not smeared.
....

A Whenever you walk into the living room there’s a -- you can see
the coffee table and the sofa in the picture. We located blood on the
ground between the coffee table and the sofa. Again, those appear to be
90 degree drops, which would lead us to believe that someone was
sitting down on the sofa. On the coffee table is a laptop. The power
button of the laptop had blood on it, as well as some of the keys.

To the left on the other side of the coffee table is a baby swing.
The baby swing had blood on the on/off power switch as well as the
cushioning part where you would lay the baby down.

The table to the right --

36

In State v. Thibodeaux, 16-542, pp. 11-12 (La.App. 3 Cir. 3/15/17), 216 So.3d

73, 82-83 (footnote omitted), writ denied, 17-642 (La. 12/5/17), 231 So.3d 628, a

forensic pathologist was allowed to testify as follows:

[W]hen Zeb and Charlie returned with the scene photographs, they
showed those to me, and I am not a blood splatter expert, but I told Zeb
and Charlie—I paint. My wife and I paint the walls in our house, so I'm
familiar with what paint does when you flick it off of a paintbrush. If
you go straight on at a 90–degree angle, it makes little round circles,
and makes those little things kind of shoot outwards, but if you hit a
wall at an angle, it gives a tadpole effect, and in the scene photographs
that they had shown me, over the headboard were these tadpole-like
blood splatter findings, and, to me, that meant that it was at an angle at
the time of discharge, or at the time that the pellets hit the body and the
blood had expelled from the body, and then, on another wall which was
adjacent to that and to the side—alongside of the bed, the blood splatter
was straight on, and so I thought there were two different trajectories,
one at an angle—

MR. ALEXANDER:

Your Honor, I’m going to object because he’s just said he’s not a blood
splatter expert but he’s proceeding to give opinion evidence on blood
splatter.

A Well, I’m not finished, sir.

THE COURT:

State?

MR. BRYANT:

He's allowed to testify as to—he's a forensic pathologist who’s allowed
to testify as to what opinions he came to as to why he continued his
investigation into this matter, and he is—he viewed the photographs
and why he continued his investigation into this matter, Your Honor. I
think he's more than qualified to do this. He’s done over five thousand
autopsies, he’s done gunshot wounds, and I think he’s more than
qualified to testify in this area.

THE COURT:

Objection’s overruled. You may proceed.

This court concluded that Dr. Welke discussed the topic of blood splatter

merely to explain the course of action he took in investigating the victim’s death
37

rather than testifying as an expert regarding blood splatter. One distinguishing point

in Thibodeaux is that this court further stated that if there was an error on the part of

the trial court, the error was harmless, as the State presented another witness who

qualified as an expert in blood splatter; in the instant case, there was no blood splatter

expert presented. In view of Thibodeaux, the trial court did not err in allowing

Detective St. Cyr to testify regarding blood splatter.

Regarding Detective St. Cyr’s testimony about a pair of shoes found at the

crime scene matching the bloody footprint found there as well, and that blood

appeared to be present on the shoe, Defendant argues that no testing was done to

verify that the shoes matched the print.

The following relevant exchanged occurred regarding this issue:

A This is the same trash can depicted in the picture and it
also shows a pair of shoes, moccasin-style shoes, which the sole
of the moccasin shoe seem to match one of the footprints.

MR. LUSKIN: Judge, I will object to this testimony.

THE COURT: Wait. I’m sorry.

MR. LUSKIN: I’m going to object to any testimony about the
soles of the shoes and what they look and don’t look like. If the
State wants to introduce that evidence they should do so through
an expert.

THE COURT: Overruled.

BY MS. BILLEAUD:

Q You can answer.

A Okay. I’m sorry. The sole of the shoe, the design of the
sole of the shoe appeared to match the same footprint that we
located in the kitchen on the ground.

Q And did it have any other blood on the shoe that you
noticed?

A What we believed to be blood on the shoes, yes, ma’am.

Q And Number 7?
38

A Another picture of the shoes and, again, the blood that – or
what we believe to be blood on the shoe.

....

Q And, again, the shoes are in that picture; is that correct?

A Yes, ma’am.

Q Now, just for clarification, Detective, when you say the
pattern seemed to match, was that just your visual observation?

A Yes, ma’am.

Q Did you do any testing on it or anything like that?

A No, ma’am.

MR. LUSKING: Judge, I’m going to object again to this line of
testimony. I also object to leading on these questions.

THE COURT: Overruled.

BY MS. BILLEAUD:

Q So that was just, as an investigator, something you
noticed?

A Yes, ma’am. It appeared that they were the same pattern.

Q You didn’t conduct any tests on them?

A No, ma’am.

The trial court noted that a layperson could match the tread of the shoe to the

footprint, and expert testimony was not required. Defendant then noted that La.Code

Evid. art. 701 limits the testimony of lay witnesses to opinions that are based on the

witness’s own perception and which will assist in providing clarity to his testimony

or to a determination of a fact that is at issue.

The State argues in its brief that any layperson could make a visual

determination as to whether they think a shoe matches a footprint. Further, it argues

that Detective St. Cyr’s testimony about the shoe was another instance of him

39

explaining why he viewed some evidence at the scene to be of significant value to

the investigation.

In State v. Smith, 10-830 (La.App. 3 Cir. 2/9/11), 58 So.3d 964, writ denied,

11-503 (La. 9/30/11), 71 So.3d 279, this court, relying on State v. McGuire, 560

So.2d 545 (La.App. 1 Cir.), writ denied, 565 So.2d 941 (La.1990), found a detective

need not be qualified as an expert to give testimony comparing the shoe print found

in one of the victim’s vehicles to the defendant’s shoes.

Thus, the trial court was correct in its determination that Detective St. Cyr

could testify whether the imprint from the shoe and the sole of the shoe appeared to

be the same.

Defendant also urges that the State attempted to cure this defect in Detective

St. Cyr’s testimony by calling Mark Kurowski, a forensic chemist with the Acadiana

Criminalistics Laboratory, and that this attempt only served to confuse the jury

because his tests to determine if the moccasins found at the crime scene matched the

bloody shoe prints were inconclusive.3 Further, at trial, Defendant objected to Mr.

Kurowski’s testimony on the grounds that he was not provided notice of his expert

testimony or a curriculum vitae, as required under La.Code Crim.P. art. 719.

Defendant argued that this lack of notice prejudiced Defendant because he was

unable to call his own expert witness to counter any evidence presented by Mr.

Kurowski. According to Defendant, despite filing a “Motion for Criminal Discovery

and for Production of Exculpatory Evidence” on April 11, 2016, the State did not

notify Defendant of their intent to call Mr. Kurowski as an expert witness in shoe

print analysis, nor was the defense provided with a report so that they could retain

an expert.

3
In his brief, Defendant states that Mark Kurowski was a forensic chemist with the Louisiana
Crime Lab; however, his testimony reveals that he was a forensic chemist with the Acadiana
Criminalistics Laboratory.
40

The State argues that Mr. Kurowski was called as an expert witness only after

Defendant made an issue of the shoe prints in voir dire. According to the State, it

had obtained a forensic examination report only a week or two before trial and

immediately disclosed the results to Defendant. At that time, the State informed

Defendant that it did not intend to call an expert on the matter if the parties agreed

not to discuss the shoe prints at trial. Once Defendant brought up the issue of shoe

prints in voir dire, the State asserts that it informed the defense that if they presented

arguments or evidence that the State had not conducted testing or other investigatory

steps in regard to the shoe prints then the State would have to call their expert to

refute such claims despite the results coming back as inconclusive. If the expert was

called, the State also offered to stipulate that he would testify to the fact that he

conducted testing on the shoe prints which came back as inconclusive. Defendant

refused to agree to the stipulation, so the State immediately produced a copy of the

expert report for the defense.

When the State and Defendant discussed this with the trial court upon

Defendant’s motion to exclude Mr. Kurowski from testifying, Defendant argued that

had they agreed to the stipulation, they would have had to agree to it being expert

analysis, which they would not do because, at that point, they had not received any

of the required documentation under La.Code Crim.P. art. 719. The trial court

denied Defendant’s motion to exclude Mr. Kurowski’s expert testimony.

In its brief, the State argues that it complied with La.Code Crim.P. art. 719 by

notifying Defendant of Mr. Kurowski’s testimony and producing a copy of his report

as soon as Defendant brought the topic of shoe prints up in voir dire.

Louisiana Code of Criminal Procedure Article 719 states:

A. Upon written motion of the defendant, the court shall order the
district attorney to permit or authorize the defendant to inspect and
copy, photograph, or otherwise reproduce any results or reports, or
41

copies thereof, of a physical or mental examination, and of scientific
tests or experiments, made in connection with or material to the
particular case, that are in the possession, custody, control, or
knowledge of the district attorney and intended for use at trial. If the
witness preparing the report will be called as an expert, the report shall
contain the witness’s area of expertise, his qualifications, a list of
materials upon which his conclusion is based, and his opinion and the
reason therefor. If the expert witness has not reduced his results to
writing, or if the expert witness’s written report does not contain the
information required of an expert as provided in this Article, the state
must produce for the defendant a written summary containing any
information required to be produced pursuant to this Article but absent
from a written report, if any, including the name of the expert witness,
his qualifications, a list of materials upon which his conclusion is based,
and his opinion and the reason therefor.

To support his argument, Defendant cites State v. Burgess, 482 So.2d 651,

(La.App. Cir. 1985), where the fourth circuit held that expert examinations and test

results made by an expert witness were subject to discovery under La.Code Crim.P.

art. 719.

Although we were unable to find any jurisprudence analogous to the case at

hand, Burgess is distinguishable from the instant case because in Burgess, the State

produced the final reports of the experts but tried to prevent discovery of the experts’

test results by marking them as not intended for use at trial and by claiming they

were work product and thus immune from discovery. In the case at hand, the record

does not reflect that the State tried to prevent discovery of any of the testing or the

report done by Mr. Kurowski. Rather, the State informed Defendant of Mr.

Kurowski’s results and told them that they did not intend to call him at trial unless

Defendant intended to bring up the shoe prints. The record does not indicate that

Defendant ever subpoenaed the report or information from the experiments

performed by Mr. Kurowski when they were informed of them by the State.

With regard to the expert testimony of Mr. Kurowski, Defendant knew of Mr.

Kurowski’s experiment and the results from that experiment as well as the State’s

intention not to call Mr. Kurowski as an expert witness unless Defendant made the
42

shoe prints at the crime scene an issue at trial. When Defendant decided he would

address the shoe prints at trial, he could have made a discovery request under

La.Code Crim.P. art. 719 to obtain the documents and information he complains of

not receiving timely or at all.

For those reasons, the trial court did not err in allowing either Detective St.

Cyr to testify as to the blood spatter and shoe prints or Mr. Kurowski as an expert in

regard to the shoe prints. Accordingly, these assignments of error are without merit.

EXPERT TESTIMONY

In Defendant’s last assignment of error, he argues that the trial court erred by

allowing Dr. Christopher Tape to testify to information that was not contained in his

autopsy report. Defendant contends that his Motion in Limine to exclude the

testimony of Dr. Tape regarding his opinion that the wounds the victim suffered to

her neck seemed to be consistent with an attack from behind and the attacker cutting

her neck with his right hand because this information was not contained in Dr. Tape’s

autopsy report. Further, Defendant argues that Dr. Tape was also allowed to testify

to information not included in his report when he testified that it was very likely that

the victim did not sustain her injuries all at one time. Based on this testimony,

Defendant moved for a mistrial pursuant to La.Code Crim.P. art. 775, on the grounds

that the testimony violated La.Code Crim.P. art. 719 and was highly prejudicial.

The State argues that the fact that the cuts to the victim’s neck were deeper on

the left than on the right was included in Dr. Tape’s written report, and the State

merely asked follow up questions to expound on this observation as to why this

might be the case. The State further contends that it was not required to produce

answers to these follow-up questions before trial because the information was not

exculpatory evidence. The State notes that it provided Defendant with a copy of Dr.

Tape’s report months prior to the commencement of the trial, and the defense had
43

ample opportunity to hire an expert to refute or provide its own theories regarding

the findings in the report.

We find that because the observations that form the basis for Dr. Tape’s

opinions about the attack are found within the report, the trial court did not err in

allowing Dr. Tape’s testimony to be admitted. This assignment of error is without

merit.

DECREE

Defendant’s conviction and sentence for the second-degree murder of Claire

Walley are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

44